Land Use Prof Blog

Land Use at AALS

The AALS Annual Meeting is next week at the Hilton Riverside in New Orleans.  Land Use doesn't have its own AALS Section; rather, land use issues are integral to many topical areas across the legal profession, including property law, real estate transactions, state & local government, environmental, administrative, and constitutional law.  So, if you are looking for a handy guide to land use-related programs at AALS, or are still deciding whether to head down to New Orleans (a fascinating land use city for a variety of reasons), here is a list I have compiled.

Thursday, Jan. 7
-- 8:15-5:30. Joint Program of Sections of Environmental Law and Natural Resources Law Field Trip [Waitlist].
-- 2:00-5:00. Real Estate Transactions, co-sponsored by Section on Property Law. Program selected from call for papers, to be published in the Indiana Law Review. Co-moderators: Carol N. Brown (North Carolina) & Lloyd T. Wilson, Jr. (Indiana). Speakers: Steven J. Eagle (George Mason); Robin Paul Malloy (Syracuse); Thomas W. Mitchell (Wisconsin); Rigel C. Oliveri (Missouri); Eduardo M. Penalver (Cornell); Aleatra P. Williams (Charleston).

Friday, Jan. 8
-- 7:00-8:30.  Section on State and Local Government Continental Breakfast.
-- 9:00-10:00. Poster Presentation sponsored by Section on Property Law. Poster Presenters: Jessica Owley Freeman (Pace); Alina Ng (Mississippi College). 
-- 10:30-12:15. Hot Topic: The Katrina Litigation: On the Front Edge of Civil, Constitutional, and Environmental Law. Moderator: Oliver A. Houck (Tulane). Speakers: Joseph M. Bruno, Jr. (Bruno & Bruno); Michael B. Gerrard (Columbia); Carlos A. Zelaya II (F. Gerald Maples, P.A.). 
-- 2:15-4:00. Presidential Program I—Transformative Scholarship. Moderator: Robert C. Post (Yale). Speakers: Dana Berliner (Institute for Justice); Richard A. Epstein (Chicago); Catherine A. MacKinnon (Michigan); Charles Swift (Swift & McDonald); Liza Velazquez (Paul, Weiss). Presumably, Berliner and Epstein will speak about property rights. 
-- 4:00-5:45. State and Local Government Law: The City as a Political Actor: Powers, Boundaries, Responsibilities. Moderator: Richard Briffault (Columbia). Speakers: Michelle W. Anderson (Berkeley); Lynn A. Baker (Texas); Clayton P. Gillette (NYU); Daniel B. Rodriguez (Texas); Aaron J. Saiger (Fordham).

Saturday, Jan. 9
-- 7:00-8:30. Property Law Breakfast.
-- 8:30-10:15. Environmental Law, co-sponsored by Section on Natural Resources. Climate Change and Legal Education: It’s Getting Hot in Here. Moderator: Douglas A. Kysar (Yale). Speakers: William Boyd (Colorado); Michael B. Gerrard (Columbia); Maxine I. Lipeles (Washington U.); John C. Nagle (Notre Dame).
-- 10:30-12:15. Natural Resources, co-sponsored by Section on Environmental Law. Climate Change and Adaptation in a Federal System. Moderator: Alejandro E. Camacho (Notre Dame). Speakers: Vicki Arroyo (Georgetown); Robin K. Craig (Florida State); Daniel A. Farber (Berkeley); Victor B. Flatt (Houston).
-- 1:45-5:00. New Orleans Neighborhood Solidarity Tour.

Sunday, Jan. 10
-- 9:00-10:45. Property Law: Junior Property Scholars Works-in-Progress. Program selected from call for papers; to be published in the Indiana Law Review. Moderator: Carol N. Brown (North Carolina). Speakers: David Fagundes (Southwestern); Alina Ng (Mississippi College). 

That's what I pulled from the program--let me know if I missed anything.  Laissez les bon temps rouler!

Matt Festa

Hills & Schleicher on the Steep Costs of Noncumulative Zoning

Roderick M. Hills, Jr. (NYU) and David Schleicher (George Mason) have posted The Steep Costs of Using Noncumulative Zoning to Preserve Land for Urban Manufacturing, forthcoming in the University of Chicago Law Review, Vol. 77, No. 1, 2010.  The abstract:

In cities around the country, huge swaths of property in desirable locations house only empty warehouses, barely-used shipping facilities, and heavily subsidized industrial-age factories, often right across the street from high-end condos and office buildings. The reason is a widely-used, but poorly understood form of local industrial policy known as non-cumulative zoning. In contrast with traditional Euclidean zoning, in which manufacturing uses were prohibited in residential areas but not vice versa, areas that are zoned non-cumulatively allow only manufacturing uses and bar any residential (and sometimes even commercial uses) of property. The arguments for non-cumulative zoning are always the same: Cities seek to (a) reduce the degree to which urban manufacturers are held responsible for nuisance and (b) subsidize urban manufacturing by reducing the competition for land and hence reducing the price.

In this essay, we argue that non-cumulative zoning is an idea whose time has passed, if there ever was a convincing case for it at all. The two major justifications for non-cumulative zoning are flawed, and alternative means could achieve the same ends with fewer costs. The large number of nuisance claims engendered by urban manufacturing could be addressed by creating a “right to stink” in certain zones, allowing residential and commercial users to move into these zones but prohibiting them from suing manufacturers who are not violating regulatory laws. As for the second manufacturer-subsidizing justification, subsidies cannot be justified in terms of a subsidizing city’s own welfare unless the external “agglomeration” benefits of manufacturing exceed the cost of the subsidy to the city. Moreover, the broader social perspective also requires that some cities are better able to capture those agglomeration benefits than others, meaning that competition between jurisdictions could result in total increases in wealth. However, non-cumulative zoning is unlikely to achieve either local or broader social efficiency. Its scope is not closely tied to any theory of external benefit; it encourages the inefficient use of land and the substitution of land for other inputs; and it hides the true cost of urban manufacturing subsidies from the public. If urban manufacturing must be subsidized, a direct cash subsidy system would be preferable, particularly if it could be funded directly from taxes on the increased value of land caused by the removal of a non-cumulative zoning designation. 

Looks very interesting.  I agree that non-cumulative industrial zoning is counterproductive, not only from the efficiency standpoint but also because it is the mirror image of residential-only zoning, which creates sprawl and prevents mixed use.  

Matt Festa
 

Salkin & Ostrow on Cooperative Federalism and Wind

Patricia E. Salkin (Albany) and Ashira Pelman Ostrow (Hofstra) have posted Cooperative Federalism and Wind: A New Framework for Achieving Sustainability, forthcoming in the Hofstra Law Review, Vol. 37 (2009). The abstract: 

This Article proposes a federal wind siting policy modeled on the cooperative federalism framework of the TCA’s Siting Policy. Part I describes some advantages of wind energy, focusing specifically on the environmental, economic, and social benefits. This Part also discusses several technical obstacles to wind energy development, including the need to supplement wind energy with conventional energy sources and the lack of adequate transmission infrastructure. Part II assesses the current regulatory regime for the siting of wind turbines, reviewing general practices across the United States at both the state and local levels. Although a number of states have been active in providing wind siting guidance to local governments or preempting local control for large-scale wind energy facilities, a majority leave primary siting responsibility in the hands of local zoning boards. Part II then evaluates some of the most commonly raised local objections to wind siting, including concerns over aesthetics, wildlife, noise, safety, and property values. Part III presents an overview of the federal policies that impact the development of wind energy. Although numerous federal grants and tax incentives promote wind energy development, federal policies in this arena are largely uncoordinated and inefficient. Moreover, projects supported by federal dollars and regulatory policies may be unreasonably delayed or entirely prohibited by the local permitting process. Part IV proposes a federal regulatory regime for the siting of wind turbines, modeled on the TCA’s Siting Policy. Specifically, this Part argues that a national wind siting regime that leaves primary siting authority in the hands of local zoning officials but places procedural and substantive constraints on the decision-making process would provide the regulatory uniformity necessary for this capital-intensive industry to fully develop, without sacrificing the benefits of local tailoring or experimentation. The Article, thus, concludes that such a national wind siting policy strikes an appropriate balance between local concerns regarding wind turbine siting and the national interest in developing wind as a renewable domestic energy source.  

Matt Festa

Craig on Adapting Water Law to Public Necessity

Robin Kundis Craig (Florida State) has posted Adapting Water Law to Public Necessity: Reframing Climate Change Adaptation as Emergency Response and Preparedness, forthcoming in the Vermont Journal of Environmental Law.  The abstract:  

As a result of both climate change and non-climate-change forces, fresh water supplies in many parts of the United States are approaching a state of crisis. This Article suggests that both the law and public policy should embrace that reality.
Specifically, this Article argues that viewing climate change impacts on water supply as an ongoing emergency could provide a more productive framework for initiating and implementing adaptation strategies. Classifying climate change’s impacts on water supply as a real crisis allows adaptation planning to become a form of emergency preparedness — concrete measures designed to deal with existing problems, recognizing that they are only likely to become worse in many parts of the country. Moreover, reframing climate change adaptation in the water context as emergency preparedness could productively shift the focus of adaptation strategies to the survival of communities as functional communities — that is, as something more than the mere physical survival of individual humans — and allow recognition that communities are coupled socio-ecological systems, dependent on the surrounding natural resources — like water — and the ecosystem services that they provide.
Reframing climate change impacts on water as an emergency, moreover, could provide needed flexibility both legally and politically. Legally, emergencies allow for the doctrine of public necessity, a common-law doctrine that may prove very useful in reallocating water rights, especially in times of significant drought. Finally, this Article argues that public necessity invokes a broader public policy regarding the relationship of individual rights and community well-being that should produce a politically powerful synergy in the context of adapting water law to climate change, given that water is already considered a semi-public natural resource.

Matt Festa

Ireland on the "Minnesota Model" for Regulation of Mortgage Brokers

Mark Ireland (Foreclosure Relief Project and Hamline) has posted After the Storm: Asymmetrical Information, Game Theory, and an Examination of the 'Minnesota Model' for National Regulation of Mortgage Brokers and Tomorrow's Predatory Lenders, published in William Mitchell Law Review, Vol. 36, No. 1, 2009.  The abstract:  

There is a general consensus that the root cause of the most recent turmoil in the domestic and global markets is due to a failure in our regulatory system. Yet, Congress has not supported comprehensive regulation related to the day-to-day activities of mortgage brokers and their relationship with consumers. This article identifies the three regulatory and legislative failures related to mortgage lending, and then examines these failures through the economic concepts of asymmetrical information and game theory. Specifically, how the regulatory failures resulted in mortgage brokers and lenders that were not acting in the best interest of homeowners or the future purchasers of securitized loans. Finally, this Article recommends adopting the “Minnesota Model” as a national framework for regulating mortgage lending. The Minnesota Model was an anti-predatory lending law passed in Minnesota in 2007.

Matt Festa

Claeys on Parchomovsky & Stein and the Right to Exclude

Eric Claeys (George Mason) has posted The Right to Exclude in the Shadow of the Cathedral: A Response to Parchomovsky and Stein, forthcoming in the Northwestern University Law Review.  The abstract:

This response comments on “Reconceptualizing Trespass,” by Gideon Parchomovsky and Alex Stein. Using economic analysis associated with Calabresi and Melamed’s property/liability rule scheme, Parchomovsky and Stein propose a new measure of damages, called “propertized compensation.” Propertized compensation makes ex post damage awards in trespass cases approximate the property-rule incentives the law imposes on trespassers ex ante when their trespasses are ongoing and may be remedied by injunction.

This comment is strongly sympathetic to Parchomovsky and Stein’s prescriptions for propertized compensation, but skeptical about the law and economic methodology by which Parchomovsky and Stein arrive at those prescriptions. The comment recounts, at a level aimed toward readers without specialized interest or training in legal philosophy, three areas of relevant scholarship by corrective justice theorists and conceptual property philosophers. These philosophical authorities explain propertized compensation at least as well as economic analysis, using conceptual and practical moral reasoning already internal to the law. Several of these authorities also suggest that the problems “Reconceptualizing Trespass” criticizes in previous economic scholarship are symptoms of a more fundamental incoherence in the concepts of a “liability rule” over a “right to exclude.”

“Reconceptualizing Trespass” deserves credit for explaining the conceptual problems inherent in the property/liability rule scheme to law and economists in terms law and economists can follow. But this contribution would not have been necessary if law and economists took conceptual philosophy more seriously.

Matt Festa

Selmi on Land Use Regulation by Contract

Daniel P. Selmi (Loyola--Los Angeles) has posted Land Use Regulation by Contract.  Here's the abstract:

In recent years the use of contracts, known as development agreements, to establish land use regulations has grown rapidly. Both municipalities and development interests have found it in their interests to support the increased use of these agreements. This article, however, suggests that the use of contract as a means of making land use decisions marks a key turning point in the evolution of land use regulation. The article examines the effects of such contracts on four sets of norms that underlie the current land use system. The article concludes that contracts have important effects on whether local governments comply with these norms in making land use decisions.  

Matt Festa

French Lessons

The beautiful cathedral city of Strasbourg, France, has some lessons to teach the US about inner-city transit.  It's interesting to note that the debate in Strasbourg wasn't over whether to build more public transit (or eliminate it), but whether to build it above-ground or underground.  Ben Adler writes:

"This being France, where the entire political spectrum is to America’s left, the conservatives running for city council in 1989 actually favored building a subway. But the socialists, led by Catherine Trautmann and Roland Ries, wanted to build a new tram. Conservatives and local business owners objected, arguing that a tram would take precious lanes away from cars. But that was exactly the point: to transform streets from hectic, unpleasant gasoline alleys into vibrant, multi-use communal spaces. “The tram means that you change the city,” explains Jonathan Naas, transportation policy coordinator for Roland Ries, who is now mayor. By creating a buffer from the cars, he says, “You create places to walk, outdoor cafes to sit outside.”

Click here for a link to Ben Adler, "The French Revolution:  How Strasbourg Gave Up the Car (And Why Midsized American Cities Can Too)," Next American City (Winter 2009).

Will Cook, Charleston School of Law

Detroit's Empty Buildings...

As someone who grew up in the Detroit area and lived there through high school, I can attest to the fact that it's downtown has some amazing and beautiful architecture.  Indeed, many great architects did some of their best work in downtown Detroit--especially during the first half of the 20th century.

Unfortunately, many of those buildings are now abandoned.  This YouTube video surveys some of them.

Now, to be sure, ever since I remember (dating back to the late 70s/early 80s) Detroit has always had a large number of beautiful but empty buildings.  However, the extent of the city's abandonment these days seems even more stark than ever before.

From a land use perspective, it's almost impossible to conceive of how to revitalize Detroit's urban core and these buildings.  While the downtown street grid is very well-designed and interconnected, there simply appears to be little to no demand for commercial or residential space in the area. 

Indeed, this continues to be one of America's greatest urban land use tragedies.  That so much beautiful architecture and well-designed urbanism is likely to deteriorate to total waste is immensely saddening.

--Chad Emerson, Faulkner U.

Top 100 Urban Thinkers

With the end of the year and the end of the decade (depending on whether you start counting at 0 or 1) at hand, I'm seeing lots of "top" lists, articles, and retrospectives in the last few days.  So for the land use crowd, I'll link to Planetizen's list of Top 100 Urban Thinkers.  Posted back in September, just before my coeditors and I relaunched this blog, the methodology appears to be a reader poll, but it's a pretty interesting list.  Here's the Top 10:

1.  Jane Jacobs

2.  Andres Duany

3.  Christopher Alexander

4.  Frederick Law Olmstead

5.  Kevin A. Lynch

6.  Daniel Burnham

7.  Lewis Mumford

8.  Leon Krier

9.  William H. Whyte

10.  Jan Gehl

Others on the list of interest to me include James Howard Kunstler (12), Ebenezer Howard (18), Pierre Charles L'Enfant (21), Baron Haussmann (22), Robert Moses (23), Elizabeth Plater-Zyberk (24), Le Corbusier (26), Richard Florida (29), Bruce Katz (31), Thomas Jefferson (48), Carol Coletta (49), Edward Glaeser (51), Christopher Leinberger (53), Frank Lloyd Wright (54), Walter Benjamin (58), Walt Disney (59), Wendell Berry (63), Prince Charles(?!) (71), Jacob Riis (72), Richard M. Daley (77), Anthony Downs (88), and Henry Ford (100). 

Food for thought, anyway, during this season of "top" lists and looking back. 

Matt Festa

The Legality of Bright Lights...

If you've been to Las Vegas, it doesn't take long to notice the city's love affair with brightly lit signs and billboards.  These high-tech, high-pixel creatures come in all shapes and sizes. 

Yet, rather than reside in Vegas (with a second habitat in Times Square), these creatures have begun to migrate to all parts of the country.  Sometimes it happens overnight in a Baltimore Colts-style operation.  Other times, the change is more obvious. 

In either case, many conventional billboards are being transformed into brightly-lit, pulsating versions of their more static ancestors.

Alot of questions arise when these changes occur.  Several involve complex legal issues.  Take, for instance, this dispute in Los Angeles:

The 92 digital signs began popping up several years ago after Los Angeles struck a deal with two billboard companies, Clear Channel Outdoor and CBS Outdoor, which had sued the city over its earlier sign regulations. The 2006 agreement, negotiated by former City Atty. Rocky Delgadillo, allowed Clear Channel Outdoor and CBS Outdoor to modernize up to 840 billboards in exchange for removing 98 -- 3% of their inventory. The City Council approved the deal, but a number of council members have said they did not grasp the effect it would have on some of their constituents.

Last year billboard competitor Summit Media sued the city, alleging that the 2006 settlement in effect exempted the two companies from city zoning laws that other firms were required to follow.

In November, Superior Court Judge Terry A. Green ruled in favor of Summit and invalidated the agreement. But Green said it was up to the city to determine whether to revoke the permits for the Clear Channel and CBS digital billboards. Councilmen Paul Koretz and Bill Rosendahl immediately called for converting all of the brightly lit signs back to traditional billboards, while council President Eric Garcetti and Councilman Ed Reyes proposed studying whether the signs should be modified or demolished. But CBS and Clear Channel appealed the ruling -- putting a stay on Green's order. Meanwhile, council members have asked city officials to evaluate their legal options.

You can read the entire L.A. Times article here.

Much of this dispute relates to the alleged "eyesore" or aesthetic problems with electronic billboards.  While that certainly is a valid ground for regulatory consideration, one might find an even stronger case related to the safety effect of brightly-lit digital billboards--especially those that rotate multiple ads.

I know personally that I've been driving along and found myself distracted by these type billboards.  So much so that I've heard of others involved in fender benders for this very reason.

Maybe the life/safety angle is a better challenge than the aesthetic one.

--Chad Emerson, Faulkner U.

Neighbors Oppose Land Trust House

Happy Boxing Day!  I hope everyone is enjoying their holidays and spending as little time as possible on the computer.  However, here at our house everyone (except the breakfast cook) is sitting around the dining room table surfing the internet or playing games on their laptops. This is a good time to catch up on the news, and today I find two articles about one of the Land Use Clinic's clients, the Athens Land Trust. Unfortunately the news is a controversy about a house the Land Trust is building in a local subdivision called Forest Heights.  The editor of Athens weekly Flagpole covers the dimensions of the problem as well as I could, and there is also a good piece in the Athens Banner Herald.  It's a not uncommon fight about affordable housing in a middle class neighborhoods, with an anti-modern architecture twist. The staff and board of the Athens Land Trust (which, in full disclosure, includes my husband) is a wonderful, talented, goodhearted group and they're taking a lot of heat for trying to do the right thing.  I hope for a good outcome.

Jamie Baker Roskie

China: Restaurant Hires Live-In Demolition Protestor

In a bit of international land use news comes this story from the Associated Press: Doomed China Restaurant Hires Live-In Protestor.

BEIJING -- Wanted: One live-in protester, $146 a month, no days off.

When the managers of a Beijing restaurant marked for demolition were too busy to fight it, they posted an Internet ad and hired a stranger to stay there around the clock. The job seems to be a first for China, where frenzied urban construction has led to violent evictions, protests and even suicide.

Apparently the issue of forced demolition to make way for redevelopment is gaining traction in China due to recent trends:

China has struggled for years with the issue of forced evictions. But some say the violent protests against forced evictions have increased this year, as a massive government stimulus plan has made loans for construction easier. Under law, land seizures are meant to be for public interest projects, but angry citizens have protested evictions meant to make way for shopping malls and luxury apartments.

It's not clear how many Chinese have been affected by forced evictions. But the Beijing restaurant is not far from the area where rights groups say perhaps 1 million people were kicked out of properties to make way for last year's Olympic venues. Next door, a separate demolition project has left a patch of rubble the size of a football field.

Of course, we have heated controversies here in the US when people are forced to give up their land for redevelopment projects.  But this isn't like a Kelo situation or an Atlantic Yards, where government involvement lends the legitimating public-use rationale to projects that will be led by private developers; in China these controversies seem to be purely private-to-private transfers.  It would be interesting to see the text of the China's takings law referred to in the article.  In the case of the Fish Castle Restaurant Bar in the story, the restaurant owners are being forced out of a lease apparently without compensation because the landlord wants to make way for a shopping center with apartments (mixed-use urbanism?).  The story involves the live-in protestor-for-hire and thuggish tactics by the would-be developer.

Eminent domain and compensation laws may differ around the globe, but the conflict between putting property to its highest use and the individual's desire to protect his or her property appears to be more universal.

Matt Festa

It's a Wonderful Life & The Mortgage Crisis

I had my annual viewing of It's a Wonderful Life, Frank Capra's 1946 classic, the other day, and it reminded me that a few commentators over the last year have drawn comparisons between the world of Bedford Falls and the Bailey Building & Loan, and the conditions that caused the current mortgage crisis. 

The comparisons seem to go in two directions.  Some have argued that when America ditched the Bailey Building & Loan model of small local banks as the locus for local real estate development and financing in favor of the nationalized lending institutions and international trading of pooled mortgage-backed securities, it set us on the road to ruin.  But others have argued that it was the very assumption advanced by George Bailey that individual homeownership was the sine qua non of civic life and human flourishing that led to suburban sprawl, the decline of cities, and the irrational financial overleveraging that led to the subprime bubble.

Below are some links to articles comparing It's a Wonderful Life to the mortgage crisis, and I'll leave it to you to decide which critique is more persuasive, or whether there are elements of both that are true.

Just yesterday, Ray Brescia (Albany Law) sided with the Bailey Business & Loan and the CRA in "Banker's Holiday: Strengthen 'George Bailey's Law'" on the Huffington Post. 

Andrew M. Rosenfeld (Chicago Law) compared the localized backing of whole mortgages with the national market process for securitzed mortgages last year Newsweek's "It's a Wonderful Mortgage Crisis."

Ross Douthat in the Washington Post suggested laying much of the blame on George Bailey for the expansion of easy credit and government overpromotion of suburbia in "Not So Wonderful Now: Looking for someone to blame in the worsening crisis? Let's go back to Bedford Falls".  Douthat ultimately comes back to a limited defense of Bailey's vision, though.

I know that others have remarked on this theme so leave a comment if you know of a good one that I missed. 

Watching the movie again left me with one more related thought: which is better, Beford Falls or Potterville?

Capra's audiences have long assumed that the quaint Bedford Falls was the ideal American community and that the wild Pottersville was dystopia.  But a few years ago in Salon Gary Kamiya challenged this assumption head on in "All Hail Pottersville" with the simple observation that "Pottersville rocks!"  I think there's something to be said for this.  Bedford Falls does look a little boring.  Putting aside the implication that instead of middle class homeowners Pottersville's denizens were all living in Mr. Potter's tenement slums, there is no reason that a community can't have a vibrant downtown accessible by neighborhoods.  I know that Pottersville was painted to look like Sin City, but it also provided a busy and walkable area (with plenty of cops on hand to harass disoriented middle-aged bankers and guardian angels), and who's to say the more wholesome entertainment venues aren't thriving just a block or two away off of externalities generated by the seemingly popular Pottersville downtown entertainment district?

Maybe James Lileks put it best: "We all want to live in Bedford Falls . . . but we all would like a night in Pottersville."  But wouldn't a good new urbanist say that they can both exist in the same community?

Merry Christmas!

Matt Festa

"Surreal Estate/Tiger's Other Mansion"

In our on-going effort to find a land use angle on the Tiger Woods scandal, I give you a recent article from The New York Times T Magazine.  The writer describes a mansion Tiger and his wife (at least for now) are building in Jupiter, Florida.

The new 9,700-square-foot house is split between the living quarters and a gym, which are connected by a glass-covered walkway. The ultra-modern design is already annoying residents of this conservative community, even though it remains unclear when Woods will move in.

Although the house may be unpopular - and apparently Tiger tore down a "classic Bahamas-style mansion" (whatever that is) to build it - Tiger's bigger problem may be the lack of amenities available on the Island if he can't get into the Jupiter Island Club.  Apparently there's not much to do on Jupiter Island if you don't belong to the club - no restaurants or stores - and it's hard to have a social life outside the "WASPY" enclave.

Now I find it hard to believe that any country club would fail to admit the world's best golfer, no matter how non-WASPY he is, or how scandalous his current reputation.  I think athletic achievement surmounts race, class and moral differences in our culture.  However, the fact that these enclaves still exist raises interesting issues in our supposedly post-racial, egalitarian society.

On a side note on identity issues, for a great take on WASPs and their role in our society, I highly recommend Cheerful Money by Tad Friend.  I read it at the same time as President Obama's first book, Dreams from My Father.  Reading these two books together gives lots of food for thought on how racial identity informs our lives - and often, our settlement patterns.  One of Friend's themes is what to do with the shambling family mansion in the exclusive neighborhood that few of the original WASP families can afford to maintain. Obama writes about his days of community organizing in one of the poorest, most polluted sections of Chicago. A stark contrast, to be sure, but each interesting and informative in its own way.

Jamie Baker Roskie

Article Series on Newtown

As I've previously posted, a Land Use Clinic client, Newtown Florist Club and the Newtown neighborhood, has been the subject of a three article series in the Gainesville Times.  The final article contains reaction from public officials to our proposals to amend the city's noise and air pollution ordinances.  We're trying to get the city to enforce some industrial performance standards to control the serious noise and dust caused by the neighboring scrapyard and other industry.  As you can from the article, it's a long and difficult struggle.  I encourage you to view the slide show, which shows the level of aesthetic nuisance the neighborhood endures.

Jamie Baker Roskie

Golf Carts for the Masses?

Visit our little new urban neighborhood when the weather is warm and you're likely to see a small flotilla of golf carts cruising through the neighborhood's narrow streets.  In fact, the trend became so popular that the development--with its private roads--had to establish regulations for who (primarily how old you had to be) and where you could drive the golf carts (NOT on the sidewalks).

Now, I'll admit that my wife and I abstained from this trend.  Partly because we live just a block or so from the pool and market and YMCA.  But, also because some might reasonably suggest that the point of living in a walkable and bikable neighborhood is to, well, walk and bike. 

That's not to say that I've never enjoyed a nice golf cart ride through the interconnected grid of The Waters.  And, while my little objections don't nearly reach the level of this neighborhood golf cart battle, we've continued to resist the urge to electrify our TND experience.

But, there are now some serious questions regarding whether even a faux Luddite like me can resist this tantalizing carrot:  free golf carts for those who make income. 

Don't believe me?  Check out the full story here.

As you can imagine, both municipalities and homeowners associations might be faced with an even more pressing need to draft on-street golf cart regulations than ever before...

--Chad Emerson, Faulkner U.

Stores of our Memories and Sense of Place

On a recent trip through Richmond, Virginia, I was reminded of the profound sense of disappointment my parents experienced when legendary Richmond department stores--Miller & Rhoads and Thalhimers--decided to close their doors after years in business.  During their early married days in that city, prior to malls and chain merchandising and even long after they ceased to live there, these two stores served as more than favored shopping venues:  they served as places in which to dine, have a rendez-vous with friends "Under the Clock," or share afternoon tea with visiting grandmothers from South Carolina who couldn't wait to visit the milliners there for their annual Easter hats.  The stores served as impressive visual landmarks, too, and community focal points where people still dressed up to shop; their closures marked the beginning of a downward turn in Richmond's once vibrant downtown.  Although this part of Richmond has started to come back to life, the vibrancy they once injected into that city's land use won't be recaptured soon.  Dwight Young of the National Trust's Preservation Magazine wrote recently on this topic, so for all of you who miss a favorite corner grocery, hardware store, soda counter, local Woolworth's, or bakery, read more by clicking here.

Will Cook, Charleston School of Law

Serkin on Existing Uses and Land Use Regulations

Christopher Serkin (Brooklyn) has published his article Existing Uses and the Limits of Land Use Regulations in the recent issue of the New York University Law Review (Vol. 84, p. 1222).  The abstract:

This Article identifies the various ways in which property law provides special protection for existing uses, explores the possible justifications for this protection, and argues that none of them support the strong protection that existing uses currently enjoy. Various land use doctrines, from zoning, to the vested rights doctrine, to amortization rules for prior non-conforming uses, all assume that the government cannot eliminate existing uses without paying compensation. The Article asks whether this result is compelled either by constitutional rules or by normative considerations. Neither the Takings Clause nor the Due Process Clause requires this level of protection for existing uses. Moreover, many of the obvious-seeming normative justifications dissolve on closer inspection. Concerns about reliance on government regulations and underlying principles of fairness are not conceptually different for regulations prohibiting future uses and regulations of existing uses. Nor is the extent of economic loss necessarily greater for one than the other, even though regulations of existing uses involve out-of-pocket costs, whereas regulations of future uses implicate forgone profits. In fact, none of the possible explanations for the special treatment of existing uses actually justifies their protection. This Article ultimately concludes that existing uses should not be entitled to any special judicial protection but instead should be subject to the same takings and due process analysis that applies to all regulations and government actions.

Matt Festa

Slugging

Are HOV lanes a good idea?  They are controversial, to be sure.  Some think that they are essential to disincentivizing traffic and rewarding carpooling.  Others think that they are inefficient or infringe too much on liberty.  But for those commuters who live in areas with HOV lanes, the practical question is how to adapt.  KHOU.com reports on the emergence of one response to HOV lanes: Slugging.

HOUSTON – Would you jump into the car of a stranger? Hundreds of Houstonians do it every morning on the way to work to save time and money.

The phenomenon called "slugging" developed in the northeast and has caught on in Houston over the last few years.

The "sluggers" park at a Metro Park and Ride lot and form a line to get into cars with drivers who are looking for a passenger so they can legally take the HOV.

Slugging seems to have originated, or has been most successful in, the DC area.  I think it would be creepy to rely on a commute in a stranger's car (plus, the story doesn't say how they get home).  But on the other hand, I kind of like the free market ordering response to regulatory restrictions--when the government creates an HOV lane, the commuters establish a new informal but effective institution, the slugging line. 

Matt Festa