Saturday, April 10, 2010
Robin Paul Malloy (Syracuse) has posted Mortgage Market Reform and the Fallacy of Self-Correcting Markets, Pace Law Review, Vol. 30, p. 79 (2009). The abstract:
The article discusses the mortgage market collapse in connection to the broader financial crisis. In developing the argument I proceed in several steps. First, I discuss the fallacy of self-correcting markets as a way of explaining the need for volitional and purposeful regulation in the housing and mortgage markets. This involves explaining that markets are not self-correcting; while Alan Greenspan and company waited for the invisible hand to appear and correct the mortgage markets, the system collapsed. Second, I provide an overview of the basic exchange relationships among the parties involved in the underlying real estate transaction, those in the primary and secondary mortgage market, and potential investors in mortgage related securities. Third, I explain the inapplicability of Hernado DeSoto's idea of parallel lives between underlying real estate transactions and the market for securities based on the mortgages in these underlying transactions. And, fourth, I suggest a series of regulatory and transactional reforms to consider for improving the soundness of the underlying real estate transaction and the operation of the primary mortgage markets. These reforms include: taking steps to reduce speculation in housing prices; eliminating incentives for over borrowing and over lending; and, adjusting the structure of the underlying real estate transaction to undermine an inverse prisoner’s dilemma problem. I also suggest that lawyers reassert themselves into doing basic real estate transactions and that real estate sales people and others be restricted to simply doing the sales work that they are trained to do.
Friday, April 9, 2010
Unfortunately YJ doesn't allow access to the current issue on-line. Fortunately the manufacturer of this particular type of home has a website profiling this particular house. It includes a 300 square foot yoga and meditation loft, and according to YJ it's "minimalist, energy efficient, and light on the landscape."
But does it improve your karma?
Jamie Baker Roskie
Brian Sawers (O'Connor Fellow, Arizona State) has posted Is the Right to Exclude Fundamental to Property? The abstract:
Kaiser Aetna identifies the right to exclude as a core element of property, without distinguishing improved from unimproved land. This Article argues that the Constitution does not mandate landowner’s right to exclude from unimproved land. Most scholarship assume a right to exclude and ignores the role that race played in the development of the doctrine. Kaiser Aetna and its progeny inappropriately federalize property law, a matter best left to the states. When policing conflict, this Article proposes that competing uses should guide the inquiry.
Matt Festa alerted me to this piece; apparently he loved his time visiting at UGA so much that he still reads the local paper. One of the editors of the Athens Banner-Herald recently visited Seaside and decided maybe New Urbanism isn't so bad after all. The examples we've had of mixed-use development here in Athens have not been very successful - the usual opposition to density and trouble getting appropriate commercial have been bugaboos here. If Athens were ever to get a development that had the quality of Seaside (although how could you ever replicate the sea views?) folks here might better be able to get behind the concept.
Jamie Baker Roskie
Thursday, April 8, 2010
The South Texas College of Law is pleased to invite the public to what promises to be a very interesting forum called Land Use in the Unzoned City: Regulation, Property Rights, and Smart Growth in Houston's Future. From the program:
Houston is the only major city in the U.S. without traditional zoning. What should the government’s role be in regulating land use and development? How should the law and the land intersect? Should Houston stay as it is, adopt zoning, or consider Smart Growth principles to reduce sprawl and protect the environment? Do regulations and policies to promote New Urbanism or transit-oriented development work, and are they right for Houston? Our panelists will offer their perspectives on the future of land use in Houston and across the U.S.
Panelists: David Crossley, President & Founder, Houston Tomorrow Kendall Miller, CEO, Houstonians for Responsible Growth Prof. Asmara Tekle, Texas Southern University Moderator: Prof. Matthew Festa, South Texas College of Law
David Crossley, President & Founder, Houston Tomorrow
Kendall Miller, CEO, Houstonians for Responsible Growth
Prof. Asmara Tekle, Texas Southern University
Moderator: Prof. Matthew Festa, South Texas College of Law
When: Tuesday, April 13, 12:00 noon
Where: South Texas College of Law, 1303 San Jacinto, Downtown Houston, Garrett-Townes Auditorium
The event is being hosted by the student Real Estate Law Society, with co-sponsorship from Houston Tomorrow and Houstonians for Responsible Growth. I'm very much looking forward to it. If you can be in Houston next Tuesday, we'd love to have you attend (did I mention free lunch?). Contact me if you have any questions.
April 8, 2010 in Community Design, Conferences, Density, Development, Form-Based Codes, Houston, Lectures, Local Government, New Urbanism, Planning, Smart Growth, Smartcode, Sprawl, Transportation, Urbanism, Zoning | Permalink | Comments (0) | TrackBack (0)
It sounds like Houston County, Minnesota has a fairly strong restriction on building residences in agriculture. Strong enough that it may get them sued according to this article:
The Houston County battle primarily stems from zoning regulations that require single-family homes built in agricultural areas be on at least 40 acres, unless it's a farming-related residence. The group of "500 or so" landowners are willing to work with county officials to alleviate their concerns, she said. But Budd-Falen also served notice that unless the "serious violations" are addressed within 30 days, the county will be sued.
Apparently, the conflict began when a resident purchased 8 acres and wanted to build a house.
That land was located in the 40 acre minimum ag zone:
The clash over the zoning laws dates back to 2005, when Matthew Solum bought a Spring Grove, Minn., home on about 8 acres from his cousin in an area with the 40-acre requirement. County commissioners in October 2007 denied Solum's request for a conditional-use permit to allow the home. Solum then sued the county but lost both in district court and in the Minnesota Court of Appeals. He requested the Minnesota Supreme Court consider the case, with eight Republican lawmakers filing briefs in support, but the high court declined in April 2009.
Apparently, the citizens group feels as if it would have better results than Mr. Solum. While the 40 acre minimum may sound high, there is a caveat: a house can be built on less than 40 acres in that ag zone if the house is a farm-residence.
Meaning that, you can have farms (with a homestead) that are smaller than 40 acres in the zone but you cannot have residences-only on smaller than 40 acres. That actually seems to make some sense, unless the ag zone is overly-expansive in its total scope.
--Chad Emerson, Faulkner U.
George Lefcoe (Southern California) has published Jeff Benedict's Little Pink House: The Back Story of the Kelo Case, reviewing Benedict's book on the Kelo saga. The abstract:
Little Pink House is a fast paced account by Jeff Benedict of the events surrounding the 2005 U.S. Supreme Court decision in Kelo v. City of New London. Along with tracking Benedict’s story line, this review also highlights some of the core legal and policy issues that are an important part of the story for law-trained readers. At the core of the tale is how Kelo and a handful of her neighbors challenged the New London Development Corporation’s (NLDC) use of eminent domain for the economic redevelopment of the Fort Trumbull neighborhood. A libertarian-inspired public interest law firm named the Institute for Justice (IJ) agreed to represent the beleaguered property owners.
The paper copy of the review also includes some great aerial photos of the land at issue. From the conclusion:
Who would have imagined that a book about an eminent domain case could be an irresistible read? Benedict is a great storyteller who takes us behind the scenes in a series of pitched legal battles. He does not allow his IJ-tilted spin to spoil the fun. Little Pink House is chock full of delicious anecdotes, heated encounters, even a touching love story.
Sounds like a good summer read!
Wednesday, April 7, 2010
Witold Rybczynski--Slate's architecture critic, U. Penn. professor, and author of several wonderful and accessible books on design and the built environment in America--has a short but compelling article called Don't Plan on it: Centralized City Planning is not the Answer to the Problems Facing America's Cities. Some highlights:
According to [Obama urban czar Adolofo] Carrión, smart planning involves a combination of walkable communities, mass transit, and bicycle paths, and who could argue with that, except that in the last 40 years, our faith in centralized city planning has changed radically. In short, we've lost it. . . . Urban renewal destroyed rather than repaired inner-city neighborhoods, expressways promoted urban blight, and the projects proved environmentally and socially dysfunctional. The forces shaping our cities today are not municipal agencies but private organizations such as park conservancies, downtown associations, historic-preservation societies, arts councils, advocacy groups, and urban universities. Entrepreneurship also plays an important role. In projects large and small, real estate developers have replaced city planners and bureaucrats as the chief players on the urban scene, restoring neighborhoods, attracting residents to downtowns, helping to create the amenities that keep them there. The important lesson is not that city planning is unimportant but, rather, that urban development should not be implemented by the public sector alone and that in a democracy, a vision of the future city will best emerge from the marketplace. (That it may turn out to be a messy vision, lacking a grand aesthetic, Jane Jacobs long ago acknowledged.) The simple truth is that successful city-building is less about big moves and more about perseverance and day-to-day management. . . . Talk of economic stimulus packages raises the temptation to undertake large publicly planned projects again. This temptation should be resisted. The lessons of the last 50 years should not be forgotten. To rephrase that great city planner, Daniel H. Burnham, make no big plans, only many small ones. Matt Festa
According to [Obama urban czar Adolofo] Carrión, smart planning involves a combination of walkable communities, mass transit, and bicycle paths, and who could argue with that, except that in the last 40 years, our faith in centralized city planning has changed radically. In short, we've lost it. . . . Urban renewal destroyed rather than repaired inner-city neighborhoods, expressways promoted urban blight, and the projects proved environmentally and socially dysfunctional.
The forces shaping our cities today are not municipal agencies but private organizations such as park conservancies, downtown associations, historic-preservation societies, arts councils, advocacy groups, and urban universities. Entrepreneurship also plays an important role. In projects large and small, real estate developers have replaced city planners and bureaucrats as the chief players on the urban scene, restoring neighborhoods, attracting residents to downtowns, helping to create the amenities that keep them there.
The important lesson is not that city planning is unimportant but, rather, that urban development should not be implemented by the public sector alone and that in a democracy, a vision of the future city will best emerge from the marketplace. (That it may turn out to be a messy vision, lacking a grand aesthetic, Jane Jacobs long ago acknowledged.)
The simple truth is that successful city-building is less about big moves and more about perseverance and day-to-day management. . . . Talk of economic stimulus packages raises the temptation to undertake large publicly planned projects again. This temptation should be resisted. The lessons of the last 50 years should not be forgotten. To rephrase that great city planner, Daniel H. Burnham, make no big plans, only many small ones.
You may have heard the news a couple of weeks ago that Fess Parker passed away on March 18, 2010. The actor was most famous for his iconic portrayal of Davy Crockett in the Disney tv/movie series in 1954. My students will tell you that one of my little-known (and probably little-valued) talents is that Prof. Festa can turn anything into a land use story. So here we go . . .
Davy Crockett, if you know the Disney theme song, was "King of the Wild Frontier." He was born on a mountain top in Tennessee, which happened to be the greenest state in the land of the free. That in itself speaks to American conceptions of land use. Understanding that the Disney version was a 1950s conceit, let's put that aside for a moment and look at the Davy Crockett legend.
Some critics have complained that the Davy Crockett popularity of the 1950s was contrived or manufactured. But they miss the point that the original Davy Crockett legend of the 1830s was also entirely manufactured. I don't doubt that Crockett the man was handy with a rifle and earned his frontier bona fides, but so did a lot of people in his time. Crocket went to Congress and had a best-selling autobiography based on his marketing of himself as the epitome of a frontier archetype. Coonskin cap and all that. The dandies on the East Coast ate it all up. But it was an early example of the mythic power of the west in American memory: the notion that the land is untamed, and due to be settled and made productive by Americans of rugged determination and character.
Fess Parker's portrayal followed Crockett from the frontier to Congress and then down to Texas. I've bloggged about the role of the Alamo in Texas historical memory. Here the land use story, as Crockett participates in it, transforms from taming the frontier to defending natural "American" rights to possess and use the land against oppression. We'll set aside for now the controversy over whether Davy Crockett actually tried to surrender at the Alamo, as opposed to the mainstream/Disney portrayal as having gone down swinging.
Parker's portrayal of Crockett as an American frontier archetype of quiet heroism, conviction, and moral certitude, was so popular (we'll return to the 1950s context in a moment) that he was essentially typecast out of many other roles. Parker's second major role was Daniel Boone in a highly popular TV run from 1964-70. I've always thought of Boone and Crockett as very different figures (Boone was a half-century older) but historical memory and pop culture have reduced them to the same coonskin cap. Daniel Boone was perhaps the original American symbol of expansive land use. Boone was the leader of the pioneers who settled Kentucky, and later in life he moved to Missouri because he needed more "elbow room," according to legend.
So Fess Parker portrayed two iconic historical figures who symbolized the American frontier story of land settlement and development. Fast forward to the 1950s. When Disney showed Parker's Crockett in 1954-55, America went nuts. They couldn't make fake coonskin caps fast enough to sell to boys in the U.S., England, and elsewhere. So we can also place Parker's Crockett as a very important event in the story of postwar suburbanization. Millions of families in Levittowns and other new neighborhoods gathered around their relatively new TVs to enjoy the Disney presentation of the American story as told through Fess Parker's Crockett. The popularity of the show became one of the defining moments of the postwar era.
One last item that cements Fess Parker as a legend of land use is his post-Hollywood career: he became a real-estate developer! Parker developed a number of properties in southern California, including hotels, resorts, and a winery that bears his name.
Farewell Fess Parker, American land use icon.
Luigi Zingales (U. Chicago--Business) has an interesting article in the latest City Journal called The Menace of Strategic Default: Homeowners who walk away from their mortgages undermine our financial system. The idea of "strategic default" is that it might be economically rational for owners of underwater mortgages--where the debt owed is greater than the market value of the home--to walk away, even if they can in fact afford to keep making payments. Zingales looks at the numbers and surmises that while still low, the number of such "strategic defaults" is on the uptick. He posits that the only thing preventing a mass movement of strategic defaults is the lingering American normative disapproval of failing to pay debts:
What does prevent people from strategic default, it seems, is their sense of what’s right. More than 80 percent of Americans think that it’s immoral to default on a mortgage if you can afford to pay it, according to a recent paper by Luigi Guiso, Paola Sapienza, and myself, and these people are 77 percent less likely to declare their intention to default strategically than people who don’t find the act immoral.
Zingales is concerned that a breakdown of this social norm could put the entire system at risk.
How much risk? If the underwater homeowners who currently refuse to default changed their minds and decided to abandon their mortgage commitments, the results could be catastrophic. The more people walk away, the more houses get auctioned off, further depressing real-estate prices. This additional decline would push more homeowners into negative territory, leading to still more defaults.
To prevent the catastrophe resulting from such a normative breakdown, Zingales and Eric Posner offer a proposal:
Eric Posner and I have proposed a simple solution to the problem of underwater mortgages. We envision a reform of the bankruptcy code that, in areas where house prices have dropped precipitously, would require lenders to give homeowners the option of resetting their mortgages to the current value of their houses. In exchange, the lenders would get 50 percent of the houses’ future appreciation.
Interesting analysis; read the whole thing.
Tuesday, April 6, 2010
I often tell my land use students that there is hardly any public policy or private law issue that doesn't have some sort of land use question involved, if for no other reason than because all human activity necessarily takes place on land, and land is a unique and finite resource. The conflict between public law and private rights is often fought over land use controversies. Furthermore, I often advise con-law junkies that in practice, many constitutional issues involving civil rights and liberties are played out in disputes over land use rights and regulations (see, e.g., exclusionary zoning, billboard regulation, sexually-oriented businesses, and RLUIPA).
Proving my point in a new way is an article posted by Jamie L. Wershbale (U.S. Dept. of Housing & Urban Development) titled The Second Amendment Under a Government Landlord: Is There a Right to Keep and Bear Legal [Fire]Arms in Public Housing?, forthcoming in St. John's Law Review, Vol. 84. The abstract:
This article explores the constitutionality of banning legal firearms in government-owned public housing developments, an issue which is far from clear. Public housing is federally-subsidized low-income housing, owned and operated by local governmental entities known as Public Housing Authorities (“PHAs”). Many PHAs nationwide have banned all firearm possession on PHA-owned premises, based on their authority as landlords, property-owners, and in exercise of their inherent police power to control crime. Such bans potentially violate public housing tenants’ gun ownership rights, under either state law or the Second Amendment. This article evaluates public housing firearm bans in light of the right to armed self-defense articulated in District of Columbia v. Heller, and in contemplation of Second Amendment incorporation under the forthcoming Chicago v. McDonald decision. The analysis considers the constitutionality of public housing firearm bans under federal housing law, state law, and the Fourteenth Amendment, with an eye towards future litigation.
I'll bracket Ken Stahl's excellent post below, on local development politics in the context of the real estate bust, with another interesting article by Nestor Davidson (Colorado): Values and Value Creation in Public-Private Transactions, Iowa Law Review, Vol. 95, No. 937 (2009). The abstract:
Scholars have developed a significant body of literature exploring the work of deal lawyers with the essential insight that attorneys acting as transaction-cost engineers have unique potential to add to the overall value of deals. This value-creation literature has traditionally made two foundational assumptions about the role of the state in transactional law. First, scholars have assumed that regulation is essentially irrelevant to transacting - that from the deal lawyer’s perspective, the government is a factor only to the extent that the state will enforce private agreements. Second, scholars have assumed that private parties uniformly view public policy as a constraint in the realm of compliance - that from the deal lawyer’s perspective, clients are indifferent, if not hostile, to regulatory goals. The first assumption is the subject of recent scholarship convincingly arguing that regulatory arbitrage should be added to the picture of deal lawyers as transaction-cost engineers. The second assumption, however, has gone unchallenged and is the focus of this Article.
Although the value-creation literature envisions a monolithic orientation toward the state, in practice, partnerships that engage the private sector in advancing a variety of public goals represent both a significant sector of the economy and one of the central contemporary approaches to policy by federal, state, and local governments. Deal lawyers are thus increasingly called upon not only to reduce transaction costs and leverage regulatory constraints, but also to manage a complex alignment of interests between private means and public ends. In short, lawyers in public-private transactions perform what this Article calls regulatory translation - transmogrifying the often abstract goals of public policy into the concrete mechanisms of private ordering.
This Article makes two primary contributions to the literature. First, it identifies an increasingly important transactional context largely ignored by scholars investigating the work of deal lawyers. Second, the Article gives a normative, theoretical grounding for that work, providing a framework that has the potential to enhance the advantages and mute the problems associated with public-private partnerships. Ultimately, lawyers in this context can create value in the broadest sense of the word, and there are lessons in this for deal lawyers in all transactions.
In my previous posts, here and here, I discussed the nature of local growth politics in southern California and elsewhere. The central dynamic of local growth politics nationwide is the conflict between developers and homeowners about whether, where, and what form new development should take. This dynamic presupposes that growth is something perpetual and that the critical issue is how to "manage" growth in the same way we would use dams and levees to manage a raging river. The history of Los Angeles and other sunbelt cities certainly gives us much reason to believe that growth is indeed inexorable unless some force of nature (such as extremely arid or mountainous terrain), some accident of history (such as the huge landholdings of the Irvine company), or some political movement (such as the environmental and slow-growth movements of the 1970s and 80s), applies the brakes. And according to the "growth machine" school, even these latter forces can only re-direct or temporarily slow growth.
The events of the last few years, however, have cast doubt on whether growth is in fact perpetual and inexorable, as we are now seeing ghost-town residential subdivisions appearing on the fringes of many once booming cities and established neighborhoods becoming gap-tooted with boarded up, foreclosed homes. It was no force of nature, political movement, or accident of history that caused this downturn, however, but rather the very idea that growth was going to continue perpetually. As property values were increasing up to 30% a year, interest rates were low and mortgages were easy to get even for the worst credit risks, real estate began to be seen as a fool-proof and inflation-proof investment, with no thought that there would eventually be a market correction. Unbounded optimism about growth drove real estate values higher until the now-infamous "bubble" burst. Today we look back on this bygone era as some sort of extended Ponzi scheme, and those who peddled the benefits of growth as glorified scam-artists. Many are calling for more stringent regulation of the mortgage-backed securities market, prosecution of predatory lenders, or the deconstruction of the long-cherished ideal of homeownership.
As part of the postmortem on the real estate crisis, we should question what the future of growth politics holds. Will NIMBY homeowners become more favorably disposed to development as growth-driven revenue slows to a trickle? With property values collapsing, will homeowners begin to challenge the suite of public policies (highway subsidies, mortgage interest deductions, Euclidean zoning, etc.) that have long reified the idea of homeownership? Will developers see the need to build high-density transit-oriented development rather than undertaking speculative homebuilding in the exurbs? Will they work with community groups to avoid costly delays as their profit margins get thinner?
We can only speculate as to the answer to these questions, but my research leads to the preliminary conclusion that no, the dynamics of growth politics have not substantially changed. To the contrary, anecdotal evidence suggests that the real estate slowdown may deepen the existing animosity between developers and homeowners. On one hand, the real estate downturn has resulted in increased cynicism about the traditionally pro-growth policies of local governments. In Florida, a grassroots movement called “Hometown Democracy” is pushing a ballot measure for November 2010 that would require voter referenda on all amendments to a general plan. In its campaign literature, Hometown Democracy argues that land use control needs to be taken out of the hands of local officials, whose habit of “rubberstamping speculative plan changes” caused Florida’s “destructive boom-bust cycle.” On the other hand, influential students of urban development like the New Urbanist scholar Andres Duany have pinned the blame for the real estate crisis squarely on NIMBY homeowners, who supposedly perpetuated sprawl to safeguard their own lifestyle. In short, the anecdotal evidence indicates that the polarized discourse of growth politics is unlikely to subside any time soon.
I invite you to share your own thoughts about how, if at all, the real estate crisis may alter the dynamics of local growth politics or other aspects of land use law or policy.
Nestor M. Davidson (Colorado) has posted Reconciling People and Place in Housing and Community Development Policy, Georgetown Journal on Poverty Law Policy, Vol. 16, No. 1, 2009. The abstract:
In housing and community development theory, scholars have long debated tensions between place-based policies and those that focus on fostering mobility. In practice, this is a false dichotomy and this essay explores ways in which place-based policies change the calculus of mobility, while mobility policies deeply shape both the communities people seek and those they leave behind.
The Fifth International Design Principles & Practices Conference is accepting submissions. To read about the conference and view the call for papers, go to the Design Principles & Practices website. Here are some of the details:
FIFTH INTERNATIONAL CONFERENCE ON DESIGN PRINCIPLES AND PRACTICES
University of Rome
2-4 February 2011
Next year's conference will be held in Rome, Italy. The Design Conference is a place to explore the meaning and purpose of 'design', as well as speaking in grounded ways about the task of design and the use of designed artifacts and processes. The conference is a cross-disciplinary forum that brings together researchers, teachers and practitioners to discuss the nature and future of design. In professional and disciplinary terms, the conference traverses a broad sweep to construct a dialogue which encompasses the perspectives and practices of: anthropology, architecture, art, artificial intelligence, business, cognitive science, communication studies, computer science, cultural studies, design studies, education, e-learning, engineering, ergonomics, fashion, graphic design, history, information systems, industrial design, industrial engineering, instructional design, interior design, interaction design, interface design, journalism, landscape architecture, law, linguistics and semiotics, management, media and entertainment, psychology, sociology, software engineering and telecommunications.
This highly inclusive format provides conference delegates with significant opportunities to connect with people from shared fields and disciplines and with those from vastly different specializations. The resulting conversations provide ample occasions for mutual learning, often weaving between the theoretical and the empirical, research and application, and market pragmatics and social idealism.
As well as an international line-up of plenary speakers, the conference will also include numerous paper, workshop and colloquium presentations by practitioners, teachers and researchers. Presenters may choose to submit written papers for publication in the refereed Design Principles and Practices: An International Journal. If you are unable to attend the conference in person, virtual registrations are also available which allow you to submit a paper for refereeing and possible publication, as well as access to the journal.
Whether you are a virtual or in-person presenter at the Design Conference, we also encourage you to present on the conference YouTube Channel. Please select the online sessions link on the conference website for further details.
The deadline for the next round in the call for papers (a title and short abstract) is 15 April 2010. Future deadlines will be announced on the conference website after this date. Proposals are reviewed within two weeks of submission. Full details of the conference, including an online proposal submission form, may be found on the conference website at www.Design-Conference.com.
Sunday, April 4, 2010
Irwin Stelzer has a column in the business section of the Sunday Times Online (UK) called Housing market could spoil the recovery party. He begins on a positive note:
The gloom is dissipating. The jobs market is improving: 162,000 new jobs were created in March. Factor out the 48,000 hired temporarily to help with the census, and you still have positive growth. Employment in the hard-hit construction industry — which lost 864,000 jobs in the past 12 months — held steady, while jobs were added in manufacturing, mining, healthcare and temporary services.
He goes on to analyze some other signs of hopefulness for the economy. But it isn't all good news, because of that pesky US housing market. Responding to several signals of an uptick in investor confidence in the real estate sector, Seltzer cautions:
They may be in for an unpleasant surprise. New home sales are still lagging, the supply of unsold homes remains high, the tax credit for first-time buyers expired last week, at the same time as the Federal Reserve Board discontinued its $1.4 trillion programme to purchase mortgage-backed securities. The housing market is key to creating construction jobs, and all the jobs that go with furnishing a home.
If these headwinds prove too strong, the arrival of spring will see the bears emerge from hibernation, especially if the recovery proves to be only “a sugar high” based on unsustainable government spending and low interest rates, which the bond vigilantes will, sooner rather than later, drive up.
It was the real estate boom that helped cause the economic crisis, and now it might be the real estate bust keeping things slow.
Stewart E. Sterk (Cardozo) has posted Structural Obstacles to Settlement of Land Use Disputes, forthcoming in the Boston University Law Review. The abstract:
In many states, legal doctrine discourages settlement of land use litigation by requiring that any settlement undergo the same review process as the decision that led to the litigation in the first place. The problem is exacerbated by broad standing rules that allow a variety of parties to challenge the settlement. As a result, municipalities and developers often have an incentive to litigate to judgment, even though both parties would prefer a negotiated or mediated solution.
On the other hand, permitting developers and municipalities to settle litigation behind closed doors could impair both the quality and the legitimacy of the ultimate land use decisions. Because broad participation in the decisionmaking process operates both to educate decisionmakers and to increase acceptance of adverse decisions, excluding neighbors from the settlement process threatens significant substantive and process values.
Concerns about closed-door decisionmaking, however, do not justify a doctrinal framework that permits collateral challenges to land use settlements. Instead, permitting neighbors to intervene in proceedings between developers and municipalities, and binding neighbors to settlement when they choose not to intervene, better harmonizes the interest in informed and participatory decisionmaking with the cost-saving advantages of negotiated solutions to land use problems.