October 3, 2009
Fennell on the Unbounded Home
Lee Anne Fennell has posted The Unbounded Home: Property Values Beyond Property Lines (Excerpts). The excerpts are from her book of the same title. The book builds on some of Fennell's important articles. The abstract reads:
The Unbounded Home grapples with a core modern reality - that the value and meaning of a home extend beyond its property lines to schools, shops, parks, services, neighbors, neighborhood aesthetics, and market conditions. The resulting tension between the homeowner’s desire for personal autonomy at home and the impulse to control everything that could affect the home’s value fuels continual conflict among neighbors and communities. The home’s unbounded nature carries implications for nearly every facet of residential life, from the financial vulnerability of homeowners to the persistence of segregation by race and class. This book shows how innovations that increase the flexibility of property law can address critical issues of neighborhood control and community composition that have been simmering unresolved for decades - and how homeownership itself can be reinvented to better deliver on its promises. The download provided here includes the table of contents and the following excerpts from the book: introduction, chapter one, and the opening pages of chapters four, six, and eight.
I am about halfway through the book and I encourage you to read the whole thing-- it is one of the most significant works of property, land use, and local government scholarship this year.
- Matt Festa
October 2, 2009
The End of the Universe
My co-bloggers have posted some excellent and erudite observations. For the the weekend, here is a lighter story (despite the ominous title) of land use development patterns. Comedian Lewis Black has a famous routine about “The End of the Universe." He says:
I’ve seen the end of the universe. And it happens to be in the United States and oddly enough, it’s in Houston Texas. I know, I was shocked too. Imagine my surprise when I left the comedy club one day and walked to the end of the block and there on one corner was a Starbucks; and across the street from that Starbucks, in the exact same building as that Starbucks . . . there was a Starbucks! I looked back and forth thinking the sun was playing tricks on my eyes. But there was a Starbucks across from a Starbucks. And that, my friends, is the end of the universe.
As I compose this blog post at Ground Zero of the End of the Universe, sipping my Grande Voodoo Zinger (or whatever it is) on the patio of the One Starbucks, and looking across the street at the Other Starbucks, appreciating Mr. Black's insight, I glance over to my left, and I realize that there is a new Barnes & Noble open next door, with a sign for—you guessed it—Yet *Another* Starbucks. That’s THREE Starbucks on one corner. Three Starbucks within 100 feet. The end of the universe? See this explanatory video; it's worth a view.
What’s the land use lesson here? Is this a problem? Does the Unzoned City allow for seemingly ridiculous results in land development? (Actually, I met someone who knew about the new, urban, Barnes & Noble plaza at a ULI event, and he told me it was extremely hard for the developer to get the permits). All three Starbucks are within 100 feet of each other; is this "game over" as Lewis Black says? “Nobody could be that stupid,” says Mr. Black—but all three were pretty crowded on a beautiful fall Friday. So does the market respond to patterns of human traffic and consumer demand within the regulatory system? Or is it wrong, or just plain funny?
I think the ultimate message is this: Lewis Black, call your office: in Houston we have accelerated the End of the Universe!
- Matt Festa
The "New" Downtown
The revitalization of aging downtown areas is a challenge facing cities nationwide. Las Vegas is no exception, and the city (lead by mob-lawyer-turned-celebrity-mayor Oscar Goodman) has long attempted to attract residents, visitors, and businesses to the older parts of town. For most visitors, a weekend trip to Las Vegas usually means a visit to the high-rise hotels and casinos along the southern portion of Las Vegas Boulevard. But if you head a few miles north on Las Vegas Boulevard, you come to what the locals call "Downtown" Las Vegas. Downtown, likely best identified by the Fremont Street Experience, has attempted to market itself as the hip, urban alternative to generic sprawl and corporate entertainment elsewhere in the valley. Instead of flocking to downtown, however, it seems that area hipsters are more attracted to a new development, Town Square. Depending on how you look at it, Town Square is either a sterile shopping center or a trendy shopping and entertainment district. What it clearly does not include, however, is residential living as this humorous story illustrates. While some people value the eclectic, organic heterogeneity of true downtown living, it is clear that there remains a market for more planned, ordered heterogeneity.
A leading rationale for impact fees--that denser development causes a greater impact on soft and hard infrastructure--may need some re-evaluation according to this recent Time magazine article:
New Yorkers, take heart: your city is a den of dirt and grime and gluttony no more. According to David Owen, author of Green Metropolis: What the City Can Teach the Country About True Sustainability, the Big Apple is actually the greenest city in America. Residents of New York City walk more, drive less and leave a significantly smaller carbon footprint than people living anywhere else in the U.S. — even Vermont.
The article goes on to make the somewhat counter-intuitive argument that denser living equates to less of an impact than lower density living. While there are several arguments in the article that won't stand up to vigorous critique (namely, the idea that urban traffic jams are eco-friendly because they force people toward mass transit--a dubious claim that ignores the heavy eco-footprint that masses of idling 6 cyclinder engines leave), it is an argument that smart people like Andres Duany and CNU head John Norquist have also made.
In terms of the legal effect of such an argument, it begs the question: have we accurately calibrated how we assess impact fees? That is to say, does the equation of increased density = increased impact really hold true?
The gist of the author's argument (and one that I personally subscribe to) is that a dense urban setting can have less of an impact than a semi-dense and sprawling suburban setting.
Is it time to re-calibrate our regulatory impact fees to take things like use of existing infrastructure and other more urban development features into consideration?
Sounds like another law review article topic-in-waiting...
p.s. I recently received my reprints from Florida State's law review for my article that explores the legal and regulatory history of the Reedy Creek Improvement District (i.e. the home to the Walt Disney World Resort). It was obviously a fun article research--I mean somebody had to go down there for several weeks to interview Mickey and his executives, right?
Well, in honor of Disney World's 38th Anniversary, here's an interesting Tilt-Shift video that the company's new blog put together. Enjoy.)
October 1, 2009
Smokers, Signs and Creative Lawyering
Props to Planetizen for posting this first. Apparently, the owner of a BBQ joint in eastern PA is being cited because the meat smoker she uses in the public right-of-way has been determined by the local zoning board to be a sign. The town solicitor backs the board on this. Are there no regulations against simply blocking the right-of-way? Anyway, must give them points for creativity.
Historic Preservation & Smart Growth
One of the issues Charleston, SC, is facing as the City revisits its comprehensive plan is how to account for historic preservation. Even as land use experts consider the virtues of "smart growth" as opposed to Euclidean, or single-use, zoning, it is unclear at this time how this new zoning form will mesh with existing historic preservation law, or how to balance it with economic development. Concensus is emerging that "smart codes" can be tailored to account for special concerns of height, scale, and mass--an issue of great importance to historic preservation constituencies because of the need to preserve historic context. Some of the criteria used to evaluate context--each highly subjective--include the overall atmosphere, look, and feel of the place. Please let us know if you are aware of successful attempts to incorporate smart growth principles in historic preservation communities. I'll be sharing with you the results of the research we're doing here in upcoming posts. On another, but related, issue, take a look at the report commissioned by the Coastal Conservation League, entitled "A New Way To Work." Although the report doesn't address historic preservation specifically, it provides a clear idea for one way forward to help combat the effects of sprawl. See also a short piece in the Preservation Society of Charleston's quarterly magazine, Preservation Progress from Spring 2009: "The Impact of Interstates on Historic Preservation Law."
Will Cook, Charleston School of Law
The World of No Zoning
This morning my co-editor Matt Festa posted about the fact that Houston doesn't have zoning, and may be the only major city not to have it. However, according to Matt, folks there seem to have found work-arounds to this problem, including private agreements. When I was in law school I wrote a paper about the use of nuisance law as a type of land use regulation, and it seemed like Houston was a great example of that. My impression was that in Houston use of prospective nuisance seemed to get at some of the same problems addressed through zoning by other cities. Of course, I wrote that paper a long time ago, so things may have changed. I'll be curious to see if Matt has a perspective on that.
Here in Georgia the issue of no zoning has some other ramifications. I'm often contacted by rural jurisdictions who have no zoning controls whatsoever, and are being confronted by having nuisance-type uses located in their city or county. Landfills and scrapyards seem to be the two biggest issues. Atlanta has to send its trash somewhere, and nearby jurisdictions with no zoning seem to be prime targets. In fact, a few years ago some commissioners from Taliaferro County went to jail to stop a landfill in their county.
The UGA Land Use Clinic is working with our partner GreenLaw to help some of these counties get appropriate regulation in place. Sometimes it means passing ordinances strictly related to landfills or scrapyards. This is because, in my experience, getting a full scale zoning scheme in place can be heavily contested. I'm often told that Georgia "is a property rights state" and that folks are reluctant to have the government tell them what to do with their land. I don't think this is unique to Georgia, but it's possible it's a more prevalent attitude here. I'll be curious what commenters and my fellow editors have to say about this.
Jamie Baker Roskie
September 30, 2009
Houston, do we have a problem?
Sorry to lead with the corny, overused NASA Apollo 13 reference, but everytime a national media outlet does a story on the City of Houston (or the energy industry, or Houston sports teams, or hurricances, or Whitney Houston), it seems de rigeur to paraphrase the "Houston/problem" line.
South Texas College of Law, where I teach, is located in downtown Houston, Texas. I'm not from Texas originally, but they tell me that's OK as long as I got down here "as quick as I could." (Plus Lyle Lovett says Texas wants you anyway.) I practiced law in Houston before leaving to take a VAP job, and I was very pleased to come back here to join the faculty at STCL. I like Houston-- it's America's fourth-largest city (look out, Chicago!), has great cultural amenities and a decent cost of living, and some believe it is an emerging global city due to its international presence and its important role in the world economy.
What Houston doesn't have, as many of you probably know, is zoning. Most property and land use casebooks and treatises mention that Houston is the nation's only major city without zoning. Houston has over 2 million people (4 million metro), yet it is one of only a tiny handful of cities over 100,000 without a zoning code (Pasadena, TX--a Houston suburb--may the the only other one). A lot of lawyers, planners, architects, and others remember that Houston is the only unzoned major city. The image that this fact leaves with people is that Houston is a development-friendly free-for-all, a sort of land-use Wild West.
I get my chops busted regularly by other property and land use profs when they find out that I actually teach land use law in Houston ("why bother? hahahaha!").
But is this image true? Is Houston really the quintessential unregulated land use city, in accordance with its reputation? Is it truly unregulated, or does it just lack a certain kind of zoning? Do private land use agreements take the place of public laws? And even if it is true that Houston is less regulated, is this a good thing, a bad thing, or something entirely unique? What effect does the land use regime have on development and on property values?
These are some of the questions I will be pursing on this blog and in my scholarly research. I consider Houston to be a great laboratory for examining assumptions and ideas about land use regulation. So I think that it's actually one of the best places to study land use!
- Matt Festa
The Definition of Ridiculous...
Remember when evidence of a ridiculous decision was often followed by "and if you believe that, then I've got some oceanfront property in Arizona to sell you"?
Well, that quip is now so very 1900's. These days, the new motto of futility is apparently "and if you believe that, then I've got a strip mall in SoCal's Inland Empire to sell you."
This article from the interesting Retail Chatr blog explains why:
It should be noted that the property is being offered with an assumable loan with a current balance of approximately $8,665,000. As far as I can tell, this property is not worth the debt which encumbers it. The reality is really worse than the values depicted in the above table. True capitalization rates for this type of asset are likely approaching 9.00% (if not higher) and most investors would not be comfortable with a vacancy factor as low as 10% in this trade area. Additionally, my quick look at the property does not even take into account loss of rents for tenant turnover (which will undoubtedly happen in the not-to-distant future) or expenditures for tenant improvement allowances, leasing commissions and carried expenses.
The sale of this property in its current condition and anywhere near the asking price is a lawsuit waiting to happen (emphasis added)
September 29, 2009
Kent on Impact Fees as Takings
Michael B. Kent (Stetson/John Marshall) has posted Theoretical Tension and Doctrinal Discord: Analyzing Development Impact Fees as Takings, forthcoming in the William & Mary Law Review. Here is the abstract:
One of the lingering questions about the law of regulatory takings concerns the proper scope and application of the Supreme Court’s exactions jurisprudence, known as the Nollan/Dolan test. A recurring issue in the case law, and of particular importance to this article, is the extent to which the Nollan/Dolan framework applies to takings challenges brought against development impact fees.
By and large, the decisions on the issue split over two primary issues. First, there is a debate about whether Nollan/Dolan is limited to physical exactions or whether the test might also apply to monetary exactions as well. Second, there is a difference of opinion over whether Nollan/Dolan applies only to exactions imposed in an ad hoc, adjudicative manner or also to those that are more broadly-applicable and established legislatively. These questions are important, but the primary emphasis on them has diminished other issues that also require attention. Particularly, there is a need to situate impact fees within the law of local government financing – i.e., determining whether they operate as fees or taxes – as that will have some bearing on the proper level of Takings Clause scrutiny to which they should be subjected. Only after wrestling with all of these issues can one move to the ultimate query of what analytical test is most appropriate.
This article attempts to answer these questions, fit impact fees into the Court’s current takings jurisprudence, propose a new rule of decision for impact fee cases, and demonstrate how that rule might apply to basic factual situations. In short, I demonstrate that impact fees are hybrid animals that occupy a space at the theoretical and doctrinal crossroads of takings jurisprudence, property law, and the rules applicable to municipal finance. Second, in light of this hybrid quality, I propose that takings challenges to impact fees be analyzed under a hybrid framework that combines elements of Nollan/Dolan with the more flexible factor-balancing reserved for the majority of takings cases. Finally, I suggest several larger questions implicated by the impact fee problem that continue to require judicial and scholarly attention.
- Matt Festa
Property law careers
Today at my law school the student Real Estate Law Society hosted a panel of property lawyers from the Real Property Division of the Harris County Attorney's Office (that's the county that Houston is in). The two panelists were attorneys that I had previously invited as guest speakers to my Land Use class: Chuck Brack, an eminent domain litigator, and Jimmy Jones, a real estate transactional lawyer. Some observations:
- There is a lot of student interest in property law careers. Even though transactions may be down because of the economy, I think that students sense that people will always be buying, selling, and using land. So students who are interested in real estate or land use practice should pursue it.
- A student asked about one attorney's transition from criminal law practice to real estate. Perhaps counterintuitively to the students, he responded that it wasn't as hard as you might suspect-- once you know how to think about and practice law effectively, learning a new substantive area has some start-up costs but it is doable.
- One theme that seemed to come out to me was how much the transactional and litigation sides of property practice have to cooperate. When I was an associate at a big firm doing general commercial litigation, it seemed that there was a big divide between the litigation and transactional practice groups (we were friendly, we just didn't seem to work together that often!). But the practice that our panelists described seemed to have a lot more interaction. When the County needs land, for example, it tries to purchase it before it goes to eminent domain condemnation, so the attorneys work together. I wonder if land use and real estate law are more likely to involve interaction between different practice areas than other substantive areas of law.
- Interdiscipliarity. As a couple of my co-bloggers have mentioned, land use is a very interdisciplinary field of legal practice. The attorneys on the panel spoke about their regular interaction with appraisers, planners, engineers, politicians, and a host of other types of professionals who are involved in decisions about land and property.
- Matt Festa
A short introduction
I am happy that Land Use Prof is back and I am pleased to be working with a great group of editors. I practiced and taught community development in Baltimore, Maryland for several years before moving to Las Vegas in 2000. As a converted westerner, I plan to focus on land use and community development issues that occur west of the Mississippi. I'll begin with the westward journey of the Brookings Institution.
Brookings, a public policy think tank based in Washington, DC, published "Mountain Megas: America's Newest Metropolitan Places and a Federal Partnership to Help Them Prosper" in 2008. A project of Brookings' Metropolitan Policy Program, Mountain Megas focused on the growth of the southern Intermountain West states (Arizona, Colorado, Nevada, New Mexico, and Utah) and the challenges metropolitan regions within these states face. In September 2009, Brookings continued its study of the Mountain West region with the announcement of a partnership with UNLV. This partnership, the Brookings Mountain West Initiative, will build on the Mountain Megas 2008 report and bring Brookings scholars to UNLV (and the greater Mountain West region) for further research and lectures. For a copy of the Mountain Megas report as well as more information on the Mountain West initiative, visit http://brookingsmtnwest.unlv.edu/.
A Big Hurdle to Future Land Development...
While a variety of government officials and media outlets are suggesting (if not outright proclaiming) the Great Recession to officially be over, there is still a big hurdle facing land development (both residential and commercial): the shadow inventory.
The shadow inventory is the suspected large number of homes that banks have not foreclosed on but are delinquent in their payments. Now, one might wonder why would a bank not foreclose on a property when it has a right to do so.
Well, there are a variety of reasons but two main ones stick out:
1. Because so many banks packaged and sold home loans as securities (the now infamous MBS or Mortgage Backed Security), there are serious questions as to what entity actually maintains the legal right to foreclose. Indeed, several courts are now dismissing foreclosures actions for this very reason.
What ends up happening if these convoluted contracts cannot be sorted out to identify what party/parties actually "own" the right to foreclose? That will be a topic-in-waiting for continued analysis by law review authors well into the future...
2. When a bank begins foreclosure, the loan typically moves from being an asset to a liability. While this statement simplifies the situation a bit, the basic premise is that some banks are now trying to extend the delinquency period in order to avoid having to report bad loans on the liability side of their ledger. The suspicion among several industry observers is that, if all delinquent loans were foreclosed on, several banks would be underwater at Cheney-ian levels (as in "big time").
So, there appears to be a large inventory of home loans that are not being paid by the borrower but not being foreclosed by the lender. The likely expansion of this shadow inventory is suggested by recent news from Fannie Mae of a spike in loans that qualify as being seriously delinquent (read more on the report at the excellent Calculated Risk blog).
Even more concerning is that these loans are not the troubled subprime or OptionARM versions but typically conventional mortgages--you know, the ones that were supposed to be most reliable and safe from failure.
The result of all of this is that we are unlikely to see any significant or sustained increase in land development (especially residential homes) until this shadow inventory is disclosed and drawn down.
Many thanks to Joe Hodnicki for getting us started!
We're busy right now in Charleston, SC, at the Charleston School of Law working with one of the nation's oldest (and latest) preservation law, following adoption in 2008 of a new preservation ordinance. The City of Charleston has also announced the first steps in a public process to update its Comprehensive Plan. Apart from discussing the latest land use issues, one of my goals is to introduce our readers to noted land use groups in the area, one filled with unique cultural and ecological resources. Some of the most innovative include the Coastal Conservation League (www.coastalconservationleague.org), the Lowcountry Open Land Trust (www.lolt.org), and the Southern Environmental Law Center (www.southernenvironment.org). Preservation groups are increasingly active in helping shape land use law here, too: The National Trust for Historic Preservation (www.nationaltrust.org), the Preservation Society of Charleston (www.preservationsociety.org), and the Historic Charleston Foundation (www.historiccharleston.org), are all making significant contributions to the land use debate, including its content and how it's applied. And last, but not least, the Lowcountry Housing Trust (www.lowcountryhousingtrust.org) is a great resource on issues related to affordable housing. Please stay tuned for more to come. My able research assistant, William Goodman, and I are looking forward to working with all of you. Please contact me if you have questions or ideas to share.
September 28, 2009
Project Development Class Simulation...
Well, I suppose its fitting that my first Land Use Prof blog post will occur just minutes before the Land Planning and Development course that I teach here at Faulkner.
This semester, I've eliminated the textbooks and hornbooks and replaced them with a semester long simulated development project. For the project, I selected a real parcel of land in the Montgomery city limits and will have the students "develop" it from start to end (in a legal context).
I'm including a series of site visits to the parcel as well as visits to the register of deeds and planning department. I've also invited a series of non-lawyers (engineers, architects, developers, real estate agents, etc.) to participate in certain classes since land development is, by its very nature, quite interdisciplinary.
The students will, among other tasks, research deeds, draft letters of intent/real estate contracts, prepare federal, state, and local regulatory submissions, and engage in mock hearings before local land use agencies.
We're about a month or so into the course and things are going very smoothly (knock on YellaWood (TM)).
Has anyone else engaged in this type of simulated exercise while teaching a land use-type course?
If so, we'd love to hear about the good and the bad that you encountered. Any lessons learned?
Signing on to the Blog
I'm Jamie Baker Roskie and I'm one of the new co-editors of the Blog. As Matt Festa has already mentioned, I'm the managing attorney of the Land Use Clinic at the University of Georgia. The Clinic started in 2002, and its mission is to provide innovative legal tools and strategies to help conserve land, protect water quality, and promote the creation of communities that are responsive to human and environmental needs. Our clients are primarily local governments, community groups, and land trusts. We also work with state agencies, regional planning bodies, local government associations and affordable housing advocates.
I'll be posting about the Clinic's projects and other topics of interest. I also work with a great interdisciplinary team here at UGA, including faculty in Environmental Design, Geography, and Public Service. I hope to have some of my colleagues as guest bloggers in the future.
In the meantime, if you're interested in learning more about the Clinic, visit our website.
September 27, 2009
Welcome Back to the Land Use Prof Blog!
The Land Use Prof Blog is Back!
We have a new team of editors on board. My co-editors can introduce themselves in more detail, and over on the left you can find links to our faculty bio pages and publications, but here are the basics on us:
Prof. Will Cook teaches at Charleston School of Law. He teaches courses in property, appellate practice, constitutional law, and historic preservation. His research focuses on historic preservation (a great topic in Charleston!).
Prof. Chad Emerson teaches at Faulkner University's Jones School of Law. He teaches and writes in the area of property, land use planning and development, and intellectual property. He has particular expertise and experience in the areas of sprawl and form-based codes such as the SmartCode.
I am at South Texas College of Law (Matthew Festa). I teach property, land use, state & local government, and wills, trusts, & estates. My research focuses on property rights, land use regulation, and legal history.
Prof. Ngai Pindell is on the faculty at UNLV's Boyd School of Law. He teaches property, land use, local government, and wills, trusts, & estates. He has academic expertise and a number of publications in the area of community economic development.
Prof. Jamie Baker Roskie is at the University of Georgia School of Law, where she is the Managing Attorney of the Land Use Clinic. Her research and projects involve a wide array of land use issues. The clinic does great work advising governments and on other real world projects.
I'm very excited about blogging with this team. We are from different parts of the country (geography is always important in land use issues!) and we have research interests over a wide spectrum of land use topics. We also thank Paul Boudreaux for starting this blog. We are mostly new to blogging, but we are committed to making this blog a daily resource for scholars, practitioners, students, and anyone who is interested in the law of land use.
Please let us know about your experiences and ideas in the exciting, interdisciplinary field that is land use law. We hope you enjoy the Land Use Prof Blog!
-- Matt Festa