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May 14, 2010
In a funny confluence of events my colleague, Pratt Cassity, sent me a blog by writer Brad Aaron (formerly of Athens, now of NYC) on Streetsblog. The blog is about an episode of the American Makeover webseries on Atlanta. The film includes notable Atlantans like Robert Bullard, known as the father of the environmental justice movement and the head of the Environmental Justice Resource Center at Clark Atlanta University, Howard Frumpkin of the CDC, and Charles Brewer, developer of one of Atlanta's rare truly New Urbanist developments, Glenwood Park. Although the film is ostensibly about Atlanta, it's really about Atlanta's status as the poster child of urban sprawl. It's funny, short, and pithy, and would be a great introductory piece for students about sprawl and its effects, for good and for ill.
Jamie Baker Roskie
May 14, 2010 in Architecture, Community Design, Density, Development, Georgia, New Urbanism, Pedestrian, Sprawl, Suburbs, Teaching | Permalink
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May 12, 2010
Markell & Ruhl on An Empirical Survey of Climate Change Litigation
David L. Markell (Florida State) and J.B. Ruhl (Florida State) have posted An Empirical Survey of Climate Change Litigation in the United States. The abstract:
A quickly growing number of commentators have suggested that the domestic U.S. courts are already significant drivers of climate change policy, and their role is likely to increase. Carol Browner, Director of the White House Office of Energy and Climate Change Policy, for example, has suggested that “the courts are starting to take control” of climate change.
In addition to fashioning law on their own, judicial decisions have significant implications for the work of the other branches, For example, in characterizing the Second Circuit’s recent decision in Connecticut v. American Electric Power a significant victory for activists because of its favorable holdings on standing and justiciability grounds, Professor Richard Lazarus notes that a major challenge for “environmentalists” is “how best to use this win to help promote meaningful climate change legislation in Congress and regulatory action by EPA, where the issues will best be addressed.”
The foundational gap we seek to begin to fill in this Article is an empirically-based chronicling of climate change activity in the judicial arena. In particular, we have reviewed, and coded for a broad variety of attributes, every climate change case that has been resolved to date (through December 31, 2009); and, if a case has been filed but no resolution has yet been reached, we have reviewed (and coded) the complaint and other documents in the court docket. In all our study covers over 130 active or resolved pieces of climate change litigation.
We hope that this project will contribute in two important respects to understanding of the action in the courts on climate change to date. First, we compile and present basic information about the cases brought to date (e.g., the types of cases, where they have been brought, the types of plaintiffs and defendants involved, and the outcomes). In addition, we provide an additional layer of analysis through our synthesis of this information and our identification of trends that have emerged thus far. Our purpose in this Article, in short, is to present an empirically-based picture of what one New York Times headline describes as courts serving as “battlefields” in “climate fights.”
This looks like a paper that will make an important contribution to our understanding of the role of the courts in the development of environmental law.
May 12, 2010 in Caselaw, Climate, Environmental Law, Scholarship | Permalink
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Introducing James J. Kelly, Jr.
We are delighted to introduce Professor James J. Kelly, Jr. as a guest blogger. Prof. Kelly is an Assistant Professor of Law and Director of the Community Development Clinic at the University of Baltimore School of Law. From his bio:
Prior to joining the faculty, Professor Kelly worked, as Executive Director of Save A Neighborhood, Inc. and Legal Consultant for Baltimore's Project 5000, to assist the City and community groups in acquiring clear title to vacant houses and vacant lots. He previously worked as a Staff Attorney for the Community Law Center, serving Baltimore nonprofits in their community revitalization efforts. Prior to moving to Baltimore in 1999, he also represented and counseled tenants and tenant groups for the Northern Manhattan Improvement Corp., where his work was funded by the Skadden Fellowship Foundation.
Prof. Kelly has published several interesting articles in the area of land use and community development, including the forthcoming Land Trusts that Conserve Communities, which we posted last week. His clinical and policy work has also been significant, and I'm suspecting we might hear something about that soon.
May 12, 2010 in Community Economic Development, Scholarship | Permalink
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Nolon on the Law of Sustainable Development
John R. Nolon (Pace) has posted The Law of Sustainable Development: Keeping Pace, forthcoming in the Pace Law Review. The abstract:
This article describes the emerging field of sustainable development law and examines whether it is up to the challenge it faces. In a world of finite resources overrun by sprawl, threatened by climate change, short on fuel, and long on greenhouse gas emissions, the law must keep pace. After discussing what sustainable development law is, the article considers the relationship between change in society and the evolution of legal principles, strategies, and practices, particularly with respect to land use, property, and natural resources. Documented in this review is the steady change exhibited in the common law applicable to the ownership, use, and preservation of natural resources, the rapid spread of zoning in the early 20th century, and the current explosion of climate change litigation and regulation. Based on these and other examples, the first half of the article demonstrates that the law can and does evolve in response to crises in society, particularly when lawyers, judges, professionals, and policy makers are trained to understand that law is an instrument for positive change. The article then turns to why law schools matter by drawing lessons from the author’s personal experience at Pace University School of Law.
May 12, 2010 in Climate, Scholarship, Sprawl, Sustainability, Zoning | Permalink
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Schneider on Agricultural Law: Food, Farming, and Sustainability
Susan A. Schneider (Arkansas) has posted A Reconsideration of Agricultural Law: A Call for the Law of Food, Farming, and Sustainability, forthcoming in the William and Mary Environmental Law & Policy Review, Vol. 34, p. 95 (2010). The abstract:
American agricultural policy has evolved from its early focus on agricultural development and expansion to its current emphasis on providing economic support for the agricultural sector. Agricultural law as a discipline has tracked this policy, with agricultural law scholars debating the origins and the validity of the special treatment of agriculture under the law. This article reviews these debates and calls for a reconsideration of agricultural law and policy. It argues for agricultural policies that consider the production of safe and healthy food as the primary goal. Agricultural law in this context can address the unique aspects of agricultural production, the fragility of the environment, and sustainability concerns, all in the context of a systemic food policy. Transforming the special law of agriculture to focus on the sustainable production of healthy food is a critical challenge for the future.
May 12, 2010 in Agriculture, Environmental Law, Scholarship, Sustainability | Permalink
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May 11, 2010
Hills & Schleicher on Noncumulative zoning as a Gift to Manufacturers
Roderick M. Hills, Jr. (NYU) and David Schleicher (George Mason) have posted A Hidden Gift to Manufacturing, in Regulation, Vol. 33, No. 1, pp. 30-35, 2010. This article is a shorter adapted version of their argument from their forthcoming Chicago Law Review piece, The Steep Costs of Noncumulative Zoning. The abstract:
Many urban areas use non-cumulative zoning - zoning exclusive to one use (typically manufacturing) that prohibits other uses even if those uses are considered less noxious. Proponents of this zoning claim that it is necessary to reduce the degree to which urban manufacturers are held responsible for nuisance. This article argues that this justification is flawed, and alternative means could achieve the same ends with fewer costs. Non-cumulative zoning is really a subsidy to manufacturers, reducing their land cost by eliminating potential competitors for land. This subsidy cannot be justified because non-cumulative zoning is unlikely to achieve either local or broader social efficiency.
May 11, 2010 in Local Government, New York, Scholarship, Zoning | Permalink
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Nandwa & Ogura on the Urbran Growth Controls and Regional Economic Growth
Boaz Nandwa (American U. Dubai--Business Administration) and Laudo M. Ogura (Grand Valley State--Economics) have posted Do Urban Growth Controls Slow Down Regional Economic Growth? The abstract:
Previous studies indicate that urban growth controls (local land use regulations that attempt to restrict population growth and urban sprawl) have increased housing prices and diverted population growth to uncontrolled cities. As a result, when growth controls become widespread in a region, new workers (young and newcomers) might struggle to find adequate housing.
Considering this potential restriction imposed on the growth of the regional labor supply, we investigate whether the adoption of residential land use regulations have affected regional economic growth in recent years (2001-2008). In the regressions, regulatory indexes developed by other authors are used as proxies for the strictness and prevalence of regulations. Results suggest that aggregate production and population have grown at slower rates in highly regulated metropolitan areas. Per capita production, on the other hand, does not seem to have been affected.
May 11, 2010 in Density, Economic Development, Local Government, Planning, Scholarship, Smart Growth | Permalink
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Victor Flatt Contrasts Deepwater Horizon and Cape Wind
Victor Flatt recently wrote an editorial for the Houston Chronicle entitled "Did a single week reverse energy fortunes forever?" in which he contrasts the fallout from the Deepwater Horizon explosion and the approval of Cape Wind.
The confluence of both these events also illustrates a move in the direction of the public good over the private good. Despite claims to the contrary, it is rarely the general public that is clamoring for more offshore oil drilling. While many people might like to have lower gasoline prices and reduced dependence on foreign oil, when the public actually sees the trade-offs in price, few make offshore drilling a priority. The political push for offshore drilling comes from the companies themselves, which realize profit through the recovery and processing of this product. Cape Wind also hopes to realize a profit, but it also has significant support from a public that wants to see viable greenhouse-gas-free energy become the norm. The public's clamor was enough to overcome even the most politically well-connected private opposition to Cape Wind, and this signals the breaking of a logjam. More and more approvals will be forthcoming, and this will transform the energy landscape.
Jamie Baker Roskie
May 11, 2010 in Beaches, Clean Energy, Federal Government, Oil & Gas, Water | Permalink
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Hollander on Shrinking Cities
Justin Hollander (Tufts--Planning) has posted Moving Toward a Shrinking Cities Metric: Analyzing Land Use Changes Associated with Depopulation in Flint, Michigan, in Cityscape, Vol. 12, No. 1, 2010 . The abstract:
Cities around the globe have experienced depopulation or population shrinkage at an acute level in the last half century. Conventional community development and planning responses have looked to reverse the process of depopulation almost universally, with little attention paid to how neighborhoods physically change when they lose population. This article presents an approach to study the physical changes of depopulating neighborhoods in a novel way. The approach considers how population decline creates different physical impacts (more or less housing abandonment, for example) across different neighborhoods. Data presented from a detailed case study of Flint, Michigan, illustrate that population decline can be more painful in some neighborhoods than in others, suggesting that this article’s proposed approach may be useful in implementing smart decline.
May 11, 2010 in Detroit, Housing, HUD, Scholarship, Smart Growth, Sprawl | Permalink
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May 10, 2010
Legal Challenges Filed to Stop Georgia’s Coal Rush
From my colleagues at GreenLaw
Petitions Identify Major Flaws in Coal-fired Power Plant Permits
On May 10, 2010, attorneys from GreenLaw working with eight partner groups, filed petitions for hearings challenging permits for two major proposed coal-fired power plants in Georgia. In response to an unprecedented wave of permits issued by the state Environmental Protection Division (EPD) in April, the groups are fighting back with important claims against the water and air pollution permits proposed for Plant Washington, to be built in Sandersville, and against the air pollution permit for Longleaf Energy Station, to be built in Early County.
Longleaf, which is being contested by Friends of the Chattahoochee and the Sierra Club of Georgia, with representation from GreenLaw, is a project of New Jersey-based LS Power, which anticipates selling power to the highest bidders it can find.
In the 1200 mega-watt Longleaf permit, EPD classifies Longleaf as a minor source of pollution, while the 850 mega-watt Plant Washington (in a permit issued the day before) is classified as a major source. Listing Longleaf as a minor source allows the power plant to avoid critical requirements that would ensure that the plant operated in compliance with the law. EPD also failed to allow the public to comment on this decision. Attorneys objected on both grounds. EPD also granted Longleaf an extension on when it must begin construction. This extension will allow the plant to be built with outdated technology. Challengers are asking that EPD ensure that the permit is up-to-date.
Plant Washington, which is being contested by the Fall-line Alliance for a Clean Environment (FACE) and Sierra Club’s Georgia Chapter, as well as Altamaha Riverkeeper (for the water permit only), and Southern Alliance for Clean Energy (SACE) and Ogeechee Riverkeeper (both organizations for the air permit only), is a project of Power4Georgians, a company composed of Cobb EMC and four other EMCs. The Southern Environmental Law Center is co-counseling on the Plant Washington petitions.
The Plant Washington air permit fails to set safe limits on harmful air pollutants that would be emitted by Plant Washington, including sulfuric acid mist and particulate matter. Particulate matter is linked to respiratory illnesses, heart disease and even premature death.
The state water withdrawal permit fails to set necessary limits on the amount of water the plant can take from the Oconee River for use at the proposed plant located in the Ogeechee River watershed. Without adequate limits, communities such as Dublin, area farms and other downstream users along the Oconee River would be left without sufficient water resources.
The state water discharge permit fails to limit the temperature of heated wastewater discharged by the proposed plant into the Oconee River, changing the river’s ecology, depleting available oxygen in its waters, and harming fish and other wildlife that depend on the river system.
Georgia already has 10 coal-fired power plants, one of which, just north of Macon, is Plant Scherer, often cited as the most polluting coal-fired plant in the nation. The EPD has seven days to send the cases to the Office of State Administrative Hearings, where they will be assigned to administrative law judges. Court dates are expected later this summer. Links to the petitions are at www.green-law.org.
Jamie Baker Roskie
May 10, 2010 in Environmental Law, Georgia, Water | Permalink
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"One Stop" Web Site for Gulf Oil Spill
From Robin Craig at Florida State:
A fairly impressive collection of departments and centers among the Florida
universities are putting together what should become a very helpful one-stop web
site for information on the Gulf spill, hosted (so far, at least) on Florida
State's web site. Soon there will be links to specific information on
ecological impacts, economic costs, the scope and path of the spill, underwater
and surface photos, data sets, and a legal page (I authored the draft of that
today), all with links to further information.
The site was officially launched this afternoon and will be growing
quickly. If you're interested in following events, I'd recommend bookmarking
the page and checking back frequently as the site develops.
See the Oil Spill Academic Task Force website here.
Jamie Baker Roskie
May 10, 2010 in Beaches, Environmentalism, Oil & Gas, Water | Permalink
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May 9, 2010
Kelly on Land Trusts that Conserve Communities
James J. Kelly, Jr. (Baltimore) has posted Land Trusts that Conserve Communities, DePaul Law Review, Vol. 59, p. 69 (2009). The abstract:
Much has been written about land trusts that conserve wilderness, agriculture or other environmentally beneficial uses that would be threatened by unfettered development. In the context of inner-cities, Community Land Trusts (CLTs) conserve neighborhoods. Like their environmental and agricultural counterparts, CLTs employ use restrictions to prioritize communally beneficial development. Conserving communities, however, requires other legal tools as well. CLTs create and sustain permanently affordable homes to break the market’s bias toward socioeconomic homogeneity. CLTs also make room, literally, for green space, sites of shared culture and other productive activities that the market tends to commercialize or marginalize. By sustaining a range of housing opportunities, CLTs decommodify community membership. By managing commons land with a light touch, they allow that diverse population to celebrate and deepen personal creativity even while promoting cohesion. Most importantly, as democratically controlled organizations, CLTs and their community partner organizations do not offer these primary goods as gifts but instead give community members only the opportunities to fight for them and continually discern good and better ways of retaining them. The process of sustaining community by owning land itself sustains community. If adjustment of alienability and commons management comprise the substance of community stewardship, then the development and the governance of the land trust itself is its transformative process.
The substance and process of connecting community and land evoke an understanding of human flourishing that challenges conventional welfare economics approaches. This article argues that Community Land Trusts are better appreciated, evaluated and guided by neo-Aristotelian social philosophies that appreciate the importance of the community and land in the urban neighborhood context. As an advocate for policies focused on human capabilities, Amartya Sen returns market economics to its roots in a moral philosophy of the human good and demonstrates the need for holistic, broad-based development, albeit one that is thoroughly committed to personal freedom. Alasdair MacIntyre insists that popularly controlled, community institutions are needed to foster and sustain the networks of giving and receiving that will inculcate the “virtues of acknowledged dependence” essential to an authentic and productive politics. While Sen’s writings develop a broader information base for judging the gains of CLTs, MacIntyre’s work finds indispensable communal institutions like CLTs that preserve the gains of citizens continually contending with both the state and the market.
Drawing upon the actual struggles and achievements of communities in Boston, Los Angeles and Syracuse, this article will show how land trusts conserve communities and the significance of long-term community control of neighborhood land resources for the stable growth of inner-city communities and the people who make them up. Part II will discuss how short-term investment thinking is harming inner-city neighborhoods and the measures three community land trusts have taken to conserve their communities. Part III of the article will examine the neo-Aristotelian thought of Amartya Sen and Alasdair MacIntyre as providing a rationale for community conservation institutions in a world divided between the market and the state. The article will conclude by showing how a theoretical awareness of the significance of local communities in human flourishing informs the precise corporate and property relationships inner-city neighborhoods should look to for creating and sustaining economically diverse communities of choice.
This is a fascinating paper, and Prof. Kelly has done some innovative and significant work on the subject of affordable housing land trusts, both academically and in the policy world. I will hint to blog readers that we might be hearing more about it soon.
May 9, 2010 in Affordable Housing, Community Design, Development, Land Trust, Property Theory, Scholarship, Urbanism | Permalink
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Richard Graving, RIP
A couple of weeks ago my South Texas colleague Richard Graving passed away. Prof. Graving taught international law subjects here for several decades after a long career of international practice around the globe. He served in the Army, the legal profession, and the academy. He was a phenomenal asset to the law school and the legal community, and as his obituary makes clear, he will be missed. Readers of this blog may not be familiar with Prof. Graving's scholarship because it is in a different area, but I do have one land-use-related story that I must relate.
Over the last couple of years I crossed paths with Richard quite often in the hallways and at the end or beginning of classes in the same room. He was incredibly kind to us junior scholars. We talked about Army service and other topics, but on one occasion we talked about one of the classic concepts of property law--the Rule Against Perpetuities.
I forget what prompted the topic--I think it was a basic "so how do you like teaching Property" type of question. I said that I loved it. Richard responded with a story about how, when he was at Harvard Law in the late 1940s, the most popular thing to do for the law students (still overwhelmingly male, of course) was to bring their dates from Radcliffe and Wellesley to sit in on Saturday morning Property Law lectures from the legendary Professor W. Barton Leach. [Prof. Leach taught at Harvard 1929-1971.] Apparently Prof. Leach was wildly entertaining.
"You had Barton Leach for Property?" I asked, starstruck. "He's still a legend in the subject-- he's also the one who came up with all of those interesting concepts for understanding the Rule Against Perpetuities . . . like the 'fertile octogenarian,' and the 'unborn widow.'"
"Fertile octogenarian?" Richard replied. "Well, that makes sense, because that's what he wanted to be!"
From the legend to Prof. Graving to me to you. Ave atque vale.
May 9, 2010 in History, Property Theory, Scholarship | Permalink
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Davis on Federal Agency Involvement in Western Renewable Energy Resource Decisions
Charles Davis (Colorado State--Political Science) has posted Federal Agency Involvement in Western Renewable Energy Resource Decisions: Assessing the Views of Colorado County Commissioners. The abstract:
This research addresses a key aspect of federal-local relationships in American federalism. How do Colorado county commissioners react in terms of supporting or restricting the development of renewable energy resource decisions under the control of federal agencies? Do they support the removal of legal obstacles to the construction of renewable energy facilities on federal lands under the jurisdiction of the U.S. Forest Service or the Bureau of Land Management (BLM)? And to what extent to they favor the prospective use of eminent domain authority by the Federal Energy Regulatory Commission (FERC) to site interstate transmission lines across county boundaries? The results presented here suggest that commissioners are less likely to support the exercise of eminent domain authority if they are favorably predisposed toward clean coal or nuclear power and prefer a more gradual transition to the use of renewable energy resources. Commissioner resistance to the development of renewable energy facilities on federal lands was more likely to occur in counties with a greater percentage of BLM or Forest Service lands and with higher PILT payments from natural resource uses.
May 9, 2010 in Clean Energy, Eminent Domain, Environmental Law, Federal Government, Local Government, Scholarship, Sustainability | Permalink
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Belsky and Wachter on The Public Interest in Consumer and Mortgage Credit Markets
Eric S. Belsky (Harvard--Joint Center for Housing Studies & Graduate School of Urban Design) and Susan M. Wachter (Penn--Wharton, Real Estate) have posted The Public Interest in Consumer and Mortgage Credit Markets. The abstract:
This paper examines mortgage credit markets and the need for government intervention to protect and advance the public interest. We identify as rationales for the public interest: positive and negative externalities, the promotion of equal access, and information asymmetry and principal agent problems. We point to the role of market conduct and structure, as well as information asymmetry and principal agent problems, as prominent sources for the US mortgage debacle. While it is beyond the scope of this paper to outline a reform program, this paper points, in the aftermath of the crisis, to a need for a framework to address information and principal agent issues in the conduct and structure of mortgage markets. As a new framework for mortgage markets is developed, attention needs to be placed on the role that information on loan quality and pricing plays for borrowers’ and investors’ appropriate pricing and allocation of capital.
May 9, 2010 in Finance, Financial Crisis, Mortgage Crisis, Mortgages, Real Estate Transactions, Scholarship | Permalink
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Oliveri on Discriminatory Housing Ads On-Line & Lessons from Craigslist
Rigel Christine Oliveri (Missouri) has posted Discriminatory Housing Advertisements On-Line: Lessons from Craigslist, forthcoming in Indiana Law Review, Vol. 43. The abstract:
The Fair Housing Act makes it illegal to publish discriminatory housing advertisements. This has long been applied to newspapers, which have effectively screened all discriminatory housing ads from sight. However, in 1996 Congress created a loophole when it immunized website operators from liability for the content posted to their sites by third parties. Without publisher liability, websites have no incentive to screen out discriminatory housing ads. The result is that such ads are proliferating in cyberspace.
While this situation is problematic from a fair housing standpoint, it presents a valuable opportunity. For the first time in a generation discriminatory housing advertisements are out in the open and available for analysis. This article contains a comprehensive review of discriminatory housing ads appearing on the popular website craigslist, which yields a number of interesting findings, including: (1) The vast majority of those who post discriminatory on-line advertisements for housing are placed by people seeking roommates. (2) The overwhelming majority of problematic ads discriminate on the basis of familial status. There are very few that discriminate based on race, ethnicity, or religion. (3) The few roommate ads that do mention race, ethnicity, or religion are more likely to discriminate in favor of minority groups. Thus, they appear more as expressions of individual diversity of backgrounds and beliefs than exclusionary tools of a majoritarian power structure.
This information can and should inform changes to the legislative and enforcement regime for dealing with discriminatory housing advertisements. For example, we should recognize that the roommate relationship is different from traditional rental housing, and accord roommate-seekers protection from the law – protection which is currently given to small landlords (who arguably do not need it) but not co-lessees. Fair housing advocates also must address the unique problems presented by familial status as a protected category, both in terms of public awareness and acceptance of the law.
May 9, 2010 in Federal Government, Housing, Race, Scholarship | Permalink
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Collinson and Winter on U.S. Rental Housing Characteristics
More interesting work from HUD: Rob Collinson and Ben Winter have posted U.S. Rental Housing Characteristics: Supply, Vacancy, and Affordability, HUD PD&R Working Paper 10-01. The abstract:
The aim of this working paper is to document key empirical facts on U.S. rental housing market conditions – reporting both current conditions (as of second quarter 2009) as well as notable historic trends. This analysis draws upon the findings of existing scholarly work and includes original analysis utilizing a mix of public and proprietary data.
This working paper is not a comprehensive assessment of U.S. rental housing market conditions; rather it focuses on describing market dynamics in the context of rental housing supply, variations across local rental housing markets, conditions in the nation’s assisted rental housing stock, and the evolving need and demand for affordable rental housing.
May 9, 2010 in Federal Government, Housing, HUD, Landlord-Tenant, Scholarship | Permalink
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Sharma on Rent Control Legislation in India
Sharda Sharma (Chanakya National Law University) has posted Interpreting Rent Control Legislation: Role of Judiciary - A Critique. The Abstract:
In India rent control legislation has caused inefficient use of built space, arbitrary allocation of space and retardation of new construction initiatives. The executive is hardly concerned to revive the rent as per market price and the judiciary is inclined to give extra benefit to the renters by interpreting the various provisions in the favour of renter. But while reading the statute it appears that Supreme Court interpretation of rent legislation is not only contrary to the intention of legislature but also its previous decision.
This article tries to analyse one such aspect of rent legislation. I have tries to answer the controversy concerning the issue that whether a habitual defaulter who pays rent just before the landlord decides to file the case for eviction will be evicted on the ground on non payment or will be get the benefit of waiver of cause of action as the rent has been paid and at the time of instituting the suit no such cause remains.
May 9, 2010 in Affordable Housing, Comparative Land Use, Housing, Judicial Review, Landlord-Tenant, Scholarship | Permalink
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