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)

Alabama and Smart Growth...

Over the years, Alabama has become quite the hotbed for smart growth and new urban efforts.  Birmingham, Montgomery, and Huntsville all have experienced this approach to sustainable development (and re-development) to different degrees.

Now, South LA (Lower Alabama, that is) is getting into the mix as Alabama's growing port city of Mobile is considering several smart growth options.

The Mobile Press-Register is doing a two part series that includes a discussion of how smart growth regulations could work in Alabama's city by the bay:

The city has instituted some "piecemeal" zoning changes in an effort to facilitate New Urbanism-style growth, Clarke said, but there has been little to no building under those zoning options. "What development that is going on right now, continues to be the suburban-sprawl type development," she said.

Howard Blackson, a San Diego-based urban planner with PlaceMakers, a consulting consortium, said he's not surprised that the new zoning options haven't taken off. PlaceMakers is well-known for its work in helping U.S. cities overhaul their land-use rules.

Sprawl stems from the zoning system itself, not from the type of zoning options available under the system, Blackson said.

Mobile, like most American cities, has a use-based zoning system, which means that land is mostly divided into residential, commercial and industrial uses. The city also has a mixed-use option, but it hasn't attracted significant development interest thus far.

New Urbanism planners like Blackson advocate a different approach -- creating "form-based codes" for development. Form-based codes establish what a neighborhood will look like, but leave the actual use of each parcel up to the owner.

Despite having a well-designed city center (especially along Dauphin Street), in the last five or six decades, the city has yet to move far beyond the type of Euclidean zoning and planning that has induced the type of unlasting and unflattering development that doesn't do this otherwise grand city justice. 

That's a shame because there really should not be much difference between a place like Charleston and Mobile--both are filled with interesting history, nice architecture, and an extensive waterfront.  The big difference though is that one has realized its potential while another lags on.

That's what a poorly-conceived approach to land development--especially in a dense urban area--can result in.

--Chad Emerson, Faulkner U.

September 9, 2010 | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 8, 2010

Fire Outside Boulder Continues to Burn

Through the Denver Post I've been following the story of a fire in northwest Boulder that has claimed 7,100 acres and about 95 structures.  Even as their homes burn, some of the residents are pledging to rebuild.

And yes, they all said, they would all return or rebuild once the fire is out, even if the once-lushly green, heavily forested canyon is reduced to a charred moonscape.

"Rebuild? Yes, right where we're at," Flores said. "It's beautiful up there."

"Well, I'm from Detroit," Farran said, indicating that even a burned landscape is better than his hometown. "That should about answer you right there."

It seems like after every disaster there's great debate about whether people should be allowed to live in areas prone to flooding, fire, earthquakes, etc.  (For example, here's an article from the San Francisco Chronicle's webpage about building in flood zones.) But, the reality is that human settlements are always subject to larger natural forces (even when, in the case of this fire, the natural disaster is a fire probably started by a human).  Reams of scholarship has been written on this subject - I wonder if any of you blog readers have any you'd like to share, or any general perspectives?

Jamie Baker Roskie

UPDATE: Here's an editorial from the Post about the wisdom of spending federal fire mitigation money to protect remote private residences.  Not surprisingly, they're against it.

September 8, 2010 in Development, Property Rights | Permalink | Comments (0) | TrackBack (0)

The Expanding Nature of Preservation

One of the interesting facts about historic resource preservation is that its boundaries are always growing.  But some communities have not embraced fully this facet of preservation, even as Modernist architecture matures and qualifies for official National Register listing on the federal level.  This is especially true in communties with rich stocks of 18th and 19th century architecture, where the preservation aesthetic tends to favor colonial, neo-colonial, and other revivalist styles.  New Canaan, Connecticut, only one hour north of New York City, is one community with a treasure trove of traditional as well as Modernist styles.  New Canaan, then, has felt this tension acutely, especially as property owners increase to subdivide large lots into smaller, developable parcels.

Many of New Canaan's modernist houses sit on these large lots.  Even though they make important statements about life in America at the time of their construction and teach important lessons about building form and architecture's relationship to function and nature, modernist houses fall--at the moment--outside of current mainstream style preferences.  Moreover, Modernist homes are usually modest in scale, and thus too small for a market that tends to prefer large, overscaled architecture of the post-Modernist sort.  Unless local preservation ordinances are calibrated to protect "newer" structures, as well as more traditional styles the public more typically associates with historic preservation, Modernist houses, such as those in New Canaan, will face increasing demolition pressure as demand for land outpaces a community's desire to preserve.  Click here to read more or see David Hay, Too New for New Canaan, Preservation 34 (Sept./Oct. 2010).

Will Cook, Charleston School of Law

September 8, 2010 in Architecture, Historic Preservation | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 7, 2010

Lamb, Seabrook, & Wilk on Fair Housing Policy Making in the Lower Federal Courts

Charles M. Lamb (Poli Sci, SUNY-Buffalo), Nicholas R. Seabrook (Poli Sci/PA, North Florida), and Eric M. Wilk (Poli Sci, Georgia) have posted Fair Housing Policy Making in the Lower Federal Courts.  The abstract:

When the Supreme Court became progressively more conservative after the late 1960s, fair housing — more of a policy concern of liberal judges — gained little traction with the Court. Moreover, the housing discrimination decisions that the Court did announce were conservative. This left a power vacuum in the federal judicial system, allowing the courts of appeals and the district courts to play an expanded policy making role in both constitutional and statutory issues. Specifically, the lower federal courts have been able to affect fair housing policy by incrementally moving the law in a liberal direction, but avoiding the kind of sweeping decisions that might attract too much Supreme Court attention. Some more liberal decisions, especially those where a court of appeals has reversed a district court, have been overturned at the Supreme Court level, but many incrementally liberal decisions have been allowed to stand. We further suggest that the most liberal federal fair housing decisions since the early 1970s have come predominantly from the more liberal circuits that represent large cities in the Northeast and Midwest, precisely where the problems of housing discrimination and segregation are frequently most serious.

Matt Festa

September 7, 2010 in Affordable Housing, Caselaw, Federal Government, Housing, Scholarship | Permalink | Comments (0) | TrackBack (0)

Urban Development Law Clinic Spotlighted On National Public Radio

From Kermit Lind at Cleveland State:

A broadcast on NPR today features a matter in which the UDLC is involved.  It can be heard at .  The story by WCPN Ideastream's Mhari Saito describes the real estate scams by Go Invest Wisely, a Utah based firm bilking both investors and home-buyers out of money with house-flipping schemes.

Sunny Nixon, 3L, is a Fellow in a special UDLC fellowship program.   She and Robert Hern, 3L,  are appointed for a year to provide legal assistance to defendants in Cleveland's Housing Court who have a defect in the title to their house.  Ms. Nixon has a client, Tania Kirkwood, who was featured in the broadcast as a Cleveland victim of Go Invest Wisely.  Details of how home-buyers like Ms. Kirkwood, and investors from the U.S. and Canada were bilked out of hundreds of thousands of dollars can be found in the broadcast.  A transcript of the story is available at the WCPN web site.

This story not at all uncommon in Cleveland and the UDLC has had several like it referred for legal assistance.  By the time the buyers of what they expect to be the fulfillment of the American Dream get to a lawyer, it is rarely possible to rescue the house.  It becomes a matter of rescuing the person from the house that has become a trap.  In Ms. Kirkwood's case, she was sold a condemned house by an investor in Canada who did not at the time of sale have title to it.  After she put all the money she had into it, the house is still in a condition that is unsafe for her to live in.  It is scheduled for demolition in order to protect the public health, safety and welfare.

Ms. Kirkwood wanted her story to help others avoid her plight and Ms. Nixon helped Mhari Saito and WCPN with this story.  Ms. Saito's coverage of Go Invest Wisely is very extensive with much more information that one broadcast could contain.  She, along with Ms. Nixon and Mr. Hern, have become leading experts on how these schemes are exploiting house-hungry people in the Cleveland area.

Jamie Baker Roskie

September 7, 2010 in Housing, Real Estate Transactions | Permalink | Comments (0) | TrackBack (0)

Report: Housing Market 2010 First Half Recap

The excellent Real Estate Center at Texas A&M University has issued its report on the Housing Market: 2010 First Half Recap.  Authored by research economist James P. Gaines, the report has analysis of the national and Texas markets and a preliminary forecast for the next six months.  It's a quick read.  From the analysis:

The housing market during the first half of 2010 showed marked improvement over the same period in 2009 largely attributable to unprecedented government stimulation. Year-over-year data comparisons for the first six months of 2010 with the same period in 2009, when the original tax credit was just getting under way, suggest an improving market. However, sustainability during the second half of the year with no incentives remains questionable.

Going forward?

The second half of 2010 holds significant challenges for the housing market. It remains to be seen to what extent the private market can support the market without significant government inducements. Pending sales, nationally and in most Texas communities, and applications for purchase mortgage financing are depressed substantially, indicating much-reduced sales volumes in the next few months.

Dr. Gaines concludes, however, that if there is less-than-exepected dropoff in the coming months, it could be a sign of economic recovery.  If you're not familiar with the Real Estate Center, they are an outstanding resource for reports and data; they also have a regular listserv and podcast.  

Matt Festa

September 7, 2010 in Federal Government, Financial Crisis, Housing, Mortgage Crisis, Mortgages, Real Estate Transactions | Permalink | Comments (0) | TrackBack (0)

Blumm & Dawson on Stop the Beach and Judicial Takings

Michael C. Blumm (Lewis & Clark) and Elizabeth B. Dawson (J.D. Candidate) have posted The Florida Beach Case and the Road to Judicial Takings.  The abstract:

In Stop the Beach Renourishment v. Florida Department of Environmental Protection, the U.S. Supreme Court unanimously upheld a state beach restoration project against landowner claims of an unconstitutional taking of the property. This result was not nearly as surprising as the fact that the Court granted certiorari on a case that turned on an obscure aspect of Florida property law: whether landowners adjacent to a beach had the right to maintain contact with the water and the right to future accretions of sand.

The Court’s curious interest in the case was piqued by the landowners’ recasting the case from the regulatory taking claim they unsuccessfully pursued in the Florida courts to the judicial taking they argued before the Supreme Court. The petitioners contended that the Florida Supreme Court’s interpretation of Florida property law warranted constitutional compensation because the effect was to replace an eroded, hurricane-ravaged private beach with a restored publicly accessible beach. Although no member of the Court agreed that the lower court’s opinion amounted to a taking, a four-member plurality, led by Justice Scalia and encouraged by numerous amicus briefs filed by libertarian property groups, gave a ringing endorsement to concept of judicial takings. Moreover, two other members of the Court, Justices Kennedy and Sotomayer, claimed that state court property law interpretations could be cabined by the Due Process Clause. The result portends ominous implications for state courts’ capability to perform their traditional common law function of updating property law to reflect contemporary values and may unsettle federal-state juridicial relations by encouraging litigants to appeal adverse state property law decisions to federal courts.
Matt Festa

September 7, 2010 in Beaches, Caselaw, Coastal Regulation, Constitutional Law, Environmental Law, Local Government, Property Rights, Scholarship, State Government | Permalink | Comments (0) | TrackBack (0)

Habdas on Polish Historical Immovables as Objects of Ownership

Magdalena Habdas (U. of Silesia Katowice) has posted My Home is My Castle--But is My Castle Truly Mine? Polish Historical Immovables as Objects of Ownership.  The abstract:

Cultural goods, in particular historical buildings and real estate, ‘demand’ a more complex understanding of ownership. Regardless of whether the owner is a private or a public entity, the need to protect these historical immovables in the interest of the society remains the same. There is no single category of owners, who will guarantee the proper protection and care of historical real estate. Private owners with no understanding of the limits of their right are just as undesirable as public owners (local authorities, the state), who have been known to utilize historical immovables for the benefit of their office, but without adequate protection or respect for the historical and artistic value. In all cases where ownership is affected by a public interest, the right is no longer purely private and therefore may be subject to restrictive regulation. However, common sense confirms that security of property and ownership is not in opposition to acknowledging a public element in these rights, particularly if their object is unique, as in the case of historical real estate.
Matt Festa

September 7, 2010 in Comparative Land Use, Historic Preservation, Property Rights, Property Theory, Real Estate Transactions, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, September 6, 2010


From today's Politico:

The goals, according to the White House: “Rebuild 150,000 miles of roads — renewing our commitment to the backbone of our transportation system … . Construct and maintain 4,000 miles of rail — enough to go coast to coast. ... Rehabilitate or reconstruct 150 miles of runway — while putting in place a NextGen system that will reduce travel time and delays.

Since the initial details are not clear, we'll have to wait and see if this spending bill includes monies for light rail and other intra-city and intra-urban transit options.
If that's not the case, then it's hard to call this anything other than funding the status quo when it comes to transportation policy.  And, considering how poorly the node/bypass/node model has affected urban land uses, that's unfortunate.  
On the other hand, if the proposed spending plan included funds for something like this, well, that would be a welcome change:

Yet federal highway programs still concentrate tax dollars on building giant grade-separated roads that cut through or around urban grids. Like the now discredited Corps of Engineers channelization projects, the Federal Highway Administration seeks to concentrate traffic on a few large roads. The concentrated traffic congeals into congestion and the system is overwhelmed, just as with the Corps water projects. Federal highway policy, like so many post-World War II federal programs, imposes gigantic and destructive intrusions on complex urban situations.

Traffic engineers and Corps officials haven't learned these lessons in isolation. Across the country and across many disciplines, people are re-evaluating post-World War II federal urban policies that had destructive effects on cities, despite their good intentions. This destructive legacy has five major ingredients:

  • Federal welfare policy, which undermined city labor markets by paying people not to work and penalizing them if they did.
  • Promulgation of model zoning codes that criminalized the mixed-use development patterns that were the norm in traditional American neighborhoods and main streets, replacing them with the now familiar pattern of sprawl: city housing, office, and retail separated into pods and sprawled across the land.
  • The Federal Housing Authority created in 1934 helped popularize the low equity mortgage. FHA subsidized home ownership to millions of Americans - which was great, except that for many years FHA only subsidized newly constructed homes, meaning you couldn't use FHA to buy a house in your old neighborhood. FHA also required race segregation covenants until 1949 and allowed them until 1962.
  • The urban renewal program subsidized wholesale demolition and clearance of urban neighborhoods. In 1945, many European cities were wastelands. Berlin, for example, was 80 percent destroyed at the end of the war. Thirty years later, London, Rotterdam, Berlin, and Hamburg were all rebuilt cities while U.S. cities looked as though World War II had happened in the United States.
  • Welfare, zoning, FHA, and urban renewal all did their damage, but the most destructive program was the federal government's gross over-subsidy of high-speed roads that cut through the fabric of U.S. cities. The federal government paid 90 percent, states 10 percent, and locals 0 percent. This funding mix was so compelling that few cities opposed freeway construction in the early years of the program.
--Chad Emerson, Faulkner U.

September 6, 2010 | Permalink | Comments (0) | TrackBack (0)