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Real Estate & Property Law

: Kelo and Beyond


By Greg Alvarez, Esq.

a href=""img style="display:block; margin:0px auto 10px; text-align:center;cursor:pointer; cursor:hand;width: 320px; height: 214px;" src="" border="0" alt=""id="BLOGGER_PHOTO_ID_5282424559112330162" //abr /Okay, okay, so I've been a bit naughty in neglecting my blogging duties over the last few months, but now that it is the holiday season, it is time to try to return to the ranks of the nice. With all the coming talk of shepherding as a noble profession, especially in connection with the little guy born on December 25th all those years ago that we'll be celebrating shortly, it seems fitting that thoughts of what land use is all about oftentimes revolves around a different type of shepherding. As I sat through a planning board hearing last week, waiting for the board to approve an application, I thought a lot about how what we do is nudge projects along, making sure people, and the omnipresent paperwork, get to their proper destination, and with the desired effect. The reason why things do or don't happen is because of the champions of causes that may or may not stand the test of the /br /Why do projects, or places, succeed or fail? It is standard fare to take a hard look at a place, and determine whether it is a locale to be, or simply a spot that languishes in the past. For instance, a recent account took a hard look at a href="'s%20Horizon,%20Reshaped%20by%20an%20empty%20promisest=cse"the Great American Pyramid in Memphis, Tennessee/a, and its failed dreams of bringing prosperity to the region that surrounds it. Unlike the similarly-shaped edifices in Giza, Egypt, the Memphis version has become a relic in a generation. The shepherd in this case was Sidney Shlenker, who sold Memphis on a grand vision of a pyramid that would serve all people with a multiplicity of possible uses. However, Mr. Shlenker failed to make it to the finish line, losing his role in the venture when he could not raise his portion of the cost to build it. Constructed on low-lying ground at the edge of the Mississippi, it has become bypassed, especially with the construction of the FedEx Forum arena just down the road where the NBA's Grizzlies now play, as well as the Memphis Tigers, who were an original tenant. Now the Pyramid sits largely unused, without a shepherd to find a purpose for the abandoned dream /br /How about a href=""in Cheyenne, Wyoming/a, where at its founding, there were thoughts of it being the metropolis of the Mountain West. However, Denver won out long ago, with stronger shepherds leading it into the promise land. Again, absent strong shepherds to protect its future, carpetbaggers from Denver are slowly creeping into their territory, seeking out cheaper land and lower taxes to the north. As part of this exodus, the National Center for Atmospheric Research, based in Boulder, Colorado, is building a new supercomputer in Cheyenne to be a part of its research network. Instead of seeking to preserve the character of their small city, the caretakers of Cheyenne are choosing to be a part of the herd following into Denver's orbit. For instance, Wyoming State Senator Michael Von Flatern is part of a state legislative initiative looking into constructing a commuter railroad from Wyoming to New Mexico, all in the interest of serving the growing behemoth to the south. As Senator Von Flatern reasons, "Economics is what we are really after. . . . Denver will be a big megalopolis, and if things move forward on the rail line, and Colorado does their party, I would want Wyoming to tie in." Rather than taking the horns, it seems Cheyenne is subject to the whims of other more powerful /br /As can be seen, it takes strong forces to push through anything, be it big or small. On the big side of things, Florida's governor Charlie Crist, the state's Department of Environmental Protection, the South Florida Water Management District, environmentalists and United States Sugar have pushed through the plan for the government to a href=",%20Voting%204%20to%203st=cse"acquire 300 square miles of land/a that will be converted back to wetland use in order to improve the increasingly deteriorating water quality situation in the area, as well as reverse the heavy development that has overtaken the region in the last few decades. On the small side of things, nobody less than the U.S. Congress and the ACLU (and possibly the U.S. Supreme Court) have jumped into the fray in a seemingly simple matter of a href=",0,6682319.story"a cross constructed decades ago by the VFW on public land in the middle of the Mohave Desert/a. It all started because of Frank Buono, a retired U.S. Park Service employee, who sued the service over the cross's installation. With the aid of other shepherds, it has become a federal case. Moreover, on the outskirts of Chicago, a href=",0,7925208.story"eight municipalities have struck deals/a with Canadian National Railway to mitigate the noise and safety concerns generated by the rights-of-way which cross through their burgs. Tired of fighting, the municipal leaders pushed through plans that seek to solve long-standing conflicts with having trains occupy some of their rolling /br /Even though such matters receive the attention and care that ultimately pushes them through to fruition, it does not mean that they face hurdles. But it is because of the shepherds that they ultimately do reach the finish line. Take for instance the case of a href=""a new national biological defense laboratory/a, which will be home to the most treacherous diseases on earth. It is located on Galveston Island, Texas, which was, and continues to be, susceptible to hurricanes whipping in from the Gulf of Mexico. "It's crazy, in my mind," says an environmental lawyer in the area. But in the end, the University of Texas, who runs the facility, has better lawyers and public relations professionals, who sold the project to the community in terms of good jobs for the area. On the smaller side of things, a href=""in Santa Monica, California/a, a few irate neighbors took back the highly coveted Fourth Street traffic median where exercisers stretch and grunt their ways into the ire of the people who have to live near it. The residents have forced the City Police to enforce an ancient ordinance prohibiting such nefarious activities. The NIMBY contingent faced the return fire from the healthy types, who blatantly continue to use the space, at least until the tickets at $158 a pop begin to be written. At least for now, the neighbors have won the /br /The shepherds can come from any corner, at any time. It seems fitting to acknowledge the passing of one such herder, a href=""Dorothy Miner/a, the former counsel to the New York City Landmarks Preservation Commission. Deeply involved in the seminal emPenn Central/em case, which set the stage for the Supreme Court's takings jurisprudence over the past three decades, she was a tireless advocate, and innovator, in preserving the historical character of the city, including lower Manhattan's Dutch street configuration. Her techniques spread across the country in an effort to hold onto America's built environment /br /And finally, let us not forget what happened last month. After the euphoria (or depression, depending which side of the fence you sat) of November 4th, the real question for President-Elect Barack Obama is how he intends to lead. Lofty expectations follow him, and his built-in detractors are already lining up to nitpick at his Cabinet selections. Sure, Obama has spoken on various land use-related topics during the course of the endless campaign, but any real impact from the new President in the world of development will no doubt be funneled through the loftier issues of economic stimulus packages and environmental policy. Who will his shepherds be? Well, some answers have been offered, including a href=""Representative Ray LaHood/a, a Republican from Illinois, as the Secretary of Transportation, a href=""Lisa Jackson/a, former New Jersey DEP head, as the new EPA Administrator, Steven Chu, a Nobel-winning physicist, as the Energy Secretary, Nancy Sutley, who was an advisor to Los Angeles Mayor Antonio Villaraigosa, the new chair of the White House Council on Environmental Quality, Obama's so-called "climate czar," former EPA chief Carol Browner and a href="'s%20Interior%20Pickst=Search"Senator Ken Salazar from Colorado/a as the next Interior Secretary. How will they do? Only time will tell. But either way, they have entered a noble calling, which I continue to labor on along with them, down at ground level.

Full post as published by Kelo and Beyond on December 22, 2008 (boomark / email).

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