Land Use Prof Blog

The Negev Desert: There is nothing as rotten as a decaying dream.

So prized was the Negev to Israel’s founding generation that David Ben-Gurion, the man who is considered to be one of the founders of the state, and its first Prime Minister, built a home there, which he called Sde Boker – translated as cowboy field.  Moreover, he and his beloved wife Paula are buried there.  Ben Gurion and later, Prime Minister Arik Sharon, who also lived in the Negev, considered that land a blissful respite from their weekly work.  These men and the thousands of others, who have made the desert their home, see it as a picturesque and superbly scenic habitat that freshens the soul.

Nevertheless, there was and is a darker side to Ben Gurion’s ideal of the Negev.  He had a vison of “blooming the desert”, which he expressed as follows:

"The desert provides us with the best opportunity to begin again.  This is a vital element of our renaissance in Israel.  For it is in mastering nature that man learns to control himself.  It is in this sense, more practical than mystic, that I define our Redemption on this land.  Israel must continue to cultivate its nationality and to represent the Jewish people without renouncing its glorious past.  It must earn this — which is no small task — a right that can only be acquired in the desert."

This dream conflicts with that of most Jewish Israelis.  Indeed, until recently land-use in the Negev was primarily recreational.  The desert is seen by most Israelis as a place of calm and serenity, one to be utilized for hiking, day trips and the home of the Bedouin.  Nevertheless, the dream of “blooming the desert” persists. 

There is nothing as rotten as a decaying dream.  One rooted in a romantic vision of the past.  And in the second decade of the twenty-first century Ben Gurion’s dream reeks.  Today, we are in an age of sustainability, protection of common resources for future generations and ecotourism.  Moreover, science continues to teach us that desert ecosystems are both fragile and complex.  Therefore, they must be left alone.  The land is to be used for non-use.

However, that began to change in the mid-1990s.  First, as the government became more right-leaning and nationalistic, a number of commissions were empaneled to draft plans to import as many as 500,000 Jews into the Negev and to force some 80,000 Bedouin to concentrate into the government’s pre-built and pre-planned towns - away from their indigenous tribal and family-based settlements.  Another factor is the decision by the government, which was upheld by the Supreme Court of Israel, that those Bedouins who did not have a paper title or whose families did not register their lands with the British in 1921, de facto did not own the lands they occupied, i.e., they are squatters.

In essence, the Government of Israel (“GOI”) seeks to Judaize the Negev.  Like previous like-minded European colonialists, the government seeks to concentrate its indigenous peoples into reservations or ghettos, see e. g., the South Africa’s townships; the United States’ Indian reservations and broken treaties; Canada’s First Nations; Australia’s Koori (e), Murri, Nunga, Nyoongah, the Tasmanian Palawa and New Zealand’s Mauri.  The main difference between Israel and the other colonial powers is that they ghettoized their aboriginal populations during the eighteenth and nineteenth centuries, while Israel is doing so in the present day – an era of human rights, and the government’s accession to numerous human rights treaties, which would lead one to believe that it should know better.  However, when ideology collides with reality, reality always appears to be vanquished, until it catches up.

SCOTUS Grants Cert in Eminent Domain Sign Case

While everyone was rightly focused on the flurry of historic decisions at the end of the Supreme Court term (including the raisins takings case, my personal favorite) the court also granted cert in an interesting sign regulation case that, until now, was not on my radar. Robert Thomas, head of the eminent domain committee of the ABA's State & Local Government Law Section, posted an interesting summary of the case on his blog: 

Central Radio placed a banner on the side of its building protesting government’s attempt to take the building by eminent domain. The City of Norfolk quickly cited Central Radio for violating the City’s sign code, despite not having enforced the code against any other political sign in at least a quarter-century. Although the sign code prohibited Central Radio’s protest banner, it exempts various other categories of signs from regulation. For example, Central Radio’s banner would have been allowed if, rather than protesting city policy, it depicted the city crest or flag.

The day after this Court heard argument in Reed v. Town of Gilbert, No. 13-502, the Fourth Circuit, over a dissent from Judge Gregory, upheld Norfolk’s sign code. Following the approach adopted by the Ninth Circuit in Reed, the Fourth Circuit found the challenged provisions content-neutral. Applying intermediate scrutiny to the sign code, it held that Norfolk was justified in restricting Central Radio’s banner because some passersby had honked, waved, or shouted in support of it.

The questions presented are:

1. Does Norfolk’s mere assertion of a content-neutral justification or lack of discriminatory motive render its facially content-based sign code content neutral and justify the code’s differential treatment of Central Radio’s protest banner?

2. Can government restrict a protest sign on private property simply because some passersby honk, wave, or yell in support of its message?

Given the court's general hostility to sign regulation (see, e.g. Reed v. Gilbert as discussed above and covered in this WaPo story) is the outcome in this forthcoming case a forgone conclusion?

Jamie Baker Roskie

Smith on the Law of Yards

I am on the lookout for interesting scholarship that might make appropriate extra-credit reading for my Land Use Planning students.  Just in time for the aesthetic regulation and First Amendment sections of the course, I found that Jim Smith (Georgia) has recently posted The Law of Yards, 33 Ecology. Q 203 (2006).  Here's the abstract:

Property law regimes have a significant impact on the ability of individuals to engage in freedom of expression. Some property rules advance freedom of expression, and other rules retard freedom of expression. This Article examines the inhibiting effects on expression of public land use regulations. The focus is on two types of aesthetic regulations: (1) landscape regulations, including weed ordinances, that regulate yards; and (2) architectural regulations that regulate the exterior appearance of houses. Such regulations sometimes go too far in curtailing a homeowner's freedom of expression. Property owners' expressive conduct should be recognized as “symbolic speech” under the First Amendment. The Supreme Court developed the symbolic speech doctrine in contexts other than land use, but the rationale for the doctrine supports its extension to aesthetically based land use regulations. The clearest case of protected speech is a homeowner's conduct that conveys a political message, such as a yard display that protests a decision made by a local government. Other conduct, however, that is nonpolitical in nature can convey a particularized message, and thus can merit First Amendment protection. Examples are a homeowner's decision to plant natural landscaping, motivated by ecological concerns, or to install a nativity scene at Christmas. A regulation that restricts an owner's protected speech is unconstitutional unless the government proves both that the regulation is narrowly tailored and that it protects a substantial public interest. If the public interest is solely based on the protection of aesthetic values, ordinarily it is not substantial enough to justify the restriction on speech. The government must come up with a plausible justification other than aesthetics to prevail. When the justification consists of an interest in addition to aesthetics, the balancing rules developed by the Supreme Court for symbolic speech should apply. If the regulation restricts expressive conduct, it may survive scrutiny only if it protects the community from conduct that causes significant economic or other non-aesthetic harm, while minimizing infringement on expression.

Jim K.

Sale of Frank Lloyd Wright House Assures Preservation

Here's a story out of Arizona, where apparently a historic Frank Lloyd Wright house was under dispute.   From the New York Times story by Fernanda Santos and Michael Kimmelman:

The conservancy and other organizations petitioned the city in June to consider giving the house landmark status, after they learned of the former owners’ plans to split the lot to build the new homes. Three local government bodies approved the landmark designation, but the Council, which has the final say, postponed its vote twice, in part to give the parties more time to strike some type of compromise. There was also uncertainty over how some of its members would vote, given the homeowners’ lack of consent for the landmark process.

“If ever there was a case to balance private property rights versus the public good, to save something historically important to the cultural legacy of the city, this was it,” Larry Woodin, the president of the conservancy, said in an interview. 

Seems like a good result here, while communities across the nation continue to struggle with how to strike that balance.

Matt Festa

When Aesthetics ARE Health

In the famous 1954 case of Berman v. Parker, private property owners objected to the District of Columbia condemning their land for an urban renewal project “merely to develop a better balanced, more attractive community.” To which Justice Douglas famously replied:

. . . Miserable and disreputable housing conditions may do more than spread disease and crime and immorality. They may also suffocate the spirit by reducing the people who live there to the status of cattle. They may indeed make living an almost insufferable burden. They may also be an ugly sore, a blight on the community which robs it of charm, which makes it a place from which men turn. The misery of housing may despoil a community as an open sewer may ruin a river.

. . . The concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled. In the present case, the Congress and its authorized agencies have made determinations that take into account a wide variety of values. It is not for us to reappraise them. If those who govern the District of Columbia decide that the Nation's Capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way.

While Douglas’ language opened up great potential for aesthetic-based land use regulations,* not all community officials and judges have rushed to embrace his logic. I am certain we can all recall examples when aesthetic justifications have been met with skepticism.  Beauty can be perceived as subjective and arbitrary; and in many instances it is viewed as a lesser, more tenuous rationale than economic or human health impacts.  Indeed, I advise my own land use students that it is strategically better to couple aesthetic arguments with more traditional arguments based on public health and safety.

It was thus with fascination that I listened last week to an interview with Dr. Esther M. Sternberg, who has written a book that demonstrates, through empirical evidence, how the aesthetic design of public spaces such as schools and hospitals directly affects human health.  The book is called HEALING SPACES: The Science of Place and Well-Being, and is published by Harvard University Press.  In her book, Dr. Sternberg makes the case for architects and designers working hand-in-hand with health care workers to improve the health and healing of people.  One compelling example mentioned in her interview is the rate of recovery of patients with views of natural settings, compared to those with views of brick walls.  The interview with Dr. Sternberg can be found here:  http://www.esthersternberg.com/healingspaces.htm.

Justice Douglas thus appears to have been on the right track when he spoke of the correlates between aesthetics and overall human welfare.  Yet the connection may be stronger than even Justice Douglas suspected.  Dr. Sternberg’s work suggests that rather than two independent bases for land use regulation, aesthetics can in fact be an integral and necessary component of human health.

Michelle Bryan Mudd

* It should be noted that D.C’s urban renewal activities have been highly criticized for their race- and poverty-based impacts.  There has been much written on the urban renewal movement, but one recent, well-researched piece is Amy Lavine’s “Urban Renewal and the Story of Berman v. Parker,” 42 The Urban Lawyer 423 (2010).

Ellickson on the Law and Economics of Street Layouts

Robert C. Ellickson (Yale) has posted The Law and Economics of Street Layouts: How a Grid Pattern Benefits a Downtown, forthcoming in the Alabama Law Review from its lecture series on boundaries.  The abstract:

People congregate in cities to improve their prospects for social and economic interactions. As Jane Jacobs recognized, the layout of streets in a city’s central business district can significantly affect individuals’ ability to obtain the agglomeration benefits that they seek. The costs and benefits of alternative street designs are capitalized into the value of abutting lots. A planner of a street layout, as a rule of thumb, should seek to maximize the market value of the private lots within the layout. By this criterion, the street grid characteristic of the downtowns of most U.S. cities is largely successful. Although a grid layout has aesthetic shortcomings, it helps those who frequent a downtown to orient themselves and move about. A grid also is conducive to the creation of rectangular lots, which are ideal for siting structures and minimizing disputes between abutting landowners. Major changes in street layouts, such as those accomplished by Baron Haussmann in Paris and Robert Moses in New York City, are unusual and typically occur in bursts. Surprisingly, the aftermath of a disaster that has destroyed much of a city is not a propitious occasion for the revamping of street locations.

Highly recommended, with lots of interesting planning-type details in addition to the larger importance to land use theories and approaches.

Matt Festa

Mandelker book on Free Speech Law for On Premise Signs

Daniel R. Mandelker (Washington University) has published a new book on the important topic of sign regulation under the First Amendment: Free Speech Law for On Premise Signs (2012). Professor Mandelker's short summary:

The handbook explains the free speech law that determines how sign ordinances for on premise signs should be drafted. It first discusses the general free speech principles that apply, and next the free speech law that applies to different types of signs and the regulations that apply to these signs, such as height and setback requirements and design review.

Free Speech Law for On Premise Signs is available for free download at the United States Sign Council website, and also at Professor Mandelker's excellent website Land Use Law (the website--a companion to the Mandelker et al. Casebook, has a great collection of statutes, cases, scholarship, photos, and other resources for land use students and practitioners). 

One of my most interesting teaching experiences was having a nontraditional student who was semi-retired from the billboard business; his experiences of the interaction between free speech law and sign regulation were what inspired him to go to law school.  Free Speech Law for On Premise Signs, which explains these sophisticated legal concepts in a readable and practical way, will be very valuable to any planner, policymaker, or lawyer whose work brings them into this area.

Matt Festa

Letters from the field: Buying a share of utopia in Copenhagen

I’ve just returned from several weeks of travel, and thought I’d post on several items I saw along the way.  The first of these was a utopian community in Copenhagen, Denmark, called Christiana.  Christiana is on an island, Christianhavn, adjacent to the central city of Copenhagen that had been used for military purposes for centuries.  When the Danish military closed a base on the island in the Sixties, some freedom-loving hippies and other radicals set up shop  by squatting on the land, declared their independence from the Danish state (adverse possession is for sissies, apparently), refused to pay taxes, and otherwise have engaged in community- and ganja-based decision-making ever since.  About 1,000 residents now call Christiana home.

There are several aspects of Christiana that I think land use folks will find interesting.  First, after four decades of tolerating open rebellion in its midsts, the Danish government finally decided that it needed to do something about Christiana.  You might be anticipating a “throw the bums out” approach; but remember, this is Denmark, not Rudy Giuliani’s New York City.  Instead of mounting riot troops at Christiana’s borders, the Danish government sent in their lawyers with an ultimatum:  Christiana’s residents could stay, but they would have to buy the land from the Danish government.  But the Danish government did not demand the market price for the property; instead, they offered the property to Christiana’s residents for a song.  In a sense, all the Danish government is seeking to do is to legitimate the ownership of the land; in other words, if Christian’s residents “own” the land, there is some acknowledgment of the government’s control and sovereignty over that land.  But, of course, the Christiana residents disdain this idea of ownership even though they need to raise capital to purchase the land.  

The result has been one of the most peculiar of solutions:  a stock offering of nominal ownership that investors can purchase. 

As the New York Times described it:

[Christiana's residents] decided to start selling shares in Christiania. Pieces of paper, hand-printed on site, the shares can be had for amounts from $3.50 to $1,750. Shareholders are entitled to a symbolic sense of ownership in Christiania and the promise of an invitation to a planned annual shareholder party. “Christiania belongs to everyone,” Mr. Manghezi said. “We’re trying to put ownership in an abstract form.”

Since the shares were first offered in the fall, about $1.25 million worth have been sold in Denmark and abroad. The money raised will go toward the purchase of the land from the government.

I found this struggle over the idea of ownership to be fascinating.  After all, the amount the Danish government is seeking from Christiana is far below the market price of the land in the now trendy area of Christianhavn.  However, what the government is doing is forcing the utopian community out of its stance of declaring “independence” from the Danish state, while Christiana’s residents attempt to use arcane legal structures to avoid sullying their hands with the prospect of “ownership.”  Am I the only one who thinks of Johnson v. M'Intosh on these facts?

The second interesting issue in Christiana was a poster located on the community’s main meeting room, which establishes the community’s “common law.”  A picture is to the right.  Now, at first blush, this will not look much like common law, but rather a visual statutory scheme, or maybe even something like the Ten Commandments if written for a biker gang.  But it was the kind of rules that interested me:  they speak, I think, to the kinds of problems that must have evolved in Christiana over time:  hard drugs, biker’s colors, firearms, and so on.  Each of these rules, you can imagine, resulted from a particular incident, and so a “common law” evolved in this place where all decisions are made collectively.  Such a common law speaks to the potentially rough nature of standing as a state independent from the protection of the sovereign.  It made me think of the devolution of all of the United States’ utopian communities, from New Harmony on down.  Is such a slide into anarchy, or the fight against anarchy, inevitable in such utopian movements?  I don’t know, but Christiana remains, and it seems to continue to thrive despite its troubles.  It eeks out a living on the sale of rasta trinkets and “green light district” paraphernalia.  And even in this space where there is supposedly no sovereign, there is still some law, borne of hard experience, common to all.  Its future, cast somewhere between lawfully-abiding property owner and anti-property ownership crusaders, between freedom and the "common law's" protections, will be interesting to watch in the coming decades.

Stephen R. Miller

Pocket neighborhoods, cottage housing, and the dominant suburban form

Recently I came across the following cluster of five houses in an otherwise standard subdivision of front-
facing houses with their usual (yawn) front setbacks, side setbacks, and usual suburban land use controls that created the dominant suburban urban form. 

The image of these five houses in Teton County, Idaho, however, will immediately induce a land use lawyer's headache.  Inevitably, everyone knows, that if there is the will to make something like this work as a "one off" experiment, someone will call it a "planned unit development," or something like that, and there will quickly be a retreat from the strictures of the dominant code and a run for the relief provisions, whatever they may be locally.  Maybe its a conditional use, maybe it's a special use district, a planned unit development.  [Insert your local jurisdiction's relief provision here.]

But I began to wonder... what if you wanted to build a whole community, or thinking big--a whole city--built upon the premise of this five-house approach?  As readers of this blog know, I have recently been somewhat infatuated with the idea of how attention to our smallest living units--neighborhoods--can be an impetus to solving our larger land use and environmental challenges.  And so, I find this particular model of five units intriguing.  Think about the density of these single-family houses (quite high), and think about the livability of an environment like this (also quite high, I believe).  This approach will not appeal to everybody--nothing does--but if it can appeal to people in big-sky country of eastern Idaho, I think it could appeal to lots of other people, too.  The combination of density and appealability seems to me a potentially winning combination in efforts to try to build more dense, environmentally sustainable communities.

Now, the question is, how could we make experiments in suburban neighborhood design like this easier from a land use law perspective?  One person who has thought about the issue significantly is Ross Chapin, whose book Pocket Neighborhoods, addresses urban design of small neighborhood units in suburban reaches.  Chapin's dominant proposal clusters 8 to 12 houses, rather than five, around a central "common," as shown in the graphic here.  In addition, the Municipal Research and Services Center of Washington has compiled codes from places that have adopted this style of housing, which the Center calls cottage housing.  For those interested in pursuing this, a review of the codes the Center has compiled is well worth it.  These model and enacted codes provide approaches to neighborhood design that I believe could prove valuable to re-thinking what it means to live in a suburb, and maybe even in quasi-urban, environments.

Stephen R. Miller 

New Lawsuit Challenges San Francisco Billboard Settlement

Most land use profs are familiar with Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981), a U.S. Supreme Court case that helped to clarify the extent to which billboards could be regulated under the First Amendment.  In the years following Metromedia, several cities have adopted billboard restrictions based on the case's holding, which generally allows for greater restrictions on offsite and commercial signage.  Still, despite decades of case law on the subject, billboard regulation remains a relatively risky and controversial endeavor.  A new lawsuit against the City of San Francisco is the latest example of cities' ongoing difficulty in restricting billboards.

In 2002, San Francisco voters passed Proposition G--a ballot measure later codified as City Planning Code Section 611 that severely restricts offsite commercial billboards within city limits.  Earlier this month, the citizen group "San Francisco Beautiful" filed a complaint alleging that a settlement agreement between an outdoor advertising company and the City of San Francisco violated the provisions of Proposition G.  According to local newpaper articles posted here and here, the settlement required Metro Fuel LLC, a billboard company, to remove several large billboards and pay $1.75 million in fines. However, the settlement also effectively forgave more than $5 million in other fines and allowed Metro Fuel to replace its decommissioned billboards with an even greater number of smaller signs. 

In a new complaint filed in a California Superior Court, San Francisco Beautiful is alleging that the City's settlement violated Proposition G by allowing an overall increase in billboards.    Assuming that Metro Fuel's aggregate square footage of signage is reduced under the settlement, should it matter that the company's actual number of signs is allowed to increase?  This may be a worthwhile case for land use profs to follow in the coming months, particularly since most of us will be covering Metromedia in our courses again next year.

Troy Rule

National Building Museum: Public Memory of 9/11

The National Building Museum is hosting what looks like a particularly interesting program called The Public Memory of 9/11.  It will explore two of my favorite subjects: public land use; and collective memory of the past. 

The upcoming tenth anniversary of the 9/11 attacks offers an opportunity to consider how the sites in New York, Pennsylvania and Washington are memorializing and interpreting this event. Leading representatives—Alice Greenwald, Director, National September 11 Memorial & Museum; Jeff Reinbold, Site Manager, Flight 93 National Memorial and; Jim Laychak, President, Pentagon Memorial Fund— present the designs of the memorials and discuss the challenges in commemorating recent history. Brent Glass, director of the National Museum of American History, moderates the program.  1.5 LU HSW (AIA)

FREE. Pre-Registration required. Walk in registration based on availability.

Date: Tuesday, July 26, 2011
Time: 6:30 PM - 8:00 PM.  If you'd like to attend this event you can RSVP online.

Matt Festa

Has Preservation Become a Dangerous Epidemic?

" . . . And is it destroying our cities?"  That's how this NY Times piece starts out, but it isn't an anti-HP property rights screed.  It's an exhibition review of "Cronocaos," at the New Museum: An Architect's Fear that Preservation Distorts.

That’s the conclusion you may come to after seeing “Cronocaos” at the New Museum. Organized by Rem Koolhaas and Shohei Shigematsu, a partner in Mr. Koolhaas’s Office for Metropolitan Architecture, the show draws on ideas that have been floating around architectural circles for several years now — particularly the view among many academics that preservation movements around the world, working hand in hand with governments and developers, have become a force for gentrification and social displacement, driving out the poor to make room for wealthy homeowners and tourists.

Mr. Koolhaas’s vision is even more apocalyptic. A skilled provocateur, he paints a picture of an army of well-meaning but clueless preservationists who, in their zeal to protect the world’s architectural legacies, end up debasing them by creating tasteful scenery for docile consumers while airbrushing out the most difficult chapters of history. The result, he argues, is a new form of historical amnesia, one that, perversely, only further alienates us from the past.

In New York, the exhibition is in an old restaurant supply store adjacent to the museum, with a line drawn down the middle; one side has been "renovated" and the other left "raw and untouched."

The result is startling. The uneven, patched-up floors and soiled walls of the old space look vibrant and alive; the new space looks sterile, an illustration of how even the minimalist renovations favored by art galleries today, which often are promoted as ways of preserving a building’s character, can cleanse it of historical meaning.

Interesting.  One other point the architect makes is that preservation can be selective in what periods and styles ought to be preserved:

This phenomenon is coupled with another disturbing trend: the selective demolition of the most socially ambitious architecture of the 1960s and ’70s — the last period when architects were able to do large-scale public work. That style has been condemned as a monstrous expression of Modernism. . . . To Mr. Koolhaas, these examples are part of a widespread campaign to stamp out an entire period in architectural history — a form of censorship that is driven by ideological as much as aesthetic concerns.

Matt Festa

Hybrid Communities with Public-Private Rules

This weekend at the American Planning Association's National Planning Conference I suggested in my presentation during the "Land, Covenants, and Law" panel (organized and led by Professor David L. Callies) that municipalities increasingly apply a combination of private covenants and zoning to form unique communities, which I call "hybrid communities."  Hybrid communities typically arise when a municipal development authority decides to redevelop an area--often a brownfield or a blighted section of a city--into a mixed-use residential/commercial neighborhood.  To form this hybrid community, the municipality initiates a lengthy and open public process to create a master plan, which the municipality's city council or similar legislative body eventually approves or rejects .  If the council approves the plan, the developer of the community forms a private homeowners' association and records a set of covenants, conditions, and restrictions that also govern the community. 

Most traditional "private" common interest communities (those with homeowners' associations and recorded covenants, conditions, and restrictions) operate under both zoning codes and servitudes, but there is not usually an explicit interaction between the public zoning rules and the private servitudes.  Rather, those in the private community know (hopefully) that they must follow the zoning rules and also the servitudes, which are typically more detailed and restrictive than the zoning rules.  The zoning rules typically require minimum setbacks and provide basic use restrictions, while the servitudes and associated design guidelines and rules add more use restrictions and include detailed aesthetic and design restrictions. 

In a hybrid community, unlike a traditional private community, there is often more of an explicit relationship between the public zoning and the private servitudes, and the zoning itself often contains detailed design requirements.  In the Lowry Redevelopment in Denver, for example, the redevelopment authority has aimed to create a green community through its public zoning work, and the private Lowry Community Master Association Rules and Regulations similarly reflect these "green" goals.  They provide, for example, that "rocks used in landscaping should be material native to Colorado" and that "planting concepts, plant varieties, and irrigation techniques which minimize water consumption (xeriscape) are encouraged," referring residents to Denver Water Department publications for more information. 

Other hybrid communities use a similar mix of private servitudes and detailed public zoning to create green, mixed-use living spaces, and these provide interesting case studies in what I argue is a relatively new public-private land use model.  For examples beyond Lowry, see Playa Vista in Los Angeles, Symphony Park in Las Vegas, and the Mueller redevelopment in Austin, among others.  It appears that all of these communities operate under both a public master plan and private servitudes.  In some cases, the municipality might even serve as the "backstop" enforcement authority when a homeowners' association in the redevelopment fails to enforce one of the private rules; according to one conversation at the National Planning Conference this weekend, Missouri City, Texas follows this type of enforcement scheme in its Planned Development Districts.  Professor Marc B. Mihaly describes these types of public-private developments--and the process of forming them--in his excellent article Living in the Past:  The Kelo Court and Public-Private Economic Redevelopment. 

Will public zoning and private land use controls eventually merge?  Likely not.  As attorney Jo Anne Stubblefield points out, cities have been slow to develop "traditional neighborhood design" districts that allow for mixed-use communities.  But the growth of hybrid communities suggests that new, creative relationships between the public and private land use realms will continue to expand. These communities are not perfect, of course; they may displace low-income populations despite typically requiring a certain percentage of new affordable housing.  And all communities with detailed design and aesthetic restrictions, whether public or private or hybrid, must ensure that those moving in are notified of the restrictions prior to purchase.  These communities do, however, provide interesting food for thought--and possibly good case studies for the classroom, too.  

Hannah Wiseman

Graffiti as Art

A fascinating new book is available from Taschen, the publishers of fancy schmancy artsy books. 

Trespass. A History of Uncommissioned Urban Art. This book is about more than just graffiti, it also includes performances, protests, and urban reclamation. The Chapter on Environmental Reclamations may be of particular interest to land use and property professors. These ephemeral works of art are great conversation starters for topics such as who decides what communities look like, the role of art and protest in landscape design, and how we interact with urban settings.

- Jessica Owley

 

Connecticut RLUIPA case on NPR

All Things Considered last night featured a four-minute story on a federal lawsuit brought by an Orthodox Jewish group challenging the denial of its building permit for a student center in an historic residential district.  Patty Salkin (Albany) blogged at Law of the Land this past summer about the denial of the motion to dismiss.

Jim K.

[email protected]

See the Mojave!

John Copeland Nagle (Notre Dame) has posted See the Mojave! , 89 Ore. L. Rev __ (forthcoming 2011).  Here's the abstract:

This article examines how the law is being asked to adjudicate disputed sights in the context of the Mojave Desert. The Mojave is the best known and most explored desert in the United States. For many people, though, the Mojave is missing from any list of America’s scenic wonders. The evolution in thinking about the Mojave’s aesthetics takes places in two acts. In the first act, covering the period from the nineteenth century to 1994, what began as a curious voice praising the desert’s scenery developed into a powerful movement that prompted Congress to enact the CDPA. The second act begins around 2005, when the nation’s energy policy again turned to the potential of renewable energy. The Mojave is an obvious sight for large-scale solar energy development, but that supposedly green technology threatens many of the scenic values that Congress decided to protect in the CDPA.

The common theme that runs through this article is that the law needs to develop better ways to address the importance of visual perception of both natural and cultural sights. The sights of the Mojave Desert elicit different reactions from different people. Each of these reactions is both strongly held and reasonable, which challenges the law’s ability to accommodate them. The experience with desert preservation and the proposed solar facilities shows that the law needs to find a way to respect contrasting perceptions of the same things. Sometimes this can be achieved by putting the right thing in the right place. Often, though, the same sight that some people treasure is a sight that others find offensive. In such cases, we should prefer decision-making processes that solicit public involvement that first identifies those contrasting perceptions and then seeks to honor them. The role of public input is especially critical on government property, which characterizes most of the Mojave Desert. Congress has intervened to insure the appropriate response to the conflicting public perceptions for each of the three contested Mojave Desert sights. That congressional action and the attendant place-based lawmaking offer the best hope of honoring the contrasting perceptions of the sights of the Mojave.

Jim K.

[email protected]

Creative Participation

Here in the UK I'm currently finalising a research projects with colleagues who are experts in creative participation and community development. It will take some time to discover whether or not we're awarded the grant  but in the process of writing the application I've re-discovered some familiar favourites. 

The first is a project by CABE, the Commission for Architecture and the Built Environment, which is about to lose its funding due to the new Government's austerity measures and the 'bonfire of the quangos'. CABE is highly rated by those in the built environment and has carried out some ground breaking working engaging local communities in thinking about and contributing to their own local built environments.

One notable project is a short film about Beauty where residents of Sheffield (a city in the North of England with a longstanding industrial heritage and a vibrant and diverse local community) were asked what they considered to be beautiful in their local environment. One memorable part of the film considers the beauty of a mosque as seen from a hill, looking down on the historic centre of Sheffield below.

A second and extremely lighthearted attempt to engage particularly young people in planning and land use processes was this short video performed by a local Councillor who was once a member of the Monster Raving Looney Party (who regularly field candidates in elections) and is also a local radio DJ. The video is a spoof of a familiar car commercial that was cheap to produce and reached a wide audience. As the youtube comments after the video show, this is a much less formal way to engage and can involve residents who otherwise have little interest in writing letters or attending meetings through formal participatory processes.

Are there any other examples of creative participation out there?

Antonia Layard

Zick on the Vocality of Public Places and the Public Forum

Timothy Zick (William & Mary) has posted "Summum," the Vocality of Public Places, and the Public Forum, forthcoming in Brigham Young University Law Review, 2011.  The abstract:

This contribution to a symposium on the emerging complexities of government speech focuses on Pleasant Grove City v. Summum. Summum is a remarkable decision in several respects. It represents many firsts in terms of the Supreme Court's public speech jurisprudence: First to hold that the public forum doctrine is out of place in a public park (a traditional public forum); first to treat a public park as a channel of governmental speech; and first to expressly engage the communicative aspects (the vocality) of public place. Because the Court dispatched the public forum doctrine so quickly, one might think the decision has nothing much to say about the concept or status of the public forum. To the contrary, this piece contends that a close reading of Summum shows that the decision’s analysis and rationale may have a substantial effect on private speech rights in public places. The government speaker is not like any other speaker in a park or other public place. Its voice is louder, and its right to remain is stronger, than that of any private speaker. Most importantly, of course, government speakers have the power to exclude other voices. This piece argues that the Court’s conception of public places as channels of governmental speech, its heavy reliance on the analogy of private property ownership, and its suggestion that public places such as parks themselves convey governmental identity claims threaten to undermine fundamental tenets of the public forum concept and to limit private speech in public places.

Matt Festa

NY Times on DC Building Height Limits

The New York Times has an interesting article on the current discussion about the building height limits in Washington DC: In the Capital, Rethinking Old Limits on Buildings.  From the intro:

Its low-slung architecture is no accident. In 1910, Congress passed an act limiting the heights of buildings in the capital. The first residential skyscraper, the Cairo, had been built, and at 12 stories, it was higher than fire ladders could reach and scandalously out of sync with its smaller neighbors.

One hundred years later, most Washingtonians see the act as a good thing. Their sidewalks are shadowed by the outlines of trees, and the dome of the Capitol can be seen from most roof decks. The act, they say, preserves the unique nature of their city, whose landmarks draw millions of visitors each year.

Now, on the act’s centennial, a small tribe of developers, architects and urban experts are questioning the orthodoxy of the rule’s application. A modest change, they argue, would inject some vitality into the urban scene, would allow for greener construction, and could eventually deliver bigger tax receipts for the badly pinched city budget, currently in a hole of about $175 million.

But raising the limit is nothing short of sacrilege for preservationists here, who fear that any change, however slight, will open the door to more.

The DC building height limit controversy is a crystallization of many of the most significant and perplexing contemporary land use issues.  On the one hand, the height limit was one of the earliest and longest-standing land use regulations; it invokes the Enfant/Parisian heritage of the historical DC plan; and it has undoubtedly led to the very pleasant streetscapes and visuals in much of DC today.  On the other hand, it has mandated a density limit that has exacerbated the scarcity of urban land, inflated real estate prices, and helped cause the serious sprawl that has plagued the DC region over the past generation.  It is also an interesting debate, considering that many leading urban theorists call for greater density and vertical development, while in the nation's capital it will literally take an Act of Congress to move in that direction.  

Matt Festa

Illegal Spot Zoning

A judge in Charleston, SC, determined by order dated August 20, 2010, that the City of Charleston's attempt to rezone an area within its historic district to allow the construction of an otherwise aesthetically incompatible high-rise hotel constituted illegal spot zoning. Of note for preservation lawyers, the court recognized the standing of the Preservation Society of Charleston and the Historic Charleston Foundation, based on injuries they suffered as owners of preservation facade easements on properties adjacent to the proposed development site.  During trial, the preservation groups argued, among other injuries to their easement programs, that the City's zoning decision diminished the value of their ownership interests in the easements in proportion to the increased risk of loss to the area's historic setting and context, one of the factors employed by the U.S. Department of Interior in granting National Register status.

Ultimately, the court accepted the arguments of the preservation plaintiffs that the City's spot zoning amounted to an arbitrary and capricious decision.  The court reached its decision after noting multiple conflicts between the City's decision to rezone and provisions of the City's governing comprehensive plan that seeks to preserve the lower scale of the historic skyline.  For a copy of the court's order in PDF format, please email me at [email protected].  For a copy of the controlling spot zoning test applied by the court, see Knowles v. City of Aiken, 407 S.E.2d 639 (S.C. 1991).

Will Cook, Charleston School of Law