Friday, November 11, 2011

Hills & Schleicher on Balancing the Zoning Budget

Roderick M. Hills, Jr. (NYU) and David Schleicher (George Mason) have posted Balancing the 'Zoning Budget', published in Regulation, vol. 34, no. 3 (2011).  The abstract:

Local government officials regularly adopt zoning changes that result in fewer potential housing units, despite making public commitments to improve housing supply. The reason these zoning changes are successful is because they are often desired by current voters who want to protect the “character” of their neighborhoods, while most of the beneficiaries of increased housing supply are not current voters in the affected district. This political economy dynamic can cause long-term economic harm to communities by harming housing affordability. This paper recommends that local policymakers adopt an annual “housing budget” to clearly identify the number of potential housing units that they want to exist. With this budget established, changes in zoning that reduce the number of potential housing units must be balanced with other changes that expand housing units.

This shorter piece is a very interesting and accessible read, and I especially recommend it if you haven't had the chance to read the longer version from the Case Western Law Review.  This innovative idea has been featured in several media outlets.  The always-fascinating Atlantic "Cities" Blog discusses it in The Case for Strengthening Urban Property Rights; Matt Yglesias posted on it at Think Progress; and the ideas are featured in the book The Gated City by The Economist's Ryan Avent.

Matt Festa

November 11, 2011 in Budgeting, Local Government, Politics, Property Rights, Scholarship, Zoning | Permalink | Comments (0) | TrackBack (0)

Festa on Land Use Seminars and the Teaching of Academic Legal Writing

Matt Festa (South Texas), our blog leader, has posted Academic Research and Writing as Best Practices in a 'Practically Grounded' Land Use Course, 2 Pace Envtl. L. Rev. Online Companion 49 (2011).  I am really excited to see the first of several interesting articles (full list here) coming out of the symposium that Matt, Jamie and several other Land Use Prof Blog contributors and readers participated in last Spring at Pace Law School.  In it, Matt draws on the latest research in legal education best practices to show how land-use "paper" courses can engage students in rigorous legal inquiry across disciplinary boundaries.  Here's the abstract:

Land use is a discipline that involves diverse academic, practical, and social perspectives; it is also an ideal subject for applying nontraditional teaching methods, including those suggested by the “best practices” movement in legal education. In this article - a contribution to the “Practically Grounded” conference on teaching land use and environmental law - I suggest that a scholarly research and writing focus can help students develop their practical and analytical skills and values while achieving “best practices” goals in the context of a doctrinal land use course. In the article I set forth a pedagogical basis for including an academic writing component in a doctrinal land use course; and I discuss the experience of teaching a large land use class with a significant research and writing component. The benefits from an academic writing focus may also apply to teaching in other doctrinal fields.

Jim K.
 

November 11, 2011 | Permalink | Comments (1) | TrackBack (0)

Thursday, November 10, 2011

Somin on Eminent Domain and Mississippi Measure 31

Ilya Somin (George Mason) has an op-ed in Daily Caller about the passage of Mississippi Measure 31, a post-Kelo eminent domain reform measure: Referendum Initiatives Prevent Eminent Domain Abuse.  The intro:

The Supreme Court’s 2005 decision in Kelo v. City of New London generated a record political backlash. Kelo upheld the condemnation of private property for transfer to other private owners in order to promote “economic development.” The case inspired widespread outrage. Polls show that over 80% of the public opposes economic development takings. As a result, 44 states have enacted eminent domain reform laws that restrict the condemnation of property for the benefit of private interests.

The most recent state to react to Kelo is Mississippi. On Tuesday, Mississippi voters adopted Measure 31 by a decisive 73% to 27% margin. The new law will make taking property for economic development unprofitable by forbidding most transfers of condemned land to a private party for 10 years after condemnation. The measure is a major victory for both property owners and the state’s economy.

Somin has also blogged on the measure at the Volokh Conspiracy here and here.  And from the former post, here's a nugget that's relevant to the discussion Ken and I have been having on direct democracy in land use:

As I explain in this article, referendum initiatives like Measure 31 tend to be stronger than reforms adopted by state legislatures because many of them are drafted by activists rather than by politicians. Measure 31 was submitted drafted by the Mississippi Farm Bureau Federation (small farmers are often victims of eminent domain in the state). The vast majority of post–Kelo referenda adopted by voters impose tough restrictions on takings.

More on that to come soon!

Matt Festa

November 10, 2011 in Constitutional Law, Eminent Domain, Local Government, Politics, Property Rights, State Government, Takings | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 9, 2011

Ballot Box Zoning -- A Response to Festa

OK, I'll bite.  Matt has laid down the gauntlet with his criticism of the initiative process.  This subject is of great importance to land use profs because, at least in many sunbelt states, a good deal of land use policy is made through direct democracy -- so-called "ballot box zoning."  In this post, I want to respond to some of Matt's criticisms and offer a very tentative defense of ballot box zoning.  For those who are interested, I have defended ballot box zoning at greater length (although I ultimately call for its abolition anyway) in this paper.

I must first concede to Matt that the initiative process has serious deficiencies.  He mentions transparency and voter ignorance.  The social science literature confirms that these are major problems.  I would also add a few more: the initiative process is often captured by special interest groups, as money and organizational resources are often decisive in initiative contests; the initiative tends to favor the affluent and well educated, which is not surprising since the affluent and well educated are more likely to vote on initiatives; voters are easily confused by deceptive wording on initiatives, and initiative advocates often deliberately use deceptive terms to confuse voters; the initiative process reduces complex issues to a simplistic yes/no dichotomy in which hyperbolic sound bytes replace rational discourse.  I suppose I could go on, but you get the point.

So what virtues could the initiative process possibly have?  I want to focus specifically on the land use initiative, although some of my comments may be generalizable.  Although it is often asserted that local politics are controlled by homeowners who seek to limit or manage growth, that is generally true only in smaller municipalities.  Sunbelt states like Texas and California, however, have a disproportionate number of medium to large-size municipalities, dubbed "boomburbs" by sociologists Robert Lang and Jennifer LeFurgy.  The larger size of these municipalities gives homeowners less political power.  At the same time, sunbelt boomburbs have often pursued headlong development as a means of economic growth and to overcome fiscal constraints imposed by constitutional or political limitations on raising tax revenue.  Lang and LeFurgy accordingly assert that these municipalities tend to be in thrall to the "growth machine," a matrix of developers and related cohorts who facilitate urban growth.  As I further argue in my paper, the fact that many of these boomburbs use at-large voting structures rather than ward voting systems further enhances the power of developers and dilutes the ability of neighborhood groups to fight development.

Obviously, this system is less than ideal for homeowners.  And let's face it: while we might hate those NIMBYs, they have some pretty good reasons for opposing new growth.  For years it has been national policy to induce Americans to purchase property through a combination of incentives, including low-interest mortgages and municipal zoning ordinances that provide some assurances to homeowners that their property values, and hence their ability to pay off their mortgages, will be protected against unpredictable declines.  New growth and the externalities that accompany it are very likely to diminish property values, and hence prejudice the ability of homeowners to finance what is likely to be by far their most significant asset.  Existing homeowners are in effect subsidizing new growth through diminished property values, and although city officials claim that everyone benefits from new growth, it is often a concentrated group of homeowners alone who must bear a disproportionate degree of the cost.  As I questioned in a previous post, it can even be argued that homeowners have a regulatory takings claim -- but courts have never recognized such a cause of action.

As envisioned by its Progressive-era architects, the initiative is supposed to correct the defects in the ordinary legislative process, particularly the dominance of special interests.  And that is exactly what ballot-box zoning appears to do in the sunbelt states -- the very states where boomburbs, at-large voting and the growth machine dominate the political landscape are also the states where ballot-box zoning is most robust.  Ballot box zoning has proven to be a powerful weapon with which homeowners can fight back against the growth machine, because prevailing on a local initiative requires only a one-time infusion of cash and a constituency that is easily organized and highly motivated -- ie, a group of neighboring homeowners who are all extremely ticked off about land use changes around their neighborhood.  This can counteract the repeat player and other advantages that the developer has in the legislative process.  Granted, the initiative process itself invites special interest abuses and all sorts of other problems, but it seems no less messy or dysfunctional than the system of government it is designed to counterbalance. 

Ken Stahl

November 9, 2011 in California, Density, Development, Exurbs, Local Government, Mortgages, NIMBY, Politics, Suburbs, Sun Belt, Takings, Texas, Zoning | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 8, 2011

State Constitutional Amendments on Texas Ballot

So I sat down to write a post noting some of the land-use related issues that are before Texas voters today as proposed amendments to the state constitution, and then I went off on a rant about why I don't like voting on state constitutional amendments--generally, because they're already too bloated with non-fundamental policy; and specifically, because of the informational problems that make it a terrible democratic mechanism.  But anyway, there are ten proposed amendments to the Texas constitution today, so let's see if any involve land use . . .

None of them seem to be that radical this year, and hence haven't gotten any publicity to speak of (unlike last time around (2009), when eminent domain reform and constitutionalizing the Texas Open Beach Act were on the ballot).  But as always, a few of them will affect land use--politically, structurally, and fiscally. The 2011 Analysis of Proposed Constitutional Amendments by the Texas Legislative Council is probably the best source out there.  So let's take a look at a few.  I'll paraphase the ballot language, which in turn only paraphrases the actual text of the amendments that will be come law!

1.  Authorizing the legislature to provide a property tax exemption on the residential homestead of a surviving spouse of a 100% disabled veteran;

2.  Authorizing the Texas Water Board to issue general obligation bonds up to $6 billion for water projects;

4.  Authorize the legislature to allow a county to incur debt "to finance the development or redevelopment of an unproductive, underdeveloped, or blighted area within the county," and to pay for it with increased tax revenues from that area.

Now this one really strikes me as a great example of what I was talking about in my last post.  What this is about is tax-increment financing, e.g. TIFs.  On the one hand, if you read the background of this proposal, it's not radical; it's simply giving county governments the same power that municipal governments already have.  On the other hand, the uses and abuses of TIFs are a big deal, and if it took this land use professor a few minutes of closely reading the ballot language to figure out that that's what were voting on, I can't have much confidence that this vote is in any way informed.

5.  Authorize the legislature to allow city and county governments to enter contracts with each other (for, e.g., consolidation or regional projects) without the imposition of a tax or a sinking fund).

6.  Allow the General Land Office to distribute revenue from certain dedicated lands for educational purposes.

7.  Allow El Paso County to create conservation and reclamation districts to develop parklands.

8.  Require the legislature to tax open space land devoted to water stewardship based on its productive capacity rather than its (usually higher) market value. 

So there you have it, out of ten proposed state constitutional amendments put before the people of Texas today by the biennial session of the legislature, seven of them by my count have at least something to do with land use, even though they're more about structure and finance than use regulations per se.  But of course, some of my students accuse me of "turning everything into a land use issue."  But we all know it's true, right?

Anyway, I've got to run out now and go vote!

UPDATE 11/9/11: Seven amendments passed; the three that failed were #4 (county TIFs); #7 (El Paso parks); and #8 (tax assessment for water stewardship).  The Secretary of State has the results.  But hey, over 5% of the registered voters turned out!

Matt Festa

November 8, 2011 in Constitutional Law, Local Government, Politics, State Government, Texas | Permalink | Comments (0) | TrackBack (0)

Election Day 2011 and State Constitutions

Even though the media is obsessed with the 2012 elections, it is the first Tuesday after the first Monday in November, and as land use folks well know, a lot of important law is made at the state and local level during off-year elections.  Today in Texas there are ten state constitutional amendments on the ballot for voter approval, generated by the 2011 legislative session (Texas' legislature still meets only bienially--one of four remaining states to do so, and the only major state). 

I'm generally not a fan of constant new constitutional amendments, for two reasons, one structural and one democratic.  First, many state constitutions--like Texas'--are already bloated.  I printed it out once--all 80,806 words of it (sorry environmental profs)--and I make the point in class by comparing the massive document to a pocket U.S. Constitution.  In general, I don't think that most mundane policy issues should be entrenched in fundamental law.  On the other hand, this structural critique can be countered somewhat by the argument that while the federal constitution enables the Congress to do a certain range of things, state legislatures already have plenary power, so state constitutions largely exist to limit the legislature--and then they need to be amended often to adjust those limits.  But still . . . 80,806 words?

My second beef with the practice of placing a slew of state constitutional amendments is has more to do with the theory of state and local elections, and I don't like it for the same reason I'm skeptical of the overuse of initiative and referendum.  What could be more democratic than letting the people vote, you ask?  The problem is informational.  I usually ask my upper-level state & local government students--a sample of pretty well educated and informed voters--which way they voted on certain amendments or referenda from prior years.  Almost universally I get two responses; either (a) no recollection whatsoever; or, occasionally, (b) they voted with their gut based on a cursory reading of the ballot text in the voting booth.  And if they remember which way they voted, it was usually "yes" because the text sounded like "good things," or "no" because the text sounded like "spending more money." 

There in turn at least two reasons why even smart voters end up voting with their gut on these important measures.  First, the ballot language is usually vague and fuzzy, and often is quite different from the actual text of the law that will go on the books.  I don't think this is usually done to confuse the voters, I think it's the opposite intent--but regardless, the ballot language in my experience is usually so general that it fails to communicate what the proposal is really about.  Another major reason, of course, is that with a few exceptions, these items don't get very much media exposure.  So most Texans probably know a lot more about, e.g., the latest in sexual harrassment allegations against national candidates, than they do about the 10 items they are probably going to add to the state constitution today.  The info is out there, but it's up to the individual voter to burn some calories and go find and read information such as the analysis by the Texas Legislative Council.

Now in class, we talk about whatever amendments and referenda are on the ballot, and it's a lot of fun.  Students do class presentations, we have guest speakers, and so on.  And it often turns out that a lot of these state constitutional amendments (and local referenda) are substantively about land use--from eminent domain to land sales, zoning, conservation, and more (which was going to be the original point of this post, before I got off on my rant).  So I do my part to create a group of 40 or 50 educated voters.

But if that's what it takes, is democracy really served by putting all this stuff on the ballot, and in such a vague manner?  I find more and more that people in general really do care about land use in their communities and their region.  A lot.  Yet in the cases where they actually have a say in the matter, it gets translated so poorly that most votes actually cast are probably not informed ones.  So it's the people behind the scenes in and around legislative bodies that end up making all the rules.

Matt Festa

November 8, 2011 in Constitutional Law, Eminent Domain, Environmentalism, History, Local Government, Politics, Property Rights, State Government, Texas, Zoning | Permalink | Comments (0) | TrackBack (0)

Monday, November 7, 2011

Nolon on Land Use for Energy Conservation and Sustainable Development

John R. Nolon (Pace) has posted Land Use for Energy Conservation and Sustainable Development: A New Path Toward Climate Change Mitigation. The abstract:

Land use tools and techniques have impressive potential to reduce energy consumption, improve the economy, and mitigate climate change. This article explores the little understood influence of local land use decision-making on energy conservation and sustainable development and how it can mitigate climate change if properly assisted by the federal and state governments. The construction and use of buildings combined with extensive vehicular travel throughout the nation’s human settlements consume large amounts of energy, and much of that consumption is highly inefficient. By enforcing and enhancing energy codes, encouraging the use of combined heat and power and district energy systems, properly orienting and commissioning buildings, incorporating renewable energy resources, and promoting transit and other methods of reducing vehicle miles travelled, local land use law’s potential to achieve energy conservation and sustainable development can be unlocked. These techniques can be organized at the neighborhood level and aggregated by adopting local Energy Conservation Zoning Districts in neighborhoods where significant energy conservation can be achieved. The article proposes federal and state policies, combining features of both the Coastal Zone Management Act and the Enterprise Zone initiative, that can facilitate local land use initiatives that will shape human settlements and control the built environment as a new path toward energy efficiency and climate change mitigation.

In the footnotes, Prof. Nolon notes that this is part of a trilogy:

FN.1. This article is one of three that examine how local land use law that can be used as an effective strategy to mitigate climate change. See John R. Nolon, The Land Use Stabilization Wedge Strategy: Shifting Gound to Mitigate Climate Change, 34 WM. & MARY ENVTL. L. & POLY REV. 1 (2009) [hereinafter Land Use Stablization Wedge] and John R. Nolon, Mitigating Climate Change through Biological Sequestration: Open Space Law Redux, 31 STAN. ENVTL. L.J. (forthcoming Winter 2011) [hereinafter Open Space Law Redux].

This is a great set of articles for anyone interested in the subject from one of the leaders in land use and local environmental law.

Matt Festa

November 7, 2011 in Climate, Coastal Regulation, Environmental Law, Environmentalism, Federal Government, Green Building, Local Government, Planning, Scholarship, State Government, Sustainability, Zoning | Permalink | Comments (0) | TrackBack (0)

Ellickson on Complex Land Titles in China, Then and Now

Robert Ellickson (Yale) has posted a draft of The Costs of Complex Land Titles: Two Examples from China. He presented this paper at last month's Brigham-Kanner Conference, which was held this year in Beijing instead of its usual home at William & Mary. Here's the abstract:

Chinese customs and law have traditionally prevented a land seller from conveying outright title to a buyer. The ancient custom of dian, which persisted until the 1949 Revolution, gave a land seller and his lineage an immutable option to buy back sold land at the original sale price. This little-analyzed custom discouraged soil conservation and land improvements, and, especially after 1600, contributed to China’s inability to keep pace with England.

After calamitous experiences with land collectivization between 1951 and 1981, China’s Communist government began to confer private land-use rights. But, instead of making outright sales, it chose to award contractual rights only for a fixed-term, for example, 50 years in the case of an industrial parcel. For the same reasons dian did, this policy threatens to impair China’s prospects of economic development.

Fun fact: Bob Ellickson placed 70th in the 2010 National Scrabble Championship.

Jim K.

November 7, 2011 in Comparative Land Use, Property, Property Rights, Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, November 6, 2011

Another Great Land Use Resource

Further to my post below, the New York City Department of City Planning has recently released another great resource for students of New York City zoning -- this time, it's a collection of documents relating to the adoption of the city's 1961 zoning resolution.  Some great bedtime reading for the archivists among us.  The publication of these documents is timed to coincide with the 50th anniversary of the resolution, as is this one-day conference on "Zoning the City," set for November 15.  I won't be able to attend, as I'll be stuck here in balmy southern California soaking in the sunshine, but it promises to be very interesting, with a great lineup of speakers.  

Ken Stahl

November 6, 2011 in New York, Urbanism, Zoning | Permalink | Comments (0) | TrackBack (0)

The Long Goodbye

I've been thinking for awhile now about whether and how to write this post, but today it just seems right.

In June 2012 I will be leaving the University of Georgia, and my position as managing attorney of the Land Use Clinic.  Due to shifting priorities and budgetary realities, the law school administration has decided not to continue the Clinic after my departure.  Several people have asked me whether I'm sad the Clinic won't go on without me, and of course I am.  However, the Clinic was not my original brain child - rather, its creators were Laurie Fowler and Alex Scherr of the UGA Ecology and Law faculties respectively.  They started the clinic in 2002, in response to tremendous demand from local governments for help dealing with the effects of sprawl on water quality in Georgia's rivers. When they asked me to come to run the clinic, initially on a trial basis, it was a welcome respite from an unhappy work experience at a large corporate firm, and an opportunity to try teaching as a vocation.  However, I never meant for it to be my permanent home.

I have been incredibly fortunate to be the first, and only, clinician in the clinic the last 10 years. Certainly the scope and direction of our work has changed, especially in the wake of the financial crisis. We've done our best to keep up with the times, and I believe some of our good work will be carried on by our partners here at UGA, including the Fanning Institute and the College of Environment and Design.

But my own priorities have changed.  Many, many factors have lead to this, including losing several people close to me.  Nothing sharpens your focus as much as the death of a parent or close friend.  As regular followers of the blog also know, I am increasingly interested in contemplative practice, including mindfulness and yoga, and how they can make us better, and healthier, lawyers and people.  Therefore, after my departure from UGA I plan to dedicate a year to travel and study, including attending yoga teacher training, and pursuing teacher certification through the Center for Mindfulness at University of Massachusetts Medical School.

This does not mean I plan to give up being a lawyer and a law teacher.  I still believe I have much to offer clients and students, and I hope that ultimately I can integrate all these elements into a cohesive practice of some sort.

Obviously, I've still got months to go before I make the change.  Matt Festa has generously offered to let me keep blogging as long as I like, and from time to time I'll probably post some reflections on the transition.  The other land use clinicians and I also hope to write an article together on what land use clinics offer to law schools, client communities, and students.

UGA Law is not only my longtime place of work, it is also my alma mater.  I feel proud to have been of service here, even though it's not entirely obvious what my legacy will be. As part of my research for the article I have been surveying my alums, and several of them report that being in the Clinic defined and strengthened them as lawyers and people.  Also, being a co-editor of this blog has been one of the funnest aspects of this job, and I appreciate the collegiality and intellectual stimulation I've received from my fellow bloggers. Matt Festa and I met while he was visiting here at UGA, a happy coincidence and an example of the kismet that has kept me going for so long in this job.

So, for now, many thanks to Matt, my co-bloggers (including Will Cook, Ngai Pindell, and Chad Emerson of the original crew).  You are all fabulous, and I plan to keep hanging out with you as long as I can.

Now, back to our regularly scheduled programming.

Jamie Baker Roskie

November 6, 2011 | Permalink | Comments (3) | TrackBack (0)

Friday, November 4, 2011

Joplin Tornado Unearths Toxic Lead from Mining

The Weather Channel and other media outlets are reporting of a new problem for tornado ravaged Joplin, Missouri - lead contamination.

As the cleanup in Joplin continues, another potentially deadly hazard has been uncovered, dangerously high levels of lead. According to an article in the Los Angeles Times, “In tests of 43 properties, 18 showed high levels of lead, prompting the city’s mayor to ask the U.S. Environmental Protection Agency and the Missouri Department of Natural Resources for help in testing for, and cleaning up, the element.”

For more than 100 years, beginning in the mid-19th century, Jasper County was at the worldwide forefront of lead and zinc mining. The area included town names like Leadville Hollow and Minersville.

According to Dan Pekarek, director of the Joplin Health Department, a waste product from lead mining called “chat” was dumped in several spots around the city of Joplin, and simply covered with soil. Those sites we likely exposed when the F-5 tornado ripped through the city.

Additionally, in an interview with the Joplin Globe, Pekarek said “Chat was pretty readily available around here, and they used it. It was used as fill for voids around footings and foundations, and to level out crawl spaces.”

As if the poor folks in Joplin haven't been through enough!  According to this news release the EPA is offering to enter a cooperative agreement with the city to test for and remediate the lead contamination.

Jamie Baker Roskie

 

November 4, 2011 in Environmentalism, Federal Government, Industrial Regulation, Local Government, Redevelopment | Permalink | Comments (0) | TrackBack (0)

Thursday, November 3, 2011

Burdon on "What is Good Land Use?"

Well the title pretty much asks the basic question for all of us, right? Peter D. Burdon (Adelaide) has posted What is Good Land Use? From Rights to Relationship. The abstract:

Industrial agriculture is the dominant method for feeding an increasingly urbanised world. However, a growing body of literature suggests that industrial practices are unsustainable and risk global food security. This article examines the legal-philosophical dimension of this literature and the vision of good land use promoted in both industrial and agrarian farming practices. It argues that industrial agriculture is premised on a concept of private property that promotes individual preference satisfaction, separates people from place and fragments landscape. In response, this article examines agrarian farming practices as a means of re-conceiving private property so that it is seen to embrace not only human good, but also ethics and the land itself. By re-conceiving private property as embracing these factors, private property may offer but one solution to the agricultural crisis.

Matt Festa

November 3, 2011 in Agriculture, Property Rights, Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

Land sales in Cuba?

Land use news from Cuba: New law will let Cubans buy and sell real estate. (Paul Haven, AP).

HAVANA (AP) -- For the first time in a half-century, Cubans will be allowed to buy and sell real estate openly, bequeath property to relatives without restriction and avoid forfeiting their homes if they abandon the country.

The highly anticipated new rules instantly transform islanders' cramped, dilapidated homes into potential liquid assets in the most significant reform yet adopted by President Raul Castro since he took over the communist country from his brother in 2008.

But plenty of restrictions remain.

. . . including restrictions on sales to emigrants or foreigners, so shelve those plans to acquire your Caribbean resort. But it's a great step in the right direction for Cuba. Thanks to Adam MacLeod for the pointer!

Matt Festa

November 3, 2011 in Beaches, Comparative Land Use, History, Politics, Property, Real Estate Transactions | Permalink | Comments (0) | TrackBack (0)

NPR on Zoning out Hydrofracking in Upstate NY

From the "You Must Hear This" Dept., we have a really interesting NPR report this morning on attempts by some citizens of the town of Dryden, NY to zone out hydraulic fracturing ("hydrofracking") as a means of removing oil and gas from local shale deposits.  The report features commentary on crucial state preemption issues by Eduardo Peñalver (Cornell).  

I think siting of hydraulic fracturing operations is a terrific subject for discussion in a Land Use, Environmental or Property law class.  I even used a hydraulic fracturing hypothetical on my Property final last Spring to test on inquiry notice and reciprocal servitudes.  Focusing on public rather than private land use regulation, this story frames the state and local government issues nicely.  Enjoy.

Jim K.

November 3, 2011 in Clean Energy, Environmental Law, Environmentalism, Industrial Regulation, New York, NIMBY, Nuisance, Oil & Gas, Water, Zoning | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 2, 2011

The Gentrification Cycle: Factories, Artists, Chain Stores, Repeat

I just finished reading Sharon Zukin's great new book, Naked City.  One fantastic nuggest is her discussion of gentrification in New York's SoHo district.  At one level, Zukin's account confirms the now well-known gentrification cycle referenced above: deindustrialization creates low-rent vacancies in industrial districts; artists are drawn to these districts by the depressed rents and spacious "lofts"; the district becomes a hub of avant garde creativity, generating media attention and foot traffic, both of which create a "buzz" around the neighborhood; shops and restaurants are drawn to the area to cater to the increased foot traffic and capitalize on the "buzz;" the introduction of these shops and restaurants in turn induces more foot traffic, more media attention, and more "buzz;" eventually national chain stores see the area as ripe for investment and begin to move in; finally, of course, each of these trends causes rents to escalate until, with the arrival of deep-pocketed chain stores, the very artists who made the district trendy are priced out.  The district ends up as nothing more than a high-end outdoor shopping mall with little street "cred," and the artists relocate to a new low-rent industrial area, triggering the process all over again. 

Zukin's book is a work of sociology, but I think it implicitly raises some interesting questions about law's role in the gentrification cycle.  Initially,  in many cases a rezoning is necessary in order to turn industrial buildings into residential lofts, and then more rezonings may be needed to permit retail commercial uses.   After SoHo's experience, Zukin tells us, every city worth its salt wanted to replicate New York's success -- turning a depleted industrial district into a revenue-generating shopping district.  Therefore, obtaining the necessary rezonings has been a piece of cake.  But local governments want to do more than just allow gentrification -- they want to jump-start the cycle.  So cities from Santa Ana, California to Shanghai, China have taken affirmative measures to lure artists into old warehouses and other downtown buildings.  It seems to me that while this approach may be necessary in an age of globalization dominated by mobile capital, it is also extremely cynical -- cities are luring artists in the hopes that the artists will spur a renaissance that will then force the artists themselves to leave.  Very few cities provide any permanent or semi-permanent protection for artists (such as rent control) because the whole point of the process is to bring in the chain stores to displace the artists (and state courts are divided on whether rent control is even a valid exercise of municipal home rule powers).  Zoning has long been seen as a way of addressing perceived market-failures; with gentrification, it seems, municipalities are using their land use powers to accelerate a "natural" market phenomenon.  This should give us some pause.

Ken Stahl

November 2, 2011 | Permalink | Comments (2) | TrackBack (0)

NYU Furman Center Releases Paper on Housing Vouchers and Crime

The NYU Furman Center for Real Estate and Urban Policy has just sent out news of its latest fascinating and important study: American Murder Mystery Revisited: Do Housing Voucher Households Cause Crime? The study is authored by co-director Ingrid Gould Ellen, Michael C. Lens, and Katherine O'Regan. From the announcement:

We are pleased to share with you the latest paper from the Furman Center, American Murder Mystery Revisited: Do Housing Voucher Households Cause Crime? The study explores the link between housing vouchers and neighborhood crime rates. More than two million renters now receive Housing Choice Vouchers, which subsidize rent in private apartments. Although voucher holders live in a large variety of neighborhoods, community opposition to vouchers can be fierce due to perceptions that voucher holders will both reduce property values and heighten crime. The widely-circulated 2008 Atlantic Monthly article “American Murder Mystery” highlighted this controversy.

Our study, which examines changes in crime and voucher use over 12 years in ten major U.S. cities, finds no evidence that an increase of voucher holders in a community leads to increases in crime. Instead, we find a different association: that voucher holders are more likely to move into areas when crime rates are already rising. The paper was featured in an article in The Atlantic Cities, and presented September 19 at an internal briefing held at the HUD headquarters in Washington, DC. You can read the full paper here and accompanying fact sheet here.

When it comes to housing and land use, everyone has an opinion, because everyone lives somewhere and has anecdotal information. It's great to have a study like this to clarify popular conceptions based on facts. The Furman Center leads the way in producing these kinds of helpful studies.

Matt Festa

November 2, 2011 in Affordable Housing, Crime, Federal Government, Housing, HUD, Local Government, New York, Politics, Property, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 1, 2011

Bell on Property in the Third Amendment and the Constitution

Back when I was in law school a few of us would joke around about writing a paper on the Third Amendment, since it hardly ever comes up. But now Tom W. Bell (Chapman) has made it relevant, with 'Property' in the Constitution: The View from the Third Amendment, forthcoming in the William & Mary Bill of Rights Journal, vol. 20 (2012). The abstract:

During World War II, after Japan attacked the Aleutian Islands off Alaska’s coast, the United States forcibly evacuated the islands’ natives and quartered soldiers in private homes. That hitherto unremarked violation of the Third Amendment gives us a fresh perspective on what “Property” means in the U.S. Constitution. As a general legal matter, property includes not just real estate - land, fixtures attached thereto, and related rights - but also various kinds of personal property, ranging from tangibles such as books to intangibles such as causes of action. That knowledge would, if we interpreted the Constitution as we do other legal documents, tell us just about everything we need to know about the scope of constitutional property. Case law and commentary do not speak as plainly, however, raising troubling questions about what “Property” means each of the four times it appears in the Constitution. In particular, some authority suggests that the Takings Clause protects personal property less completely than it does real property. The unjust treatment of Aleutian natives during World War II shows the risk of giving constitutional property so peculiar and narrow a definition. This paper describes the troubling inconsistencies that afflict the law of constitutional property and invokes the Third Amendment, that oft-forgotten relic of the American Revolution, to argue for giving “Property” a plain, generous, and consistent meaning throughout Constitution.

Matt Festa

November 1, 2011 in Constitutional Law, History, Property, Property Theory, Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Farewell Adam MacLeod

Thanks so much to Adam MacLeod for hanging out with us during the month of October here at the Land Use Prof Blog. He really raised the bar for blogging on land use theory with his series of fascinating substantive posts. We hope he comes back soon. (Now that makes two Faulkner profs we miss).

In the meantime, you can continue to check out Adam's work on his SSRN page.

The only letdown of Adam's time here was that he failed to deliver the promised karma of having a third Notre Dame-affiliated land use blogger, at least in terms of gridiron success. It's now back to just me and my freshman year roommate's brother-in-law.

Matt Festa

November 1, 2011 in Scholarship | Permalink | Comments (0) | TrackBack (0)

"Handling the Land Use Case"

A guest post from Prof. James L. Olmsted:

Dear Land Use and Zoning Colleagues:

I am writing to inform you about an article that I know many of you will find useful, entitled "Handling the Land Use Case: A User's Manual for the Public Interest Attorney." Although, the article was published in 2004, its subject matter is of current interest in that it provides a nuts and bolts guide for new land use and zoning attorneys to develop a land use practice. As the article is written for new attorneys, it will also be of great interest to your students who are interested in pursuing careers in this field.  The article will likewise be fascinating to experienced practitioners and academics as the article candidly and comprehensively  reveals the tactics that are invariably deployed, both openly and secretively, by both sides in any major land use battle. Few, if any, other articles expose this under-belly of the land use process in such detail. If anyone can help make this article available to colleagues or land use and zoning oriented law students by directing them to my SSRN site I would greatly appreciate it. Also, I invite anyone who would like to co-author an update of the article to contact me at www.landprotect.com.  This would be an interesting and most worthwhile project, and I can guarantee publication in a law review (e.g., I am certain that the Journal of Environmental Law & Litigation would love a chance to update this article). Also, if anyone would like to co-edit a book with me on the subject of land use planning and zoning in the 21st century, I would also be most interested in such an offer.  My preferred publisher would be Island Press, and I would do the leg work of drafting the publication proposal.  On my SSRN site “Handling the Land Use Case” can be downloaded for free.

Best regards, James L. Olmsted, Adjunct Faculty University of Oregon School of Law.

We welcome guest posts from land use professors and practitioners - our contact info is available in the bar on the left side of this page.

Jamie Baker Roskie

November 1, 2011 in Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)

Georgetown Releases Climate Adaptation Tools

From Vicky Arroyo at the Georgetown Climate Center:

Climate change may be a politically charged topic in Washington, but as we all know, states and communities don't have the luxury of waiting for the federal government to act.  

Facing extreme storms, flooding, drought, and water shortages, those on the front lines are responding now to the impacts of climate change (whether they use the words "climate change" or not) and are being forced to rethink planning for everything from roadway design and location to building standards to development along our nation's coasts.

 

Please join us for an important discussion and webinar on Tuesday, Nov. 1, [1 p.m. Eastern] when the Georgetown Climate Center will release the following tools and reports to help policymakers, reporters, and others locate and pursue policies that enable communities to adapt to climate change:
  • The Adaptation Clearinghouse - A new online community and database to help planners find and share policies that address climate change impacts.  Policymakers, reporters, and the public can find adaptation policies and plans created for their communities.    
  • Adaptation Case Studies in the Western United States - Two new case studies explore water shortages in the West and the protection of a ground-dwelling bird: the greater sage grouse.  The report looks at the policies and unique approaches being adopted in Colorado and Wyoming, in particular, to tackle the problems - even though the solutions may not be adopted with the sole intent of addressing climate change.    
  • Adaptation Tool Kit: Sea-Level Rise and Coastal Land Use - A new report issued by the Georgetown Climate Center looks at 18 existing land use tools that communities can use to prepare for rising sea levels and the flooding that will result from climate change.
Please join me along with Jason Vogel, co-author of "Adaptation Case Studies in the Western United States"; Jessica Grannis, author of "Adaptation Tool Kit: Sea-Level Rise and Coastal Land Use"; and Cristina Rumbaitis Del Rio of the Rockefeller Foundation for this important webinar. 

You can link to the Webinar from this page.
Jamie Baker Roskie

 

November 1, 2011 in Climate, Coastal Regulation | Permalink | Comments (0) | TrackBack (0)