Saturday, March 27, 2010
Mark A. Edwards (William Mitchell) has posted Acceptable Deviance and Property Rights. The abstract:
Compliance with – or deviance from – law is often dependent upon the law’s convergence with – or divergence from – normative sensibilities. Where the legality and social acceptability of behavior diverge, deviance is socially acceptable. Property rights evolve in response to changes in normative sensibilities. Constructing a model of acceptable deviance and applying it to property rights, we can predict and actually observe the evolution of property rights in response to changes in normative sensibilities in areas as diverse as file-sharing, foreclosures, the use of public space, and fishing rights. We can also predict and observe stresses in legal institutions created by divergences in the legality and social acceptability of behavior with regard to property rights. Law functions as an anchor on behavior, providing stability, but also space for deviance which permits the evolution of property rights.
Friday, March 26, 2010
In my previous post, I briefly sketched the thesis of my recent paper on local growth politics. Here, I want to provide some important background for the project. Those of us who study land use and local government tend to believe that local politics are dominated by homeowners, who disproportionately participate in local politics, either by vote or otherwise (such as appearing at a hearing to oppose a rezoning request), and whose participation is motivated solely by their own self-interest as homeowners. That is, homeowners will advocate whatever local policies will boost property values, lower property taxation, ensure quality schools for their children, and protect neighborhood quality of life. Usually, this means that homeowners support growth controls, exclusionary zoning policies that enable communities to screen for wealth, and opposition to almost any new development. The thesis that "homevoters" control local government was most recently articulated in William Fischel's influential book, The Homevoter Hypothesis, but it is also amply supported by other important scholarship and caselaw.
As Fischel points out in his book, the homevoter hypothesis really only works in relatively small suburban communities where homeowners can be assured of dominance. It works less well in large, more diverse cities. But Fischel assures us that this fact does not diminish the importance of his thesis because, after all, only 25% of the nation's population live in cities larger than 100,000 residents. We are, in other words, a suburban nation full of homevoters. Again, land use caselaw seems to support Fischel here, as so many of the important land use cases deal with small suburban communities attempting to use their zoning powers to maintain their suburban character. Scholarship on land use and local government, likewise, frequently bemoans the exclusionary practices of small suburbs and the increasing fragmentation of metropolitan regions brought on by the proliferation of such small suburbs.
Having been steeped in this literature, I could not have been more surprised when I started reading a book by Robert Lang and Jennifer LeFurgy entitled Boomburbs: The Rise of America's Accidental Cities (2007). According to the authors, Fischel's depiction of small suburban communities dominated by homevoters completely ignores what was (at the time) the fastest-growing, highly populated, and most politically influential region of the country, the Sunbelt. Most communities in this region are neither small suburbs nor conventional big cities but "boomburbs," large, incorporated cities of over 100,000 that are "suburban" in density and attitude but "urban" in size and diversity (ethnic, architectural, and otherwise). The authors argue that these boomburbs are far too large and diverse for homevoters to dominate; instead, boomburb politics are driven by the "growth machine," a matrix of interests that profits from development, including politicians, developers, construction companies, unions and the media. It is not only size and diversity that weaken the influence of the homevoter; boomburbs virtually all use at-large voting systems that tend to dilute the influence of neighborhood homeowners' groups and maximize the influence of deep-pocketed developers.
Lang and LeFurgy's book was a revelation, but something about their argument struck me as far too simplistic. A significant plurality of the boomburbs the author identify are right here in southern California. Indeed, southern California has often been considered an archetype of the "growth machine" thesis. However, southern California has also been labeled the birthplace of the NIMBYs ("Not in My Backyard,") a somewhat more pejorative name for Fischel's homevoters, and writers like Mike Davis have chronicled the bitter growth wars southern California has endured over the past several decades as developers have done battle with affluent homeowners. It occurred to me that Lang and LeFurgy were ignoring something crucial: In the sunbelt, and in southern California specifically, "homevoters" who are dissatisfied with the "growth machine" and the at-large system can use the initiative process to put the brakes on growth. In fact, homeowners in southern California have passed scores of slow-growth initiatives after the passage of the epochal (or apocalyptic) Proposition 13, which itself was partially the result of strong anti-growth sentiment. So there seems to be an uneasy equilibrium between development interests and homevoters in places like southern California, brought about, at least in part, by the co-existence of at-large voting and the initiative process. Making matters even more interesting, I discovered that both at-large voting and the initiative process were enacted as part of the Progressive movement's effort to reform local politics. This signaled that despite the opposition between pro-growth and anti-growth interests built into the political structures of boomburbs, there might be some underlying continuity as well. Indeed, that continuity became my thesis, as you can see from my previous post. You can also download the paper here.
Thursday, March 25, 2010
As I mentioned in my previous post, one of the latest dramas in my life is a ginormous pile of dirt that a developer recently dumped on three residential lots around the corner from my house. The dirt originally came from a massive, at least by Athens standards, excavation of about 75,000 cubic yards of dirt for the basement of the new Special Collections library here at UGA. Fill dirt was once quite a commodity when the housing market was hot, but now, according to a friend of mine who's a commercial contractor, you can't give the stuff away. Or, apparently, you can, to a developer who will then store it in some lots where he maybe has plans, sometime in the future, to build on the lots.
The problem is that he hasn't drawn up any plans, nor does he have any engineering drawings to show how to accommodate between 1,000 and 2,000 cubic yards (about 100-200 tandem dump truck loads) of dirt on the property. We got wise to the problem one morning earlier this month when we heard the sounds of diesel engines idling, and dump truck after dump truck banging as it emptied its load.
Now we get to the part where I'm the crazy neighbor lady. I went away for Spring Break, hoping that my neighbors would be able to stop this madness by calling in the county enforcement folks. However, apparently dumping continued unabated for at least 3 days. When I returned to town the pile had grown to its current size. I then read a column in our local weekly about the great Special Collections library project. While I agree about the coolness of the SC library, I felt like the folks at the magazine should know about its shadow side. So, I e-mailed the columnist and, while I was at it, the on campus newspaper and the local daily. The campus newspaper, the Red and Black, ran the story (see first link above). It turns out that the Atlanta TV stations read the R&B, and next thing I knew I was getting calls from television reporters. They were really interested in our giant dirt pile! I was surprised, but I agreed to give them interviews. While they were out, they got the developer on tape too and ran the story. (Visit this link on the law school's website to see most of the media coverage - thanks to the law school's public relations staff for pulling that together.)
The next day I was a local celebrity, and not in a totally good way. My favorite reaction was from a university staffer in my husband's building who, not realizing my husband was related to me, told him, "That land use lady needs to find something to do!" (When a co-worker of my husband brought our relationship to the staffer's attention, he was apologetic and chagrined. I just think it's funny!)
I've worked all sides of the development game in my career, including representing developers and neighbors. I figure it was inevitable I would turn out to be the cranky neighbor myself. I've started calling myself the queen of the dirt pile.
The local weekly, the Flagpole, has the most interesting take on the story. Their City Editor, Dave Marr, ran a good column that explains our confusion about how the developer seems to have threaded multiple loopholes in the code.
I've got some great folks in the neighborhood working with me, including a couple of experts on soil and erosion and a civil engineer. A local commissioner pulled together a good meeting with county staff yesterday and we're working toward a solution. In the meantime, I'm trying to catch up on my work and get ready for UGA's annual Red Clay conference on environmental issues. I'm moderating a panel on Georgia's water rights problems called "Is Atlanta Really the 800 Pound Gorilla?"
Jamie Baker Roskie
UPDATE: The latest from the UGA student newspaper on the controversy.
UPDATE TWO: The dirt pile now has its own website.
Jamison E. Colburn (Penn State) has posted Permits, Property, and Planning in the 21st Century: Habitat as Survival and Beyond, forthcoming in REBUILDING THE ARK: NEW PERSPECTIVES ON ESA REFORM, Jonathan Adler ed., 2010. The abstract:
In our legal tradition there are permits and there is property and they are like oil and water. The norms, institutions, and agents of one seem antagonistic — even antithetical — to the other. Property is reliable, tangible, and intimately bound up with one’s autonomy, one’s severability from society. Government permissions, by contrast, are fleeting, revocable, and inherently social. They are the mechanism of choice by which individual plans for assets are filtered and reconciled with collective needs. If we are to get around the impasses we have reached today in protecting nature’s composition and function, however, we must strive to better combine permits and property and leave behind exactly the sort of distinctions we now use in differentiating permits from property. In this piece, I argue that our instinctual distrust of lumping property and permits together ought not to inhibit us from exploring why or how permissions and property are comparable. Property rights in our legal system are bi-modal: they secure privileges, powers, and immunities as against other agents within a legal jurisdiction while simultaneously doing so separately against the agents of that legal jurisdiction. Ownership works its magic in part by securing to owners a subordinate form of sovereignty: standard, recognizable forms of dominion that order behaviors without the need for constant recourse to fine print. And property’s bimodality — its nature as right in rem and as right against government — invariably chills discussions of making government permissions more “like” property. Modeling Endangererd Species Act (ESA) habitat permissions after property, however, might paradoxically empower our government agencies to protect more habitat more effectively over the long term and at broader scales, in good part because doing so could: (1) simplify the mechanics of creating, adjusting, and reordering these managerial permissions; (2) enhance market and non-market actors’ capacities to assess, compare, and benchmark their own (often quite disparate) conservation actions and plans; and (3) better standardize the risks being shifted by the permissions the government has created. Given our diversity of owners and regulators, the core challenge we face in the looming crisis of habitat loss and disturbance is enabling and prompting broader-scale cooperation. The ESA permissions that the government has been generating are, in a nutshell, too small, too customized, too opaque, and too bound up with the highly imperfect information that happens to be available at their origination. If they were modeled to function more like property, they would be more standardized, more recordable and searchable, more legally explicit, and likely more interchangeable and exchangeable as such.
Benjamin Barros (Widener) has posted Homestead and Other Legal Protections of the Home. The abstract:
In many legal contexts, homes are given more legal protection than other types of property. This additional protection can be divided into three categories. First, possessory rights in a home might be given more protection than possessory rights in another kind of property. For example, a legal system might make it more difficult for a creditor to force the sale a home to satisfy a debt than it would be for the creditor to force the sale of another type of property (say, a commercial office building) to satisfy that same debt. Second, a legal system might economically favor ownership or possession of a home over ownership or possession of another type of property. For example, ownership of a home might be subsidized where ownership of other types of property is not. Third, a home might be given special treatment when issues of privacy, freedom, or security are at stake. For example, a legal system might require the government to have a stronger justification for searching a home than is required for searching a commercial property.
This short encyclopedia entry focuses on the first category – those legal protections that give special protection to possessory rights in a home. It first elaborates on the distinction between rules favoring possession and the other two types of special legal protections given to homes. It then discusses various types of legal rules that give additional protection to possession of a home, including homestead rules favoring homeowners over creditors and tenure rules favoring renters over their landlords. Finally, it discusses theoretical issues related to the protection of possessory rights in homes, and considers open questions about whether this special protection is justified.
This essay by the Property Prof is a great introduction and analysis of these concepts, and well worth reading for anyone interested in the unique status of the home in property law.
Wednesday, March 24, 2010
Alejandro E. Camacho (Notre Dame Law & UC Irvine Law), Lawrence E. Susskind (MIT, Urban Studies & Planning), and Todd Schenk (MIT, Urban Studies & Planning) have posted Collaborative Planning and Adaptive Management in Glen Canyon: A Cautionary Tale. The abstract:
The Glen Canyon Dam Adaptive Management Program (AMP) has been identified as a model for natural resource management. We challenge that assertion, citing the lack of progress toward a long-term management plan for the dam, sustained extra-programmatic conflict, and a downriver ecology that is still in jeopardy, despite over ten years of meetings and an expensive research program. We have examined the primary and secondary sources available on the AMP’s design and operation in light of best practices identified in the literature on adaptive management and collaborative decision-making. We have identified six shortcomings: (1) an inadequate approach to identifying stakeholders; (2) a failure to provide clear goals and involve stakeholders in establishing the operating procedures that guide the collaborative process; (3) inappropriate use of professional neutrals and a failure to cultivate consensus; (4) a failure to establish and follow clear joint fact-finding procedures; (5) a failure to produce functional written agreements; and (6) a failure to manage the AMP adaptively and cultivate long-term problem-solving capacity.
Adaptive management can be an effective approach for addressing complex ecosystem-related processes like the operation of the Glen Canyon Dam, particularly in the face of substantial complexity, uncertainty, and political contentiousness. However, the Glen Canyon Dam AMP shows that a stated commitment to collaboration and adaptive management is insufficient. Effective management of natural resources can only be realized through careful attention to the collaborative design and implementation of appropriate problem-solving and adaptive-management procedures. It also requires the development of an appropriate organizational infrastructure that promotes stakeholder dialogue and agency learning. Though the experimental Glen Canyon Dam AMP is far from a success of collaborative adaptive management, the lessons from its shortcomings can foster more effective collaborative adaptive management in the future by Congress, federal agencies, and local and state authorities.
The city of San Marcos, Texas is embarking on an interesting land use code effort (based on using the SmartCode) to reform its existing code system.
Monday, March 22, 2010
Like Chad Emerson, I've been blogging less of late, although not for the glamorous reason that I have a popular book out! My excuses are more pedestrian - Spring Break (where I actually endeavored, mostly successfully, to take two and a half days off), recruitment for summer and fall clinic classes, and a 30 foot pile of dirt recently dumped in my neighborhood (more on that later).
Over Spring Break I visited Bethlehem, Pennsylvania. Bethlehem is most famous for being the former home of Bethlehem Steel and for being the sister community of Allentown, Pennsylvania, which is the subject of a Billy Joel song. As the song goes, "Well we're living here in Allentown...Where they're closing all the factories down..."
However, that was over 20 years ago - Bethlehem Steel stopped producing in 1995, and the site is being redeveloped. The former plant is now the home of a Sands Casino and the Smithsonian's National Museum of Industrial History, as well as business incubator space and other industrial uses. Also, a very cool website called Save Our Steel makes the case for retaining a historic industrial district on the site. One woman feels so strongly about it she's had the Bethlehem Steel site tattooed on her back, which is much more artful than it sounds. I'm wondering if Will Cook knows anyone else with a tattoo of their favorite historic site!
At any rate, Bethlehem is coming back in its own way. I'm attaching a photo of the Sands sign, which I took from a small Habitat for Humanity subdivision being built on a bluff overlooking the Bethlehem Steel site. It's a community definitely worth keeping an eye on.
Jamie Baker Roskie
Grant Nelson (Pepperdine) has posted Confronting the Mortgage Meltdown: A Brief for the Federalization of State Mortgage Foreclosure Law, forthcoming in Pepperdine Law Review, 2010. The abstract:
This Article argues for federal preemption of state procedures governing the foreclosure of mortgages and security interests in rents. While it also suggests that federal action limiting or prohibiting state anti-deficiency legislation may be appropriate, it leaves this issue to future consideration. Thus, its major focus is to advocate the congressional adoption of both Uniform Nonjudicial Foreclosure Act (UNFA) and Uniform Assignment of Rents Act (UARA) to make them available to all lenders nationwide. However, the federal government has a special stake in greater uniformity for its own account. This is especially the case as to mortgages on real estate. The fallout of the economic crisis of the past year and a half has made it the owner or guarantor of millions of mortgages. It will be confronted with an overwhelming number of foreclosures that will survive all attempts at modification. Given the fact that Fannie Mae and Freddie Mac are now wards of the federal government, the federal stake in efficient and fair foreclosure procedures has become compelling. Forcing the federal government to foreclose possibly hundreds of thousands of mortgages judicially in many states seems almost surreal. Given the enormous cost of this crisis to the federal taxpayers, the government should not be held hostage to arcane and outmoded foreclosure procedures. Even in nonjudicial foreclosure states, the federalization of Fannie Mae and Freddie Mac probably necessitates changes in some statutes to comply with constitutional due process mandates. At the very minimum, the federal Single Family and Multifamily Acts with minor modifications should be made available to all federal agencies.
Sunday, March 21, 2010
Abraham Bell (San Diego & Bar Ilan) and Gideon Parchomovsky (Penn & Bar Ilan) have posted The Hidden Function of Takings Compensation. The abstract:
To date, scholars have justified the constitutional mandate to pay compensation for takings of property on the intuitively appealing grounds that fairness demands recompensing aggrieved owners; on the basis of a belief that government that fails to pay will suffer from “fiscal illusion” and take excessively; or due to the need to neutralize politically powerful property owners who would otherwise foil socially beneficial projects.
This Essay offers a new explanation of the role of takings compensation in ensuring good government. Inspired by public choice theory, we argue that takings compensation reduces the incentives for corruption by limiting corrupt politicians’ ability to profit from takings. Specifically, we show that mandating compensation reduces the funds self-serving politicians can extort from property owners. At the same time, mandating compensation permits publicly-oriented politicians to continue pursuing socially beneficial projects.
This explanation yields important insights into the optimal structure of takings compensation. First, current incentives to use eminent domain excessively in the service of private developers cannot be blunted by modifying compensation policy. Only by a separate policy that charges developers for the benefits they receive can reduce or eliminate such misuse of the taking power. Second, overcompensation is even worse than under-compensation insofar as corruption is concerned. For this reason, laws requiring the payment of fixed percentage bonus above market value to property condemnees are in error. Additionally, where judges are thought systematically to overrate the subjective value owners attach to their properties, market value compensation may have some merit. Third, public compensation cannot be replaced by a private insurance system, even if such insurance were practical, since insurance too would encourage corruption.
A couple of readers emailed me and asked if I'm still blogging here. The answer is a big "Yes". My lack of recent posts relates to this ongoing experience with publishing a general interest book--in this instance my new book entitled "Project Future: The Inside Story Behind the Creation of Disney World".
Unlike my first book on the SmartCode, this one was not directed toward a narrow, land use audience (though it was born out of a law review article I published with FSU's law review on improvement districts). Still, I figured that a few friends, family members, and colleagues would buy the book and I might do a signing or two locally.
Well, in the lingo of that wise Jedi named Yoda, "Wrong was I."
Now, let me be clear: I'm not complaining at all. The entire experience has been eye-opening and exciting. However, little did I expect to find such interest in how Disney World first got started. I've done podcasts, interviews with blogs, websites, book reviews, and even the main Orlando daily paper.
Now, a small book/presentation tour has been set for late June in Central Florida (if you want all the details on these things just check out Project Future Book on Facebook--that's kind of the semi-official repository of all things Project Future book-related).
Hopefully this doesn't all sound like a lame excuse for being a land use blogging slacker of late. I've had several things come across my desk that really warrant sharing. And, after I knock out a few things on Monday of this week, I'll be back with a host of posts.
In the meantime, thanks to our excellent readers and my fantastic blogging colleagues for their patience.
As Gawverner Awnawld once said "I'll be bock" :)
--Chad Emerson, Faulkner U.
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- Jesse Richardson on Local Regulation of Hydraulic Fracturing
- Jamie Baker Roskie on Local Regulation of Hydraulic Fracturing
- Samuel on Schleicher and Rauch on local regulation of the sharing economy
- Timothy Wayne George on Is Reed v. Town of Gilbert an important sign case?
- Jessie Owley on 10th Circuit Disallows Conservation Easement Deduction Where Mortgage Not Subordinated at Time of Donation
- "Basic Human Right" to Farm Your Lawn?
- CFP: Fordham Law: Sharing Economy, Sharing City: Urban Law and the New Economy
- Fennell and Peñalver on Exactions Creep
- March 11-13: Rocky Mountain Land Use Institute's annual conference: Western Places/Western Spaces: Building Fair & Resilient Communities
- Local Regulation of Hydraulic Fracturing