Monday, May 27, 2013

Memorial Day & Land Use

The U.S. tradition of Memorial Day has a long and complex relationship with land, history, and memory.  This post has some thoughts on the subject from last year.

Today was Memorial Day in the US.  There are lots of land use issues that we can associate with Memorial Day, which, stripped to its essence, is designed as a day to remember the military members who died in service to the nation.  There is the obvious land use issue of cemeteries, and the related legal and cultural norms governing how we memorialize the dead (check out any of the interesting blogposts or scholarship by Al Brophy and Tanya Marsh on cemeteries).  It gets even more relevant when we start talking about government-owned national or veterans' cemeteries, and the attendant controversies about First Amendment and other issues.  [The photo is from last year's Memorial Day ceremony at Houston National Cemetery, which my daughter attended to honor fallen Marine Lance Corporal Matthew Sauer Medlicott.]  Of course, there are always land use and local government issues involved with things like parades and public ceremonies, and in many communities there are specific rules that govern the "summer season" informally commenced on Memorial Day weekend.

Check out the whole post for some info about a couple of little-known and interesting events from the early history of Memorial Day and land use, including what may be the first Memorial Day celebration, by African-Americans in Charleston on the former planters' racecourse, and a U.S. Supreme Court case about eminent domain for historic preservation on Gettysburg National Battlefied.

We hope you had a safe and happy Memorial Day.

Matt Festa

May 27, 2013 in Eminent Domain, Federal Government, Historic Preservation, History, Property, Race, Scholarship, Supreme Court | Permalink | Comments (0) | TrackBack (0)

Thursday, May 23, 2013

HELR dialogue on conservation easements and perpetuity

This post is, in part, one for my co-blogger Jessie Owley who knows far more about conservation easements than I do, but one I felt readers generally might enjoy.  The latest issue of the Harvard Environmental Law Review (Winter 2013) is just out and has two articles that argue both sides of the virtue of perpetuity in such conservation easements, a topic that I just saw Jessie present on at ALPS. 

For those interested, the two articles are Perpetuity Is Forever, Almost Always: Why It Is Wrong To Promote Amendment and Termination of Perpetual Conservation Easements by Ann Taylor Schwing (Of counsel, Best Best & Krieger LLP) and Understanding When Perpetual Is Not Forever: An Update to The Challenge and Response to Ann Taylor Schwing by Jessica E. Jay (Conservation Law, P.C.).  Both articles are available here.  Maybe Jessie will even weigh in on the issue! 

Stephen R. Miller

May 23, 2013 | Permalink | Comments (0) | TrackBack (0)

Sunday, May 19, 2013

A response from Bill Fischel on school district consolidation, and a query on why special districts continue to fascinate scholars

I was delighted over the weekend to see a response from Bill Fischel (Dartmouth) on my blog post series about local government units.  Bill is undoubtedly well known to many readers of this blog for his work on land use and local government, such as The Homevoter Hypothesis.  Because I find our blog software tends to hide comments, I thought I’d re-post Bill’s comment in italics and then respond.  Here is Bill’s comment on my earlier post:

Stephen, as I show in my 2009 book, Making the Grade, almost all of the decline in school district numbers comes from consolidation of rural, mostly one-room schools, into larger districts. The one-room school statistically disappeared in 1972, and the number of school districts has held steady since then, with very little change in the number of urban and suburban districts. In terms of the districts that serve most of the population, their borders have been remarkably stable for about 70 years.

Special districts are another matter. They have increased, but I remain puzzled as to why they occupy scholars' attention as much as they do. Almost all of them do only one thing, have no general police powers, and tax only those they serve, mostly in proportion to benefits. The major exceptions are western water districts, whose main curiosity is their Court-permitted deviation from popular voting standards.

Unbeknownst to Bill, I had meant to mention his book, Making the Grade, in a post some time this week because that work had been recommended to me in conversations I had with folks at the U.S. Census, Joseph Dalaker and Liz Accetta, on this subject.  Joe and Liz also pointed me to this excellent presentation Bill did on Making the Grade, which I just watched and would highly recommend:


It seemed that this series of posts has generated some interest, and so I decided to go back through the Census data and try to find a way to elegantly portray the data underlying what Bill talks about in his comment.  To that end, I have excerpted Census tables on special districts and school districts from the data source I provided earlier.  Folks who review the data tables at the end of this post (click on tables to enlarge) will find Bill’s assertions above well supported.

That leaves the question Bill has identified in the second part of his comment:  why are scholars so obsessed with special districts? Moreover, are scholars rightfully obsessed with them?  I have several ideas on the subject I will post later in the week.  In the meantime, I thought I’d see if Bill’s comment, and the addition of this data to the discussion, will engender comments before I take my crack at it.

And thanks, Bill, for taking the time to write! 

Stephen R. Miller

School districts


Special Districts


May 19, 2013 | Permalink | Comments (1) | TrackBack (0)

Saturday, May 18, 2013

Edwards on the Paradoxes of Restitution

Mark Edwards (William Mitchell) has posted The Paradoxes of Restitution, forthcoming in the West Virginia Law Review.  The abstract:

Restitution following mass dispossession is often considered both ideal and impossible. Why? This article identifies two previously unnamed paradoxes that undermine the possibility of restitution.

First, both dispossession and restitution depend on the social construction of rights-worthiness. Over time, people once considered unworthy of property rights ‘become’ worthy of them. However, time also corrodes the practicality and moral weight of restitution claims. By the time the dispossessed ‘become’ worthy of property rights, restitution claims are no longer practically or morally viable. This is the time-unworthiness paradox.

Second, restitution claims are undermined by the concept of collective responsibility. People are sometimes dispossessed because collective responsibility is unjustly imposed on them for wrongs committed by a few members of a group. But restitution may require the dispossession of innocent current occupiers of land – thus imposing a type of collective responsibility on them. Therefore, restitution can be seen as committing the very wrong it purports to right. This is the collective responsibility paradox.

Both paradoxes can be overcome, but only if we recognize the rights-worthiness of others before time fatally corrodes the viability of restitution. We must also draw a careful distinction between the imposition of collective rights-unworthiness, which results in the mass dispossession of others, and the voluntary acceptance of collective responsibility, which results in the restitution of others.

After developing these ideas, the article examines them in the context of a particularly difficult and intractable case of dispossession and restitution. It draws upon interviews with restitution claimants whose stories reveal the paradoxes of restitution. 

Matt Festa

May 18, 2013 in Comparative Land Use, History, Politics, Property, Property Rights, Remedies, Scholarship | Permalink | Comments (0) | TrackBack (0)

Stern on State Legislative Checks and Judicial Takings

Here's another recently-posted paper from Stephanie Stern (Chicago-Kent): Protecting Property Through Politics: State Legislative Checks and Judicial Takings, forthcoming in the Minnesota Law Review.  The abstract:

In the 2010 Supreme Court case Stop the Beach Renourishment v. Florida Department of Environmental Protection, a plurality of the Court launched judicial takings in political and scholarly debate and laid the groundwork for expanding the Fifth Amendment to encompass court decisions. This Article explores a neglected institution in the debate over judicial takings — state legislatures. In the comparatively rare instances when state courts overreach, state legislatures can revise state court decisions and restore private property rights. Through case studies of state legislative checks of judicial activism, I examine the comparative institutional advantages, and the potential gaps, of situating primary responsibility for state court revision in state legislatures. In view of takings federalism and the costs of judicial takings, I contend that the existing balance of state legislative checks and state court restraint works well enough to police against state court property activism.

Matt Festa

May 18, 2013 in Caselaw, Constitutional Law, Eminent Domain, Judicial Review, Politics, Property Rights, Property Theory, Scholarship, State Government, Supreme Court, Takings | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 8, 2013

Solving last week’s local government decentralization riddle: school districts massively consolidated, special districts exploded, and counties and city governments stayed about the same

Last week I posted about some curious U.S. Census data I found that appeared to indicate that the number of local government units had shrunk by 42 percent since 1942, a trend that would seemingly buck conventional beliefs that local governments had, in fact, radically decentralized in the post-World War II era.

I couldn’t let this go, and this week contacted several researchers at the U.S. Census who gave some color to the data.  I thought I would pass along several aspects of what we discussed because it is not readily available on the Census website (or, at least, to someone like me who couldn’t otherwise find it).  Key points: 

--The aggregate numbers of local government units do, in fact, show a decrease in the number of local government units since 1942.

--However, the overall numbers are skewed by the dramatic centralization of one very particular type of local government unit:  the school district.  For instance, in 1942, there were 108,579 school districts but by 2007 (2012 data in this set is being released in the fall) there were just 13,051 school districts in the U.S.  For this data set, there are also numbers for 1932, in which there were 128,548 school districts.  That means we have just over 10% of the school districts in 2007 that we had in 1932 and with about three times the population.  Wow. 

--If you remove school districts from the data, it turns out that the conventional wisdom is right about special districts.  In 1942 there were just 8,299 special districts while in 2007 there were 37,381 special districts.  Wow…and in line with the narrative I typically tell students about proliferation of local governments.

--The number of city and county governments in the U.S. has largely held steady since the 1940s, though with regional variation.

This is really fun data to review.  For those who want to learn more, the data is available here.  Download file “”.  Open file “1_Govt_Org_Nat_State_Counts”.  Click on the “Table 3” and “Table 4” tabs to review data in this blog post.  Unfortunately, the tables are too large to be reproduced meaningfully as a jpeg on this blog, so you’ll have to go to the source if you’d like to see the detailed numbers.

A big thank you to the great folks at the U.S. Census, Joseph Dalaker and Liz Accetta, who provided amazing research assistance and helped me solve this riddle in just a few short days!

Stephen R. Miller

May 8, 2013 | Permalink | Comments (1) | TrackBack (0)

Tuesday, May 7, 2013

Professors' Corner May 8--Commercial Leasing

As many of you know, the ABA hosts a free "Professors' Corner" teleconference each month, where we have the chance to discuss recent cases and hot topics with scholars and practitioners.  Courtesy of Julie Forrester, here is the info on this month's discussion, which focuses on commercial leasing:

Professors’ Corner is a monthly free teleconference sponsored by the ABA Real Property, Trust and Estate Law Section's Legal Education and Uniform Laws Group. Each month’s call features a panel of law professors who discuss recent cases or issues of interest to real estate practitioners and scholars.   Members of the AALS Real Estate Transactions Section are invited to participate in the call (as well as to join and become involved in the ABA Real Property, Trust and Estate Law Section).

Wednesday, May 8, 2013

12:30 p.m. Eastern time (11:30 a.m. Central, 9:30 a.m. Pacific). Call is ONE HOUR in length.

Call-in number: 866-646-6488

Passcode: 5577419753

This month’s program, moderated by Professor Jim Durham of the University of Dayton School of Law, features a roundtable on Commercial Leasing.  Our two featured speakers will be Professors Celeste Hammond and Professor Daniel B. Bogart, who are co-authors of Commercial Leasing: A Transactional Primer, now in its Second Edition and published by Carolina Academic Press.

Professor Hammond is a Professor of Law and the Director of the Center for Real Estate Law at the John Marshall Law School in Chicago.  Professor Hammond will be discussing “Green” issues in commercial leasing and the implications of this “greening” for landlords, tenants, and their attorneys.  Here is a copy (for your download and preview) of a Powerpoint presentation that will accompany Professor Hammond’s comments:

Professor Bogart is the Daniel and Marjorie Bollinger Chair in Real Estate Law at Chapman University School of Law, where he serves as both the Associate Dean for Academic Affairs and as the Director of the Center for Land Resources.  Professor Bogart will be discussing some recent leasing decisions of note, including (click on the link for a copy of each decision):

J-Star Holdings, LLC v. The Pantry (Tenn. Ct. App. January 2013) (whether a commercial lease agreement requires the tenant to pay excise taxes imposed on the landlord):

Maida Vale, Inc. v. Abbey Road Plaza Corp., 96 So.3d 1027 (Fla. Ct. App. 2012) (whether a tenant who withheld payment of disputed CAM charges may be evicted for nonpayment of rent):

Fairfax Portfolio, LLC v. Owens Corning Insulating Systems, 2013 WL 440726 (10th Cir. 2013) (whether a tenant that surrendered the premises without repairing significant property damage as required by the lease can be deemed to have held over while landlord effects repairs so as to permit landlord to collect rent during that period):

Matt Festa

May 7, 2013 in Caselaw, Conferences, Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, May 3, 2013

Could it be that American local governments are actually more centralized than they were a generation ago?

When I teach State & Local Government Law, one of the narratives of the course is jurisdictional Governmental Units - 1942 - 2012fragmentation—what scholars call “decentralization”—of local governmental authority.  To support this claim, I like to bring out the U.S. Census data on local governments, which tells us that, in 2012 there were 89,055 units of local government in the U.S.  Mouths gape at the number, and my point is made.

This week, however, I had reason to go back and look at some of the historic data on local government units.  To my surprise, it turns out that, over the past seventy years, the number of local governmental units in the U.S. has actually decreased...dramatically!  In 1942, there were 155,116 local government units in the U.S., which means that 66,061 units of local government, or 42 percent, of local government units in place in 1942, have disappeared in the last 70 years!  (Click on image to see full data table, or click here for U.S. Census site.)

I find these numbers staggering, and I don’t know what to make of them.  My presumption is that a lot of the lost local government units were hyper-specialized special use districts of one type or another; for instance, maybe there were five mosquito abatement districts in some rural western county, but now there is just one mega-mosquito abatement district.  But I wonder, what was a state like Minnesota doing with 10,398 local government units in 1942 where it has just 3,634 local government units in 2012?  I plan to dig into this over the next couple months but, in the meantime, I thought I’d crowdsource it and see if anyone out there has a thought as to what this is all about.  And, moreover, does it mean that I need to revise the narrative I tell about fragmentation of American local governments?  Is the trend, in fact, toward more centralized power of local governmental units?

Stephen R. Miller

May 3, 2013 | Permalink | Comments (2) | TrackBack (0)

Wednesday, May 1, 2013

How to Manage Smart Decline: Should We Demolish Vacant Buildings?


I stumbled across a recent artcle in Applied Geography that I think may be of interest to our readers. I got even more excited when I realized the piece was from colleagues in SUNY Buffalo's Geography Department. Amy Frazier, Sharmistha Bagchi-Sen, and Jason Knight examine the effect of demolition on land-use patterns and changes in human-environment interactions.

While many cities are worried about smart growth and we land use profs spend a lot of time thinking about it, shrinking cities like Buffalo face another challenge: smart decline. The authors (and others) have convinced me that maintaining pro-growth policies in a shrinking city is ill-advised. Instead of thinking we're going to suddenly grow Buffalo, let's think about how we can grow smaller gracefully. Smart decline policies include things like land banks, urban farming, and green infrastructures.

Frazier et al. look at the smart decline policy of demolition. Earlier studies (as well as conventional wisdom) suggest that vacant buildings attract criminal activities (the broken window effect). This study examined a five-year demolition program in Buffalo to assess whether demolitions of vacant buildings actually lead to reduced crime. Their results are fascinating and like all of the best projects point out areas where more research is needed. The big take aways seem to be that there may be some local reductions in crime, but that likely means that the criminal activity is pushed elsewhere. This can have unanticipated impacts on surrounding areas, transportation needs, housing values etc. Such policies need to examine the way that demolitions will shift land uses and impact human-environment interactions. To do so in a successful way will necessarily include regional approaches.

Amy E. Frazier, Sharmistha Bagchi-Sen, & Jason Knight, The Spatio-temporal Impacts of Demolition Land Use Policy and Crime in a Shrinking City 41 Applied Geography 55 (2013)

ABSTRACT: Land use change, in the form of urbanization, is one of the most significant forms of global change, and most cities are experiencing a rapid increase in population and infrastructure growth. However, a subset of cities is experiencing a decline in population, which often manifests in the abandonment of residential structures. These vacant and abandoned structures pose a land use challenge to urban planners, and a key question has been how to manage these properties. Often times land use management of these structures takes the form of demolition, but the elimination of infrastructures and can have unknown and sometimes unintended effects on the human-environment interactions in urban areas. This paper examines the association between demolitions and crime, a human-environment interaction that is fostered by vacant and abandoned properties, through a comparative statistical analysis. A cluster analysis is performed to identify high and low hot spots of demolition and crime activity, specifically assault, drug arrests, and prostitution, over a 5-year period. Results show that there is an association between the area targeted for significant demolition activity and the migration of spatial patterns of certain crimes. The direction of crime movement toward the edges of the city limits and in the direction of the first ring suburbs highlights the importance of regional planning when implementing land use policies for smart decline in shrinking cities.

Jessie Owley

May 1, 2013 in Community Design, Crime, Density, Downtown, Environmental Justice, Housing, Local Government, New Urbanism, Planning, Scholarship, Smart Growth, Urbanism | Permalink | Comments (1) | TrackBack (0)