Sunday, May 30, 2010

Guerilla Gardeners

We have posted several times on the movement towards urban agriculture (and chickens) and neighborhood gardening.  But sometimes The Man (and zoning and other land use codes) won't allow it. From the Wisconsin State Journal, Guerilla Gardeners: They leave a garden when no one else is looking.

True “guerrilla gardening” — planting in a public place, where one doesn’t have permission — is difficult to confirm and by nature is secret. It’s also illegal, although the city prefers to educate residents rather than enforce a $500 fine for violating tree planting rules, said George Hank, the city’s director of building inspection.
Guerrilla gardeners have their own code of conduct, said John, the East Side guerrilla gardener who the State Journal is not identifying because he also is a volunteer gardener with the city and does not want to lose that position.
“My thought is always that people not mess with other people’s gardens,” John said. “There are so many places that need attention around this city.”

Matt Festa

May 30, 2010 in Agriculture, Environmentalism, Urbanism | Permalink | Comments (0) | TrackBack (0)

Ely on Stevens, Kagan and Property Rights

Shortly after Justice Stevens announced his retirement, we posted an article by Prof. John Echeverria on Justice Stevens' career legacy in property law, taking a generally positive view.  Last week, Prof. James W. Ely, Jr. (Vanderbilt, law & history) published an op-ed in the Washington Times with a critical view of Justice Stevens' record on property.  From Stevens, Kagan, and Property Rights:

However, in at least one important area of constitutional law--the rights of property owners--Justice Stevens' record fell woefully short of protecting the interests of average citizens.  In fact, Justice Stevens consistently dismissed property rights claims and voted to strengthen government control over the lives on individuals. 

On Kelo:

In Kelo, Justice Stevens virtually eviscerated the public use limitation of the Fifth Amendment at the federal level.  Under his reading of public use, legislators appear to have almost unlimited power to take homes and businesses for economic development.  The beneficiaries likely will be corporations and others with political clout.  In practice, developers and local officials often work in tandem to eliminate neighborhoods and displace residents in order to achieve hypothetical economic gains.

Ben Barros disagrees with Ely's blaming Justice Stevens for "eviscerating" the Public Use Clause, noting that Berman and Midkiff established well the precedent for deference to government in determining what is necessary for the public benefit.  But while Justice Stevens' opinion certainly relied on Berman and Midkiff, I have always thought that was really drove the opinion was less a matter of stare decisis (but useful to cite precedent, especially since Justice O'Connor wrote the opinion in Midkiff), and more of an overall comfort level with the fact that the New London takings were part of a comprehensive redevelopment plan designed by a wide range of government officials and agencies.  

Ilya Somin also blogged Ely's op-ed with some interesting observations, and linked to Ely's 2005 article Poor Relation Once More and his definitive history of U.S. constitutional property rights, The Guardian of Every Other Right.

Ely concludes with a recommendation for the Senate regarding Stevens' nominated replacement:

Hopefully Elena Kagan, Mr. Obama's nominee to replace Justice Stevens, holds a more balanced view of the importance of property rights in the American constitutional order.  As in many other fields of law, however, Ms. Kagan's record with respect to property rights is a blank slate.  It certainly would be appropriate for senators at Ms. Kagan's confirmation hearing to ask her about her thoughts on this subject.

Matt Festa

May 30, 2010 in Caselaw, Constitutional Law, Economic Development, Eminent Domain, Federal Government, Property Rights, Scholarship, Supreme Court, Takings | Permalink | Comments (0) | TrackBack (0)

Speaking of Bad Condo Markets...

If you thought my recent post about the Hue development in Raleigh, N.C. was troubling, check out this recent story regarding Las Vegas:

Earlier this month, Houston-based Metrostudy reported that Las Vegas has more than 8,200 condominium units that are sitting empty, including those still vacant in CityCenter.

Murphy said Las Vegas has a 20-year supply of condominiums whose prices are down 60 percent from the peak of the market a few years ago. Some high rises aren’t selling for that much more per square foot than single-family homes, he said.

Our fellow blogger, Prof. Pindell lives in Vegas. Ngai, is it as bad as it sounds from this article?

--Chad Emerson, Faulkner U.

May 30, 2010 | Permalink | Comments (0) | TrackBack (0)

Not a Single Unit. Amazing.

The ongoing land development crash is filled with amazing anecdotes.  I've followed many of them as part of my research and writing.  Recently, though, I ran across one that shocked and awed me more than any other before.

It's the story of a infill mixed-use project that, since it could not obtain enough presales, could not tap into the massive amount of federal monies floating around out there:

Hue wasn't able to get the presales needed for Fannie Mae or FHA approval, something that two of its downtown Raleigh competitors, the RBC Plaza condos and Bloomsbury Estates, have achieved.

Highwoods Properties, the developer of RBC Plaza, has sold 105 of the tower's 139 condos, but just five in the past four months. Bloomsbury has sold four of its 56 units, according to Wake County property records. Hue's units were priced between $147,000 and $388,000. The entire project, including a parking deck, has a tax value of $33 million.


New condo projects have a reservation period in which they accept commitments from buyers before they can actually sell units. Hue frustrated many prospective buyers because its reservation period dragged on longer than expected. The project began selling units only in January, and it offered a variety of perks to get people in the door.

Instead of buying a unit outright, a resident could sign a contract to lease one and live in it until the building reached the presale requirement that made it eligible for federal loan assistance. Buyers were offered a free washer, dryer, refrigerator and parking space.

This is really pretty startling that a project of this size and cost is essentially sitting empty across from Raleigh's city hall.

--Chad Emerson, Faulkner U.

May 30, 2010 | Permalink | Comments (0) | TrackBack (0)

Two by White on Strategic Default

Brent T. White (Arizona) has posted two papers on the topic of strategic default by homeowners.  First is The Morality of Strategic Default.  The abstract:

Responding to those who argue that homeowners who strategically default on their mortgages are immoral and socially irresponsible, this article argues that breaching a mortgage contract is not only morally acceptable, it may be the most responsible course of action when necessary to fulfill more important obligations to one’s family.

An increasingly influential view is that strategic defaulters make a rational choice to default because they have substantial negative equity. This article, which is based upon the personal accounts of over 350 individuals, argues that this depiction of strategic defaulters as rational actors is woefully incomplete. Negative equity alone does not drive many strategic defaulters’ decisions to intentionally stop paying their mortgages. Rather, their decisions to default are driven primarily by emotion – typically anxiety and hopelessness about their financial futures and anger at their lenders’ and the government’s unwillingness to help. If the government and the mortgage industry wish to stem the tide of strategic default, they must address these emotions. 

Because emotions are primary, however, principal reductions may not be necessary. Rather, many underwater homeowners simply need some reason to feel less apprehensive about the financial consequences of continuing to pay their underwater mortgages. One possible way to provide this comfort would be a “rent-based loan program,” allowing underwater homeowners to refinance their entire balances to an interest rate that would bring their mortgage payment in line with the rental cost of a comparable home. Indeed, a rent-based approach would relieve many underwater homeowners’ financial anxiety and likely be enough alone to stem the tide of strategic default.

Matt Festa

May 30, 2010 in Finance, Housing, Mortgage Crisis, Mortgages, Real Estate Transactions, Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, May 28, 2010

Nominee for Worst Proposed Legislation of 2010...

Now, I completely understand that there are many people in the homebuilding industry who really want to start working again and expanding.  It's their livelihood and who wouldn't want a bigger paycheck in these tough economic times.

But, the idea that the federal government should essentially start financing new home construction even though there is a huge glut of unsold inventory is, well, just foolish.  Here are the details of this dubious nominee:

H.R. 5409, the Residential Construction Lending Act, would create a new residential construction loan guarantee program within the Department of Treasury to provide loans to builders with viable construction projects. Designed to unfreeze credit for small home building firms, the measure would expand the flow of credit to residential builders on competitive terms.

Think about it this way.  You have a field full of The Veggie That Nobody Wants.  Because nobody wants it, the growers are laid off based on the lack of demand.  But, rather than diversify into something that there is demand for, the government just steps in and finances/guarantees the funds to plant many more fields of The Veggie That Nobody Wants.

All in the name of job preservation and economic growth.

Folks, its this type of strained and really intellectually dishonest logic that caused the current problem in the first place.  It's like making a drunk feel better by giving them more alcohol.  Sure, it might work in the short term but, in the long run, its just causing more damage to the system.

--Chad Emerson, Faulkner U.

May 28, 2010 | Permalink | Comments (0) | TrackBack (0)

Thursday, May 27, 2010

Dagan on Independence and Interdependence and the Pluralism of Property

Hanoch Dagan (Tel Aviv) has posted From Independence and Interdependence to the Pluralism of Property, forthcoming in PROPERTY, STATE AND COMMUNITY (Oxford U. Press).  The abstract:

This paper is one chapter of a collection of essays – Property, State, and Community – which will be published with the Oxford University Press in 2011. I discuss in this chapter two recent ambitious attempts to divine the core normative essence of property; relying, respectively, on Kant and Aristotle, one finds property as a castle of independence, the other – as the locus of interdependence. I recognize the normative appeal of these rival theories: independence must be a core value in every humanistic tradition; and our embeddedness in communities is not only an important feature of the human predicament, but also a significant aspect of human flourishing. And yet I show that both theories fail and that their failures are mirror images of one another. Each theory ignores and thus undermines the value emphasized by its counterpart, and this omission also backfires. By refusing to allow interdependence and responsibility to play any role in its conceptualization of property, the property as independence school may end up undermining its own cause by entrenching widespread human dependence. Likewise, by resisting the commitment to legally entrench liberal exit and by insisting that reciprocity should not cap communities’ demands of their members’ contributions, the property as interdependence camp may dilute, rather than fortify, the value of community.

I suggest that rather than trying to extract one regulative principle of the entire terrain of property, we should appreciate the value of the heterogeneity of property's domain. The multiplicity of property institutions is the key to property's normative promise. Property can be the home of both independence and interdependence (and can serve the other property values as well), and thus provide people with valuable options of human flourishing. Only by facilitating such diverse forms of human interaction – different property institutions – can property promote (as it does) the freedom-enhancing value of pluralism and the individuality-enhancing role of multiplicity, which are so crucial to the liberal ideal of justice.

Matt Festa

May 27, 2010 in Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

Kilbert on the Public Trust Doctrine and the Great Lakes Shores

Kenneth Kilbert (Toledo) has posted The Public Trust Doctrine and the Great Lakes Shores, Cleveland State Law Review, Vol. 58, No. 1 (2010).  The abstract:

The shores of the Great Lakes are a battleground, and their future use is shrouded in uncertainty and controversy. Lakefront owners, armed with their deeds, assert an exclusive right to use their properties at least down to the water's edge. Members of the public, brandishing the venerable but amorphous public trust doctrine, claim a right to walk on even privately owned shores up to the high water mark. Courts to date have diverged widely, in approach and result, when deciding whether, and to what extent, the public has a right to use the Great Lakes shores.

This article proposes a uniform framework, grounded in the core principles of the public trust doctrine, for use in each Great Lakes state to ascertain the public right's to use the Great Lakes shores. This framework offers much-needed predictability, yet is flexible enough to allow each state to strike its own balance between public and private interests. The framework employs a principled, two-prong approach. First, it determines the geographic scope of the public trust doctrine applicable to the Great Lakes shores. Reconciling Supreme Court precedents, the framework provides that the geographic scope of the public trust in each state begins at a common starting point informed by the equal footing doctrine, and a state's ability to alter the scope is circumscribed. Second, the framework determines what public uses of the Great Lakes shores are protected by the public trust doctrine. Important, non-traditional public uses that do not unreasonably interfere with the rights of lakefront owners can be protected as well as the traditional uses of navigation, fishing, and commerce. Using as a focal point the controversy regarding the public's right to walk the Great Lakes shores, this article shows how the proposed framework is consistent with existing law in each of the Great Lakes states.

Matt Festa

May 27, 2010 in Beaches, Property Rights, Scholarship, State Government, Water | Permalink | Comments (0) | TrackBack (0)

Salkin & Lavine on Community Benefits Agreements and Comprehensive Planning

Patricia Salkin (Albany) and Amy Lavine (Albany) have posted Community Benefits Agreements and Comprehensive Planning: Balancing Community Empowerment and the Police Power, forthcoming in the Journal of Law and Policy.  The abstract:

Traditionally, the states have empowered local governments to develop plans and implement regulations for neighborhood and community development. When accomplished at the local or regional level, the interests and benefits of the community as a whole are to be weighed against the detriments to individuals. Much has been studied and written about the lack of meaningful public participation in the planning and land use regulatory process, suggesting that often low-income and minority communities are not fully engaged in the process, even when it may result in decisions negatively impacting their neighborhoods. Case studies have also shown that governments are sometimes so eager to stimulate local economic development that they fail to fully engage communities in the project review process, both to expedite development and to avoid confronting local opposition. This emphasis on short-term economic growth, however, may obscure a local government’s perception of the social and environmental needs of particular communities. When this occurs, formal planning processes have failed to accomplish their goals of engaging community members and guiding future growth in a manner that maximizes long-term benefits for the common good. 

New approaches to planning provide one response to systemic public participation problems. The environmental justice movement, for example, has sought to ensure a fair distribution of both environmental burdens and environmental goods by requiring local governments to make meaningful public participation available to all community members. Community based planning efforts have attempted to improve the planning process by focusing on small and distinct geographic areas and by developing collaborative and inclusive planning programs. Since the late 1990s, community benefits agreements (CBAs) have offered another method to increase community input in the development planning and review process. For communities that have historically been excluded from the planning process, CBAs can be a powerful tool to ensure that neighborhood interests are addressed as an integral component of development. The result, ideally, is growth and development that is accountable to the people it affects and equitable in its distribution of benefits and burdens. However, the people it affects are often a small subset of the municipal jurisdiction and the equitable distribution sought in the CBAs is limited to the proposed project area. 

This article explores how the comprehensive planning process and CBAs complement and contradict each other, and how both could be improved by innovative and more inclusive planning techniques. Part II provides a brief historical background on comprehensive planning and community development, including issues relating to community planning and public participation. Part III examines CBAs and their role in community empowerment, community development and the promotion of social justice principles, including equitable development. This part also provides examples of typical land use related elements found in existing CBAs. Using these examples, Part IV segues into a discussion regarding whether private CBAs usurp the public planning process. The section explores whether CBAs are just another type of community based plan and whether CBAs advance narrow interests at the expense of the larger community. The question of what local governments should do when presented with a CBA that is inconsistent with the local comprehensive land use plan is examined to determine whether amending the plan to incorporate the community vision as articulated through the CBA is appropriate. The article concludes in Part V by pointing out that shortcomings of the current regulatory system allow local governments, intentionally or inadvertently, to exclude robust public participation from the development and implementation of comprehensive land use plans. This provides the impetus for privately negotiated CBAs, but these agreements may not always be ideal because not all parties to a CBA will have the best interests of the neighborhood or the community as a whole at the forefront of their agendas. While many CBAs have been successful, a number of case studies also reveal pitfalls in the process. The article concludes with the belief that local governments must be more inclusive and accountable in the public planning process to better meet the true goals of the community benefits movement.

Matt Festa

May 27, 2010 in Community Economic Development, Development, Local Government, Planning, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 26, 2010

Land Use Panel at Law & Society Association

This weekend is the always-excellent annual meeting of the Law & Society Association in Chicago.  I haven't scoured the program, but there is sure to be a plethora of interesting panels and events.  I do have firsthand knowledge, however, of one particular land-use panel that is guaranteed to present fascinating projects from interesting up-and-coming scholars.

Panel: Managing the American Dream: Land Use and the Politics of Growth after the Mortgage Crisis.  Fri., May 28, 12:30-2:15
Chair: James J. Kelly, Jr. (University of Baltimore)

The Effects of SmartGrowth on the Preservation of Historic Resources, William J. Cook (Charleston School of Law)

Debtors' Environmental Impact: Structured Finance and the Suburbanization of Open Space, Heather Hughes (American University)

Sustainability and the Practice of Community Development, James J. Kelly, Jr. (University of Baltimore)

The Artifice of Local Growth Politics: At-Large Elections, Ballot Box Zoning, and Judicial Review of Land Use Initiatives, Kenneth Stahl (Chapman University)

The abstract:

Land Use is one of the most interdisciplinary areas of legal theory and practice, yet in today's environment there are common issues facing land use planners. The goals of promoting growth, land development, and property ownership are in tension with emerging priorities such as growing “smart,” reducing sprawl, and sustainability. These issues expand across borders and regions yet remain intricately tied to local politics. The mortgage and financial crises have impacted the land use environment for governments, communities, and landowners. This panel explores contemporary land use challenges from the perspectives of local growth politics, sustainability and community development, smart growth and historic preservation, and the impact of policies promoting home ownership.

I had really hoped to be there for this panel, and I am very disappointed that I won't be able to make it.  But perhaps since Will, Jim, Ken, and (I hope) Heather are friends of the blog, perhaps we might be lucky enough to get a report, and we'd love to host more discussion of these forthcoming papers on the blog (hint, hint!).  At any rate, if you are going to LSA or will be in the Chicago area, I highly recommend that you attend.
Matt Festa

May 26, 2010 in Charleston, Chicago, Community Economic Development, Conferences, Environmental Law, Finance, Financial Crisis, Historic Preservation, Local Government, Politics, Scholarship, Smart Growth, Suburbs, Sustainability | Permalink | Comments (0) | TrackBack (0)

Monday, May 24, 2010

Arrunada & Lehavi on Prime Property Institutions for a Subprime Era

Benito Arrunada (Universitat Pompeu Fabra) & Amnon Lehavi (Interdisciplinary Center Herzliyah--Radzyner School of Law) have posted Prime Property Institutions for a Subprime Era: Exploring Innovative Models of Residential Development and Finance.  The abstract:

This paper breaks new ground toward contractual and institutional innovation in models of homeownership, equity building, and mortgage enforcement. Inspired by recent developments in the affordable housing sector and in other types of public financing schemes, this paper suggests extending institutional and financial strategies such as time- and place-based division of property rights, conditional subsidies, and credit mediation to alleviate the systemic risks of mortgage foreclosure. Alongside a for-profit shared equity scheme that would be led by local governments, we also outline a private market shared equity model, one of bootstrapping home buying with purchase options.

Matt Festa

May 24, 2010 in Housing, Local Government, Mortgages, Real Estate Transactions, Scholarship | Permalink | Comments (0) | TrackBack (0)

Rodriguez-Dod on Protecting Tenants from Foreclosure Evictions

Eloisa C. Rodriguez-Dod (Nova Southeastern) has posted Stop Shutting the Door on Renters: Protecting Tenants from Foreclosure Evictions, from Cornell Journal of Law and Public Policy, Vol. 20.  The abstract:

This article discusses existing and proposed federal and state law affecting tenants’ rights in foreclosure. As “Foreclosure” signs rapidly join “For Sale” signs across the country, the national foreclosure crisis has not only displaced homeowners, but a plethora of renters as well. The approach taken by states concerning tenants affected by foreclosure varies greatly. Furthermore, a recently enacted federal law, created specifically to help tenants in foreclosure, does not relieve the uncertainty in resolving this issue. In addition to being the first to critique the new federal law, this article offers recommendations for legislation that may better protect tenants from foreclosure-related evictions.

Matt Festa

May 24, 2010 in Landlord-Tenant, Mortgages, Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

Not in My Neighborhood

I am really glad to be joining Land Use Prof Blog as a guest blogger.  Over the next few weeks, I look forward to contributing to an already lively discussion.  My scholarship and practice interests have recently focused on land trusts, land banks and any other form of direct community control of land resources.  If you wish to contact me with an idea or item, email me at JKelly[at]ubalt[dot]edu.

2010 marks the 100-year anniversary of the nation’s first racial zoning ordinance. (see Garrett Power’s law review article here).  The Baltimore City Council passed it in the wake of nationwide race riots that followed Jack Johnson’s defense of the world heavyweight boxing title.  I have just been reading a copy of Antero Pietila’s Not in My Neighborhood: How Bigotry Shaped a Great American City lent to me by my colleague, Odeana Neal.  It is an engaging chronicle of de jure and de facto residential segregation in 20th century Baltimore, exploring the exclusion of both Jews and African-Americans.


Pietila brings out the characters and stories that illustrate the high-minded racism of the eugenics era and the market-justified redlining of the FHA-predecessor, the Home Owners' Loan Corporation.  The book kicks into high gear with its exploration of the moral ambiguity of “blockbusting” (civil rights advocacy? cynically manipulative profiteering? both?) in the wake of the U.S. Supreme Court’s 1948 decision in Shelley v. Kraemer. Amidst these essential narratives are a few hidden gems such as the stories behind the siting of Morgan College (now Morgan State University) and the Social Security Administration and the roles these institutions played in anchoring Baltimore's largest African-American middle-class enclaves.  Those considering the book for supplemental reading in land use and property courses might want to check out this 4/27 NPR local radio interview with the author.

Jim Kelly

May 24, 2010 in Caselaw, Constitutional Law, History, Homeowners Associations, Housing, Race, Zoning | Permalink | Comments (0) | TrackBack (0)

Hirokawa and Salkin on Urban University Expansion, Sustainable Development, and Columbia

Many of you might be familiar with the controversy over Columbia University's plans for expansion; the plans, however, raise numerous land use issues besides eminent domain.  Keith Hirokawa (Albany) and Patricia Salkin (Albany) have posted an article that situates Columbia's plans within the broader context of university expansion in the urban environment: Can Urban University Expansion and Sustainable Development Co-Exist? A Case Study in Progress on Columbia University, Fordham Urban Law Journal, Vol. 37 (2010).  The abstract:

This Article employs sustainability as a framework to analyze the recent proposed physical expansion plans of Columbia University for the purpose of illustrating the complexities that arise in urban development and higher education practices, as well as the problems of trying to simultaneously implement both. Governments and courts traditionally provide a high level of deference and leniency in the application of land-use laws and regulations when it comes to siting and expansion issues for educational institutions, yet institutions of higher education, particularly those located in urban areas, create unique dilemmas for sustainability. For example, available land for expansion is often a physical and political challenge, and the institutional business model behind expansion plans can overshadow the educational purposes that the expansion is intended to serve. Further, the acquisition of new land needed for expansion can result in a “university creep” into neighborhoods where the scale of the proposed development may not be in keeping with past and present community character. Part I of this article offers a framework for defining and evaluating sustainability in the higher education context. Part II further explores the roles of higher education in sustainability, and Part III applies these concepts in the context of the Columbia University expansion by exploring public participation and community engagement issues, including the controversial use of eminent domain in this case. The community benefits agreement developed as part of the expansion plan is examined, as are the impacts of displacement and gentrification resulting from the expansion.

Matt Festa

May 24, 2010 in Community Design, Development, Eminent Domain, New York, Politics, Scholarship, Sustainability, Takings, Urbanism | Permalink | Comments (0) | TrackBack (0)

Way on Informal Homeownership

Heather K. Way (Texas) has posted Informal Homeownership in the United States and the Law, from St. Louis University Public Law Review, Vol. 29, No. 1 (2009).  The abstract:

This article examines how millions of lower-income families in the United States attempt to acquire title to their homes informally, outside the mortgage market and instead through mechanisms such as lease-to-own contracts and intestacy. Many of these families are left holding inferior and insecure title to their homes--if they hold title at all. The article explores the benefits and pitfalls of "informal homeownership" and the legal structures that perpetuate disparties between formal and informal homeownership. The article then proposes a series of legal reforms to help ensure that the American legal system provides lower-income families with better opportunities to obtain secure title to their homes.

Matt Festa

May 24, 2010 in Affordable Housing, Community Economic Development, Contracts, Housing, Landlord-Tenant, Mortgages, Real Estate Transactions, Scholarship | Permalink | Comments (0) | TrackBack (0)

Saturday, May 22, 2010

Schwarz in The Atlantic on Gentrification and its Discontents

Benjamin Schwarz has written a fascinating article in The Atlantic called Gentrification and its Discontents: Manhattan never was what we think it was.  The intro:

MICHAEL SORKIN, AN architect and critic, and Sharon Zukin, an urban sociologist, have each written what they describe as books about contemporary New York City—but that’s putting things far too broadly. Zukin’s Naked City does make forays into the white-hot center of hipness, Brooklyn’s Williamsburg, and to rapidly gentrifying Harlem. But the bulk of her book, and all of Sorkin’s Twenty Minutes in Manhattan, is confined to fine-grained observations of the streets and neighborhoods within roughly 20 blocks of their apartments in Greenwich Village—that is, west to the Village’s Meatpacking District and new Gold Coast along West Street, east to the fringes of Alphabet City, north to Union Square, and south to SoHo and Tribeca. This area today is in every sense rarefied, and for most of its history was in crucial ways set apart from the rest of Manhattan, which to some extent leaped beyond it. Still, the precedent for using the Village to draw lessons and issue prescriptions about New York generally, and indeed urban life writ large, was of course sanctified in 1961 by that doughty urban observer and community activist, Jane Jacobs. She largely formed her conclusions in The Death and Life of Great American Cities—the ur-text for contemporary writing about urban life and the most influential American book ever written about cities—by closely reading the neighborhood life around her house on Hudson Street (about six blocks from Sorkin’s apartment and, by my reckoning, about 10 from Zukin’s; it’s all a bit clubby). . . . 

This article asks us to rethink the basic assumption that the urban life Jane Jacobs describes was really a traditional and organic manifestation.  For Jane Jacobs fans like me this is a really intriguing historical argument.  More from the article:

Inevitably, behind cries of decline is a conception, conscious or not, of a time and situation that was better—when the city had a soul. In her invocations of laundries and shoe-repair and hardware stores, Zukin betrays a vague nostalgia, shared by many chronicles of New York (Robert Caro’s The Power Broker, Ric Burns’s documentary New York, Pete Hamill’s memoirs), for the Old Neighborhoods characteristic of what was once an overwhelmingly working-class city. . . . [Noting that the Triangle Shirtwaist fire was only one generation before Jacobs, it] means that even hazy melancholy for the New York of regular Joes with lunch pails returning after a good day’s work to their neighborhoods of kids playing stickball and corner drugstores dispensing egg creams can only evoke scenes pretty much limited to the years of the LaGuardia administration.

Stickball. That cracks me up.  When I lived in Tennessee, I had a friend who loved to insist (with complete knowledge and humor) that because I was from "New York" (well upstate in a suburb of Albany, actually), my childhood must necessarily have been replete with games of stickball in the alley, scampering around with mischievous moppets, stealing apples from the fruit carts, and so on.  But this article's challenge to the Jacobs thesis of urban neighborhood decline is quite serious: 

Thanks to the profound influence that The Death and Life of Great American Cities has exerted, the West Village circa 1960 has come to epitomize—really to be the blueprint for—the urban good life. But in its mix of the new and the left over, in its alchemy of authenticity, grit, seedy glamour, and intellectual and cultural sophistication, this was a neighborhood in a transitional and unsustainable, if golden, moment. Which meant that it was about to lose its soul. 

It's a great article, challenging to many of the assumptions that people have today about the basis for the urban good life, and you really should read the whole thing.  h/t to Matt Berger.

Also, it's worth noting that this article is part of The Atlantic's special report, The Future of the City.  Lots, lots, and lots of interesting stuff there.  Do check it out.  

Matt Festa

May 22, 2010 in New Urbanism, New York, Planning, Politics, Urbanism | Permalink | Comments (1) | TrackBack (0)

Federal Eminent Domain on the Border?

In another example confirming my belief that every legal and policy issue ultimately has land use implications, here's an article that touches on border control, the federal stimulus package, agriculture, and eminent domain.  From the northern border: Vermont farmer draws a line at US bid to bolster border: Homeland Security threatens to seize 4.9 acres.

FRANKLIN, Vt. — The red brick house sits unassumingly on a sleepy back road where the lush farmlands of northern Vermont roll quietly into Canada. This is the Morses Line border crossing, a point of entry into the United States where more than three cars an hour constitute heavy traffic.

The bucolic setting of silos and sugar maples has become the focus of a bitter dispute that pits one of America’s most revered traditions — the family-owned farm — against the post-9/11 reality of terror attacks on US soil.

The Department of Homeland Security sees Morses Line as a weak link in the nation’s borders, attractive to terrorists trying to smuggle in lethal materials. The government is planning an estimated $8 million renovation here as part of a nationwide effort to secure border crossings.

It intends to acquire 4.9 acres of border land on a dairy farm owned for three generations by the Rainville family. Last month, the Rainvilles learned that if they refuse to sell the land for $39,500, the government intends to seize it by eminent domain.

The Rainvilles call this an unjustified land-grab by federal bullies.

Would it make more sense to close such a little-used facility, whether on fiscal grounds or to avoid resort to federal eminent domain?  

Matt Festa

May 22, 2010 in Agriculture, Eminent Domain, Federal Government, Financial Crisis | Permalink | Comments (0) | TrackBack (0)

Thursday, May 20, 2010

2010 Endangered Places List

The National Trust for Historic Preservation has released its annual list of endangered places.  The list is varied and reflects the expanding nature of preservation.  For example, it includes Connecticut's Merritt Parkway and Virginia's Wilderness Battlefield, which may be the site of a Wal-Mart if litigaton by local residents fails.  Click here for a report by Brian Williams, and here for a link to the full list at the National Trust.

Will Cook, Charleston School of Law

May 20, 2010 in Historic Preservation | Permalink | Comments (0) | TrackBack (0)

Baltimore Public Works Museum

Earlier this month I was in Baltimore for the AALS Clinicians' Conference.  The conference itself was a really fantastic opportunity to learn and be with my fellow clinicians. This year the setting was also quite spectacular - we were at the Renaissance Hotel right in the Inner Harbor.

While walking in the area I've happened upon a little gem, previously unknown to me.  The Baltimore Public Works Museum is a fantastic historic building that is still part of the city's water and sewer system.  Unfortunately the museum is currently closed to the public, due to budget cuts.  I hope to visit it on a future trip to Baltimore, because I'm sure it's quite fascinating (at least to a land use geek like me).

Jamie Baker Roskie


May 20, 2010 in Architecture, Conferences, Water | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 19, 2010

The Community Land Trust Reader

From the folks at the National Community Land Trust:


A new collection of essays, assembled for the first time, traces the roots, evolution, and prospects of the community land trust -- an innovative model of affordable housing shaped by the likes of Henry George and Ebenezer Howard, and flourishing today in hundreds of U.S. communities.

The Community Land Trust Reader, published by the Lincoln Institute of Land Policy and edited by John Emmeus Davis, brings together the seminal texts that inspired and defined the community land trust movement.  The essays - many of which have never before appeared in print, and others written expressly for this volume -- trace the intellectual origins of an eclectic model of tenure that was shaped by the social theories of Henry George, Ebenezer Howard, Ralph Borsodi, and Arthur Morgan, and by social experiments like the Garden Cities of England and the Gramdan villages of India.

For more information about The Community Land Trust Reader, go to

Sounds pretty interesting, although if I bought it I'd have to add it to my huge stack of professional reading that never gets done...

Jamie Baker Roskie

May 19, 2010 in Land Trust, Scholarship | Permalink | Comments (0) | TrackBack (0)