Land Use Prof Blog

Real Estate Writing Competition...

Below is information about a new real estate writing competition from the New York Law School:

The Center for Real Estate Studies and The Graduate (LL.M.) Program in Real Estate at New York Law School present The 1st Annual NYLS Real Estate Law WRITING COMPETITION

Designed to encourage scholarship on all aspects of real estate and land use law, including transactional practice, financing, housing and mortgage law, zoning, condominium and common interest communities, sustainable development and building, international and comparative law, and public policy.

All submissions must be fully cited in Bluebook format. Deadline: April 1, 2010 Prizes: 1st Place - $1000* Honorable Mention - $500 * Winning Entry will also be considered for publication in the New York Law School Law Review.

Open To: Students Enrolled in degrees programs at American and Canadian law schools. Submit: An electronic copy of your article in Microsoft Word Format to [email protected]

Thanks to Professor Marshall Tracht, the Director of Graduate Real Estate Programs at NYLS for passing this along.

--Chad Emerson, Faulkner U.

Charleston's New Preservation Plan Wins National Award

The City of Charleston's new preservation plan received national recognition recently from the National Trust for Historic Preservation during its annual National Preservation Awards.  Created in partnership with the Historic Charleston Foundation, which hired San Francisco-based Page & Turnbull to assist in its fomulation and drafting, the new plan is innovative in that it goes beyond bricks and mortar to consider social, curltural, and economic issues.  The plan also offers tools for assessing the physical characteristics of individual neigborhoods, and includes strategies for addressing sprawl, gentrification, affordable housing, and disaster management.  For a link to a video summary of Charleston's new plan and more information about the award, click here.

Will Cook, Charleston School of Law

Lane on the Torrens System

It's not every day that we get a new paper on the Torrens system, but today is that day!  From Australia, where Sir Robert invented the system, Patricia Lane (Sydney Law) has posted Indefeasibility for What? Interpretive Choices in the Torrens System, forthcoming in L. Bennett Moses, PROPERTY AND SECURITY: SELECTED ESSAYS, B. Edgeworth and C. Sherry, eds., Lawbook Co: Australia.  The abstract:

The Torrens system in Australia protects the security of the registered title, but at what price is the certainty achieved? The registered title is subject to supervening statutes, and the defects in the registered dealings themselves. The system demands interpretive choices be made at the level of interaction with other statutes, and in determining claims between registered interests, such as between the registered proprietor and lessees or mortgagees. Both statutory and contractual interpretive approaches are required to determine these priority questions.

Matt Festa

"Superfast Bullet Trains are Finally Coming to the US"

Earlier today Matt Festa posted about Obama's funding for high speed trains.  Wired Magazine also has a great spread this month on high speed rail coming to the US.  The writers are breathless about the technology, of course, but the article also covers some very interesting land use aspects of the scheme.  Catch the sidebars about how NIMBYism threatens part of the route of the California train, and how the train will reduce travel time from exurbs like Merced to population centers like Sacramento, making those exurbs a more viable housing option for big-city workers. There's also an analysis of how high speed rail, while expensive, will ultimately be cheaper than maintaining our current car culture.  The article has maps of the proposed routes and a history of fast trains. I'm not normally much of a train buff, but I found the whole piece really fascinating.

Jamie Baker Roskie

Property from Space

Disputes over property owership are common, but it's not every day that property comes falling out of the sky.  The Washington Post reports that an Ownership battle brews over Virginia meteorite:

The doctors who were nearly bonked on the head by the thing when it came plummeting from the asteroid belt into Examining Room No. 2 in the Williamsburg Square Family Practice, gave it to the Smithsonian's National Museum of Natural History. In return, Smithsonian officials planned to give them $5,000 in appreciation. The doctors, Marc Gallini and Frank Ciampi, planned to donate the money to earthquake relief efforts in Haiti. The Smithsonian planned to put the meteorite on prominent display and study it as a 4.5 billion-year-old postcard from the formation of the solar system.

* * *

But in an extraterrestrial soap opera still unfolding, the landlords of the Virginia building that houses the doctors' office now say they are the rightful owners of the meteorite. Museum officials said the landlords informed them, midday Thursday, that they were coming to take the stone out of the Smithsonian by sundown.

Apparently the falling meteorite put on quite a show as it landed in Lorton, near D.C., and there is a lot of local interest in the story.  But what is the landlords' theory for asserting superior rights to ownership?

[Deniz Mutulu's] brother and fellow landlord, Erol Mutlu, sent Gallini an e-mail earlier this week, politely demanding the rock be given to the family: "It's evident that ownership is tied to the landowner. The U.S. courts have ruled that a meteorite becomes part of the land where it arrives through 'natural cause' and hence the property of the landowner; the notion of 'finders keepers' has been rejected by the Supreme Court of Oregon."

I'm not familiar with the caselaw on ownership of items that plummet from the heavens.  But would it really be a case of "found property," on someone else's land; or would the doctors' claim lie more in their present occupancy of the land as lawful tenants in possession?

Either way, I'm grateful that this story has fallen out of the sky at the same time that I am teaching 1Ls the relevance of ancient cases resolving disputed ownership of foxes, whales, etc., to illustrate the concept of reducing a "wild" resource to property through first possession. 

Thanks to Matt Reres for the pointer.

UPDATE 2/4/10: This case has been the subject of much discussion on the AALS Property Profs listserve over the last two days, with the trend moving from discussing it as a finder's case to one of reducing an unowned resource to property through possession, with analogy to Pierson v. Post et al.  Let the record reflect that the Land Use Prof Blog got there first!

Matt Festa

President Obama Announces $8 Billion for High Speed Rail

The President announced $8 billion in grants for various regional high-speed rail initiatives around the country, under the auspices of the American Reinvestment and Recovery Act.  The White House press release is here.

Tampa, FL – President Barack Obama and Vice President Joe Biden will today announce that the U.S. Department of Transportation (USDOT) is awarding $8 billion to states across the country to develop America’s first nationwide program of high-speed intercity passenger rail service.  Funded by the American Recovery and Reinvestment Act (ARRA), these dollars represent an historic investment in the country’s transportation infrastructure, which will help create jobs and transform travel in America.  The announcement is one of a number of job initiatives the President will lay out in the coming weeks that follow up on the continued commitment to job creation he discussed in last night’s State of the Union Address. 

What's kind of interesting, if you read the press release, is that it focuses on jobs, economic impact, and more jobs . . . much more so in my opinion than did the DOT/Federal Railroad Administration "Vision for High Speed Rail in America" strategy document from last year, which focused more on the inherent urban/land use/environmental benefits of moving America toward high speed rail. 

DOT Secretary Ray LaHood says that President Obama delivers on American High-Speed Rail on his Fast Lane Blog.  You can also check out the ARRA list of to-be-funded HSR projects. 

Matt Festa

"Say Goodbye to the McMansion"

Sorry for the lack of recent posts.  I'm finishing up the final touches on my upcoming book "Project Future: The Inside Story Behind the Creation of Disney World". 

The book was inspired by an earlier article I published with the Florida State University Law Review on the Reedy Creek Improvement District.  Now, if you think that publishing a law review article can be time-consuming, rest assured that its not nearly the time-consumer as a book.  Meeting with graphic designers, copy editors, publicists and the like can be very fun...and very time intensive.

Anyhow, the completion is near so I anticipate being back in the blogosphere more soon. 

In the meantime, Market Watch has this interesting video discussing the fundamental shift in home building that the recent housing downturn has brought.

My wife and our three young boys (and one young girl on the way) live in a 1,800 square foot house quite comfortably.  The key is that the house was designed very efficiently with reasonable proportions (do you really need 20 ft by 20 ft rooms with 12 square foot garden tubs?).  I note this only to confirm that 5 or 6 person families don't really need a McMansion, especially if you dole out the gathered stuff that isn't really needed.

Anyhow, have a listen.

--Chad Emerson, Faulkner U.

p.s. Ms. Cusato is the designer of the original, award-winning Katrina Cottage.  You can read more about that interesting product of the Mississippi Renewal Forum, here.

Tensions between HOA super liens and purchasers at foreclosure

I've been away for awhile and am happy (and grateful) that my fellow bloggers have contributed such interesting posts over the last few months.  I have really enjoyed reading the posts and learning from them.

My contribution today comes, fittingly, from Nevada.  Nevada, in addition to approximately fifteen other states, has enacted a super lien law in the wake of the foreclosure crisis.  Under this law, a lien imposed by a homeowner association on a house jumps ahead in priority over earlier recorded liens, including mortgages.  As a result, a purchaser must pay off the HOA lien at foreclosure in order to own the title free and clear.  Under the Nevada statute, HOAs are able to collect up to nine months of delinquent assessments as well as other charges through the super lien process.  What is unclear, and now the subject of a lawsuit, is exactly how much HOAs can charge above delinquent assessments.  Purchasers at foreclosure argue that they are routinely surprised late in the foreclosure process when HOAs (and, more often, their collection agencies) deliver shockingly high bills that include collection fees, penalties, and interest charges.  HOAs argue that these fees are necessary to keep communities afloat in light of the high rate of foreclosures.   

Because the Nevada legislature meets sparingly (it is next due in session during the Winter/Spring of 2011), it will likely be up to the courts to settle the statutory ambiguity.  What I find interesting in this dispute is that the only entities capable of engendering more ill will than over-zealous lenders are HOAs.  In their defense, HOAs are often a homeowner's last defense in this foreclosure crisis by maintaining the quality of surrounding homes.  On the other hand, many see these perceived, excessive HOA charges as yet another manifestation of unchecked and intrusive power over homes and communities.

Ngai Pindell

Silence

Newsweek on-line has the article "An Unquiet Nation" The subtitle is "Audio ecologist Gordon Hempton talks about America's vanishing quiet spaces, and how our lives can be helped by listening to the silence."  Hempton has traveled the world looking for silent places, and he's finding fewer and fewer.  In 2007 there were only 3 places left with 15 minute intervals of silence, one of which is in Olympic National Park in Washington state.  The primary problem is air travel, which is not a land use problem per se.

However, many communities struggle with the issue of noise and the similar problem of light pollution.  (See a UGA Land Use Clinic guidebook on local regulation of light pollution here.)  My clients in the Newtown neighborhood of Gainesville, Georgia would probably find Hempton's search for absolute silence a bit precious.  They're just hoping for some relief from the constant background hum from the nearby grain mill and the intermittent crash of metal on the junkyard site that sometimes exceeds OSHA standards - meaning folks should be wearing earplugs in their yards to avoid hearing loss.  (See our environmental consultants' report here and give it a few moments to download.)

Still, noise pollution of all kinds is wearing on the nerves and potentially damaging to health (also as documented in the report linked above).  I'm not sure I've ever been in a place totally free of mechanical sound and, although I hadn't thought about it before I read this article, that thought does make me a bit sad.

Jamie Baker Roskie

Comparative land use on SSRN

Vicki Been's latest SSRN digest of Property, Land Use, & Real Estate Law Abstracts has three articles on non-U.S. land use issues:

Maelys De la Ruppelle, Deng Quhen (Chinese Academy of Social Sciences (CASS)), Li Shi (CASS), & Thomas Vendryes, Land Rights Insecurity and Temporary Migration in Rural China.

Robert D. Tennyson (Berkeley--Jurisprudence & Social Policy), Legal Precedents of the Parliamentary Enclosure Movement.

British Columbia Law Institute (BCLI), Consultation Paper on Section 29 (2) of the Land Title Act and Notice of Unregistered Interests.

You can subscribe to the digest at SSRN.  We'd love to hear more about international or comparative land use scholarship.  

Matt Festa 

"Unhappy Hipsters"

Here's another fun website, forwarded to me by my architect husband (the silent 6th blogger, as those of you who follow my posts may have noticed).  This is a hilarious blog (if you like humor at the expense of modernist architects and writers) made up of photos from Dwell magazine with added humorous captions.  It highlights the blankness and bleakness of many current exemplars of modern form.  I would tell you that my favorite caption is "He sipped his tepid coffee and pondered how to tell her that, in fact, the pants made the sack dress even less appealing," but another blog has beaten me to the punch.  (Apparently Dwell's managing editor has endorse the parody through a tweet.)

Jamie Baker Roskie

Call for Land Use Blog Contributions

The spring law review article submission season is approaching fast.  If you have an article that you will be submitting to journals soon, we invite you to publicize it here on the Land Use Prof Blog.  We always try to search for and post links to new land use-related articles.  But we would love to help you get the word out about any new articles and perhaps get some feedback from the land use community before you submit it, or before it comes out.

So please let us know if you have an article coming out--either for submission or publication--and would be interested in having it featured on the Land Use Prof Blog.  We would be very glad to highlight new work from both junior and senior scholars.  You could do a series of guest blog posts, or just have us post your descriptions in one or more postings.  Either way you could have the opportunity to go beyond the short abstract and get your ideas out to a wider audience. 

We'd love to hear about your work.  Email me at [email protected] or any one of my co-bloggers--Will Cook, Chad Emerson, Ngai Pindell, Jamie Roskie--at the links on the left. 

Matt Festa

President Obama's New Strategy for Urban America

The President spoke recently to the U.S. Conference of Mayors.  The video is here and the transcript is here.  He explains his strategy as follows:

Our strategy to build economically competitive, environmentally sustainable, opportunity-rich communities that serve as the backbone for our long-term growth and prosperity -- three items:  First, we'll build strong regional backbones for our economy by coordinating federal investments in economic and workforce development -- because today's metropolitan areas don't stop at downtown.  What's good for Denver, for example, is usually good for places like Aurora and Boulder, too.  Strong cities are the building blocks of strong regions, and strong regions are essential for a strong America.

Second, we'll focus on creating more livable and environmentally sustainable communities.  Because when it comes to development, it's time to throw out old policies that encouraged sprawl and congestion, pollution, and ended up isolating our communities in the process.  We need strategies that encourage smart development linked to quality public transportation, that bring our communities together.

* * *

Third, we'll focus on creating neighborhoods of opportunity.  Many of our neighborhoods have been economically distressed long before this crisis hit -- for as long as many of us can remember.  And while the underlying causes may be deeply-rooted and complicated, there are some needs that are simple:  access to good jobs; affordable housing; convenient transportation that connects both; quality schools and health services; safe streets and parks and access to a fresh, healthy food supply. 

He indicated that this strategy will be reflected in the budget submitted next month.

Matt Festa

Nolon and Salkin on Teaching Land Use

John Nolon and Patricia Salkin have just published a fantastic piece on teaching land use law and its relationship to Best Practices.  The work of the UGA Land Use Clinic is profiled, as is Chad Emerson's teaching method.  Here's the abstract.

The changing dynamics in the field of land use and sustainable community development law demand that land use law professors rethink the way in which we prepare law students to practice law in this area. This needed paradigm shift converges with the growing momentum of the best practices movement which urges law schools to dramatically revise the curricular approach to legal education, arguing that traditional models are no longer effectively serving the goal of producing competent and fully prepared new lawyers. A perfect storm is present and a unique opportunity exists through the application of many “best practices” concepts for land use law faculty to lead the academy in reinventing curriculum and teaching strategies to better prepare students for the practice of law. A brief history of the best practices movement is described in Part II, as well as an assertion as to why land use should be the “poster child” for best practices. Part III reports on an empirical survey of land use law professors conducted by the authors in 2008 that examines, among other things, the opportunities to apply best practices to the subject of land use law. It also offers additional innovative examples of teaching methods that can be effectively utilized within the confines of the traditional classroom, using the land use law course as a model, as well as an example of how the land use law course can be used across the curriculum as a best practices capstone experience. The article concludes in Part IV with the observation that the shortcomings of the traditional casebook approaches to teaching land use within the four walls of the classroom can be easily converted into exciting opportunities that engage student learners, stretch the limits of student creativity, continue to instill and refine a sense of professionalism in law students and, consistent with the findings and recommendations of the Best Practices report and related literature, prepare students to be more effective lawyers when they graduate.

You can find the article on SSRN here.

Jamie Baker Roskie

TDRs in Beaufort Part II

As I mentioned last week on this blog, last week we were in Beaufort, South Carolina working on implementing their Transfer of Development Rights program.  Our visit there got some press in the local paper.  The article covers a meeting we had with local landowners in Beaufort, who were subjects of a downzoning because of their proximity to the Beaufort Marine Corps Air Station.  The local governments and the air station are limiting density in the flight zone due to noise and safety concerns.  The TDR program is a mechanism for allowing landowners to recoup the development potential of their land by sending it to city areas where more density is appropriate.  I'll continue to blog about this project as it progresses.

Jamie Baker Roskie

Foster on Urban Informality as a Commons Dilemna

Sheila Foster (Fordham) has posted Urban Informality as a Commons Dilemna, forthcoming in the University of Miami Inter-American Law Review.  The abstract:

This essay is part of a collection of papers focused on the legal, policy and human challenges posed by the global growth of megacities in Latin America. The contention of this essay is that the problem of urban informality presents in some ways a classic "commons" problem. Informal settlements are able to thrive in cities across the world because, in spite of the existence of fairly well developed planning and land use rules, undeveloped urban land is "up for grabs" to land speculators (who purchase the land and then subdivide it) and ultimately to as many settlers as the land can accommodate. The framework that I offer here casts the commons problem in the context of informal settlements as in part created by "regulatory slippage." By de facto removing unappropriated land from regulatory reach it reverts, in practice, back to its natural, unregulated state where there is little or no restriction on its use.

Illegal subdividers and the individual purchasers who occupy the land are in a sense recreating the commons drama, or tragedy. Much like the herdsman in Hardin's tragedy scenario, in the case of informal settlements, individual users (e.g. pirate subdividers) have no incentive not to continue to (over) populate and consume the land while externalizing the cost of that use to others. As a result, urban land is being quickly consumed and its availability is slowly disappearing. Moreover, the costs eventually imposed on the local populace from the establishment and existence of informal settlements-i.e. the costs of upgrading, formalizing, and integrating the settlements into the urban metropolis-might be better (or more efficiently) spread through a different mechanism for using peripheral urban land to house the poor. The analytical traction that the Tragedy of Commons offers is to allow us to do so along the spectrum of public and private governance choices and the tradeoffs that they entail. This essay explores these choices, their tradeoffs, and offers some thoughts about each in the context of informal settlements.

Matt Festa

Rosser on Ahistorical Indians and Reservation Resources

Ezra Rosser (American U.) has posted Ahistorical Indians and Reservation Resources, forthcoming in Environmental Law, Vol. 40, 2010.  The abstract:

This article is an in-depth exploration of the impacts of an Indian tribe deciding to pursue environmentally destructive forms of economic development. The article makes two principal contributions. First, it establishes the Navajo Nation’s decision-making role. Prior mineral resource forms of development may have been formally approved by the tribe but the agreements did not truly belong to the Navajo Nation. Extensive research into earlier agreements shows the heavy influence of the federal government and mining interests historically. Existing scholarship on reservation environmental harm tends to deflect tribal responsibility, attributing such decisions to outside forces. Without denying the challenges the Navajo Nation is facing, the article calls for recognition, despite the romanticism that surrounds Indians and the environment, of tribal agency and responsibility for the proposed environmental destruction. Second, I argue that environmental organizations that make use of federal environmental review processes are complicit in the systematic denial of Indian sovereignty that federal primacy entails. Although there is a strong theoretical argument that the only limits appropriate for Indian nations are those of nation-states under international law, the Article concludes that the relationship between environmental organizations and Indian nations ought to be guided by international human rights law.

Matt Festa

De-mystifying Density...

For whatever reason, the topic of regulating density seems to be one of the most understood areas of land use law.  Too often, the simplistic notion that more density is generally bad is employed in a knee-jerk way.  In fact, just the opposite can be true.

Increased density can actually be more sustainable if the density is built in an organized manner.  For instance, some sustainable strategies such as transit-oriented development are rarely possible at low densities.

That's why this website from the Lincoln Institute of Land Policy is especially helpful. 

Based on the great book, Visualizing Density, the website provides a variety of tools that demonstrate how density is not as simple as more/less and bad/good.

I especially recommend taking the density "quiz".

--Chad Emerson, Faulkner U.

Peck and Steadham on Land Description Errors

John C. Peck (Kansas) and Christopher L. Steadham (Kansas) have posted Land Description Errors: Recognition, Avoidance, and Consequences.  The abstract:

Legal descriptions of land are used in many legal documents, including contracts, deeds, mortgages, and others. The article first describes several commonly used description methods, including the metes and bounds, U.S. Government Survey, plat reference, and surveyor's or angular description. A suggested method of drawing descriptions is provided. Many types of errors can occur in legal descriptions. Errors can be made because the description is too informal, is ambiguous, or contains mistakes in numbers. Sometimes errors are made when the description is valid in and of itself, but is not the one intended by the parties. Courts have devised canons and aids in construction of land descriptions that contain patent or latent errors. When errors are made, several parties may be adversely affected, including buyers and sellers, mortgagors and mortgagees, lawyers, and land surveyors. For lawyers, errors can implicate both legal and professional ethics violations. Surveyors may be liable in malpractice. The article concludes with some suggestions on methods to avoid making errors in land descriptions.

Matt Festa

Everybody Must Get Zoned (in Denver)

We've blogged before about land use legal developments in Denver, particularly about its movement toward a comprehensive reform of its zoning code to a form-based code along the lines of what Miami 21 is doing.  The proposed new ordinance is online here.  Now in the Denver Westword (which appears to be a local alternative weekly) we have this commentary: Everybody must get zoned: Kenny Be looks at Denver's new zoning rules.

The new zoning code is now online and awaits your review. With building restrictions across the city that are all new! The revamped code guarantees that you won't suffer alone, because everybody must get zoned.

The new context-based zoning code completely transforms the planning office into a McZoning service counter. The form-based picture menu clearly shows what can be built and helps the builder/homeowner to select an allowable building (that maintains the existing context of their neighborhood), just by presenting the smiling city planner with an address.

Any Bob Dylan fan like me should be already on board.  But go ahead and check out the link, because the article is focused around the cartoons.  In the first one, the author/artist analogizes the proposed new zoning regime to a fast food counter and the "menu" above looks a lot like the new urbanist Transect.  It also refers to pops and scrapes.

The article pokes fun at the new code and implies some criticism of the form-based code as being overly restrictive and micro-managing of individual property, and too empowering for the bureaucracy.  If I'm correct in interpreting the author and the article as coming from a hipster/progressive perspective, it underlines that some of the tensions in land use policy can't be reduced to "cartoon" versions of typical left-right political or cultural splits.  But for some really good land use cartoons, check out the article.  And listen to some Dylan while you're at it.

Thanks to Megan Currin for the pointer.

Matt Festa