Get On The City Bus: The Future of The American Suburb and Her Automobiles

by Samuel Rosenberg November 11 2008, 12:15
Despite Americans’ preference towards the suburb in the later half of the twentieth century, our nation is currently poised to regret the very expansionist zest that drew it away from the urban core. With the fluctuating price of gas and the limited public transportation alternatives, suburban Americans are forced to devote an ever-growing portion of their income and time to surviving their daily commutes. [2] The issue confronting policymakers today is whether to realign current residential settlement patterns or to vastly improve public transportation within suburbs. This article discusses some of the possible means available for accomplishing the latter. [More]

Basketball in Brooklyn: Taking it to the . . . Courts?

by Alicia Filter February 9 2008, 01:35
Recent news concerning the NBA's New Jersey Nets imminent move to Brooklyn has met with protest from residents of the neighborhood where the proposed arena is to be built. In particular, a community group composed of neighborhood organizations and individuals who live near the proposed development site called Develop Don't Destroy Brooklyn is leading the court battle against the proposed Barclays Arena and Atlantic Yards development that would bring new life to the open-air storage facility for buses and rail cars, but will also require the destruction of currently occupied residential and commercial spaces. [1] The Atlantic Yards development is a $4 billion, eight million square feet project spanning 22 acres along Brooklyn's Atlantic Avenue which includes a basketball arena for the New Jersey Nets' move to Brooklyn, office buildings, thousands of apartments and condominiums (a significant portion of which will be "affordable" as opposed to market priced), as well as parks, overall dramatically altering the Brooklyn landscape with 16 total skyscrapers planned. [2] On-going litigation in the case of Develop Don't Destroy Brooklyn v. Empire State Development Corporation [3] pits the community mobilization group against the high-powered developers who are backed by both New York Governor George Pataki and New York City Mayor Michael Bloomberg. [4] The issues in debate concern environmental inspections, public safety concerns, as well as disqualification of counsel arguments. [5] However, it seems likely that despite this litigation, the Atlantic Yards development will go forward with the planned opening of the arena in time for the 2009-2010 NBA season. [6] [More]

Following the LEEDer: What Attorneys Should Know About Green Building

by Jennifer Kolton November 28 2007, 15:29
Green building is gaining momentum as a construction trend with widespread benefits, from environmental efficiency and resource conservation to human health and lifestyle improvement.  Several government entities have reacted to the green building movement, creating national and local standards and monetary incentives for developers to create green buildings.  In representing developers and others associated with green building, attorneys should consider how to contractually plan for risks that may not otherwise arise in ordinary development projects.I. What is “Green Building”?Green buildings are “designed, built, operated, renovated, and disposed of using ecological principles for the purpose of promoting occupant health and resource efficiency plus minimizing the impacts of the built environment on the natural environment.”[1]  The costs of green building as compared to ordinary construction are debatable.  One 2001 study found that green buildings cost “ten to fifteen percent more” than conventional buildings.[2]  To the contrary, a 2003 study found that green buildings incorporate less than a two percent premium on conventional buildings.[3]  Despite the costs, many developers think that green buildings enhance the occupant’s health and quality of life.[4]  Studies show that a building’s environment influences the productivity and performance of the building occupants and that connecting building occupants with the environment “reduces worker stress and improves overall psychological and emotional functioning.”[5]  It is predicted that eventually not only developers, but consumers themselves, will desire to live and work in green buildings because of such “health and lifestyle benefits.”[6]II. Government InitiativesThe momentum gained by the green building movement has not gone unnoticed by government entities, who have stepped to the forefront in promoting workable ways to construct green buildings.  The United States Green Building Council (“USGBC”) has created a Leadership in Energy and Environmental Design (“LEED”) Green Building Rating System.[7]  The LEED system “evaluates the design, construction, and operation of newly constructed or renovated buildings.”[8]  Additionally, it provides a “voluntary national standard” for green building.[9]  Following the initiative demonstrated by the USGBC, many states and cities have created their own standards and incentives for green building.For example, the City of Chicago has established a Green Permit Program though the Department of Constructions and Permits (“DCAP”).[10]  Application into the Green Permit Program requires meeting a series of green building certification requirements.[11]  For example, commercial projects must meet appropriate LEED certification levels, and residential projects “must meet or exceed EnergyStar requirements developed by the U.S. Environmental Protection Agency.”[12]  Additionally, green projects must incorporate certain DCAP “menu items,” such as a green roof, renewable energy, or extra affordability.[13]In addition to the environmental benefits, the Green Permit Program offers several incentives to developers.[14]  First, the Green Permit Program offers a shorter permit application and review process.[15]  Projects accepted into the Green Permit Program may receive permits “in as little as 15 business days.”[16]  Comparatively, ordinary permits issue in about four months.[17]  Second, developers of green projects can expect “cross-departmental coordination” among city departments responsible for reviewing the projects.[18]  Third, developers may receive fee waivers for services from green permit experts.[19]  For developers that are motivated by saving time and money, the quick issuance of a green permit and the savings from consulting green permit experts provide incentives to create green projects.  The costs savings of time and money may negate some of the purported premiums on green building, making it easier to rationalize costs of the bottom line against the added environmental and health benefits.III. Attorney ConcernsOne recent article lists several risks an attorney should consider in representing parties to green building projects.[20]  These risks include, among others, defining who is responsible for the green building process, ensuring adequate insurance coverage, and checking that green building techniques do not interfere with product warranties or intellectual property rights.[21]  In general, it seems that attorneys must ensure that contracts adequately and accurately document the obligations and responsibilities related to the green building process.In addition, attorneys must think about how novel issues raised by the green building process relate to an attorney’s traditional role in real estate development projects.  For one, an attorney should consider how green building projects relate to one’s ethical responsibilities as a lawyer.  For example, the Model Rules of Professional Conduct require that an attorney consult with the client about the means to achieve the client’s objectives.  It is therefore important that an attorney working with a developer discuss the green technologies and processes involved in the green building development so that an attorney can provide adequate representation.  Additionally, the Model Rules require an attorney to act with competence, or to act with the legal knowledge, skill, thoroughness and preparation reasonably necessary for representation.  Thus, an attorney should become familiar with the green building standards, permits, and processes in preparation for the representation.Another concern relates to representing a financial institution lending a construction loan for a green building project.  Conceivably, the lender will want to document how the green building construction processes and certifications relate to draw-downs on the construction loan.  The parties should discuss the green building process in detail, including what materials are to be used and when green certifications are to be obtained and by whom, to clearly and contractually establish guidelines for the lender to supervise how the green building process correlates to the money drawn-down to finance the project.  Ultimately the green building trend is bound to continue as it gains favor from developers and consumers alike.  In serving this trend, so long as developers and attorneys pay close attention to the unique concerns raised by green building projects, green buildings will provide positive benefits for all.[1] Charles J. Kibert, Green Buildings: An Overview of Progress, 19 J. LAND USE & ENVTL. L. 491, 491-92 (2004).[2] Stephen T. Del Percio, The Skyscraper, Green Design, & The LEED Green Building Rating System: The Creation of Uniform Sustainable Standards for the 21st Century or The Perpetuation of an Architectural Fiction?, 28 ENVIRONS ENVTL. L. & POL'Y J. 117, 133 (2004).[3] Id.[4] Id. at 136.[5] Id.[6] Darren A. Prum, Environmental Protection: What You Should Know About Green Building, 36 REAL EST. L. J. 239 (2007).[7] Del Percio, supra note 2 at 120.[8] J.R. Steele, Green Construction: Initiatives and Legal Issues Surrounding the Trend, BUS. L. TODAY, Nov./Dec. 2007, at 13.[9] Id.[10] Judith Nemes, Coloring the City Green, CHI. TRIBUNE, Nov. 4, 2007, available athttp://www.chicagotribune.com/classified/realestate/news/chi-cp-city_green_re_11-04nov04,0,3020579.story.[11] Green Permit Program Brocheure, http://www.cityofchicago.org/dcap (last visited Nov. 27, 2007).[12] Id.[13] Id.[14] Christopher P. Perzan, What You Should Know About Green Building, CBA REC., Nov. 2006, at 38, 42.[15] Id.[16] Green Permit Program Brocheure, supra note 11.[17] Nemes, supra note 10.[18] Perzan, supra note 14 at 42.[19] Nemes, supra note 10.[20] Steele, supra note 8 at 16.[21] Id.

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Homeowners’ Associations & Their Limitations on Free Speech

by Marjorie Espina November 26 2007, 13:08
I. Introduction

Free speech is a right guaranteed by the First Amendment, but is it possible to give up this right if you move into a neighborhood governed by a homeowners’ association? The New Jersey Supreme Court had to decide this issue when a group of residents subject to the rules of their homeowners’ association were restricted from posting signs on their lawns or the common areas of the community. [1] Although the ruling is limited to application in New Jersey, homeowners’ associations everywhere were watching the case closely to see whether it would have an impact on how their state dealt with such constitutional challenges to their rules and regulations. [2] This article will explore the outcome of the New Jersey case as well as its implications on homeowners’ associations elsewhere. [More]

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Illinois’ Right to Possess Statute Aims to Protect Tenants from Landlord Foreclosure

by Alex Zaretsky November 5 2007, 09:47
With real estate foreclosures at near record levels, more and more renters are forced to move prematurely because their landlords are unable to stay out of foreclosure. Foreclosed rental properties are quite common. For example, 44% of the repossessed properties sold in California last August were not owner-occupied. [1] After foreclosure, banks are not contractually obligated to let tenants occupy the premises and in most cases, tenants receive very little notice of the need to vacate. [2] In response, the Illinois legislature recently passed a law limiting a bank’s ability to force a tenant out after the property has been foreclosed. [3] [More]

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The Trade-off: Land for Fewer Dropped Calls

by Marjorie Espina October 29 2007, 13:10
With 171 million wireless subscribers in the United States, it is no surprise that the number of cellular phone transmission towers grew from 22,663 in 1995 to 104,288 in 2000. [1] These towers range from fifteen to twenty stories tall, and can make quite a statement when added to a city block or neighborhood park. [2] Residents of cities all across America have protested the planting of these unsightly towers in their neighborhoods, but the Cellular Telecommunications & Internet Association has reported that "dead spots and dropped calls can be eliminated only by new cell sites." [3] Faced with that reality, we are forced to decide which is the lesser of two evils: dropped calls or backyard barbeques next to a cell phone tower. [More]

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Congressional Proposals to Fix the Subprime Mortgage Mess are a Bad Idea

by Alex Zaretsky October 10 2007, 09:49
The recent subprime mortgage crisis has put pressure on Congress to act to bail out troubled lenders and borrowers. The American housing market continues to struggle. According to the National Association of Realtors, sales of existing homes fell by 4.3% in August and the stock of unsold single-family homes rose to the highest number since 1989. [1] More and more homeowners cannot keep up with their mortgage payments, and Congress feels that it needs to act to avoid looking disinterested and out of touch. There is bipartisan support for several proposals, including giving Freddie Mac and Fannie Mae a greater role in the mortgage market. [2] These proposals are a bad idea. They are misguided and could further damage the long-term housing market. [More]

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Casper the Lonely Ghost: Buyers Don’t Want Haunted Houses

by Marjorie Espina October 1 2007, 13:12
As intriguing as haunted houses are, they are not an easy sell. Whether you believe in ghosts or not, this is the scary truth: if a home has had a murder, suicide, or illness take place in it, it is “psychologically impacted” and carries a supernatural stigma. [1] This fact alone may keep buyers away more than any of its physical characteristics. [2] According to a study done by professors at Wright State University, psychologically impacted houses take 50% longer to sell than homes with comparable features. [3] On top of that, they price at an average of 2.4% less than those that do not come with a supernatural tenant. [4] And since apparitions are not always readily apparent to the prospective buyer, sellers with stigmatized property are faced with the temptation to keep their ghosts a secret. Legally though, it may not be in their best interests to do so. [More]

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It’s Not Easy Being Green [1]: The Tech Industry Seeks Greener Solutions to Its Rapidly Increasing Energy Demands

by Justin Eurek September 24 2007, 15:45
I.  Introduction  Why do companies go green?  A cleaner, more efficient energy solution certainly sounds progressive and looks great on paper, but aside from generating good public relations with environmental groups, is it an economically sound investment?   In the case of the tech industry and its rapidly increasing energy costs and demands, it may be their only option.  Put another way, the answer may be a resounding "Yes."To illustrate this problem, take for example the ubiquitous IT data center, or the air-conditioned computer farms found at the heart of almost any large technology firm.  [2]  They offer increasingly more complex and useful applications, web pages, internet traffic and processing power, but at significantly increasing costs.  [3]  Data centers are massive energy consumers and may require as much as fifty times the power of a comparably sized office space.  [4]  Despite some recent notable improvements in hardware power efficiency [5], the Environmental Protection Agency (“EPA”) released a report on August 7, 2007 that projected the tech industry’s overall electricity consumption to double between 2006 and 2011.  [6]II.  The Green FactorsSeveral key factors are driving the accelerated effort to convert to "greener" energy solutions including rising power demands, increasing energy costs, and government mandated energy efficiency policies and economic incentives.  [7]A.  Increasing Power Consumption and Energy CostsThe consumption of energy in data centers, for example, involves as little as 30 percent of the total electricity consumed to actually run the computers.  [8]  The remainder is largely reserved for the industrial air conditioning that cools the densely packed rack-mounted servers down to approximately 40 degrees to ensure that no single server's temperature ever rises above its optimum level for maximum performance.  [9]  Power consumption and usage inefficiencies are rampant in an industry that historically turned a blind eye to the environmental footprint until it started affecting their bottom line.  [10]The technology sector as a whole is seeing power consumption rise rapidly, with the IT industry consuming roughly 61 billion kilowatt-hours, which amounts to a roughly $4.5 billion cost, as reported by the EPA in 2006.  [11]  This amount is expected to double by 2011.  [12]B.  State and Federal Energy Policies and Economic IncentivesCalifornia has enjoyed an accelerated growth of the clean technology sector in Silicon Valley due to the state’s clean tech backing policies.  Because of this, it has quickly become the U.S. leader in state-sponsored energy incentive programs.  [13]  For example, California has created incentive programs to increase the use of solar panels on homes in an effort to help achieve a 25 percent reduction in greenhouse gas emissions by 2020, and requires that public utilities must generate 20 percent of their electricity from renewable resources by the year 2010.  [14]Though California trailblazes state-run initiatives for the conversion to green power, the federal government has also contributed to the effort.   The EPA offers financial incentives, including tax credits and utility rebates, to help expedite the tech industry’s segue into greener power solutions.  [15]III.  Green SolutionsA.  Existing TechnologiesWhile the utility and tech industries seek out new and more efficient technologies, some efficiency reducing solutions already exist and are being implemented.  The EPA estimates that the easiest and least expensive changes to data center operations (including tweaks to the software, the server layout and air conditioning), could increase efficiency by as much as  20 percent.  [16]  While these changes alone will provide substantial savings, it will not offset the 45 percent reduction necessary to lower overall electricity usage by 2011.  [17]A number of data center components are currently being manufactured that are robust enough to withstand sustained ambient temperatures of 122 degrees Fahrenheit.  [18]  This could eliminate the need for the massively power-hungry cooling systems, resulting in data centers that are hundreds of times more efficient.  [19]  Companies like IBM, Sun, and HP are currently spearheading this clean technology effort to one day offer technological solutions to realizing self-sustained, no-outside-cooling-necessary data centers.  [20]B.  Alternative SolutionsWhile the technology sector searches for ways to increase power efficiency and reduce their environmental footprint, the utility industry is seeking cleaner and more affordable alternatives to the use of fossil fuels.  [21] A wide array of new and innovative alternative energy sources are coming to the forefront in the push for greener renewable resources. Wind energy, though currently only comprising a half of a percent of total U.S. energy consumption, is the fastest growing source of renewably energy in terms of usage and capacity due to its remarkable cost per kilowatt of producing electricity [22], green power mandates and federal tax credits.  [23]  The Energy Department expects wind generated power to reach 46.2K megawatt hours this year, constituting greater than a 300 percent increase from 2004.  [24]Other innovative technologies are emerging as viable renewable energy resources.  These include solar, fuel cells, clean coal [25], extracting liquid natural gas from landfill waste, harvesting wave energy [26], and smart grid technology (an intersection of information technology and energy distribution).  [27] There are even more exotic solutions like bioengineering yeast cells to consume sugar and excrete biofuels [28], harnessing lightning, and even creating man made tornadoes to theoretically produce as much energy as a nuclear power plant.  [29]  The future of green technology is remarkably rife with innovation and outside-the-box thinking. The Future of Green EnergySilicon Valley is experiencing a boom, commonly referred to as “Boom 2.0”, in the number of green-tech start-ups that are developing environmentally friendly technologies.  [30]  Venture capital firms nationwide have invested $2.9 billion into these clean, green technology start-ups in 2006 alone, constituting a 180 percent increase from 2005.  [31]  Investments are projected to increase to $8.7 billion by 2009.  Most IP attorneys involved in green technology say clean technology is here to stay, regardless of the relative price of oil which has driven its popularity in the past, and are reporting an impressive increase in patents and licensing in the clean tech sector with no end in sight.  [32]ConclusionWith the advent of rising energy costs, increasing usage demands, and mounting regulations by state and federal legislatures to force corporations to convert to renewable energy sources to meet progressively tighter environmental regulations, companies are forced to adapt by investing in cleaner energy alternatives. The EPA and the current state-of-the-art of clean technology offer solutions to significantly improve energy efficiency in IT data centers to help achieve lower energy consumption amidst a climate of increased technological usage.  Furthermore, with rapidly increasing investment in clean technology research, innovation, patents, and licensing, the energy sector is primed to manage the rigorous energy demands of the future in the most economically feasible and environmentally friendly manner.  The “green movement” has had a slow and somewhat turbulent beginning, but from here on out it looks like blue skies.[1]  JOE RAPOSO, BEIN’ GREEN (Jonico Music, Inc. 1970).   [2]  cnn.com, Tech Companies Are Greener, But Are They Green Enough?, Sept. 12, 2007,http://www.cnn.com/2007/TECH/biztech/09/08/tech.green.credentials.ap/index.html (last visited Sept. 22, 2007).[3]  Id.[4]  Id.[5]  Id.[6]  Xenia P. Kobylarz, How Green Was My Valley, Mar. 2007,http://www.ipww.com/display.php/file=/texts/0307/green (last visited Sept. 22, 2007); Chris Preimesberger, How Green is IT’s Future?, Aug. 8, 2007,http://www.eweek.com/article2/0,1895,2168443,00.asp (last visited Sept. 22, 2007).[7]  See Kobylarz, supra note 6; See Preimesberger, supra note 6.[8]  msnbc.msn.com, Are Tech Companies Really That Green?:  U.S. Firms Tout Their Credentials, But Significant Improvements Are Well Off, Aug. 8, 2007, http://www.msnbc.msn.com/id/20180456 (last visited Sept. 22, 2007).[9]  See cnn.com, supra note 2.    [10]  Wendy Furrer, Companies Going Green With Energy Alternatives:  High Cost of Fossil Fuels Sparks Efforts to Identify Savings, New Markets, Mar. 29, 2006,http://www.msnbc.msn.com/id/12040418/ (last visited Sept. 22, 2007).[11]  See Preimesberger, supra note 6.   [12]  Id. [13]  See Kobylarz, supra note 6. [14]  Id.[15]  See Preimesberger, supra note 6.[16]  See cnn.com, supra note 2.[17] Id. [18]  See Preimesberger, supra note 6.[19]  Id. [20]  Id. [21]  See Furrer, supra note 10.[22]  Id. [23]  Adam Aston, The State of Green:  Here's a Look at Some Alternative Energy Sources Such As Wind, Solar, and Ethanol and the Challenges Companies In Those Areas Face, Sept. 10, 2007,http://www.businessweek.com/technology/content/sep2007/tc2007096_783345.htm (last visited Sept. 22, 2007).[24]  Id.[25]  See Kobylarz, supra note 6.[26]  Olga Kharif, The Alternatives to Alternative Energy:  Entrepreneurs Look Beyond Solar and Wind, to Algae, Giant Kites, Lightning, Sept. 12, 2007, http://www.msnbc.msn.com/id/20729466/ (last visited Sept. 22, 2007).[27]  See Kobylarz, supra note 6.[28]  Id.[29]  See Kharif, supra note 26. [30]  See Kobylarz, supra note 6.    [31]  Id.[32]  Id.   

Use Rights on Nonnavigable Waterways

by Alex Zaretsky September 13 2007, 09:51
Imagine a residential community in which all the residents own tracts of land surrounding a pond that is not accessible to the public. What water surface rights do the landowners have? Can a landowner use the entire pond for boating even if it will interfere with another’s fishing? Can a single landowner keep all others from using the pond for their recreation? Recent state court decisions highlight two very different regimes governing the use rights of nonnavigable waterways. [1] [More]

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