Friday, April 2, 2010

Chase on the Homeownership Society and Rental Stability

Arlo M. Chase (Brooklyn) has posted Rethinking the Homeownership Society: Rental Stability Alternative.  The abstract:

This paper radically challenges two of the dominant theories about housing policy: (a) that promoting homeownership is the best way to achieve household and neighborhood stability; and (b) that rent regulation has no place in competitive and thriving rental markets.

I argue that our national housing policy has failed by overemphasizing and over-subsidizing homeownership and by neglecting the rental market. These policies have not served the purported goals of individual and community stability. Indeed, over-subsidizing homeownership and home borrowing incentivized millions of households to overstretch their budgets in order to purchase homes, thereby contributing to the foreclosure crisis. The resulting housing instability has been further exacerbated by the failure of the rental markets to provide affordable and stable housing for low- and moderate-income households.

To address this increasingly untenable situation, I propose a rental stability program that would offer tenants an option for longer lease terms, rights to lease renewal, temporary regulation of rents, and federal rental subsidies to cover rent increases for rent-burdened low- and moderate-income households, while maintaining market-based incentives for owners to create new rental housing units and maintain existing ones. While my program takes pains to avoid many of the pitfalls of some “strict” rent regulation schemes, I do not shy away from the need to regulate rents for some finite period.

While they are not as dire as predicted by economists, I acknowledge that there are costs to rent regulation and my program is designed to minimize those costs. The specific consequences of rent regulation that often result, and that my proposal seeks to minimize, include: (i) the emergence of a “shadow” or “black” market for rental units; and (ii) incentives for landlords and tenants to litigate. My program would mitigate these and other unintended consequences by making the rent regulation time limited and subjecting all units in a jurisdiction to its purview. In the final assessment, states and localities considering my program would likely accept any small costs in market inefficiencies because of the gains achieved by increasing tenant stability.

This paper zeroes in on one of the important topics ripe for discussion today--the future viability of the homeownership paradigm--and offers an interesting proposal.

Matt Festa

April 2, 2010 in Affordable Housing, Housing, Mortgage Crisis, Scholarship | Permalink | Comments (0) | TrackBack (0)

Trisolini on Local Governments and Climate Change Regulation

Katherine Trisolini (UCLA) has posted All Hands on Deck: Local Governments and the Potential for Bidirectional Climate Change Regulation, Stanford Law Review, Vol. 62, p. 669 (2010).  The abstract:

In line with accepted theories of environmental law, many prominent environmental law scholars have dismissed the climate change plans of U.S. cities and other local governments, presuming that these efforts will have no more than a trivial effect on greenhouse gas emissions. Drawing upon economic theories, others find local “piecemeal” efforts not only ineffective, but also potentially harmful to the prospects for a successful national emissions reduction program. In contrast, this Article argues that local governments have core regulatory powers in domains that will prove critical to a comprehensive response to climate change. Following a trend in scholarship that moves away from rigid prescriptions for either centralized or decentralized environmental regulation, this Article envisions local governments as important players in a multilevel governmental effort that regulates greenhouse gas emissions from the bottom up and the top down.

Matt Festa

April 2, 2010 in Climate, Environmental Law, Local Government, Scholarship | Permalink | Comments (0) | TrackBack (0)

Salkin on Nonconforming Uses and Zoning

Patricia Salkin (Albany) has posted Abandonment, Discontinuance and Amortization of Nonconforming Uses: Lessons for Drafters of Zoning RegulationsReal Estate Law Journal, Vol. 38, p. 482, Spring 2010.  The abstract:

With a significant volume of litigation focused on the subject of nonconforming uses, this article offers practical strategies for drafters of local zoning ordinances and laws on the subject of abandonment, discontinuance and amortization of nonconforming uses.

This article proceeds from Prof. Salkin's observation from her invaluable Law of the Land blog that the issue of nonconforming uses generates an enormous amount of litigation.  The article is chock full of great practical examples from actual zoning ordinances, and will be of great use to planners and lawyers involved in drafting and interepreting nonconforming use standards. 

Matt Festa

April 2, 2010 in Local Government, Property Rights, Scholarship, Zoning | Permalink | Comments (0) | TrackBack (0)

Exciting New Initiative from Frank Alexander

Heidi Murphy in our PR department here at UGA law just directed my attention to a very interesting story in The National Law Journal.  Emory Law Professor Frank Alexander has just launched a new center to help cities revitalize abandoned and blighted properties.

The Center for Community Progress has secured $2 million in funding from the Ford Foundation and the Charles Stewart Mott Foundation, and has opened a headquarters in Flint, Mich., and a policy office in Washington...

The Flint headquarters will largely focus on assisting communities with handling vacant and abandoned properties. The Washington office will primarily handle policy issues on land use, Alexander said. There are multiple legal angles to the group's work, including pushing for property tax foreclosure reform, helping to pass local vacant property registration ordinances and modifying code enforcement procedures to help cities get abandoned properties up to code or facilitate transfers to new owners. The Center for Community Progress also wants to help communities tap into the $6 billion in funding the federal government has allocated in recent years for neighborhood stabilization.

Prof. Alexander has been a leading light on land use issues in Georgia and nationally for many years.  I'll be excited to see what comes of this latest effort.

Jamie Baker Roskie

April 2, 2010 in Federal Government, Georgia, Housing, Mortgage Crisis, Redevelopment, Urbanism | Permalink | Comments (0) | TrackBack (0)

Thursday, April 1, 2010

Josh Eagle on Notional Generosity and Conservation Easements

Josh Eagle (South Carolina) has posted Notional Generosity, forthcoming in the Harvard Environmental Law Review (2011).  The abstract:

This article explores a phenomenon that might be called “gift-form generosity”: people earning similar amounts of income are more willing to part with a dollar’s worth of one kind of property than another. Among all income groups, the form of property with which charitable donors are most willing to part is the “conservation easement.” Data show, for example, that the average charitable easement donation is more than 100 times greater in value than the total, annual charitable contribution made by the average American taxpayer. Why are donors so willing to part with conservation easements? The answer may lie in donors’ ability to engage in what I call “donative arbitrage,” that is, the opportunity to profit, in tax-benefit terms, from the difference between the donor’s subjective valuation of the property and the value a hypothetical “willing buyer” would pay for it. To the extent that this hypothesis is correct, donors may in many cases be willing to sell their easements for less than the amount they currently receive as a tax benefit. Overpaying for conservation easements reduces the amount of public money that would otherwise be available for much needed conservation on private land. Allowing deductions for easement donations also creates individual incentives that are opposite of those that would produce optimal results. Specifically, landowners who most prefer to keep their land in its current condition (and who would thus give up very little in agreeing to land-use restrictions) will be the most likely to donate conservation easements. On the other hand, because similar restrictions would be expensive to them, landowners who are most interested in developing their property will be the least likely to donate. Thus, easement subsidies are spent protecting the land that is least in need of the protection afforded by easements. The article concludes by suggesting several ways that Congress might change the law so as to improve the efficiency of conservation easement subsidies.

Matt Festa

April 1, 2010 in Conservation Easements, Environmental Law, Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

TDRs in Beaufort Part III

A couple of times now I've I posted about an interesting project Will Cook and I have in Beaufort, South Carolina, helping them implement a Transfer of Development Rights (TDR) program.  Our team went back to Beaufort last week, although I wasn't able to join them due to a schedule conflict. (I was at the Red Clay Conference.)

Today the local paper in Beaufort  ran an editorial supporting the TDR program.  As I've previously mentioned, TDRs are a popular idea in Beaufort because they potentially serve the twin goals of preserving rural land while protecting the Marine Corp Air Station from encroachment.  In the past several years the Department of Defense has been supporting Joint Land Use Studies in areas where bases and local land uses potentially conflict.  The Beaufort TDR program comes out of the Lowcountry JLUS.  This combination of federal and local resources makes implementation of a land conservation tool like TDRs uniquely viable.  I'll continue to post about developments.

Jamie Baker Roskie

April 1, 2010 in Planning, Property Rights, Transferable Development Rights | Permalink | Comments (0) | TrackBack (0)

Red Clay Conference

Last Friday was UGA's annual Red Clay Conference.  This student-organized conference is always a blast, and I often have the honor of moderating a panel.  The conference gets its name from the red Georgia clay, and the theme is always environmental.  This year's theme was "Three States, One River: Exploring the Tri-State Water Dispute."  The three states are Alabama, Florida and Georgia, and the river is actually a river system, the Apalachicola, Chattahoochee, Flint. 

I wasn't able to stay for the whole day, but in the morning I sat in on a fascinating presentation by participants in a stakeholder negotiation process that is happening alongside the (inevitable, it seems, for these types of water resource disputes) litigation.

Then I moderated a panel called "Is Atlanta Really the 800 Pound Gorilla?"  As you might imagine, this is a loaded question.  There is much controversy in the region about how to allocate water resources to provide drinking water for Atlanta, water for power generation for Alabama, and sufficient water supply to protect the ecosystem (and fishing industry) in Florida.  Our distinguished panelists included the lawyers who represent Atlanta and the State of Georgia in current litigation over Lake Lanier (which until a recent court decision was a primary water source for several counties and municipalities in North Georgia.)  Needless to say, it was a lively discussion.  My friend and colleague Gil Rogers from Southern Environmental Law Center was an audience favorite, and not just because he does comedy improv in his off hours. SELC has done some great work on the tri-state dispute over the years.  At any rate, all the panelists were incredibly articulate, passionate, and interesting.

The keynote speaker was Joseph Dellapenna of Villanova University School of Law who spoke about potential ways forward in the dispute.  The most interesting, and least practical, option he discussion was that the US Supreme Court could settle the dispute if it was asked to exercise original jurisdiction over a dispute between states. (Blast to Civil Procedure past, anyone?)  However, since they've been litigating that case since the 1920s, that's probably not the most expedient solution.

Jamie Baker Roskie

April 1, 2010 in Conferences, Environmental Law, Environmentalism, Federal Government, Georgia, Sun Belt, Water | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 31, 2010

More on Dirt Piles

Okay, I know we joke around that land use lawyers are "dirt" lawyers, but that's becoming literal for me.  As you may recall, I blogged recently about a giant dirt pile in our neighborhood.  Although everyone here in Athens agrees they've never seen anything like it, apparently rogue dirt piles are not a totally uncommon phenomenon.  One of my students, Chad Hayes, has been doing some research, and he ran across this article in The Roanoke Times.

My favorite quote from the article:

...the dirt pile is now a colossal heap, reaching toward the sky. It has been there so long it's covered with weeds and grass and has recently become a roosting place for a flock of turkey vultures.

Some of the residents of the neighborhood, where hundreds of town houses and single-family homes have been built in recent years, have expressed concern, dismay and even a bit of merry mockery.

"Mount Sinai?" Orange Leaf Court resident Judith Liberman joked when asked what she thinks about the mound, visible from her town house.

"I keep waiting for Moses to come down."

We've dubbed our own dirt pile "Mt. Price" (after the name of the street) but it's also been called "Price Hill."  I've even considered having t-shirts made.  Our dirt pile is less than a month old, so I dearly hope we dont' find ourselves Roanoke's situation three years later.

Jamie Baker Roskie

UPDATE: Chad Hayes just sent me this link, in which the developer filed what looks to me like a SLAPP suit against his critics.  The suit was ultimately dismissed.

UPDATE TWO - Here's a giant dirt pile on Florida's Intercoastal Waterway.

Of course, there are people who love dirt piles.

March 31, 2010 in Development, Environmental Law, Georgia, Humorous, Local Government | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 30, 2010

Mixed Income Transit-Oriented Development...

I was recently forwarded this interesting on-line tool that seeks to facilitate transit-oriented development.  Here's more from the site:

This Action Guide is a tool for local jurisdictions working to foster mixed-income transit-oriented development (TOD) around planned transit stations. The term “mixed-income TOD” (MITOD) is shorthand to describe a set of goals that includes the provision of a mix of housing choices, affordable to a range of incomes, for people at different stages of life within a specific transit station area. The goal of this guide is to help practitioners identify the most appropriate and effective planning tools for achieving MITOD in their transit station area, and ultimately to facilitate the development of mixed-income communities across the U.S..

This was very interesting to me as I just wrapped up the third and final "site visit" class with my Smart Growth Law seminar course.  For this site visit, we traveled from Montgomery to Atlanta where we spent the day riding Atlanta's mass transit system (known as MARTA) in search of how many of the transit stops offered a mix of commercial, residential, and office uses within a reasonable walk (we defined that as less than 4 blocks) of the station.

The results were simple:  not many.

Unlike the D.C. Metro system and several others, Atlanta's MARTA system is not very conducive to TOD.  Indeed, one of the primary uses appears to be for riders to drive to the station, park their car, and then ride from there. 

This scenario does not really promote transit use as an alternative to vehicular use.  Instead, it treats transit as simply a complement to the originating vehicular use.  Which means, if you can't drive (disabled, loss of license, can't afford a car, etc.), then the system is not really that useful in the big picture.

Fortunately, with many of the MARTA stops surrounded by parking, if demand rises, then it will be fairly simple (from a design perspective at least) to replace the parking with a mixture of compatible uses--thus creating more authentic TOD.

--Chad Emerson, Faulkner U.

March 30, 2010 | Permalink | Comments (1) | TrackBack (0)

Controversy Over U. of Maryland Environmental Clinic

Those of you not on any of the environmental law professors' or clinicians' listservs may not have heard about this, but there is quite a battle raging in Maryland over a case filed by the University law school's environmental clinic.

Below is a message regarding the controversy from Bob Keuhn, who was the subject of quite a controversy of his own when he was the director of the environmental clinic at Tulane.  Ironically, Bob is now the president of the Clinical Legal Education Association.


As the nation’s largest association of law teachers, with over 750 members representing faculty at over 150 law schools in the United States, we are very concerned about attacks on the clinical program at the University of Maryland School of Law by some members of the Maryland General Assembly.  These actions demonstrate a failure to understand the professional responsibilities of lawyers and the structure of contemporary legal education.  Unfortunately, those attacking the law clinics appear more concerned about protecting favored businesses from compliance with the law than about supporting one of their state’s flagship schools.

As with other professions, hands-on work is a necessary part of a solid, responsible legal education.  Every law school in America is required to provide its students with real-life practice experiences and the University of Maryland is among the best at doing so.  In national rankings by other law professors, the clinical law and environmental law programs at the University of Maryland have consistently been ranked among the top ten in the country.  Those programs benefit not just law students but all the citizens of Maryland by training ethical, skilled attorneys and providing countless thousands of hours of free legal assistance to those who otherwise cannot afford attorneys and would go unrepresented.

To effectively teach students and represent clients, these law clinics must be allowed to operate as other law offices, and law school clinics throughout the country, do -- zealously representing their client’s interests and following the commitment in the Maryland Rules of Professional Conduct to “ensure access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel.”  But, some legislators are trying to impose restrictions and burdens unknown to other clinics or law offices, invading  the sanctity of the lawyer-client relationship and harming both legal education and legal services for the needy in Maryland.

And even more disturbing is that this is happening at the bidding of wealthy, powerful poultry interests.  Those promoting these restrictions seem to think legal disputes should not be settled in court but through intimidation.  If the opponents of law clinic cases have violated no laws, then they have nothing to fear from a legal proceeding that will judge those issues.  If on the other hand they have failed to comply, then they should not be placed above the law because of their money and influence in the legislature.

Former Supreme Court Justice Potter Stewart once said that it is important to know the “difference between doing that which you have a right to do and that which is right to do.”  Whatever right the legislature may have to burden and intimidate the state’s law school clinics and interfere with their normal educational and professional responsibilities, taking those actions clearly is not the right thing to do for Maryland.
                                                                                                                                                                                        Robert R. Kuehn

You can read more about this story in The Baltimore Sun and The Washington Post.

March 30, 2010 in Environmental Law, Teaching, Water | Permalink | Comments (0) | TrackBack (0)

New Approaches to Urban Redevelopment

Saturday I attended a very interesting lecture by Ken Reardon, who is a planning professor at The University of Memphis and a founding member of the Memphis Regional Design Center (MRDC).  The lecture was part of an event called "Look at That!  Fresh Approaches for Urban Redevelopment in Athens."  The economy being what it is, many of our clients are looking for help with redevelopment, rather than combating sprawl, so I took the opportunity to attend this event, sponsored by the Athens-Clarke Heritage Foundation.

Reardon's lecture was very interesting.  First he had all the participants engage in a group dialogue about our vision for Athens' future.  Ideas included more urban agriculture, better downtown development, preservation of our small town character, and more affordable housing.

Then Reardon discussed how the MRDC has helped some of the most disadvantaged neighborhoods in Memphis, using team members from local design firms, University of Memphis, the Urban Land Institute, and other partners.  He declared himself most proud of a project that turned the largest outdoor drug market in Memphis into a farmers' market, which is truly a noteworthy accomplishment.  The center also played a key role in helping Memphis pass its new, form-based, Unified Development Code.  All the time he was talking, I was thinking, "We need that here!"  I'm planning to spend some time picking Reardon's brain over the next several months.

Jamie Baker Roskie

March 30, 2010 in Architecture, Community Design, Crime, Development, Downtown, Georgia, Historic Preservation, Housing, Sprawl, Zoning | Permalink | Comments (0) | TrackBack (0)

Two by Diamond on Affordable Housing

Michael Diamond (Georgetown) has posted two articles that were contributed to the recent Law, Property, & Society series book AFFORDABLE HOUSING AND PUBLIC-PRIVATE PARTNERSHIPS, Nestor M. Davidson & Robin Paul Malloy, eds., Ashgate Press, 2009.  The first article is titled Affordable Housing and the Conflict of Competing Goods: A Policy Dilemma (p. 1).  The abstract:

This paper, which was the keynote address at a conference on Affordable Housing and Pubic Private Partnerships at the University of Colorado Law School, is designed to point out the conflicts between various competing social “goods” in relation to the provision of affordable housing. In a world of finite resources in which competing goods cannot both be maximized at the same time, when the goods are incommensurable, how ought a society choose among them? The paper focuses on such issues as preservation of affordable housing and wealth creation; affordability and handicapped accessibility or green development. It examines various methods of societal choosing and provides a critique of each such method. It then cautions policy makers to be conscious of these incommensurable goals and to determine how to prioritize them.

The second paper is Another Model of Low Income Housing Tax Credit Development: Building Housing and Building Capacity (p. 51).  The abstract:

This paper was first delivered at a conference on Affordable Housing and Pubic Private Partnerships at the University of Colorado Law School. It addresses the creation of community institutions able to acquire and wield power in the affordable housing realm. While this ability has generally been associated with buildings purchased and operated by tenant groups, the paper suggests other affordable housing situations, particularly those developed under the Low Income Housing Tax Credit program, in which the accretion of power can occur. It proposes a model of tenant involvement in development and operation of affordable rental housing that can, in certain circumstances, create the type of durable institution normally associated with ownership.

Matt Festa

March 30, 2010 in Affordable Housing, Scholarship | Permalink | Comments (0) | TrackBack (0)

Stein on Private and Public Construction in Modern China

Gregory M. Stein (Tennessee) has posted Private and Public Construction in Modern China.  The abstract: 

During the past three decades, real estate development in China has proceeded at an astonishing pace, with much development occurring before China’s 2007 adoption of its first modern law of property. Investors thus spent hundreds of billions of dollars in the real estate market of a nation that, during most of this period, had no established property law. How can a huge nation modernize so rapidly and dramatically when its legal system furnishes such uncertainty? And how can this happen in a nation that still purports to subscribe to socialist ideology?

I set out to answer these questions by interviewing dozens of Chinese and Western real estate developers, bankers, government officials, lawyers, judges, economists, professors, and consultants. My goal was to learn how real estate development was actually proceeding on the ground and how these actors functioned in a world of significant legal ambiguity. Given the rapid evolution of China’s modern real estate market, a complete understanding of this market requires more than just a thorough knowledge of published statutes and cases.

My earlier field research examined the Chinese land use right - which serves as a surrogate for property ownership in a nation in which private citizens may not own land - and then focused on real estate finance. This Article continues the analysis of how China’s real estate market functions by turning to public and private construction in China. It examines the commercial construction process, the sale of residential units, commercial leasing, and the construction of infrastructure in China.

Matt Festa

March 30, 2010 in Comparative Land Use, Development, Property, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, March 29, 2010

Wilson & Klass on Climate Change, Carbon Sequestration, and Property Rights

Elizabeth J. Wilson (Center for Science, Technology and Public Policy, Humphrey Institute of Public Affairs, University of Minnesota) and Alexandra B. Klass (University of Minnesota Law) have posted Climate Change, Carbon Sequestration, and Property Rights, forthcoming in University of Illinois Law Review, Vol. 2010.  The abstract:

This Article considers the role of property rights in efforts to sequester underground hundreds of millions of tons of carbon dioxide (CO2) per year from power plants and other industrial facilities in order to mitigate climate change. This technology, known as carbon capture and sequestration (CCS), could provide deep emission cuts, particularly from coal power generation, on a worldwide basis. In order to implement this technology, future CCS operators must be able to access hundreds of millions of acres of "pore space" roughly a kilometer below the earth's surface in which to store CO2 for hundreds to thousands of years. Here, we explore questions relating to ownership of subsurface pore space, physical takings, regulatory takings, and just compensation that will necessarily accompany the implementation of CCS in the United States. In order to accommodate the full range of property rights and takings issues that will arise with CCS, we propose a regulatory framework based in part on the Natural Gas Act to address these issues in connection with subsurface CO2 storage.

Matt Festa

March 29, 2010 in Climate, Environmental Law, Property Rights, Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

New Book: Designing Planned Communities...

Daniel Mandelker has recently published a new book entitled "Designing Planned Communities".  Here's some information about the details:

Designing Planned Communities is a clear statement of the design issues that are critical to creating livable and well-designed planned communities. The book shows how design concepts for planned communities can be translated into effective design guidance by local governments. Examples of design standards are provided from comprehensive plans, design guidelines, design manuals, and planned community regulations.

For more information, here's a good link to the text and this link to some very useful images.

--Chad Emerson, Faulkner U.

March 29, 2010 | Permalink | Comments (0) | TrackBack (0)

EPA Touts Infill Redevelopment

Here's the latest press release from EPA's Smart Growth program

An updated U.S. Environmental Protection Agency report
shows a continuing shift in development toward urban neighborhoods in
the United States, despite a slow a real estate market.

This trend, described in EPA’s 2010 report, “Residential Construction
Trends in America’s Metropolitan Regions,” shows that redevelopment
continues in many urban neighborhoods. Taking advantage of opportunities
to reuse land and to redevelop underused sites is a key smart growth
strategy. It helps communities protect natural lands from being
developed, strengthens the local economy, and puts new homes, stores,
and jobs within easy reach of surrounding neighborhoods.

The data show that, compared to the early 1990s, the share of
construction in urban neighborhoods was up 28 percent in mid-sized
metropolitan regions that have promoted redevelopment of underused sites
and development around transit, such as Portland, Ore; Denver, Colo.;
and Sacramento, Calif. For example, in 2008 Portland issued 38 percent
of all the building permits within its region, compared to an average of
9 percent in the early 1990s; Denver accounted for 32 percent, up from 5
percent; and Sacramento accounted for 27 percent, up from 9 percent.

The latest report shows that an even stronger trend toward urban
redevelopment in the largest metropolitan regions continued in 2008. New
York City accounted for 63 percent of the building permits issued within
its region. By comparison, the city averaged about 15 percent of
regional building permits during the early 1990s. Similarly, Chicago now
accounts for 45 percent of the building permits within its region, up
from just 7 percent in the early 1990s.

The original report, issued in Feb. 2009, examined building trends in
the 50 largest metropolitan areas from 1990 to 2007. The update
incorporates data for 2008, which included several months of national
economic downturn.

More information on the report:

More information on EPA Smart Growth program:

Infill development is really great - unless is results in a giant dirt pile in your in-town neighborhood.

Jamie Baker Roskie

March 29, 2010 in Density, Development, Federal Government, Redevelopment | Permalink | Comments (1) | TrackBack (0)

Sunday, March 28, 2010

Three by Garnett

Nicole Stelle Garnett (Notre Dame), author of the recently-released Ordering the City: Land Use, Policing, and the Restoration of Urban America (Yale U. Press, 2010), has posted three new papers to SSRN this month.  The first, Unbundling Homeownership: Regional Reforms from the Inside Out, is forthcoming in the Yale Law Journal.  The abstract:

Two vexing puzzles plague American land use regulators. The first puzzle is how to protect property owners from harmful spillovers without unduly stifling land use diversity. The dominant forms of land use regulation in the United States - zoning and private covenants - rely on ex ante prohibitions. Yet, since local governments and private developers rarely can calibrate the level of regulation to residents’ true preferences, the costs imposed by these regulations tend to exceed the benefits of actual harm prevention. The result is the over-protection of property owners and, and, many would argue, a monotonous, sterile, inefficient, and inconvenient suburban landscape. The second puzzle is how to address the intrametropolitan inequalities resulting from the fragmented distribution of regulatory authority without undercutting the beneficial effects of inter-jurisdictional competition. While this puzzle extends beyond property law, land use regulations are particularly problematic because they empower local jurisdictions to exclude unwanted residents. The difficulty is, however, that most proposed strategies to address this second puzzle threaten to undermine the efficiency gains that are produced when, as Charles Tiebout influentially predicted, local governments compete with one another for residents. By treating these two land use puzzles as property-entitlement problems, rather than regulatory-design problems, The Unbounded Home breaks free from standard land-use and local-government debates and offers novel solutions to address seemingly intractable difficulties. This review focuses on the two of Fennell’s proposals that, in my view, hold the most promise: First, the use of “entitlements subject to self-made options” or “ESSMOs”, to address local land use spillovers; and second, the reconfiguration of home-ownership to minimize owners’ incentives to demand that exclusionary land use policies.

Garnett's second article, coauthored with Margaret F. Brinig (Notre Dame), is Catholic Schools and Broken Windows.  The abstract:

This paper represents the second stage of an effort to test previously unstudied implications of a dramatic shift in the American educational landscape, namely, the rapid disappearance of Catholic schools from urban neighborhoods. In a previous study, we used data from the Project on Human Development in Chicago Neighborhoods to measure how Catholic school closures affected perceived levels of disorder and social cohesion in Chicago neighborhoods. In this paper, we use data provided by the Chicago Police Department to test two related hypotheses about the effects of Catholic school closures on violent crime rates. The first is that Catholic school closures will lead, in relatively short order, to increased crime in a neighborhood. The second is that that crime will increase most dramatically in those police beats where previous school closures led to elevated levels of physical and social disorder and suppressed levels of social cohesion in 1995. We find that Catholic school closures are linked to increase in violent crimes, and that the most significant increases occur in police beats with the highest levels of school-closure-related disorder and -suppressed social cohesion in 1995.

Our study contributes in unique ways to two critical legal-policy debates about policing and education policy. First, and most significantly, our data provides a novel means of testing the broken windows hypothesis. We know, from our previous investigation, where school closures have elevated disorder and suppressed social cohesion, and, using a 3SLS analysis to solve simultaneous equations, we are able to link these findings with subsequent elevated levels of serious crimes. These findings suggest a connection between disorder and serious crime, even if not the direct one posited by Wilson and Kelling. Second, the study contributes new and important evidence to debates about school choice, especially in light of the very real possibility that urban Catholic schools will continue to disappear unless new sources of tuition assistance become available to the students that they serve.

Finally, Garnett has posted Order-Maintenance Agenda as Land Use Policy, forthcoming in the Notre Dame Journal of Law, Ethics, and Public Policy.  The abstract:

Debates about the broken windows hypothesis focus almost exclusively on whether the order-maintenance agenda represents wise criminal law policy — specifically on whether, when, and at what cost, order-maintenance policing techniques reduce serious crime. These questions are important, but incomplete. This Essay, which was solicited for a symposium on urban-development policy, considers potential benefits of order-maintenance policies other than crime-reduction, especially reducing the fear of crime. The Broken Windows essay itself urged that attention to disorder was important not just because disorder was a precursor to more serious crime, but also because disorder undermined residents’ sense of security. The later scholarly explications of the broken windows hypothesis also emphasize the connection between restoring the perception of security and its reality. One reason that social norms scholars link disorder and crime is that disorder has a predictable effect on law-abiding citizens: those with financial resources move away from, or choose not to move into, disorderly neighborhoods; those without resources remain inside and avoid public places. Even if these reactions (somewhat surprisingly) do not lead to more crime in a community, they certainly disadvantage city neighborhoods vis-à-vis their suburban alternatives. Moreover, and importantly, the goals of reducing crime and of helping poor, inner-city residents feel better about, and more vested in, their communities are not necessarily coterminous; order-maintenance policies might achieve the latter without achieving the former. In other words, it might be the case that order-maintenance policies “work” even if they do not curb serious crime.

These articles relate to Prof. Garnett's important work set forth in Ordering the City.  You may also be interested in a recent series of posts on Prawfsblawg on Ordering the City, with contributions from Ben Barros, Tracey Meares, Chris Serkin, Lee Fennell, Stephen Clowney, and Michele Wilde Anderson.

Matt Festa

March 28, 2010 in Books, Crime, Density, Local Government, Property Theory, Scholarship, Zoning | Permalink | Comments (0) | TrackBack (0)