Land Use Prof Blog

Happy Halloween: Top 10 Haunted Homes in U.S.

From the Zillow Blog comes this entry: Top 10 Haunted Homes in U.S.  Here's the list:

1. Winchester House, San Jose CA

2. Lizzie Borden House (you know, the girl with the axe who gave her parents 40/41 whacks), Fall River MA.

3. LaLaurie Mansion, New Orleans LA

4. The White House, Washington DC

5. Franklin Castle, Cleveland OH

6. Sprague Mansion, Cranston RI

7. Chambers Mansion, San Fransisco CA

8. Mytrles Plantation, St. Francisville LA

9. Stranahan House, Ft. Lauderdale FL

10. Whaley House, San Diego CA

Go and read the blog post for the interesting stories behind each haunted house.  The post explains why it left the Amityville Horror house off the list, but that's not my beef, of course: where is the house from Stambovsky v. Ackley?  That's the property law casebook staple, where after a real estate transaction, the buyer learned that the house was reputedly possessed by a poltergeist.  The NY Appellate Division (1991) held that for purposes of rescinding the contract, the house was haunted as a matter of law.  And it's beyond dispute that Property casebooks have terrified generations of law students!

Happy Halloween everyone, and watch out for the Dead Hand.  

Matt Festa 

Ellickson on Carol Rose and Universally Recognized Signals of Property Claims

Robert C. Ellickson (Yale) has posted The Inevitable Trend Toward Universally Recognized Signals of Property Claims: An Essay for Carol Rose, forthcoming in the William & Mary Bill of Rights Journal, Vol. 19, March 2011.  The essay was prepared for the 2010 Brigham-Kanner Property Rights Conference honoring Professor Rose.  The abstract:

Carol Rose has identified the study of the communication of property claims as her central scholarly project. In this tribute to her distinguished career, I discuss whether a method of communicating a property claim - for example, the building of a fence around cultivated land - tends to be universal or to vary from one interpretative community to another. On account of increasing urbanization and long-distance travel, a property claimant in a given cultural setting must anticipate that some passersby will be total strangers. I contend that this reality prompts claimants to favor furnishing nonverbal visual cues, such as fences, that people of all backgrounds should be able to recognize.

Matt Festa

Barros on the Complexities of Judicial Takings

Benjamin Barros (Widener)--the Property Prof Blogger--has posted The Complexities of Judicial Takings.  The abstract:

In last term’s Stop the Beach Renourishment Inc. v. Florida DEP, the Supreme Court for the first time squarely confronted the question of whether a judicial action could ever be considered an unconstitutional taking of private property. The Court unanimously rejected the judicial takings claim, but the justices issued a highly fragmented set of opinions. No justice was able to command a majority on any of the major conceptual issues presented by the judicial takings question. As a result, the Court dramatically raised the profile of judicial takings question, but left all of the major issues open.

In this article, I argue that the judicial takings issues are even more complicated than the Court’s fractured opinions suggest. In particular, I argue that three factual distinctions among types of cases that largely were ignored in Stop the Beach can lead to dramatically different outcomes in matters of judicial takings standards, procedures, and remedies. I analyze each of the substantive and procedural issues raised by judicial takings in light of these factual distinctions. Along the way, I argue that judicial takings does not require a unique standard different from the Court’s existing takings standards, and that judicial takings (and regulatory takings more broadly) should apply to government actions that mandate transfers of private property to public ownership, but not to government actions that mandate transfers of property between private persons.

Matt Festa

Four Year Old Bicyclist Found Potentially Liable in Woman's Death

Here's The New York Times version of a story that I know is getting lots of play.  Usually I'm one to give judges the benefit of the doubt but, in this case, my first reaction is, "Seriously?!"

The suit that Justice Wooten allowed to proceed claims that in April 2009, Juliet Breitman and Jacob Kohn, who were both 4, were racing their bicycles, under the supervision of their mothers, Dana Breitman and Rachel Kohn, on the sidewalk of a building on East 52nd Street. At some point in the race, they struck an 87-year-old woman named Claire Menagh, who was walking in front of the building and, according to the complaint, was “seriously and severely injured,” suffering a hip fracture that required surgery. She died three months later.

Her estate sued the children and their mothers, claiming they had acted negligently during the accident. In a response, Juliet’s lawyer, James P. Tyrie, argued that the girl was not “engaged in an adult activity” at the time of the accident — “She was riding her bicycle with training wheels under the supervision of her mother” — and was too young to be held liable for negligence...

[The child's lawyer] had also argued that Juliet should not be held liable because her mother was present; Justice Wooten disagreed.

“A parent’s presence alone does not give a reasonable child carte blanche to engage in risky behavior such as running across a street,” the judge wrote. He added that any “reasonably prudent child,” who presumably has been told to look both ways before crossing a street, should know that dashing out without looking is dangerous, with or without a parent there. The crucial factor is whether the parent encourages the risky behavior; if so, the child should not be held accountable.

"Reasonably prudent child"?  I realize the judge is just quoting the standard here, but I can't believe a court ever that a "prudent" child could ever exist?  Obviously those judges never spent any time around small children.  Children this age require constant supervision due to their particular lack of prudence.

Okay, you may be asking, but what does this have to do with land use?  Well, my impulse to blog this came from some of the reader comments to the Times story, to the effect that the child shouldn't have been riding on the sidewalk but on the street or a trail.  Other commenters, rightly, point out that it's certainly not safe to encourage small children to ride their bikes on the street.

Also, although I know bicycle advocates say that cyclists are actually safer riding in the street than on a sidewalk, even some avid cyclists I know sometimes feel safer on the sidewalk.

The Wisconsin Department of Transportation has the following suggestions for cyclists:

Only small children learning to ride should use sidewalks for regular riding. They should have adult supervision even on sidewalks or in the family driveway. [Emphasis added - at least someone has some sanity about kids on bikes with training wheels.]

All other bicyclists should learn to ride on streets or marked bicycle lanes, except in rare circumstances, such as when a wide sidewalk is part of a designated bicycle route.

Studies have shown that the sidewalk is considerably less safe for bicyclists than the street. The bicyclist is never required to ride on paths or sidewalks. Local jurisdictions can pass ordinances allowing bicycling on sidewalks if they have unusual circumstances where the sidewalk is safer for certain bicyclists.

So, food for thought for parents and cyclists alike.

Ironically, while I'm promoting cycling safety with this post, I am blowing out my carbon footprint on a flight from Atlanta to San Francisco.  (Gotta love inflight wi-fi!)  I'm spending the weekend at The Mindful Lawyer conference in Berkeley.  Should be pretty groovy!

Jamie Baker Roskie

PS Here's an article from the San Francisco Chronicle's website about the Mindful Lawyer conference.

 

Designing Tomorrow Blog

I've previously blogged about the National Building Museum's exhibition Designing Tomorrow: America's World Fairs of the 1930s.  Now I've learned that the project has an official blog: the Designing Tomorrow Blog.  

Looks like a great way to learn more about the exhibition . . . at least until you get to DC to see it (such as during ALPS in March!).  So far there is a series of introductory posts to outline the exhibition, and an interview with Bob Rydell (Montana), which promises to be the first of a series of conversations.  I look forward to learning more about this fascinating exhibition.  

Matt Festa

Stanford Law Creates Luke Cole Professorship

Stanford has created the Luke Cole Professorship in Environmental Law and Directorship of the Environmental Law Clinic.  Deborah Sivas, who has been director of Stanford's environmental clinic since 1997, is the first Cole Professor.

From the story on Stanford's website:

In a Reunion Homecoming ceremony filled with emotion, friends and family dedicated a new Law School professorship to the late Luke Cole, a noted environmental activist who died in a car accident in Uganda this summer at age 46...

Being named the first holder of the Luke Cole chair is especially meaningful for me," said Sivas. "Luke was a contemporary and a colleague whose advocacy on behalf of underserved communities was truly pathbreaking and whose vision of environmental and social justice continues to be so inspiring to all of us who knew him."

"I think Luke would be pleased to know that a gift in his memory will help train and prepare a new generation of lawyers to carry the flame of environmental justice that he lit and kept burning for so many years," Sivas added.

While I never knew Luke Cole, I have read and admired his work since we started an environmental justice caseload three years ago.  I also know Deb Sivas through meetings of the environmental clinicians, and I think she does tremendous work.  It's nice to see her receive an endowed chair, and the stability this professorship brings should also be good for her clinic.

Jamie Baker Roskie

Owley on Changing Property and the End of Perpetual Conservation Easements

Jessica Owley (Buffalo) has posted Changing Property in a Changing World: A Call for the End of Perpetual Conservation Easements, forthcoming in the Stanford Environmental Law Journal.  The abstract:

Increasing environmental problems, including those associated with climate change, highlight the need for land conservation. Dissatisfaction with public methods of environmental protection has spurred conservationists to pursue private options. One of the most common private land conservation tools is the conservation easement. At first blush, this relatively new servitude appears to provide a creative method for achieving widespread conservation. Instead, however, conservation easements often fail to accommodate the reality of our current environmental problems. These perpetual (often private) agreements lack flexibility, making them inappropriate tools for environmental protection in the context of climate change and our evolving understanding of conservation biology. 

This article addresses concerns with the widespread use of conservation easements, advocating for improved conservation easements and better decision making as to when to use conservation easements. A first step in rethinking our approach to the use of conservation easements is to shift from perpetual conservation easements to renewable term conservation easements. Although perpetuity is one of the defining aspects of most conservation easements, it is neither realistic nor desired. In their current static form, conservation easements are not receptive to change in ecology or society. Where conservation easements are of a limited duration, their economic, societal, and conservation value can be more readily assessed and considered when making land-use decisions. Additionally, many conservation easements are already beset with durability concerns. Instead of forcing a cumbersome and unrealistic perpetuity requirement on conservation easements, we should use agreements with a revisitation date. By shifting the initial assumption that these agreements will not be perpetual, we can create responsive agreements and make better decisions regarding when conservation easements are appropriate.

Matt Festa

Kelly on Eminent Domain: Justifications, Limitations, and Alternatives

Daniel B. Kelly (Notre Dame) has posted Acquiring Land Through Eminent Domain: Justifications, Limitations, and Alternatives, from the RESEARCH HANDBOOK ON THE ECONOMIC ANALYSIS OF PROPERTY LAW, Edward Elgar Publishing, 2010.  The abstract:

The primary functional justifications for eminent domain involve bargaining problems, including the holdout problem, the bilateral monopoly problem and other transaction costs, as well as the existence of externalities. The holdout problem is particularly noteworthy, and this chapter analyzes three types of holdouts, depending on whether the failure in bargaining is the result of strategic behavior among owners, the presence of a large number of owners or a single owner who is unwilling to sell because of a highly idiosyncratic valuation. 

Although eminent domain solves any potential bargaining problems by transferring land directly from existing owners to the government, eminent domain has limitations as well. The primary limitations are the difficulty of valuing parcels, the potential for secondary rent seeking and the existence of administrative costs. Valuing parcels is especially problematic because, in the absence of perfect information, the government may underestimate the valuations of existing owners or overestimate the valuations of future owners. In either case, eminent domain may increase the likelihood of an undesirable transfer, i.e., a transfer in which the existing owners value the land more than the future owners, even if public officials are acting to maximize social welfare rather than advance their own, or other private, interests. 

Because of these limitations, scholars have proposed various alternatives for acquiring land, three of which I discuss below: (i) secret purchases; (ii) land assembly districts; and (iii) auction mechanisms. Comparing eminent domain with each of these alternatives is necessary to determine whether, or under what circumstances, it is desirable for the government to invoke eminent domain, a determination that ultimately depends on a number of important, yet relatively unexplored, empirical questions.

Matt Festa

The Effects of Aging and Auto-Centric Planning...

The Detroit Free Press recently ran an interesting article discussing how auto-centric development could be a big problem as our population ages and becomes increasingly less able to operate autos.  If that happens, then there may be quite a few people without the ability to access places for their daily/weekly needs.

Read more here:

That suburban layout has been popular for decades, but aging Michiganders might find that the same sprawl will make them homebound once they can no longer drive, experts say.

"Southeast Michigan is auto-dependent. It's in our DNA," said Robin Boyle, chairman of Wayne State University's Department of Urban Studies and Planning. "People are aging in place in this model of the suburban home that's dependent on the Buick leaving the house every morning." But older adults may face "a whole list of reasons why you won't be able to move that Buick," Boyle said.

And that means reshaping the way cities and villages and counties think about their communities.

Zoning might need to be reconsidered, as developers move toward more mixed-use developments where senior citizens can live within walking distance or be in the same complexes where they shop and do errands, or even build "granny flats," so elderly relatives can move onto their properties.

Chad Emerson, Faulkner U.

Crude Justice screening at South Texas

South Texas College of Law will be hosting a screening and discussion of the documentary film Crude Justice, produced by the Alliance for Justice, on Wednesday, Oct. 27 at 4:00 (rm. 314, with refreshments!).  The film chronicles the plight of victims of the Deepwater Horizon spill, with particular focus on the legal justice aspects of the issue.  After the film is shown, Professors Olga Moya, Fran Ortiz, and I will comment. and hopefully start an interesting discussion.  The event is sponsored by the Islamic Legal Society, the Environmental Law Society, and the Public Interest Law Society.  Here's the blurb for the film:

Shot on location in Louisiana, this film explores the damage done by this unimaginable environmental calamity to the lives and livelihoods of the people who depend on the waters of the Gulf of Mexico for their income, their food, and the continuation of their culture. Titled Crude Justice, the 17-minute documentary looks at the difficulties ordinary people face in finding fair compensation and a secure future for their families in the face of corporate domination of the courts, statutes favoring big business, judges with ties to the oil and gas industries, and the uncertainties that accompany an incident where the long-term effects may not be known for years. Crude Justice tells the story of damaged lives, but also of the fighting spirit and resilience of people who understand that what's threatened is not just justice for the victims of the spill, but the integrity of the American judicial system itself. 

Go ahead and view the provocative short documentary Crude Justice, and if you are able, join us for the discussion in Houston.  

Matt Festa

Smith on Water as a Public Good Under GATT

Bryant Walker Smith (NYU) has posted Water as a Public Good: The Status of Water Under the General Agreement on Tariffs and Trade, Cardozo Journal of International and Comparative Law, Vol. 17 at 291 (2009).  The abstract:

Is water a "product" subject to the World Trade Organization (WTO)’s General Agreement on Tariffs and Trade (GATT)? I argue that it is not, because the established, widespread, and consistent assertion by states of public ownership over their water resources through both municipal and international law (the "public-ownership consensus") precludes any reading of GATT that would fundamentally alter the unique status of those resources. My reasoning therefore differs from that of others who have addressed this issue in that I first examine the broader legal context in which the WTO exists and then consider how that context compels an interpretation of "product" that excludes water resources.

Matt Festa

PIELC - Save the Date and Suggest Panels

From John Bonine re: University of Oregon's annual Public Interest Environmental Law Conference:

Turning the Tides:

Creating a Green and Clean Future

29th Annual PIELC: March 3-6, 2011

The 2011 PIELC Co-Directors are currently planning an outstanding conference. Last year's conference was a huge success and we are looking forward to making this year's conference even better!

We are currently arranging keynote speakers, and panel suggestions are open for submission.

Thank you,
2011 PIELC Co-Directors

Panel suggestions can be submitted here.

Jamie Baker Roskie

53 Minutes of Fun...

That's how one friend described the new documentary called "The Parking Lot Movie".  I've been watching it this afternoon for free over at the PBS website and I tend to agree.

If you are looking for a somewhat alternative view of how Americans move about the land that they've developed, then click here to see the full movie.

--Chad Emerson, Faulkner U.

Salkin on Ethics in Land Use Issues 2009-2010

Patricia Salkin (Albany) is obviously trying to make the rest of us feel unproductive.  She has posted her latest article, No Protectable Property Interest in Making Land Use Decisions and Other Ethics in Land Use Issues 2009-2010, from The Urban Lawyer, Vol. 42, p. 649, 2010.  The abstract:

This annual review of reported decisions and opinions focused on ethical considerations in land use planning and decisionmaking, continues to highlight the hotly litigated issues surrounding conflicts of interest of various players in the land use game.

Another great read for land use practitioners and scholars alike.  In addition, of course, to the essential Law of the Land Blog.  

Matt Festa

Saxer on Planning Gain, Exactions, and Impact Fees

Shelley Ross Saxer (Pepperdine) has posted Planning Gain, Exactions, and Impact Fees: A Comparative Study of Planning Law in England, Wales and the United States, from The Urban Lawyer, Vol. 32, No. 1, 2000.  The abstract:

Land development projects often involve external costs within the host community. For example, new retail space might generate more traffic, requiring improvements to roads. A new residential development might require new roads altogether as well as enhancements to police and fire services, schools, libraries and even sewers. Historically, these external costs fell on the community. However, increasingly, in both the United States and in England and Wales private land developers, rather than public agencies, are bearing these externalities. This article explores the issues that arise when governments shift the burden of these externalities back on the developer and compares the processes by which the United States and England and Wales have attempted to accomplish this shift in externalities. U.S. jurisdictions use exactions, impact fees and linkage fees to transfer the burden of adverse development impacts to the developer. England and Wales use the concept of planning gain to extract planning conditions or planning obligations from developers before granting development rights. Because of the high level of government involvement in this process of accounting for development externalities, public and private abuse is a concern in the U.S. and in England and Wales.

Part II of this Article identifies the different impacts that occur during land development, including the impacts on municipalities, their citizens, competing developers, competing communities and the environment. Part III compares how development rights are obtained in the U.S. with the approaches used in England and Wales to obtain planning permission and discusses how the respective countries compel developers to internalize the external costs of development. Part IV concludes by proposing the developers and local government use bargaining tools, such as the U.S. development agreements and the section 106 agreements in England and Wales, to distribute development burdens. Further, private and public abuses should be controlled by the market and the requirements that the government act for the benefit of the public, rather than be constrained by existing judicial, legislative and constitutional complexities.

Matt Festa

Klass on Climate Change, Natural Resource Development, and Renewable Energy

Alexandra B. Klass (Minnesota) has posted Property Rights on the New Frontier: Climate Change, Natural Resource Development, and Renewable Energy, forthcoming in the Ecology Law Quarterly.  The abstract:

This Article explores the history of natural resources law and pollution control law to provide insights into current efforts by states to create wind easements, solar easements, and other property rights in the use of or access to renewable resources. Development of these resources is critical to current efforts to address climate change, which has a foot in both natural resources law and pollution control law. This creates challenges for developing theoretical and policy frameworks in this area, particularly surrounding the role of property rights. Property rights have played an important role in both natural resources law and pollution control law, but the role in each field is quite different. Early natural resources law was based significantly on conveying property rights in natural resources to private parties to encourage westward expansion and economic development. By contrast, pollution control law as it developed in the 1970s and 1980s was based on placing limits on such rights and creating government permit systems to meet environmental protection goals. This Article proposes that as scholars and policymakers consider approaches to developing wind and solar energy, it will be important to not rely too heavily on a property rights-based, natural resource development approach. Instead, this Article argues that an approach that integrates resource access into state and local permitting and land use planning frameworks may better meet development and environmental protection goals without creating new entrenched and potentially problematic property rights in natural resources. Moreover, because wind development and solar development present different concerns with regard to size, scale, and environmental impact, this Article suggests that solar development should be structured based on private solar easement transactions within a hospitable local zoning framework while wind development should be based on a state-wide siting and permitting structure with much more limited local government involvement.

Matt Festa

"So You Want to Go to Law School"

WARNING: This post is blatantly non-land use related.

This morning in class my students mentioned this YouTube video.  Using a animated film-making software called "Xtra Normal" (Slogan - "if you can type, you can make a movie).  "So You Want to Go to Law School" is a funny, very jaded conversation between a wanna-be law student and a cynical, exhausted corporate lawyer. Sample dialogue:

WBLS: "I love your Blackberry."

CECL: "I do not like my Blackberry. I want to torture it until it begs me to kill it."

Kudos to blogger dwkazzie for this hilarious film.  Now I just need to help my students avoid slipping into a depression after watching it...

Jamie Baker Roskie

 

 

2010 National Preservation Conference--Austin

Next week the National Trust for Historic Preservation holds its annual National Preservation Conference in the weird city, Austin, Texas, from Oct. 27-30.  Looks like a great event, with the program available online.  Featured speakers include New Yorker architecture critic Paul Goldberger and Interior Secretary Ken Salazar.  Here's the conference blurb:

Prepare yourself for a completely new National Preservation Conference experience! To complement our future-focused Austin theme, we’ve planned dynamic new programs that encourage conversation and interaction, and spotlight 21st-century preservation imperatives.

Join hundreds of grassroots volunteers, skilled professionals, and preservation experts exploring preservation today -- in urban and rural settings across the United States. We’ll focus on the conventional and the controversial issues that arise every day, and share the most effective tools and practices for fostering preservation in any community.

Can't make it out to Austin next week?  Don't worry, you can attend the conference virtually, with lots of web content and social media planned to be available.  Great idea.

Matt Festa 

Sheff on the Residential Landlord's Duty to Mitigate

Jeremy N. Sheff (St. John's) has posted A Tale of Two Cities: The Residential Landlord's Duty to Mitigate in New York, forthcoming in the Journal of Civil Rights and Economic Development, Vol. 25 (2011).  The abstract:

The 2008 decision of the New York Supreme Court's Appellate Division for the Second Department in Rios v. Carrillo brought stability to a previously uncertain area of landlord-tenant law: the duty of residential landlords to attempt to mitigate damages in the event of tenant abandonment. This article argues that in the instability that largely reigned prior to Rios, courts used the debate over what legal rule to apply in tenant abandonment cases as a tool to decide such cases based on flexible equitable standards that took into account the relative economic position of the parties and their degree of good faith. Because the New York court system accords weight to appellate precedent in part based on amount in controversy, and because Rios involved what can only be described as a luxury property, the Second Department's ruling has the perverse effect of subjecting economically insecure parties to solutions developed for far wealthier litigants. This article demonstrates the extent of this effect by reference to census data on households and housing markets, and argues that Rios was wrongly decided not only as a matter of legal analysis, but as a matter of policy.

Matt Festa

Vermont Law's New Land Use Clinic

From a VLS media release:

Vermont Law School has opened a new Land Use Clinic to train the next generation of land use lawyers and policy-makers who will work on a growing array of social, economic and environmental challenges across the global landscape.

"The level of planetary crisis due to human impact demands preparation of land use lawyers and policy-makers versed in progressive strategy and methods," said Associate Professor Teresa Clemmer, the clinic's acting director. "The clinic will teach students how to address these issues locally but with the global ramifications in mind. The clinic has the potential to engage innovative NGO, academic and governmental partners here in Vermont, across the country and internationally."

The clinic started with one student clinician during the summer and has grown to five students this fall. The clinic defines "land use law and policy" in the broadest sense, embracing not only traditional planning and regulation but all human activity that affects land use. Thus, affordable and energy-efficient housing, sustainable agriculture, pollution prevention and healthy land-use lifestyles may fall within the clinic's mission. Land use decisions should be aimed at creating and maintaining healthy communities using the three E's: sustainable environment, economic development and social equity, Clemmer said.

Associate Professor Sean Nolon, director of VLS's Dispute Resolution Program, said the land use clinic is a great resource for students to get a front-row view of local government and how decisions are made behind the scenes. "The skills they acquire through this program will help them negotiate favorable results for clients," he said.

Peg Elmer, the clinic's associate director, said Vermont is a leader in the land use world, devising innovative strategies to encourage vibrant downtowns, a creative economy, compassionate social programs, stewardship of working landscapes and natural resource systems. "Students learn to apply these skills here and bring those skills back to the communities where they make their home," she said.

The clinic gives priority to projects that meet one of the following goals: to encourage compact settlement in rural villages; to maintain the vitality of historic downtowns; to maintain a viable working landscape such as supporting sustainable agriculture and forestry operations; to mitigate negative human impacts; to plan for healthy natural resource systems; to improve the quality of the land use plans, regulations and decision-making at state and local levels; and to improve the capacity of volunteer rural land use decision-makers.

It gets a little lonely out here in Land Use Clinic land sometimes - there are only a few LUCs around the country.  The folks at VLS have consulted with me a bit over the years about starting this clinic, and I'm so excited to see it being realized.  I have great admiration for the faculty involved in the clinic, and I know they'll do fantastic work that will bring up the bar for us all.

Jamie Baker Roskie