PropertyProf Blog

Howdy from Old Savannah!

Many many thanks to Steve, Ben, Tanya and Mark for having me.  As Steve said, a few familiar names to this blog set out on a wild excusion this past year by signing on as the innaugeral faculty at the Savannah Law School.  So what could Savannah Law School offer that would make it worth a move?    I'm going to pitch you five reasons why you'll want to make Savannah your home too -- or at least make you want to stop by for a visit. 

Young Rock Star Faculty and Amazing Staff (myself excluded from the commentary).   Have you ever tried to navagate an 18 person bicycle through an ancient city with your faculty and staff on board -- that's the kind of faculty and staff we have at Savannah Law School.   The faculty and staff I have joined make teaching law sooooooo much fun.   I have always had fun teaching law.  But joining these highly competent, extremely thoughtful, and engaging people have made teaching so much fun this year. So Caprice, Elizabeth, Kelly, Kellyn, Belinda, Montre, Ray and Rose Anne --you rock!

The Building.    Our building is a rennovation of a 1790's era hospital -- the largest rennovation in Savannah in the past forty years.   Listen to the date again -- 1790's.   The depiction above shows the charm that the building will hold for sure, but like so many things, there is more than meets the eye.  There are tunnels under the building where people who succumbed to yellow fever in the 18th and 19th century were transported out of the city. And across the street is one of the best parks (Forsythe Park) anywhere. The building (they say) is haunted -- which in itself makes this the most unique law school in the country.  This building is just waiting for Al Brophy to begin what I am sure will be an Emmy Award winning show on Bravo -- Monument Hunters.  If you believe esthetics are important to education (which is a hard pitch given the plethera of neo-soviet style 1950's bomb shelters canvassing American colleges today), then Savannah might be the right place for you.  

The Students.  Our students have been awesome.   The students are highly talented, multi-versed and, like their faculty, adventurers.  They are kind, endearing and not without a little bit of pizzazz. 

Savannah Itself.  Savannah is one of the oldest cities in the U.S.   Steeped in history and covered in spanish moss, Savannah is the crown jewell of the Southeast (all due respect to our Brethren in Charleston and New Orleans).    But Savannah has more than just history.  There is SCAD.  There is Tybee Beach (12 minutes from my house). There is the Port. There are ghost tours everywhere.   And the food is amazing.  

The Tree.  Last but certainly not least, nestled right outside the building is the Candler Oak, the oldest Oak Tree in the State of Georgia. The stories the tree could tell would be amazing.  

Later this week I will take some picutres of the inside of the new rennocation and tell you more about this awesome building.  

Later

Marc 

 

 

The Elusive Keys to Gramercy Park

Fascinating piece in the New York Times over the weekend about the only fenced and gated, private park in Manhattan -- Gramercy Park.  The focus of the article is the limited access to the park, exemplified by the 383 numbered keys granted to residents of the 39 buildings which surround the park and pay the annual assessment.  The two-acre park was established in 1831 by Samuel Ruggles as an ornamental park to be enjoyed by the residents of the mansions which lined it.  Gramercy Park has been fenced since 1831 and locked since 1844.  Lots of interesting historical details in the article about how the keys are made, distributed, and managed. 

Beyond the history, the most interesting thing to me about the article was the drum beat of thinly veiled criticism of the existence of a private park.  For example:

"Parkside residents rationalize that their communal front yard is privatized for its own protection. Besides, they, not the city it enhances, have footed its bills for nearly two centuries."

Another example:

"For connection-challenged mortals, though, the park is increasingly problematic to appreciate from within ..."

And finally:

"So unless you are among the fortunate few to rent or own property directly on Gramercy Park; are a member in very good standing of the National Arts Club, the Players club, the Brotherhood Synagogue, or Calvary-St. George's Church; or can splurge on a stay at the aggressively hip Gramercy Park Hotel, these coveted keys and the verdant two-acre jewel box they unlock are off limits to you, period. No exceptions are made."

So the "fortunate few" who have access to the "coveted keys and the verdant two-acre jewel box" have to "rationalize" the privatization of property that they, through a neighborhood association, own and pay to maintain.  The park is "off limits" to the rest of us, the "connection-challenged mortals."  So, what's up with the hostility to the exclusion of the public from private property?  Is this an urban mindset, where there is very little private greenspace but many public parks?  Am I unable to understand this attitude as a Midwesterner, where the opposite is true?

It does make me want to stay at the Gramercy Park Hotel so I can visit the park, however....

Tanya Marsh

1 World Trade Center and the History of Skyscrapers

I visited New York City a few weeks ago and stayed in a hotel at 42nd and 10th.  My room looked south, so although the weather was hazy for most of my visit, I could observe the construction of 1 World Trade Center and (I think) 4 World Trade Center. 

Although I was more than three miles north of the World Trade Center site, the 1 World Trade Center building is obviously significantly taller than any structure south of Times Square.  (I know, duh.  When it is completed in 2013, with its nearly 400 foot spire, 1 WTC will be the tallest building in the Western Hempishere and the third tallest building in the world.)  Following up on Steve's post regarding cranes on the top of skyscrapers, this photo more clearly shows the cranes on top of 4 World Trade Center.  Unfortunately, the top of 1 World Trade Center is obscured by clouds.

All of this is background to introducing a really interesting article in today's New York Times regarding the history of skyscrapers.  I love the Streetscapes column in the Times -- they do a wonderful job of blending the history of New York City real estate with present issues.  This article is no exception.  My favorite tidbit:

In 1897 The Record and Guide, alarmed by a proposal for a building 2,000 feet high, protested that New York was open “to attack from the audacious real estate owner” who cared nothing about robbing light from the neighbors, adding, “All that is needed is a barbarian with sufficient money and lunacy.”

The article discusses the historical animosity towards skyscrapers in New York, and the political battles regarding the land use restrictions that were put in place after the turn of the last century.  The article begins and ends with a description of the construction of 1 World Trade Center, concluding:

No one talks seriously about banning skyscrapers anymore; indeed congestion has been in recent decades praised, not derided. And so we have before us the prospect of a tower one-third of a mile high, that will be considered a monument of civic pride, a literal triumph out of tragedy. What people would have said in the 1880s and 1890s is barely a footnote.

But as a law professor, of course, I love footnotes.

Tanya Marsh

The Dangers of Unmarked Graves

Sometimes, when digging the foundation for a new structure, you find a few unmarked graves.  Or 1400+ unmarked graves. 

Tanya Marsh

The Death of a Town

The New York Times has a fascinating article today about the abandonment of Treece, Kansas, a town built literally on top of zinc and lead mines and now thoroughly, completely, contaminated.  The mining companies that caused the contamination and abandoned the mines are, of course, out of business.  The town is a parade of horrors -- structures and parts of roads collapse into abandoned tunnels from time to time, the lead dust in the air has led to children with lead-blood levels three times the national average, and the bodies of water that aren't orange are filled with acid. “The only thing polluted in Treece,” says Rex Buchanan, interim director at the Kansas Geological Survey, “is the earth, air and water.”

Yet, the article also describes the people who didn't want to leave, despite every reason to do so.  The article describes the remaining residents:

A few blocks away, I saw an immaculate double-wide trailer on a flowery corner lot. Its owners — Della Busby, a shovel-jawed woman with short bangs like Bettie Page’s and a raspy smoker’s growl, and her husband, Tim — had refused the buyout. Treece’s official population was now just two people. “To be honest, I don’t know why everyone left,” Della told me when I found her on her porch later that morning, still in the pink pajama pants and Las Vegas T-shirt she’d slept in. “Despite the obvious, it’s kind of nice out here. I’ve got the place to myself.”

A fascinating, and depressing story.

Tanya Marsh

Making the Case for Sprawl

Christopher Mims profiles L. Brooks Patterson, the county executive of Oakland County, Michigan and the country's most vocal advocate of urban sprawl:

Let’s stop the hysteria and honestly ask ourselves what is sprawl? “Sprawl” is the unfortunate pejorative title government planners give to economic development that takes place in areas they can’t control. In reality, “sprawl” is new houses, new school buildings, new plants, and new office and retail facilities. “Sprawl” is new jobs, new hope and the fulfillment of lifelong dreams. It’s the American Dream unfolding before your eyes.

Steve Clowney

The Reverse Mount Laurel Doctrine

The always-interesting Ken Stahl highlights a recent land use case out of New Jersey.  In Sayreville v. 35 Club, the New Jersey Supreme Court held that the first amendment does not necessarily require a  municipality to allow the sitting of adult businesses, so long as adult ventures have adequate access to locations elsewhere in the metro region (even if those locations are across state borders).

Stahl dubs this "the bizarro Mount Laurel Doctrine" and argues that it has the potential to create new red light disctricts. He writes, "Those communities that have permitted land uses deemed undesirable by other communities, perhaps out of a willingness to absorb their fair share, will be branded as red-light districts or ghettos and become dumping grounds for undesirable uses, while those that have guarded their exclusiveness most zealously will get to continue doing so for no better reason than that they always have."

Steve Clowney

Making New York Denser

Matt Yglesias pushes to "up zone" Manhatten:

[A]t a minimum if there are vacant lots or teardown candidates anywhere in Manhattan (and yes, these exist) or along subway lines it would be very much in the interests of the city and the country as a whole to build on them as densely as the market will bear. This is much greener than having the suburbs expand further, and besides which we should be allowing as many people as possible to get access to the great cities of the world.

Steve Clowney

Is Property Still a Local Institution?

The New York Times runs an important story on the increasing tension between states and local governments over control of shale gas drilling:

The battle is playing out in Pennsylvania as the Republican-controlled legislature considers bills that would in their current form sharply limit a community’s right to control where gas companies can operate on private property. Critics say the final bill could vastly weaken local zoning powers and give industry the upper hand in exchange for a new tax, which municipalities badly need.

Steve Clowney

Zoning at 85

Edward McMahon of the Urban Land Institute mulls over the 85th anniversary of Euclid v. Ambler and comes to the conclusuion that although "some anti-government activists argue that we don’t need zoning and that land use planning is somehow akin to socialism. In fact, planning is the multi-faceted process that communities use to prepare for change."  Along the way he dismisses "myths" that "Houston, Texas disproves that zoning is unncessary" and that "zoning is un-American."

Steve Clowney

What is an Adult Use?

The D.C. Zoning Board gets hot & heavy trying to figure out what constitutes a "sexually oriented business:"

Meridith Moldenhauer . . . debated from the dais with BZA newbie Lloyd Jordan about whether entertainment had to be intentionally arousing to its audience in order to qualify as a SOBE, or if it could merely be incidental.

Video of the Zoning Board hearing can be found here (go to 3:38:51 for the relevent discussion).

Steve Clowney

The Rise of the Mother-in-Law Apartment

The New York Times runs a story on the zoning changes that are making it possible for extended families to all live on the same lot:

California, Massachusetts, Vermont and Washington — have enacted laws encouraging or requiring changes to the zoning rules to permit the so-called accessory dwelling units.

Steve Clowney

Festa on Academic Writing in a Doctrinal Land Use Course

Matt Festa (South Texas) has posted Academic Research and Writing as Best Practices in a 'Practically Grounded' Land Use Course (Pace Envtl Law Review) on SSRN.  Here's the abstract:

Land use is a discipline that involves diverse academic, practical, and social perspectives; it is also an ideal subject for applying nontraditional teaching methods, including those suggested by the “best practices” movement in legal education. In this article - a contribution to the “Practically Grounded” conference on teaching land use and environmental law - I suggest that a scholarly research and writing focus can help students develop their practical and analytical skills and values while achieving “best practices” goals in the context of a doctrinal land use course. In the article I set forth a pedagogical basis for including an academic writing component in a doctrinal land use course; and I discuss the experience of teaching a large land use class with a significant research and writing component. The benefits from an academic writing focus may also apply to teaching in other doctrinal fields.

Steve Clowney

Property In My Dance Moves

An article at Slate discusses the requirements for claiming a property interest in a set of dance moves.  The piece then reports that "Beyoncé may have cribbed dance moves from a Belgian choreographer, Anne Teresa de Keersmaeker, for her new music video “Countdown.”  See for yourself:

Bonus fun: The article looks into the zoning implications of the movie Footloose.

Steve Clowney

Cattle Ranchers, Environmentalists, and the Keystone XL Pipeline

There is an interesting article in The Economist regarding the proposal to bring the Keystone XL oil pipeline from the tar sands of Alberta, Canada to Texas.  The new pipeline will cross Montana, South Dakota, Nebraska, Kansas, and Oklahoma on its way to Port Arthur, but apparently it is the Cornhuskers who are raising the biggest stink.  The main reason is concern about potential contamination of the Ogallala aquifer:

"Many Nebraskans are worried that a leak from the pipeline might pollute the Ogallala aquifer, a vast underground reservoir that stretches from South Dakota to Texas and provides Nebraska with almost all its tap water and irrigation. The aquifer rises especially close to the surface in the Sand Hills region in the north of the state, near Mrs Luebbe’s ranch. The water table is so high, explains one of her neighbours, that if you drive a piece of piping three or four feet into the ground, water clean enough to drink will start gushing out."

The article doesn't explain how TransCanada will acquire the rights to bring the pipeline through the United States, but I presume that eminent domain will be involved.  That's interesting, since apparently the pipeline so unpopular in Nebraska that even the state's Republican governor has written to Hillary Clinton, asking her to refuse the required permits unless TransCanada modifies the pipeline's route.

Tanya Marsh

Hirokawa on the "Change or Mistake Rule" in Local Zoning Decisions

Keith Hirokawa (Albany) has posted Making Sense of a 'Clear Misunderstanding of the Planning Process': Examining the Relationship Between Zoning and Rezoning Under the Change-or-Mistake Rule on SSRN.  Here's the abstract:

In some states, zoning is marked by the persistence of the so-called “change or mistake rule." In contrast to the traditional deference afforded to local zoning decisions, this rule limits the freedom of local governments to make site-specific zoning amendments by burdening the applicant to justify the rezone with evidence of a mistake or a substantial change in circumstances since the initial zoning designation was adopted. Despite being chastised in the courts and labeled in legal literature as a “clear misunderstanding of the planning process,” the rule has endured for over a half a century. This article explores the criticisms of and justifications for the change or mistake rule in order to identify the understanding that supports its continued application. Specifically, this article argues that the change or mistake rule was intended as a mediator between two fundamental purposes of zoning - maintaining communities that have sufficient flexibility to implement a new community vision, while providing stability and certainty as a planning device.

Steve Clowney

Cul-de-sacs 101

 

Here's a podcast that explains everything you ever wanted to know about cul-de-sacs. 

Steve Clowney

Owley and Rissman on Graduate Seminars as a Tool for Studying Land Conservation

Jessica Owley (Buffalo) and Adena Rissman (Wisconsin) have posted Distributed Graduate Seminars: An Interdisciplinary Approach to Studying Land Conservation (Pace Enviro Law Review) on SSRN.  Here's the abstract:

Adapting to the many changes associated with climate change is an increasingly important issue and nowhere more so than in efforts to conserve private land. Interdisciplinary distributed graduate seminars conducted in Spring 2011 at six universities investigated whether current land conservation laws and institutions appear up to the task of protecting land in the context of change and avenues for improving the adaptive capacity of such institutions.

Distributed graduate seminars are courses coordinated among multiple universities. They begin with a core of interested faculty who organize graduate students at their universities to collect or analyze dispersed data. This article gives a brief introduction to distributed graduate seminars and then details the experience and insights gained conducting such a seminar for land conservation and climate change. The distributed graduate seminar offers advantages by allowing for the synthesis of diverse data, the integration of multiple disciplinary perspectives, and the person-power enabled by student research. For students, the distributed seminar provides opportunities to engage with a broader academic community, benefit from new perspectives, and contribute in a meaningful way to a large endeavor.

Steve Clowney

Lavine on Zoning Out Payday Loan Stores

Amy Lavine (Albany) has posted Zoning Out Payday Loan Stores and Other Alternative Financial Services Providers on SSRN.  Here's the abstract:

Payday lenders and similar alternative financial services providers are primarily regulated at the state level, but local governments have increasingly begun to impose restrictions of their own on these fringe financial services providers. While some ordinances have focused on lending restrictions and other consumer protections, most municipal payday lender regulations are found in zoning and other land use laws.

Zoning has long been used to restrict the siting of undesirable land uses – ranging from junkyards and landfills to tattoo shops and adult businesses – making it an ideal method for local governments to regulate payday lenders. Experience with other unwanted land uses has led to the development of various zoning techniques appropriate for controlling these businesses, such as separation and dispersal requirements, nonconforming use limitations, special permit procedures, and partial or total exclusions.

This article provides an overview of these and other approaches that local governments have taken to regulate alternative financial services providers. After providing some background regarding the general functions and characteristics of these businesses in the first section, the second section discusses state-level financial regulations and preemption issues. The third section covers the different types of municipal controls that have been imposed on payday lenders and similar businesses, drawing on actual ordinances as well as on case law discussing their use and validity. Finally, the fourth section mentions several alternative, incentive-based non-zoning approaches that have been used to improve financial literacy and extend traditional banking services to a broader population. An appendix listing and briefly describing more than 60 payday lender ordinances is also included.

Steve Clowney

Marion Barry's Housing Shenanigans

For those that haven't kept up with the career of Marion Barry, you'll be happy to hear that the erstwhile crack smoking mayor of D.C. is back on the city council.  And not only is he back, he's proposing aggressively stupid legislation. Specifically, Barry plans to introduce a bill that would ban the construction of all new apartment buildings in his Ward (Here's a copy of the Bill's text).  Why???  Barry thinks this plan will encourage home-ownership and the renovation of the area's dilapidated housing. "The American dream is to own a home. And black people have not gotten the American dream as much as they need to," he says. "Somebody can rent for 20 years, and has no equity in their unit at all."

It's hard to see how this bill helps the people of Ward 8 in any way.  If anything D.C. in general, and Ward 8 in particular, needs denser & more affordable housing.  Right now, DC's population is exploding.  So any proposal to artificially limit the supply of available rentals seems likely to push (poor) long-term residents out of the neighborhood.  It's also tough to comprehend how this land use measure would help the folks of Ward 8 acquire the downpayments and credit history that are the normal barriers to home ownership.  

Perhaps the really interesting question here isn't about the policy but rather, why do people in D.C. keep voting for Barry? 

Steve Clowney