Land Use Prof Blog

Dolan on the Salazar cross, historic preservation, and federal land transfers

Mary Jean Dolan (John Marshall-Chicago) has posted P.S. Untold Stories and the Cross National Monument.  We've mentioned the land use aspects of the Salazar decision before.  Dolan's abstract:

This Article offers an interesting post script to the Supreme Court’s Salazar v. Buono Establishment Clause decision. It presents some surprising non-record facts and additional issues raised by Congress’s 2002 designation of the Mojave Cross as a “National Memorial.” This Act deserves more exploration, particularly because it appears wholly extraneous to the government policy approved by the Supreme Court plurality: ending the appearance of government endorsement of religion, while simultaneously “avoid[ing] the disturbing symbolism associated with the destruction of the historic monument.” 

Included in the new information is evidence that National Memorial status is not as lofty or rare as it would seem, the cross does not appear to be the sole WWI memorial for the nation, and in the past, Congress has abolished National Memorial status upon transferring the land. The Article also looks at the intersection of historic preservation law and Congress’ requirement that the Secretary of the Interior fund and install a new replica cross on Sunrise Rock.

Matt Festa

Kratzke on Russia's New Land Code

William P. Kratzke (Memphis) has posted Russia's New Land Code: A Two Percent Solution, from the Minnesota Journal of International Law, Vol. 12.  The abstract:

On October 25, 2001, President Vladimir Putin signed the Land Code of the Russian Federation into law. Factions in the Duma extensively debated the proposed Land Code during the 1990s. The communists and agrarians essentially had argued for a throwback to the bad old days. The new law only applies to 2% of all the land in Russia – but a very valuable 2%, i.e., urban land and dacha property. The Code provides opportunities for great success or failure. It is partly a zoning law, an environmental law, an eminent domain law, a historical preservation law, a “Superfund” law, a private trespass law, and a nuisance law. The Code also reflects Russia’s traditional concern for agriculture. It establishes principles of federalism in land matters by delineating the respective regulatory authorities of the Russian Federation, the regions, and municipalities. The new Land Code recognizes principles of private ownership that include the right to sell land – necessary conditions to its efficient use. The Soviet system of state ownership rejected these principles. Much of the new Land Code does not create any new or unfamiliar principles. However, the very breadth of the Code should sweep within its scope, or sweep away, any number of federal, republic, and local laws. In subtle ways, the Code acknowledges various shortcomings of local government officials. This article provides a first look at the new Land Code, reviews its provisions, and raises some legal and practical questions that will need resolution.

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

Fincham on The Distinctiveness of Property and Heritage

My colleague Derek Fincham (South Texas College of Law) has posted The Distinctiveness of Property and Heritage.  The abstract:

This piece takes up the competing concepts of property and heritage. Recent scholarship views property as a series of connections and obligations - rather than the traditional power to control, transfer or exclude. This new view of property may be safeguarding resources for future generations, but also imposes onerous obligations based on concerns over environmental protection, the protection of cultural resources, group rights, and even rights to digital property. Yet these obligations can also be imposed on subsequent generations, and certain obligations are imposed now based on the actions of past generations. 

This article examines the multigenerational aspects of property via a body of law which should be called heritage law. Heritage law now governs a wide range of activities some of which include: preventing destruction of works of art, preventing the theft of art and antiquities, preventing the illegal excavation of antiquities, preventing the mutilation and destruction of ancient structures and sites, creating a means for preserving sites and monuments, and even righting past wrongs. This piece justifies the new conceptualization in two ways. First, by showing that properly distinguishing property and heritage will allow us to better protect heritage with a richer, fuller understanding of the concept. And second by demonstrating how current definitions lead to imprecise analysis, which may produce troubling legal conclusions.

A growing body of heritage law has extended the limitations periods for certain cultural disputes. This has shifted the calculus for the long-term control of real, movable, and even digital property. This can be acutely seen with respect to cultural repatriation claims - specifically the claims of claimants to works of art forcibly taken during World War II; or the claims by Peru to certain anthropological objects now in the possession of Yale University which were removed by Hiram Bingham in the early part of the 20th Century.

Matt Festa

Fanizzo on Separation of Powers, Federal Land Management, and the Antiquities Act

Kelly Y. Fanizzo (Temple) has posted Separation of Powers and Federal Land Management: Enforcing the Direction of the President under the Antiquities Act, from Environmental Law, Vol. 40, No. 3, 2010 .  The abstract:

When can a third party sue to force an executive agency to take an action in compliance with the direction of the President? In 2001, President Bill Clinton designated a half million acre national monument in southeastern Arizona and ordered the Bureau of Land Management to study whether cattle grazing would harm the significant historic and scientific sites he intended to protect. The Bureau allowed grazing to continue without doing the study. A non-profit conservation group, the Western Watersheds Project, sued the Bureau to implement Clinton’s orders. The group asked the court to exercise its authority under the Administrative Procedure Act to compel agency action unlawfully withheld and set aside arbitrary, capricious, and unlawful agency action. The Bureau responded that judicial review was not available to enforce its compliance. This article argues that courts should enforce the terms of such presidential proclamations when third parties sue the non-compliant agency. The intent of Congress in delegating to the President the ability to act quickly and reserve public lands for certain uses and not others and the broad deference given by the courts to the exercise of presidential discretion at the time of the designation support the application of this judicial review. Set against the backdrop of preserving our national cultural heritage, this case highlights the respective, and at times, overlapping roles of the executive, legislative, and judicial branch in federal land management.

Matt Festa

National Preservation Conference in Austin . . . and Buffalo

We mentioned that last week the National Trust for Historic Preservation had its annual meeting in the Weird City, Austin TX.  There are reports from the conference available on the Trust's website.  There is a video available of the opening plenary session, featuring National Trust President Stephanie Meeks, Laura Bush, and New Yorker architecture critic Paul Goldberger.  

Now the HP community can look forward to next year's National Preservation Conference in Buffalo!  If you're skeptical, check out this video, which correctly points out that Buffalo is a gem for architecture, late 19th/early 20th C. city planning and design, and a great site for discussing contemporary preservation issues with respect to older cities.  The video has gotten some local attention and has allegedly "gone viral" in Buffalo.

Matt Festa

2010 National Preservation Conference--Austin

Next week the National Trust for Historic Preservation holds its annual National Preservation Conference in the weird city, Austin, Texas, from Oct. 27-30.  Looks like a great event, with the program available online.  Featured speakers include New Yorker architecture critic Paul Goldberger and Interior Secretary Ken Salazar.  Here's the conference blurb:

Prepare yourself for a completely new National Preservation Conference experience! To complement our future-focused Austin theme, we’ve planned dynamic new programs that encourage conversation and interaction, and spotlight 21st-century preservation imperatives.

Join hundreds of grassroots volunteers, skilled professionals, and preservation experts exploring preservation today -- in urban and rural settings across the United States. We’ll focus on the conventional and the controversial issues that arise every day, and share the most effective tools and practices for fostering preservation in any community.

Can't make it out to Austin next week?  Don't worry, you can attend the conference virtually, with lots of web content and social media planned to be available.  Great idea.

Matt Festa 

DOJ Report on RLUIPA at 10 Years

The Department of Justice this week issued a report on its decade of enforcement actions since the enactment of the Religious Land Use and Institutionalized Persons Act (RLUIPA).  From the press release:

RLUIPA protects places of worship and other religious uses of property from discrimination and unreasonably burdensome regulation in zoning and landmarking law, and also protects the religious freedom of persons confined to institutions such as prisons, mental health facilities and state-run nursing homes.   RLUIPA was enacted by both houses of Congress unanimously and signed into law on Sept. 22, 2000.   The law was a response to concerns that places of worship, particularly those of religious and ethnic minorities, were often discriminated against in zoning matters.

 

The report illustrates that in the 10 years since its enactment, RLUIPA has aided thousands of individuals and institutions from a wide range of faith traditions through Department of Justice lawsuits, private lawsuits, and successful efforts to achieve voluntary compliance.

More information can be found in the full Report on the Tenth Anniversary of the Religious Land Use and Institutionalized Persons Act.

Matt Festa

The Expanding Nature of Preservation

One of the interesting facts about historic resource preservation is that its boundaries are always growing.  But some communities have not embraced fully this facet of preservation, even as Modernist architecture matures and qualifies for official National Register listing on the federal level.  This is especially true in communties with rich stocks of 18th and 19th century architecture, where the preservation aesthetic tends to favor colonial, neo-colonial, and other revivalist styles.  New Canaan, Connecticut, only one hour north of New York City, is one community with a treasure trove of traditional as well as Modernist styles.  New Canaan, then, has felt this tension acutely, especially as property owners increase to subdivide large lots into smaller, developable parcels.

Many of New Canaan's modernist houses sit on these large lots.  Even though they make important statements about life in America at the time of their construction and teach important lessons about building form and architecture's relationship to function and nature, modernist houses fall--at the moment--outside of current mainstream style preferences.  Moreover, Modernist homes are usually modest in scale, and thus too small for a market that tends to prefer large, overscaled architecture of the post-Modernist sort.  Unless local preservation ordinances are calibrated to protect "newer" structures, as well as more traditional styles the public more typically associates with historic preservation, Modernist houses, such as those in New Canaan, will face increasing demolition pressure as demand for land outpaces a community's desire to preserve.  Click here to read more or see David Hay, Too New for New Canaan, Preservation 34 (Sept./Oct. 2010).

Will Cook, Charleston School of Law

Habdas on Polish Historical Immovables as Objects of Ownership

Magdalena Habdas (U. of Silesia Katowice) has posted My Home is My Castle--But is My Castle Truly Mine? Polish Historical Immovables as Objects of Ownership.  The abstract:

Cultural goods, in particular historical buildings and real estate, ‘demand’ a more complex understanding of ownership. Regardless of whether the owner is a private or a public entity, the need to protect these historical immovables in the interest of the society remains the same. There is no single category of owners, who will guarantee the proper protection and care of historical real estate. Private owners with no understanding of the limits of their right are just as undesirable as public owners (local authorities, the state), who have been known to utilize historical immovables for the benefit of their office, but without adequate protection or respect for the historical and artistic value. In all cases where ownership is affected by a public interest, the right is no longer purely private and therefore may be subject to restrictive regulation. However, common sense confirms that security of property and ownership is not in opposition to acknowledging a public element in these rights, particularly if their object is unique, as in the case of historical real estate.

Matt Festa

Fanizzo on Property Management Under the Antiquities Act

Kelly Y. Fanizzo (Temple) has posted Politics, Persuasion, and Enforcement: Property Management Under the Antiquities Act, from the 13th Annual US/ICOMOS International Symposium, Economic Benefits, Social Opportunities, and Challenges of Supporting Cultural Heritage for Sustainable Development, May 20-22, 2010 and adapted from her article Separation of Powers and Federal Land Management: Enforcing the Direction of the President under the Antiquities Act, ENVIRONMENTAL LAW, Volume 40, Issue 3.  The abstract:

Recognizing the tremendous loss to the nation that results from unchecked collecting and vandalism, Congress passed the Antiquities Act in 1906 to preserve threatened historic and scientific structures, ruins, and objects and protect against the loss of valuable scientific data. Granting considerable authority to the President, the Antiquities Act provides for the designation of national monuments through the withdrawal of public land. Over the past decades, numerous monument designations have raised questions about the limits of the President’s role in federal land management. But practical questions looming just beyond the President’s ability to designate a national monument only recently surfaced in a challenge to the Bureau of Land Management’s (BLM) grazing policies in the Sonoran Desert National Monument. This case before the Arizona District Court focused on the BLM’s management of the national monument, and not the process of its designation. This challenge sparked a discussion on how the protective intent of a monument proclamation can be best achieved. It asked what is the President’s authority to manage a national monument and when can a third party sue to force an executive agency to comply with the monument proclamation’s terms. This paper argues that consistent judicial review of an agency’s management of a monument can help national monument designations maintain their protective purpose. In the context of the Antiquities Act and more broadly, using this challenge as a case study allows us to consider what teeth are left in this law, now on the books for over a hundred years, to protect significant historic and scientific resources.

Matt Festa

Slide Show of Georgia Theater Rebuild

Previously I blogged about the historic Georgia Theater, almost destroyed by fire a year ago.  The Athens Banner-Herald now has a slide show showing reconstruction in the interior.  It's a pretty interesting pictorial history of the restoration of the building, which dates to the late 1800s.  The owner has struggled with financing and rebuilding, but there's so much sentiment to save the building that I think he'll ultimately be successful.  He's also got a great sense of humor - the marquee on the building currently reads "Men At Work."

Jamie Baker Roskie

Enough with Jane Jacobs Already?

Check out this really interesting piece from the Wall Street Journal: Enough With Jane Jacobs Already, by Andrew Manshel.  Manshel is with the nonprofit Greater Jamaica Development Corp.  He argues that while Jane Jacobs was right about many things, the enshrinement of her views in planning circles should be reassessed.  He says that now is the time, due to Mayor Bloomberg's Charter Revision Commission process.  Lots of interesting thoughts in this opinion piece, so it's hard to know what parts to highlight.    

Jacobs's book is generally regarded as a jeremiad in opposition to the large-scale planning of the '50s and '60s. She is celebrated as the individual who did the most to end that era's Robert Moses and Le Corbusier-inspired, automobile-centric view of urban life. In Jacobs's opinion, the ideal of city living was the West Village of Manhattan, with its short blocks, narrow streets and little shops. She praised the human-scale aspects of city life; the "eyes on the street" of the shopkeeper and the social cohesion promoted by "street corner mayors." In her view, large-scale planning was prone to failure.

Are you with Jacobs, or are you with Bob Moses and Le Corbusier??

Her views have now been broadly adopted and it is conventional wisdom in planning circles that participatory neighborhood planning is best, that preservation of old buildings is essential, and that in cities the car is bad. But Jacobs had a tendency toward sweeping conclusions based on anecdotal information, and some of them were overblown and/or oblivious to the facts. Perhaps most graphically, Jacobs predicted that the grand arts center planned for the Upper West Side of Manhattan would fail. But Lincoln Center turned out to be a great success—igniting the revitalization of the entire neighborhood.

More revealingly, the Greenwich Village she held out as a model for city life has become some of the highest-priced real estate in New York City—it's no longer the diverse, yeasty enclave she treasured. Ultimately, many of the policies she advocated blocked real-estate development—causing prices of existing housing stock to rise and pricing out all but the wealthiest residents.

Manshel calls for more attention to the ideas of William H. Whyte, who inspired Bryant Park and Houston's Discovery Green, among other projects.  Manshel isn't the first to challenge Jacobs' legacy recently: see Benjamin Schwarz's recent Atlantic piece.  What do you think about Manshel's critique of the citizen-participation focus?  Again, it's a quick and thought-provoking read, so check it out.  

 

Matt Festa

Wiseman on Public Communities, Private Rules

Hannah J. Wiseman (Texas) has posted Public Communities, Private Rules, Georgetown Law Journal, Vol. 98, No. 3 (2010).  The abstract:

As the American population grows, communities are seeking creative property tools to control individual land uses and create defined community aesthetics, or distinctive “built environments.” In the past, private covenants were the primary mechanism to address this sort of need. Public communities, however, have begun to implement covenant-type “private” rules through zoning overlays, which place unusually detailed restrictions on individual property uses and, in so doing, have created new forms of “rule-bound” communities. This Article will argue that all types of rule-bound communities are uniquely important because they respond to resident consumers’ heightened demand for a community aesthetic. It will also highlight their problems, however. Many community consumers are marginally familiar with private covenants and traditional zoning, but they are largely unaware of the relatively new zoning overlays used to form public rule-bound communities. Yet the rules in overlays are extensive, are applied to existing landowners, and are not easily modified to meet changing community needs over time. And covenants, despite offering a more traditional tool for aesthetic control, create their own problems of incomplete consumer notice and barriers to effective modification. This Article will analyze the impact of these problems, as well as a lack of responsiveness to ongoing consumer demands for the maintenance of desired rules, on rule-bound communities’ ability to meet consumer demands for a community aesthetic. It will conclude that rule-bound communities should provide better visual notice of rules and should implement processes that allow for residents to better influence the initial content of rules and how rules are perpetuated or changed.

Matt Festa

Land Use Panel at Law & Society Association

This weekend is the always-excellent annual meeting of the Law & Society Association in Chicago.  I haven't scoured the program, but there is sure to be a plethora of interesting panels and events.  I do have firsthand knowledge, however, of one particular land-use panel that is guaranteed to present fascinating projects from interesting up-and-coming scholars.

Panel: Managing the American Dream: Land Use and the Politics of Growth after the Mortgage Crisis.  Fri., May 28, 12:30-2:15
Chair: James J. Kelly, Jr. (University of Baltimore)

The Effects of SmartGrowth on the Preservation of Historic Resources, William J. Cook (Charleston School of Law)

Debtors' Environmental Impact: Structured Finance and the Suburbanization of Open Space, Heather Hughes (American University)

Sustainability and the Practice of Community Development, James J. Kelly, Jr. (University of Baltimore)

The Artifice of Local Growth Politics: At-Large Elections, Ballot Box Zoning, and Judicial Review of Land Use Initiatives, Kenneth Stahl (Chapman University)

The abstract:

Land Use is one of the most interdisciplinary areas of legal theory and practice, yet in today's environment there are common issues facing land use planners. The goals of promoting growth, land development, and property ownership are in tension with emerging priorities such as growing “smart,” reducing sprawl, and sustainability. These issues expand across borders and regions yet remain intricately tied to local politics. The mortgage and financial crises have impacted the land use environment for governments, communities, and landowners. This panel explores contemporary land use challenges from the perspectives of local growth politics, sustainability and community development, smart growth and historic preservation, and the impact of policies promoting home ownership.

I had really hoped to be there for this panel, and I am very disappointed that I won't be able to make it.  But perhaps since Will, Jim, Ken, and (I hope) Heather are friends of the blog, perhaps we might be lucky enough to get a report, and we'd love to host more discussion of these forthcoming papers on the blog (hint, hint!).  At any rate, if you are going to LSA or will be in the Chicago area, I highly recommend that you attend.

Matt Festa

2010 Endangered Places List

The National Trust for Historic Preservation has released its annual list of endangered places.  The list is varied and reflects the expanding nature of preservation.  For example, it includes Connecticut's Merritt Parkway and Virginia's Wilderness Battlefield, which may be the site of a Wal-Mart if litigaton by local residents fails.  Click here for a report by Brian Williams, and here for a link to the full list at the National Trust.

Will Cook, Charleston School of Law

National Preservation Month: Old is the New Green

Did you know that May is National Preservation Month?  The National Trust for Historic Preservation is sponsoring this campaign; their 2010 theme is "Old is the New Green."  From their website:

The theme for 2010’s National Preservation Month this May is Old is the New Green! We know that preservation is good for communities and good for the pocketbook, but in the face of our growing climate crisis, we can also say with confidence that preservation has a significant role to play in fostering development that is more environmentally and economically sustainable. By giving Preservation Month the theme of sustainability, we are hopeful communities and organizations across the country will help us spread the word that preservation is inherently green. When you reinvest in older and historic buildings, live in a historic home, or even become a member of the National Trust for Historic Preservation or your local preservation organization, you support a more sustainable world. Spread the word this May – Old is the New Green!  

Lots of interesting articles, stories, and resources at the website.  Happy Preservation Month!

Matt Festa

New Approaches to Urban Redevelopment

Saturday I attended a very interesting lecture by Ken Reardon, who is a planning professor at The University of Memphis and a founding member of the Memphis Regional Design Center (MRDC).  The lecture was part of an event called "Look at That!  Fresh Approaches for Urban Redevelopment in Athens."  The economy being what it is, many of our clients are looking for help with redevelopment, rather than combating sprawl, so I took the opportunity to attend this event, sponsored by the Athens-Clarke Heritage Foundation.

Reardon's lecture was very interesting.  First he had all the participants engage in a group dialogue about our vision for Athens' future.  Ideas included more urban agriculture, better downtown development, preservation of our small town character, and more affordable housing.

Then Reardon discussed how the MRDC has helped some of the most disadvantaged neighborhoods in Memphis, using team members from local design firms, University of Memphis, the Urban Land Institute, and other partners.  He declared himself most proud of a project that turned the largest outdoor drug market in Memphis into a farmers' market, which is truly a noteworthy accomplishment.  The center also played a key role in helping Memphis pass its new, form-based, Unified Development Code.  All the time he was talking, I was thinking, "We need that here!"  I'm planning to spend some time picking Reardon's brain over the next several months.

Jamie Baker Roskie

Bethlehem Steel Reborn

Like Chad Emerson, I've been blogging less of late, although not for the glamorous reason that I have a popular book out!  My excuses are more pedestrian - Spring Break (where I actually endeavored, mostly successfully, to take two and a half days off), recruitment for summer and fall clinic classes, and a 30 foot pile of dirt recently dumped in my neighborhood (more on that later).

Over Spring Break I visited Bethlehem, Pennsylvania. Bethlehem is most famous for being the former home of Bethlehem Steel and for being the sister community of Allentown, Pennsylvania, which is the subject of a Billy Joel song.  As the song goes, "Well we're living here in Allentown...Where they're closing all the factories down..."

However, that was over 20 years ago - Bethlehem Steel stopped producing in 1995, and the site is being redeveloped.  The former plant is now the home of a Sands Casino and the Smithsonian's National Museum of Industrial History, as well as business incubator space and other industrial uses.  Also, a very cool website called Save Our Steel makes the case for retaining a historic industrial district on the site.  One woman feels so strongly about it she's had the Bethlehem Steel site tattooed on her back, which is much more artful than it sounds.  I'm wondering if Will Cook knows anyone else with a tattoo of their favorite historic site!

At any rate, Bethlehem is coming  back in its own way.  I'm attaching a photo of the Sands sign, which I took from a small Habitat for Humanity subdivision being built on a bluff overlooking the Bethlehem Steel site.  It's a community definitely worth keeping an eye on.

Jamie Baker Roskie

Developer Saves Landmark Hotel

One of Los Angeles's most famous mid-century modernist landmarks, the Century Plaza Hotel, has been saved from demolition after the building's owner, Next Century Associates, decided to preserve it.  Next Century had previously announced its intent to demolish Century Plaza and replace it with new condos and shops, but after preservation groups--led by the Los Angeles Conservancy and National Trust--argued to save it, Next Century went back to the drawing board.  (Century Plaza appeared on the National Trust's 2009 list of endangered landmarks.)  Although a portion of the hotel will still contain condos, the building's architecture will remain intact, along with its historic use.

Century Plaza's architect, Minoru Yamasaki, who designed the hotel in 1966, is more often recognized as the designer of the World Trade Center's Twin Towers.  Click here for a link to learn more about the preservation fight, including images of what Next Century originally planned to construct, and here to learn more about the result. 

Will Cook, Charleston School of Law