Friday, May 28, 2010

Nominee for Worst Proposed Legislation of 2010...

Now, I completely understand that there are many people in the homebuilding industry who really want to start working again and expanding.  It's their livelihood and who wouldn't want a bigger paycheck in these tough economic times.

But, the idea that the federal government should essentially start financing new home construction even though there is a huge glut of unsold inventory is, well, just foolish.  Here are the details of this dubious nominee:

H.R. 5409, the Residential Construction Lending Act, would create a new residential construction loan guarantee program within the Department of Treasury to provide loans to builders with viable construction projects. Designed to unfreeze credit for small home building firms, the measure would expand the flow of credit to residential builders on competitive terms.

Think about it this way.  You have a field full of The Veggie That Nobody Wants.  Because nobody wants it, the growers are laid off based on the lack of demand.  But, rather than diversify into something that there is demand for, the government just steps in and finances/guarantees the funds to plant many more fields of The Veggie That Nobody Wants.

All in the name of job preservation and economic growth.

Folks, its this type of strained and really intellectually dishonest logic that caused the current problem in the first place.  It's like making a drunk feel better by giving them more alcohol.  Sure, it might work in the short term but, in the long run, its just causing more damage to the system.

--Chad Emerson, Faulkner U.

May 28, 2010 | Permalink | Comments (0) | TrackBack (0)

Thursday, May 27, 2010

Dagan on Independence and Interdependence and the Pluralism of Property

Hanoch Dagan (Tel Aviv) has posted From Independence and Interdependence to the Pluralism of Property, forthcoming in PROPERTY, STATE AND COMMUNITY (Oxford U. Press).  The abstract:

This paper is one chapter of a collection of essays – Property, State, and Community – which will be published with the Oxford University Press in 2011. I discuss in this chapter two recent ambitious attempts to divine the core normative essence of property; relying, respectively, on Kant and Aristotle, one finds property as a castle of independence, the other – as the locus of interdependence. I recognize the normative appeal of these rival theories: independence must be a core value in every humanistic tradition; and our embeddedness in communities is not only an important feature of the human predicament, but also a significant aspect of human flourishing. And yet I show that both theories fail and that their failures are mirror images of one another. Each theory ignores and thus undermines the value emphasized by its counterpart, and this omission also backfires. By refusing to allow interdependence and responsibility to play any role in its conceptualization of property, the property as independence school may end up undermining its own cause by entrenching widespread human dependence. Likewise, by resisting the commitment to legally entrench liberal exit and by insisting that reciprocity should not cap communities’ demands of their members’ contributions, the property as interdependence camp may dilute, rather than fortify, the value of community.

I suggest that rather than trying to extract one regulative principle of the entire terrain of property, we should appreciate the value of the heterogeneity of property's domain. The multiplicity of property institutions is the key to property's normative promise. Property can be the home of both independence and interdependence (and can serve the other property values as well), and thus provide people with valuable options of human flourishing. Only by facilitating such diverse forms of human interaction – different property institutions – can property promote (as it does) the freedom-enhancing value of pluralism and the individuality-enhancing role of multiplicity, which are so crucial to the liberal ideal of justice.

Matt Festa

May 27, 2010 in Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

Kilbert on the Public Trust Doctrine and the Great Lakes Shores

Kenneth Kilbert (Toledo) has posted The Public Trust Doctrine and the Great Lakes Shores, Cleveland State Law Review, Vol. 58, No. 1 (2010).  The abstract:

The shores of the Great Lakes are a battleground, and their future use is shrouded in uncertainty and controversy. Lakefront owners, armed with their deeds, assert an exclusive right to use their properties at least down to the water's edge. Members of the public, brandishing the venerable but amorphous public trust doctrine, claim a right to walk on even privately owned shores up to the high water mark. Courts to date have diverged widely, in approach and result, when deciding whether, and to what extent, the public has a right to use the Great Lakes shores.

This article proposes a uniform framework, grounded in the core principles of the public trust doctrine, for use in each Great Lakes state to ascertain the public right's to use the Great Lakes shores. This framework offers much-needed predictability, yet is flexible enough to allow each state to strike its own balance between public and private interests. The framework employs a principled, two-prong approach. First, it determines the geographic scope of the public trust doctrine applicable to the Great Lakes shores. Reconciling Supreme Court precedents, the framework provides that the geographic scope of the public trust in each state begins at a common starting point informed by the equal footing doctrine, and a state's ability to alter the scope is circumscribed. Second, the framework determines what public uses of the Great Lakes shores are protected by the public trust doctrine. Important, non-traditional public uses that do not unreasonably interfere with the rights of lakefront owners can be protected as well as the traditional uses of navigation, fishing, and commerce. Using as a focal point the controversy regarding the public's right to walk the Great Lakes shores, this article shows how the proposed framework is consistent with existing law in each of the Great Lakes states.

Matt Festa

May 27, 2010 in Beaches, Property Rights, Scholarship, State Government, Water | Permalink | Comments (0) | TrackBack (0)

Salkin & Lavine on Community Benefits Agreements and Comprehensive Planning

Patricia Salkin (Albany) and Amy Lavine (Albany) have posted Community Benefits Agreements and Comprehensive Planning: Balancing Community Empowerment and the Police Power, forthcoming in the Journal of Law and Policy.  The abstract:

Traditionally, the states have empowered local governments to develop plans and implement regulations for neighborhood and community development. When accomplished at the local or regional level, the interests and benefits of the community as a whole are to be weighed against the detriments to individuals. Much has been studied and written about the lack of meaningful public participation in the planning and land use regulatory process, suggesting that often low-income and minority communities are not fully engaged in the process, even when it may result in decisions negatively impacting their neighborhoods. Case studies have also shown that governments are sometimes so eager to stimulate local economic development that they fail to fully engage communities in the project review process, both to expedite development and to avoid confronting local opposition. This emphasis on short-term economic growth, however, may obscure a local government’s perception of the social and environmental needs of particular communities. When this occurs, formal planning processes have failed to accomplish their goals of engaging community members and guiding future growth in a manner that maximizes long-term benefits for the common good. 

New approaches to planning provide one response to systemic public participation problems. The environmental justice movement, for example, has sought to ensure a fair distribution of both environmental burdens and environmental goods by requiring local governments to make meaningful public participation available to all community members. Community based planning efforts have attempted to improve the planning process by focusing on small and distinct geographic areas and by developing collaborative and inclusive planning programs. Since the late 1990s, community benefits agreements (CBAs) have offered another method to increase community input in the development planning and review process. For communities that have historically been excluded from the planning process, CBAs can be a powerful tool to ensure that neighborhood interests are addressed as an integral component of development. The result, ideally, is growth and development that is accountable to the people it affects and equitable in its distribution of benefits and burdens. However, the people it affects are often a small subset of the municipal jurisdiction and the equitable distribution sought in the CBAs is limited to the proposed project area. 

This article explores how the comprehensive planning process and CBAs complement and contradict each other, and how both could be improved by innovative and more inclusive planning techniques. Part II provides a brief historical background on comprehensive planning and community development, including issues relating to community planning and public participation. Part III examines CBAs and their role in community empowerment, community development and the promotion of social justice principles, including equitable development. This part also provides examples of typical land use related elements found in existing CBAs. Using these examples, Part IV segues into a discussion regarding whether private CBAs usurp the public planning process. The section explores whether CBAs are just another type of community based plan and whether CBAs advance narrow interests at the expense of the larger community. The question of what local governments should do when presented with a CBA that is inconsistent with the local comprehensive land use plan is examined to determine whether amending the plan to incorporate the community vision as articulated through the CBA is appropriate. The article concludes in Part V by pointing out that shortcomings of the current regulatory system allow local governments, intentionally or inadvertently, to exclude robust public participation from the development and implementation of comprehensive land use plans. This provides the impetus for privately negotiated CBAs, but these agreements may not always be ideal because not all parties to a CBA will have the best interests of the neighborhood or the community as a whole at the forefront of their agendas. While many CBAs have been successful, a number of case studies also reveal pitfalls in the process. The article concludes with the belief that local governments must be more inclusive and accountable in the public planning process to better meet the true goals of the community benefits movement.

Matt Festa

May 27, 2010 in Community Economic Development, Development, Local Government, Planning, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 26, 2010

Land Use Panel at Law & Society Association

This weekend is the always-excellent annual meeting of the Law & Society Association in Chicago.  I haven't scoured the program, but there is sure to be a plethora of interesting panels and events.  I do have firsthand knowledge, however, of one particular land-use panel that is guaranteed to present fascinating projects from interesting up-and-coming scholars.

Panel: Managing the American Dream: Land Use and the Politics of Growth after the Mortgage Crisis.  Fri., May 28, 12:30-2:15
Chair: James J. Kelly, Jr. (University of Baltimore)

The Effects of SmartGrowth on the Preservation of Historic Resources, William J. Cook (Charleston School of Law)

Debtors' Environmental Impact: Structured Finance and the Suburbanization of Open Space, Heather Hughes (American University)

Sustainability and the Practice of Community Development, James J. Kelly, Jr. (University of Baltimore)

The Artifice of Local Growth Politics: At-Large Elections, Ballot Box Zoning, and Judicial Review of Land Use Initiatives, Kenneth Stahl (Chapman University)

The abstract:

Land Use is one of the most interdisciplinary areas of legal theory and practice, yet in today's environment there are common issues facing land use planners. The goals of promoting growth, land development, and property ownership are in tension with emerging priorities such as growing “smart,” reducing sprawl, and sustainability. These issues expand across borders and regions yet remain intricately tied to local politics. The mortgage and financial crises have impacted the land use environment for governments, communities, and landowners. This panel explores contemporary land use challenges from the perspectives of local growth politics, sustainability and community development, smart growth and historic preservation, and the impact of policies promoting home ownership.

I had really hoped to be there for this panel, and I am very disappointed that I won't be able to make it.  But perhaps since Will, Jim, Ken, and (I hope) Heather are friends of the blog, perhaps we might be lucky enough to get a report, and we'd love to host more discussion of these forthcoming papers on the blog (hint, hint!).  At any rate, if you are going to LSA or will be in the Chicago area, I highly recommend that you attend.
Matt Festa

May 26, 2010 in Charleston, Chicago, Community Economic Development, Conferences, Environmental Law, Finance, Financial Crisis, Historic Preservation, Local Government, Politics, Scholarship, Smart Growth, Suburbs, Sustainability | Permalink | Comments (0) | TrackBack (0)

Monday, May 24, 2010

Arrunada & Lehavi on Prime Property Institutions for a Subprime Era

Benito Arrunada (Universitat Pompeu Fabra) & Amnon Lehavi (Interdisciplinary Center Herzliyah--Radzyner School of Law) have posted Prime Property Institutions for a Subprime Era: Exploring Innovative Models of Residential Development and Finance.  The abstract:

This paper breaks new ground toward contractual and institutional innovation in models of homeownership, equity building, and mortgage enforcement. Inspired by recent developments in the affordable housing sector and in other types of public financing schemes, this paper suggests extending institutional and financial strategies such as time- and place-based division of property rights, conditional subsidies, and credit mediation to alleviate the systemic risks of mortgage foreclosure. Alongside a for-profit shared equity scheme that would be led by local governments, we also outline a private market shared equity model, one of bootstrapping home buying with purchase options.

Matt Festa

May 24, 2010 in Housing, Local Government, Mortgages, Real Estate Transactions, Scholarship | Permalink | Comments (0) | TrackBack (0)

Rodriguez-Dod on Protecting Tenants from Foreclosure Evictions

Eloisa C. Rodriguez-Dod (Nova Southeastern) has posted Stop Shutting the Door on Renters: Protecting Tenants from Foreclosure Evictions, from Cornell Journal of Law and Public Policy, Vol. 20.  The abstract:

This article discusses existing and proposed federal and state law affecting tenants’ rights in foreclosure. As “Foreclosure” signs rapidly join “For Sale” signs across the country, the national foreclosure crisis has not only displaced homeowners, but a plethora of renters as well. The approach taken by states concerning tenants affected by foreclosure varies greatly. Furthermore, a recently enacted federal law, created specifically to help tenants in foreclosure, does not relieve the uncertainty in resolving this issue. In addition to being the first to critique the new federal law, this article offers recommendations for legislation that may better protect tenants from foreclosure-related evictions.

Matt Festa

May 24, 2010 in Landlord-Tenant, Mortgages, Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

Not in My Neighborhood

I am really glad to be joining Land Use Prof Blog as a guest blogger.  Over the next few weeks, I look forward to contributing to an already lively discussion.  My scholarship and practice interests have recently focused on land trusts, land banks and any other form of direct community control of land resources.  If you wish to contact me with an idea or item, email me at JKelly[at]ubalt[dot]edu.

2010 marks the 100-year anniversary of the nation’s first racial zoning ordinance. (see Garrett Power’s law review article here).  The Baltimore City Council passed it in the wake of nationwide race riots that followed Jack Johnson’s defense of the world heavyweight boxing title.  I have just been reading a copy of Antero Pietila’s Not in My Neighborhood: How Bigotry Shaped a Great American City lent to me by my colleague, Odeana Neal.  It is an engaging chronicle of de jure and de facto residential segregation in 20th century Baltimore, exploring the exclusion of both Jews and African-Americans.

 

Pietila brings out the characters and stories that illustrate the high-minded racism of the eugenics era and the market-justified redlining of the FHA-predecessor, the Home Owners' Loan Corporation.  The book kicks into high gear with its exploration of the moral ambiguity of “blockbusting” (civil rights advocacy? cynically manipulative profiteering? both?) in the wake of the U.S. Supreme Court’s 1948 decision in Shelley v. Kraemer. Amidst these essential narratives are a few hidden gems such as the stories behind the siting of Morgan College (now Morgan State University) and the Social Security Administration and the roles these institutions played in anchoring Baltimore's largest African-American middle-class enclaves.  Those considering the book for supplemental reading in land use and property courses might want to check out this 4/27 NPR local radio interview with the author.

Jim Kelly

May 24, 2010 in Caselaw, Constitutional Law, History, Homeowners Associations, Housing, Race, Zoning | Permalink | Comments (0) | TrackBack (0)

Hirokawa and Salkin on Urban University Expansion, Sustainable Development, and Columbia

Many of you might be familiar with the controversy over Columbia University's plans for expansion; the plans, however, raise numerous land use issues besides eminent domain.  Keith Hirokawa (Albany) and Patricia Salkin (Albany) have posted an article that situates Columbia's plans within the broader context of university expansion in the urban environment: Can Urban University Expansion and Sustainable Development Co-Exist? A Case Study in Progress on Columbia University, Fordham Urban Law Journal, Vol. 37 (2010).  The abstract:

This Article employs sustainability as a framework to analyze the recent proposed physical expansion plans of Columbia University for the purpose of illustrating the complexities that arise in urban development and higher education practices, as well as the problems of trying to simultaneously implement both. Governments and courts traditionally provide a high level of deference and leniency in the application of land-use laws and regulations when it comes to siting and expansion issues for educational institutions, yet institutions of higher education, particularly those located in urban areas, create unique dilemmas for sustainability. For example, available land for expansion is often a physical and political challenge, and the institutional business model behind expansion plans can overshadow the educational purposes that the expansion is intended to serve. Further, the acquisition of new land needed for expansion can result in a “university creep” into neighborhoods where the scale of the proposed development may not be in keeping with past and present community character. Part I of this article offers a framework for defining and evaluating sustainability in the higher education context. Part II further explores the roles of higher education in sustainability, and Part III applies these concepts in the context of the Columbia University expansion by exploring public participation and community engagement issues, including the controversial use of eminent domain in this case. The community benefits agreement developed as part of the expansion plan is examined, as are the impacts of displacement and gentrification resulting from the expansion.

Matt Festa

May 24, 2010 in Community Design, Development, Eminent Domain, New York, Politics, Scholarship, Sustainability, Takings, Urbanism | Permalink | Comments (0) | TrackBack (0)

Way on Informal Homeownership

Heather K. Way (Texas) has posted Informal Homeownership in the United States and the Law, from St. Louis University Public Law Review, Vol. 29, No. 1 (2009).  The abstract:

This article examines how millions of lower-income families in the United States attempt to acquire title to their homes informally, outside the mortgage market and instead through mechanisms such as lease-to-own contracts and intestacy. Many of these families are left holding inferior and insecure title to their homes--if they hold title at all. The article explores the benefits and pitfalls of "informal homeownership" and the legal structures that perpetuate disparties between formal and informal homeownership. The article then proposes a series of legal reforms to help ensure that the American legal system provides lower-income families with better opportunities to obtain secure title to their homes.

Matt Festa

May 24, 2010 in Affordable Housing, Community Economic Development, Contracts, Housing, Landlord-Tenant, Mortgages, Real Estate Transactions, Scholarship | Permalink | Comments (0) | TrackBack (0)