Land Use Prof Blog

Farewell 2010 . . .

We had a great year here on the Land Use Prof Blog.  The stats show that we reached a lot of new readers, and we were very pleased and humbled to get some positive feedback from those of you in the land use community.  Land use is a field that covers a lot of ground both academically and professionally, so it's been fun to try and cover topics of interest to academics and practitioners in law, planning, government, real estate, environmentalism, and all of the other fields involved. 

Thanks so much for reading the blog in 2010.  We have some exciting things planned for 2011, so please keep reading, and please keep sharing your thoughts and ideas.  Happy New Year!

Counties - Unincorporated Areas

In a previous blog posting, I highlighted a few problems inherent in a zoning scheme that is largely localized. Here is another difficulty stemming from vesting multiple municipalities with relatively independent zoning authority -- namely, how to regulate the use of land that is outside city limits.

A recent front-page article in the Dallas Morning News spotlights three new slaughter houses that have newly popped up northeast of Dallas in an unincorporated area. Outside of city borders, zoning is not an available tool to address such issues. 

"Its a regulatory loophole they're slipping through," said Laubenberg, whose district includes both processing plants. "It looks like the eastern part of Collin County has became a dumping ground for these under-the-radar operations."

McKay Cunningham

Kelly on Maryland's Affordable Housing Land Trust Act

James J. Kelly, Jr. (Baltimore; Washington & Lee (visiting)) has posted Maryland's Affordable Housing Land Trust Act, recently published in the Journal of Affordable Housing and Community Development Law, Vol. 19, p. 345, Spring/Summer 2010.  The abstract:

On May 20, 2010, Maryland’s governor, Martin O’Malley, signed the Affordable Housing Land Trust Act (AHLT Act) into law. Its enactment marked the culmination of six years of advocacy by the University of Baltimore Community Development Clinic and by the Maryland Asset Building and Community Development Network. The AHLT Act authorizes a new method of creating and sustaining permanently affordable homeownership. By using the affordable housing land trust agreements outlined in the legislation, Maryland nonprofits and governmental agencies may now enter into enforceable long-term agreements with publicly subsidized low- and moderate-income homeowners to ensure that their homes remain affordable to other income-qualified homebuyers in the future. With the development of this essential tool for the creation of permanently affordable homes, Maryland has addressed key obstacles to preserving the affordable housing gains it has made through its pioneering efforts in community-based nonprofit housing development and inclusionary zoning.

This article will explore the legal obstacles that advocates of permanently affordable homeownership in Maryland faced prior to this year’s statutory amendments, the dialogue that produced the final bill, and the way forward for permanently affordable housing in Maryland and elsewhere. Part I will give background about efforts to create permanently affordable homes and the difficulties presented by several legal doctrines common to many states and one unique to Maryland. Focusing on the legislation itself, Part II will describe the advocacy effort and stakeholder dialogue as well as the resulting bill that addressed a variety of concerns raised by the indefinite dedication of land to affordable homeownership. Part III will discuss how existing models of resale restrictions used by community land trust and inclusionary zoning programs can be adapted to meet the affordable housing land trust approach outlined in the statute. The article concludes with a discussion about the value of possible changes in the law of other states to support stewardship of housing affordability.

This is a significant real world legislative achievement, and is due in large part to the efforts of Prof. Kelly and his University of Baltimore Community Development Clinic, so be sure to check out the article.  You may remember Jim's excellent guest-blogging for us last summer; we might be hearing more from him very soon (hint, hint).  

Matt Festa

Rockefeller Center and Big Development Projects

I just saw a CNBC documentary on The Rockefellers.  It was well done (not sure when it was originally made).  One segment that I found very interesting from a land use perspective was the story of the development of Rockefeller Center in NYC-- you know, famous for the Christmas tree, the skating rink, Radio City, and the place where Alec Baldwin and Tina Fey hang out at 30 Rock (coincidentally, I thought that the middle-aged Nelson Rockefeller had an uncanny resemblance to Alec Baldwin).  

The gist of the narrative is that John Rockefeller Jr. bought the land--several blocks of midtown Manhattan--from Columbia intending to redevelop it as a new home for the Metropolitan Opera.  Then the Great Depression hit.  Unable get traditional investors and real estate financing, Junior took the bold move of deciding to go ahead and build.  He commissioned an ambitious plan for developing several blocks with buildings, theaters, the plaza, and the 70-story skyscraper.  Rockefeller paid for most of it himself up front, and put thousands to work.

You can read more about it in Daniel Okrent's book Great Fortune: The Epic of Rockefeller Center.

One thing it made me think about is the feasibility of large-scale redevelopment projects.  The story seemed to be that Rockefeller Center was a big risk, but paid great rewards (both financially to its owners, and culturally to the city).  But the current political mood seems to disfavor large-scale redevelopment.  The high-profile failures of places like Poletown and even New London seem to caution ambitious planners away from undertaking too-ambitious plans for fear they might fail, and this is leading to some of the criticism of planned projects like Atlantic Yards.  

One way to look at it is that the history of real estate development (as well as business generally) is probably replete with more failures than successes, so perhaps it isn't fair to judge all future projects by anecdotal examples of recent failures.  There's also context: while one of the academics in the CNBC documentary described Rockefeller Center as "the biggest development project since the great pyramids," it was still just a few blocks of New York City, so as large as it was it probably wouldn't have singlehandedly sunk the fortunes of Gotham had it failed--where as a place like New London has much more at stake in a major economic development project.  There's also the issue government involvement.  While I don't know the full story of Rockefeller Center (I'll have to read Okrent's book!), it seems as though it was principally planned, organized, and paid for by private actors.  The modern trend toward more government involvement may be necessary to execute a massive project given the regulatory issues and the need for eminent domain for land assembly.  The question is whether governmental involvement comes with a price-- complicating the project politically, legally, and financially, and putting the public fisc at risk if the project tanks.  

I know there are a million variables that influence why some projects succeed and others fail, and I don't have a scientific theory on the matter.  It would be interesting, though, to compare modern and historical large-scale development projects and to account for historical failures as well as the successes that we can remember so much more easily.

Matt Festa

Physicist invents Urban Science

Here's a fascinating story from yesterday's New York Times: A Physicist Solves the City.  It's about physicist Geoffrey West, who after a career working at places like Los Alamos and Stanford, decided to turn his attention to solving the city--not through urban theory, planning, or social science, but through a hard scientific analysis of data to search for fundamental laws underpinning the urban organism.

West wasn’t satisfied with any of these approaches. He didn’t want to be constrained by the old methods of social science, and he had little patience for the unconstrained speculations of architects. (West considers urban theory to be a field without principles, comparing it to physics before Kepler pioneered the laws of planetary motion in the 17th century.) Instead, West wanted to begin with a blank page, to study cities as if they had never been studied before. He was tired of urban theory — he wanted to invent urban science.

For West, this first meant trying to gather as much urban data as possible. Along with Luis Bettencourt, another theoretical physicist who had abandoned conventional physics, and a team of disparate researchers, West began scouring libraries and government Web sites for relevant statistics. The scientists downloaded huge files from the Census Bureau, learned about the intricacies of German infrastructure and bought a thick and expensive almanac featuring the provincial cities of China. (Unfortunately, the book was in Mandarin.) They looked at a dizzying array of variables, from the total amount of electrical wire in Frankfurt to the number of college graduates in Boise. They amassed stats on gas stations and personal income, flu outbreaks and homicides, coffee shops and the walking speed of pedestrians.

After two years of analysis, West and Bettencourt discovered that all of these urban variables could be described by a few exquisitely simple equations. For example, if they know the population of a metropolitan area in a given country, they can estimate, with approximately 85 percent accuracy, its average income and the dimensions of its sewer system. These are the laws, they say, that automatically emerge whenever people “agglomerate,” cramming themselves into apartment buildings and subway cars. It doesn’t matter if the place is Manhattan or Manhattan, Kan.: the urban patterns remain the same. West isn’t shy about describing the magnitude of this accomplishment. “What we found are the constants that describe every city,” he says. “I can take these laws and make precise predictions about the number of violent crimes and the surface area of roads in a city in Japan with 200,000 people. I don’t know anything about this city or even where it is or its history, but I can tell you all about it. And the reason I can do that is because every city is really the same.” After a pause, as if reflecting on his hyperbole, West adds: “Look, we all know that every city is unique. That’s all we talk about when we talk about cities, those things that make New York different from L.A., or Tokyo different from Albuquerque. But focusing on those differences misses the point. Sure, there are differences, but different from what? We’ve found the what.”

Very interesting, and sure to get some responses.  Thanks to Jon Coen for the pointer.

Matt Festa

Tarlock on Land Use Regulation as the Weak Link in Environmental Protection

A. Dan Tarlock (Chicago-Kent) has posted Land Use Regulation: The Weak Link in Environmental Protection, Washington Law Review, Vol. 82, No. 651 (2007).  The abstract:

Professor William Rodgers is one of the handful of legal academics who have shaped and influenced environmental law since it was created out of whole cloth in the late 1960s. The staggering quantity, quality, breadth, and creativity of his scholarship are perhaps unrivaled among his peers. It is easy to criticize the gap between the environmental problems that society faces and the inadequate legal tools and institutions that we have created to confront them. Professor Rodgers has always been able to see both the deep flaws in environmental law and the possibilities for more responsive legal regimes.

Matt Festa

Only in Hollywood - Film School vs. Farmers' Market

In an interesting variation on "coming to the nuisance," the Los Angeles Film School has moved next door to the Hollywood Farmers' Market and is now contesting renewal of the market's permit.  Apparently, the market - which operates only on Sunday - blocks access to one of the school's parking lots.  There's a Joni Mitchell song in there somewhere.  Read about it in The New York Times.

Happy Holidays!

Jamie Baker Roskie

Levitin & Twomey on Mortgage Servicing

Adam J. Levitin (Georgetown) and Tara Twomey (Nat'l Consumer Law Center, Nat'l Ass'n of Consumer Bankruptcy Attys) have posted Mortgage Servicing, Yale Journal on Regulation, Vol. 28, No. 1 (2011) [first 2011 pub date on the blog so far?].  The abstract:

This Article argues that a principal-agent problem plays a critical role in the current foreclosure crisis.

A traditional mortgage lender decides whether to foreclose or restructure a defaulted loan based on its evaluation of the comparative net present value of those options. Most residential mortgage loans, however, are securitized. Securitized mortgage loans are managed by third-party mortgage servicers as agents for mortgage-backed securities (“MBS”) investors.

Servicers’ compensation structures create a principal-agent conflict between them and MBS investors. Servicers have no stake in the performance of mortgage loans, so they do not share investors’ interest in maximizing the net present value of the loan. Instead, servicers’ decision of whether to foreclose or modify a loan is based on their own cost and income structure, which is skewed toward foreclosure. The costs of this principal-agent conflict are thus externalized directly on homeowners and indirectly on communities and the housing market as a whole.

This Article reviews the economics and regulation of servicing and lays out the principal-agent problem. It explains why the Home Affordable Modification Program (“HAMP”) has been unable to adequately address servicer incentive problems and suggests possible solutions, drawing on devices used in other securitization servicing markets. Correcting the principal-agent problem in mortgage servicing is critical for mitigating the negative social externalities from uneconomic foreclosures and ensuring greater protection for investors and homeowners.

Matt Festa

Avery & Brevoort on Lender Regulation and the Subprime Crisis

Robert B. Avery & Kenneth P. Brevoort (Federal Reserve) have posted The Subprime Crisis: How Much Did Lender Regulation Matter?  The abstract:

The recent subprime crisis has spawned a growing literature suggesting that regulatory preferences for lower-income borrowers and neighborhoods, embodied by the Community Reinvestment Act (CRA) and affordable housing goals for the Government Sponsored Enterprises, Fannie Mae and Freddie Mac (GSEs), may have caused or contributed to the crisis. For the most part, the empirical analyses presented in this literature have been based on associations between aggregated national trends. In this paper we examine more directly the links between these regulations and outcomes in the mortgage market, including measures of loan quality and delinquency rates. Our analysis has two components. The first component focuses mainly on the CRA. We argue that historical legacies create significant variations in the type of lenders that serve otherwise equal neighborhoods and that, because not all lenders are subject to the CRA, this creates a quasi-natural experiment of the impact of the CRA. The second component of our analysis uses all lenders but takes advantage of the fact that both the CRA and GSE goals rely on clearly defined geographic areas to determine which loans are favored by the regulations and which are not. Using a regression discontinuity approach, our tests compare the marginal areas just above and below the thresholds that define eligibility. We argue that if the CRA or GSE goals had an impact, it should be clearest at this point. We find little evidence that either the CRA or the GSE goals played a significant role in the subprime crisis. Our lender tests indicate that areas disproportionately served by lenders covered by the CRA show less, not more, evidence of risky lending or ultimately higher mortgage delinquency rates. Similarly, the threshold tests show no evidence of a regulatory effect.

Matt Festa

Faithful on Native American Land Liberation

Richael Faithful (American U) has posted An Idea of American Indian Land Justice: Examining Native Land Liberation in the New Progressive Era, forthcoming in the National Lawyers Guild Journal.  The abstract:

This article is inspired by Professor Robert Odawi Porter’s remarks during the 2009 D.C. Federal Indian Bar conference in which he outlined a seemingly radical proposal for “land liberation” for American Indian tribes – the abandonment of United States trusteeship over tribal land, and return of title and associated rights to numerous tribes who have lost their land due to nefarious governmental policies and bad deals. In an effort to bridge Porter’s visionary legal viewpoint with renowned economist and philosopher, Amartya Sen’s recent visionary contribution on justice, An Idea of American Indian Land Justice, helps revive an Indian law, critical studies tradition calling for greater tribal sovereignty, but in a new light, however, that examines a global political climate that embraces the human rights mantle to one degree or another. This article tries to illuminate two liberationist outlooks to scrutinize a legal proposal by a leading mind in Indian law that also has wide-reaching implications for other movements, struggles, and communities across the world.

Matt Festa

More on Big Boxes Getting Smaller...

This trend appears to be picking up speed as 1) urban markets remain relatively undeveloped for many big boxes, 2) zoning laws continue to restrict new mega-sized buildings, and 3) same store sales remain relatively flat even for newer big boxes.

Here's another story discussing the somewhat oxymoronic situation of smaller, big boxes:

Retailers have been following the growth of the suburbs for decades, setting up in shopping centers and big-box strip malls far outside the core of major American cities. Department stores that stayed in big-city downtowns have suffered. Others didn't stay -- they closed up altogether.

But a reversal of that trend is becoming apparent. Big-box retailers -- companies that built their discount businesses out where land was cheap and space was plentiful -- are now moving inward.

Both Wal-Mart and Target are prime examples of big-box stores with big-city plans. They're aiming at the likes of Chicago, Los Angeles, New York, Seattle and Washington, D.C.

Chad Emerson, Faulkner

Swiss Billionaire Buys Montana Land

Last week my dad sent me a link to this article, about Hansjorg Wyss, a wealthy maker of medical devices, and his campaign to buy and conserve up to one million acres in the mountain west.

In an exclusive interview with The Associated Press, Wyss, 75, said he first became enamored of the Rockies as a college student who toured the region in 1958. And he defended his actions against those who chafe at the prospect of an outsider buying up land that in some cases has been logged, ranched or farmed for generations.

"Look, these are beautiful landscapes," Wyss said. "There was controversy when Yellowstone (National Park) was created and when they declared the Grand Canyon as a National Monument. But there are areas in the United States that must be protected."

As the article notes, Wyss isn't the first billionaire to buy lots of Montana land.  Ted Turner famously bought and conserved millions of Montana acres in the '90s and the '00s.  And Wyss isn't the first businessperson turned conservationist to create controversy. Consider, for example, apparel moguls Kris and Doug Tompkins (of Patagonia and Esprit fame, respectively) who bought up large swaths of Chile and Argentina in what came to be know as "The Green Land Grab." In 2003 one Newsweek writer noted:

For any developing nation, an economic crisis may not be the best time to retire open lands from commercial use. But much of the land for sale in Patagonia has been so overgrazed that ranchers describe it as pelado, or peeled, anyway. So far, Argentines have been too busy protesting international bankers to take much notice of the land rush, but that could change, warns Buenos Aires political analyst Felipe Noguera: "There is the potential for Argentines to feel that yet more of the family silver has been sold off to foreigners." Arguably, if Argentina has to sell off land, better to sell to green tycoons for public nature preserves than to other tycoons for private playgrounds. But it's not clear a financially battered populace would make such distinctions.

It's an open question whether it's a great idea for any nation, developed or developing, to permanent conserve thousands of acres of potentially productive land.  But there's no question that the Rockies, and the Andes, are landscapes that are part of our collective environmental heritage. Whether we can conserve these unique areas while allowing the local population to make a living has been an active question for many years.  Obviously the last word has yet to be written.

Jamie Baker Roskie

Banks struggling with glut of foreclosures

Most banks were not prepared to foreclose and own hundreds-of-thousands of properties. The housing bust required a range of mass-scale foreclosure and re-sale processes unfamiliar to these lenders and mistakes soon followed. National media reported on notary fraud and other irregularities in the foreclosure process.

Andrew Martin in the New York Times now reports a rise in bank break-ins.

In Texas, for example, Bank of America had the locks changed and the electricity shut off last year at Alan Schroit’s second home in Galveston, according to court papers. Mr. Schroit, who had paid off the house, had stored 75 pounds of salmon and halibut in his refrigerator and freezer, caught during a recent Alaskan fishing vacation. (emphasis added).

Lacking power, the freezer’s contents melted, spoiled and reeking melt water spread through the property and leaked through the flooring into joists and lower areas.

Of course, banks are not without excuse. Many mortgages allow lenders to enter a property in default and secure it, if deemed abandoned. From the apparent rise in unwarranted bank break-ins, however, it seems lenders expend little effort in determining whether such homes are truly abandoned.

In another case, a homeowner in default was still negotiating loan modification when the bank broke in and took everything:

Near Halloween 2008, work crews broke in and cleaned out the place, taking Persian rugs, china, furniture bought on a trip in Peru, skis, photos of her marriage and childhood in Iran. Her husband’s ashes were taken from the couple’s master bedroom.

Certainly a spike in volume of foreclosures accounts for the increase in such break-ins. But should volume excuse unwarranted break-ins?  It will be interesting to track the lawsuits brought against lenders in the following months. 

McKay Cunningham

Reminder - Smart Growth Conference Coming Soon

A reminder from the folks at EPA:

The 10th annual New Partners for Smart Growth: Building Safe, Healthy
and More Livable Communities Conference in Charlotte, NC is right around
the corner — February 3-5 in fact! This is the largest and most
comprehensive conference focused on smart growth and sustainable
communities held in U.S. each year, and not one to miss.

The multi-disciplinary program includes dynamic plenaries, in-depth
implementation workshops, cutting edge breakouts featuring the latest
research, case studies, tool and strategies, and tours of local model
projects. The line-up of over 400 speakers is stellar, with
international and national expertise mixed with local and regional “know
how.” We expect 95% of the over 100 sessions to be AICP accredited.

The program this year also has a strong underlying them of financing and
capacity-building — important and timely topics for state and local
governments, NGOs, and the grassroots organizations working in the
trenches on critical smart growth issues across the country.

Additional emphasis is being placed this year on providing as many
networking opportunities for participants as possible. Beyond the usual
informal networking opportunities offered — the number one reason people
attend this event — conference planners are organizing networking forums
that will focus timely issues such as: the unique challenges of smart
growth in small towns and rural areas; new federal technical assistance
for sustainable communities; advocacy building at the local and national
level; continuing the conversation on better connecting environmental
justice, equitable development and smart growth; smart growth
strategies, tools and resources in southern states; and Health Impact
Assessments for new and experienced practitioners. We expect others to
be added before and during the conference.

SIGN UP NOW! The conference registration deadline is January 14th!
Register at http://www.newpartners.org/registration.html.

The deadline to receive the reduced group rate for this event ($95) at
the Westin Charlotte Hotel is January 10th. Call 1-866-837-4148 and
indicate that you are attending the New Partners Conference.

Jamie Baker Roskie

Conservation Easements - The view from the other side

The common law has long encouraged the use and development of land.

This policy favoring land use and development certainly made sense during America's infancy, when the country boasted seemingly inexhaustible stretches of land. But today you cannot find property that is not subject to zoning restrictions. What seemed unlimited is now increasingly scarce. Over-develpment generates multiple problems ranging from pollution to species endangerment. Forty million acres of land - larger than the state of Florida - were newly developed between 1992 and 2007.

One of the reactions to perceived over-development and receeding "wild" lands is the conservation easement, which is (generally speaking) a voluntary agreement to refrain from developing land. Much has been written about the effectiveness of this legal tool, but the arguments in this recent online publication seem disingenuous. The article characterizes the conservation easement as a clever tool wielded by a surreptitious government. The article warns private landowners to be wary of the conservation easement and the government's desire to restrict their rights.

Land trusts exist to remove private property from production.
They do this by acquiring ranch, farm, forest, or other private land either through donation, purchase, or by acquiring CEs to property as well as water. They act as unofficial arms of government agencies—third party intermediaries or ‘land agents’—and routinely flip (sell) donated as well as purchased land and CEs to these government agencies. When they do, they’re paid with tax dollars which, in turn, are used to purchase more private property.

The Conservation Easement is vulnerable to many legitimate criticisms; that it is a tool enabling a government conspiracy to rob private landowners should not be among them.

-McKay Cunningham

  

 

Iglesias on State & Local Regulation of Affordable Housing

Tim Iglesias (San Fransisco) sends word that he has posted State and Local Regulation of Particular Types of Affordable Housing, forthcoming in The Legal Guide to Affordable Housing Development, Tim Iglesias & Rochelle E. Lento, eds. (American Bar Ass'n 2011).  The abstract:

This chapter is part of "The Legal Guide to Affordable Housing Development", a practical guidebook covering most important areas of law that apply to affordable housing development. This chapter analyzes a wide variety of state and local regulation affecting the development of several types of affordable housing which are neither traditional single family nor multi-family. Specifically, the chapter discusses statutes, ordinances, regulations and leading case law concerning the siting of manufactured housing (Section II), farmworker housing (Section III), accessory or secondary units (Section IV), single room occupancy hotels (SROs) (Section V), condominium conversion regulation (Section VI), and emergency shelters and transitional housing, including domestic violence shelters (Section VII).

Sounds like a very helpful overview of the crucial state and local government role in affordable housing.  The book looks like a great resource; Prof. Iglesias indicates that it will be out in May 2011 at the annual conference of the ABA Forum on Housing and Community Development Law in D.C.  

Matt Festa

More from New China Ghost Towns...

I've blogged on this before but these additional images from the new town in China that is essentially empty is pretty stark.

Check it out here.

Chad Emerson, Faulkner.

Feudal Land-Use?

Fred Bosselman and David Callies famously characterize land-use in the United States as "a feudal system under which the entire pattern of land development [is] controlled by thousands of individual local governments, each seeking to maximize its tax base and minimize its social problems, and caring less about what happens to others."

Ouch. To teach this point, perhaps with less bite, my Property classes study Associated Home Builders of the Greater Eastbay Inc. v. City of Livermore. Can one municipality adopt zoning ordinances that incidentally harm a neighboring city? What legal standard ought to protect cities against such ordinances?  

Our system that vests most land-use decisions in multiple local municipalities contrasts nicely with China's top-down approach. An article today in the People's Daily Online describes 12 Chinese cities punished by China's Ministry of Land and Resources for illegal land-use. Interestingly, China's Ministry of Land and Resources used satellite imagery to discover land-use illegalities and call out the offending city managers. My experience has been that students better internalize our system and its limitations when juxtaposed with varying other approaches - like China's.

 McKay Cunningham

Rocky Mountain Land Use Institute 2011 Conference

From Fred Cheever at University of Denver:

REGISTRATION NOW OPEN
ROCKY MOUNTAIN LAND USE INSTITUTE CONFERENCE
MARCH 3-4, 2011
UNIVERSITY OF DENVER CAMPUS

Register now for early bird rates of:
Corporate: $450
Government: $375
Non-Profit: $275
Student: $100

Early bird rates expire midnight on February 1, 2011. Rates increase in each
category by $100 on February 2, 2011 except for the Student category.

This promises to be the best RMLUI Conference yet. Our 20th anniversary will
feature:

●   2 world-class keynotes, and a special featured presentation
●   32 sessions on today’s critical land use and development issues, including:

Affordable Housing
Climate Change
Mobility
Renewable Energy
Sustainable Economic Development
Water Conservation

Please join many of the nation’s top land use practitioners and scholars as we
explore the field’s most challenging subjects, share insights and knowledge
about best practices and begin to map out the region’s next 20 years and the
path to the Next West.

Sounds pretty interesting - I've always wanted to go to this conference.  Maybe next year I'll actually make it!

Jamie Baker Roskie

New Urban Pioneer...

...Vince Graham presents an interesting summary of this land use and planning movement in this video