Land Use Prof Blog

Vermont Law School Impacted by Flooding

Vermont Law was closed Monday and Tuesday due to Irene-related flooding.  You can read post-Irene announcements on their website here.  I've sent out an e-mail to my fellow land use clinician (and guest blogger) Kat Garvey at Vermont for an update - I'll post again when I hear from her.  If any other Northeastern law schools are affected, please let us know via the comments function.

Jamie Baker Roskie

SGA on Hazard Mitigation Post Irene

From the Smart Growth America website, news about an ironically timely meeting:

Can smart growth help communities avoid the catastrophic impacts of flooding? The National Oceanic and Atmospheric Administration (NOAA) and the U.S. Environmental Protection Agency (EPA) brought together designers, land use planners, engineers and policy wonks at NOAA’s Silver Spring headquarters last week to examine this question, and to find commonalities and tensions between hazard mitigation techniques and smart growth principles.

Read the rest of the article here.

Berry and Portney on Interest Groups and City Politics

Jeffrey Berry (Tufts-Political Science) and Kent Portney (Tufts-Political Science), nearly 20 years ago, published the award-winning study of grassroots citizen participation in five U.S. cities, The Rebirth of Urban Democracy.  Now they have posted The Group Basis of City Politics, a paper they presented at the 2011 American Political Science Association Annual Meeting.  Here's the abstract:

How do nonprofits empower themselves? In this paper we analyze nonprofit advocacy in city politics, emphasizing especially their interaction with local policymakers. First we discuss what we call the “politics of place” in cities, examining the participation of three types of citywide and neighborhood nonprofits. The second section develops two lines of inquiry and articulates a set of hypotheses that grow out of a theoretical construct relating to low barriers to entry. Next, after describing the empirical methodology, those hypotheses are tested with data derived from large scale surveys in 50 of the nation’s largest cities. The subjects of these three surveys are city councilors, agency administrators, and interest group advocates. We find that access to policymakers in city politics is relatively easy as the barriers to entry for advocates is quite low. Not surprisingly the evidence points to a privileged position for business, though neighborhood associations also stand out in terms of incorporation into the policymaking process.

Jim K.

[email protected]

 

Alavi on Kelo Six Years Later

Boston College Third World Law Journal Notes Editor Asher Alavi has written KELO SIX YEARS LATER: STATE RESPONSES, RAMIFICATIONS, AND SOLUTIONS FOR THE FUTURE.  Here's the abstract:

In 2005, the U.S. Supreme Court upheld the constitutionality of eminent domain takings that benefit private developers in Kelo v. City of New London. The case led to public outcry on both the right and the left and the revision of many state eminent domain laws to curtail such takings. However, most of the new laws have been ineffective. In many states, the burden of the takings falls largely onto poor, minority communities while, in others, revitalization projects by private developers are prohibited entirely. This Note examines the negative implications of current approaches to takings on inner-city, minority communities and concludes that states should adopt an approach that allows revitalization of blighted areas by private developers but also provides effective limits such as a narrow definition of blight, enhanced compensation for the displaced, and procedural provisions such as Community Benefits Agreements.

Jamie Baker Roskie

Nichols on Tenant Protections under the PTFA

Elan Stavros Nichols (Michigan State) has posted Unanswered Questions Under the PTFA: Exploring the Extent of Tenant Protections in Foreclosed Properties, forthcoming in the Journal of Affordable Housing, Vol. 20, No. 2, Winter 2011. The abstract:

The somewhat new Federal Protecting Tenants at Foreclosure Act (the “PTFA”), as recently amended, still leaves many questions of interpretation in states with the foreclosure by advertisement process, and in states with laws related to issues on which the PTFA is silent. The PTFA is vague in places, and does not address certain issues raised by the foreclosure processes in certain states, where state law is not clearly preempted.

This article will examine how the PTFA, including the recent amendments and any recent judicial and advisory opinions, applies in states with the foreclosure by advertisement process (as opposed to judicial foreclosure). The article will use Michigan as a case study for this inquiry, briefly discussing other states with a similar process. In so doing, the article will discuss issues raised in these states concerning matters on which the PTFA’s terms are vague or wholly silent.

To that end, this article picks up where the article, “Interpreting the Protecting Tenants at Foreclosure Act of 2009,” 19 J. of Affordable Housing & Community Dev Law 205 (Winter, 2010), by Allyson Gold, left off. Of particular assistance will be the recent statutory amendments, any relevant case law, interpretive statements from the Department of Housing and Urban Development, and the “working interpretation” adopted by legal services providers and others agencies dealing with the foreclosure crisis. Consequently, this article will conclude with a proposal for a reasonably fair interpretation of the PTFA in states with foreclosure by advertisement and in states where the PTFA is not expressly preempted but still leaves questions.

Matt Festa

Hirokawa on Zoning and Rezoning under the Change-or-Mistake Rule

Keith H. Hirokawa (Albany) has posted Making Sense of a 'Clear Misunderstanding of the Planning Process': Examining the Relationship Between Zoning and Rezoning Under the Change-or-Mistake Rule. The abstract:

In some states, zoning is marked by the persistence of the so-called “change or mistake rule." In contrast to the traditional deference afforded to local zoning decisions, this rule limits the freedom of local governments to make site-specific zoning amendments by burdening the applicant to justify the rezone with evidence of a mistake or a substantial change in circumstances since the initial zoning designation was adopted. Despite being chastised in the courts and labeled in legal literature as a “clear misunderstanding of the planning process,” the rule has endured for over a half a century. This article explores the criticisms of and justifications for the change or mistake rule in order to identify the understanding that supports its continued application. Specifically, this article argues that the change or mistake rule was intended as a mediator between two fundamental purposes of zoning - maintaining communities that have sufficient flexibility to implement a new community vision, while providing stability and certainty as a planning device.

Looks really interesting. The rule cuts to the heart of the larger, longstanding public administration debate over rational-comprehensive planning versus flexible incremental decision making.

UPDATE: bad link fixed; thanks for the tip!

Matt Festa

Hurricane Irene

Looks like as I write this on Saturday, Hurricane Irene has hit North Carolina and is poised to strike the Northeast tonight or tomorrow. It's not particularly strong (as hurricanes go) but it's incredibly wide, so a lot of people will be affected. I'm currently looking at a baseball game that was moved up a day for a doubleheader. Major hurricanes and their aftermaths bring all sorts of land use and other legal issues into focus (see, e.g., Robin Paul Malloy, ed., Law and Recovery from Disaster: Hurricane Katrina (Ashgate 2009).

But right now I'll just offer a few basic observations from experience living on the Gulf Coast. Growing up in New York I had no experience with hurricanes. Since living here I've been through the storm or the aftermath of Tropical Storm Allison and Hurricanes Katrina, Rita, and Ike.

The most important decision is whether to stay or go. On this question you should really trust the authorities. In 2005, Houston was the major evacuation center from New Orleans for Hurricane Katrina. Having volunteered to help with the 100,000+ refugees in person and being well tuned-in to the scenes of the destruction, suffering, and lawlessness in the aftermath, many Houstonians instinctively decided to evacuate several weeks later when Hurricane Rita bore down on the Southeast Texas coast. But the mass evacuation turned out to be miserable--or worse--for most. The entire state's highways were gridlocked, all the gas stations were sucked dry, and the majority of evacuees either spent 24+ hours on the road (in 100 degree heat) or got stranded.

Most local governments now have fairly sophisticated data on where storm surges (which are the most dangerous parts of hurricanes) are going to hit. During Hurricane Ike in 2008, the civil authorities did an outstanding job in communicating exactly which low-lying areas needed to evacuate, while the word of the day to everyone else was to "hunker down." This turned out to be quite effective. You can see that New York City has something similar with it's pre-planned hurricane zones and it's order as of this writing to evacuate Zone A. Ike devastated Galveston but loss of life was kept down and the 4+ million in Houston handled it much better than Rita.

If you rely on public transportation, prepare for it to be shut down. New York has already closed the subway. Don't plan to drive unless you have to. In fact, if you do "hunker down," get your hands on as much stuff as possible, particularly water, ice, batteries. Gas up and get cash now. Get some food that will last a week or more. Tie down or move indoors anything that could become a projectile. There are lots of hurricane-preparedness websites out there (even Louisianan James Carville has chimed in) so I won't repeat everything you'll find there. Prepare to be without electricity, internet, or cell phone service. If you have relatives or friends in the interior, it's a good idea to contact them now and ask them to serve as a "rally point" for communications or even to meet up with family in case power and communications go out for a while after the storm.

Bottom line, take it seriously. Don't assume that the danger is linked to the "cat" number--Allison was downgraded to a Tropical Storm before it hit Houston, and did more damage than any of the other hurricanes (just ask my friends at the University of Houston Law Center). But don't overreact by fleeing if you don't need to or without proper supplies. Go ahead and have that hurricane party, and bond with neighbors in the cleanup, but not until after you've done everything you can to prepare. Remember, it it turns out to be not as bad as you thought, that's a good thing. Prepare for the worst and hope for the best. Hopefully you'll all safely bid Goodnight Irene.

UPDATE: Looks like the storm has moved into New England towards Canada, and it turned out to be not as bad as anticipated. Great news. Some pundits will predictably complain that it was overhyped, but that's doing a disservice to everyone involved, and hopefully will not cause excessive underreaction next time. These are incredibly dangerous and destructive events, and once people start dying it's too late to change your mind and start taking it seriously. Better safe than sorry, and it doesn't hurt to have a dress rehearsal in an area of the country that doesn't have as much experience responding to this particular type of emergency.

 

Matt Festa

Craig on Defining Riparian Rights as 'Property' through Takings Litigation

Robin Kundis Craig (Florida State) has posted Defining Riparian Rights as 'Property' Through Takings Litigation: Is There a Property Right to Environmental Quality?, forthcoming in Environmental Law. The abstract:

The U.S. Constitution’s prohibitions on governments taking private property without compensation have always operated most clearly in the context of real property. In contrast, arguments that these takings restrictions should apply to water and water rights throw courts for a loop. A fundamental problem for takings decisions in the water rights context is the fact that both the status of water rights as property and the defining elements of any property rights that exist are contested.

This Article argues that takings litigation can become a productive occasion for defining the status and nature of water rights, especially, increasingly, in the riparianism context. It first provides a quick review of basic takings jurisprudence, emphasizing how the constitutional prohibitions on government takings apply to property use rights, such as easements. It then examines the potential for takings litigation to help define the nature of water rights in general, focusing on relatively recent litigation involving water rights connected with cattle grazing. The Article ends by discussing a series of cases involving riparian water rights and claims that those rights entitle the owners to certain basic environmental quality standards, especially with respect to water quality. It concludes that takings jurisprudence in the riparian rights context may yet align private property rights and environmental protection, providing a more focused - and potentially more predictable/less balancing - private cause of action than nuisance for certain kinds of environmental degradation.

Matt Festa

Urbanology: On-Line Urban Planning Game

This might be fun for students:  the BMW Guggenheim Lab has posted the on-line urban planning game Urbanology.  Answer 10 questions to find your future city (based on your decisions on issues like converting an affordable housing block into a hotel and allowing startup companies to pay less than minimum wage). My future city was most like Toronto, maybe because I would allow the local college to build a 50 story dorm.

Jamie Baker Roskie

Wisconsin hiring announcement

From Stephanie Tai at the University of Wisconsin:

THE UNIVERSITY OF WISCONSIN LAW SCHOOL invites applications for one or more tenure-track faculty positions to begin Fall 2012 (negotiable). Applications are welcome across legal fields and at the intersection of law and other academic disciplines. The University of Wisconsin Law School has a strong institutional commitment to diversity of all types, and we encourage applications from those whose backgrounds can further contribute to the diversity of the faculty. Applicants should submit a letter of interest, current résumé (including a list of teaching interests), a research agenda, and references to: Professor Anuj C. Desai, Chair, Faculty Appointments Committee, University of Wisconsin Law School, 975 Bascom Mall, Madison, WI 53706-1399 (or via e-mail to <[email protected]>). The University of Wisconsin-Madison is an affirmative action/equal employment opportunity employer.

They're doing a general search, but since they reached out to us here at the blog, we can assume that land use applications are welcome!

Matt Festa

NYU Furman Center on Mortgage Lending in the Recession

The NYU Furman Cente for Real Estate and Urban Policy has published some great stuff over the last few weeks. Here's one of their terrific recent reports:

We are pleased to share with you the latest publication from the Furman Center’s Institute for Affordable Housing Policy, Navigating Uncertain Waters: Mortgage Lending in the Wake of the Great Recession.

This report summarizes our February 4, 2011 Roundtable of the same name, and provides an in-depth exploration of credit availability and lending patterns during the recession. The event brought together 75 policymakers and academics from across the nation to assist government, the mortgage industry, academics, and non-profits address the challenge of mortgage credit need and availability through informed discussion and research.

By publishing this report, we aim to make the discussion and insights shared during the Roundtable available to a wider audience. We hope you find the materials informative, and we look forward to receiving your feedback.

Matt Festa

Vermont Law Prof Jailed in Protest Against Tar Sands Pipeline

Vermont Law professor and former Yale Forestry dean Gus Speth spent 48 hours in a DC jail over the weekend, protesting the plan for a 1,700 mile pipeline from Canada's tar sands to Texas.

According to this article from the Rutland Herald, Speth issued a statement from jail:

We the prisoners being held in the Central Cell Block of the D.C. Jail need company and encourage the continuation of the protests against the tar sands pipeline. … I've held numerous positions and public office in Washington but my current position feels like one of the most important.

There's a chance to join the Vermonters in their protest next week, if you're so inclined.

Thanks to Lora Lucero, land use prof at UNM for the tip on this story.

Jamie Baker Roskie

UPDATE: As it turns out, Lora herself was arrested Sunday as well...

Earthquake!

I realize no one is relying on the Land Use Prof blog for breaking news (thank heaven) but it's interesting to note that there have been two relatively major earthquakes in the continental US in the last two days.  One struck Colorado near the New Mexico border last night shortly before midnight. The other hit Richmond, Virginia shortly before 2:00 this afternoon, and was felt up and down the Eastern Seaboard (including here in Athens, although not by this blogger, who was in an office near a active rail yard at the time).

No speculation being reported yet about any relationship between the two quakes.

Jamie Baker Roskie

2020 View of Urban Infrastructure: The Urban Lawyer's Juergensmeyer Festschrift

This exciting issue of The Urban Lawyer came in the mail recently, and I didn't get a chance to blog it when it came in, but it's chock full of great articles as well as a fitting tribute to one of the leaders in our field.  The articles start at the citation 42 Urban Law. 1 (Winter 2011).  It's a longish list but there are so many interesting contributions.  From "A 2020 View of Urban Infrastructure: A Festschrift Symposium in Honor of Julian Conrad Juergensmeyer, on the Occasion of his 45th Year of Teaching Law":

Infrastructure Planning

Generally

• Patricia E. Salkin, From Bricks and Mortar to Mega-Bytes and Mega-Pixels: The Changing Landscape of the Impact of Technology and Innovation on Urban Development
• Arthur C. Nelson, Reforming Infrastructure Financing with 2020 Vision
• Robert W. Burchell, Matthew S. Crosby, & Mark Russo, Infrastructure Need in the United States, 2010-2030: What is the Level of Need? How Will it be Paid For?

Transportation

• Catherine L. Ross, Bruce Stiftel, Myungje Woo, & Arthi Rao, Measuring Regional Transportation Sustainability: An Exploration
• Edward H. Ziegler, Sustainable Urban Development and the Next American Landscape: Some Thoughts on Transportation, Regionalism, and Urban Planning Law Reform in the 21^st Century
• Thomas G. Pelham, Transportation Concurrency, Mobility Fees, and Urban Sprawl in Florida

Electricity

• Fred Bosselman, The Future of Electricity Infrastructure

Wastewater

• James Bross, Sewers: Infra Dig and Infra Dug
• Dwight H. Merriam, The Last Thing That Planners Talk About Should Be the First
• Colin Crawford, Wastewater Resources: Rethinking Centralized Wastewater Treatment Systems, Land Use Planning and Water Conservation

Social Infrastructure

• James A. Kushner, Affordable Housing as Infrastructure in the Time of Global Warming
• Juli Ponce, Affordable Housing as Urban Infrastructure: A Comparative Study from a European Perspective
• Michael Prieur, Draft Convention on the International Status of Environmentally-Displaced Persons
• Janice C. Griffith, Green Infrastructure: The Imperative of Open Space Preservation

Infrastructure and Property Rights

• David L. Callies, Mandatory Set-Asides as Land Development Conditions
• Rachelle Alterman, The U.S. Regulatory Takings Debate Through an International Lens
• Michael Bothe, Property Rights and Local Zoning v. Nature Protection: Some Comparative Spotlights
• Craig M. Call, Resolving Land Use and Impact Fee Disputes: Utah’s Innovative Ombudsman Program

Future Directions

• Ellen Margrethe Basse, Urbanization and Growth Management in Europe
• Jerry Weitz, The Next Wave in Growth Management
• Julian C. Juergensmeyer & James G. Nicholas, Loving Growth Management in the Time of Recession

Matt Festa

 

 

Fershee on The Problems with Piecemeal Federal Transmission

Joshua P. Fershee (North Dakota) has posted Reliably Unreliable: The Problems with Piecemeal Federal Transmission and Grid Reliability Policies, Center for Energy and Environmental Law, University of Connecticut School of Law Policy Paper, July 2011.  The abstract:

In the past, electricity was considered a local concern, but over time major portions of the electrical grid have become regional, national, and even international in scope. Electricity regulation has evolved into a complex web of multijurisdictional oversight, and this evolution has created both tensions and opportunities. National legislation and regulation have helped increase reliability, diversify the fuel mix for electricity generation, and create a more open market for electricity. However, national regulation designed to enhance open markets also created opportunities for abuse. In addition, the increasing level of federal oversight has led to conflicts between state and federal entities as the traditional sense of local control over siting and delivery of electricity has been eroded.

A large portion of the current U.S. transmission system is between thirty and fifty years old. As the transmission grid ages, reliability concerns increase; an old grid is simply more likely to fail. Still, new transmission infrastructure is expensive, laborintensive, and complex. Further, there are significant concerns about whether upgraded and expanded transmission lines are the best way to improve safety and reliability.Certainly, with the advent of microgrids and other technologies, transmission lines are not the sole option. A multi-faceted approach that considers local and regional needs, as well as those of the nation as a whole, is necessary.

There are several areas in need of consideration. Recent federal legislation designed to address transmission siting has been well intended, but limited in scope. Further, recent court decisions have all but eliminated the potential effectiveness of the federal siting authority. In addition, cost allocation issues for new energy facilities have emerged as paramount in the relatively new era of competitive markets for power generation, and these issues have been exacerbated by recent energy policy developments. Finally, policies designed to address public safety and environmental concerns have impeded (or run the risk of impeding) broader policy goals, because the policies are often limited in scope and not part of a comprehensive package then ensures necessary synergies to improve grid reliability.

There is no shortage of effort at the state, regional, and federal levels to improve electricity grid reliability and safety. Unfortunately, in many cases, the efforts have been competitive with other energy-related policies (such as climate change initiatives and renewable energy mandates), and jurisdictional conflicts have obstructed, rather than facilitated, many such efforts. It is time for Congress to provide clear authority to someone to make and coordinate changes. A failure to act to preserve and improve the safety and reliability of our electric system would be a costly and avoidable failure. And that is something no one can afford.

Prof. Fershee had a very interesting presentation at SEALS last month too; check out this timely paper.

Matt Festa

Lewis & Clark Clinic Wins Big Victory Against Coal

I'm a bit tardy in getting this out, but over the summer the folks at Lewis & Clark's Pacific Environmental Advocacy Center won a big victory against Portland General Electric, effectively making Oregon a coal free state.  LC law students were integrally involved in this case, making for one of the most fantastic clinical experiences ever (in my opinion).

Read more about it on the LC website. (Full disclosure: If it seems like I'm bursting with price, perhaps it's because I am an LC [undergraduate] alumna.)

Jamie Baker Roskie

South Texas job announcement: Property

Here's some exciting news, for me anyway. South Texas College of Law is looking to hire a property scholar:

South Texas College of Law invites applications from both experienced and entry-level faculty for one or more full-time, tenure-track positions beginning in the 2012 - 2013 academic year. While all candidates will be considered, we particularly seek candidates interested in teaching the required property courses, and commercial law (including courses covering the Uniform Commercial Code). Other areas of interest include real estate development and finance, and international law. We seek candidates with outstanding academic records who are committed to both excellence in teaching and sustained scholarly achievement. Members of minority groups and others whose backgrounds will contribute to the diversity of the faculty are especially encouraged to apply.

South Texas College of Law provides a diverse body of students with the opportunity to obtain an exceptional legal education, preparing graduates to serve their community and the profession with distinction. The school, located in downtown Houston, was founded in 1923 and is the oldest law school in the city. South Texas is a private, nonprofit, independent law school, fully accredited by the American Bar Association and a member of the Association of American Law Schools, with 55 full-time and 40 adjunct professors serving a student body of 1,300 full and part-time students. South Texas is home to the most decorated advocacy program in the U.S. and the nationally recognized Frank Evans Center for Conflict Resolution.

Please send letters of interest and resumes to Professor Kevin Yamamoto, Chair, Faculty Appointments Committee, South Texas College of Law, 1303 San Jacinto Street, Houston TX 77002; Tel: (713) 646-2945; Email: [email protected]

Via Fran Ortiz, a property colleague on the hiring committee. You can contact Kevin or Fran about the position, and of course I'd be more than happy to talk with anyone about the great opportunities for teaching and scholarship at South Texas College of Law, or about living in the diverse and dynamic city of Houston.

Matt Festa

City Journal on Private Funding for New York's Parks

The renaissance of many of New York's parks--such as Central Park and Bryant Park--after decades of neglect has been one of the more visible urban sucess stories of the last decade or so. In a City Journal piece titled Parks and Re-creation: How private citizens saved New York's public spaces, Laura Vanderkam attributes this to the innovative public-private partnerships that were created to finance and manage them outside of the City's parks bureaucracy:

But perhaps the most amazing thing about Central Park is how little tax money goes into maintaining it. Though it is still ultimately the city’s responsibility, the park has been managed since the 1980s by the nonprofit Central Park Conservancy, and it relies on private donations for most of its budget. The marriage between the city and the Conservancy has been a fruitful one. Can this model, known as a public-private partnership, restore and invigorate all of New York’s green spaces, including neighborhood parks in less affluent areas? It’s an important question, not only as the city faces tough fiscal times but as urban planners increasingly view parks as tools of economic development and public health.

Matt Festa

USPS Closing Many Rural Post Offices

An interesting article on the New Urbanist Network about how the Postal Service plans to close 3,600 rural post offices. 

For many communities, the closings may reduce activity in town or village centers. Even with diminishing mail volume, there are still many people who cross paths at the post office. The drawing power of post offices was recognized early by new urbanist developers such as Robert Davis in Seaside, Florida, and Buff Chace and Douglas Storrs in Mashpee, Massachusetts.

The article also links to the website "Save the Post Office," which has a list, by state, of the closings.  Georgia will lose about 45 post offices, mostly rural but some in Atlanta.

Jamie Baker Roskie

Good Magazine's Readers' Choice Award for City Guide Goes to Asheville, NC

Cool Southeastern city Asheville, North Carolina is featured in Good magazine in a reader-created guide called "A Local's Guide to the Land of the Sky."  The guide is fun and informative, but It's missing my favorite features of Asheville - it's many yoga studios and spas. What does any of this have to do teaching land use law, you may ask yourself? Well, a land use prof has to vacation somewhere, and while most of us are just returning to our daily routines it's not too soon to begin planning the next break...

Jamie Baker Roskie