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.

Kornfeld on Israeli land policies and the Bedouins

Hello all:

Initially, I’d like to thank Stephen Miller and Jessie Owley for the privilege of allowing me to be a guest blogger.  I hope that my posts will be both informative and thought provoking.  

Thanks, Itzchak Kornfeld

In this, my first post, I will address a real property issue that is pitting the Government of Israel against its Bedouin minority.

280,000 Bedouin live in Israel. Of these, 90,000 live in the Negev Desert in the country’s south.  See Map Below.  This community lives in the general area of Be’er Sheba, which we in Israel consider the capital of the Negev.  The government is seeking to evict the Negev Bedouin from their ancestral lands.  Its reason: the State of Israel considers them to be living in unauthorized villages or locations and accordingly sees them as squatters.   I will address why the government has taken on this position in a subsequent post.  Today I will introduce the history of the Bedouin and an initial discussion of the Land Law of 1949.

• Full disclosure, I work and have worked with the Bedouin and against the government.

 

 

 The Negev (or Southern) Desert, Israel

 

 

TheZin Wilderness in the Middle Negev, Israel

 

Juniper Tree in the Negev adjacent to the Large Crater (of Makhtesh HaGadol in Hebrew)

One fact that is likely well known but may not be fully acknowledged is that Europeans, in almost every venue that they’ve settled, e.g., the U.S. and Canada, have taken by force lands that belonged to indigenous populations.  Indeed, examples abound across the face of the planet, e.g., American Indians, the First Nations of Canada, the Bedouin of the Middle East, the Berbers of North Africa’s Maghreb, and the Walmatjarra of Australia, among others.  Prior to being dispossessed and placed on reservations of one sort or another, these peoples flourished and were one with nature. 

Of course, being one with nature is not one of the virtues of most European colonialists and their progeny.  They conquer, reclaim and put land to “beneficial uses”.  In this vein, private property rights theorists would argue that the bundle of rights, regardless of whether the land was appropriated by force, must be seen as a feature of an economic good. This economic paradigm requires use of the land; income generation from the land; the right to transfer the asset; and the right to enforce their property rights.  But, how are aboriginal peoples supposed to gain the bundle of rights if they are dispossessed from their ancestral lands?  This situation of course sets up a conflict between the two sides.

Indeed, the Bedouins in the Negev are in conflict with the European-based government of Israel.  First, who are the Bedouin?  They are an Arabic speaking seminomadic group that is descended from nomads who for at least  thousand years inhabited the deserts of the Middle East, mainly from Syria in the north to North Africa in the south, and for our purposes, resided in Israel pre -1948, the date of the State’s founding.

 The Bedouin also continue to reside within the boundaries of the State of Israel, and unlike the Palestinian or Arabs who also live in Israel proper the Bedouin serve in Israel’s military (the “IDF”).  Service in the military is very important for Jewish Israelis however, the Bedouin do not receive the benefits that Jewish soldiers receive upon being released from their term of service.

 

 

 

 

 

 

Bedouin Man wearing IDF Jacket

 

 How the Bedouin Live Today, when Not Afforded Government Services

                

                Notably, the Bedouin have been fighting for the right to the lands that they and their ancestors occupied since the founding of the State of Israel.  Moreover, they cannot undertake their semi-nomadic lifestyle since the borders of Egypt, Jordan, Lebanon and Syria are closed to them as a consequence of their Israeli citizenship.  The Negev Bedouin have thus been forced to give up their thousand year legacy of being nomads.

Israel’s Land Policies

Since its founding in 1948, the Israeli government has held title to all but 7 percent of land within the country’s borders.  The latter is held by deed, generally predating the formation of the Government of Israel.   The government’s real property interests are transferred to it from the independent Jewish National Fund (“JNF”).  The JNF was established in Basel, Switzerland, in 1901, solely to purchase land from Arabs, the Ottoman Turks, Jews, and other land holders, within the bounds of what today is Israel.

 In enacting the Israel Land Law of 1969, as amended, the Knesset (Parliament) sought to eliminate the majority of the Ottoman Turkish law of 1274.  That, in fact, did not occur.  However, Knesset members thought long and hard about the adoption of the British common law property system, if for no other reason, because it was extant and had been working for some 30 years.  Moreover, Hebraic or Jewish property law, as enunciated in the Bible and the Talmud, was also engrafted onto the 1969 law. Thus today, real property law in Israel is a combination of the three.  That legal sausage is now the law of the land.

A Twist in the Law

            A personal story  may be of interest: In 1937, my father’s aunt purchased a parcel of property in Ramat HaSharon, an upper income city, north of Tel Aviv, where today most of the IDF’s generals reside.  She was one of 18 parcel holders.  When Aunt Sara passed away my father inherited the plot, and subsequent to his death, I inherited it.  The other owners and I  sought to develop all 18 parcels (4.5 acres), however, we cannot due to an artifact of Ottoman law.  That legal relic states that if A is growing any fruits or vegetable on B’s land, as a lessee, the lease cannot be terminated by B until A decides not to grow crops.  In our situation, my father’s aunt Sara purchased the property following A’s agricultural undertaking.  He grew tomatoes, and his heirs continue to do so.  Thus, three generations of my family are legally bound not to evict the farmers from our land.  One bright spot is  that we as owners we do not have to pay real estate taxes, s long as the property remains agricultural.  

Go Figure!!

Agglomerama--Fennell on Cities' Participant Assembly Problem

Lee Fennell (Chicago) has posted Agglomerama, __ BYU L. Rev __ (forthcoming).  In it, she examines how cities attract the right mix of residents and businesses to maximize social value.  She takes a look at a number of possible ways in which cities might incentivize and manage positive spillover effects, including a proposal by Gideon Parchomovsky and Peter Sieglman to emulate shopping mall developer coordination between anchor and satellite tenants, which proposal can be found in their Cities, Property and Positive Externalities, 54 Wm.  & Mary L.Rev. 211 (2012).  Here's the abstract for the Fennell piece:

Urbanization presents students of commons dilemmas with a pressing challenge: how to achieve the benefits of proximity among people and land uses while curbing the negative effects of that same proximity. This piece, written for the 2014 BYU Law Review Symposium on the Global Commons, focuses on the role of location decisions. It casts urban interaction space as a commons that presents the threat of overgrazing but that also poses the risk of undercultivation if it fails to attract the right mix of economic actors. Because heterogeneous households and firms asymmetrically generate and absorb agglomeration benefits and congestion costs, cities embed an interesting collective action problem — that of assembling complementary firms and households into groupings that will maximize social value. After examining the nature of this participant assembly problem, I consider a range of approaches to resolving it, from minor modifications of existing approaches to larger revisions of property rights.

Jim K. 

Malloy on Land Use Law and Disability

Cambridge University Press has just announced the release of Robin Paul Malloy's new book, Land Use Law and Disability: Planning and Zoning for Accessible Communities (2014).   In it, Robin argues for a new generation of inclusive design standards to foster more housing opportunities for persons living with mobility impairments.  Robin's scholarly work in this area has further developed land use law as a basis, independent of civil rights statutes and constitutional guarantees, for inclusionary claims made by marginalized persons.

Jim K.

Congress of New Urbanism (courtesy of Yelp!)

Last week, Buffalo hosted the 22nd Congress for New Urbanism. With a constrained conference budget, I was planning on just scoping out the (numerous) public events. Then conference funding came through from a surprising source. I actually won free conference registration via Yelp! (yes it pays to  be elite). I am not sure what it says about academia when we have to look to social media to help with our research funding but I was happy to get in the door!

CNU 22 was a mixture of the inspirational and the mundane. It was amazing to see people from all over the country (and particularly so many from Buffalo) coming together to think about how to improve your communities. I bathed in the local pride (feeling the Buffalove as we say around here) and heard inspiring tales about efforts in Toronto, Minneapolis, DC, and Milwaukee. But nothing was actually radical. In some ways this is an encouraging story. It no longer seems crazy to argue that suburban sprawl is destroying community. I really didn't need convincing that we should have more walkable or bikable cities. There seems to be general agreement on what elements make for a thriving urban environment and largely agreement from the attendees on how to get there (community involvement, form based codes, economic development). Thus, while I enjoyed myself and met some fascinating folks I left the conference with an empty notebook. Maybe I just attended the wrong sessions, but I wonder what types of legal changes we might need, what type of property tools we can use, and of course who is gonna fund it all. Any suggestions?

What if They Don't Build It and/or No One Comes?: Combating Zombie Subdivisions

Jim Holway (Sonoran Institute), along with Don Elliot and Anna Trentadue, has written Combating Zombie Subdivisions: How Three Communities Redressed Excess Development Entitlements, Land Lines Vol. 26, No. 1, pp. 4-13.  Not only is the article available through the Land Lines website, but so is the larger report on which it is based.   That is called Arrested Developments:  Combating Zombie Subdivisions and Other Excess Entitlements.  Here's a summary of the magazine piece:

The Teton County Valley Advocates for Responsible Development (VARD) stepped in and petitioned the county to create a process to encourage the redesign of distressed subdivisions and facilitate replatting. VARD realized that a plat redesign could reduce intrusion into sensitive natural areas of the county, reduce governmental costs associated with scattered development, and potentially reduce the number of vacant lots by working with landowners and developers to expedite changes to recorded plats.

On November 22, 2010, the Board of County Commissioners unanimously adopted a replatting ordinance that would allow the inexpensive and quick replatting of subdivisions, PUDs, and recorded development agreements. The ordinance created a solution-oriented process that allows Teton County to work with developers, landowners, lenders, and other stakeholders to untangle complicated projects with multiple ownership interests and oftentimes millions of dollars in infrastructure.

The ordinance first classifies the extent of any changes proposed by a replat into four categories: 1) major increase in scale and impact, 2) minor increase in scale and impact, 3) major decrease in scale and impact, 4) minor decrease in scale and impact. Any increases in impact may require additional public hearings and studies, whereas these requirements and agency review are waived (where possible) for decreases in impact. In addition, the ordinance waives the unnecessary duplication of studies and analyses that may have been required as part of the initial plat application and approval. Teton County also waived its fees for processing replat applications.

The first success story was the replatting of Canyon Creek Ranch Planned Unit Development, finalized in June 2013. More than 23 miles from city services, Canyon Creek Ranch was originally approved in 2009 as a 350-lot ranch-style resort on roughly 2,700 acres including approximately 25 commercial lots, a horse arena, and a lodge. After extensive negotiations between the Canyon Creek development team and the Teton County Planning Commission staff, the developer proposed a replat that dramatically scaled back the footprint and impact of this project to include only 21 lots over the 2,700 acre property. For the developer, this new design reduces the price tag for infrastructure by 97 percent, from $24 million to roughly $800,000, enabling the property to remain in the conservation reserve program and creating a source of revenue on it while reducing the property tax liability. The reduced scale and impact of this new design will help preserve this critical habitat and maintain the rural landscape, which is a public benefit to the general community.

Conclusion

While recovery from the most recent boom and bust cycle is nearly complete in some areas of the country, other communities will be impacted by vacant lots and distressed subdivisions well into the future. Future real estate booms will also inevitably result in new busts, and vulnerable communities can build a solid foundation of policies, laws, and programs now to minimize new problems stemming from the excess entitlement of land. Communities and others involved in real estate development would be well-served by ensuring they have mechanisms in place to adapt and adjust to evolving market conditions. For jurisdictions already struggling with distressed subdivisions, a willingness to reconsider past approvals and projects and to acknowledge problems is an essential ingredient to success. Communities that are able to serve as effective facilitators as well as regulators, as demonstrated in the case studies presented here, will be best prepared to prevent and then respond and treat distressed subdivisions and any problems that may arise from excess development entitlements.

Jim K.

 

Athens Wal-Mart Project Dies

So it's been quite awhile since my last post, but I felt compelled to share the end of the story about putting a Wal-Mart in downtown Athens, Georgia.  If you're a longtime reader of the blog you may remember that an Atlanta based developer proposed a mixed-use development, anchored by a Wal-Mart, in the center of Athens.  (See my previous post here.)  Although Wal-Mart never expressed official interest in the project, many local residents were highly opposed to the idea.

Yesterday the local paper featured a story saying that the developer has now abandoned the project entirely, due to market conditions.  The development featured student apartments as its residential component, and downtown Athens is already overbuilt in that category.  However, the site, while topographically challenging, is prime real estate.  I'm sure as market conditions improve something will eventually be built there.

Jamie Baker Roskie

Conservation Development without Conservation Biologists?

A new paper on conservation development provides oodles of information about conservation development in the western United States while pinpointing shortfalls with current ordinances. Conservation development for the uninitiated is well... pretty much exactly what it sounds like. It is a land-se planning strategy that requires conservation measures for new development. It can take the form of conservation easements, cluster development, conservation-oriented planned development, etc. A common feature is setting aside some portion of land for conservation in a residential development project. Many counties and local governments have laws promoting conservation development (often pledging faster project review or bestowing density bonuses).

Although not yet available in print, you can get an early view of an article in the upcoming issue of Conservation Biology by Sarah Reed, Jodi Hilty, and David Theobald that examines conservation development ordinances in 11 western states. The authors did an impressive job of reviewing ordinance for 402 counties (97% response rate-- wowzers). As conservation biologists, the authors were interested to see if the county ordinances promoted sound ecological principles.  A few interesting things coming out of the study:

• over 30% of the counties actually had conservation development ordinances
• most required protection in perpetuity, but not all
• most required conservation of some portion of the land, but set no minimum sizes on protected area, rarely required connection with other protected lands or even other lands within the site
• very few ordinances required ecological analysis
• only 8% required some type of consultation with an ecologist or conservation biologist
• few required management plans

These  are just a few of the points that they make, and I recommend getting the full article to learn more. This is a good article for lawyers and planners to read because it highlights some of the problems we have communicating with each other. One thing they don't answer but I wondered about is how many conservation biologists were consulted when the counties actually wrote the ordinance.

Here is the full title and abstract:

Guidelines and Incentives for Conservation Development in Local Land-Use Regulations

SARAH E. REED, JODI A. HILTY, & DAVID M. THEOBALD

Article first published online: 3 SEP 2013

DOI: 10.1111/cobi.12136

Effective conservation of biological diversity on private lands will require changes in land-use policy and development practice. Conservation development (CD) is an alternative form of residential development in which homes are built on smaller lots and clustered together and the remainder of the property is permanently protected for conservation purposes. We assessed the degree to which CD is permitted and encouraged by local land-use regulations in 414 counties in the western United States. Thirty-two percent of local planning jurisdictions have adopted CD ordinances, mostly within the past 10 years. CD ordinances were adopted in counties with human population densities that were 3.0 times greater and in counties with 2.5 times more land use at urban, suburban, and exurban densities than counties without CD ordinances. Despite strong economic incentives for CD (e.g., density bonuses, which allow for a mean of 66% more homes to be built per subdivision area), several issues may limit the effectiveness of CD for biological diversity conservation. Although most CD ordinances required a greater proportion of the site area be protected than in a typical residential development, just 13% (n = 17) of the ordinances required an ecological site analysis to identify and map features that should be protected. Few CD ordinances provided guidelines regarding the design and configuration of the protected lands, including specifying a minimum size for protected land parcels or encouraging contiguity with other protected lands within or near to the site. Eight percent (n =11) of CD ordinances encouraged consultation with a biological expert or compliance with a conservation plan. We recommend that conservation scientists help to improve the effectiveness of CD by educating planning staff and government officials regarding biological diversity conservation, volunteering for their local planning boards, or consulting on development reviews.

 

- Jessie Owley

 

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

Fennell on Crowdsourcing Land Use

Lee Fennell (Chicago) has posted Crowdsourcing Land Use, 78 Brook. L. Rev. ___ (forthcoming 2013).  In it she looks ahead to the possibilities for emerging information technology to provide platforms for sharing data about land use impacts and preferences as well as landowner intentions.  The last of these involves a proposal for the creation of publicly facilitated options markets in land use rights, an idea she previously outlined in her 2011 piece Property and Precaution (Journal of Tort Law, 2011).  Here's the abstract for the Crowdsourcing article:

Land use conflicts arise from information shortfalls, and avoiding them requires obtaining and using information. Yet traditional forms of land use control operate in relative ignorance about landowner intentions, about preferences for patterns of land use that do not presently exist, and, more fundamentally, about land use impacts as they are experienced on the ground. Because information is expensive to gather and use, this ignorance may be rational. New technological and theoretical advances, however, offer powerful ways to harness and deploy information that lies dispersed in the hands of the public. In this symposium essay, I assess the prospects for an increased role for crowdsourcing in managing land use, as well as the limits on this approach. Governments must do more than elicit, aggregate, coordinate, and channel the preferences, intentions, and experiences of current and potential land users; they must also set normative side constraints, manage agendas, and construct appropriately scaled platforms for compiling and using information.

Jim K.

The Trick-or-Treat Test

Happy Halloween!  If you're out trick-or-treating tonight, think about what planners call the "trick-or-treat test" for your neighborhood.  The idea is that based on design and form, a great neighborhood for trick-or-treating--kids and families walking around the streets, visiting door to door--is also likely to be a great neighborhood year-round. City Planner Brent Toderian writes about this at the Huffington Post in Does Your Neighbourhood Pass the 'Trick or Treat Test'?:

Great neighbourhoods for trick-or-treating also tend to be great neighborhoods for families everyday:

• Tree-lined streets designed for walkers more than speeding cars.
• Enough density and community completeness, to activate what I call "the power of nearness" - everything you need, nearby.
• Good visual surveillance through doors and stoops, windows (and I don't mean windows in garages), porches and "eyes on the street."
• Connected, legible streets that let you "read" the neighbourhood easily -grids tend to be good for this, but other patterns work too.

All of these are great for trick-or-treating, and equally great for walkable, healthy, economically resilient communities year-round.

It makes a great deal of sense, though I hadn't previously known that the "trick-or-treat test" was a term of art in the planning community.  Thanks to Jenna Munoz for the pointer.  A related item is Richard Florida's 2012 Halloween Index at The Atlantic Cities:

For this year's "Halloween Index," Kevin Stolarick and my Martin Prosperity Institute (MPI) colleagues focused on five factors that make for a great Halloween metro area — population density (which makes for efficient trick-or-treating), kids ages five to 14 (as a share of metro population), and median income (a measure of regional affluence), as well as candy stores and costume rental stores per one hundred thousand people.

In the story at the link, you can check out the map which shows the best scoring cities in the categories; Chicago is #1.  Zillow, however, has San Fransisco at #1 with its similar but slightly different methodology for determining the 20 Best Cities to Trick or Treat in 2012:

There is a common belief that wealthy neighborhoods are the Holy Grail for harvesting the most Halloween candy. However, to provide a more holistic approach to trick-or-treating, the Zillow Trick-or-Treat Index was calculated using four equally weighted data variables: Zillow Home Value Index, population density, Walk Score and local crime data from Relocation Essentials. Based on those variables, the Index represents cities that will provide the most candy, with the least walking and safety risks.

Finally, Paul Knight at Treehugger provides a mathematical forumula in More on the Trick or Treat Test: Calcluating the "Candy Density":

Potential Candy Score (Candy Pieces) = Target Neighborhood (Acres) x Houses-Per-Acre x Families-Per-House (accounting for duplexes, etc) x % Candy-Giving-Families x Candy-Pieces-Per-Family

I always say that land use is ultimately about the built environment of the communities in which we live.  If you are out in your community on Halloween night, be safe, and take the opportunity to observe and think about land use!

Matt Festa

Hou on Public Spaces

In Places, a former graduate school colleague of mine has a fascinating essay on the use of public spaces. The essay is drawn from a chapter in the forthcoming book Beyond Zuccotti Park: The Freedom of Assembly and the Occupation of Public Space.

    Jeffrey Hou, Beyond Zuccotti Park: Making the Public. Places. Sept. 24, 2012

    Hou provides examples of public transformation of places into sites of action, meaning and     possibility. Challenging us to rethink our notion of “public” in public space. The essay is accompanied     by photos of public appropriation and use of public spaces from across the globe.

For those of you unfamiliar with Places, it is an interdisciplinary journal on architecture, landscape, and urbanism. It has been an online journal since 2009, which is a superior format as it allows images and discussion of the articles. Check it out.

Jessica Owley

Bauer on Age-Restricted Communities and Civil Rights Laws & Regulation

Mark D. Bauer (Stetson) has posted ‘Peter Pan’ as Public Policy: Should Fifty-Five-Plus Age-Restricted Communities Continue to Be Exempt from Civil Rights Laws and Substantive Federal Regulation?  The abstract:

Although millions of Americans live in 55-plus age-restricted housing, little research has been done to determine whether these communities benefit their residents, or the nation as a whole. This is particularly ironic because these communities exist in contravention to anti-discrimination laws by virtue of a specific exemption granted to real estate developers by an Act of Congress. Ordinarily age discrimination is prohibited by the Fair Housing Act, Title VIII of the Civil Rights Act of 1968. Successful lobbying by special interest groups carved out an exemption for 55-plus housing.

The original exemption required developers to offer elders special services and facilities in these communities in return for the exemption. Over time, those requirements were eliminated and now the only requirement is that these communities exclude families and children.

While lifestyles focused on golf and tennis may be attractive to younger retirees, older Americans often find themselves in communities bereft of the services and facilities they need for basic life activities and safety. The very nature of these communities result in elders left with depreciating homes, and many are without the financial means to retrofit their 55-plus home or to move into a community better adapted for their needs. This Article explores a popular form of “senior housing” that is unsuitable for most older Americans.

Matt Festa

Gade on Olympic Villages

Check out this interesting article and fascinating slide show on Olympic Villages over the years. As Matt always tells us, everything can be a land use issue and the Olympics are no exception. Many buildings and facilities are erected for each Olympics, and one necessary element is a place to house all the visiting athletes. This slide show of what the housing as looked like over the year (and in some cases what those properties look like still today).

Jessie Owley

Clowney on Landscape Fairness and Discrimination in the Built Environment

Stephen Clowney (Kentucky), our colleague over at Property Prof, has posted his latest piece, called Landscape Fairness: Removing Discrimination from the Built Environment, forthcoming in the Utah Law Review (2012).  It looks very interesting.  The abstract:

At its core, this Article argues that the everyday landscape is one of the most overlooked instruments of modern race-making. Drawing on evidence from geography and sociology, the paper begins by demonstrating that the built environment inscribes selective and misleading versions of the past in solid, material forms. These narratives — told through street renamings, parks, monuments, and buildings — ultimately marginalize African-American communities and transmit ideas about racial power across generations.

After demonstrating that the landscape remains the agar upon which racial hierarchies replicate themselves, the Article then pivots and examines current efforts to rid the built environment of discriminatory spaces. I put forth that contemporary attacks on the landscape are doomed to fail. The approaches suggested by academics in law and geography either turn a blind eye to the political economy of local decision-making or fail to consider entrenched legal precedent.

The final section of the manuscript lays out a policy proposal that could spark a new focus on issues of “landscape fairness.” I argue in favor of a set of basic procedural requirements that would force jurisdictions to reconsider the discriminatory places within their borders. Procedural mandates would force government to internalize values it might otherwise ignore, allow citizen-critics to challenge dominant historical narratives, and push communities to view the past (and future) in much more diverse terms.

This article touches on one of the most important but least discussed aspects of land use and the community landscape, and it builds on some of Steve's earlier work.  Check it out.

Matt Festa

Brookings Paper on the Economics of Walkable Places

Christopher Leinberger (Brookings) and Mariela Alfonso have published Walk this Way:The Economic Promise of Walkable Places in Metropolitan Washington, D.C., an economic analysis of certain DC neighborhoods using walkability measures. The study offers four findings:

--More walkable places perform better economically.

--Walkable places benefit from being near other walkable places.

--Residents of more walkable places have lower transportation costs and higher transit access, but also higher housing costs.

--Residents of places with poor walkability are generally less affluent and have lower educational attainment than places with good walkability.

The authors urge inclusion of walkability measures into lender underwriting criteria, developer feasability analyses, and private foundation sustainability metrics. In a brief article on TheAtlanticCities.com, Leinberger argues that walkability in neighborhoods has become a price benefit and that cities need to meet the growing demand. (Hat tip to my NDLS colleague Chris O'Byrne for sharing TheAtlanticCities.com piece)

Jim K.

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 

The UGA Land Use Clinic and Food Carts

Today was the very last class for the UGA Land Use Clinic, and my last class as managing attorney. (If this is news to you, you might want to read this previous post for background.)  It's a bittersweet day for me, but now I want to take the opportunity to brag on my students a bit.

I've had a fantastic group of students this semester. (My students are always great, but this group is particularly great.)  They've worked really hard and taken up a lot of the slack as I've been distracted by my upcoming move and several other challenges, including my husband recently breaking his shoulder. 

Several of the students have worked on a Food Cart/Truck project with UGA College of Environment & Design students.  It's been a two year effort involving a "Mobile Food Vending Study" as well as a Food Cart Festival and, just this week, a presentation to a committee of the Athens-Clarke County Commission on proposed changes to the local Food Cart ordinance to allow for a few more spaces for food carts and food trucks in downtown Athens. 

Per Ken Stahl's recent post, food trucks are a controversial local land use issue.  Here there has already been lots of push back from local restaurants.  However, it's interesting to note that a local restaurant - Farm 255 - has provided much of the impetus for food carts in Athens, as a "Farm Cart" is an integral part of their business model.  My students tell me the reality is there's very little data on the impact of food trucks on restaurants, but that doesn't do much to sooth the fears of the restaurant owners.  I may not be around to see the ultimate impact of this project, but I'm very proud of the work the law and the design students have done.

Jamie Baker Roskie

Do we need a distinct rural land-use law?

I just returned from a short commute down to our other research and teaching laboratory in the southeastern part of our state (with Stephen Miller and the students from our Boise-based Economic Development Clinic). Of course, given Idaho’s geography, that commute is over 1,200 miles roundtrip and requires heading in the wrong direction for the first 90 miles before detouring through Montana. But I was able to stop for a bike race in Missoula on Saturday, and then ski with my brother in Wyoming on Sunday, so it turned into a somewhat normal traveling weekend in this part of the world.

As I traveled home and watched the growing tapestry of insect remains develop on my windshield, I gradually realized that it represented something of a land-use-law Rorschach test. While I prefer my insects alive (I studied biology and have two young boys), the growing number of dead insects continually improved my mood. I ultimately realized that those dead insects represented two things to me. First, that spring has finally arrived. And second, that I had just traveled to someplace worth traveling to.

What does this have to do with land use law? Stephen’s clinic students have been working with the Teton County, Idaho planning department and county commissioners on a number of land-use issues, including how the county might deal with the hundreds of paper subdivisions that are scattered across the county’s rural areas (and, not insignificantly, they’ve also addressed how to deal with ‘dogs at large’). As I listened to their conversations, I thought about how most of our land-use law developed in urban and suburban areas. And I thought about how our land-use law might be ill-equipped to deal with rural land-use issues.

Other academic disciplines argue that rural places are different in some fundamental way, even if they struggle to describe it. Rural Sociology and Rural Geography are distinct academic sub-disciplines with their own theories, methodologies, and understandings of how people interact with each other and their lands and landscapes. And Planning departments often draw boundaries between rural and urban planning.

But what about the law and the legal tools we use to implement those plans and understandings? In Idaho, at least, we treat counties and municipalities equally. They have the same land-use authority, developed in the same statutory regime, and are treated equally by court decisions interpreting those statutes. They use the same tools. But they often deal with different issues in different social, cultural and ecological landscapes. Why does it make sense to use the same legal tools to address all of the complex tapestry of issues we encounter across our diverse urban, suburban, and rural landscapes?

So why is the insect-splattered windshield a land-use Rorschach test? Because I think our reactions to it might say something about how we think about place. Is it just an annoyance that requires cleaning? Or is it something else? And what does that decision say about how we think about land? I know I shouldn’t generalize my personal experiences, but to me the insects represent emptiness, distance, and place in a particular way. More than anything, they represent something that is not urban. And those things -- and the social and cultural structures they engender – require a different approach to land-use regulation.

--Jerry Long

After the Zombie Apocalypse

I was mildly surprised, upon checking my mailbox a few Mondays ago, to find a zombie crawling out of it. My excitement at finally getting to use my zombie apocalypse skills quickly faded when I realized that it was just an article by Allen Best in High Country News about Teton County, Idaho and its “zombie subdivisions.”

We’ve written a lot about Teton County and similar rural or exurban areas (my own take is here), so the basic story is familiar. Beginning in about 1990, amenity-driven population growth substantially increased the value of land in many rural areas, leading to a boom in residential development that “bust” in 2007 and 2008. That bust left behind thousands of acres of partially developed subdivisions, empty houses, and roads to nowhere across rural and exurban America – Maricopa, AZ; Rio Vista, CA; Myrtle Beach, NC, and of course, Teton County, ID (and here, and here, and... well, just wander around on Google Maps yourself). To the extent the zombie subdivisions have a positive aspect, however, it is in how they make obvious the detrimental effects of particular land-use choices, and perhaps motivate new choices. Maybe we’ll emerge wiser, more careful, and better able to imagine the consequences of our choices.

So we know that part of the story. Short of an ugly photo of a zombie, what does High Country News have to add? Its contribution to the conversation is small but very significant, and it is perfectly distilled in a single quote by long-time Idaho farmer: “I see bicycle riders here, young people riding in the middle of the day!”

Rural geographers (and others) speak of a concept they characterize as “re-territorialization”—the reassignment of resource access rights, and local or regional cultural hegemony, to a new population or interest group. In the public lands West, we see it in changing notions of the purpose of federally-managed lands, e.g., from resource extraction to amenity consumption. But it is no less important in the changing power structures and community visions that allocate rights in private lands.

The Idaho farmer’s bewilderment that people might be able to ride bicycles during the middle of the day, rather than be driving a tractor, represents a persistent understanding about place and what that place should look like. It is also an understanding increasingly overwhelmed, and perhaps disrespected, by emerging majorities. Our choices to formalize cultural transitions into law necessarily oppress reasonable perspectives about land, the appropriate allocation of particular interests in land, and the “sense” of a community. But in many cases these perspectives are fundamental aspects of a place’s cultural history. They are also fundamental aspects of what the rest of us understand as, and love about, rurality.

So while this insight isn’t particularly earth-shattering, it does seem that the zombie apocalypse forces us to focus more carefully on a specific question: To what extent should our new choices respect the cultural understandings that gave rise to the old choices we want to undo? Put another way, can we both love and protect the old rural while simultaneously eradicating the perspectives that created it?

Jerry Long