Thursday, September 15, 2011
It is conventional wisdom in some circles that “comprehensive planning” and sprawl are polar opposites- that planning is the enemy of sprawl.
But in fact, a comprehensive plan is almost as likely as a zoning code to be pro-sprawl. Many of the land use policies that make suburbs automobile-dependent: wide roads, long blocks, low density, single-use zoning, etc. can just as easily be found in a comprehensive plan.
For example, Alpharetta, Georgia is an outer suburb of Atlanta. Its plan’s future land use map , like the city's zoning code, lists a variety of single use zones. Most of these zones are quite low in density; the highest density, for apartments, is only 10 units per acre, barely enough to support minimal bus service. At these densities, not too many people live within walking distance of public transit, so there is not enough demand to support buses running more often than every half an hour or so, let alone rail service.
The plan also provides for numerous zones that are clearly incapable of supporting public transit, such as a “residential estate” area of 3-acre lots and a “very low density” area of half-acre lots. The plan provides that only 4% of the city’s land is to be used for apartments, as opposed to 54% for low-density residential.
Moreover, the land use map reveals that what passes for compact development in Alpharetta is not intermingled with the city’s offices; instead, high-density residential is a buffer zone between the city’s large stock of offices (near the Georgia 400 highway) and the city’s even larger stock of single-family homes. As a result, most of Alpharetta’s renters will not be able to walk to work even if they work in Alpharetta.
The transportation elements of suburban land use plans may also support car-oriented sprawl. For example, Jacksonville, Fla.'s comprehensive plan calls for 150-foot rights of way on major streets, thus effectively mandating streets with eight or ten lanes. Such streets are a bit too wide for most sane pedestrians.
In sum, comprehensive plans will typically reincorporate the status quo. So if a municipality's zoning code favors sprawling, low-density development, so will the comprehensive plan.
P.S. A more comprehensive discussion of these plans and their deficiencies is in a more extensive blog post at www.planetizen.com.
Julian Conrad Juergensmeyer (Georgia State) and James C. Nicholas (Florida) have posted Loving Growth Management in the Time of Recession, published in The Urban Lawyer, vol. 42 (2011). The abstract:
The current deep and long lasting recession has challenged the value of local government growth management programs – especially those which rely heavily on developer funded infrastructure finance programs such as impact fees. An examination of the characteristics of the current recession reveal that its severity is due in large part to excessive exuberance in housing development in the years preceding the burst of the housing bubble. Many local governments intensified the consequences of over-building by adopting ambitious infrastructure programs funded by impact and other fees charged to developers upon the issuance of building permits or other development approval actions. With residential building permit issuance at near zero in many formerly double-digit growth areas, local governments can no longer pay for nor do they need much of the planned or already constructed infrastructure. The authors advocate greater restraint by local governments in accepting growth projections and issuing bonds to be repaid through impact fee collection. Most importantly, the authors suggest as a pre-condition of development approval requiring developers to submit market studies establishing probable market demand for the proposed development.
Wednesday, September 14, 2011
Patricia E. Salkin (Albany) and Amy Lavine (Albany) have posted Regional Foodsheds: Are Our Local Zoning and Land Use Regulations Healthy?, Fordham Environmental Law Journal, Vol. XXII (2011). The abstract:
Governments at all levels have become increasingly interested in fostering healthy eating habits and sustainable agricultural production. Promoting access to locally grown produce is an important part of many policy goals seeking to address these concerns, and the concept of regional foodsheds has risen in popularity as one method to achieve these goals. Research indicates that community based food systems have the potential to address food security, public health, social justice, and ecological health. Food production and consumption patterns are influenced by a range of federal, state, and municipal policies, but meaningful change in regional food system policies is likely to start with state and local governments, which can take proactive measures to strengthen their regional foodsheds through a variety of land use planning and regulatory actions. This Article focuses on how existing land use plans and regulations can promote healthier and more sustainable communities through the foodshed movement. In particular, this Article discusses specific land use strategies that can be implemented in urban and suburban settings to facilitate local and regional food production and distribution that go beyond farmland preservation strategies and examine, among other things, smaller-scale community gardens, residential agricultural uses and farmers markets.
Alexander Von Hoffman (Harvard-Joint Center for Housing Studies) has posted Housing Rights and Inequality in Post-War America, a paper he presented at the 2011 Annual Meeting of the American Political Science Association (APSA). His brief abstract reads: In the United States the extension of social rights, as expressed in the Universal Declaration of Human Rights adopted by the United Nations in 1948, has been contested and uneven. The politics that have shaped the American welfare state has provided some population groups greater access to these rights than others. By examining the extension of government housing subsidies during the middle decades of the twentieth century era, this paper reveals the dynamics that created social rights for some groups of citizens but not for others.
Tuesday, September 13, 2011
Student Author Nicholas Hoffman of the University of Missouri-Kansas City has published COMMENT: A DON QUIXOTE TALE OF MODERN RENEWABLE ENERGY: COUNTIES AND MUNICIPALITIES FIGHT TO BAN COMMERCIAL WIND POWER ACROSS THE UNITED STATES
From the introduction:
This comment explores the legal nature of claims brought by landowners against zoning ordinances or other entities attempting to limit the use of private wind rights. Part II provides a discussion of the legal issues surrounding commercial wind energy and formulating wind as a property right connected to a fee simple interest in one's land. Part III discusses and explores recent cases furthering, stretching, and defining the legal issues. Finally, Part IV looks to the future implications and the horizon for wind energy in terms of its impacts on the surrounding world and how those impacts might shape the legal policies governing and defining wind rights. If wind energy is going to continue to grow, the interplay of incentive programs, tax credits, local government and community support, technological feasibility, and general unity in the law will need to interact on similar bases.
I find this article particulary interesting because the UGA Land Use Clinic recently worked with the Georgia Wind Working Group and the Southern Alliance for Clean Energy to create a guidebook and model wind ordinance for local governments wishing to faciliate, rather than ban, small scale wind facilities. Perhaps it's a matter of scope and scale - large scale wind facilities aren't particularly feasible in Georgia, and so we haven't had as much controversy over wind as other states.
Jamie Baker Roskie
Econ Journal Watch has published an online symposium featuring a number of short pieces by leading scholars debating the "bundle of rights" characterization of property, which has been critiqued over the past few years. Titled Property: A Bundle of Rights, 8 Econ Journal Watch 193 (2011), the symposium was organized by George Mason economist Daniel B. Klein and PhD student John Robinson. The abstract to their Prologue:
This piece is the Prologue to an Econ Journal Watch symposium entitled, Property: A Bundle of Rights? This Prologue was written to prompt the invited scholars to expound their own criticisms of the bundle-of-rights view, or, as the case may be, to address criticisms out there. The Prologue is written from a staunch yet pragmatic classical liberal perspective. It frames a number of issues, provides a series of quotations, and asks a number of questions intended to prompt the symposium participants. The symposium participants include leading critics of the bundle formulation James E. Penner, Thomas W. Merrill, and Henry E. Smith; younger critics Larissa Katz, Eric R. Claeys, and Adam Mossoff; eminent defenders of the bundle formulation Stephen R. Munzer and Richard A. Epstein; and the renowned property scholar Robert C. Ellickson, who takes a middle position.
The articles are all posted online and should make fascinating reading for all teachers of the subject and anyone interested in property theory.
Monday, September 12, 2011
Land use cases often suggest that “spot zoning” is bad. What is “spot zoning”? One New York Court defines it as as the process of singling out "a small parcel of land for a use classification totally different from that of the surrounding area for the benefit of the owner of said property to the detriment of other owners”. Citizens for Responsible Zoning v. Common Council, 868 NYS 2d 800, 802 (3d Dept. 2008). To determine whether this test is met, courts “may consider several factors, including whether the rezoning is consistent with a comprehensive land use plan, whether it is compatible with surrounding uses, the likelihood of harm to surrounding properties, the availability and suitability of other parcels, and the recommendations of professional planning staff.” Id.
I’ve never understood the point of the label "spot zoning". If a rezoning is to the detriment of surrounding owners (and to the detriment of the public generally) it is problematic whether it is different from the surrounding area or not. So the “spot zoning” label adds nothing to an overall public interest inquiry.
Furthermore, compatibility with surrounding land uses is not necessarily a good thing. Much of suburban America is dominated by houses with nothing to walk to except more houses. As a result, people have to drive miles to get groceries or fulfill any other useful function, thus making our air dirtier and our bodies less fit. One way to alleviate this difficulty is to allow landowners to put stores and shops somewhere in this great mass of housing- in short, to allow spot rezoning. So maybe there should be a presumption in favor of spot zoning.
The latest controversy here at the University of Georgia is the governor's firing of state climatologist, and UGA faculty member, David Stooksbury. The firing was sudden - so sudden, in fact, that Stooksbury's faculty profile still lists him as the state climatologist. The firing was also mysterious - the governor's office gave Stooksbury, and the public, no notice, and the governor's spokesperson will give almost no reasoning behind the decision. Georgia is facing a record drought - again - and folks here on campus are worried about what this means about our leaders' priorities in the face of our climate challenges. For more on this, read political expert and commentator Tom Crawford's post on his Georgia Report blog.
Jamie Baker Roskie
I occasionally post blatently non-land use related posts, and here I go again... I am delighted to announce that I will be co-facilitating a half day CLE on mindfulness and lawyering here in Athens on October 13th. Here's a description created by my co-facilitator, mindfulness teacher Mike Healy:
Explore and understand how stress affects the body and mind. Learn mindfulness practices that can reduce your stress and enhance professional effectiveness – practical tools that will enrich your practice of law.
Ancient wisdom and modern medicine are blended in this workshop, creating one of the most effective programs available today for enhancing competence in the practice of law and enabling healthy living. Learn how mindfulness can:
Increase professional competence through better management of stress
Identify unique aspects of law practice that can trigger stress
Assist in dealing with professional responsibilities and ethics
I believe strongly that mindfulness can make us better lawyers (or teachers) and so in that tangential way it's related to land use prof'ing (and lawyering).
If you're interested in learning more, or in registering, visit Mike's web page here.
And if you're not in Athens but you're interested in this type of training, visit the website of the Center for Contemplative Mind in Society's law program.
Jamie Baker Roskie
Sunday, September 11, 2011
Today America commemorates 9/11 on its tenth anniversary.
While the tragedy and heroics of that day appropriately take precedence, 9/11 has created long-running and controversial land use issues since 2001. From the logistics of managing the rescue operations and the excavation, to last year's "ground zero mosque" kerfuffle, issues from the local to the international have played out in discussions over land use at the WTC site in lower Manhattan.
Two of the most controversial land use questions, especially as the years passed, have been (1) how should 9/11 be remembered at the site, and (2) what and how to build/rebuild to replace the twin towers.
On the first question, public memory and historic presentation, you may have seen the news that the 9/11 Memorial opens with a dedication ceremony today. The project seems to be a classic American example of public-private cooperation:
The National September 11 Memorial & Museum at the World Trade Center Foundation, Inc. began formal operations in the spring of 2005 and worked with the Lower Manhattan Development Corporation on the design and construction management plan. In the summer of 2006, the organization assumed responsibility for overseeing the design and working with The Port Authority of New York and New Jersey (PANYNJ), the construction manager on the project. . . . In the beginning of October 2006, the Honorable Michael R. Bloomberg, Mayor of the City of New York, became Chair of the Foundation’s Board of Directors. Following the election of the Mayor as Chairman, the Foundation named Joseph C. Daniels as President.
At the website, there are links to a lot of of great photos and interactive views of the site and the Memorial.
The second enduring issue--whether and what to rebuild on the site--has generated a lot of criticism as a decade has passed without any replacement for the towers. This issue has been a perfect storm of land use issues: real estate, economics, regulation, federalism, urbanism, architecture, planning, transportation, culture, history, and of course, politics, politics, politics. For what it's worth, my impression has been that on the one hand, it's too simplistic to just say we should have built a ginormous tower immediately to stick it to the terrorists--yes, NY got the Empire State Building up in about 15 months during the Great Depression, but that's not realistic in lower Manhattan today. On the other hand, I think that the decade-long wait for putting some of the world's most valuable real estate to use says something important about the effect of the burdens that we have placed on property in the modern regulatory environment. Many of the procedural and political issues and delays might have been for justifiable ends, but really, a decade?
Things are finally moving along, though. From the Wall Street Journal's Developments real estate blog comes the helpful post Six Questions on Rebuilding the World Trade Center. The signature tower is in progress:
What’s the status of the office buildings? Some are further along than others. One World Trade Center, the site’s signature office building, is going up about a floor per week and is currently around 80 stories out of a total 104, and it’s already the tallest structure in Lower Manhattan.
On the delays:
What’s taken so long? Conflict has been a big theme of the rebuilding. There have been battles with insurers, wars between agencies, and repeated fights between the public sector and private developer Larry Silverstein over how to rebuild and fund his office towers. Those fights have often led to stalemates. Add onto that the fact that the site is extraordinarily complex — it’s often likened to a Rubik’s cube, but it’s sometimes more like a messy ball of rubber bands. The mechanics of the site are all intertwined — exits and emergency systems for the PATH station are in the neighboring towers, and deliveries to One World Trade Center need to run underneath 2, 3, and 4 World Trade Center. This means everything underground had to be built more or less at once, with precision. There is a laundry list of public agencies involved, and historically they hadn’t been great at communicating with each other.
The WSJ also has a great interactive graphic Exploring Ground Zero, Ten Years Later.
9/11 deserves our remembrance today, our continuing thanks for those serving in harm's way, and--secondarily--our commitment to good land use at this very important place for commerce, human activity, and public memory.
September 11, 2011 in Architecture, Development, Downtown, Federal Government, History, Local Government, New York, Planning, Politics, Property, Real Estate Transactions, Redevelopment, Urbanism | Permalink | Comments (0) | TrackBack (0)
Friday, September 9, 2011
If you do a Google Images search for "sprawl", what you will see is lots of aerial views of large subdivisions filled with small and medium-sized houses. But these places are "sprawl with a human face"; often there are sidewalks, or at least lawns for humans to walk on.
Right now, I'm visiting my parents' house in Atlanta and seeing sprawl at its worst. For example, look at this photo (a couple of miles from where I am sitting), showing a residential street where the trees go right up to the street, so there is no lawn to walk on; if you walk you just have to share the street with 40 mph car traffic. This sort of thing even happens in apartment complexes.
Usually, I don’t think the casebooks I use are biased (at least not in a “Democrat vs. Republican” way) – but every so often I see something that gives me pause. In discussing zoning variances, my Property casebook (Dukeminier) writes that although issuance of zoning variances is reversed more often than denial, “This is not to say that variance administration is policed as closely as it should be.” The book then adds that “Illegal issuance [of variances] is a widespread phenomenon nationwide.”
Assuming for the sake of argument that cities are more lenient in granting variances than black-letter law might suggest, I am not sure that it is necessarily a bad thing. Maybe the zoning ordinance makes no sense, or allowing a minor deviation would be harmless in the situation at issue. But the casebook does not seem to share my point of view.
Why not? Perhaps a bias in favor of government regulation. But more likely, I think, a quite understandable “rule of law” bias in favor of cities following their own rules. The authors seem to think that the rules may be stupid, but as long as they are there they should be followed.
Thursday, September 8, 2011
Some exciting news from NYU's Furman Center for Real Estate & Urban Policy:
We are thrilled to announce the launch of our Subsidized Housing Information Project (SHIP), a new resource designed to provide housing agencies, community organizations, tenants and the affordable housing industry with the information they need to develop effective preservation strategies.
The SHIP database contains extensive information on nearly 235,000 units of privately-owned, subsidized affordable rental housing in New York City. Compiled from 50 different public and private data sources, the information is accessible through a user-friendly, interactive data search tool available on our website.
Our Institute for Affordable Housing Policy has simultaneously released the State of New York City’s Subsidized Housing report, which provides a comprehensive analysis of the properties in the SHIP database, and identifies opportunities to preserve affordable housing in the coming years. Another online tool, the Directory of New York City Affordable Housing Programs (Beta) summarizes nearly 200 programs that have been used in New York City to develop affordable housing since the 1930s.
The SHIP was made possible through a collaboration with the New York City Department of Housing Preservation and Development, the New York City Housing Development Corporation, New York State Homes and Community Renewal, and the U.S. Department of Housing and Urban Development, and support from the John D. and Catherine T. MacArthur Foundation, the F.B. Heron Foundation and NYU Law alumnus Herbert Z. Gold (¢40). The New York City Council has also committed to support technical assistance and training for community-based organizations on how to use the database in their preservation efforts and advocacy. We have also received invaluable guidance and support from members of the SHIP Advisory Committee, the IAHP Advisory Board and dozens of affordable housing experts.
The South Bend Tribune reports that U.S. District Judge Robert Miller (NDIN) has granted a preliminary injunction sought by four local residents represented by the ACLU of Indiana. The plaintiffs object to the transfer of the former Family Dollar site, recently bought by the City for $1.2 M, to a local CDC that would turn it over to St. Joseph High School, a co-ed Catholic school which would use it for athletics and parking and had committed to accomodate requested public use for 10 years. (FD: my two older children recently began attending St. Joseph High School here in South Bend, shortly after I began my new post here at Notre Dame.) The local council had approved the acquisition and transfer on a 5-4 vote.
In the opinion, Judge Miller agrees with the plaintiffs that the transfer constitutes a direct subsidy to a religious institution in violation of the First Amendment's Establishment Clause. The Court distinguished recent school voucher program precedent by emphasizing that the below-market transfer by the City is not part of a program with religion-neutral criteria. To me, this point about the ad hoc nature of public-to-private land transfers makes the opinion an interesting land use case. It raises the question: Are religious institutions quarrantined from economic development land transfers even though (as the Court agrees) they are not from public benefits generally?
Related to this point is the nature of the endorsement of (a?) religion. With the qualification that I am not a First Amendment scholar, I did note that the Court found that the transfer violated the second prong of the Lemon test (you know, whether the action's primary effect is to advance/inhibit religion) Even though neither the City nor the plaintiffs thought the issue determinative, the Court disagreed. The Court implied in its ruling that the proposed transfer sends a message to adherents and non-adherents that they are insiders and outsiders respectively. Was that part-and-parcel of the Court's distinction between programmatic and ad hoc public subsidies?
I would be glad to hear from you. I will be following the developments with not-just-an-academic interest.
Wednesday, September 7, 2011
Harvard economist Edward Glaeser--author of much fascinating work on land use and urban development, including his latest book, Triumph of the City-- has posted his latest article, Rethinking the Federal Bias Toward Homeownership, forthcoming in HUD's Cityscape: A Journal of Policy Development and Research, Vol. 13, No. 2 (2011). The abstract:
The most fundamental fact about rental housing in the United States is that rental units are overwhelmingly in multifamily structures. This fact surely reflects the agency problems associated with renting single-family dwellings, and it should influence all discussions of rental housing policy. Policies that encourage homeowning are implicitly encouraging people to move away from higher density living; policies that discourage renting are implicitly discouraging multifamily buildings. Two major distortions shape the rental housing market, both of which are created by the public sector. Federal pro-homeownership policies, such as the home mortgage interest deduction, weaken the rental market and the cities where rental markets thrive. Local policies that discourage tall buildings likewise ensure that Americans have fewer rental options. The economic vitality of cities and the environmental consequences of large suburban homes with long commutes both support arguments for reducing these distortions.
A very important argument; I'm looking forward to reading the whole thing.
Tuesday, September 6, 2011
In public debate over suburban sprawl, one common argument is the “Inevitability Theory.” The Inevitability Theory is based on the following chain of logic:
1. Sprawl happens even in places where government policy doesn’t favor sprawl (such as Canada, Europe, etc.)
2. Therefore, sprawl is an inevitable result of the free market, rather than government policy.
The Inevitability Theory is designed to rebut the environmentalist argument that sprawl is the result of American public policies such as highway construction, minimum parking requirements, anti-density zoning, and anti-pedestrian street design.
My next article criticizes the Inevitability Theory by focusing on Canada. Part 1 of the Inevitability Theory discussed above can be broken down into two assumptions: (a) that Canada sprawls as much as the U.S.; and (b) Canadian public policy is antisprawl. But in my article, I challenge both assumptions, arguing that:
a. Canada is less suburbanized than the United States; even controlling for changes in city boundaries, Canadian central cities have been more likely to grow than their American counterparts. Even Canadian cities that have lost population are better off than many older American cities. For example, the fastest-declining major Canadian city, Montreal, lost 18 percent of its population between 1971 and 2001 (excluding areas annexed to the city in the intervening decades). By contrast, St. Louis lost 44 percent of its population, and other cities such as Cleveland and Detroit lost over 30 percent of their population.
b. If you treat sprawl as a matter of “how we develop” rather than “where we develop”,Canada again differs. 14 percent of Canadian commuters (as opposed to 6 percent of Americans) use public transit to get to work, and 5 percent walk (as opposed to 2 percent in the U.S.)
To be sure, Canada has some automobile-dependent cities and suburbs. But is this necessarily the result of the market at work? In my article, I show that Canadian cities and suburbs have the same kind of anti-density, pro-sprawl regulations as their American counterpart. For example, in both nations, municipal zoning regulations limit density, thus limiting the number of people who can live within walking distance of public transit and other destinations. And in both nations, zoning regulations require businesses to install large amounts of parking, thus reducing density, making driving more convenient, and also making businesses more inhospitable to pedestrians (who often have to walk through large parking lots). And in both nations, streets are often designed to be too wide to be comfortably crossed. However, Canadian regulations do tend to be more lenient (and thus less anti-pedestrian) than their U.S. counterparts.
The full article is at http://works.bepress.com/lewyn/65/ .
Monday, September 5, 2011
Happy Labor Day! This morning I was perusing the Athens paper and happened upon this article about local parkour enthusiasts. The folks at parkour.com define it as "‘Efficient movement from A to B’ (i.e. anything you would do if you were running for your life)," and it involves jumping on and over buildings, stairwells, trees, and anything that comes in your way. I'm always looking for ways to get my students out of the office and seeing how land use really happens out in the world. Maybe I should encourage them to get into parkour, for an up-close-and-personal perspective.
Jamie Baker Roskie
Friday, September 2, 2011
Vermont Law School has established a donation fund for victims of Irene-related funding:
Vermont Law School has established the VLS Relief Fund to accept financial contributions to aid VLS students, staff and faculty who have been affected by Tropical Storm Irene. The top priority are those who need assistance with housing, food, clothing and other basic needs as well as books and other study materials for students. Second priority will be repairs to VLS buildings and grounds that sustained damage from the storm.
For more information on volunteering and donating, visit this website.
I also got an e-mail last night from Vermont's land use clinician, Kat Garvey. Kat and her husband had just returned from their honeymoon, which made for a surreal experience. The Land Use Clinic's associate director, Peg Elmer, suffered extensive flood damage to her home.
Kat is recruiting the VLS community and volunteer lawyers to provide help to flood victims applying for FEMA assistance. If you or your law school has experience with post-disaster relief, I'm sure Kat would love to hear from you.
Jamie Baker Roskie
Keith H. Hirokawa (Albany) and Charles Gottlieb have posted Sustainable Habitat Restoration: Fish, Farms, and Ecosystem Services. The abstract:
The conversion of estuarine marshes and floodplains to agricultural uses through diking, draining, and filling has left little adequate salmon habitat and, as a result, has been a critical factor in the decline of salmon populations. Current efforts to restore salmon by reestablishing ecosystem functionality. In particular, it has become more common to include dam and dike breaches as feasible solutions. Of course, there is a cost involved in habitat restoration, even if it is not an obvious environmental cost.
This article examines the dialogue on salmon valuation by contrasting the historical view of salmon-as-commodity with insights from "ecosystem services." This emerging trend in ecological economics will play a critical role in justifying restoration projects and formulating sustainability strategies; ecosystem services valuation is showing that investments in natural capital can provide substantial returns. This article also provides a case study of the Smith Island Habitat Restoration Project in Snohomish County, Washington. Smith Island, which was converted to farmland a century ago, exhibits enormous potential value for habitat restoration and begs for an inclusive process that considers the voices for economic, human, and ecosystem well-being. The resolution of the Smith Island controversy provides an insightful example of how a sustainability framework can be useful in showing that restoration strategies can offer substantial benefits to other lands uses and interests.