Wednesday, February 1, 2012

Groundhog Day 2012

We've posted before on Groundhog Day. Hope you have a happy one, and that you get the predictive result you prefer!

This year I'm thinking most about the local government aspects suggested by the movie, part of which I saw the other day. Last year I wrote that "Bill Murray is the arrogant city slicker who looks down at the rubes in the small town, until he comes to realize the importance of the small-town community values in Punxsutawney."

As local governments enter (or continue) in crisis mode, with severely constrained abilities to maintain the same level of public services as in the past, it's time more than ever for the rest of us to get involved, check on our neighbors, and really appreciate the communities in our lives where we can find them. When I watched part of the Groundhog Day movie recently, I started to think that the most important theme of the film was not big city vs. small town, but rather the importance of social capital and civic spirit in every community.

Hope your winters' ends are just around the corner.

UPDATE: Punxsutawney Phil saw his shadow-- so that means "six more weeks of winter." Frankly, I never understood that. Where I grew up (upstate NY), having to face *only* six more weeks of winter as of February 2d would have been fantastic!

Matt Festa

February 1, 2012 | Permalink | Comments (0) | TrackBack (0)

Fenster on Failed Exactions

Mark Fenster (Florida) has posted Failed Exactions, 36 Vermont Law Review No. 3 (2012).  The abstract:

This symposium essay considers the doctrinal quandary created by 'failed exactions' - regulatory conditions on property development that government agencies contemplate but that are never finalized or enforced, usually because the property owner rejects them. A narrow but conceptually challenging issue to the relationship between the unconstitutional conditions doctrine and regulatory takings law, failed exactions could prove profoundly unsettling to current land use practices. A decade ago, the issue of whether failed exactions deserve heightened scrutiny prompted Justice Scalia to issue a dissent from a denial of petition for certiorari in which he stated, somewhat tentatively, that an extortionate demand made of a land owner by a government agency for land or money as a condition on development could and perhaps should trigger rigorous judicial review.

Both before and after Justice Scalia’s ruminations, which only Justices Kennedy and Thomas joined, courts have struggled with this question. As the litigation that ended with the Florida Supreme Court decision in Koontz v. St. Johns Water Management District (2011) reveals, judicial efforts to put the unruly peg of an unenforced condition into the narrowly defined categories of regulatory takings creates an excess of confusion. The essay identifies the doctrinal, remedial, procedural, and consequential dangers of any effort to apply heightened federal constitutional scrutiny to failed exactions.

Matt Festa

February 1, 2012 in Constitutional Law, Property Rights, Scholarship, Supreme Court | Permalink | Comments (0) | TrackBack (0)

Entering the land use field: a "lost generation," or an interdisciplinary opportunity?

Stephen Miller recently posted the compelling question whether there will be a "lost generation" of land use lawyers, due to the recession, the weak legal hiring market, and the related lull in the land development economy.  Jamie and a couple of other observent commenters added their thoughts.  This is a very well-founded and important concern.  

I share the concern, but I am somewhat less pessimistic.  One of the great things about land use is that it is so fundamentally interdisciplinary, and this in turn means there are many areas of practice that involve (and often require) a good undertanding of land use issues.  I have had a number of students report to me that they are meeting with some success as new practitioners in the current economy, including land-use related practices.  Here are some ways in which a new lawyer interested in land use can (or must) get involved in the field:

- Real estate practice.  This may be obvious, but a practice oriented around real estate transactions--both residential and commercial--needs to be able to navigate the land use system for clients.  Permits, variances, and servitudes are huge concerns in real estate transactions.

- Environmental law.  Even if you don't get a government or nonprofit job, there are more environmental concerns than ever in private practice, from compliance to impact studies to permitting, and consulting.

- Litigation.  You might be surprised how often land use issues intersect with general civil and commercial litigation.  This was the route I took towards conceiving of myself as a "land use lawyer."  As a new general litigation associate at a firm, I took on cases representing HOAs, local government entities, and businesses in all sorts of litigation ranging from siting disputes to HOA takeovers to eminent domain.

- General practice.  I know from my recent grads that the model of hanging out a shingle is alive and well.  Our communities need good lawyers to serve people who need help with real estate, contracts, small businesses, family law, estate planning, and so on.  All of these activities involve land use issues.

- Community involvement.  This isn't always--or even very often--a paid gig.  But every community has important land use issues, and one of the agreed-upon tenents of good land use today is that it requires community participation and involvement.  Smart lawyers can always be valuable in these processes, from charrettes to comprehensive plans to zoning and development code amendments.  Jamie commented that her students get involved in local planning commissions.  If you care about land use, you should care about getting involved in your community and offering your expertise (and don't sell yourself short-- if you've studied land use law at all, you probably know more than most people).  If you do a good job, there may also be networking benefits in addition to having served your community.

I know it's tough out there in this economy.  But my recent grads have given me some optimism that there is still a great need for smart lawyers out there, and that lawyers who are passionate about land use can find a way to apply that interest in practice.

Matt Festa

February 1, 2012 | Permalink | Comments (0) | TrackBack (0)

Pruitt-Igoe and Penn South: What's Design Got to Do With It?

Michael Kimmelman, the New York Times's architecture critic, ran an interesting feature recently contrasting the fates of two urban renewal-era housing projects: Pruitt-Igoe in St. Louis and Penn South in New York City.  Pruitt-Igoe has become synonymous with the failures of urban renewal.  It opened during a time of great optimism in 1954, the product of Modernist ideology that urban pathologies could be solved with great design.  The structure was demolished in 1972 after it became a hornet's nest of drugs and crime.  Its vaunted design actually contributed to many of the building's social problems, thus delegitimizing the Modernist confidence in the ability of design to improve lives.  According to Kimmelman: "Critics of welfare, big government and modern architecture all used the project as a whipping boy."

Kimmelman reveals, however, that a very similarly designed structure, Penn South, has quietly prospered with little of the notoriety that has accompanied Pruitt-Igoe.  (I confess that I never even heard of Penn South until this article, and I lived in New York for many years and have spent much time studying urban renewal.)  So what accounted for the disparity: Penn South, unlike Pruitt-Igoe, was not public housing:

Two bedroom apartments cost $3,000 when the complex opened in 1962....

Steady income from maintenance payments and retail units in commercial buildings the co-op owned guaranteed Penn South a stable income. Tax relief from the city shielded it from escalating real estate values. Residents poured money into improvements. Repeatedly they declined the right to sell their apartments at market rates, preserving the ideal of moderate-income dwellings, adding facilities for toddlers and the elderly, playgrounds, a community garden and a ceramics studio.

Few people chose to leave, aging in their apartments, and in 1986 Penn South became the country’s first Naturally Occurring Retirement Community, or NORC. That’s an official designation for housing that wasn’t built for elderly people but is occupied by enough of them to become eligible for special grants.

Most urban renewal housing projects, like Pruitt-Igoe, were composed of rental units with strict maximum-income requirements.  Once your income got too high, you were out.  This ensured that housing projects stayed income-segregated.  The most successful and motivated would leave, taking all their social capital with them, leaving behind those least capable of rising out of poverty with no support system in place.  In this transient environment, residents had little incentives to make improvements to the property or to take steps towards forming any kind of community. 

Certainly, the success of Penn South should give us some pause before writing off the entire urban renewal era as an unmitigated failure.  It is worth taking some time to assess what aspects of urban renewal actually worked, and why. 

Ken Stahl

February 1, 2012 | Permalink | Comments (0) | TrackBack (0)

Hail and Farewell-- Introducing Susan Kraham

First, thanks so much to Stephen Miller for doing such a terrific job guest-blogging throughout January.  Great stuff.

KrahamNext, we're proud to welcome Susan J. Kraham (Columbia Law School) as our guest blogger for the month of February.  Here's Susan's bio:

Susan J. Kraham is a Senior Staff Attorney and Lecturer-in-Law at Columbia Law School's Environmental Law Clinic. Susan has spent her legal career representing public interest clients with a particular focus on environmental and land use law. Prior to joining the Environmental Law Clinic, Susan served as Counsel to the New Jersey Audubon Society. From 1998 until 2005 she was an Associate Clinical Professor in the Environmental Law Clinic at Rutgers Law School, Newark. Susan was a 1992 graduate of Columbia Law School. She also has a Masters in Urban Planning from New York University’s Wagner School. After graduation from Law School, Susan clerked for the Honorable Justice Gary Stein of the New Jersey Supreme Court. She was a Skadden fellow. Susan was also an echoing green fellow where she partnered on a community-based environmental justice project.

We're excited to have her on board, and we look forward to reading her posts!

Matt Festa

February 1, 2012 in Environmental Law, New York, Planning, Scholarship | Permalink | Comments (0) | TrackBack (0)

The Opposition Heats Up or Wal-Mart in Athens Part III

Late last year I posted twice (here and here) about a proposal to put a mixed-use development, anchored by a 100K square foot Wal-Mart, into downtown Athens.  Today things heated up in a very Athens way, with Patterson Hood of the Drive-By Truckers unveiling a protest song and a group called "Protect Downtown Athens" launching an incredibly thorough website analyzing many aspects of the development.  This group is supported by members and management of R.E.M., and other local movers and shakers. Release of the song has already increased coverage of this issue in the national blogosphere and MSM.  This just keeps getting more interesting!

Jamie Baker Roskie

February 1, 2012 in Community Economic Development, Development, Downtown, Economic Development, Georgia, Local Government, Redevelopment, Smart Growth, Urbanism | Permalink | Comments (0) | TrackBack (0)

"Urban Agriculture: It’s Not an Oxymoron"

From Heidi Gorovitz Robertson at CSU, an announcement for their upcoming symposium:

Cleveland-Marshall College of Law seeks proposals for presentations at  Urban Agriculture: It’s Not an Oxymoron, Policies for Cultivating City Land and Increasing Access to Local Food, a symposium on law and policy issues connected to urban agriculture, land use, and the local food movement. 

As the movement towards local food continues to grow, cities are finding that they must develop law and policies to allow for and regulate agricultural practices within urban communities. Many cities are implementing policies to increase urban food production through regulation, incentives, and more comprehensive land-use and public-health policies.  Cities are doing so because they are recognizing that increasing agricultural land use can be a good answer to declining populations and an excess of abandoned or foreclosed properties.  Cities are also recognizing that increasing access to local food can provide economic and public health benefits.

This symposium will explore the laws and policies that cities have implemented to increase local food production and access to local food.  It will also address some of the benefits and challenges of implementing these policies.  Finally, it will address the need to strengthen the urban, suburban, and rural food connection to move towards more sustainable and reliable local food production.  All papers concerning these or related issues are welcome.  

The symposium will take place in Cleveland, Ohio on April 20, 2012.  C|M|LAW invites academics, practitioners, policymakers, and others to submit presentations or scholarly papers on related topics.  A proposal for your paper or presentation, of no more than three pages, should be...submitted via the link below.  

For more information about the symposium, please visit C|M|Law’s website.

Jamie Baker Roskie


February 1, 2012 in Agriculture, Conferences | Permalink | Comments (1) | TrackBack (0)

Michelman on the Property Clause Question

Frank Michelman (Harvard) has posted "The Property Clause Question."  In this essay, the preeminent property theorist of our time offers an engaging look at the constitutional protection of private property rights that a society seeking to establish a liberal social democracy should consider.  Here's the abstract:

A “property clause” is a dedicated text in the written basic law of a constitutional-democratic state, addressing the question of the security of asset-holdings (and of their values to their owners) against impairment by action or allowance of the state. The clause provides a defensive guarantee against such impairments, in the form of a trumping right of every person to be protected – perhaps not absolutely and unconditionally, but not negligibly, either – against state-engineered losses in lawfully established asset-holdings or asset-values.

How should someone writing a constitution for an expectantly “social liberal” state regime think about the question of a property clause? Without suggesting that there can be any one-size-fits-all sort of answer to the question of including such a clause or not, this paper confines itself to doubting sharply one sort of a reason our constitution-writers might consider for including one – namely, that a liberal constitutional bill of rights ought to contain clauses covering all classes of interests of persons that qualify in liberalism as basic rights and freedoms and the interest distinctively protected by a property clause does so qualify – and suggesting some pros and cons regarding a quite different sort of reason for inclusion that the writers will also undoubtedly ponder – namely, that the clause will serve to keep lawmakers and constitutional adjudicators properly attuned to a national foundational commitment to a system of political economy in which markets play a key role.

This essay, prepared as an after-dinner talk for the Conference on Constitutional Revolutions and Counter-Revolutions held at the New School for Social Research, May 5-7, 2011, is a companion to my “Liberal Constitutionalism, Property Rights, and the Assault on Poverty,” Stellenbosch Law Review (2012) (forthcoming), which treats more expansively some points made summarily here. A version of this essay will appear in Constellations 12 (2012).

Jim K.

February 1, 2012 in Constitutional Law, Eminent Domain, Property, Property Rights, Property Theory, Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)