March 12, 2010
Pursley & Wiseman on Local Energy
Garrick B. Pursley (Texas) and Hannah J. Wiseman (Texas) have posted Local Energy. The abstract:
At a point in the future that is no longer remote, renewable energy will be a necessity. The construction of large renewable farms will be central to a transition away from fossil fuels, but distributed renewable energy technologies - wind turbines in backyards and solar panels on roofs - are immediately essential as well. Widespread deployment of distributed renewable technologies requires rapid domestic innovation led by renewables pioneers - individuals who act as market leaders and prove to their neighbors that these new energy devices are safe and worthy of use. Existing law and the very structure of governmental authority over energy is insufficient for this energy transition and stifles the efforts of these pioneers. Public bodies must therefore embark upon a substantial overhaul of land-energy rules: regulations that place requirements on renewable technology construction and govern its physical location. This Article asks, from a comparative institutional perspective, what level of government will best ensure that land-energy rules enable a drive toward distributed renewable energy and concludes that the powers of municipal governments in this field must be unleashed. Innovation will occur from the ground up, and municipalities must actively work to enable the next great energy transition in this country: a move toward energy produced from the sun, the wind, the earth’s internal heat, and other renewable sources.
Home Affordable Foreclosure Alternatives Program
Earlier this week the New York Times had a front-page story on the new Home Affordable Foreclosure Alternatives Program set to begin on April 5.
In an effort to end the foreclosure crisis, the Obama administration has been trying to keep defaulting owners in their homes. Now it will take a new approach: paying some of them to leave.
This latest program, which will allow owners to sell for less than they owe and will give them a little cash to speed them on their way, is one of the administration’s most aggressive attempts to grapple with a problem that has defied solutions.
Other news outlets around the country have picked up the NYT story this week, although it's not entirely clear to me what the "news" is, since it seems the program was announced on Nov. 30, 2009. The Bankruptcy Prof Blog has an analysis here.
Anyway, according to the Times, the meat of the program seems to be this:
To bring the various parties to the table — the homeowner, the lender that services the loan, the investor that owns the loan, the bank that owns the second mortgage on the property — the government intends to spread its cash around.
Under the new program, the servicing bank, as with all modifications, will get $1,000. Another $1,000 can go toward a second loan, if there is one. And for the first time the government would give money to the distressed homeowners themselves. They will get $1,500 in “relocation assistance.”
One one hand, I'm glad to see some recognition that policies like HAMP focused primarily on keeping owners in their homes will not solve the crisis. But unless I'm missing something, count me skeptical that "spreading around" $3,500 will persuade a lot of lenders (and particulary second (or third) mortgagees) to come to the table, unless they're already inclined to. Does the plan have any mandatory provisions? This NAR page has a little more info with regards to some procedural items, but the Times story contains no mention of the actual program or who administers it, and I'm having trouble finding any sort of official government press release or website about HAFA. Let me know if you have better information.
March 11, 2010
An Iconic Image of the Real Estate Fiasco...
I recently came across this amazing picture showing how Miami's skyline has changed since 2004.
Take a look and be amazed at how much was built in less than 7 years.
Then wonder...how much of this will ever be occupied?
The answer is probably much less than 100%. Hindsight is said to be 20/20 but what type of land use and building regulatory system allowed this to happen without a meaningful study of the impact and capacity?
--Chad Emerson, Faulkner U.
Glaeser spotlights Atlanta in NYT
Atlanta added 1.13 million people from 2000 to 2008, more than any other in the country except Dallas. But from 2005 to 2009, the number of annual building permits fell by 66,352, the biggest decline in any metropolitan area.
Will Atlanta continue to emerge as a mighty metropolitan economy, or will the housing downturn turn the area into a place that might have been?
After a succint review of Altanta's history as a city, Glaeser observes that growth policies and housing have been key to Atlanta's late-20th Century success:
Housing supply, not quality of life, has been the crucial helpmate of economic convergence. Atlanta has kept housing prices low, despite a vast increase in its size, because there are few natural or legislative limits to new construction.
The city was built in the middle of the state with neither mountains nor an ocean to block its growth. The dominant political players have long been pro-growth, and as a result, much of suburban Atlanta is a paradise for builders. The resulting low home prices have helped bring millions to the region.
Glaeser concludes that despite some of the economic problems that are currently plaguing sun-belt boom cities, Altanta's future may be bright, for three reasons: (1) its position as the dominant city in the region; (2) companies will continue to find its pro-business policies to be hospitable; and (3) it maintains a highly skilled population, with 43 percent of its adults holding college degrees (well above the national average and even higher than places like Boston (41%)). The next decade or so might be revealing about the long-term sustainability of the prevailing models of growth and land use in post-WWII America.
March 10, 2010
Besley & Ghatak on Property Rights and Economic Development
Timothy J. Besley (London School of Economics) and Maitreesh Ghatak (London School of Economics) have posted Property Rights and Economic Development. The abstract:
This chapter develops a unified analytical framework, drawing on and extending the existing literature on the subject, for studying the role of property rights in economic development. It addresses two fundamental and related questions concerning the relationship between property rights and economic activity. (i) What are the mechanisms through which property rights affect economic activity? (ii) What are the determinants of property rights? In answering these, it surveys some of the main empirical and theoretical ideas from the extensive literature on the topic.
Jacoby on the Value(s) of Foreclosure Law Reform
Melissa B. Jacoby (North Carolina) has posted The Value(s) of Foreclosure Law Reform, forthcoming in the Pepperdine Law Review (2010). The abstract:
This symposium contribution examines the starkly different values reflected in traditional legal literature on foreclosure law reform in the U.S. as compared to some more recent entries in the wake of the rise of subprime lending and high rates of residential mortgage default. I highlight economist Dean Baker’s “right to rent” proposal, which would give former homeowners leasehold rights at market rates, to illustrate a more progressive set of housing policy considerations and to challenge the assumption that ownership is essential or optimal to promoting various housing objectives.
March 9, 2010
Craig on the Western States' Public Trust Doctrines
Robin Kundis Craig (Florida State) has posted A Comparative Guide to the Western States' Public Trust Doctrines: Public Values, Private Rights, and the Evolution Toward an Ecological Public Trust, Ecology Law Quarterly, Vol. 37, No. 1 (March 2010). The abstract:
This companion article to the Fall 2007 A Comparative Guide to the Eastern Public Trust Doctrines explores the state public trust doctrines - emphasis on the plural - in the 19 western states. In so doing, this Article seeks to make the larger point that, while the broad contours of the public trust doctrine, especially regarding state ownership of the beds and banks of navigable waters, have a federal law basis, the details of how public trust principles actually apply vary considerably from state to state. Public trust law, in other words, is very much a species of state common law. Moreover, as with other forms of common law, states have evolved their public trust doctrines in light of the particular histories, perceived needs, and perceived problems of each state.
This Article notes that, in the West, four factors have been most important in the evolution of state public trust doctrines: (1) the severing of water rights from real property ownership and the riparian rights doctrine; (2) subsequent state declarations of public ownership of fresh water; (3) clear and explicit perceptions of shortages of water, submerged lands, and environmental amenities; and (4) a willingness to raise water and other environmental issues to constitutional status and/or to incorporate broad public trust mandates into statutes. From these factors, two important trends in western states’ public trust doctrines have emerged: (1) the extension of public rights based on states’ ownership of the water itself; and (2) an increasing, and still cutting-edge, expansion of public trust concepts into ecological public trust doctrines that are increasingly protecting species, ecosystems and the public values that they provide.
The Article includes an extensive Appendix that summarizes each of the 19 states’ public trust doctrines. These summaries include relevant constitutional provisions, statutory provisions, and cases.
Glick, Rose, & Huertas on the Greening of Community Economic Development In NYC
Brian Glick (Fordham Law), Jessica Rose (Community & Economic Development, Brooklyn Legal Svcs.), & Carmen Huertas (CUNY Law) have posted The Greening of Community Economic Development: Dispatches from New York City, Western New England Law Review, Vol. 31, No. 645 (2009). The abstract:
Community development corporations and other community-based organizations have recently begun to make major efforts to incorporate environmental elements into their projects. This article examines this healthy trend, and lawyers’ contributions to it, through the work of three groups in three diverse communities of color in New York City. It is based on the authors’ experience providing or directing transactional legal assistance to those groups as directors of law school community economic development clinics (Huertas-Noble at CUNY, Glick at Fordham) or of legal services community development units (Rose at Brooklyn Legal Services Corp. A).
Our clients are merging activism for economic development and environmental justice to create green-collar jobs for local residents, build affordable housing that is environmentally friendly, and use local land for sustainable projects that serve and improve the community. In the Cypress Hills section of East New York in Brooklyn, an established community development corporation works creatively to amass the financing required to make its buildings increasingly green. In West Harlem, a prominent environmental justice organization fights for community - serving sustainable land use and for programs to prepare people of color to get their fair share of jobs and contracts in the emerging green economy. In the South Bronx, a new organization forms worker-owned enterprises that train and employ local residents, protect the environment, and offer the potential for residents to accumulate a modicum of local wealth. Other articles in this symposium report a similar convergence of CED and environmental justice efforts in other parts of the country.
This is a promising trend. It offers real possibilities for low-income people of color to live healthier, safer, better lives. It moves forward their efforts to gain greater control over local land and resources. It supports their struggle to survive the deepening economic crisis and offers them the potential to influence and benefit from a more supportive new administration in Washington.
Our snapshots show lawyers, law students and law faculty, making small but important contributions. They help to design, maintain, and adapt legal entities and governance strictures, negotiate contracts and leases, navigate regulatory and subsidy systems, and advise and assist in project development, coordination, and financing. We are committed to doing more of this work and learning how to do it better. We hope you will join us.
Ralston on Rights and Environmental Justice
Shane J. Ralston (Philosophy, Penn State-Hazelton) has posted Dewey and Leopold on the Limits of Environmental Justice. The abstract:
Environmental justice refers to many things: a global activist movement, local groups that struggle to redress the inequitable distribution of environmental goods (and bads), especially as they affect minority communities, as well as a vast body of interdisciplinary scholarship documenting and motivating these movements. In the past three decades, scholarly debates over what environmental justice requires have been dominated by a discourse of rights. While this rights talk is unlikely to disappear, I argue for an alternative framing of environmental justice issues in terms of two ethics. These paired ethics are inspired by two American thinkers, one who was specifically concerned with ecological matters and the other less so, but equally devoted to elaborating the advantages of experimental problem-solving: Aldo Leopold and John Dewey, respectively. In A Sand County Almanac, Leopold articulated an ethic of restraint. Individuals bear personal responsibility for promoting beauty, stability and diversity in their relations with the land. Dewey proposed an ethic of control, whereby experimental inquiry permits communities to gain greater control over their natural environment and experimentally determine the content of their shared norms. In some respects, Dewey’s ethic of control resembles what Leopold calls the ‘outlook of a conqueror’, not that of a ‘citizen in a land community’. However, if we adopt even a weakly anthropocentric view of human-environment interaction, then exerting some degree of control over one’s natural environment becomes essential for survival and flourishing. Still, pragmatists concerned with environmental justice issues can learn important lessons from Leopold’s ethic of restraint, which extends not only to the land, but also to the oceans and the atmosphere. I demonstrate this point by appealing to the works of J. Baird Callicott and Larry Hickman, as well as to proposals to reduce the anthropogenic inputs (especially global greenhouses gases) responsible for global warming through the intentional manipulation of climate systems—often called ‘geoengineering’.
Developer Saves Landmark Hotel
One of Los Angeles's most famous mid-century modernist landmarks, the Century Plaza Hotel, has been saved from demolition after the building's owner, Next Century Associates, decided to preserve it. Next Century had previously announced its intent to demolish Century Plaza and replace it with new condos and shops, but after preservation groups--led by the Los Angeles Conservancy and National Trust--argued to save it, Next Century went back to the drawing board. (Century Plaza appeared on the National Trust's 2009 list of endangered landmarks.) Although a portion of the hotel will still contain condos, the building's architecture will remain intact, along with its historic use.
Century Plaza's architect, Minoru Yamasaki, who designed the hotel in 1966, is more often recognized as the designer of the World Trade Center's Twin Towers. Click here for a link to learn more about the preservation fight, including images of what Next Century originally planned to construct, and here to learn more about the result.
Will Cook, Charleston School of Law
Anderson on Race, Poverty, and Exclusion at the Urban Fringe
Michelle Wilde Anderson (Berkeley) has posted Cities Inside Out: Race, Poverty, and Exclusion at the Urban Fringe. The abstract:
Across the country, from Aberdeen, North Carolina to Modesto, California, city growth has bypassed hundreds of low-income neighborhoods founded under conditions of racial segregation in the early to mid-twentieth century. Denied annexation to neighboring municipalities, these urban pockets remain unincorporated, covered only by county governance and, in some cases, rural service standards. This article represents the first comprehensive academic treatment of such communities, which I call unincorporated urban areas. Challenging popular assumptions regarding an inner-city of racialized poverty in contrast to a white, suburban privatopia, unincorporated urban areas turn our attention to suburbs where the gravitational pull of the urban economy, affordability constraints, and the desire for homeownership have led to the settlement of low-income communities of color at the unregulated fringe, just beyond city limits.
The article analyzes the adequacy of local government structures serving unincorporated urban areas and the flexibility for reform within those structures. It asks, for the first time, whether two tiers of general purpose local government - a city and a county - offer urbanized areas greater participatory voice, stronger protection from undesirable land uses, improved collective services, and greater household mobility than county rule alone. In so doing, it raises the question of what adequacy in the context of local government might mean, revealing unquestioned assumptions about the allocation of power among cities, counties, and states. New legal issues concerning municipal services, extraterritorial eminent domain, and the risk of land loss come into focus in this investigation of cities inside out - urban life placed outside the reach of municipal government.
Post-Katrina Zoning Issues...
With the five year anniversary of Hurricane Katrina and the ambitious Mississippi Renewal Forum coming later this year, I've been following some of the forum's results more closely. Several, such as the Katrina Cottage quickly gained attention while others never materialized.
p.s. The neighboring city of Biloxi is also taking an interesting step forward in zoning reform as we near the Katrina five year date.
Manufactured Housing - People of Hope
While we're on the subject of manufactured housing I'd like to give a shout out to People of Hope. This Athens-based organization is creating the first resident-controlled, affordable manufactured home development in Georgia. This organization arose out of an eviction of a group of tenants from a mobile home park in Athens when the owner sold off the land for development. Like many places, Athens is short on affordable housing in general, so these tenants took matters into their own hands. With the help of the fine folks at Georgia Legal Services and Sutherland law firm, as well as Athens Land Trust and the Georgia Community Loan Fund, these folks are well on their way to realizing their goals.
Jamie Baker Roskie
March 7, 2010
Home ownership: Mom, Apple Pie and Mortgages
Robert Shiller (Yale--Economics) has an article in Sunday's New York Times Business section called Mom, Apple Pie and Mortgages. Shiller discusses the overpromotion of home ownership in the U.S. and its cultural foundations (something I'm working on as well). From the article:
FOR decades, the federal government has subsidized housing — particularly owner-occupied housing. This has been especially true during the continuing financial crisis, with Fannie Mae, Freddie Mac and the Federal Housing Administration propping up the housing market by issuing guarantees for investors on most new mortgages.
But what is the long-term justification for putting taxpayers on the line to subsidize homeownership? Is this nothing more than a sacred cow in American society — a political necessity because so many voters own homes and are mindful of their resale value?
Shiller continues on to discuss the nature of home ownership in American culture, and offers some suggestions:
If we choose to keep subsidizing individual homeownership, we must also commit to adding safeguards so that homeowners are less financially vulnerable. Of course, that will require some creative finance.
But first, we should rethink the idea of renting, which could be a viable option for many more Americans and needn’t endanger the traditional values of individual liberty and good citizenship.
It's a good read and a timely argument.
UPDATE: Ilya Somin has some thoughts on the article at the Volokh Conspiracy.