Friday, October 16, 2009
From the good folks at EPA:
Conference registration is now open for the 9th Annual New Partners for
Smart Growth Conference, which will be held on February 4-6, 2010 in
The multi-disciplinary program will feature cutting-edge policies and
programs, projects, as well as strategies and implementation tools that
address the challenges of implementing smart growth development. Session
topics include climate change, equitable development, environmental
justice, public health, transportation, infrastructure, green jobs and
the economy, rural town planning, financing smart growth development,
open space preservation, retrofitting suburbs, affordable housing,
schools, critical water issues, green building, and much, much more.
Several sessions will be approved for AICP continuing education credits.
The conference agenda also includes special workshops, including a
one-day workshop on February 3, 2010 entitled "Working Together for
Equitable Development: Voices and Lessons from Environmental Justice and
Visit www.NewPartners.org for detailed information on the conference
program, tours of model projects, special workshops, invited speakers,
hotel information, and to REGISTER NOW!
I'm fascinated about the track on EJ and Smart Growth - it's an encouraging sign!
Christopher L. Peterson (Utah) has posted Foreclosure, Subprime Mortgage Lending, and the Mortgage Electronic Registration System. The abstract:
At the roots of the worst recession since the Great Depression were unaffordable home mortgages packaged into securities, sold to investors, and used as capital assets by financial institutions. The process of securitization, as well as financial institution over-leveraging associated with it, has been well documented and explored. However, there is one company that was a party to more questionable loans and foreclosures than any other and yet has received virtually no attention in the academic literature. Mortgage Electronic Registration Systems, Inc., commonly referred to as “MERS,” is the recorded owner of over half of the nation’s residential mortgages. MERS operates a computer database designed to track servicing and ownership rights of mortgage loans anywhere in the United States. But, it also acts as a proxy for the real parties in interest in county land title records. Most importantly, MERS is also filing foreclosure lawsuits on behalf of financiers against hundreds of thousands of American families. This Article explores the legal and public policy foundations of this odd, but extremely powerful, company that is so attached to America’s financial destiny. It begins with a brief explanation of the origins of the county real property recording systems and the law governing real property liens. Then, it explains how MERS works, why mortgage bankers created the company, and what MERS has done to transform the underlying assumptions of state real property recording law. Next, it explores controversial doctrinal issues confronting MERS and the companies that have relied on it, including (1) whether MERS actually has standing to bring foreclosure actions; (2) whether MERS should be considered a debt collector under the federal Fair Debt Collection Practices Act; and (3) whether loans recorded in MERS’ name should have priority in various collateral competitions under state law and the federal bankruptcy code. The article culminates in a discussion of MERS’ culpability in fostering the mortgage foreclosure crisis and what the long term effects of privatized land title records will have on our public information infrastructure. The Article concludes by considering whether the mortgage banking industry, in creating and embracing MERS, has subverted the democratic governance of the nation’s real property recording system.
This morning I found an e-mail in my inbox from Eric Wagoner, director of Athens Locally Grown. Locally Grown is a twist on food cooperatives - rather than receiving a box each week, we order just what we want from the website and pick it up on Thursday evenings in a central locale. Locally Grown has had some issues with state regulators - for example, the egg producers were impacted earlier this year by a more stringent reading by state officials of how one must store and refrigerate eggs. It made it much harder for us to get eggs for awhile.
One of the products available through Locally Grown is raw milk. Many people dislike pasteurized milk and would rather get it straight from the cow. However, apparently for health reasons, it is impossible to buy raw milk in Georgia. Not in South Carolina, however, which is a short drive away. Eric has been driving up to South Carolina each week to get raw milk to fulfill website orders.
Yesterday at the Locally Grown pickup inspectors from the State Department of Agriculture came and "seized" the entire load of raw milk. They are coming to Eric's house Monday morning to watch him destroy the milk. (They couldn't seize it at the time because they came in a sedan, apparently.) Read more about the story here.
While I personally feel quite cautious about the issue of foodborne pathogens and so I prefer my milk pasteurized, the milk seizure does seem a bit heavy handed. (See a counterpoint to the raw milk foodborne pathogens article here.) Watch this space for an update.
Jamie Baker Roskie
P.S. A follow up to my post earlier in the week about E. Coli and beef - the beef industry is actually arguing that cases of E. Coli have declined in recent years. See a fact sheet from the beef board here. However, I think my overall point about ensuring the protection of agricultural land remains valid. If we want to support local farming we need to consider how local, state and federal regulations help or hurt that policy goal.
UPDATE: This story has been picked up by the local daily, the Athens Banner-Herald. A great quote from Eric - "They are going to meet me at my house Monday morning and watch me pour it all out," Wagoner said. "It's like the 1930s and bootlegging whiskey or something."
SECOND UPDATE: The milk was indeed destroyed on Monday the 19th, and this was filmed for an upcoming documentary on farm regulation. Footage is also available on YouTube. Apparently the state inspectors are relying on a federal regulation against the sale or distribution of raw milk. The Locally Grown folks are considering litigation. My take on all this is that one solution to both food safety and farmland conservation issues is to create and maintain relationships with local farmers. Regulation that gets in the way of maintenance of those relationships, even in the name of food safety, could ultimately be harmful.
Continuing on with my re-read of Jane Jacobs, The Death and Life of Great American Cities (1961), she describes in Chapter 12 "some myths about diversity" that seem relevant in Charleston, SC, as the City moves forward with revising its comprehensive plan. Jacobs writes:
"'Mixed uses look ugly. They cause traffic congestion. They invite ruinous issues.' These are some of the bugbears that cause cities to combat diversity. These beliefs help shape city zoning regulations. They have helped rationalize city rebuilding into the sterile, regimented, empty thing that it is. They stand in the way of planning that could deliberately encourage spontaneous diversity by providing the conditions necessary to its growth. Intricate minglings of different uses in cities are not a form of chaos. On the contrary, they represent a complex and highly developed form of order. . . . Flourishing city diversity, of the kind that is catalyzed by the combination of mixed primary uses, frequent streets, mixture of building ages and overheads, and dense concentration of users, does not carry with it the disadvantages of diversity conventionally assumed by planning pseudoscience."
Fortunately, many city planners have moved away from planning preferences of the 1960s, but resistance to diversity remains, often by residents of neighborhoods who have grown accustomed to single use zoning. Historic neighborhoods often feel this resistance acutely. Even though current zoning often allows only single families to live in many of these neighborhoods, historically these areas enjoyed hundreds of different uses. Thus, many historic neighborhoods, while aesthetically pleasing, represent a history that is incomplete. Diversity is mainly an oddity.
In Charleston right now, historic neighborhood groups have started to raise concerns about form-based developments that the City is encouraging to improve diversity. The concerns relate chiefly to increased density and problems related to parking that increased density in areas immediately adjacent to historic neighborhoods will inevitably bring. Preservation groups, while supportive of the philosophy behind form-based codes, worry that the approval by zoning boards of building forms will discount the role of boards of architectural review, the primary defense against inappropriate new construction in terms of its height, scale, mass, and overall aesthetics. This concern has merit, unless stakeholders in the preservation community, along with the board of architectural review, have a place at the table in designing the forms that zoning authorities are likely to approve. Two meetings take place next week in Charleston on related issues. How the City will ultimately balance the important goal of diversity against historic preservation policy remains unclear. I'll let you know how the political process plays out.
Will Cook, Charleston School of Law
The New York Times published several articles on environmentalism in the suburbs, seemingly on the same day last week but on different pages of different sections in different editions (NY, NJ, CT, LI) of the paper. (I don't get the dead-tree version so correct me if I'm wrong about this.) An interesting batch:
Each article discusses a different issue in a different locality, but a common theme that I picked up is just how deeply environmental consciousness has affected the suburbs. Several of these local governments have gone as far as to change their zoning codes or offer incentives to promote green building, conservation, and carbon output reduction. The suburbs get the blame for causing sprawl but the people in the suburbs may be reaching a threshold point of incorporating environmentalism into local policy.
UPDATE: Mireya Navarro, the New York Times environmental writer who authored three of the six articles linked above, emails to confirm that the stories all ran in the Sunday, Oct. 11 metro section, which (as Ms. Navarro put it) is "zoned"(!) for the different suburban areas (NJ, LI, CT, Westchester, etc.). So if you only got one of these stories in your Sunday NY Times, you can read them all here on the Land Use Prof Blog!
In Manchester, Vermont, an 18-year-old high school student has been appointed to the planning commission:
MANCHESTER — Effective Oct. 22, Burr and Burton Academy (BBA) student Megan LaValley will make history by becoming the youngest person at the age of 18 to ever be appointed as a full voting member of the planning commission.
The idea to appoint LaValley — who has served as a student member of the board for the past two years — came up both during a conversation with the commission's chair, John Ringwood, when there was a vacancy on the board and informally at the board level, according to planning director and zoning administrator Lee Krohn. The board was supportive of the idea and they then were faced with making the decision of either advertising for the position and going through the process of interviewing candidates or asking the Select Board to appoint her so they could accept her back as a member of the board — something that pleased LaValley who said it was depressing to see her student term come to an end.
It's kind of interesting that the town had the choice of either advertising the position or making a direct appointment. Anyway, Manchester VT is a popular tourist town for its historic New England charm and architecture, its scenery and proximity to the mountains (at the base of Mount Equinox), and its modern shopping venues . . . with that diversity of uses and priorities, the planning commission must play an important role. Ms. LaValley was a participant in a Manchester Youth Commission project to allow students to participate as (non-voting) members of various government boards; she obviously impressed her colleagues enough for them to make her a full voting member of the planning commission. Congratulations to her, and kudos to Manchester, VT, for encouraging its youth to participate in government generally and land use planning in particular.
Thursday, October 15, 2009
This Boston Herald article demonstrates how the housing mess continues to result in unintended consequences:
A real estate judge is refusing to reverse a landmark ruling that opens the door to voiding tens of thousands of Bay State foreclosures dating as far back as 1989. “The foreclosure sales (in question are) invalid because they failed to meet the requirements of (Massachusetts law),” Land Court Judge Keith Long wrote yesterday in reaffirming a decision he originally reached in March. Long denied a request from Wells Fargo and U.S. Bank to reinstate two Springfield foreclosures he invalidated in March because of flawed paperwork.
What is the specific "flaw" in the paperwork, you ask?
For many years, the bank issuing a mortgage would hold that mortgage and gladly accept the interest rate they were receiving as their return on investment. However, as the 80s turned into the 90s, more and more of these loans were packaged together and then sold as a security to investors. This new stream of incoming revenue would then allow the mortgage bank to write more mortgages and, hopefully for them, make more money.
The idea of packaging a collateralized asset into a security is really not that novel anymore. It happens with everything from car loans to student loans to, in some cases, even non-collateralized assets like credit card receivables. The problem that the Massachusetts judge is pointing out is that, during these (sometimes multiple) sales of a single mortgage, the law requires very specific documentation to be completed in order to establish a paper trail that, in turn, promotes the efficient and predictable transfer of property.
Now that foreclosures are rising to historically high levels, the issue is taking front and center under the glare of a judicial spotlight. And, under that glare, its wilting because that mandated paper trail was not completed.
Worse still, the article points out an even more interesting set of legal problems than just a bank's inability to foreclose:
Market watchers add that the judge’s ruling affects far more than just foreclosed homeowners. For instance, any consumer who owns a house foreclosed on in the past two decades must now worry that a former owner will sue to reclaim the property. Such homeowners could also find it impossible to sell or refinance because of “clouded” titles. In fact, some consumers who’ve tried to buy foreclosed homes in recent months haven’t been able to get mortgages or title insurance because of Long’s initial decision. Bank of America and other firms have even pulled some foreclosed homes off of the resale market.
As you can see, the derivative effects of this mess could cause some serious title problems for people who have been in a house, theoritically at least, for up to 20 years. Imagine receiving this type of legal notice from someone whose foreclosed house you bought in 1990 thinking you had clear title to the property.
Another issue that the article does not discuss is what about rezonings that have occurred for the property during this time. It's not uncommon in some areas for former homes to be rezoned into business uses. What's the remedy if the originally foreclosed homeowner seeks to return to the improperly foreclosed property but can no longer live there because its been rezoned to a category that does not permit residential use?
This is just one scenario that could really gum up the title and plat process for a huge backlog of current (or, for that matter, former) residential properties. One almost gets the sense that some type of monetary relief will need to be required in place of equitable permission to return home. The disruption that the latter could cause would be overwhelming.
Wednesday, October 14, 2009
In the continuing debate over What Caused the Mortgage Crisis (was it planners?), many have blamed the 1977 Community Reinvestment Act. Don't expect the debate to die down anytime soon. Here is a new article from Edward Pinto (a former chief credit officer for Fannie Mae) in City Journal entitled "Yes, the CRA is Toxic; So why is Congress Thinking About Expanding It?" Excerpts:
The question of how well CRA loans have performed is of vital importance because of the trillions of dollars in such lending. . . .
Though the feds, again, haven’t collected figures for CRA loans’ performance as a whole, we do have statistics from a few lenders that are troubling indeed. . . .
Taxpayers deserve to know why not one regulator had the common sense to track the performance of CRA loans. . . . Incredibly, the House Financial Services Committee is considering legislation that would broaden the scope of the CRA.
Accoring to Pinto, HR 1479, which I'm not all that familiar with myself (feel free to post a comment if you are), will supposedly expand the CRA from banks to subsidiaries, credit unions, and other financial institutions. I'm not an expert on the CRA nor do I have The Answer to the question of what caused the mortgage crisis, but if Pinto is right in the excerpts I've quoted above, it's unfortunate if no one has been able to collect the nationwide data to make these analyses.
For a counterpoint to Pinto's "toxic" assessment, see Raymond Brescia's (Albany) article Part of the Disease or Part of the Cure: The Financial Crisis and the Community Reinvestment Act, forthcoming in the South Carolina Law Review. From the abstract:
The argument that the CRA is to blame for the financial crisis is hard to reconcile under any reading of the statute’s terms and after any assessment of the CRA’s true reach. As this article explains, the CRA was not too strong, but rather too weak. Designed to fight the last war, the CRA became the financial equivalent of the Maginot Line: easily circumvented, lightly defended, and quickly overrun.
An appreciation for the true causes of the financial crisis, together with the fact that the federal government has expended billions to bail out the financial industry, offer strong justifications for expanding the reach of the CRA to cover all financial institutions, not just those that take deposits.
Let the debate continue (hopefully with more data).
- Matt Festa
Harvard economist Edward Glaeser (who has written a lot of interesting papers on the economics of land use regulation) wrote an op-ed in the Boston Globe last week called "Rolling the Dice on Wasteful Home Subsidies." He argues that the current (and longstanding) federal policy of subsidizing home ownership, such as the home mortgage interest deduction, has encouraged buyers to make overleveraged bets, incentivzed overbuilding, and leaves Americans too vulnerable to swings in the housing market--swings also caused by the very policies that in turn inflate prices. The intro:
FEDERAL POLICIES bear some of the blame for the housing bust because they encourage leveraged bets on housing. Yet instead of reconsidering the public incentives that encourage real estate gambling, the federal government seems ready to double down, with another $35 billion in Treasury support for state agencies that subsidize borrowing, and the reauthorization of an $8,000 home buyer’s tax credit. The ship of state would do better to turn around and reduce borrowing subsidies, by lowering the million-dollar cap on the home mortgage interest deduction.
Presidents from FDR to George W. Bush subsidized real estate borrowing through government-sponsored agencies that insured mortgages, like
Fannie Mae and Freddie Mac, and through the home mortgage interest deduction. These policies encouraged homeownership, but they also encouraged people to buy bigger homes and to finance those homes with high loan-to-value mortgages.
Glaeser also notes that subsidizing spending on housing encourages people to build and buy larger homes, which causes more environmental damage and is also "anti-urban," encouraging an "exodus from the nation's cities." He suggests reducing the upper limit of the mortgage deduction from $1,000,000 to under $500,000, which would "reduce the incentive to overborrow and overbuild." Read the whole thing.
- Matt Festa
Ding, dong. Last week the Texas legislature killed (or "stuck a fork in") the Trans-Texas Corridor. The Corridor was supported by Governor Rick Perry as a visionary network of high-volume superhighways to crisscross the state and link it to transportation networks in the surrounding states and Mexico. It was conceived as being mostly for trucks and for long-distance car traffic across the state; the roads would mostly bypass the major cities. It was to be a 4,000+ mile network (Texas is big, but that's still a lot of road) of toll roads and freight and passenger rail, built and operated through public-private partnerships. An article about the final nail, er, fork, is here.
AUSTIN — State transportation officials, who earlier this year declared the Trans-Texas Corridor dead at least in name, plan to stick a fork in the lingering Interstate 35 section of the project today. . . .
Perry had championed the Trans-Texas Corridor, an ambitious highway network proposal that included public-private partnerships and tollways.
An outcry from landowners and others, however, prompted the transportation agency this year to say it would scale back the network concept and drop the name.
The Corridor met widespread opposition when it was announced. Some of this opposition was irrational--that it was a secret "NAFTA Superhighway" that would lead to the new world order, etc. But the project was enormous in scope: an opposition group estimated that the total cost would be as much as $31 million per mile, and $125 billion overall. [Update: the Houston Chronicle states the number for the propsal as $175 billion]. What was even more disturbing to some people was the massive amount of land it would consume, particularly in the rural areas where the Corridor was to be built (the Texas Farm Bureau has even endorsed Gov. Perry's primary challenger, Sen. Kay Bailey Hutchison, largely because of its opposition to Perry's proposed Corridor).
This map shows the original master concept of superhighways crisscrossing all of the state. The corridors were projected to be on the scale of 1,200 feet wide--that is a lot of land. But what alarmed and energized opponents even more was the fact that the state in its initial plans (understandably) didn't know precisely where the actual roads and rails would be built, but they released maps such as this one (on keeptexasmoving.com by the state Department of Transportation) which show big, fat, snakes of land perhaps 5 or more miles wide as "recommended preferred corridors." Everyone within those potential corridors complained, with some justification, that the proposed corridor and fear of eminent domain over a wide area was a Sword of Damocles that may have lowered their market values and made it more difficult to sell, regardless of where within that band the potential corridor might actually have been ultimately built.
In the end the Trans-Texas Corridor was opposed from both flanks, by those concerned with property right and by those who oppose massive highway construction and favor alternatives like high-speed rail within "megaregions."
Thanks to Travis Crawford for the pointers.
- Matt Festa
Thanks to Alan for his guest post on Miami 21. I've been following the process closely as several colleagues from the New Urban world are working on the project.
In addition to the information from the earlier post, here is a link to:
1. The actual Miami 21 Code text scheduled for a second reading this month
2. A link to the Miami 21 Zoning Map (they call it an "atlas) that accompanies the text
While I have not been privy to the daily work on this exciting project, I do know that it has been filled with enough political intrigue and machinations to give Tom Wolfe material for a whole series of books. Yet, through the leadership of the Mayor's office and the lead consulting firm of DPZ, a successful result is tantalizingly close.
If the new code does pass, it will instantly become the most extensive transect-based/form-based code approved by any municipality in the U.S. As my current work-in-progress focuses on the transect as a legal and regulatory tool, I'm hoping that the imminent success of Miami 21 provides momentum for transect-based coding throughout the country.
Tuesday, October 13, 2009
My friend Christine McCauley, executive director of Buckhead Heritage, just told me about a very interesting historic preservation case. It seems that a developer wants to move a black graveyard in Buckhead, which is now an very upscale area of Atlanta. The graveyard is there because in the early part of the last century there was a thriving black neighborhood in this area, before the residents were displaced for a park. Now a developer wants to move the graves and a descendant of family members buried there is suing to stop it. Read more here and/or follow events on the BH website. My headline from this post is my favorite quote from the article, from a former mayor of Atlanta.
Alan Krischer sends us the following update from Miami:
It's expected to come before the City Commission relatively soon, since outgoing Mayor Manny Diaz wants to have it adopted before his term ends with this November's elections; I believe it will be on their October 22, 2009 meeting, though the agenda is not yet available.
Also, next year, Florida's citizens will vote on a state constitutional amendment to require referenda in land use decisions state-wide. A group of citizens successfully garnered the necessary signatures to put on the ballot a proposal to require that all amendments to local government comprehensive plans be effective only upon a vote of the electorate in that jurisdiction. Under Florida's growth management regulations, all local governments are required to adopt these comprehensive plans, and all zoning and permitting decisions are required to be consistent with them. The proposed amendment, the "Florida Hometown Democracy Amendment" or "Amendment 4," would therefore have the effect of requiring a wide range of land use decisions, both major and minor, to go to a vote. It's another example of efforts to use referenda and other forms of direct democracy in land use decisions, which you've touched on in the blog before - but it's one of the most expansive efforts that I'm aware of.
Also, for those of you who have posted comments, we've got the comment-approval system sorted out now. Please comment away! We appreciate your feedback and additional information on our posts.
With the housing market still pretty moribund, both the federal and state governments are trying out new regulatory equivalents of an AED to get a pulse back for the industry. A few recently announced include this one in California that the LA Times recently blogged about:
In a flurry of end-of-session bill signings, Gov. Arnold Schwarzenegger approved new laws that, among other things, tighten restrictions on mortgage brokers so they can't "steer" borrowers to riskier, higher-interest loans when the borrowers could afford and qualify for more economical ones. That law, AB 260 by Assemblyman Ted Lieu (D-Torrance) also bans negative-amortization loans in which the principal keeps rising even though monthly payments are made. The measure caps prepayment penalties to 2% of the principal balance and allows state regulators to enforce federal lending laws.
By and large, these are pretty good ideas in that they primarily focus on reducing future unsustainable mortgages. In other words, they have somewhat proactive bent (a good thing since California has become the Atlantis of housing markets).
On the other hand, the federal government seems determined to keep announcing new loan modification programs--apparently hoping that something might eventually pan out. The Housing Wire has this story on the latest one:
HAFA already holds the support of Fannie, according to a VP at the agency, Eric Schuppenhauer, who believes the new program allows borrowers in imminent default to “make a graceful exit” from their home. HAFA will keep the stigma associated with foreclosure away from the borrowers, he added, and help keep communities intact.
A graceful exit?
What do we have here...regulated empathy?
Something about this program just smacks of a well-intentioned but misplaced regulatory focus. Maybe (hopefully!) there will be more substance to this program as details are released.
In any event, with the rate of re-defaults on modified loans continuing to be high, one might wonder if simply re-jiggering loans in the short term (such as capitalizing late payments or extending the loan's length) when those same loans remain fundamentally unaffordable to the borrower in the long term really isn't just forcing good money down the rabbit hole after bad.
The key seems to be that we have to recalibrate the homeownership/rental equation to get it better in line with historical norms. That is, a buyer saves enough money (10% to 20%) for a downpayment that builds some of your equity into the investment. Until you can do that, you rent while saving up the downpayment (or, at the very least, you buy a much less expensive house for the first home purchase).
UPDATE: I just noticed that Mish Shedlock has also posted some interesting thoughts on this topic in his always useful blog:
Here's the deal. These modifications schemes are attempting to make the payments affordable whereas the real problem is the huge positive incentive for those underwater on their homes to simply walk away. Restructuring payments cannot possibly fix a problem of debt levels being too high. Nor can restructuring payments help anyone out of a job, unable to afford any payment. Those on the upper end of the economic scale are more apt to understand the situation than those on the lower end of the economic scale. High end foreclosures can be expected to increase for this reason, even for those with a good paying job. At the low end of the economic scale, only those with a job can benefit. Yet, even then the odds are most program participants would be better off walking away than becoming debt slaves to an overvalued residence. Some will eventually figure this out. Others will find that even a lower rate is not enough to keep them in their house. Still other will lose their job in the next 1-2 years and be forced out of their homes.
We've received several queries recently in regards to comprehensive planning, and different cities' efforts at updating their comprehensive plans. For those not familiar with her work, Jane Jacobs' books are an excellent resource. One that I'm reading again right now is The Death and Life of Great American Cities, published originally in 1961, and republished by Vintage Books in 1992. Jacobs' observations are timely and prescient. The book emphasizes the need for human scale, sidewalks, parks, and coherent neighborhoods, coupled with diversity of uses, small blocks, "aged" buildings, and density. Concerns about automobiles and traffic and their effect on cities seem eerily familiar. The author is ultimately hopeful. Cities can be rebuilt by changing the way we view them. Jacobs' introduction opens with a quotation from Oliver Wendell Holmes, Jr.--a good reminder about why sound land use and strong, vibrant cities matter:
"Until lately the best thing that I was able to think of in favor of civilization, apart from blind acceptance of the order of the universe, was that it made possible the artist, the poet, the philosopher, and the man of scientce. But I think that it is not the greatest thing. Now I believe that the greatest thing is a matter that comes directly home to us all. When it is said that we are too much occupied with the means of living to live, I answer that the chief worth of civilization is just that it makes the means of living more complex; that it calls for great and combined intellectual efforts, instead of simple, uncoordinated ones, in order that the crowd may be fed and clothed and housed and moved from place to place. Because more complex and intense intellectual efforts mean a fuller and richer life. They mean more life. Life is an end in itself, and the only question as to whether it is worth living is whether you have enough of it."
Will Cook, Charleston School of Law
Many of you have already read the recent compelling piece in The New York Times about beef safety. The article chronicles the devastating story of a young dance instructor paralyzed by a virulent strain of E. Coli in a patty of ground beef packaged by Cargill.
Interesting, but why am I posting about this on the Land Use Prof blog? It's because of a follow up piece on Grist about why ground meat is so prevalently infected with this strain of bacteria. The author's conclusion is that in industrial food production, cows are consistently fed corn, which they cannot easily digest. His advice, therefore, is to eat locally-grown, grass fed beef. And there's your land use issue - how can we ensure there is enough agricultural land capable of sustaining enough grass-fed beef production to satisfy local demand? I know that here in Athens our organic farmers and local meat suppliers struggle with capacity issues. And even in this recession, productive agricultural land continues to be eaten up by sprawl. Organizations like the American Farmland Trust are working hard to reverse that trend, by encouraging agricultural land conservation and changes in federal farmland policy. What is your locality doing on this issue?
Jamie Baker Roskie
Monday, October 12, 2009
Tom Tyler (NYU, psychology) and David L. Markell (Florida State, law) have posted The Public Regulation of Land Use Decisions: Criteria for Evaluating Alternative Procedures, forthcoming in the Journal of Empirical Legal Studies. Here is the abstract:
In this article we argue for an empirical governance approach - the use of public evaluations - as one basis for deciding whether and how to regulate decisions with public consequences. We propose a conceptual framework for evaluating public acceptability, notably that public judgments should be evaluated against five criteria: overall acceptability ex ante; robustness; consensus; procedurality; and their ranking on non-fairness issues such as cost and convenience. In the article we also move beyond theory to implementation by modeling our framework to evaluate public judgments concerning acceptability in the contentious area of land use decisions in Florida.
Data from a survey of Florida stakeholders offers several interesting findings about five procedures currently in use to make land use decisions: private negotiation; public hearings conducted by elected local officials; administrative law hearings; judicial adjudication; and public referendums. Based upon the above five criteria, judicial adjudication is evaluated as the most desirable of these procedures through which to govern land use decisions. Respondents view judicial and administrative adjudication differently, a finding that raises important questions concerning the appropriate roles for, and structure of, administrative and judicial adjudication. Referendums receive mixed reviews, while public hearings, the most common form of decision-making procedure in the land use arena, are the least acceptable. In short, as the paper details, our findings in the specific context of land use decision-making procedures raise interesting and important questions about the most appropriate procedure through which decisions should be made in this arena and whether there are ways to revise procedures to improve their acceptability to the public. Further, the findings raise important questions across policy arenas about the appropriate use and structure of different types of decision making processes.
Our more general objective is to offer a framework for using empirical governance to consider and, ultimately, enhance the public acceptability of government decision-making processes. Our basic premise in this project is that, to further good governance, government should make decisions using procedures in which the public has confidence and that will increase public acceptance of such decisions.
- Matt Festa
Denver is trying to adopt a new zoning code. The bill appears on track to be voted on in city council early next year. It would replace the existing zoning code entirely. Some excerpts from the Denver Business Journal's recent article on the subject:
The Denver City Council took a big step toward establishing a new zoning code for the city at Monday night's council meeting by unanimously passing a schedule for implementing the code. . . .
Peter Park, manager of the city's Community Planning & Development department, pointed out at the council meeting that his department had public meetings last summer about the new code in all the city's council districts, and has met over the last several years with real estate professionals such as architects and developers. The department is overseeing the writing and implementation of the new code. . . .
The updated, context- and form-based code, which is still in draft form, is being designed to support economic growth, a sustainable environment, housing diversity and strong neighborhoods, according to the city. . . .
The proposed new zoning code would replace Denver's existing code. The current code was adopted in 1956, but since then has become a patchwork of incongruous zoning regulations and outdated, according to real estate experts and the city.
The draft of the proposed new zoning code is here: http://www.newcodedenver.org/. I'm not sure exactly what all of the details are and how they differ from the exisiting code, other than the assertion that it is a form-based code, so please comment if you are more familiar with the Denver process. It appears to have grown out of the 2002 Blueprint Denver comprehensive land use and transportation plan.
It is a significant undertaking to adopt an entire new zoning code; one reason many zoning codes get outdated and can't respond to market or public demand for things like new urbanism is that it is much, much harder to rewrite the entire code (and to get it passed) than it is to simply adjust the laws incrementally and to make exception after exception. But over time that means the code will become crowded with incongruities and will continue to enforce an outdated view of the city's preferences. My first visit to Denver was at last spring's Law and Society meeting and I found it to be a delightfully walkable city (the downtown, at least, centered around the 16th Street pedestrian mall). It will be interesting to see how the new zoning code works out.
- Matt Festa
As someone who spends a great deal of time researching, writing, and speaking on the intersection between smart growth and the legal/regulatory world, I'm frequently asked for recommendations on books regarding that topic.
I generally start with these three titles:
1. New Urbanism: Comprehensive Report & Best Practices Guide by the publishers of the New Urban News
2. A Legal Guide to Urban and Sustainable Development by various authors (I have one part of one chapter--attorneys Dan Slone and Doris Goldstein wrote much of the book)
3. The Post Automobile City: Legal Mechanisms to Establish the Pedestrian-Friendly City by Southwestern Law School prof James Kushner
All three books continue the inter-disciplinary theme that I believe is so crucial to successful land use and development law efforts. They have salient and useful legal points/strategies but are written in such a way that a non-lawyer can gain a great deal from them, too.
They're great options for reserve reading for any land use-related course.
Sunday, October 11, 2009
Since it's still the weekend here is another light post (after last weekend's End of the Universe). Travel & Leisure Magazine has come out with a list of America's favorite cities, ranking the 30 biggest cities in a wide variety of categories.
I know that there are mixed feelings about these type of magazine rankings. For empirical accuracy, they probably lie somewhere between U.S. News and the college football BCS rankings. At Prawfsblawg David Schleichler has laid down the gauntlet generally about "best places to live" rankings. It's an interesting debate, but I still happen to think that they are great fun.
Travel & Leisure gives you the chance to check out the rankings of the top 30 citites in a broad array of categories, and also to compare city to city. I am most interested in the categories that bear directly on land use issues and also certain "creative class" categories having to do with the workforce, cultural opportunities, and so on. In the spirit of friendly rivalry I have compared my co-bloggers' cities across some of these categories (Will = Charleston, Ngai = Las Vegas, me = Houston, Jamie gets Atlanta, and Chad gets sent up to Nashville, because Montgomery is not on the list but Chad has lived in the Volunteer State). Here are some results:
Atlanta: attractive (21); friendly (20); intelligent (23); diverse (19); museums (18); restaurants (12); neighborhoods (23); public transportation & pedestrian friendliness (23); public parks (24); environmental friendliness (24).
Charleston: attractive (3); friendly (3); intelligent (10); diverse (24); museums (15); historical sites (4); restaurants (26); neighborhoods (2); public parks (11); public transportation & pedestrian friendliness (8); environmental friendliness (10).
Houston: attractive (8); intelligent (13); friendly (7); diverse (4); museums (8); restaurants (6); neighborhoods (16); parks (20); public transportation & pedestrian friendliness (27); environnmental friendliness (19).
Las Vegas: attractive (19); friendly (24); intelligent (30); diverse (21); museums (30); restaurants (4); neighborhoods (30); parks (30); people-watching (3); environnmental friendliness (27).
Nashville: attractive (9); friendly (#1); intelligent (15); diverse (29); museums (21); restaurants (20); neighborhoods (11); public transportation & pedestrian-friendliness (19); public parks (13); environnmental friendliness (13).
What's the point of all this? Just that it's fun to compare, regardless of whether we accept the assertions of a travel magazine as empirically sound at an academic level. I do think there are some significant differences between new cities and older cities, especially if you look at the results for places like New York, Chicago, Boston, San Fransisco. But mostly it's just an entertaining weekend land use distraction.
- Matt Festa
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- Stephen Miller on New Arkansas law requires local governments to pay for a "takings" where certain "regulatory programs" reduce FMV by at least 20 percent
- Josh Galperin on New Arkansas law requires local governments to pay for a "takings" where certain "regulatory programs" reduce FMV by at least 20 percent
- Jesse Richardson on New Arkansas law requires local governments to pay for a "takings" where certain "regulatory programs" reduce FMV by at least 20 percent
- Jamie Baker Roskie on Uber Goes to the State House Seeking Preemption of Local Government Control
- Stephen R. Miller on Why are building inspectors so often on the take?
- Tekle on Percent-for-Art Ordinances
- Michael Gerrard on Climate Change and Land Use Law
- Touro Law hosts First Annual Conference of the Land Use & Sustainable Development Law Institute
- Abstracts for 6th Annual Colloquium on Environmental Scholarship due May 1
- Space and the City - Special edition of The Economist