Tuesday, September 21, 2010

A Return of Neighborhood Schools?

One of the biggest losers in the spread of sprawl has been the good ole' neighborhood school.  If you're like me, you might have walked or biked to elementary school with other kids from the neighborhood. 

Unfortunately, the era of crossing guards and bike racks has suffered as school systems moved toward more remote school locations that were not legally and/or safely accessible by walking or biking.

A major driver in this change was the adoption of minimum school site acreage laws by numerous states.  Under these laws, a new school site had to be composed of a minimum number of acres in order to be built.   Oftentimes, this "minimum" was so high that smaller school sites embedded in neighborhoods were not legal as a matter of right.

Awhile back, I wrote a law review article that discussed this issue and the damaging effects it has had on student health and academic performance (among other things).  Fortunately, the trend is now away from minimum site acreage requirements (though, here in Alabama, the Department of Education refuses to get on-board with this and remains stuck in the past on this important issue).

One example is in South Carolina where the abandonment of large minimum acreage standards has seen the return of a neighborhood school in at least one community.

Read more about this exciting transformation here.

Chad Emerson, Faulkner U.

September 21, 2010 | Permalink | Comments (0) | TrackBack (0)

Friday, September 17, 2010

Increased Density For...Cattle?

A good friend of mine who used to live in Montgomery is taking a leading role in developing sustainable land practices (you can read more about the company Chad Adams works with here).

He recently forwarded me a fascinating Time Magazine article that discusses how increasing the number of cattle grazing on a parcel at one time can actually lead to increased land productivity.

Sound counter-intuitive?

Read the article here that explains why it works.

Chad Emerson, Faulkner U.

September 17, 2010 | Permalink | Comments (0) | TrackBack (0)

Planning, Law, and Property Rights: Fifth International Conference

From Eran Kaplinsky (Law, University of Alberta):

The International Academic Association on Planning, Law and Property Rights will be holding its fifth annual conference on May 26–28, 2011, at the Faculty of Law, University of Alberta in Edmonton, Alberta, Canada. A call for papers can be found here: http://www.law.ualberta.ca/plpr/2011/poster.pdf.  For further information please contact 

Matt Festa

September 17, 2010 in Comparative Land Use, Conferences, Planning, Property Rights, Scholarship | Permalink | Comments (0) | TrackBack (0)

Constitution Day

Hey everyone, it's Sept. 17, and you know what that means: Constitution Day!  (Seems like it just sneaks up on you every year, doesn't it?)  Land use law intersects with so many constitutional issues: property rights, takings, religious land use, free speech, environmental regulation, police powers, federalism, housing policy, zoning, and so on.  I often think of the land use field as the intersection of private property and public regulation, in the shadow of constitutional law.

So have a happy Constitution Day.  Here is a page of Constitution Day Resources from the Library of Congress. 

Matt Festa 

September 17, 2010 in Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Why Nothing is Perfect...

As readers probably recognize, I'm a big supporter of new urbanism and other efforts toward more sustainable development.  These approaches have many benefits both in the short term and long.

But, like most things, pragmatism is also part of that reality.

This interesting blog essay by Hazel Borys explores one such issue:  children and schooling.

Click here to read Confessions of a Former Sprawl Addict.  It's a very honest look at the reality of dense urbanism and family life.

--Chad Emerson, Faulkner U.

September 17, 2010 | Permalink | Comments (0) | TrackBack (0)

Thursday, September 16, 2010

Judicial Takings--Back to the Supreme Court?

Ilya Somin has an interesting post at the Volokh Conspiracy titled Is the Judicial Takings Issue Headed Back to the Supreme Court?  Somin notes that in Stop the Beach Renourishment, the Court split 4-4 on the merits of the judicial takings issue, and then describes a Montana state court case, PPL Montana v. State of Montana, that has been petitioned for certiorari.  The case turns on a favorite topic of mine, the constitutional definition of property with respect to "navigable waters."  Somin offers some analysis from Ilya Shapiro of the Cato Institute, who authored an amicus brief supporting cert.  While it's far from a sure thing to be granted cert, Somin thinks that it could potentially present the judicial takings issue more squarely, and he notes:

If the Supreme Court takes this case, it may be less willing to grant broad discretion to state courts than it was in Stop the Beach, because the relevant state law doctrine (the definition of “navigable”) is derived from federal law.

 Matt Festa

September 16, 2010 in Beaches, Caselaw, Coastal Regulation, Constitutional Law, Environmental Law, Federal Government, Judicial Review, Property Rights, Scholarship, State Government, Supreme Court | Permalink | Comments (0) | TrackBack (0)

USAID Launches "Global Waters" Newsletter

From Dr Rajiv Shah of USAID:

Global demand for freshwater is doubling every 20 years, yet water is becoming increasingly scarce in a number of countries, including many in the developing world.  As you all know well, water is central to the success of our sustainable development efforts.  Whether for domestic use, agriculture, industry, energy, or the environment, the availability of adequate supplies of good quality freshwater underpins the hopes and expectations of billions of people for improved well-being and affluence.

In his inaugural address, President Obama pledged to help the developing world address its water challenges. And last March, Secretary Clinton challenged USAID and the State Department to elevate our freshwater access efforts and to ensure that we look at these challenges in an integrated manner. Climate change, food security and global health issues are three of our top priorities, and water is integrally linked to each challenge.  In order to maximize the impact from our development investments we must enhance integrated programming, utilize smart science and innovation, build strategic partnerships, and learn from experience.

As one step on this path, I am pleased to announce the launch of Global Waters – the first newsletter dedicated to the broad portfolio of water-related activities of the United States Agency for International Development.  Through this new bi-monthly newsletter, we wish to share with you the many challenges and opportunities, and the approaches and lessons learned that reflect upon USAID programming in the water arena. Each issue will highlight the work of our many implementing partners, as well as some of the more intimate stories of how the Agency’s work directly affects individuals, families, and communities around the globe.

If you wish to receive Global Waters on a regular basis, I encourage you to subscribe today, and to share this with your colleagues and partners who may find this of interest.  You can do so by clicking on this link, where you will find the full newsletter and subscription details. I hope you will take time to peruse Global Waters and continue to help us build public support and understanding for these critical development challenges.

Jamie Baker Roskie

September 16, 2010 in Environmentalism, Globalism, Scholarship, Water | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 15, 2010

Dead Cities?

Remember the old, abandoned "ghost" towns of the West.  Settlements that dried up and withered away as things like the gold rush faded. 

The Business Insider site is now offering what it considers to be a new era of "Dead Cities"--places whose fate is forever sealed.  Granted, the authors are not suggesting that these cities will be permanently abandoned any time soon. 

Instead, this purported death will be on a somewhat slower yet very clear terminal descent.

Find out what cities made the list by clicking here.

Chad Emerson, Faulker U.

September 15, 2010 | Permalink | Comments (0) | TrackBack (0)

Shirley Sherrod to Speak at EJ Conference in Gainesville, Ga

By now probably most of you have heard the story of Shirley Sherrod, most recently of the USDA, forced to resign after a highly edited version of an old speech she gave to the NAACP made it seem as if she is unsympathetic to white farmers. (In fact, she was making the opposite point in her speech.)  While the agency has since offered to rehire her, she has decided to move on. (Bill O'Reilly even apologized to her for showing the edited clip on his show.)

She will be speaking October 9th in Gainesville, Georgia at a conference on environmental justice sponsored by the Newtown Florist Club. As I've blogged before, NFC is a client of our clinic and one of the oldest and most effective community organizations in Georgia.  The conference coincides with the Club's 60th anniversary, and I will also be speaking on a panel on October 8th regarding how EJ communities can work with lawyers.  Should be pretty interesting!  If you or someone you know might be interested in attending the conference, contact NFC.

Jamie Baker Roskie

September 15, 2010 in Agriculture, Conferences, Environmental Justice | Permalink | Comments (0) | TrackBack (0)

Burdon on Wild Law

Peter D. Burdon (Adelaide) has posted Wild Law: The Philosophy of Earth Jurisprudence, Alternative Law Journal, Vol. 35, No. 2, 2010.  The abstract:

Wild law or Earth Jurisprudence is an emerging theory of law and governance that seeks to evolve law in a fashion that recognises our relationship to the broader Earth community. In this article, the author introduces and articulates some fundamental concepts being developed by theorists in this area. The author also discusses the recent constitutional amendment in Ecuador that granted nature the right to exist, persist and flourish.

Matt Festa

September 15, 2010 in Comparative Land Use, Environmental Law, Environmentalism, Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

Shapiro and Burrus on Judicial Takings and Scalia's Shifting Sands

Ilya Shapiro (Cato) and Trevor Burrus (Cato) have posted Judicial Takings and Scalia's Shifting Sands, forthcoming in the Vermont Law Review, Vol. 35.  The abstract:

In this article, we examine the background of the judicial takings doctrine, discuss the Supreme Court’s ruling in Stop the Beach, react to that decision in light of Cato’s amicus brief, and contrast Justice Antonin Scalia’s views of Substantive Due Process as expressed in Stop the Beach with that in another high-profile case whose plurality opinion he joined, McDonald v. City of Chicago, to argue that the judicial takings doctrine is necessary to a robust constitutional protection of property rights.

Matt Festa

September 15, 2010 in Beaches, Caselaw, Coastal Regulation, Constitutional Law, Eminent Domain, Environmental Law, Federal Government, Judicial Review, Property Rights, Scholarship, State Government, Supreme Court, Takings | Permalink | Comments (0) | TrackBack (0)

Monday, September 13, 2010

The Perils of Too Many Veggies...

As the popularity of home farming and other forms of micro-farming continues to grow (pun intended), it won't be a surprise to see more disputes like this one resulting from the single and separate use formats of today's typical Euclidean-style zoning codes:

DeKalb County is suing a local farmer for growing too many vegetables, but he said he will fight the charges in the ongoing battle neighbors call “Cabbagegate.” Fig trees, broccoli and cabbages are among the many greens that line the soil on Steve Miller’s more than two acres in Clarkston, who said he has spent fifteen years growing crops to give away and sell at local farmers markets.


In January, Dekalb County code enforcement officers began ticketing him for growing too many crops for the zoning and having unpermitted employees on site. Miller stopped growing vegetables this summer and the charges were put on hold as he got the property rezoned. Two weeks after approval, however, his attorney said the county began prosecuting the old charges, saying he was technically in violation before the rezoning.

As someone with fig trees, sunflowers, blackberry bushes, and a host of other veggies and fruits growing in his backyard, the question for me remains:  "How much is too much when it comes to growing local and healthy food in your own backyard?"

Dare I test fate (and the HOA) and even think about healthy and fresh eggs from a backyard source?

--Chad Emerson, Faulkner U.

September 13, 2010 | Permalink | Comments (2) | TrackBack (0)

APA Announces Student Writing Competition

From Alan Weinstein at Cleveland State:

The Planning & Law Division of the American Planning Association announces its Twenty-eight Annual Smith-Babcock-Williams Student Writing Competition. The Competition, which honors the memory of three leading figures in American city planning law (R. Marlin Smith, Richard Babcock, and Norman Williams) is open to law students and planning students writing on a question of significance in planning, planning law, land use law, local government law or environmental law.

The winning entry will be awarded a prize of $2,500 and submitted for publication in The Urban Lawyer, the law journal of the American Bar Association's Section of State & Local Government Law. In addition to the first prize, the Competition offers a second place prize of $1,000 and up to two Honorable Mentions of $250.

The deadline for submission of entries is June 6, 2011 and winners will be announced by September 16, 2011.  Our past experience has shown that teachers in planning, planning law, land use law, local government law or environmental law are in an ideal position to stimulate student interest in research and writing and to encourage participation in the Competition. Each year, many of the entries appear to have been prepared initially for various courses or seminars. We hope you will add your support to the Smith-Babcock-Williams Student Writing Competition by encouraging your current and past students to submit entries.

Contact Prof. Weinstein for a copy of the rules and submittal information

Jamie Baker Roskie

UPDATE: Apologies to those of you who were confused by the previous version of this announcement, which had the deadline as June 6, 2010.

September 13, 2010 in Planning, Scholarship, Teaching | Permalink | Comments (1) | TrackBack (0)

Notre Dame Symposium on Urban Development

The Notre Dame Journal of Law, Ethics, & Public Policy has published a Symposium on Urban Development in the 21st Century: Notre Dame Journal of Law, Ethics & Public Policy, Volume 24, Number 1, 2010. 

FOREWORD: A New Urban Vision for a New Urban Reality, Adolfo Carrión, Jr., p. 1
On Public Plaintiffs and Private Harms: The Standing of Municipalities in Climate Change, Firearms, and Financial Crisis Litigation, Raymond H. Brescia, p.7
Can Urban Solar Become a "Disruptive" Technology?: The Case for Solar Utilities, Joel B. Eisen, p.53
American Cities as Firms in the 21st Century—Or, Should Philadelphia Move to New Jersey? Richardson Dilworth, p.99
The Order-Maintenance Agenda as Land Use Policy, Nicole Stelle Garnett, p.131
Four Land Use Vignettes from Unzoned(?) Houston, John Mixon, p.159
An Urban Slice of Apple Pie: Rethinking Homeownership in U.S. Cities, Georgette Chapman Phillips, p.187
Justice and the Just Compensation Clause: A New Approach to Economic Development Takings, John T. Goodwin, p.219
Old Shtetlism and New Urbanism: Uncovering the Implications of Suburban Zoning Laws for Community Life through the Jewish-American Experience, Amir Steinhart, p.255

It looks like a fascinating group of pieces.  Now if only they could beat Michigan.  

Matt Festa

September 13, 2010 in Community Economic Development, Development, Economic Development, Eminent Domain, Environmental Law, Housing, Houston, Local Government, Property, Scholarship, Takings, Urbanism, Zoning | Permalink | Comments (0) | TrackBack (0)

Sunday, September 12, 2010

Here Come the HELOCs?

The Real Estate Channel has an interesting new article that discusses the looming problems posed by HELOCs (aka second mortgages or home equity lines of credit).

Overall, the article does a very good job explaining the sometimes amazing examples of how these lending tools overwhelmed borrowers.  The "amazing' part is how these HELOCs were sometimes used to finance land purchases in entirely different states--with one example being Californians who took out home equity lines to purchase property in Austin, Texas.

What a mess.

--Chad Emerson, Faulkner U.

September 12, 2010 | Permalink | Comments (0) | TrackBack (0)

Saturday, September 11, 2010

The Future of Big Box Growth...

One of my students observed the other day that the number of large retail buildings (big boxes like Lowes, Kohls and Walmart) being built seems to have really slowed.  I agreed on an anecdotal level because you just don't seem to see as many new big boxes under construction.  

If this is the case, then it obviously could have a huge effect on land use patterns since big boxes where the anchors for so many commercial development sites over the last two decades.

All of this led me to a recent guest post on the Zero Hedge blog that includes some fascinating insights into the future of big box development:

Retail America has run directly into a brick wall. Below are charts detailing the expansion history of four of the most admired retailers in America. Lowes grew their store count from 600 to 1,700 over the course of the decade, a 183% increase. Wal-Mart grew their store count from 4,000 to 8,500, a 113% increase. Target grew their store count from 1,000 to 1,750, a 75% increase. Kohl’s grew their store count from 300 to 1,050, a 250% increase. Same store sales are the true measure of a retailer’s health. When comp store sales are +5% or better, retailers make substantial profits and confidently build new stores. As the charts below clearly show, comp store sales have been in a substantial downtrend since 2006. The new stores that have been built in existing markets are over cannibalizing their existing stores.

Lowes has 500 more stores today than it had in 2005, $4 billion more sales, and $1 billion less profits. Target has 340 more stores today than it had in 2005, $12 billion more sales, and the same profit. Kohl’s has 240 more stores than it had in 2006, $1.6 billion more sales, and $100 million less profit. Only Wal-Mart has kept the profits flowing, mostly due to its international expansion. The tough times have only just begun for these retailers.

These are some very startling numbers.  If accurate, then the whole commercial development system of anchor store, sub-anchors, narrow bays, and outparcels is unlikely to reappear anytime soon on any level approaching the past.

--Chad Emerson, Faulkner U.

September 11, 2010 | Permalink | Comments (2) | TrackBack (0)

Friday, September 10, 2010

Burger on Local Initiatives, Preemption, and the Market Participant Exception

Michael Burger (Roger Williams) has posted It's Not Easy Being Green: Local Initiatives, Preemption Problems, and the Market Participant Exception, published in the University of Cincinnati Law Review, Vol. 78, No. 835, 2010.  The abstract:

This Article considers whether the market participant exception should be interpreted to exempt local climate change and sustainability initiatives from the "ceilings" imposed by existing environmental laws and pending federal climate change legislation. In the decades-long absence of federal action on climate change, local governments -- along with the states -- positioned themselves at the forefront of climate change and sustainability planning. In fact, state and local actions account for most of the nation's greenhouse gas reduction efforts to date. Yet, front-running localities are being limited by a preemption doctrine that fails to account for both the motives behind their initiatives and the actual effect they have on federal schemes. Indeed, while environmental law has long sought a balance between federalization and devolution of regulatory authority, current preemption doctrine, as applied to federal "ceilings," almost exclusively favors federalization values. The market participant exception offers a means to correct this imbalance. This Article begins by providing a detailed discussion of the evolution of the market participant exception in the dormant Commerce Clause and preemption contexts and unpacking the rationales behind federal "floors" and "ceilings." It then analyzes the collapsing roles of governments and corporations as regulators and market actors, and recasts the work of local governments undertaking climate change initiatives as a "race to the top" of the market for "green" places to live, work, and invest. The Article then articulates a revised test for the market participant exception and illustrates through several case studies how the test can successfully empower local autonomy and enable local innovation without sacrificing the benefits of federal law.

Looks like an interesting article, and I can say with some confidence that it's the best land use article I've seen to riff off of a Kermit the Frog single (although now that I think about it, I'm surprised that more authors haven't noted the Muppet-like travails of Being Green).

Matt Festa

September 10, 2010 in Climate, Constitutional Law, Environmental Law, Federal Government, Green Building, Local Government, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, September 9, 2010

Lecture at Florida State

From Robin Craig at FSU:

    Florida State University College of Law, Distinguished Environmental Lecturer Series.  Presented by the         Journal of Land Use & Environmental Law.

    Kirsten Engel, Professor of Law, University of Arizona James E. Rogers College of Law, "Should Climate         Change be the Subject of State Public Nuisance Liability Lawsuits?"

    Wednesday, September 22, 3:15 p.m., BK Roberts Hall Room 102.

    Followed by a reception in the Rotunda.

Jamie Baker Roskie

September 9, 2010 in Climate, Teaching | Permalink | Comments (0) | TrackBack (0)

Layard on the Law of Place

Antonia Layard (Cardiff Law School) has posted Shopping in the Pubic Realm: The Law of Place, published recently in the Journal of Law and Society, Vol. 37, p. 412, (2010).  The abstract:

Through a case study based in Bristol, this article explores how the ‘law of place’ has transformed multiple heterogeneous city centre spaces into a single homogenous and commodified privately owned retail site. Drawing on de Certeau, Lefebvre, and humanistic geographers including Tuan, the article explores how law facilitates spatial and temporal enclosure through conventional understandings of private property, relying on techniques of masterplanning, compulsory purchase, and stopping up the highways. It suggests that the law of place draws on binary spatial and conceptual distinctions to apparently separate places from spaces, applying different legal rules either side of an often invisible boundary line. The article questions this legally facilitated spatial and conceptual enclosure, particularly as it restricts spatial practices within the spatial realm. It concludes by rejecting an urban ‘right to roam’ as insufficiently transformative, calling instead for a broader interpretation of Lefebvre’s ‘right to the city’ instead.

Layard's article will be of particular interest to anyone thinking about the placement of modern urban planning issues within the broader context of the humanities.  

Matt Festa

September 9, 2010 in Comparative Land Use, Development, Downtown, History, Property Theory, Scholarship, Urbanism | Permalink | Comments (0) | TrackBack (0)

Foster on Enabling Collective Management of the Urban Commons

Sheila Foster (Fordham) has posted Privatizing the City? Enabling Collective Management of the Urban Commons.  The abstract:

Collectively shared, open access urban resources are subject to the same rivalry and free-rider problems that Garrett Hardin wrote about in his Tragedy of the Commons tale. Like Hardin’s “pasture open to all,” the “urban commons” - local streets, parks, open public spaces, and various neighborhood amenities - can suffer from overuse and misuse if improperly managed or regulated. Tales abound in many cities of dirty and unsafe streets, parks, and vacant lots that were once thriving urban spaces but became overrun and degraded in a classic tragedy of the commons scenario. Proposed solutions to urban commons “tragedies” by legal scholars tend to vacillate between two prevailing governance approaches developed over time as a response to Hardin’s tale. They either propose a system of private property rights in the commons or a central government command or control regime. 

This Article highlights a third way, based on the work of Nobel prize winning economist Elinor Ostrom, in which common urban resources can be, and indeed are being, managed by groups of users in the absence of government coercion and without transferring ownership of the resources into private hands. Business Improvement Districts (BIDs), park conservancies, neighborhood foot patrols, and community gardeners are ubiquitous examples of urban commons management undertaken by private actors who overcome collective action problems to steward a local resource that has become rivalrous and degraded. In each of these instances, local governments play an important role in enabling users to overcome free-riding and coordination problems, create incentives and lend support private actors who cooperate with each other to manage the local resource. This type of enabling of cooperation among private actors to manage an open access, common resource is what I call “collective action enabling.” This enabling role of local governments is an important and unique one in this context, and has been largely neglected by legal scholars.

The Article delineates and develops the concept of collective action enabling, and compares and contrasts it with other policy mechanisms along the traditional public-private spectrum of approaches to urban commons management. By articulating the contours of collective action enabling, I hope to bring a theory to a widespread practice in cities across the country and to provoke a more sustained examination of the relationship between public and private actors in managing common urban resources.

Matt Festa

September 9, 2010 in Local Government, Planning, Property Theory, Scholarship, Urbanism, Zoning | Permalink | Comments (0) | TrackBack (0)