Land Use Prof Blog

Stein on Commercial Leasing in China

Gregory M. Stein (Tennessee) has posted Commercial Leasing in China: An Overview, Cornell Real Estate Law Review, Vol. 8, p. 26 (2010).  The abstract:

In an effort to understand how and why investors and other professionals are willing to participate in China’s unsettled commercial leasing market, I recently interviewed Chinese and Western experts in the real estate field, including lawyers, judges, developers, bankers, government officials, and academics. This Article summarizes my findings about China’s commercial leasing market. China’s new property law provides some insight into how China’s real estate market functions, but a full picture requires an understanding of how these professionals have operated in a legally uncertain environment, both before and after the new law became effective.

Matt Festa

Illegal Spot Zoning

A judge in Charleston, SC, determined by order dated August 20, 2010, that the City of Charleston's attempt to rezone an area within its historic district to allow the construction of an otherwise aesthetically incompatible high-rise hotel constituted illegal spot zoning. Of note for preservation lawyers, the court recognized the standing of the Preservation Society of Charleston and the Historic Charleston Foundation, based on injuries they suffered as owners of preservation facade easements on properties adjacent to the proposed development site.  During trial, the preservation groups argued, among other injuries to their easement programs, that the City's zoning decision diminished the value of their ownership interests in the easements in proportion to the increased risk of loss to the area's historic setting and context, one of the factors employed by the U.S. Department of Interior in granting National Register status.

Ultimately, the court accepted the arguments of the preservation plaintiffs that the City's spot zoning amounted to an arbitrary and capricious decision.  The court reached its decision after noting multiple conflicts between the City's decision to rezone and provisions of the City's governing comprehensive plan that seeks to preserve the lower scale of the historic skyline.  For a copy of the court's order in PDF format, please email me at [email protected].  For a copy of the controlling spot zoning test applied by the court, see Knowles v. City of Aiken, 407 S.E.2d 639 (S.C. 1991).

Will Cook, Charleston School of Law

MSU's Roskie Hall Draws Recreation-Minded Students

My Google alert on "Roskie" (okay, I have an ego) turned up a little gem today - an article from the Bozeman (Montana) Daily Chronicle about students moving into Roskie Hall (on the Montana State campus).  Roskie Hall is named after my great aunt, Gertrude Roskie, who was a home economics professor and dean of the professional schools until she died in a tragic car accident in the mid-1960s.

So what's the land use angle?  Fittingly (as the Roskies have always been interested in natural resources issues) Roskie Hall has something called the Outdoor Pursuits Floor.  According to the MSU campus walking tour literature, "This gives students an opportunity to become involved in outdoor recreational activities while learning more about ecological issues and the environment."  The students might be more interested in the skiing than the ecology, but it's wonderful that MSU is taking advantage of the natural draw of the ski resorts to create an educational experience.  If only I could figure out how to take my students on a skiing field trip in Georgia...

Jamie Baker Roskie

"Let House Prices Fall"

That's what the Calculated Risk blog is calling for in this recent post. 

I agree with much of the analysis as artificially propping up house prices is like drinking a Red Bull instead of getting better sleep every night--it can work in the short term but the longer term crash is hard and bad.

Now if this call for letting prices fall does occur, then the effects on local land use policies will be interesting to follow.  More renovation, less new building.  Increased rehabs, decreased new construction. 

Though Planning Commission hearings may get shorter (less rezoning, fewer development plans and plats), one could envision Board of Zoning Adjustment hearings getting longer as more people seek variances and special exceptions to modify what they currently have. 

Need a larger house but can't afford one (or can't get another mortgage until you sell your current house)...then maybe a variance to allow you to add another bedroom or two by building into that setback could be your answer...

That's the scenario that falling house prices is likely to instigate.  Is that a good thing or not?

Whatever your answer, this is certainly an interesting time to be a land planning and development prof...

--Chad Emerson, Faulkner U.

I'll be presenting at an upcoming US Green Building event here in Montgomery.  If you are in the area and would like to attend, I'll be glad to set it up.  Just email me at [email protected]. 

More details here.

--Chad Emerson, Faulkner U.

Vermont Law Announces Upcoming Takings Conference

From John Echeverria

On November 5, 2010, the 13th Annual Conference on Litigating Takings Challenges to Land Use and Environmental Regulations will be held at Berkeley Law in Berkeley, California.  This year’s conference, sponsored by Vermont Law School, Georgetown University Law Center, Berkeley Law and others, will feature a discussion of constitutional review of property rulings in the aftermath of Stop the Beach Renourishment, takings claims in the era of climate change, eminent domain practice five years after Kelo, takings questions arising from regulation of water use, and other topics. The program brochure and registration information are available here.

Jamie Baker Roskie

 

In Defense of Homeownership

Saturday's New York Times included "In Defense of Homeownership," an article by Ron Lieber in the Your Money section.  As the title suggests, Lieber defends homeownership for some, highlighting the current low interest rates, the forced savings benefits of homeownership, and the typical qualitative benefits of homeownership like community choice and living free of a landlord.  Homeownership has, for decades, been the obvious correct choice for those who could attain it.  Now, homeownership may be the right choice, for some, and renting may make a lot of sense.

Thank you to Tim Iglesias (San Francisco School of Law) for bringing the article to my attention.

Ngai Pindell

Call for Articles - New GW Journal of Energy and Environmental Law

From Lee Paddock at GW

The George Washington University Law School has added a new Journal of Energy and Environmental Law, the first issue of which was published in July (Summer 2010 issue).  The Journal focuses on the intersections among energy, environment and climate.  It is published in collaboration with the Environmental Law Institute and distributed to subscribers of Environmental Reporter News & Analysis, allowing authors to reach a professional audience in addition to the traditional law review audience.  Some of you may find this an attractive audience for your scholarship.  The Journal's Call for Articles follows:

The George Washington University Journal of Energy and Environmental Law (JEEL) is calling for full length articles for its spring issue. Articles should address topics that explore critical issues at the intersection of energy, environment and climate. We are particularly interested in articles addressing international treaties, legislative initiatives in other countries, U.S. federal and state legislation, and case law developments dealing with issues such as:

•energy generation and distribution with a special focus on renewable and
distributed sources;
•facility siting, including transmission infrastructure;
•mechanisms for enhancing energy efficiency in all use sectors;
•public benefit funds, net metering requirements, renewable portfolio standards and other forms of utility regulation;
•implementation of a “smart grid;”
•climate change and carbon sequestration;
•air and water pollution issues related to energy generation;
•water use and water conservation related to energy production;
•land use questions;
•assessment of the environmental impacts of energy production and
energy-intensive activities; and
•resource extraction

JEEL is published twice each year as a supplement to ELI’s Environmental LawReporter (ELR) News & Analysis. Articles must be submitted by September 20, 2010 to: [email protected]. 

Questions can also be directed to Lee Paddock, Associate Dean for Environmental Law Studies, at [email protected].

Jamie Baker Roskie

Just a quick note: this recent Vanity Fair article discussing the complexity of the federal government is a great read--one that further demonstrates some of the potential problems of the growing "federalization" of land use law (ex: the daily 350 federal register).

--Chad Emerson, Faulkner U.

America's Ten Dead Cities

From time to time here on the land use prof blog we post a link to one of the ubiquitous "top" lists that various media outlets like to publish about America's top cities for business, living, etc.  I see a lot of these because a trend in recent years has been for Texas cities to dominate these lists, at least when they are based on economics.  Here's a related, but more depressing list: America's Ten Dead Cities, from the site 24/7 Wall Street.  The cities:  

(1) Buffalo; (2) Flint; (3) Hartford; (4) Cleveland; (5) New Orleans; (6) Detroit; (7) Albany; (8) Atlantic City; (9) Allentown; (10) Galveston.

Read the story to get a sense of the narrative arcs of these once-prosperous cities fallen on harder times. Mostly, it won't surpise you.  Other than the two Gulf Coast cities on the list (both of which (#5 & 10) I still visit regularly), they are mostly post-industrial Northeast or Great Lakes cities (including my birthplace (#8), my hometown (#7), and another place I lived as an adult (#4)).  Of course, Billy Joel was already lamenting the decline of #9 back in 1982 (come to think of it, Bruce Springsteen told a pretty dark tale about #8 before that).  It's interesting for us not only because of how much city economies have driven land use planning, but also because we need to consider the historical trajectory of these cities when considering policies to shape cities going forward.  

Matt Festa

Victory for GGU's EJ Clinic

From Helen Kang at Golden Gate University's Environmental Law & Justice Clinic:

The Environmental Law and Justice Clinic scored another victory for communities disproportionately impacted by pollution.  The clinic's participation before the California Public Utilities Commission significantly contributed to the denial of a utility's request to build a new, 600 mw natural gas-fired power plant in an area that is already home to 14 fossil fuel power plants. GGU students' exceptional legal research and writing enabled the clinic to demonstrate that the utility's territory currently has enormous excess capacity to generate power even during high energy need periods. The commission, however, gave the go ahead for a different natural gas-fired unit in the same area. The Clinic has been working with clients to oppose natural gas-fired plants like these to push renewable energy generation in California. Even natural gas-fired plants have the potential to crowd out new renewable projects, and we have studies showing that energy storage from renewable sources of energy is commercially viable. With our federal government still unable to do anything significant to combat climate change, many of our clients are finding that local action to promote renewables is the way to go.

Helen does fantastic work with her students and I am proud to try to follow in her footsteps in the EJ realm.

Jamie Baker Roskie

Samuelson on The Homeownership Fetish and the American Dream

Robert J. Samuelson (Newsweek/Washington Post economics columnist) has an article called Remodeling the American Dream (Newsweek) or alternatively How a Homeownership Fetish Hurt the American Dream (WaPo).  Samuelson writes about some of the topics we have been talking about here, such as the question of whether the overpromotion of home ownership as national policy inflated the bubble that burst into the mortgage crisis.  The article begins:

The question of what to do about Fannie Mae and Freddie Mac -- the two government-created enterprises that have backed massive loans to the housing market -- involves much more than finance or real estate. It marks the end of an era. The relentless promotion of homeownership as the embodiment of the American dream has outlived its usefulness. . . .

Unfortunately, we let a sensible goal become a foolish fetish.

Samuelson goes on to critique the Fannie/Freddie story but pulls back from the precipice of radical reform in conclusion:

"This is not a good time to make permanent solutions for housing," says Guy Cecala, publisher of Inside Mortgage Finance. The single-minded promotion of homeownership failed and, paradoxically, undermined the American dream. It contributed to the housing "bubble" and favors housing investment over new industries and technologies. But to end it, we need to make haste slowly.

Matt Festa

Remember That Epic "Traffic Jam"...

...that I blogged about recently here at Land Use Prof?

Well, apparently what was being touted as a month long monster jam has now...well...simply...vanished?

As one classic movie aptly noted, this is getting "curiouser and curiouser" every day...

--Chad Emerson, Faulkner U.

Beyond Katrina

I am reading Beyond Katrina: A Meditation on the Mississippi Gulf Coast, by Pulitzer-Prize-winning poet Natasha Trethewey, recently published by the University of Georgia Press. (Professor Trethewey is on the creative writing faculty at Emory University.)  The book is a meditation on identity, place, race, and the impact of family.  It is also about the environmental damage wrought by industry and the tourist trade prior to Katrina.  I knew nothing about Trethewey or her writing before I heard her on WHYY's Fresh Air last week, but I was so captivated by her story that I went straight out and bought her book.  At 125 pages, it's a quick but compelling read.

Jamie Baker Roskie

Fanizzo on Property Management Under the Antiquities Act

Kelly Y. Fanizzo (Temple) has posted Politics, Persuasion, and Enforcement: Property Management Under the Antiquities Act, from the 13th Annual US/ICOMOS International Symposium, Economic Benefits, Social Opportunities, and Challenges of Supporting Cultural Heritage for Sustainable Development, May 20-22, 2010 and adapted from her article Separation of Powers and Federal Land Management: Enforcing the Direction of the President under the Antiquities Act, ENVIRONMENTAL LAW, Volume 40, Issue 3.  The abstract:

Recognizing the tremendous loss to the nation that results from unchecked collecting and vandalism, Congress passed the Antiquities Act in 1906 to preserve threatened historic and scientific structures, ruins, and objects and protect against the loss of valuable scientific data. Granting considerable authority to the President, the Antiquities Act provides for the designation of national monuments through the withdrawal of public land. Over the past decades, numerous monument designations have raised questions about the limits of the President’s role in federal land management. But practical questions looming just beyond the President’s ability to designate a national monument only recently surfaced in a challenge to the Bureau of Land Management’s (BLM) grazing policies in the Sonoran Desert National Monument. This case before the Arizona District Court focused on the BLM’s management of the national monument, and not the process of its designation. This challenge sparked a discussion on how the protective intent of a monument proclamation can be best achieved. It asked what is the President’s authority to manage a national monument and when can a third party sue to force an executive agency to comply with the monument proclamation’s terms. This paper argues that consistent judicial review of an agency’s management of a monument can help national monument designations maintain their protective purpose. In the context of the Antiquities Act and more broadly, using this challenge as a case study allows us to consider what teeth are left in this law, now on the books for over a hundred years, to protect significant historic and scientific resources.

Matt Festa

The Mother of All...Traffic Jams?

I kind of hate it when writers blithely attach "The Mother of..." label to the front of something that seems, while significant, hardly unprecedented.

The Mother of This...The Mother of That...The Mother of All [Insert].  These days, way too many events are undeservedly given this once-revered title of exaggeration.

This instance, though, does not fall into that category of maternal hyperbole:

A traffic jam stretching more than 60 miles in China has entered its ninth day with no end in sight, state media reported. Cars and trucks have been slowed to a crawl since August 14 on the National Expressway 110, which is also known as the G110, the major route from Beijing to Zhangjiakou, Xinhua News reported.

Officials expect the congestion to continue until workers complete construction projects on September 13, the report said.

Is this even possible? A month long traffic jam.

I mean, at some point, doesn't something like this evolve beyond simply being called a traffic jam.  

Either something is being lost in the telling of the story or we need a new term for this type of epochal vehicular standstill. 

Readers...any ideas?

--Chad Emerson, Faulkner U.

2011 ALPS Meeting

I wasn't able to make it to last year's first Association of Law, Property, and Society meeting but heard fantastic things about it. 

That's why I was excited to see that details for the 2011 meeting have been announced.

Learn more here about the March 4-5 event in D.C.

--Chad Emerson, Faulkner U.

YIMBYs

In the land use community the NIMBY concept--"not in my back yard"--is a nearly omnipresent factor in development issues, comprehensive planning, regionalism, and other law and policy issues.  I'd even say that NIMBY might be the land-use concept that has been the most widely established in popular culture. For a twist on the concept, Foreign Policy magazine has an article by Sylvie Stein called The YIMBYs: Five places saying "yes, in my backyard" to the nasty stuff that no one else wants.  

The FP article is about national policies (rather than local land use decisions) to engage in economic activities that are unpopular elsewhere, such as opium growing (Tasmania), nuclear waste (Russia), offshore drilling (Mexico), trash (Ghana), and prisons (Netherlands).  But I thought it would still be interesting for us to contemplate the concept of the YIMBY.  And it wouldn't be too surprising, especially in a down economy, if the YIMBY factor started to emerge in local politics.  It could be strictly for economics/jobs/tax base, or perhaps even as a sort of upside-down Tiebout model where localities compete for the economic benefits of activities traditionally shunned by NIMBYs and residents follow.  Have any of you seen something that could be described as a local YIMBY?

Matt Festa

Rybczynski in Slate on Ordinary Places

Witold Rybczynski, Slate's architecture critic, UPenn prof, and author of many fascinating books, has an article--well, they call it a "slideshow"--called Ordinary Places: Rediscovering the parking lot, the big-box store, the farmer's market, the gas station.  It's a nice presentation with photos and commentary and well worth taking a quick look.    

Rybczynski has written scads about great public spaces, traditional neighborhood development, and so on, so he certainly isn't a defender of sprawling suburbia.  So I think that his comments on the "ordinary places" in the slideshow are interesting, and make a good point about finding value in the spaces in which we live.  Rybczynski cites landscape historian J.B. Jackson's concept of the "vernacular landscape."  For example, here are some counterintuitive observations on that evil, un-green scourge of our soulless car-bound culture, the Parking Lot:

Whether you are going to a farmers market or a big-box store, chances are you will have to park. Parking lots, rather than squares and plazas, are the most common public outdoor open spaces in America. They are complicated social spaces, where travelling gives way to arriving, driving to walking, privacy to publicness—and vice versa. Although inevitably described as "seas of asphalt"—they look bleak in photographs—they are orderly, clean places; Jackson once referred to their "austere beauty." Parking lots are also surprisingly civic. People politely observe rules of behaviour for the sake of the common good, parking between the lines, staying out of the handicapped spaces, driving slowly. It is one place where cars and pedestrians happily coexist.

Interesting stuff; definitely check out the link for the photos and commentary.

Matt Festa

Falling Arches?

Say it isn't so!:

As civic leaders reveled in last week's unveiling of grand plans to remake the Gateway Arch grounds, there was an ominous element not discussed. Almost 45 years into its reign atop the St. Louis skyline, the 630-foot monument is suffering from growing rust and decay. And nobody knows how extensive.

Corrosion, some of it feared aggressive, and severe discoloration of the stainless steel skin have long been present, according to engineering reports reviewed by the Post-Dispatch.

The documents and interviews with metallurgists indicate that the remedy could be as minor as an "expensive" surface cleaning or as elaborate as a full-blown restoration. One report, completed in 2006, called for a deeper study, for which the National Park Service says it only recently obtained funding.

"This is not yet a health and safety issue," said Frank Mares, the deputy superintendent of the Jefferson National Expansion Memorial, which oversees the Gateway Arch. "(The report) says learn more about what's going on. It's something that requires further study."

Okay, so the infamous Arch isn't likely to fall from the sky anytime soon but, for some reason, it just feels unsettling to hear about something iconic and purely Americana as the St. Louis Arch showing its age.

It's construction in the 1960s really marked a pinnacle in American post-War II building prowess.  I remember visiting as a young child and being scared to death of the ride up into the arch (I thought you ended up having to travel upside down to get back to the ground.  Not the case.)

At the same time, I was in awe (and still am) of its simplicity and beauty and symbolism. 

Even if we can't retrofit all the dying malls and re-pave the asphalt failing roads, surely we can fix the Arch......

--Chad Emerson, Faulkner U.