Land Use Prof Blog

Online Professional Development Course in Adaptive Planning & Resilience

Land Use Prof colleagues -- please share the following information about an online self-paced course in adaptive planning and resilience as broadly as possible.  It's especially relevant for professionals who are engaged in planning and would benefit from skills to make their planning processes more adaptive and resilience-oriented.  Students, professors, and other professionals are welcome too.  Thanks for your interest and help!  All best wishes, Tony Arnold

I’m writing to let you know about an online self-paced professional development course in adaptive planning and resilience.  This course is aimed at any professional who engages in planning under conditions of uncertainty, complexity, or unstable conditions, whether in the public sector, private sector, local community, or multi-stakeholder partnerships. 

The course is ideal for professionals in sectors such as urban planning, community development water supply, water quality, disasters/hazards, environmental protection, land management, forestry, natural resources management, ecosystem restoration, climate change, public infrastructure, housing, sustainability, community resilience, energy, and many others.  I hope that you and the employees and/or members of your organization will consider enrolling in this course.

 The 12-hour course is offered by the University of Louisville for a cost of $150 and is taught by Professor Tony Arnold, a national expert in adaptive planning and resilience, and a team of professionals engaged in various aspects of adaptive planning.  The online lectures are asynchronous, and the course is self-paced; this offering will last until November 22.

 More information is provided below and at the registration web page: http://louisville.edu/law/flex-courses/adaptive-planning.  This offering of the course begins October 12 but registration will be accepted through November 15 due to the self-pacing of the course.  We are seeking AICP CM credits for the course in partnership with the Kentucky Chapter of the American Planning Association, but cannot make any representations or promises until our application is reviewed. 

Please share this blog post or information with anyone who might be interested.  Please contact me at [email protected], if you have any questions. 

Adaptive Planning and Resilience

Online and self-paced

Oct. 12 – Nov. 22, 2015

Adaptive Planning and Resilience is a professional development course in which professionals will develop the knowledge and skills to design and implement planning processes that will enable their governance systems, organizations, and/or communities to adapt to changing conditions and sudden shocks or disturbances.

Adaptive planning is more flexible and continuous than conventional planning processes, yet involves a greater amount of goal and strategy development than adaptive management methods. It helps communities, organizations, and governance systems to develop resilience and adaptive capacity: the capacity to resist disturbances, bounce back from disasters, and transform themselves under changing and uncertain conditions. Adaptive planning is needed most when systems or communities are vulnerable to surprise catastrophes, unprecedented conditions, or complex and difficult-to-resolve policy choices.

The course will cover the elements of adaptive planning and resilient systems, the legal issues in adaptive planning, how to design and implement adaptive planning processes, and case studies (including guest speakers) from various communities and organizations that are employing adaptive planning methods.  Enrollees will have the opportunity to design or redesign an adaptive planning process for their own professional situation and get feedback from course instructors.

The six-week course totals about 12 hours broken into 30-minute segments. It is conducted online and is asynchronous. Cost is $150.

 About Professor Tony Arnold

Professor Craig Anthony (Tony) Arnold is the Boehl Chair in Property and Land Use at the University of Louisville, where he teaches in both the Brandeis School of Law and the Department of Urban and Public Affairs and directs the interdisciplinary Center for Land Use and Environmental Responsibility. Professor Arnold is an internationally renowned and highly-cited scholar who studies how governance systems and institutions – including planning, law, policy, and resource management – can adapt to changing conditions and disturbances in order to improve social-ecological resilience. He has won numerous teaching awards, including the 2013 Trustee’s Award, the highest award for a faculty member at the University of Louisville.

Professor Arnold has clerked for a federal appellate judge on the 10th Circuit and practiced law in Texas, including serving as a city attorney and representing water districts. He served as Chairman of the Planning Commission of Anaheim, California, and on numerous government task forces and nonprofit boards. He had a land use planning internship with the Boston Redevelopment Authority, did rural poverty work in Kansas, and worked for two members of Congress. Professor Arnold received his Bachelor of Arts, with Highest Distinction, Phi Beta Kappa, in 1987 from the University of Kansas. He received his Doctor of Jurisprudence, with Distinction, in 1990 from Stanford University, where he co-founded the Stanford Law & Policy Review and was a Graduate Student Fellow in the Stanford Center for Conflict and Negotiation. He has affiliations with interdisciplinary research centers at six major universities nationwide and is a part of an interdisciplinary collaboration of scholars studying adaptive governance and resilience.

 Professor Arnold will be joined in co-teaching the course by a team of his former students who are

professionals knowledgeable in adaptive planning. They include:

• Brian      O’Neill, an aquatic ecologist and environmental planner in Chicago
• Heather      Kenny, a local-government and land-use lawyer in California and adjunct      professor at Lincoln Law School of Sacramento
• Sherry      Fuller, a business manager at the Irvine Ranch Conservancy in Orange      County, California, and former community redevelopment project manager
• Andrew      Black, who is Associate Dean of Career Planning and Applied Learning at      Eckerd College in St. Petersburg, Florida, and a former field      representative for two U.S. Senators in New Mexico
• Andrea      Pompei Lacy, AICP, who directs the Center for Hazards Research and Policy      Development at the University of Louisville
• Jennifer-Grace      Ewa, a Postdoctoral Fellow in Inequality and the Provision of Open Space      at the University of Denver
• Alexandra      Chase, a recent graduate of the Brandeis School of Law who has worked on      watershed and urban resilience issues with the Center for Land Use and      Environmental Responsibility and now lives in St. Petersburg, Florida.

Dates

October 12 – November 22, 2015,

Online, asynchronous, and self-paced

Cost

$150

For more information

Visit louisville.edu/law/flex-courses.

 

Brinig & Garnett on Accessory Dwelling Unit Reforms and Local Parochialism

Margaret F. Brinig (Notre Dame) and Nicole Stelle Garnett (Notre Dame) have posted A Room of One's Own? Accessory Dwelling Unit Reforms and Local Parochialism, forthcoming in The Urban Lawyer (2013).  The abstract:

Over the past decade, a number of state and local governments have amended land use regulations to permit the accessory dwelling units (“ADUs”) on single-family lots. Measured by raw numbers of reforms, the campaign to secure legal reforms permitting ADUs appears to be a tremendous success. The question remains, however, whether these reforms overcome the well-documented land-use parochialism that has, for decades, represented a primary obstacle to increasing the supply of affordable housing. In order to understand more about their actual effects, this Article examines ADU reforms in a context which ought to predict a minimal level of local parochialism. In 2002, California enacted state-wide legislation mandating that local governments either amend their zoning laws to permit ADUs in single-family zones or accept the imposition of a state-dictated regulatory regime. We carefully examined the zoning law of all California cities with populations over 50,000 people (150 total cities) to determine how local governments actually implemented ADU reforms “on the ground” after the state legislation was enacted. Our analysis suggests that the seeming success story masks hidden local regulatory barriers. Local governments have responded to local political pressures by delaying the enactment of ADU legislation (and, in a few cases, simply refusing to do so despite the state mandate), imposing burdensome procedural requirements that are contrary to the spirit, if not the letter, of the state-law requirement that ADUs be permitted “as of right,” requiring multiple off-street parking spaces, and imposing substantive and procedural design requirements. Taken together, these details likely dramatically suppress the value of ADUs as a means of increasing affordable housing.

This looks really interesting.  Here in Houston we have a significant number of ADUs--so-called "granny flats" because--stop me if you've heard this before--Houston has no zoning to make it illegal, as this article shows it has been in single-family residentail neighborhoods around the country.  These ADUs provide an important supply of affordable "inside-the-Loop" (i.e. central city area) housing. 

Matt Festa

Plummer on The Effects of Property Tax Protests on Assessment Uniformity of Residential Properties

Elizabeth Plummer (Texas Christian) has posted The Effects of Property Tax Protests on the Assessment Uniformity of Residential Properties, forthcoming in Real Estate Economics.  The abstract:

This study examines whether the appeals process improves assessment uniformity for residential properties. The sample includes all single family residential properties in Harris County, Texas, for 2006-2008. I use a hedonic pricing model and Heckman’s two stage approach to explain the assessed values of all properties before and after the appeals adjustments. Full sample results suggest that the appeals process increased assessment uniformity and that the value adjustments were appropriate in amount. I also present results across properties of different values (low, medium, high). The first stage probit model provides evidence on the factors that affect the likelihood that an owner will protest.

I'm personally excited to see this study of real estate value effects in my own backyard, here in The Unzoned City.  

Matt Festa

Zasloff: Has New Urbanism Killed Land Use Law?

Jonathan Zasloff (UCLA) has a piece on Legal Planet: The Environmental Law and Policy Blog (Berkeley/UCLA) called Has New Urbanism Killed Land Use Law?  

My Land Use casebook, like most of them, mentions New Urbanist zoning and planning techniques, but does not dwell on them. In order to teach New Urbanist concepts such as Form-Based Codes, SmartCode, and the Transect, I had to develop my own materials, as well as shamelessly stealing a couple of Powerpoint presentations from a friend who works at Smart Growth America.

What’s the cause of this gap? Is it because land use professors have a thing about Euclidean zoning?

I doubt it. A quick check in the Westlaw “ALLCASES” database yields only one result for the phrase “Form-Based Code” and none of the results for “transect” has anything to do with the New Urbanist land use concept. That means that it is very difficult actually to find cases that reflect aspects of New Urbanism.

One can understand that in several ways, I suppose. You could infer that New Urbanism just leaves less room for legal disputes than traditional Euclidean zoning. For example, there is no need to worry about non-conforming uses, use variances, or conditional use permits with Form-Based Codes because those codes do not regulate uses to begin with. . . .

Now let me quibble with this a little bit: in Houston--the Unzoned City--we supposedly don't regulate uses either.  But it seems we do nothing here but apply for, and fight over, variances, nonconforming uses, and special exceptions, for everything from lot sizes and setbacks to sign code and HP rules.  It seems to me that people are going to want incremental exceptions for building form or site requirements at least as commonly, if not more so, than for use designations.

But overall it's a good point.  Zasloff concludes that even if we do move to form based codes, we'll still probably need to keep a little zoning around:

[W]hile New Urbanism coding can serve as a replacement for a lot of Euclideanism, it cannot eliminate it entirely — not because we are addicted to Euclidean forms, and not because we are dumb, but because lots of the world is uncertain, and cities will have to grapple with that.

I also find that New Urbanism is hard to teach in a doctrinal land use law class.  Zasloff concludes: 

If this is right, then land use casebooks will still emphasize Euclidean zoning, because that’s where the disputes are and necessarily will be.

A problem set with form-based codes would be nice, though. Just sayin’.

I know some recent land use casebooks have moved to a problem-based approach, and some of our colleagues have created their own materials for teaching New Urbanism.  Students find this stuff interesting, so we should all work towards developing these resources for teaching.

Matt Festa

Election Day and Land Use: The Future of Houston Transit

It's Election Day, and we all know what's the most important thing on the ballot: local land use issues.  Through the initiative and referendum process, as well as in races for local government office, land use ballot issues often have an importance to our communities far beyond the relative amount of publicity they receive . . . especially in a presidential election year. 

In Houston, voters are going to the polls today to answer a number of local government ballot questions, including amendments to the City Charter, a number of bond issues for parks and schools, and perhaps most importantly, a referendum that is colloquially referred to as "METRO."

In the late 1970s, Houston joined about 15 other local government bodies (including the County, the school district, and a number of smaller suburban municipalities) to create the METRO transit authority.  METRO was responsible for regional buses and transit, and in the early 2000s it built the first Houston light rail line.  METRO has ambitious plans to expand the light rail into a regional transit system, but it has always been controversial.  METRO is supposed to be funded by a sales tax, but since its inception, the City has always diverted one-quarter of those revenues toward road improvements.  So the ballot question is whether we should *continue* diverting that portion of the transit tax for another decade.

We discussed it in land use class yesterday.  Here are some competing op-eds: METRO Board member Dwight Jefferson says that "Yes" on the METRO referendum will expand bus system, continue road building and reduce debt.  In opposition, Houston Tomorrow president David Crossley says More light rail for Houston? If you’re pro-transit, vote "No" on METRO ballot issue.  Mayor Annise Parker (D) and most politicians are in favor of the measure.  As you can see in Crossley's op-ed and at the opposition website http://supporthoustontransit.org/2012/, the smart growth/pro-transit crowd is passionately opposed.

So--depending on who you ask--the future of transit in the nation's fourth-largest city is on the line; or, its capability to deal with critical mobility issues. 

The unfortunate thing is that very few people even understand the ballot language, let alone the stakes.  Here is the language of the ballot question that is referred to as the "METRO ballot" issue:

THE CONTINUED DEDICATION OF UP TO 25% OF METRO'S SALES AND USE TAX REVENUES FOR STREET IMPROVEMENTS AND RELATED PROJECTS FOR THE PERIOD OCTOBER 1, 2014 THROUGH DECEMBER 31, 2025 AS AUTHORIZED BY LAW AND WITH NO INCREASE IN THE CURRENT RATE OF METRO'S SALES AND USE TAX.
□ FOR
□ AGAINST

Last year I wrote a screed complaining about ballot language for state constitutional referenda.  Ken Stahl penned a typically thoughtful response with a partial defense of the initiative process for land use issues (and of course he has the leading recent scholarly piece on Ballot Box Zoning).  But this METRO referendum language seems to me to be a perfect example of how screwy the process is.  Basically, if you are in favor of more transit generally and light rail expansion in particular, you are supposed to vote "NO" on the ballot referendum that everyone is referring to as "METRO."  If you want that tax revenue to contiue to be diverted away from transit and toward roads, then you are supposed to vote "Yes on METRO."

We discussed this in Land Use class yesterday and it confirmed to me how confusing this is.  My students are way above the average voter in land-use sophistication, but they still had a hard time figuring this out.  I suspect that most voters, motivated into the booth primarily by their choice for the presidential election, will only have the vaguest idea that if you are pro-transit you are supposed to vote "no" on "METRO."  That's counterintuitive, and I'm afraid that whatever the result is, it won't be a very good democratic indicator.  And that's just for the people who vote on it; the proposal is one of the last items on the ginormous sample ballot that I photographed above.  Many people will vote "straight party ticket" (that's an option in Texas) and walk out of the booth, without even seeing the referendum questions.

So we'll have to see how this land use question is resolved by the people, and, after that, what actually happens to the transit system and whether the political predicitons on either side come to fruition.  In the meantime, remember that while the national horse race gets all the attention, there are critically important land use issues being decided in communities across America tonight. 

Matt Festa

UPDATE: "METRO" passed by a large margin: 79-21.  The presidential vote in Houston was a statistical tie.  All of the other ballot referenda (mostly to approve debt for capital projects) passed as well.  I honestly have no idea whether the METRO vote represents anything at all with respect to public opinion on the future of transit.

Johnson on the Economic Crisis, Homeownership, and Race

Marcia Johnson (Texas Southern) has posted Will the Current Economic Crisis Fuel a Return to Racial Policies that Deny Homeownership Opportunity and Wealth to African Americans?, published in The Modern American, Volume 6, Issue 1, Spring 2010.  From the introduction:

Perhaps the greatest threat to the continued realization of the American dream is the latest economic crisis rooted in the sub-prime mortgage collapse.12 Some blame the CRA of 1977 for creating a market that they claim provided housing loans to noncreditworthy borrowers – particularly African American families – in the low and moderate income range.13 However, this charge is without direct factual support as the post-CRA period saw a decline in homeownership for African Americans but a mild increase for White homeowners.14 Illegal and fraudulent practices in property appraisals and income reporting directed program benefi ts away from those the program was meant to aid. . . .

This paper is written to examine the potential effect of the market collapse on our nation’s homeownership policies. Part I reviews America’s historical housing and homeownership policies. Part II considers the expansion of homeownership opportunities to historically non-participating communities, particularly the African American community. Part III reviews the culprits of the economic crash of 2008 and explains why sub-prime borrowers often get blamed. Part IV examines solutions to maintain America’s pro-homeownership policy, and Part V concludes that America’s homeownership policy should continue to be vigorously pursued with a goal of including African Americans who have long been excluded by government policies and sanctions from building wealth and thereby stabilizing their communities.

Matt Festa

Memorial Day

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

For this post, though, I'll go back to the origins of the holiday.  Interestingly, it started as a private or quasi-public endeavor (perhaps like most civic affairs in the nineteenth century).  In the immediate aftermath of the American Civil War--and for much of the rest of the lives of the generations that fought it--Americans on both sides focused a great deal of attention on preserving its history and creating/controlling its public memory.  In 1868 General John Logan, head of the Union veterans' organization the Grand Army of the Republic (a private society with a great deal of government involvement), issued General Order No. 11, creating what became known as Decoration Day:

The 30th day of May, 1868, is designated for the purpose of strewing with flowers or otherwise decorating the graves of comrades who died in defense of their country during the late rebellion, and whose bodies now lie in almost every city, village, and hamlet church-yard in the land. In this observance no form of ceremony is prescribed, but posts and comrades will in their own way arrange such fitting services and testimonials of respect as circumstances may permit.

Even though this Decoration Day was only adopted in Union states until after World War I (when it was renamed Memorial Day and formally associated with all American wars), the former Confederate states had their own versions to remember the war dead at cemeteries and public venues.  And according to eminent Yale historian David Blight, the first Memorial Day celebration was performed in Charleston, SC, by newly-liberated blacks:

Thousands of black Charlestonians, most former slaves, remained in the city and conducted a series of commemorations to declare their sense of the meaning of the war. The largest of these events, and unknown until some extraordinary luck in my recent research, took place on May 1, 1865. During the final year of the war, the Confederates had converted the planters' horse track, the Washington Race Course and Jockey Club, into an outdoor prison. Union soldiers were kept in horrible conditions in the interior of the track; at least 257 died of exposure and disease and were hastily buried in a mass grave behind the grandstand. Some twenty-eight black workmen went to the site, re-buried the Union dead properly, and built a high fence around the cemetery. They whitewashed the fence and built an archway over an entrance on which they inscribed the words, "Martyrs of the Race Course" . . . . Then, black Charlestonians in cooperation with white missionaries and teachers, staged an unforgettable parade of 10,000 people on the slaveholders' race course. The symbolic power of the low-country planter aristocracy's horse track (where they had displayed their wealth, leisure, and influence) was not lost on the freedpeople.

Anyone interested in the contested history of these issues--with full attention to the negative aspects as well--should read the magnificent book by Prof. Blight (with a name like that, it's a shame he didn't go into land use!), Race and Reunion: The Civil War in American Memory.  And a related part of this history, along with the Decoration/Memorial Day commemorations, was the incipient historic preservation movement.  This confluence of impulses, as well as the also-new movement for environmental conservation, led to the novel idea of having the federal government acquire and administer large tracts of land for the purpose of preserving Civil War history.  As noted in the fascinating monograph by the late National Park Service Historian Ronald F. Lee, The Origin & Evolution of the National Military Park Idea, this was a new and not-uncontroversial exercise of government power over land use:

The idea of the Nation acquiring an entire battlefield and preserving it for historical purposes was new in 1890. It is therefore not surprising that it soon engendered a serious controversy, which arose, fittingly enough, at Gettysburg. The controversy involved two questions of fundamental importance to the future of historic preservation by the Federal Government. Is preserving and marking the site of an historic battlefield a public purpose and use? If so, is it a purpose for which Congress may authorize acquisition of the necessary land by power of eminent domain? The circumstances of this dispute, which had to be settled by the Supreme Court of the United States, are of unusual interest and provide an appropriate introduction to our story.

Lee describes the case, United States v. Gettysburg Electric Ry. Co., 160 U.S. 668 (1896), in the on-line version of the book provided by the NPS.  The case was brought by a railway which objected to the federal government's use of eminent domain to condemn their right of way for construction of a railway to take tourists to the significant "Devil's Den" area of the battlefield, "claiming that establishment of Gettysburg National Park was not a public purpose within the meaning of earlier legislation and that 'preserving lines of battle' and 'properly marking with tablets the positions occupied' were not public uses which permitted the condemnation of private property by the United States."  [What a long way from Kelo that was!]  Justice Rufus Peckham wrote for the unanimous majority in upholding the taking for preservation purposes (and not simply because members of the public could visit the park):

Such a use seems necessarily not only a public use, but one so closely connected with the welfare of the republic itself as to be within the powers granted Congress by the constitution for the purpose of protecting and preserving the whole country.

The Court thus established the constitutionality of taking land by the federal government for national parks, and struck an important legal blow for historic preservation generally.

So from cemeteries to public memory to national parks and historic preservation and much more, Memorial Day is tied to land use law in many ways.  I hope that our US readers have had a good one, and with remembrance for those whom the holiday commends.

Matt Festa

What Would Jane Jacobs Do?

Regular readers know that we love the National Building Museum.  And any land use professional knows that we all love to talk about Jane Jacobs.  So here's an event that might be of great interest: Urban Forum: What Would Jane Jacobs Do?

Fifty one years after Jane Jacobs published her seminal book The Death and Life of Great American Cities, her ideas on liveable, walkable, and diverse neighborhoods continue to impact how urban environments are designed. A panel discusses Jane Jacobs’ legacy, including urban renewal, historic preservation, mixed-use zoning, and public space. Light refreshments will be served.

Panelists include:

• Bing Thom, Bing Thom Architects 
• Harriet Tregoning, director, Washington D.C. Office of Planning 
• Susan Szenasy, editor-in-chief, Metropolis Magazine (moderator) 
• John Zuccotti, co-chairman of the board, Brookfield Properties Corporation and former Chairman of the New York City Planning Commission

Free (but required) registration is available for the event on Sunday, May 20, 2012 at 10:00-11:30.  Check it out!  If you are able to go to WWJJD, I'd love to hear about it.

Matt Festa

Pipelines, Eminent Domain, and Property Rights

Up until now the Keystone Pipeline issue has been cast mainly as a contest between an economic development imperative and environmental conservation.  Legal commentators have analyzed it as an environmental issue.  As most people can infer, though, the notion of building an "infrastructure" project from Canada to the Gulf of Mexico will require some land rights.  Perhaps only in Texas can we see the underlying tension between two principles that are very often in direct conflict: the exploitation of oil and gas resources, and the property owner's rights to her land.  The New York Times last week did a fascinating story on one Texas landowner's fight against the eminent domain authority of the Keystone Pipeline, An Old Texas Tale Retold: The Farmer versus the Oil Company.

Ms. Crawford is worried about the possible contamination of her creek. She pointed out that the Keystone 1, TransCanada’s first pipeline, had a dozen spills in its first year of operation.

“I called my farm insurance agent and asked what happens if there’s a spill, I can’t water my crops, and my corn dies,” she said. “He said my insurance won’t cover that. I’d have to sue TransCanada for damages.”

The Crawfords are the last holdouts in Lamar County. (It is unclear how many are left in Texas; the company says it has 99 percent of the rights of way secured.) TransCanada asserts that it has used eminent domain only as “an absolute last resort” in an estimated 19 out of 1,452 land tracts in Texas. Critics dispute this number. . . .

Asked if she would take TransCanada’s offer now — if it meant the full $21,000, with all of her conditions met — she did not hesitate. “No,” she said. “There’s a $20,000 check sitting in the courthouse waiting for us,” she said. “But if we touch it, game over. We lose the use of our land, and we admit what they’re doing is right.”

This is a longstanding issue, both historically and today, but it often gets overlooked when people conflate Texas stereotypes about both property rights and solicitude for oil and gas.  Ilya Somin commented on the article at the Volokh Conspiracy, noting correctly that despite its pro-property rights reputation and cosmetic legislation, Texas law still empowers quite a bit of eminent domain for economic development purposes:

Such efforts are unlikely to succeed in Texas. As I described in this article, Texas is one of many states that have passed post-Kelo reform laws that pretend to constrain economic development takings without actually doing so. They might have a better chance in one of the other states through which the pipeline must pass.

The larger question that he poses is whether and how environmental concerns will play a part in future discussions about eminent domain and the never-ending debate over the essentially contested concepts of property rights and the common good.  In the real world of land use, the alignment of stakeholders, interests, policy preferences, and legal interpretations isn't always as easy to predict as the cartoon versions might imply.

Matt Festa

Olympics, Marathons, and Parades

Last year I posted about the Houston Marathon, and my observations about how the route did a good job of taking the runners through a diverse set of neighborhoods, from older to newer, urban to suburban, residential to business.  This year I am even more impressed with another land use angle: the incredible amount of planning it must have taken to pull off the events in town this past weekend--

First, on Saturday Houston hosted the U.S. Olympic Marathon Trials.  The race route was designed to simulate the Marathon route planned for London, including a gratuitous hairpin turn.  Congrats to Meb and Flanagan!

On Sunday was the regular Marathon--on a different course--for the other 26,000 of us who didn't qualify for the Trials, plus over 250,000 volunteers and spectators.

And between Saturday and Monday, there were five separate Martin Luther King Day parades.

Planning for the street closures alone must have been an enormous task (check out the 11-page spreadsheet), let alone the interagency and public-private cooperation that's necessary for a weekend like this.  It requires organization, community involvement, and a great deal of technical planning expertise.  These things have huge impacts on traffic, transit, facilities, sanitation, sustainability, policing, budgets, and a great array of other local planning issues. 

We often take having "big events" for granted in a big city, but as a former logistician I'm always impressed by all the behind-the-scenes work that it takes to pull these things off.  And as land use lawyers we should appreciate the very hard work and the professionalism that our colleagues in city planning, local government, and community organizations bring to improve civic life.

So, good job everyone, and please pass the ibuprofen.

Matt Festa 

Halloween Land Use Rules

Just got back from trick-or-treating with Peter Pan and a human pineapple. As they sort through the loot, I'm reminded of the increasing trend towards regulating Halloween activity. Where I grew up there weren't any rules, just social norms that controlled things like how late kids could reasonably stay out ringing on doorbells (with law enforcement as a backstop for teenagers out too late or too unruly). But then a few years ago I moved to a town in Ohio, and was surprised to learn that the town promulgated "official trick-or-treat hours" . . . and I'm not 100% sure on this, but I think the official hours to trick-or-treat were the day before Halloween, because it fell on a Sunday, or something. To get even more land use-y, it was restricted to residential neighborhoods only (not sure why you'd want to do otherwise).

Just trolling around the web tonight, I came across this Yahoo article compiling Bay Area Halloween Laws and Regulations. A few examples:

- Sex offenders: stay home; no candy; no decorations, and expect a police visit.

- Curfew laws enforced-- 10 p.m. seems like the most common time for Halloween curfew.

- Parades: several communities have kids' parades, requiring street closures, permits, police.

- Street festivals: for the second year in a row, the Castro District celebration has been cancelled; therefore traffic, parking, etc. will not be disrupted.

- Public safety: last year there was gunfire at an Oakland festival; expect tighter restrictions on large gatherings.

One other thing I have observed the past couple of years: people driving their kids to the more pedestrian-friendly, slightly denser, but still single-family residential neighborhoods to trick-or-treat-- the "sweet spot" (if you will) of efficient foot travel and probability of treats at each house. It turns out that kids are intuitively rational candy-maximizers. Happy Halloween!

Matt Festa

Hurricane Irene

Looks like as I write this on Saturday, Hurricane Irene has hit North Carolina and is poised to strike the Northeast tonight or tomorrow. It's not particularly strong (as hurricanes go) but it's incredibly wide, so a lot of people will be affected. I'm currently looking at a baseball game that was moved up a day for a doubleheader. Major hurricanes and their aftermaths bring all sorts of land use and other legal issues into focus (see, e.g., Robin Paul Malloy, ed., Law and Recovery from Disaster: Hurricane Katrina (Ashgate 2009).

But right now I'll just offer a few basic observations from experience living on the Gulf Coast. Growing up in New York I had no experience with hurricanes. Since living here I've been through the storm or the aftermath of Tropical Storm Allison and Hurricanes Katrina, Rita, and Ike.

The most important decision is whether to stay or go. On this question you should really trust the authorities. In 2005, Houston was the major evacuation center from New Orleans for Hurricane Katrina. Having volunteered to help with the 100,000+ refugees in person and being well tuned-in to the scenes of the destruction, suffering, and lawlessness in the aftermath, many Houstonians instinctively decided to evacuate several weeks later when Hurricane Rita bore down on the Southeast Texas coast. But the mass evacuation turned out to be miserable--or worse--for most. The entire state's highways were gridlocked, all the gas stations were sucked dry, and the majority of evacuees either spent 24+ hours on the road (in 100 degree heat) or got stranded.

Most local governments now have fairly sophisticated data on where storm surges (which are the most dangerous parts of hurricanes) are going to hit. During Hurricane Ike in 2008, the civil authorities did an outstanding job in communicating exactly which low-lying areas needed to evacuate, while the word of the day to everyone else was to "hunker down." This turned out to be quite effective. You can see that New York City has something similar with it's pre-planned hurricane zones and it's order as of this writing to evacuate Zone A. Ike devastated Galveston but loss of life was kept down and the 4+ million in Houston handled it much better than Rita.

If you rely on public transportation, prepare for it to be shut down. New York has already closed the subway. Don't plan to drive unless you have to. In fact, if you do "hunker down," get your hands on as much stuff as possible, particularly water, ice, batteries. Gas up and get cash now. Get some food that will last a week or more. Tie down or move indoors anything that could become a projectile. There are lots of hurricane-preparedness websites out there (even Louisianan James Carville has chimed in) so I won't repeat everything you'll find there. Prepare to be without electricity, internet, or cell phone service. If you have relatives or friends in the interior, it's a good idea to contact them now and ask them to serve as a "rally point" for communications or even to meet up with family in case power and communications go out for a while after the storm.

Bottom line, take it seriously. Don't assume that the danger is linked to the "cat" number--Allison was downgraded to a Tropical Storm before it hit Houston, and did more damage than any of the other hurricanes (just ask my friends at the University of Houston Law Center). But don't overreact by fleeing if you don't need to or without proper supplies. Go ahead and have that hurricane party, and bond with neighbors in the cleanup, but not until after you've done everything you can to prepare. Remember, it it turns out to be not as bad as you thought, that's a good thing. Prepare for the worst and hope for the best. Hopefully you'll all safely bid Goodnight Irene.

UPDATE: Looks like the storm has moved into New England towards Canada, and it turned out to be not as bad as anticipated. Great news. Some pundits will predictably complain that it was overhyped, but that's doing a disservice to everyone involved, and hopefully will not cause excessive underreaction next time. These are incredibly dangerous and destructive events, and once people start dying it's too late to change your mind and start taking it seriously. Better safe than sorry, and it doesn't hurt to have a dress rehearsal in an area of the country that doesn't have as much experience responding to this particular type of emergency.

 

Matt Festa

South Texas job announcement: Property

Here's some exciting news, for me anyway. South Texas College of Law is looking to hire a property scholar:

South Texas College of Law invites applications from both experienced and entry-level faculty for one or more full-time, tenure-track positions beginning in the 2012 - 2013 academic year. While all candidates will be considered, we particularly seek candidates interested in teaching the required property courses, and commercial law (including courses covering the Uniform Commercial Code). Other areas of interest include real estate development and finance, and international law. We seek candidates with outstanding academic records who are committed to both excellence in teaching and sustained scholarly achievement. Members of minority groups and others whose backgrounds will contribute to the diversity of the faculty are especially encouraged to apply.

South Texas College of Law provides a diverse body of students with the opportunity to obtain an exceptional legal education, preparing graduates to serve their community and the profession with distinction. The school, located in downtown Houston, was founded in 1923 and is the oldest law school in the city. South Texas is a private, nonprofit, independent law school, fully accredited by the American Bar Association and a member of the Association of American Law Schools, with 55 full-time and 40 adjunct professors serving a student body of 1,300 full and part-time students. South Texas is home to the most decorated advocacy program in the U.S. and the nationally recognized Frank Evans Center for Conflict Resolution.

Please send letters of interest and resumes to Professor Kevin Yamamoto, Chair, Faculty Appointments Committee, South Texas College of Law, 1303 San Jacinto Street, Houston TX 77002; Tel: (713) 646-2945; Email: [email protected]

Via Fran Ortiz, a property colleague on the hiring committee. You can contact Kevin or Fran about the position, and of course I'd be more than happy to talk with anyone about the great opportunities for teaching and scholarship at South Texas College of Law, or about living in the diverse and dynamic city of Houston.

Matt Festa

Closed Pools a Sign of Deeper Local Problems

From The New York Times, an article about the struggles local governments face in keeping their public pools open:

There are few things in life more doleful than a child looking at a closed pool on a steamy summer day, and yet that sad scene has become as common as sunburns and mosquito bites as struggling local governments make the painful choice to shut their pools to save the budget. The list of locales where public pools have been in jeopardy in recent years includes some of the sweatiest spots in the nation, including Central Florida (90s and humid on the Fourth), Atlanta (90), and Houston (97)...

The question of where pools are closed often raises issues of class and race. In the case of Houston, one of the pools closed in June was in Independence Heights, a historically black neighborhood where the median household income in 2009 was about $27,000, according to city statistics.

The city councilman for the area, Ed Gonzalez, said the loss of a pool there would sting worse than in more well-to-do neighborhoods. “There are no other true community assets out there,” he said. “Your neighborhood park and your pools are the only real amenities that some of these communities have.”

Mr. Gonzalez, a former police officer, said it was not just a matter of letting people beat the heat. The lack of a local pool, he said, could have an impact on public safety. “If kids do not have a productive thing to do, like swimming or community centers to go to,” he said, “it’s more idle time they have on their hands.”

Here in Athens the Leisure Services department seems to be doing a good job keeping the pools open, but we went without a public fireworks show this year due to lack of sponsorship.  While these types of amenities are hard for local governments to support in tough economic times, they are also key to a community's quality of life.  It will be interesting to see how deep communities will dig to maintain the rituals of summer in these difficult days.

Jamie Baker Roskie

Bronin on Solar Rights for Texas Property Owners

Sara C. Bronin (Connecticut) has posted Solar Rights for Texas Property Owners, Texas Law Review See Also, Vol. 89, p. 79, 2011.  The abstract:

In response to Jamie France's note, "A Proposed Solar Access Law for the State of Texas," Professor Bronin urges future commentators to focus on three additional areas of inquiry related to proposed solar rights regimes. Bronin argues that such proposals would be strengthened by discussion of potential legal challenges to the proposals, related political issues, and renewable energy microgrids.

Ms. France’s proposal for the State of Texas includes the elimination of preexisting private property restrictions that negatively affect solar access. Bronin argues that this proposal would be strengthened by a discussion of potential challenges under federal and state takings clauses. Additionally, Ms. France's suggestion that zoning ordinances protect homeowners' solar access would benefit from a discussion of challenges that might be raised by home rule cities in Texas. Furthermore, to provide a full perspective, a discussion of possible alternative rules for Houston, which lacks a zoning ordinance, might add to Ms. France's proposal, according to Bronin.

Bronin also emphasizes that proposals for solar rights regimes, such as that of Ms. France, often affect various interest groups, and commentators should address the political issues that this creates. Specifically, in discussing Ms. France's proposal for the State of Texas, Bronin identifies the lack of political support for small-scale renewable energy installations as opposed to large-scale projects, Texas's current budget shortfall, and powerful interests groups that are affected by the proposal.

Finally, Bronin encourages other commentators to consider advocating for renewable energy microgrids. Bronin has described these as "small-scale, low-voltage distributed generation between neighbors for energy derived from sources such as solar collectors, wind power systems, microturbines, geothermal wells, and fuel cells, which have minimal negative impact on the environment." Bronin believes that renewable energy microgrids "should be a key part of solar access regimes in any state."

Matt Festa

Demolition Day

Today I will be proud to participate in Commencement at South Texas College of Law.  We're thrilled to have Houston Mayor Annise Parker as our keynote speaker.  But shortly before Mayor Parker begins speaking, she will order hundreds of buildings destroyed all across the city.

No, it's not the May 21 Rapture.  It's Demolition Day! 

With the donated help of the Houston Contractors Association, 99 abandoned, dangerous buildings will be bulldozed as part of Mayor Annise Parker's 2nd annual Demo Day.  Some of these structures are in your neighborhood.  Click here to see addresses for the 99 buildings http://www.houstontx.gov/citizensnet/hcasites.pdf. 

Mayor Parker and District D Houston City Council Member Wanda Adams will help kick off Demo Day Saturday, May 21, 2011 9:00 a.m.

Initiated in 2010, Demo Day is a one-day concentrated effort to rid neighborhoods of abandoned and dangerous buildings that often serve as havens for drugs, prostitution and other crimes.  This year's effort will extend beyond one day to include the demolition of approximately 300 more derelict structures over the summer months.  This second batch of demolitions will be carried out by City contractors once the buildings have undergone asbestos abatement. Click here to see the complete list of about 400 structures http://www.houstontx.gov/citizensnet/demoinitiative.pdf.

There has been a lot of attention given to the problem of abandoned and derelict properties from several angles recently, from the foreclosure crisis, to dying cities & neighborhoods, to crime & disorder, to blight and eminent domain.  "Demolition Day" sounds like a cool movie title, but more importantly it looks like Mayor Parker has an innovative approach to the problem.

Matt Festa

The Final Four and Land Use in the Unzoned City

As many of you might be aware, the NCAA Men's Basketball Final Four has been this weekend in Houston, where I live and teach.  As I write this, the championship game is set to tip off in about an hour in Reliant Stadium, about a mile from my home.  So of course you must be thinking "how is Festa going to turn this into a land use issue?" 

Already done, with my students' help.  On the first day of the semester, to make the point that land use issues intersect with almost everything that goes on in our communities, I put up the home page of the Houston Chronicle and challenged them to explain the land use issues in a given story.  The lead story was something about the then-upcoming Final Four.  So here's some of what we came up with on the fly:

Land assembly--where did they get the land to build the stadium and the parking?  It's next to the old Astrodome (you can see a corner of it in the picture), so I don't believe eminent domain was needed this time around, but you know that's always a big issue with new sports stadiums. 

Use--the Reliant/Astrodome complex was just used up until about two weeks ago for one of the nation's largest Livestock Show & Rodeo events with accompanying carnival.  It's impressive that they could retrofit for the Final Four so quickly.

Transportation--can people get there?  Do the roads need to be widened, etc.?  If so, who pays, and are there legal changes needed?  Houston has a seven-year old light rail that goes from downtown through the Texas Medical Center to the stadium, and it's been quite busy the past weekend.  Also, there've been lots of limos, helicopters, and blimps around town the last few days--where do they go?

Local government--the stadium is goverened not by the City of Houston, but by an independent quasi-public County Sports Authority.  Plus the transportation is governed by a separate Metro agency.  However a lot of coordination is necessary for big events like the Final Four. 

Facilities--lots of people coming in from all over the country; where do they stay, etc.  For example, I took a ULI-sponsored construction site tour about a year ago of the just-opened Embassy Suites downtown.  The city's goal was to get a hotel opened in time for the Final Four, so there was a fairly complicated tax incentive scheme put in place that involved changing the law to provide an occupancy-tax break for new hotels sited in a particular space (and they say we don't have zoning based on use).  The incentivized siting was between the light rail and the new Discovery Green park--where a lot of free concerts have been given as part of the festivities--and the downtown convention center, where the "Bracketown" official hoopla program was held.  All of this is just a few blocks from where I teach at South Texas College of Law.  Discovery Green is itself also a recently-built and critically acclaimed new urban park and public space.  Finally, all of the planning and coordination that involves a city's hosting a big event requires lots of logistics, regulatory changes, and many many permit approvals, for things ranging from temporary buildings to new signs.

So my students and I think there are a lot of land use issues involved with having the Final Four in town, and it goes to show that even in the Unzoned City, there are many ways that land use gets regulated and controlled.  It's been fun having all the activity in town, and . . . Go Butler!

UPDATE: It wasn't to be for the underdogs, so congrats to Connecticut.  The photo above was taken by Natalie Festa at almost the exact time that the national championship game tipped off.  "The Road Ends . . ." = land use metaphor?  Tuesday is the women's championship--don't tell my fellow Texans that I'll be pulling for Notre Dame vs. A&M. 

Matt Festa

Martinez on Judicial Takings for Private Necessity

John Martinez (Utah) has posted No More Free Easements: Judicial Takings for Private Necessity.  The abstract:

This article bridges the fields of constitutional judicial takings and the common law of easements that arise because of private necessity. The article suggests that the law of takings requires payment when a court declares that an easement should be established because of private necessity.

Matt Festa

Happy St. Patrick's Day 2011

[This is a reprise of last year's St. Pat's post, plus a picture from 2011--MJF]

Now it's time to try and make a land use-related post about St. Patrick's Day.  First of all, the legend of St. Patrick has it that he drove the snakes out of Ireland.  If that isn't an awesome land use regulatory feat, then nothing is!     

St. Patrick is credited with bringing Christianity to Ireland, and the Church played a major part in land control over the centuries.  Later on in Irish history, the Catholic-Protestant struggle had a great deal to do with English land ownership and the relationship of the Irish people to the land.  Even until recent years, the symbol of St. Patrick has been part of the controversy over the IRA and Northern Ireland.

St. Patrick's Day has spread throughout the Irish diaspora worldwide.  In the U.S., St. Patrick's Day has, of course, served as a semi-official Irish-American holiday.  Irish immigrants moved throughout the country, but are particularly known for rising to political power in the cities.  Anti-Irish/Catholic prejudice loomed over the Gilded Age ("no Irish need apply") and the Progressive Era (multifamily housing (the "pig in the parlor") associated with immigrants).  Irish Catholic churches played a major role in urban affairs and continue to have a presence in First Amendment and RLUIPA issues.  After attaining some political power in urban political systems such as Tammany Hall, Irish-Americans have played a central role in city governance for over a century.  My undergrad alma mater, Notre Dame, served as a source of pride for Irish-Americans for its competitiveness in that land-use struggle known as football, and later in academics.  When John F. Kennedy was elected President, it seemed to many Americans of Irish extraction that they had finally become accepted into the American Dream. 

In the last few decades, St. Patrick's Day has continued to influence American land use issues.  Major celebrations take place in many U.S. cities, and places like Chicago, most famously, and Savannah dye their rivers green for the occasion.  [ancillary question: is being "green" a good thing, in this sense?]  In some American cities the St. Patrick's Day parade has become one of the most important political events of the year, which has led in turn to protracted litigation over the question of who gets to decide who marches in privately-organized yet publicly-sanctioned St. Patrick's Day parades.  The U.S. Supreme Court weighed in on the matter in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995).  Justice Souter's opinion for a unanimous Court upheld the First Amendment associational rights of the parade organizers to exclude an Irish-American GLBT group (would the case come out the same way today?). 

St. Patrick's Day has a lot of cultural significance and a little bit of land-use significance too.  So hoist a green beer and celebrate.  [And in 2011, Jim and I are hoping that the luck of the Irish works all the way to Houston for the Final Four!]

Matt O'Festa

Salkin on Backyard Chickens

I must admit that whenever I see an announcement of a new article by Prof. Patricia Salkin (Albany), I make sure to do a thorough check of the blog archives because she is so prolific (putting the rest of us to shame) that I don't want to accidentally double-post.  But this one seems pretty unique, and because we are on record for posting about urban chickens, the local food movement, and agricultural urbanism, it's great to see this timely article Feeding the Locavores, One Chicken at a Time: Regulating Backyard Chickens, published in Zoning and Planning Law Report, Vol. 34, No. 3, p. 1, March 2011.  The abstract:

As the local and regional food shed movement and the urban agriculture movement continue to grow, uses once considered only found on the rural farm are now finding their ways into urban and suburban communities. As a result, municipalities across the country are now facing the challenge of regulating the keeping of chickens in residential districts. From nuisance law to zoning regulations addressing the number of hens that may be kept on parcels, whether roosters are allowed, the size and location of coops and other issues, this article reviews the rapidly developing trends in this area of land use law.

It's a really interesting concept and one that we will be hearing much more about in the near future.  I have friends in town who live next to a would-be urban chicken spot (so I hear both pro and con about it), and it's an innovative approach to modern land use, and it needs regulatory attention.   

Matt Festa