Wednesday, April 20, 2011

Law and the Human Factor

I just received the Spring newsletter of the Association for Contemplative Mind in Higher Education. This issue has a thoughtful essay by Ajay Rastogi, an environmental educator from India.  An excerpt:

I work in the area of nature conservation, sustainable agriculture, community-based enterprises and fair-trade in India and neighboring Himalayan countries. Over twenty years ago when many of my friends and I finished our university degrees in environmental sciences, we joined different organizations to contribute our efforts to saving the environment. Most of us and our colleagues at work carried a strong conviction that conservation could be achieved by improving knowledge and awareness. We worked with considerable passion and commitment, across different sectors of society, to try and bridge the gaps in people's understanding, providing information about “why” and “how” to protect the environment and conserve nature.

The result was that more books and films were produced, and more travel and workshops were planned, as these were considered the means toward our ends.

Some of these efforts may have contributed to a success story here and there, but it appeared to me that conservation education remained in the same domain as cognitive learning, and that it often failed to transform people to translate into action. To an extent, environmental education turned out to be part of the same educational riddle that lies at the root of the sustainability question. How can environmental education help not only make people aware, but motivate them to take the actual steps in their personal and community life that reflect their commitment as the stewards of natural ecosystems?

I began to realize that we need a paradigm shift in our approach to environmental education. I also began to feel that at deeper levels, environmental concerns are in many ways akin to other important societal concerns such as violence, hunger, drugs and corruption. None of these can be addressed through scientific, technological and policy solutions alone or just by enhancing knowledge, awareness or income levels. To maintain ecosystems, conserve biodiversity and keep the earth elements healthy (soil, water, air), nothing less than a radical change in human behavior is required.

How does one bring about behavioral transformation? I began to search for approaches. I located a master’s course in Applied Ethics and left my job in the Food and Agriculture Organization of the United Nations to study. The ethical and moral theories presented in the courses made strong arguments that appealed to the rational mind, but still could not penetrate through to the deeper layers of beliefs and thought processes that affect changes in behavior. Appeals to value systems have limitations in promoting the attitudinal changes that would result in more sustainable living. Ethical discourse is often just a piece of good conversation. Most people will only make adjustments in their lifestyle for things that they really care about!

Rastogi is not the only scholar considering how the human element plays a role in policy-making and problem solving.  I'm also reading David Brooks' new book The Social Animal: The Hidden Sources of Love, Character, and Achievement.  Brooks' inspiration for the book was his insight that the human equation is being left out of policymaking.  Here's an excerpt from a piece on NPR:

In Washington, D.C., which Brooks calls "the most emotionally avoidant city on Earth," Brooks notes that decisions are made based on the assumption that people are cold, rationalistic individuals who respond to incentives. Those assumptions didn't quite match what the research in other fields began to illustrate, however.

"Scientists, philosophers and others were developing a more accurate view of human nature, which is that emotion is more important than reason, that we're not individuals — we're deeply interconnected," Brooks says. "And most importantly ... most of our thinking happens below the level of awareness."...

Instead of relying on rational decisions, Brooks says, people tend to be influenced by their underlying, unconscious emotional state, which is in turn influenced by the social relationships surrounding them. For example, Brooks has covered education reform for 20 years and writes that he has seen little improvement from multitudinous policy changes.

"The reality of education is that people learn from people they love. But if you mention the word love at a congressional hearing, they look at you like you're Oprah," he says.

I feel like people often look at me like I'm Oprah.  Each semester I try to teach  my students about emotional intelligence, underlying values, and even mindfulness - non-rational aspects of the human experience that have a profound impact on decision and policy making.  Even the students who are grateful to learn about this are, at the same time, skeptical and worried about surfacing all this squishy stuff in the "emotionally avoidant" world of the law school and lawyering.

It's something I'm thinking a lot about as I prepare for our panel discussion on teaching about values at the upcoming "Practically Grounded" conference - how do we engage in best practices of law teaching, which (to me) includes tackling the range of human emotions and experience, while helping our students feel safe and sane?

Jamie Baker Roskie

April 20, 2011 in Books, Environmentalism, Scholarship | Permalink | Comments (1) | TrackBack (0)

Road Wars?

Kudos to the Charleston County Council for rejecting the state's efforts to build a highway extension that relies on outdated, disproven methods for moving vehicles around.  Considering that it was an 8-0 vote, it's apparently unanimous that SCDOT's plan needs to significantly change.

Hopefully, that department will do just that rather than engage in legal wrangling.

From the story:

After the 8-0 vote to dump the S.C. Department of Transportation's chosen plan for the highway, a majority on the council went a step further. They voted to negotiate a "no build" decision with the state -- meaning no plan for the highway would move forward -- unless the state considers "enhancements to existing transportation infrastructure to accomplish the project goals."

That means the county wants to use the state funding earmarked for I-526 for other transportation work.

SCDOT has repeatedly taken the position that the project goals can be accomplished only by extending I-526 from West Ashley to Johns and James islands, linking the existing highway to the James Island connector.

The agency also has rejected the idea of considering new alternatives to the Mark Clark plan selected by the state, the unpopular "alternative G" that the council rejected.

That $489 million plan would complete the Mark Clark as a moderate-speed, ground-level parkway with a bike path, connecting the islands and West Ashley with new bridges.

Together, the council's actions would appear to have killed any plan for the Mark Clark. But some council members said that's not the case, and county Attorney Joe Dawson said the county's contract with the state does not allow it to unilaterally quit the project.

Chad Emerson

April 20, 2011 | Permalink | Comments (0) | TrackBack (0)

Monday, April 18, 2011

High Oil Prices and Land Use

In the April 18 edition of The New Yorker James Surowiecki has a piece about the economic - and psychological - impact of the recent rise in gas prices.

High oil prices are generally bad for the U.S.—oil spending goes largely to foreign producers, leaving less money for American goods and services—but if you look just at the dollars involved the terror they inspire is somewhat mysterious. Gas is a relatively small percentage of most household budgets, and prices are now about eighty-five cents a gallon higher than they were twelve months ago, which translates into a few hundred dollars more a year. That’s not trivial, particularly for lower-income Americans, but it’s not devastating. In fact, it’s less than the increase in income that most Americans will get this year as a result of the new payroll-tax cut...

And Carol Graham and Soumya Chattopadhyay, of the Brookings Institution, have shown that rising gas prices can have a significant impact on Americans’ level of happiness. In part, this is because most people, at least in the short run, have no choice but to fill their tanks. Gas prices are also literally the most visible prices we have; you can’t take a drive without seeing huge signs reminding you how much gas costs. Dan Ariely, a behavioral economist at Duke, has even argued that the way we buy gasoline—standing at the pump and watching the dollars pile up—is inherently disheartening.

What Surowiecki doesn't mention, suprisingly, is why people feel they have little choice but to fill their tanks.  You can all say it together with me, "It's because of sprawl!"  Autocentric land use patterns are hard on the pocket-book and the psyche.  I improved my personal happiness by riding my bike to work today.

Jamie Baker Roskie

April 18, 2011 in Community Design, Development, Sprawl | Permalink | Comments (0) | TrackBack (0)

Energy and Land

Tragic events in Japan have recently reminded us that there are no easy answers in energy.  The world is consuming energy at a growing pace, and the negative effects of this trend are increasingly apparent. Beyond damaging human health and the environment, energy production has substantial effects on land.  A 2009 Nature Conservancy study attempted to quantify these impacts, estimating that biodiesel from soy is the worst culprit (with a land use impact of approximately 894 square kilometers of land impacted per terawatt-hour of electricity produced in 2030), followed by ethanol, wind, hydropower, petroleum, solar photovoltaic, natural gas, solar thermal, coal, geothermal, and nuclear power (in order of most to least land intensity).  The study estimated that nuclear power would require only 2.4 square kilometers of land per terawatt-hour produced in 2030, whereas natural gas would require 18.6 square kilometers, solar photovoltaic (which produces electricity directly from the sun) would require 36.9 square kilometers, petroleum would require 44.7, and wind would require 72.1. 

In 2010, Professor Sara Bronin published an article called "Curbing Energy Sprawl with Microgrids," which described Americans' growing thirst for energy and the land use impacts of energy production that had been estimated in the Nature Conservancy's report.  As a solution to habitat fragmentation and other problems associated with land-intensive energy production, Professor Bronin suggested that  the law should enable "microgrids" of distributed generation in urban neighborhoods.  Indeed, many small, distributed sources of energy, such as fuel cells, solar panels, and wind turbines, can be installed on existing infrastructure with minimal impacts on land.  Professor Uma Outka, in turn, has proposed that we more carefully and comprehensively investigate the land use impacts of energy and plan for energy production in a manner that minimizes these impacts.  In a forthcoming Stanford Environmental Law Review article, "The Renewable Energy Footprint," she suggests that  developers should locate large-scale renewable plants, wherever possible, on brownfields and other disturbed lands; in other words, where we can't avoid building more infrastructure through, for example, energy conservation or more efficient use of transmission lines, we should "reuse land." 

As Professor Outka describes in her article, some efforts at land reuse for renewable energy have begun.  The Bureau of Land Management, for example, has identified forty-two brownfield sites in Arizona that might be ideal areas for renewable development.  And at least one commercial wind farm--Steel Winds--is already operating on a brownfield site near Lake Erie. The Nature Conservancy, following its  "Energy Sprawl" report, also has produced a more optimistic follow-up report that suggests how the land impacts of energy--particularly those of renewable energy--can be reduced, similarly proposing that developers prioritize the use of brownfields and other lands that already have been disturbed.  The Nature Conservancy also has an interactive map that shows the average number of homes that could be powered annually by wind in each of the wind-intensive states and the species that could be protected if developers followed the Conservancy's suggested "smart siting" policies. Clicking on each state brings up a fun picture of the greater sage-grouse in addition to the data described above.  Speaking of interactive maps and energy, don't miss the new "FracFocus" website, where you can click on each state and identify the chemicals used in many hydraulically fractured oil and natural gas wells in that state; twenty-four industry members are now voluntarily disclosing the chemicals that they use. 

As concerns associated with energy risks rise, we must expand renewable energy production.  But all forms of energy production have some negative effects, and recent reports, maps, and articles remind us that we should address these effects in our quest toward cleaner, safer energy.

Hannah Wiseman

April 18, 2011 | Permalink | Comments (0) | TrackBack (0)

Transit Expansion in Metro Atlanta?

The AJC recently ran a very surprising story about transportation funding requests from Metro Atlanta jurisdictions.  "Surprising" because more than half of the local government funding requests (which would be paid out of a proposed regional sales tax) seek money for transit rather than road projects.

Indeed, some area communities that have consistently resisted the expansion of transit into their jurisdiction (like Cobb County) have now changed their tune.

Could it be that rising congestion and energy costs are making transit-oriented development more desirable?  

Probably so.

More than half of the $22.8 billion in formal applications, $13.5 billion, were mass transit projects, compared with $8.5 billion in road projects, according to ARC. An additional list of projects with fuzzier cost estimates adds billions more of both roads and transit. All dollar values in the list still need cleaning up, and in the following weeks ARC officials say they are likely to weed out more overlap between projects, which could bring the figures down significantly.

As things stand, the region could not build the entire list of mass transit requests under this referendum. Currently the transit requests are nearly double the amount of money expected to come from the tax. Furthermore, the region has already set a general guideline to spend a lot of the tax on roads and other projects. And the simple fact is that the vast majority of metro Atlantans — the voters who will make the final decision — choose to travel primarily by car.

However, green-lighting even one of the train lines into a suburban county could change the regional landscape as we know it, showing that suburban demographics and culture have changed, too. Efforts to expand MARTA rail into Cobb, Gwinnett and Clayton met stony resistance in past decades. Now, floods of newcomers in those counties, including many from cities with rail systems, have shifted attitudes.

On a related note:  this past Saturday, I took my Smart Growth Law seminar course on a "site visit" trip to Atlanta.  We met at the Atlanta airport and walked to the MARTA station inside the airport.  From there, I divided the students into groups of 3 and sent them out onto MARTA with an all-day ticket and a straightforward assignment:

Imagine you live in Atlanta and do not have a car.  Identify which MARTA stops you could live at and meet your daily needs within walking distance of the station which you live near or another station that you could reach via MARTA.  After you've found these options, analyze their zoning and other regulations (federal, state, local) that result in this situation.

Chad Emerson

April 18, 2011 | Permalink | Comments (0) | TrackBack (0)

Friday, April 15, 2011

Stern's Reassessment of the Citizen Virtues of Homeownership

Stephanie Stern (Chicago-Kent) has posted Reassessing the Citizen Virtues of Homeownership, 100 Colum. L. Rev. 101 (2011). Here's the abstract:

The assumption that homeownership creates more politically and civically engaged citizens who contribute to local communities (as well as national democracy) dominates property law. This belief underlies influential theories of property and land use and justifies housing policies promoting homeownership and expanding homeownership’s reach. This Essay challenges the “citizenship virtues” of homeownership and contends that the evidence reveals a far more modest, and particularized, picture of citizenship effects than commonly assumed. I explore psychological, historical, and economic factors that may underlie the variable citizenship effects from homeownership. Some of these factors elucidate not only why owners and tenants perform similarly in certain citizenship measures but, by the same token, why it is not universally true that fear of increased rents constrains local contribution by tenants. I consider the implications of this analysis for legal theory and note potential applications to housing policy.

Jim K.

April 15, 2011 in Housing, Property, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, April 14, 2011

Are Urban Walmarts a Good Thing?

That's the question that is generating increasing discussion these days.

What's happening is that Walmart has recognized the demand for huge suburban stores is waning in a major way.  That leaves smaller urban sites as one of the few growth opportunities.

However, many land use codes limit building size and frontage types even more stringently in urban settings.  This has led Walmart to consider new store types and formats that reach all the way down into the 15,000 square foot building size--smaller than even some Walgreens or CVS stores.

This article discusses whether--even if built in a context-sensitive size--urban Walmarts a good thing?

The Washington Post's Capital Business section today is all about Walmart, and reporters found an ambiguous picture when looking at locations that have already sprung up in the area. Existing big-box grocery stores don't do well once Walmart arrives, and new ones don't locate nearby (in D.C., Giant's unionized workers have taken to wearing Respect DC buttons on the job). But if you are a smaller store and offer something unique, a Walmart can bring more customers, not fewer.

Chad Emerson.

April 14, 2011 | Permalink | Comments (0) | TrackBack (0)

Thoughts on Japan

Rob Verchick (Loyola) has a thoughtful editorial in the Christian Science Monitor about recovery from the recent earthquake and tsunami:

In policymaking circles, the questions are already flying. What parts of the landscape should be restored? How safe should sea walls and nuclear reactors be? How should the public participate in this debate? Looking to the recent history of disaster recovery, leaders are given two contrasting models for how to approach rebuilding: the heavy-handed approach of Kobe, Japan’s Mayor Kazutoshi Sasayama after the Great Hanshin earthquake in 1995 or the hands-off approach of Mayor Ray Nagin in New Orleans after hurricane or. Should leaders favor the heavy hand or the light touch? If history’s a guide, the path will be muddy. But already it may be taking shape.

Read more here.

I'm also disturbed by a recent article in The New York Times about how the nuclear industry relies on a large temporary workforce of economically vulnerable workers who brave extreme exposure to radiation without much training or job security.  And, according to the article, this is not just a minority of low level workers, but the vast majority of the work force at plants such as Fukushima Daiichi.

Collectively, these contractors were exposed to levels of radiation about 16 times as high as the levels faced by Tokyo Electric employees last year, according to Japan’s Nuclear and Industrial Safety Agency, which regulates the industry. These workers remain vital to efforts to contain the nuclear crisis at the Fukushima nuclear plants.

They are emblematic of Japan’s two-tiered work force, with an elite class of highly paid employees at top companies and a subclass of laborers who work for less pay, have less job security and receive fewer benefits. Such labor practices have both endangered the health of these workers and undermined safety at Japan’s 55 nuclear reactors, critics charge.

“This is the hidden world of nuclear power,” said Yuko Fujita, a former physics professor at Keio University in Tokyo and a longtime campaigner for improved labor conditions in the nuclear industry. “Wherever there are hazardous conditions, these laborers are told to go. It is dangerous for them, and it is dangerous for nuclear safety.”

This disaster has raised serious questions about long-settled practices, in land use, disaster recovery, and energy generation. My hope is that the recovery process will teach us something about dealing effectively and humbly with the power of nature and its effect on how we order our lives.

Jamie Baker Roskie

April 14, 2011 in Development | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 13, 2011

The Demise of Historic Preservation?

As federal, state, and local governments face expanding budget crises, will historic preservation programs be one of the first items on the chopping block?  President Obama's February budget proposal would have eliminated Save America's Treasures and Preserve America, which support historic preservation.  Also in February, Governor Rick Perry of Texas proposed to eliminate funding for the Texas Historical Commission. The most important battles may be fought at the local level, however, where taxpayers are beginning to question the merits of tax breaks for property owners who preserve and maintain historic landmarks.  On April 12, three homeowners in Austin sued the city and its city council, arguing that the tax breaks that apply to more than 500 landmarks in the city violate state law.  In Detroit, historic buildings have crumbled as businesses have vacated structures, leaving them vulnerable to vandalism.  

The U.S. Supreme Court in Penn Central Transportation Company v. City of New York noted that "nationwide legislative efforts" toward historic preservation reflect a "widely shared belief that structures with special historic, cultural, or architectural significance enhance the quality of life for all."  But as governments struggle to provide funding for other essentials, pieces of our past may be lost. 

Hannah Wiseman

April 13, 2011 in Budgeting, Historic Preservation | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 12, 2011

More on Detroit...this time an interactive map...

Here's another interesting resource on my hometown related to land use and development issues:  an interactive map from the NYT on how Detroit might shrink to concentrate the limited demand and services that the city faces.

It's beginning to appear more and more likely that Detroit is shaping up to be the living land use lab for all types of different ideas going into the future.  That may actually end up being a good thing if it produces a new model(s) for effectively contracting municipal boundaries in an orderly way.

Chad Emerson

April 12, 2011 | Permalink | Comments (0) | TrackBack (0)

In Memorium: Milner Ball

Yesterday I attended the funeral service for long-time UGA law professor Milner Ball.  Milner was best known as a constitutional law professor.  He was also well known for creating the first civil law clinical program here at UGA - the Public Interest Practicum, and our first Environmental Law Clinic. (The Land Use Clinic is an offshoot of the Enviornmental Law Practicum that grew out of that first clinic.) All of the clinicians here owe a huge debt to Milner.  Indeed, most of us would not be here without his influence and guidance.  We all miss his grace, cheer, intellect, and gentle leadership.

His obituary can be found here. My condolences go out to his wife June, and his children and grandchildren.

Jamie Baker Roskie

UPDATE: The UGA School of Law has launched a tribute page for Milner.

April 12, 2011 in Environmental Law, Teaching | Permalink | Comments (2) | TrackBack (0)

NYU Furman Center's State of NYC Housing & Neighborhoods

Vicki Been and the NYU Furman Center for Real Estate & Urban Policy have announced the release of their 2010 State of New York City's Housing and Neighborhoods report.  Here's the email announcement, posted with permission:

Dear Friends and Colleagues,

We are pleased to present the 2010 edition of the State of New York City’s Housing and Neighborhoods annual report. As you well know, this report is a critical resource for data on housing, demographics, and quality of life indicators for each borough and for the city’s 59 community districts.

This year, we examine multi-family rental properties, a critical source of housing for more than four in ten New Yorkers. We find that multi-family rental properties received more foreclosure notices in the last two years than any period since the early 1990s. The study finds that smaller multi-family rental buildings (5-19 units) are most likely to receive a foreclosure notice among the multi-family properties, while the largest properties (100 or more units) have experienced the sharpest uptick in foreclosures in the recent years. The report also finds evidence that renters experience deteriorating living conditions when multi-family rental properties fall into financial distress and foreclosure.

This year’s report also includes new chapters: Getting to Work in New York City, which presents an analysis of commuting patterns in New York City, and Public and Subsidized Rental Housing in New York City, which finds that nearly one in five residential units (18.4%) in the city is publicly supported.

A look at the trends in this year’s State of New York City’s Housing and Neighborhoods reveals that the state of New York City’s housing market remains uncertain.  After dramatic declines in housing prices in 2008 and 2009, the prices of condominiums and multi-family buildings began to bounce back in 2010, but the prices of single-family and 2-4 family homes continued to decline. In Manhattan, where the market avoided the sharp declines of the outer boroughs, housing prices are down only 9.9 percent from their peak, compared to 27.8 percent citywide.

Mortgage lending remained low in 2009, but the number of refinancing loan originations jumped as homeowners took advantage of historically low interest rates. While the housing crisis has been felt across the city, it has had a disparate impact on different racial and ethnic groups. Homeownership grew more quickly among white and Asian families in the last decade than Hispanic or black households, and declines in home purchase during the recession were most dramatic among black and Hispanic borrowers.

Despite the recession, most of the city’s social and economic indicators have improved in the last decade. Median inflation-adjusted incomes increased about five percent between 2000 and 2009. Poverty declined citywide, falling from 21.2 percent in 2000 to 18.7 percent in 2009. The population has continued to grow, led by the Asian population, which increased by 32 percent between 2000 and 2010. Health and quality of life factors have improved since 2000, and the city has experienced overall reductions in asthma hospitalizations, infant mortality and crime.

As always, we eagerly await your comments and feedback. If you would like to receive a hard copy, please email [email protected].

Vicki Been, Ingrid Gould Ellen, Sarah Gerecke

Fascinating information; you can download the full report at the link.

Matt Festa

April 12, 2011 in Affordable Housing, Housing, Local Government, Mortgage Crisis, Mortgages, New York, Planning, Property, Race, Real Estate Transactions, Scholarship, Urbanism | Permalink | Comments (1) | TrackBack (0)

Monday, April 11, 2011

Hybrid Communities with Public-Private Rules

This weekend at the American Planning Association's National Planning Conference I suggested in my presentation during the "Land, Covenants, and Law" panel (organized and led by Professor David L. Callies) that municipalities increasingly apply a combination of private covenants and zoning to form unique communities, which I call "hybrid communities."  Hybrid communities typically arise when a municipal development authority decides to redevelop an area--often a brownfield or a blighted section of a city--into a mixed-use residential/commercial neighborhood.  To form this hybrid community, the municipality initiates a lengthy and open public process to create a master plan, which the municipality's city council or similar legislative body eventually approves or rejects .  If the council approves the plan, the developer of the community forms a private homeowners' association and records a set of covenants, conditions, and restrictions that also govern the community. 

Most traditional "private" common interest communities (those with homeowners' associations and recorded covenants, conditions, and restrictions) operate under both zoning codes and servitudes, but there is not usually an explicit interaction between the public zoning rules and the private servitudes.  Rather, those in the private community know (hopefully) that they must follow the zoning rules and also the servitudes, which are typically more detailed and restrictive than the zoning rules.  The zoning rules typically require minimum setbacks and provide basic use restrictions, while the servitudes and associated design guidelines and rules add more use restrictions and include detailed aesthetic and design restrictions. 

In a hybrid community, unlike a traditional private community, there is often more of an explicit relationship between the public zoning and the private servitudes, and the zoning itself often contains detailed design requirements.  In the Lowry Redevelopment in Denver, for example, the redevelopment authority has aimed to create a green community through its public zoning work, and the private Lowry Community Master Association Rules and Regulations similarly reflect these "green" goals.  They provide, for example, that "rocks used in landscaping should be material native to Colorado" and that "planting concepts, plant varieties, and irrigation techniques which minimize water consumption (xeriscape) are encouraged," referring residents to Denver Water Department publications for more information. 

Other hybrid communities use a similar mix of private servitudes and detailed public zoning to create green, mixed-use living spaces, and these provide interesting case studies in what I argue is a relatively new public-private land use model.  For examples beyond Lowry, see Playa Vista in Los Angeles, Symphony Park in Las Vegas, and the Mueller redevelopment in Austin, among others.  It appears that all of these communities operate under both a public master plan and private servitudes.  In some cases, the municipality might even serve as the "backstop" enforcement authority when a homeowners' association in the redevelopment fails to enforce one of the private rules; according to one conversation at the National Planning Conference this weekend, Missouri City, Texas follows this type of enforcement scheme in its Planned Development Districts.  Professor Marc B. Mihaly describes these types of public-private developments--and the process of forming them--in his excellent article Living in the Past:  The Kelo Court and Public-Private Economic Redevelopment

Will public zoning and private land use controls eventually merge?  Likely not.  As attorney Jo Anne Stubblefield points out, cities have been slow to develop "traditional neighborhood design" districts that allow for mixed-use communities.  But the growth of hybrid communities suggests that new, creative relationships between the public and private land use realms will continue to expand. These communities are not perfect, of course; they may displace low-income populations despite typically requiring a certain percentage of new affordable housing.  And all communities with detailed design and aesthetic restrictions, whether public or private or hybrid, must ensure that those moving in are notified of the restrictions prior to purchase.  These communities do, however, provide interesting food for thought--and possibly good case studies for the classroom, too.  

Hannah Wiseman

April 11, 2011 in Aesthetic Regulation, Common Interest Communities, Community Design, Servitudes | Permalink | Comments (0) | TrackBack (0)

Rule on Sharing the Wind

Troy Rule (Missouri) has posted another interesting paper: Sharing the Wind, from The Environmental Forum, Vol. 27, No. 5, pp. 30-33, September/October 2010.  The abstract:

Landowners today are increasingly selling or leasing to others the right to use the wind flowing across their land to generate electric power. For the first time in history, the right to capture wind in some areas of the country has become marketable and highly lucrative. This article describes landowner conflicts over the wind turbine wake interference in the context of commercial wind energy development. The article contrasts wind currents with water, oil, and wild animals and ultimately advocates an “option approach” to govern situations when neighbors compete with each other over scarce wind resources. 

Great title, too.  We hope to hear more from Prof. Rule soon. 

Matt Festa

April 11, 2011 in Clean Energy, Environmentalism, Property Rights, Scholarship, Wind Energy | Permalink | Comments (0) | TrackBack (0)

Hudson on Federal Constitutions, Global Governance, and Climate Change

Blake Hudson (Stetson) has posted Federal Constitutions and Global Governance: The Case of Climate Change, forthcoming in the Indiana Law Journal, Vol 87 (2012).  The abstract:

Federal systems of government present more difficulties for international treaty formation than perhaps any other form of governance. Federal constitutions that grant subnational governments exclusive regulatory authority over certain subject matters constrain national governments during international negotiations - a national government that cannot constitutionally bind subnational governments to an international agreement cannot freely arrange its international obligations. At the same time, federal nations that grant subnational governments exclusive control over certain subject matters are seeking to maximize the benefits of decentralization in those regulatory areas. The difficulty lies in striking a balance between global governance and constitutional decentralization in federal systems. For example, recent scholarship demonstrates that U.S. federalism may jeopardize international negotiations seeking to utilize global forest management to combat climate change, since subnational forest management is a constitutional regulatory responsibility reserved for state governments. This article expands that scholarship by undertaking a comparative constitutional analysis of five other federal systems - Australia, Brazil, Canada, India, and Russia. These nations, along with the U.S., are crucial to climate negotiations since they account for 54 percent of the world’s total forest cover. This article reviews the constitutional allocation of forest regulatory authority between national and subnational governments in these nations to better understand potential complications that federal systems present for global climate governance aimed at forests. The article concludes that federal systems that maintain three key elements within their constitutional structure are most capable of agreeing to an international climate agreement that includes forests, successfully implementing that treaty on domestic scales, and doing so in a way that maintains the recognized benefits of decentralized forest management at the local level - 1. national constitutional primacy over forest management, 2. national sharing of constitutional forest management authority, and 3. adequate forest policy institutional enforcement capacity. The article also establishes the foundation for further research assessing how the constitutional structures of federal systems lacking key elements may be adjusted to achieve more effective climate and forest governance.

Prof. Hudson is also part of the group--with Lincoln Davies (Utah), Brigham Daniels (BYU), Lesley McAllister (San Diego), and our guest Hannah Wiseman (Tulsa)--who very recently relaunched the Environmental Law Prof Blog on our Law Professor Blogs Network.  Welcome and congrats to them, and check out Prof. Hudson's paper. 

Matt Festa

April 11, 2011 in Climate, Comparative Land Use, Constitutional Law, Environmental Law, Environmentalism, Federal Government, Globalism, Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, April 10, 2011

Mr. Gorbachev, Tear Down This...Overpass...??

With a nod to Reagan's famous Berlin Wall line, the CNU has published a recent list of "Freeways Without a Future".

A very interesting piece that, even if less than half the predictions play out, could fundamentally alter land development patterns in several communities.

Chad Emerson

April 10, 2011 | Permalink | Comments (0) | TrackBack (0)

Thursday, April 7, 2011

Salkin on Practically Grounded Conference

Patricia Salkin has given me permission to re-post this message to the environmental law professors listserv:

In its late February article, entitled “As They Ponder Reforms, Law Deans Find Schools Remarkably Resistant to Change,” the Chronicle of Higher Education reported that law faculty use the “lecture-based model because it is cost-effective and convenient,” quoting Erwin Chemerinsky, Dean of University of California’s Irvine School of Law. In the same article, Dean Richard Matasar of New York Law School bluntly states, "[w]e're all old dogs trying to learn some new tricks, and all of us old dogs have got tenure and we're not going any place.”

John Nolon of Pace Law School and I conducted a teaching survey in the land use law area and found remarkable evidence showing change in teaching skills in recent years.  We suggest that the practical, emotionally-charged, interdisciplinary, and grounded nature of land use, as well as environmental and sustainable development law, make courses on these subjects ideal both for teaching skills and values and for integrating podium and clinical methods of instruction. (See Practically Grounded: Convergence of Land Use Pedagogy and Best Practices, Journal of Legal Education, Vol. 60, Number 3, February, 2011, at p. 519.)  Our survey shows that the trend toward teaching practice skills in traditional doctrinal courses is underway, at least in the land use classroom.

Deans and professors are focused on this issue in part because the American Bar Association is planning to add “student learning outcomes” to the process of accrediting law schools.  Drafting new rules for schools to follow has been delegated to the ABA’s Student Learning Outcomes Subcommittee.  This six-member group is charged with the controversial task of determining the rules that schools must follow to determine and measure the skills that law students should have upon graduation. For further information on these accreditation issues see The National Law Journal of Feb 22, 2011.

Albany and Pace Law Schools are sponsoring a conference on this topic. On May 5th, nearly a dozen land use and environmental law professors from law schools across the country will present their skills and values teaching models. Additionally, our resident experts will facilitate extensive discussions regarding best practices for teaching practice skills to students in upper division courses.  High on the list of discussion topics are the time practice teaching takes, class size issues, and the concern over lost doctrinal coverage.  Please click here for conference information if you are interested in attending.

Matt Festa, Jon Rosebloom, Jessica Owley and I are among the presenters.  We hope you'll join us.

Jamie Baker Roskie

April 7, 2011 in Conferences, Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)

Lifestyle Centers...

As indoor shopping malls became less popular in the last two decades, the open-air lifestyle center (sometimes with a vertical mixture of uses) stepped into the void as an alternative for land developers.

They didn't prove to be the silver bullet though that some predicted. 

This story for Retail Traffic discusses why:

Lifestyle centers, as a concept, rose and fell spectacularly right along with the industry’s boom and bust.

That’s left backers of such properties going back to the drawing board and reimagining what lifestyle centers can be. These new approaches at times seem to redefine the concept itself. Whether or not to include anchors, whether to incorporate of non-retail uses and rethinking tenanting strategies are just some of the questions developers are wrestling with.

Developers are even trying to be more careful about how they use the term. During the boom years, the “lifestyle center” name got abused and stretched beyond all meaning, says Josh Poag, president of Poag & McEwen in Memphis, Tenn., which helped pioneer the concept. “Anything with a Starbucks in it was considered a lifestyle center,” he says. As a result, the label “jumped the shark” and “people were using it for anything and everything.”

If lifestyle centers are to succeed going forward, Poag and others argue that to qualify for the name, they should boast open-air environs and primarily upscale retailers. And while the first lifestyle centers eschewed anchors and included only inline retail, developers feel the mix going forward may be a bit more varied.

What I've yet to see research on is whether the existence of a residential component (like this one) to the lifestyle center has helped keep viability up since it embeds an audience in addition to those who travel to the center.  My hunch is that is the it does because, if someone lives at the lifestyle center, their likelihood of shopping there likely goes up.  The big question is whether the cost of adding the residential product offsets the financial benefit of the built in audience.

Chad Emerson

April 7, 2011 | Permalink | Comments (1) | TrackBack (0)

Wednesday, April 6, 2011

Columbia Conference on Sea Level Rise

From Michael Gerrard at Columbia Law:

Center for Climate Change Law, Columbia Law School and The Republic of the Marshall Islands
invite you to attend an international academic conference:


May 23 - 25, 2011
Columbia University
New York, New York


Scientific summary: How much time do we have?
Statehood and statelessness
Preserving marine rights: Fishing and minerals
Legal remedies


Resettlement and migration issues
Existing legal structures
A new international convention?


Engineering for the future
Law and policy choices

[Visit this link for] Further information, and registration to attend conference or to view live webcast.

Jamie Baker Roskie

April 6, 2011 in Climate, Coastal Regulation, Conferences, Environmental Justice, Environmental Law, New York | Permalink | Comments (0) | TrackBack (0)

Competing Mineral and Wind Rights

In my previous post, I mentioned that renewable energy law often raises property and land use issues.  For a recent example of legislative action in this area, see Oklahoma H.B. 1821, which, if enacted, would provide: "Any rights derived from a wind or solar energy agreement shall be subordinate in all respects to [oil and gas] exploration rights except to the extent consent is otherwise given . . . ."  The bill also would require a wind or solar developer to obtain prior written consent from "the owner of [oil and gas] exploration rights" in order for the developer to "diminish[], abrogate[], or interfere[] with" exploration rights, and the owners of oil and gas exploration rights would be allowed to grant or withhold consent "for any reason or no reason." Jeff Wilson, the Oklahoma Independent Petroleum Association (OIPA) Vice President of Governmental Affairs, notes that "the wind turbines and transmission lines popping up across western Oklahoma can make it tough to bring in oil and gas rigs," and he supports the bill.  A separate pending bill, S.B. 124, would also block wind developers from using eminent domain authority to acquire land.   The wind industry is understandably concerned about these developments, arguing that H.B. 1821 would halt most wind development in the state.

Professor Ernest Smith and Becky Diffen have a useful discussion of broader legal principles likely to emerge in mineral-wind surface disputes in their "Winds of Change" article in the Texas Journal of Oil, Gas, and Energy Law.  As Smith and Diffen point out, developers can avoid many of the conflicts anticipated by Oklahoma's bill through private contracting.  Oil or gas and wind developers can enter into an accommodation agreement, for example, wherein they agree to share roads for rigs and construction equipment and select specific locations for well and tower placement.  Regardless of the remedy chosen, mineral-wind disputes will likely expand in importance as renewables continue to grow, and these raise interesting questions for the classroom.  Will first-in-time principles continue to govern?  Who must "accommodate" whom under traditional common law doctrines? If a wind and mineral lease are acquired simultaneously, should one right have priority over another, or should the parties be required to negotiate from equal positions?  Many of the answers to these questions will likely depend on states' energy priorities.  In states with strong natural gas economies, like Oklahoma, gas development may maintain the upper hand despite the abundant winds that blow through the western portion of the state.   As the OIPA President has argued, "In Oklahoma law, the mineral estate is the dominant estate." If supporters of H.B. 1821 succeed, the law likely will reflect this position. 

Hannah Wiseman

April 6, 2011 in Oil & Gas, Wind Energy | Permalink | Comments (0) | TrackBack (0)