Tuesday, February 22, 2011
One of the many exciting things I am engaged in this month is Mercer's Environmental Law Virtual Guest Speaker Series. Students at Mercer and elsewhere listen to recorded presentations on different topics by law professors across the country. Unsurprisingly, my presentation is about conservation easements. Starting Monday February 21, my lecture was available to the students. All week students are asking me questions in an online discussion format. This is a great project by Mercer, giving students access to law professors across the country with different specialties and creating a flexible learning environment that takes advantages of new technologies. [I gave my presentation using powerpoint's new narration function which I found alternatively straightforward and infuriating.]
The discussion is a bit harder than answering questions after a talk because writing down answers in a public forum always requires a bit more thinking than the off-the-cuff answers we give when answering live questions immediately following a talk. BUT the format also lends itself to a higher caliber of questions. When students have the opportunity to think about a presentation and write questions at their leisure, the questions are intriguing and thoughtful. Almost every questions so far has pushed me more than I generally expect from students. Kudos to Mercer and Steve Johnson for this annual program.
- Jessica Owley
Speaking of interdisciplinarity, I received from H-Net this announcement of what looks like a fascinating conference about land use and legal history: The Struggle for Land: Property, Territory, and Jurisdiction in Early Modern Europe and the Americas, to be held at the Newberry Library in Chicago on April 8, 2011. From the announcement:
The struggle to possess and control land, both as property and as jurisdictional territory, was central to the formation of early modern European societies as well as their colonial domains. This conference will look at how Europeans and indigenous peoples defined the right to land. We will examine how so-called European expansion influenced the conceptualization of property and territorial jurisdiction and the relationship between them. Conference participants may explore how notions of property and territoriality changed over time; and how colonial needs and the encounter with new cultures reshaped these notions. In what ways did “international competition” and the emergence of an “international law” (to use an anachronism) modify property and jurisdiction? How did economic, social, and political developments influence new ideas and experiences regarding the land? In what ways did these ideas and experiences shape practical strategies for claiming land and asserting rights to govern it and profit from it? We are particularly eager to know whether these encounters encouraged, consciously or not, borrowing between different European legal systems as well as between settlers and indigenous peoples. How was the movement and refashioning of legal knowledge bound up with the movement of peoples and refashioning of modes of control over land? We would like to encourage an interdisciplinary conversation among lawyers, historians, sociologists, geographers, and literary scholars.
Participating in the symposium will be a number of really promient historians, plus several law profs including Richard Ross (who appears to be the organizer, along with Tamar Herzog), Claire Priest, R.H. Helmholz, Stuart Banner, Christopher Tomlins, Daniel Hamilton, and Allison LaCroix. More info, including the schedule, after the jump.
Monday, February 21, 2011
Long known (and deservedly so) as one of the most brutal dictators to ever live, Robert Mugabe, Zimbabwe's sociopathic scourge of a president, also has a strong land use connection.
In particular, Mugabe has implemented a crony-based land redistribution policy since taking power decades ago that, rather than seeking to convey property to the poor Zimbabweans that he claims are the focus, actually redistributes most of the land to the country's corrupt elite.
I've used a discussion of his acts as the basis for an always interesting Property I discussion on land acquisition issues.
Now, there is a new tool that warrants watching if you are interested in these issues (or just a student of history and want to know more about the evil that is Robert Mugabe). It's called "Mugabe and the White African"--a documentary that is raking up a host of awards.
I watched it this afternoon and found it extremely compelling, especially from a land use and redistribution perspective.
Sunday, February 20, 2011
February has been a busy but exciting month for me. I have agreed to a few speaking engagement and have found all of them to be worthwhile and stimulating. I spoke about my research on the Enforceability of Exacted Conservation Easements at the Albany Junior Scholar Workshop (and will be speaking on it again at the upcoming ALPS Annual Meeting). I also presented my research on Tribal Conservation Easements at the Buffalo Junior Faculty Forum (and will be speaking at it again at the upcoming Tribes, Land, and the Environment Conference at American University). I wrote earlier about how helpful I find junior faculty events and have really benefited from my colleagues at Buffalo at elsewhere who took the time to give me feedback on my work.
In the midst of these legal speaking events, I also spent a Friday afternoon presenting my research to Buffalo's Geography Department at their weekly colloquium. It's wonderful to be part of a big university where opportunities to speak and work with colleagues in other departments abound. Land Use and Environmental Law present multiple avenues for intersections and interactions. The Geography Department faculty and graduate students asked me questions that law profs never would have come up with. My TA from the Geography Department is helping me map conservation easements in a GIS database. While I appreciate the feedback from law professors, the benefits of speaking to a broader crowd are plentiful. Next stop -- Urban and Regional Planning
- Jessica Owley
Saturday, February 19, 2011
While my family members continue to occupy the state capitol in Madison along with thousands of others seeking to protect workers' rights in Wisconsin, I have been avidly reading all the news coverage.
Rick Hills at PrawfsBlag has an interesting take on the situation that might appeal to us Land Use-y types. He likens the governor's proposal to prohibit collective bargaining rights to Nollan/Dolan's limitation on exactions, arguing neither one will really get carried out in realty. Not sure I agree (and some commenters clearly do not), but I thank Rick for introducing me to a way to understand the situation through a land use lens.
- Jessica Owley
It is perhaps not surprising to many of us that landowners don't understand the encumberances on their land. If someone has never heard the term "conservation easement" before, it's not surprising that they don't understand what it means when they see it with their deed. One would hope, however, that you would find out before buying the property.
An article in yesterday's Washington Post gives examples of landowners who are uninformed about the nature of the restrictions on their land. Although the Post writer doesn't place blame, the official at the County Planning Office quoted in the article is not hesitant about pointing the finger at real estate agents.
Although this article doesn't present heartening news for the land conservation community, I was glad to see this in print. I have been hearing stories like this from landowners for a few years now (folks who just didn't realize there were encumberances on their land). While our land recording systems appear to ensure landowners will get notice of the restrictions on their land, we see that it doesn't always happen. This article highlights that such notice may not be meaningful if purchasers don't understand the deeds they are reading.
Not sure what the answer is to concerns like this. Fewer deed restrictions perhaps, but that is not very satisfying. We could require real estate agents to clearly explain all the provisions in a deed, but it doesn't look like it would have helped here. The couple that the story focuses on read and signed the conservation easement indicating that they had reviewed it. Looks like this couple may turn to the courts for relief. Hope their lawyer is better than their real estate agent.
UPDATE ON 02/21:
The Washington Post has added (or maybe it was there all along but I didn't see it) a great graphic showing where the conserevation easement was. This case has sparked an interesting debate in the land conservation community about the appropriateness of protecting backyards in this way.
- Jessica Owley
I've just begun following the story of the poisoning of the trees at Toomer's Corner in Auburn, Alabama. For those of you who do not follow American college football, this story needs some background. (And some full disclosure - my husband received his architecture degree from Auburn.)
Auburn recently won the national championship. To celebrate any football victory the fans collect at Toomer's Corner. (Toomer's is the drug store that is caddy corner to campus at that intersection.) Somewhat quaintly they still engage in the tradition of "rolling" Toomer's Corner - that is, wrapping toilet paper around the trees.
Now comes the dastardly poisoning. Football rivalries, especially in the South, run incredibly deep. Many Alabamans decide whether they are "for" Auburn, or for University of Alabama, at a very young age. So, for one Alabama fan, Auburn winning the national championship caused emotion to overtake reason. This fan took some herbicide and poisoned the trees. The dose was probably fatal, but Auburn's groundskeeping crew is doing their best to save them. The man who allegedly poisoned the trees has been arrested and charges, and Auburn fans are rallying today in sympathy for the trees.
Jamie Baker Roskie
Friday, February 18, 2011
Those of us who study conservation easements don't have a wealth of case law to debate and scrutinize (query whether that is a bad or good thing). So perhaps it is understandable that we get excitable when there is even a hint of litigation. According to a local newspaper, a couple in Pennsylvania has just sued a local land trust for failing to enforce a conservation easement. In this case, the landowner allegedly violated the conservation easement by clearing woodlands, building a stable, and keeping horses. The plaintiffs claim that the land trust has not adequately enforced the conservation easement.
There are several interesting issues here including two big ones:
(1) Who has standing to bring challenges regarding enforcement of a conservation easement? Here, the plaintiffs own adjoining land. Could the township intervene?
(2) what are a land trusts' enforcement obligations? Did create of the conservation easement create a charitable trust? Can they choose not to enforce a conservation easement? How much discretion do land trusts have in negotiating settlements or conservation easement amendments?
I'm sure the land trust community will be watching this one closely.
- Jessica Owley
I have been very pleasantly distracted from posting this week as Robin Malloy has been visiting in Cardiff. On the way to sample the delights of Cardiff's pubs and restaurants Robin has had to listen to my rant nuanced discussion of city centre retail developments. Knowing how to get a reaction he tells me that Americans would love these commoditised downtowns and asked for a link to illustrate how to develop them.
So, Robin, here is a link to Land Securities 'retail portfolio' list including both the city centre of Bristol, where I live, and Cardiff, where I work. Especially after a few drinks the city centres are so extraordinarily similar in terms of street architecture, design and content that I have to remind myself to get the train home.
Maybe Americans really would love this. Certainly the city centres' value remains significant, currently the 19.4 million square feet of retail accommodation owned by one developer, Land Securities, is valued at £4.7 billion (over $7 billion). Maybe I just need a few extra drinks in those formulaic bars.
This morning NPR broadcast an interview with Brown sociologist John Logan regarding his research on the intractability of black-white residential segregation. Logan documents the persistent unwillingness of Whites to move into stable neighborhoods in which African-Americans make up 40% or more of the area population. The story notes that Whites are more likely to join a residential community in which they are in the minority if other Asian-Americans and/or Hispanics are also present in significant numbers.
Bill Callison (Faegre & Benson, LLP; also ABA Forum on Aff. Housing and Comm. Dev. Law) has posted Achieving Our Country: Geographic Desegregation and the Low-Income Housing Tax Credit, 19 S. Cal. Rev. L. & Soc. Just. 213 (2010). Here's the abstract:
This Article, which blends educational policy, housing policy, and tax policy, argues that one path down the precipice of racial inequality is to reverse a path that led us to where this problem began; namely, the racial segregation of the places where we live. This Article examines the country’s most important subsidy for creating affordable housing, the Federal Low-Income Housing Tax Credit (“LIHTC”), and considers whether the tax credit program has served as a tool for desegregating metropolitan neighborhoods. After concluding that the LIHTC program has not been an effective tool for reducing or eliminating continuing patterns of racial segregation and poverty concentration, this Article proposes numerous programmatic changes that could allow the tax credit program to promote greater geographic desegregation. Others have considered the impact of fair-housing laws on the LIHTC program. This Article contributes to that literature by going beyond fair housing to examine both the “cooperative federalism” concepts embedded in the program and the economic structure of tax credits, and by making practical suggestions on how the program can be improved to obtain racial integration. It takes a two-prong approach: First, this Article encourages more robust national guidance in order to encourage states to use credits to foster desegregation. Second, this Article considers changes to the economic structure of the program to provide incentives to developers and investors who undertake to provide affordable housing that results in desegregation.
February 18, 2011 in Affordable Housing, Development, Housing, HUD, Inclusionary Zoning, Land Trust, Landlord-Tenant, NIMBY, Planning, Race, Scholarship, Smart Growth | Permalink | Comments (0) | TrackBack (0)
So what is an aerotropolis exactly? It’s a city that’s built around an airport, the bigger the better, with factories and/or traders, both depen-dent on air freight, close by, followed by a ring of malls and hotels, followed by a ring of residential neighborhoods. The airport isn’t an annoyance, located as far out of the way as possible, but the city’s heart, its raison d’être. The book prides itself on taking a contrarian view of the city, much like Joel Garreau’s Edge City (Anchor, 1991) or Robert Bruegmann’s MSprawl (The University of Chicago Press, 2005). Those two books made an economic case for and social defense of existing phenomena, arguing that circumstances widely viewed as bad were actually good. Aerotropolis attempts to do something more ambitious: to name and encourage an urban form that taps into and facilitates globalization.
Personally, this concept sounds like something straight out a Dante-inspired level of hell. To suggest that an aerotropolis might be a futuristic version of the great American port city misses on so many analogy levels that its hard to really take the idea serious.
But, alas, the authors got a book deal and appear to be flush with consulting gigs so maybe the market for crazy ideas remains a sellers one.
Read the entire article here.
Thursday, February 17, 2011
As some of you may know, I am obsessed with intrigued by conservation easements. A strong motivator for some conservation easements (but not all or even necessarily most) is the availability of federal income tax deductions. A current bill in the senate would make such donations even more alluring.
- Jessica Owley
Matthew E. Kahn (UCLA, Inst. of Environment; Economics; Public Policy), Ryan Vaughn (UCLA, Economics), and Jonathan Zasloff (UCLA, Law) have posted The Housing Market Effects of Discrete Land Use Regulations: Evidence from the California Coastal Boundary Zone, Journal of Housing Economics, Vol. 19, pp. 269-279, December 2010. The abstract:
The California coast line borders most beautiful and expensive land in the entire world. The California Coastal Commission was created in 1976 to protect the coast line and to regulate land use within the coastal boundary zone. This well defined regulatory boundary offers a unique opportunity to study the consequences of land use regulation on nearby housing located in the same political jurisdiction. Using two different geocoded data sets, we document gentrification within the boundary and discuss possible explanations for these patterns.
Perhaps I am late to the game on this one, but I just saw the trailer for a documentary about the Atlantic Yards controversy. The movie, called Battle of Brooklyn, tells the story of Brooklyn's use of eminent domain to build a sports arena. I am a big fan of eminent domain (hmm.. not sure if that is the right way to put it), but will likely see this movie that appears to focus on the protesters.
The main protester that the film follows actually agreed to a $3 million settlement and moved out. I wonder if they include that tidbit.
- Jessica Owley
February 17, 2011 in Affordable Housing, Community Economic Development, Constitutional Law, Development, Economic Development, Eminent Domain, Environmental Justice, New York, Property Rights | Permalink | Comments (5) | TrackBack (0)
Wednesday, February 16, 2011
Nicole Garnett (Notre Dame) has added to her extensive body of work on land use, order, and quality of life in America's cities (read her book Ordering the City) by posting The People Paradox on SSRN. Here's the abstract:
American land-use regulators increasingly embrace mixed-land-use "urban" neighborhoods, rather than single-land-use "suburban" ones, as a planning ideal. This shift away from traditional regulatory practice reflects a growing endorsement of Jane Jacobs’s influential argument that mixed-land-use urban neighborhoods are safer and more socially cohesive than single-use suburban ones. Proponents of regulatory reforms encouraging greater mixing of residential and commercial land uses, however, completely disregard a sizable empirical literature suggesting that commercial land uses generate, rather than suppress, crime and disorder and that suburban communities have higher levels of social capital than urban communities. This Article constructs a case for mixed-land-use planning that tackles the uncomfortable reality that these studies present. That case is built upon an apparent paradox: In urban communities, people do not, apparently, make us safer. But they do make us feel safer. This "People Paradox" suggests that, despite an apparent tension between city busyness and safety, land-use regulations that enable mixed-land-use neighborhoods may advance several important urban development goals. It also suggests an often-overlooked connection between land-use and policing policies.
February 16, 2011 in Books, Community Design, Comprehensive Plans, Crime, Density, Form-Based Codes, Housing, New Urbanism, Planning, Scholarship, Smart Growth, Urbanism, Zoning | Permalink | Comments (2) | TrackBack (0)
The Lincoln Institute for Land Policy has made available its report, Making Room for a Planet of Cities. The report predicts a rapid increase in the population of the developing world's largest cities in combination with a concurrent decrease in urban density. As a result, "[t]he world’s urban population is expected to double in 43 years, while urban land cover will double in only 19 years. The urban population in developing countries is expected to double between 2000 and 2030 while the built-up area of their cities is expected to triple [during that same period]." The Lincoln site also offers a companion Atlas of Urban Expansion.
We all know about SSRN ejournals and the Current Index of Legal Periodicals, but increasingly the research that interests me is coming out in peer reviewed social science and natural science journals. Here are a few of my favorite that I recommend adding to your RSS reader or asking your library to send your way. Are there any you would add?
- Landscape and Urban Planning
- Conservation Letters
- Conservation Biology
- Biological Conservation
- City, Culture and Society
- Political Geography
- Journal of Environmental Management
- JAPA (Journal of the American Planning Association)
- Jessica Owley
The common council of Buffalo voted unanimously last week to ban all hydraulic fracturing in the city. Following in the footsteps of Pittsburgh, Buffalo is the second city to have such a ban. Notably, there haven't actually been any proposals to engage in fracking in either city but the hope to set the stage for other local governments.
Buffalo is also worried about the potential waste products (frack water or black water). Thus, the law also bans the the storage, transfer, treatment or disposal of natural gas exploration and production wastes.
This local law is likely to be a hot topic of discussion at our upcoming Hyrdro-Fracking Symposium.
The title of this post was going to be "No Fraking in Buffalo," but I was worried that all the BSG fans out there would think I was writing about something else.
- Jessica Owley
One teaching objective that I have for the land use class is for the students to understand that a land use practice is not a typical litigation practice, and that most of the work gets done in negotiations or practice before administrative agencies and boards. That's why I require the students to attend a planning commission or zoning board meeting. Kathryn L. Moore (Kentucky) has posted a short, readable article offering some excellent practical advice for attorneys in this area: Practicing Before a Board of Adjustment: Seven Practical Tips, Bench & Bar, Vol. 57, p. 11, January 2011. The abstract:
Boards of Adjustment are administrative agencies, not courts of law. Thus, practice before a Board of Adjustment differs from general litigation. This Article offers seven practical tips for a successful practice before a Board of Adjustment.