Friday, December 18, 2009
A news release from John Nolon's publisher:
The call for sweeping changes to land use and planning legislation comes from John R. Nolon, Professor of Law at Pace University, writing in the Planning & Environmental Law journal.
He writes: “Combating climate change requires that the full legal power, technical capacity, financial resources and historical strengths of all levels of government be integrated into a single system of management, mitigation and sustainable development.”
He argues that government can only demand low-mileage lifestyles and energy-efficient buildings by creating new legislation that is enforceable through the courts and a strict system of penalties.
Commenting on his article ‘Climate Change and Sustainable Development: The Quest for Green Communities’, Professor Nolon said: “Buildings and privately owned vehicles generate almost half of all CO2 emissions in developed countries, so our whole infrastructure needs to be more energy-efficient. The environmental planning framework we currently have in the United States and elsewhere will not cut CO2 emissions quickly enough. We need to encourage local leaders and citizens to accept more compact, mixed use neighborhoods, public transport, wind turbines, solar panels, district energy systems and all else it takes to make communities green.”
Professor Nolon’s articles, published in Volume 61, issues 10 and 11 of Planning & Environmental Law, are available to download for free from the ‘Online Contents’ link on the journal homepage: www.tandf.co.uk/journals/rpel. You can also link to them directly at: www.informaworld.com/smpp/content~db=all~content=a914725146 and www.informaworld.com/smpp/content~db=all~content=a915797957.
Thanks to Patricia Salkin for the heads' up about this.
Jamie Baker Roskie
Thursday, December 17, 2009
A news release from EPA:
"EPA is pleased to recognize this partnership for its exemplary work with the city of North Charleston and the South Carolina Ports Authority to foster environmental protection and economic revitalization in distressed neighborhoods," said EPA Acting Deputy Regional Administrator Beverly Banister. “Model efforts like this show how a collaborative, problem-solving approach can result in healthier and more livable communities.”
The awards recognize partnerships for their distinguished accomplishments in addressing environmental justice issues, emphasizing collaborative work in communities disproportionately exposed to environmental and human health risks. Winning applications were reviewed and selected based on the six criteria, including innovation, public involvement and demonstrated results, by an independent, non-EPA review panel.
The partnership between the Mitigation Agreement Commission and the Lowcountry Alliance for Model Communities created a $4.08 million community plan for the city of North Charleston that will fund community, neighborhood and economic development projects in seven of the city’s most economically distressed neighborhoods. The partnership encourages open and meaningful dialogue between the neighborhoods it represents and elected officials, public agencies, planners and private developers to determine how best to minimize environmental and community impacts associated with the construction and operation of a new port. As a result of the partnership’s work, the Charleston port expansion project is the first to include both community and environmental programming as part of the formal mitigation plan. The partnership represents 14 organizations, including:
* Berkeley - Charleston – Dorchester Council of Governments
* Charleston Metro Chamber of Commerce
* City of North Charleston
* Clemson University Restoration Institute
* Department of Planning and Landscape Architecture, Clemson University
* Institute for Families in Society, University of South Carolina
* Interdenominational Ministerial Alliance
* Lowcountry Alliance for Model Communities
* North Charleston City Council, District 10
* North Charleston Housing Authority
* South Carolina Department of Health and Environmental Control
* South Carolina Department of Transportation
* South Carolina Employment Commission
* South Carolina State Ports Authority
The following partnerships also received awards:
* Coalition to Prevent Lead Poisoning for outstanding leadership in community-based efforts to prevent childhood lead poisoning in the City of Rochester, New York.
* Fish Contamination Education Collaborative for outstanding efforts to reduce the consumption of contaminated fish by the local Vietnamese, Chinese, and angler populations near the Palos Verdes Shelf Superfund site, Los Angeles, California.
* ReGenesis Project for outstanding leadership and efforts to address environmental protection and community revitalization issues in the Arkwright community of Spartanburg, South Carolina.
* The Clean Trucks Program for outstanding efforts to significantly reduce air pollution from big truck rigs around Long Beach and Los Angeles, California port facilities.
Information on the EJ Achievement Award Program, including more details about this year's recipients: http://www.epa.gov/compliance/environmentaljustice/awards
Jamie Baker Roskie
Kristen Adams (Stetson) has posted Homeownership: American Dream or Illusion of Empowerment?, published recently in the South Carolina Law Review, Vol. 60, p. 573. The abstract:
In this Article, I endeavor to show that because Americans value homeownership so much — in fact, more than we should — we have placed ourselves in an untenable position as a country and now find ourselves in the midst of a well-documented housing crisis. In addition, we have used the primacy of homeownership as an excuse not to fulfill our country’s commitment to provide housing assistance to those persons who need it most. We have done this in part by undervaluing quality, affordable rental property (and quality renters) just as we have overvalued homeownership (and homeowners). Some have used the word “myth” in talking about the American view of homeownership; however, the word I prefer is “illusion,” which I intend to be less pejorative while still acknowledging that homeownership does not always deliver the benefits it promises, particularly for lower income homeowners. This Article is not particularly concerned with the question of who is to blame for the current housing crisis, because I believe fault in this context is too complicated to be laid at the feet of just one party or another. Part II of this Article examines the median American household, mortgage, and house, concluding that many Americans cannot afford the homes they have purchased. Next, Part III addresses the question of why our country overvalues homeownership to such an extent that it now finds itself in this position. In doing so, Part III examines the many benefits that homeownership supposedly provides to both individuals and society. Part IV contrasts society’s customary treatment of homeownership as a virtue with its stigmatization of renters, concluding that the latter is unfounded. Part IV also explores how the very interests that have promoted homeownership have also benefited most from its growth. Part V considers several factors that contributed to the real estate boom that culminated in the mid-2000s, including homeowners’ treatment of mortgage debt as wealth, financing options such as no-down-payment and interest-only loans, increased utilization of home equity loans, and certain features of subprime lending. Part VI concludes by suggesting that universal homeownership does not provide the benefits Americans have come to expect from it and proposing four steps policymakers should follow in creating healthier, more sustainable housing policy.
I was doing some research on a local smart growth community that has found its plans somewhat delayed because of the Army Corps of Engineers amazingly long (and some might argue bureaucratically-wasteful) environmental impact reporting process.
While doing so, I came across a couple of recent news articles on the EIR topic. First, this one where smart growth proponents are challenging an EIR:
The project is also facing some opposition. South County Citizens for Smart Growth has filed a lawsuit contesting the EIR, which the group says is inadequate. Spokeswoman Margaret Joehnck, who lives near Lake of the Pines, said the group was reactivated about two-and-a-half years ago specifically to challenge Higgins Marketplace. Joehnck said she wasn’t very surprised the development received county approval.
“There’s a real bias toward trying to have development, whether it is wanted or not,” she said. “I think that’s what we’re seeing.” Ideally, Joehnck would have liked to see the project turned down. “We’d prefer not to have it all,” she said. “Whether this can stop it is the question. The lawsuit is about the inadequacy of the EIR, so they could at some point come back and make changes.”
Meanwhile, this article discusses a smart growth community that had to revise its own EIR to proceed forward:
The development's second phase - The Village - is planned for 111 acres within the master-planned community near Marina del Rey, adding 2,600 more homes and new shops, offices and community uses. Construction on the project was halted in 2007 when an appellate court ruled that The Village's environmental impact report was flawed.
The decision forced Playa Vista to revise its EIR and seek various land-use amendments. At least one of the plaintiffs in the case said he still opposes the project as planned and is pursuing another lawsuit.
Both lead to an interesting question: is an EIR a smart growth-friendly or not friendly regulatory tool?
While EIRs, at least in concept, are designed to mitigate negative environmental impacts, I've found them in several cases to actually hinder dense and compact development. Has anyone else dealt with this issue?
--Chad Emerson, Faulkner U.
Wednesday, December 16, 2009
I have a Google alert set for "Roskie." Like many people, I like to know when my name appears on the internet. Also, Roskie is an unusual name, so I like to know about other Roskies around the world.
The other day something really interesting came through as an alert, something that's relevant to the content of this blog. It was the minutes from the City of Juneau Planning and Zoning Commission for July 27, 1970. The hearing was for a conditional use permit for a 30 unit townhouse development. Not unusually, the residents of a nearby single-family subdivision, named Totem Park, were opposed to the development. The argument proceeded in an entirely typical fashion. The residents of the existing subdivision felt the land should be a park, and were trying to get the city to acquire the property. Also, the developer planned to leave only a 30 foot buffer on the property, and the nearby residents felt that was too small. The minutes go along in this vein for awhile, until in paragraph 13 there is testimony by my grandfather, George Roskie. My grandparents owned a home in Totem Park. He testified that the trees on the contested property provided cover from heavy storms, and that if the trees were cut from the center of the property that protection could be lost. He also said that the compaction and filling caused by the construction could be detrimental to the trees. (Anyone who has dealt with local tree ordinances will recognize this issue.) There is then a rather technical exchange between one of the zoning commissioners and my grandfather about how many trees might be cut before damage would occur, and whether a playground would be appropriate on the site. The exchange is a bit puzzling, unless you know that my grandfather was a forest supervisor for the US Forest Service at the time (and thus stationed in Juneau). My grandfather was career Forest Service and he and his family lived all over the west, including Alaska. After he retired in Great Falls, Montana, he became a real estate agent and served for several years in the Montana State Senate, where he specialized in natural resource issues.
My grandfather died during my first year of law school, so these little glimpses of his history are always precious to me. We didn't see eye-to-eye on environmental issues when he was alive, so it's interesting to note similarities in our career interests.
By the way, the vote on the conditional use permit was delayed to the August meeting. I'm not sure why these minutes have appeared on the internet now - perhaps Juneau has begun archiving their records on-line. If I find the time I might follow up on this story to see what ultimately happened to the property.
Jamie Baker Roskie
Tuesday, December 15, 2009
Amy Lavine (Albany) has posted Urban Renewal and the Story of Berman v. Parker. The abstract:
The Supreme Court’s 1954 decision in Berman v. Parker serves as the foundation for much of our modern eminent domain jurisprudence, including the controversial 2005 Supreme Court decision in Kelo v. New London. But the story behind the case starts well before 1954, and it carries implications that are relevant today. It’s a story that played out in many cities across the nation, just as it did in Washington, D.C., where the case took place. It’s the story of urban decay and urban renewal.
This working paper covers the history of redevelopment in Southwest Washington, from the turn of the century to today. It discusses the City Beautiful movement and progressive housing reform in Washington, the rise of public housing and slum clearance policies, the urban renewal planning process as it played out in Southwest D.C., and the demise of urban renewal as a federal policy in the wake of its failures. The conclusion points out while we may approach contemporary economic development projects differently than we approached urban renewal in the 50s and 60s, much can still be learned from the story behind this landmark case.
This looks really interesting, and if you download the paper you will see that it is chock full of maps, diagrams, and photos, which really enhances a land use project like this.
In several recent conversations, I've discussed with other colleagues how the current economic crisis has, among other things, changed the balance of power among developers and municipalities. It used to be that, if City X did not accede to a developer's demands, then a neighboring or nearby jurisdiction likely would.
These days, however, most jurisdictions have very little left in the coffers to provide developer incentives. Meaning that, developers are more likely to be stuck with the jurisdiction which their internal demographic research shows has the most viable demand.
(Note: in the past, developers could sometimes justify locating a project in a somewhat less desirable demographic area if the incentives offered by that jurisdiction leveled the financial cost/risk playing field to a large degree).
The upside in this shift in power is that municipalities, if they are going to make politically tough land use decisions, probably have the best political environment in front of them in a long time. After all, developer threats of moving or not building a project ring somewhat hollow when they aren't proposing one in the first place.
Which leads to this interesting lawsuit in Florida related to the new state law from earlier this year that significantly modifies Florida's regional development requirements:
Senate Bill 360 – known as the Community Renewal Act – went into effect in July. It ends a 37-year-old regional planning process for major projects known as a development of regional impact.
It also removes standing state requirements that developers help pay to upgrade roads, and requires that local governments conduct mobility fee studies that look at mass-transit solutions. It also extends the shelf life of a building permit for two years. The idea behind relaxing development regulations is to encourage more development in urban cores, thus stimulating the economy. But, critics say it could result in a development free-for-all and stick local taxpayers with the bill for road improvements once paid for by developers.
The lawsuit, filed by a host of municipalities, seeks to overturn the new law as unconstitutional along both substantive and procedural lines. The cities are essentially arguing that the state is imposing unfunded land use requirements on them--at a time when revenue is low but they actually have more leverage over developers than before.
If that lawsuit alone weren't interesting enough, the effect it may have on an upcoming 2010 Florida ballot initiative adds to the intrigue:
In an unintended consequence, the flap over the Community Renewal Act could bolster support for a separate ballot push to return authority over local comprehensive plans to the people. The Florida Hometown Democracy constitutional amendment, which will appear on the November 2010 ballot, seeks to require all changes to local comprehensive land use plans be approved through voter referendum.
“People are beginning to realize that our political leadership really doesn’t have the stomach for growth management, and that is the way it has always been in Florida,” said Lesley Blackner, a West Palm Beach lawyer and key organizer of Hometown Democracy. She said local governments too frequently amend comprehensive plans to accommodate specific developments, which defeats prudent long-term planning.
The growth watchdog group 1000 Friends of Florida had originally come out against Hometown Democracy, but its board may reconsider, due in part to dismay over the Community Renewal Act, President Charles Pattison said. He said the Community Renewal Act’s intent to push development to urban cores by making it easier and less costly to build there was good, but the Legislature went too far, removing oversight for projects in rural areas near urban area such as on farmland in western Palm Beach County.
--Chad Emerson, Faulkner U.
Monday, December 14, 2009
The ACE Basin of the South Carolina Lowcountry--a land area surrounded by the Ashepoo, Combahee, and Edisto Rivers--is one of the largest and best examples of the power of conservation easements. Established in an area that once boasted wealthy rice plantations that turned into some of the nation's most favored sites for the winter sporting life, the ACE Basin as a land use initiative celebrated its twentieth birthday today. Read more about this topic in an article by Bo Peterson, "ACE Basin at 20: A Public-Private Patchwork of Preserved Lands is Facing New Era of Threats," Post & Courier (Dec. 14, 2009).
Although most conservation easements in this part of the world have not faced litigation threats, this risk may increase as future owners find themselves subject to the easements and seek to challenge "dead hand" control. Although the original grantors of the easements felt tied to the land and wanted to protect it (a great expression of personhood theory for 1L property profs), the non-profits that hold the easements today have limited funds. Their ability to defend against challenges by future generations who may or may not share this attachment will depend on their resources, management decisions, and the willingness of courts to favor original intent and support conservation as a type of productive land use.
Photo notes: The Grove Plantation House, circa 1828, is one of only three antebellum houses in the ACE Basin to survive the Civil War. Former owners placed it on the National Register of Historic Places to help ensure its survival for future generations. It now houses the Ernest F. Hollings ACE Basin National Wildlife Refuge. Click here for more information about the house and here for a link to the Refuge's official brochure.
Will Cook, Charleston School of Law
President Lee Myung-bak of South Korea has launched an ambitious project to "remake" the country's four longest rivers, after achieving success in uncovering a paved-over and nearly forgotten river during his tenure as mayor of Seoul. After cleaning it up, the river that Mr. Lee uncovered from a blanket of asphalt runs through central Seoul and counts itself amongst the city's prized landmarks.
Because of land use issues, President Lee's latest proposal is not without controversy. On one hand, project supporters (including many residents who live on or near the rivers) argue that the river re-do will improve water quality and supply, help prevent flooding, increase opportunities for recreation (biking and wetlands parks), provide housing, and serve as a model for "green" development. On the other hand, project opponents (including 400 environmental and other civic groups) have sued to stop it, arguing that the project, if realized, will result in environmental disaster. Notwithstanding this opposition, prospects for Lee's self-styled "Green New Deal" appear strong.
To read the full story, click here for a link to today's article by Choe Sang-Hun, "Doubts Raised on Ambitious Korean Rivers Project," New York Times (Dec. 14, 2009).
Will Cook, Charleston School of Law
Patricia Salkin (Albany) has posted New York Local Governments Respond to Climate Change and Energy Efficiency. The abstract:
While climate change is not exclusively a land use issue, some of the most effective strategies to slow climate change can be accomplished through modifications to building codes, zoning ordinances and other land use regulations. However, to be truly effective and to attain quantifiable results, local governments must implement a variety of tools and techniques and send a consistent message to residents. This paper collects and explores various approaches recently adopted by local governments throughout the State of New York, allowing municipal attorneys and policymakers to consider options for adoption of locally based initiatives designed to reduce our carbon footprint.
Saturday, December 12, 2009
Miami 21, the ambitious and controversial city zoning rewrite passed in October after years of vetting, revision and intense public debate, may get delayed yet again -- this time at the request of new Mayor Tomás Regalado, who was the lone vote against the measure.
Supporters of the new, urban-oriented rule book fear Regalado is attempting to pull the plug on Miami 21 before it takes effect. Regalado says all he intends to do is ask the city's three sitting commissioners for a 90-day delay in the implementation of Miami 21, which is now scheduled to go into effect in February. The delay, until May, will be debated at the commission Dec. 17.
The article goes on to discuss the Mayor-elect's alleged reason for requesting the delay--a reason that has some wondering whether an ulterior motive (that is, killing the code) really exists. --Chad Emerson, Faulkner
Friday, December 11, 2009
I am attending a talk by Ron Carroll, UGA Ecology professor and co-director of the River Basin Center (where I am currently housed). Ron is working in the Rio Tempisque project in Costa Rica, which is a research and outreach site for understanding the consequences of land use and climate change on biodiversity and economic development in Pacific MesoAmerica. His focus is on mitigation of climate change. I love attending Ron's talks because he understands almost everything there is to understand about natural systems, and he has a knack for interpreting that information for a wide audience. Today he's talking to an audience of graduate students, lawyers, and other faculty members.
According to Ron and based on data from the IPCC, regional climate models for Central America suggest a drying trend that will reduce precipitation and cause die-off of many species of flora and fauna in the tropical rain forest. The lack of water will also affect economic development and agriculture. The human cost in very poor countries such as Nicaragua and Costa Rica will be very high. In the part of Costa Rica where Ron works, in 10 years it is likely there will no longer be a wet season. That's pretty intense! Other impacts include increases in vector-borne diseases such as malaria and dengue. Coffee plantation yield will also be strongly affected. Nicaragua may lose all of its coffee growing lands, and yields in Costa Rica will be impacted by pests that are currently being kept out by relatively lower temperatures. However, coffee demand is unlikely to abate, so there will be pressure to open up more high altitude rain forest for coffee cultivation. Another good reason to buy shade grown coffee - no need to cut down the rain forest to fulfill our caffeine jones!
In the Rio Tempisque basin Ron hopes to create a model showing the environmental services and values of existing land uses and how they can be maintained and improved. He is partnering with universities in Costa Rica who have centers in the basin, and also the University of Pennsylvania. He hopes to get funding from US AID, and to share the results of these studies with the other countries of Central America.
Jamie Baker Roskie
The evicted owner of Bonniedale Farms, upset with the way 136 animals on his farm have been treated since he was forced off the property Monday by Wells Fargo Bank, plans to go before a Superior Court judge Wednesday to get a restraining order to force the bank or its agents to provide food, water and care for the animals left behind.
Guy Settipane, the lawyer for Dan MacKenzie, said his client became concerned Tuesday morning after neighbors described chaotic conditions on the property on Snake Hill Road. He said MacKenzie became alarmed when he went to the site and saw, from a distance, “total strangers walking off with his animals.” But the lawyer said his main concern was for the animals — including cats, dogs, chickens, pigs, horses, sheep, goats and others — that he said had been left to fend for themselves...
Read the whole story here.
Now, I fully understand and agree that a bank's right to foreclose on real property is not dependent on what that real property is being used for. But, if the bank exercises that right, surely it should have a legal (if not moral) obligation to provide basic care for animals living on the farm.
This is not a situation where Homeowner X leaves behind Buffy the Cat and the bank decides not to continue cleaning the cat litter. In this case, the animals are much more of a fixture to the property. If the bank is going to evict the farmer, then it should be required to replace the farmer with a basic animal caregiver in the interim.
If for no other reason than, as this article discusses, to protect itself against possible animal neglect and cruelty charges as the now-property owners.
--Chad Emerson, Faulkner U.
I was visiting with several members of a municipal planning staff recently and heard some interesting information.
By and large, Planning Commission hearings are much less busy (and, in some cases, have even been cancelled) than before the land development collapse. One curious exception is that the number of plat requests has not dropped nearly as fast nor far as site plan/development plan/rezoning hearings. The thought was that some land owners and developers may be trying to position their projects as development-ready if (a huge IF) development lending returns anytime soon. That's why they're going ahead with the survey and basic engineering work that a plat application requires.
On the other hand, the Board of Zoning Appeals/Adjustments remain fairly busy. Apparently, property owners are attempting to add on to or modify their existing homes and businesses rather than build new ones. Oftentimes, they need variances to do this and, as a result, the BZA hearings remain somewhat more active.
Granted, all of this is anecdotal but I have heard similar information from multiple municipal planning types in a wide variety of jurisdictions.
Which leads to a couple of interesting pieces of recent news:
1. Moody's is advising that delinquencies for commercial mortgage backed securities (CMBS) continue to accelerate. This is most likely because the underlining commercial properties continue to be vacated by tenants. More tough news for local and state sales and property tax coffers.
2. When you consider the recent government jobs that Larry Summers has held and currently holds, then the irony of this story is thicker than a fully-rated firewall. Could it be the academic equivalent of this?
--Chad Emerson, Faulkner U.
Cul de sacs are a love 'em or hate 'em phenomenon - either you think they're a fantastic safe enclave for kids to play or a blight on the environment. But now, the state of Virginia has gone so far as to ban them entirely from new developments. A recent article in the Washington Post explains why:
"When you have 350 to 400 miles a year of new roads you have to maintain forever, it's a budgetary problem," said Virginia Gov. Timothy M. Kaine (D), who pushed the new regulations through the Commonwealth Transportation Board last month. Virginia has had to cut more than $2.2 billion from its six-year transportation spending plan. "But it's not just about the money. It's about connecting land-use and transportation planning and restricting wasteful and unplanned development."
Virginia will enforce this by withholding road funding and snow removal services from cul de sac streets. Is this the beginning of a trend? I have always lived in traditional through-street neighborhoods, and have always found the cul de sac a strange phenomenon. Given New Urbanist trends, it may already have been on its way out. Still, this is the first effort I know to force them out by state-wide regulation.
Jamie Baker Roskie
Thursday, December 10, 2009
It has snuck up on me, but this is as good a time as any to wish all land use blog readers, scholars, and practitioners a happy holidays. Exams are winding down, students are leaving for break, and practices are starting to move into holiday mode. Chanukah starts tonight and the New Year will be here before we know it.
I am reminded of a certain "holiday" poem in light of the spate of eminent domain and takings issues that we have highlighted recently here on the blog: Pfizer leaving New London; the Atlantic Yards case; the Severance case in Texas; the Stop the Beach case in the U.S. Supreme Court; and even the recent NY appellate decision that seems to go against Goldstein. Now, this poem isn't exactly uplifting, but I hope you find it humorous. I'm talking about Susette Kelo's Christmas card from 2006, after she lost her case. It features a picture of her famous little pink house next to a verse that begins: "Here is my house that you did take" and goes on to say "I curse you all; may you rot in hell."
Well, putting that negativity aside, happy holidays to all, and enjoy thinking about holiday land use issues, from municipal holiday displays, to local aesthetic regulations, agriculture, regional and national transportation, building codes, local government schedules, snow removal (for some), economic recovery, [that pile of exams(!),] and any other way in which the holiday season intersects with land use.
My co-bloggers and I have only been at this for a few months but it has been great to keep the blog as a forum for sharing ideas among the land use community. Thanks for reading and participating. We'll be here at the blog, so keep checking us out during your holiday. Best wishes!
Amnon Lehavi (Interdisciplinary Center Herzliyah - Radzyner School of Law) has posted another interesting-looking article, a review essay of Lee Anne Fennell's The Unbounded Home: Property Values Beyond Property Lines (Yale U. Press, 2009). Lehavi's piece is titled Is Law Unbounded? Property Rights and Control of Social Groupings, forthcoming in Law & Social Inquiry, 2010. The abstract:
This review essay follows up on a suggested model for resolving problems of neighborhood externalities and exclusionary associational patterns in today's metropolitan areas through a property rights regime of "alienable entitlements," as articulated by Lee Anne Fennell in The Unbounded Home (2009). The essay frames the model as promoting a groundbreaking approach to the fundamental quandary over the role of law as a tool for broad-based social change, which has been at the center of the law and society literature.
The essay asks if legal rules can fully absorb the multiple types of societal effects that influence the nature of contemporary homeownership. It then assesses more pointedly the normative desirability of controlling metropolitan-wide social exclusion through alienable property entitlements, identifying an internal tension between Fennell's support for a market-like process and her pursuit of an objective ideal that impacts the analysis. The essay concludes by suggesting that even if one accepts the tentative blueprint for addressing social engineering issues through alienable legal entitlements, it is unclear if such an approach would practically change the ways in which the social dynamics of groupings and exclusion currently take place.
This analysis aims at offering broader insights for socio-legal inquiries beyond the above particular themes of examination. Its central arguments are not limited to a certain ideological perspective - be it the promotion of social justice or of utilitarianism - or to a particular type of social concern. The essay aspires to broadly illuminate the complex ties between law and social studies, and the boundaries of law in controlling social conduct.
So I've been having this running dispute with my next door neighbors about their barking dogs, and last night from somewhere in the depths of my brain arose the phrase, "sic utere tuo ut allenum no laedas." (Roughly translated, "use your property in a way that does not harm others." Latin scholars, feel free to correct me.) First, I'm truly frightened that Latin phrases I learned in first year property can come back to haunt me in this way so long after the fact. Second, how ironic to find myself in a middle of a personal situation involving property and land use while I am co-editor of this blog and while I'm working in a land use policy-based clinic! So often we talk about these things in an academic sense, but occasionally we get to experience them in the human sense.
The issue with the dogs is indeed aggravating, but I'm hopeful we can negotiate ourselves through it. Of course, there are always legal remedies, but despite being a lawyer (or because I am a lawyer) I find myself reluctant to pursue them. Because of my work with environmental justice clients who are facing far more serious nuisances - such as extreme environmental pollution - I understand the human toll of involving legal mechanisms, such as lawsuits. These mechanisms are unweildy and time consuming and can be emotionally exhausting. I also understand (and one of my students has written on this blog about) how hard it can be to get the authorities to do the right thing. So, we all struggle along attempting the negotiated solution, even as we ask for regulatory fixes for our clients that may or may not help.
Far better scholars than I have thought long and deep on this issue and may want to comment. In the meantime, I'll just say you can get your own "Sic utere" shirt on-line, and here's hoping for more neighborly consideration everywhere.
Jamie Baker Roskie
Ben Barros points us from Property Prof Blog to an article by Christopher Beam in Slate's "Explainer" feature titled Stopping by Woods: Tiger Woods' car crash caused $200 worth of damage to a tree. How do you measure that?
According to the article, it turns out that there is some methodology for valuation of trees as property. It involves a number of factors that you may not find surprising: size, age, species, repair/replacement costs, aesthetics, neighborhood context, contribution to the (literally) underlying real estate value. There is even a professional Council of Tree and Landscape Appriasers, which publishes the Guide for Plant Appraisal (9th ed.) that instructs one in the methodology of the Replacement Cost Method and the Trunk Formula Method.
This makes eminent sense to anyone involved with land use or real estate. Trees are a significant contribution to both the hard value of real estate and the more subjective aspects of land ownership or use (beauty, sentimentality, shade). Both builders and buyers today place a great deal of significance on the contribution of trees to the overall value of any particular piece of land. It is also a matter of public interest, and tree ordinances have, um, sprouted up in many cities in the U.S. as an intergral component of land use planning.
But all of this is built on the anthropocentric presumption that a tree is in fact a thing that can be reduced to property and "owned" by humans. Would it be possible to have . . . a tree that owned itself? Most of you property law experts out there would say no. But one U.S. city says--yes! And UGA Prof. Jamie Roskie knows exactly where this is:
Athens, Georgia, of course. You may have heard of Athens' famous Tree That Owns Itself. It is a popular tourist attraction, dating from sometime between 1820 and 1832, when Colonel W.H. Jackson executed a deed purportedly conveying ownership of his favorite tree to . . . itself:
I, W. H. Jackson, of the county of Clarke, of the one part, and the oak tree . . . of the county of Clarke, of the other part: Witnesseth, That the said W. H. Jackson for and in consideration of the great affection which he bears said tree, and his great desire to see it protected has conveyed, and by these presents do convey unto the said oak tree entire possession of itself and of all land within eight feet of it on all sides.
Here we are (apparently the current tree is the "son" of the original):
I wouldn't recommend trying to use any of your fancy human-based property law theory, what with your common law and your learned treatises and whatnot, to mess with the Tree That Owns Itself. The alleged deed may be lost, and there may be rules about capacity and so forth, but as a point of civic pride most Athenians will agree that the Tree does own itself. It is accorded self-"ownership" rights through longstanding (if perhaps winking) local custom. The real property records and plat book do not show the Tree as part of any adjacent property (it's in the public right of way). Furthermore, Ol' Reliable (i.e., Wikipedia) cites a 2006 statement by county Landscape Administrator Roger Cauthen to the effect that it is the official position of the Athens-Clarke County government that the Tree does, in fact, own itself. At any rate, it's legally protected as a historic landmark tree.
Anyway, it's a good thing Tiger Woods wasn't living nearby in Athens, or else one of Prof. Roskie's former students might have had the chance to represent the Tree (or perhaps the Tree's recognized caretaker Athens Junior Ladies Garden Club as next friend) on contingency.
Wednesday, December 9, 2009
Edward L. Glaeser, an economics professor at Harvard, published this morning on the New York Times Economix Blog his thoughts about land use in the Big Apple. Read his full article here. Usually we tend to think of land use in broader terms--residential v. commercial v. mixed use, etc.--but Professor Glaeser turns his lens on the specific uses that take place in those zones, making the argument that reliance on single industries can destroy innovation and entrepreneurship (i.e., coal and Pittsburg, cars and Detroit). If this is true, then perhaps the recent financial crisis helped New York City avoid an overconcentration in finance. Natural resource abundance is another factor Glaeser evaluates. Too much of one resource may not be a bad state of affairs for a city or a country, he argues, but too much dependence on that resource may ultimately lead to decline.
Will Cook, Charleston School of Law