Land Use Prof Blog

Federal Sustainability Program May Get the Axe

The new Sustainability Communities Initiative by HUD, DOT and EPA is barely a year old, and the House Appropriations Committee has proposed to cut its funding before it gets off the ground.  You can read an interesting piece on this issue on New Urban Network.

Jamie Baker Roskie

Making Comprehensive Planning Optional (in Georgia)

It's not getting much play in the media, but there is legislation moving through the Georgia legislature that would make local comprehensive planning and solid waste planning optional.  Currently both are mandated by state law.  Well, actually, comprehensive planning isn't mandated, exactly, but local governments must have comprehensive plans to quality for various kinds of funding, including state-administered community development block grants. (See the Georgia Department of Community Affairs website for more information about comprehensive planning requirements.)  The Association [of] County Commissioners of Georgia and the Georgia Municipal Association both support the bill.  Interesting, the Gwinnett Council for Quality Growth has expressed concern.  The Council, which started out as a developers' organization, is apparently now largely populated by consultants and professional planners who make their living writing comprehensive plans (among other things).   It will be interesting to see how this plays out, particularly given the precarious financial position of local governments.

Jamie Baker Roskie

"Densification"...

Sounds like some type of painful oral surgery, eh?

Well, the good thing is that it doesn't hurt nearly that bad.  In fact, for low density, auto-centric sprawl areas, the concept of densification offers a potential method for combatting the growing energy costs affiliated with sprawl.

This article explains how one area in our nation's capital is adjusting:

Prince George's County Executive Rushern Baker is standing at the Branch Avenue Metro station on a cold, windy morning, surveying the sea of concrete surrounding the suburban station.

It's mostly parking lots and green space, but Baker sees something else. In the distance, two tightly built residential communities give a hint of his vision.

"Everybody's focusing back on the Washington region and here we are, Prince George's County, as the only underdeveloped and undeveloped Metro sites," he said.

In Prince George's and Montgomery counties, planners are trying to overhaul their outdated suburban Metro stations to accommodate the demand for easy transit access and walkable communities from their growing populations.

Chad Emerson

2011-- End of the Housing Crash?

Well, this might be some good news about the housing market from Simon Constable in the Wall Street Journal: Why 2011 May Be the End of the Housing Crash.  Although, when you read the whole article it seems decidedly more mixed than the headline might seem to indicate.  From the article:

There might finally be some good news this year about the nation's dismal housing market. Or, at least, the bad news could stop. . . .

"Pricing is down so much in some markets that when you analyze renting versus owning it makes much more sense to own," says Michael Larson, a real-estate analyst at Weiss Research in Jupiter, Fla.

It is definitely bullish. But what about timing?

"Housing prices will probably bottom in 2011," says Scott Simon, a managing director at money-management firm Pimco in Newport Beach, Calif. He foresaw the housing crash, helping his firm dodge losses that plagued Wall Street.

The article also notes that because it might be a prolonged recovery, prospective homebuyers should plan to stay in place for at least 10 years (much more than the old conventional wisdom of three or four years to break even on the transaction costs).  How does this square with the new mobility that has been all the rage in social commentary over the last couple decades?

Matt Festa

Jones on Garner v. Gerrish and the Concept of "Home"

Bernie D. Jones (Suffolk) has posted Garner v. Gerrish and the Renter’s Life Estate: Teaching a New Concept of 'Home,' Faulkner University Law Review, Vol. 2, pp. 1-44, 2010.  The abstract:

Property law scholars have been interested in Garner v. Gerrish, 63 N.Y.2d 575 (1984) because it presents a unique opportunity for discussing the boundaries of leasehold doctrine. As such, it is covered in various first-year property law textbooks. Its unusual fact pattern makes it useful as a means of helping students understand the differences among leaseholds for a term of years, the periodic tenancy, and the tenancy at will.

A landlord drafted a lease on a pre-printed form, writing in the terms of the lease, but without the advice of counsel. The lease had no end date and the tenant paid rent on a monthly basis. The landlord died within a few years of drafting the lease. In a dispute to determine the rights of the parties, the New York Court of Appeals held that since the tenant alone had the right to terminate, the landlord gave the tenant a determinable life estate. The tenant thus had a home for life, for which he need only pay the prescribed rent for as long as he chose to live on the premises. Though the case provided the basis for the Court of Appeals to modernize the tenancy at will in New York, I argue that it did not present the best fact pattern for doing so. Although the lease effectuated New York state rent control laws where they were not required by statute, it also indicates the possibilities to be found in disguised leasehold arrangements redefining the boundaries of “home.”

This article discusses the treatment of Garner v. Gerrish in typical first-year property textbooks. It explains and assesses the opinion from the trial court to the appellate decisions – the theories of the case developed by the parties, and the courts’ interpretations of landlord-tenant law. The article offers analyses of the archived records in the case that indicate the failures of the landlord’s executor to articulate the defenses of unconscionability and undue influence. It is unclear why the executor pursued this strategy.

Cases like these, where there are more questions than answers, present ideal opportunities for property law faculty to develop multifaceted pedagogical strategies. These might encourage students to think not only about doctrine but litigation strategies in the real estate context, and the perils to be found in flawed strategies that might result in decisions that go against them. In Garner v. Gerish, this meant a limited understanding of the case that coincided with prevailing pro-tenant sentiments in New York landlord tenant law.

I always enjoy teaching Garner v. Gerrish during the property course, and this article expands our understanding of the case from being a good example of certain issues with landlord-tenant law toward a larger commentary on the meaning of the home.  The article also looks like it will be another good addition to the increasing literature on the backstories of leading cases (exemplified by the Foundation Press Law Stories series and other articles).  Should there be a "Land Use Stories" volume? 

Matt Festa

Teaching Outside the Box

We're now entering week 4 of the spring semester at Buffalo. I'm very excited about my classes this e. Both of which are firsts for me.

I am teaching Natural Resources Law. This is a fun course and I have a great group of students. I was a bit taken aback when I learned how many of my students are from Buffalo. Place matters for many reasons, but it is especially strange feeling to teach a public lands class without one person in the room from west of the Mississippi.

I am also teaching a distributed graduate seminar called Land Conservation in a Changing Climate. "A distributed what?" you say? Yep, a distributed graduate seminar. I believe it is the first seminar of its type in the legal academy. A group of eight professors at six different schools (Buffalo, Denver, Indiana,South Carolina, Stanford, Wisconsin) are all teaching a course with roughly the same title at the same time. We have similar but not identical syllabi and take slightly different approaches to our classes. Although law students probably dominate the classes, we have opened up our classes to graduate students in other departments. All students are examining case studies, collecting data, and inputting results of interviews and research into a joint system. At the end of the semester, both the faculty and students will have access to the collected data. I am excited about this project for many reasons. First, our students are learning how to work with social scientists and understand scientific reports and papers. Second, students are actually collecting data and interviewing people who are conserving land. Third, the data collection will enable us to think both about our own states and do comparative work. Studying conservation easements is often challenged by the lack of available data. We are specifically examining how conservation easements will react (or not) to climate change. I think this project will be good for the students of course, but I also hope they learn things that will help others.

I will be speaking more about this project in May at Pace's Practically Grounded Conference (and elsewhere). If any of you are engaged in (or know of) similar projects, please let me know!

- Jessica Owley

 

Tribes, Land, and the Environment

I just returned from a stimulating one-day conference at American University's Washington College of Law called Tribes, Land, and the Environment. Organized by Ezra Rosser and Sarah Krakoff,  it was a great mix of speakers on Indian law generally and environmental issues affecting/involving tribes significantly. Land use gets even more complicated when we add tribes to the mix and need to address the special issues of working with sovereign entities and federal law. I presented some of the initial findings of a larger study I am undertaking on how tribes use conservation easements. Specifically, I was examining instances where tribes hold conservation easements over land off-reservation. Much like other governments [as I have written about here], tribes use conservation easements to protect areas and ecological amenities outside their jurisdictions. I have been particularly intrigued by (1) whether tribes need to adhere to state law when entering into such agreements and (2) considering how the use of conservation easements interacts with tribes' views of property and the natural world. Intriguing stuff. If you see any examples of tribal holders in your necks of the woods, please let me know!

Many of the presentations at the conference, will appear in an edited volume of the same name.

- Jessica Owley

Urban Ag...

Here in Montgomery, Ala we've begun a strong move toward implementing an urban agriculture program with the soon to open Hampstead Institute Downtown Farm.

A myriad of regulatory issues seem to inhibit urban ag.  Fortunately, we had a strong municipal buy-in and SmartCode to help alleviate those hurdles.  A good thing because this is a noble cause.

Reclaiming abandoned brownfields and asphalt dead zones to produce sustenance.

Check out this website to learn more...

Chad Emerson.

Weekend Break: Local Hero (1983)

As I get ready for Property's land-use finale this semester, I will be making room to show a scene from one of my favorite movies of all time, Bill Forsyth's Local Hero.  A mid-level oil executive (Peter Riegert) is dispatched by the company CEO (Burt Lancaster) to buy up an entire Scottish coastal village to make way for a vast North Sea petrochemical facility.  Almost to a person, the villagers welcome the opportunity to pull up stakes and sell. 

The scene that I will show involves the negotiations over relocating the elderly beachcomber, who is skeptical about releasing his legal claim in exchange for any of the most expensive tropical shorelines in the world.  Another scene offers a brief exchange relating to sustainable economic development.  Both go quickly to the heart of the difference between market and subjective valuations of land and the role the latter plays in sustaining community.  If nothing else, my prep will be an excuse to watch one of the funniest movies about modern village life around.

Jim K.

Meyer on Community Participation in Environmental Cleanup Decisions

The last installment in the Cityscape trilogy is Peter Meyer's Brownfields, Risk-Based Corrective Action, and Local Communities.  Here's the abstract: 

This article addresses the problems facing communities that suffer both environmental risks from past contamination and depressed economic activity. In such settings, redevelopment of contaminated sites and the associated economic development may require compromised standards for environmental mitigation. This potential conflict is often resolved through risk-based corrective action on sites cleaned only for their prospective use. But partial cleanups can be shown to face inevitable failure at some future date. Thus, in such an approach, communities face risks that they need to understand and should be capable of accepting or rejecting. The article considers these risks and assesses four alternative land use control strategies for assuring community participation in making decisions about both the cleanup process today and the response to risks of failure in the future.

Jim K.

ALPS Follow-Up...

Following up on Jessica's recent ALPS post, who among us is staying in DC on Saturday evening?  I don't arrive until Saturday am but will be there until Sunday afternoon.  

It seems like a Saturday evening or Sunday morning Land Use Profs blog gathering might be in order....

Matt and others?

ALPS

Mark Edwards over at the Property Prof blog is asking who is going to ALPS this year. For those of you unaware of this new acronym on the scene, ALPS is the Association of Law, Property and Society. Next week will be the second annual meeting of the organization, bringing property professors from all over the United States, across the pond, and even further afield. I went last year and as a first-year prof found it a great way to meet people in the field. I think it says a lot about the conference that most people who went last year seem to be attending again. From glancing at the program, it looks like there will be a strong showing by Land Use profs including most of the blogger here.

- Jessica Owley

How do you sell a town?

is not a question answered by this article in Newsweek magazine, but the article does provide an interesting perspective about the past, and future, of company owned towns.  Timber town Scotia, California is on the market, but at the same time Google and Facebook are providing extensive commercial services and housing to their employees.

Jamie Baker Roskie

Where does Redevelopment Fit in our Priorities?

Ethan Elkind has a great post over at Legal Planet about Redevelopment and Governor Jerry Brown's budget priorities.

We have quite a quandry in front of us as states deal with budget problems and many redevelopment agencies seem poorly run. What's a poor city to? Ethan offers some suggestions. Like the unions in Wisconsin, he is also admitting that we are going to have to give some ground and agree to budget cuts.

- Jessica Owley

Purdy on American Natures: The Shape of Conflict in Environmental Law

Jedediah Purdy (Duke) has posted American Natures: The Shape of Conflict in Environmental Law.  The abstract:

There is a firestorm of political and cultural conflict around environmental issues, including but running well beyond climate change. Legal scholarship is in a bad position to make sense of this conflict because the field has concentrated on making sound policy recommendations to an idealized lawmaker, ignoring the deeply held and sharply clashing values that drive, or block, environmental lawmaking. This Article sets out a framework for understanding and engaging the clash of values in environmental law and, by extension, approaching the field more generally. Americans have held, and legislated based upon, four distinct ideas about why the natural world matters and how we should govern it. Each of these conceptions persists in a body of environmental law, a network of interest and advocacy groups, the attitudes and even identities of ordinary citizens, and even the American landscape. The first, Providential Republicanism, treats nature as intended for productive human use, and gives high status to its users: this idea justified the European claim to North America, defined public debates about nature in the Early Republic and persists in important aspects of private and public land-use law. The second conception, Progressive Management, arose in the later nineteenth century as part of a broader legal reform movement, and gave its shape to much of federal lands policy, notably creation of the national forests and national parks. In this idea, nature’s productive use requires extensive management by public-spirited experts, whom reformers imagined as steering the environmental policy of the administrative state. The third conception, Romantic Epiphany, concentrates on the aesthetic and spiritual value of nature, and has defined both national parks policy and the creation of the national wilderness system, and lent essential support to the Endangered Species Act. This idea entered environmental politics at the turn of the last century, with the efforts of the Sierra Club and other innovators. The most recent conception of nature, Ecological Interdependence, arose in the middle of the twentieth century and shaped much of the environmental law of the 1970s and thereafter. This conception treats nature as an intensely inter-permeable web, which humans are unavoidably part of, to our benefit and hazard. Because all these ideas persist today in environmental law and politics, they provide a map of our existing statutes and doctrines and the conflicts around those laws and emerging issues such as climate change.

Looks like an interesting and important historical perspective on contemporary environmental policy. 

Matt Festa

Garnett on Business Improvement Districts

Nicole Garnett (Notre Dame) has posted Governing? Gentrifying? Seceding? Real-Time Answers to Questions About Business Improvement Districts, 3 Drexel L. Rev. 35 (2010).  Here's the abstract:

Business improvement districts ("BIDs") have become a ubiquitous feature of the urban development toolkit. An important - perhaps the most important - instantiation of the trend in urban governance toward the devolution of local authority to new "sublocal," quasi-governmental institutions, BIDs play an important role in urban re-development efforts, especially efforts to revitalize downtowns and satellite center-city business districts. Drawing upon case studies of Philadelphia’s BIDS, this symposium essay seeks to answer three questions about how BIDs actually work on the ground: First, whether BIDs are actually functioning as local governments rather than quasi-private providers of supplemental services; second, whether BIDs either generate an insider/outsider problem within urban neighborhoods; and, third, whether BIDs exacerbate the pre-existing inequalities between urban neighborhoods.

Jim K.

Howland on The Private Market for Brownfield Properties

Like yesterday's featured article from Cityscape, Marie Howland's (U. Md.- Planning)The Private Market for Brownfield Properties also takes advantage of Baltimore's industrial heritage to track brownfield sales. Here's the abstract:

This study examines land sales over a 10-year period - 1990 to 2000 - in one southwest Baltimore industrial district - Carroll Camden - to determine the effect of land contamination on property sales and sales price. I tracked all sales, selling price, time on the market, and the presence of land contamination in the 5,580-acre area. The results indicate that after the mid-1990s, contaminated parcels sold on the private market, with price discounts that accounted for contamination and cleanup. Out of the 144 parcels sold over the 1990-to-2000 decade, positive and market-clearing prices were found for 45 parcels with either confirmed or historical-reasons-to-suspect contamination. Interviews with owners and brokers of parcels on the market for 2 years or more and analysis of the data indicate that the contaminated parcels that did not sell within the 2-year period (1) had above-market asking price; (2) were small and odd-shaped; (3) had inadequate road access for modern trucks; (4) had outdated water, sewer, and telecommunications connections; or (5) had incompatible surrounding land uses. Two policy implications result from these findings. First, if a city such as Baltimore wants to revitalize an industrial area - maintaining its industrial function and remediating contamination - government-subsidized cleanups may not be the most cost-effective policy. Rather, the city should (1) modernize the outdated infrastructure, including roads and fiber optic connections; (2) remove the outdated residential structures that sit in the midst of the industrial area and diminish the desirability of some land parcels for industrial use; (3) consolidate small and odd-shaped properties that are not conducive to modern manufacturing, warehousing, or other industrial uses; (4) ensure city services are efficiently provided, including trash cleanup and police and fire protection; and (5) improve access and egress for modern trucking. The evidence from the Baltimore study indicates that the private sector will discount land prices and assume cleanup responsibilities. The second policy implication is that the market is capable of brownfield cleanup in some locations.

Jim K.

 

Guignet and Alberini on Voluntary Cleanup and Brownfield Redevelopment

A recent issue of HUD's Cityscape journal contains several articles on land use and remediation of environmental contamination.  The first featured here is Voluntary Cleanup Programs and Redevelopment Potential: Lessons from Baltimore, Maryland by Dennis Guignet and Anna Alberini (both U. Md.--Ag. & Resource Econ.).  Here's the abstract:

In the United States, policy has increasingly shifted toward economic incentives and liability attenuation for promoting cleanup and redevelopment of contaminated sites, but little is known about the effectiveness of such policies. These policies include, among others, state Voluntary Cleanup Programs (VCPs), which were established in the United States in the 1990s and, to date, have been implemented in nearly every state. This article focuses on 116 Baltimore properties that were enrolled and participated in the Maryland VCP from its inception in 1997 to the end of 2006 and examines what type of properties tend to participate in these programs, how these properties compare with other eligible but nonparticipating sites, and what the redevelopment potential of VCP properties and implications is toward open-space conversion.

We find that most applicants (66 percent) actually requested a No Further Requirements Determination directly, rather than proposing cleanup. Nevertheless, the VCP led to the identification and environmental assessment of 1,175 acres of contaminated land in the city of Baltimore alone. In Baltimore, VCP properties tend to be industrial, located in areas zoned as industrial, and away from residential neighborhoods. In more recent years, larger properties have increasingly enrolled in the program. Most participating sites are reused as industrial or commercial properties. In contrast with Alberini (2007), these findings suggest that, in Baltimore, pressure for residential development has not driven VCP participation to date. Based on differences in zoning requirements, the VCP may reduce demand for potentially contaminating activities on pristine land by as much as 1,238 to 6,444 acres, in Baltimore alone.

Jim K. 

Application Period Opens for Smart Growth Awards

From Roberta White at EPA:

The U.S. Environmental Protection Agency (EPA) is pleased to announce
that the application period for the 10th annual National Award for Smart
Growth Achievement is now open . Through this award, EPA recognizes and
supports communities that have successfully used smart growth principles
to improve communities environmentally, socially, and economically. Open
to public- and private-sector entities, winners will be recognized at a
ceremony in Washington, DC, in December 2011.

To view the application and complete entry guidelines, please visit:
http://www.epa.gov/smartgrowth/awards.htm#2011app

Overview of the Awards:
     
         · Entry deadline is April 6, 2011.

         · Applicants may be public- or private-sector entities, but all
             applications must include a public-sector partner. Applications
             for public-nonprofit activities are welcome but must be submitted
             by the public-sector participant.

          · Awards will be given for the following four categories:

                  Programs, Policies, and Regulations:  This category
                  recognizes regulatory and policy initiatives that
                  support the principles of smart growth. EPA is
                  particularly interested in actions that remove
                  barriers to or provide incentives for smart growth.
                  Smart Growth and Green Building:  This category
                  recognizes development that combines smart growth and
                  green building approaches as building design and
                  materials are integrated with land use and location
                  efficiency. Projects may be single or multiple
                  buildings.

                  Civic Places:  This category recognizes projects in
                  the public realm that improve a community's sense of
                  place while adding environmental and economic
                  benefits. EPA is particularly interested in projects
                  that create well-designed and vibrant public spaces.
                  Rural Smart Growth:  This category recognizes
                  communities that preserve and encourage rural
                  economies and character. EPA is interested in thriving
                  rural areas that have used smart growth approaches to
                  encourage economic development and job creation,
                  improve transportation choices and housing options,
                  and support the economic viability of working lands.

          · An “Overall Excellence" winner will be chosen from the four
          categories by the review panels.

For additional information, please visit
http://www.epa.gov/smartgrowth/awards.htm#2011app
or contact Ted Cochin  ([email protected]), 202-566-2181.

Jamie Baker Roskie

SCOTUS decides CSX Transportation v. Alabama Dept. of Revenue

The U.S. Supreme Court has issued its opinion in the case CSX TRANSPORTATION, INC. v. ALABAMA DEPARTMENT OF REVENUE et al., No. 09-520.  The opinion deals with issues in state & local government law, tax, commerce, and transportation policy, and it may be of interest to folks interested in land use.  From the Syllabus:

Petitioner (CSX) is an interstate rail carrier that operates, and pays taxes, in Alabama. The State imposes sales and use taxes on railroads when they purchase or consume diesel fuel, but exempts their main competitors--interstate motor and water carriers. CSX sued respondents, the Alabama Department of Revenue and its Commissioner (Alabama), claiming that this tax scheme discriminates against railroads in violation of the Railroad Revitalization and Regulatory Reform Act of 1976 (4-R Act or Act), which bars four forms of discriminatory taxation, 49 U. S. C. §11501(b). Three of the delineated prohibitions deal with property taxes, §§11501(b)(1)-(3), and the fourth is a catch-all provision that forbids a State to "[i]mpose another tax that discriminates against a rail carrier," §11501(b)(4). The District Court dismissed CSX's suit as not cognizable under the 4-R Act on the basis of this Court's decision in Department of Revenue of Ore. v. ACF Industries, Inc., 510 U. S. 332, and the Eleventh Circuit affirmed.

Held: CSX may challenge Alabama's sales and use taxes under §11501(b)(4).

I'm posting more from the Syllabus after the jump.  Here's the interesting voting lineup:

Kagan, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Breyer, Alito, and Sotomayor, JJ., joined. Thomas, J., filed a dissenting opinion, in which Ginsburg, J., joined.

Matt Festa

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