Friday, July 2, 2010

Merkel in NYT on When Less Was More in Housing

In the New York Times Opinionator Blog, architectural historian Jayne Merkel has published When Less Was More.  She notes the overlooked fact that for most of the "golden age" of American suburban expansion in the postwar years, the average suburban home was well under 1,000 square feet.

We tend to think of the decades immediately following World War II as a time of exuberance and growth, with soldiers returning home by the millions, going off to college on the G.I. Bill and lining up at the marriage bureaus.

But when it came to their houses, it was a time of common sense and a belief that less truly could be more. During the Depression and the war, Americans had learned to live with less, and that restraint, in combination with the postwar confidence in the future, made small, efficient housing positively stylish.

As we find ourselves in an era of diminishing resources, could “less” become “more” again? If so, the mid-20th-century building boom might provide some inspiration.

The article goes on to discuss the movements in early and mid 20th century architecture; the influence of modernism (but not Le Corbusier!), and has great photos ranging from Frank Lloyd Wright buildings to Levittown.  

But like much of American society, the middle-class home began to grow over time. The average size of an American house in 1950 was 983 square feet. Slowly, though, both more square footage and more amenities became part of the American dream, so that by 2004 the average home topped 2,300 square feet.

Land use is an inherently visual subject so the pictures are nice to see (curses on all those IP restrictions).  I'm always on the lookout for references to single-family housing as the "American dream" so I found this article particularly interesting.  H/t to Genevieve Coen.

Matt Festa

July 2, 2010 in Architecture, Density, Housing, Planning, Suburbs, Urbanism | Permalink | Comments (0) | TrackBack (0)

In (Partial) Defense of LeCorbusier

It's not every day that the most influential architect and urbanist of the twentieth century gets compared to a raving pro se litigant.  As one who has spent some time recently thinking about LeCorbusier and modernism, and much more time than I care to remember dealing with pro se filings, I thought I should weigh in on Matt's previous post (linking to a Prawfsblawg post by Eric Johnson). 

I want to briefly raise two points about the post, one having to do with modernist design and the other with modernism as a political philosophy.  Both aspects of modernism have been the subject of withering critiques over the past 40 years.  Modernist design is often criticized, as Eric's post notes, for bringing us alienating industrial cityscapes of reinforced concrete towers and cavernous plazas.  At its best, however, as in the case of Mies's Seagram Building or, yes, Le Corbusier's Villa Savoye, modernist design conveys an elegance and refinement lacking in today's showy "starchitecture."  The problem with modernist design was that its acolytes believed architecture was a mechanical process rather than a craft, and thus that modernism's great exemplars could easily be replicated through the application of simple, mathematical formulae.  This was the case, for example, when New York City revised its zoning code in 1961 to encourage the creation of more Seagram Buildings through an "incentive zoning" program.  Of course, it's not so easy to duplicate a masterpiece, and the zoning code spawned many pale replicas of the Seagram Building.  Thus, one lesson modernism yields for us land use lawyers -- especially as form-based codes become more popular -- is to avoid excessive rigidity in regulating design, and especially to avoid dictating aesthetic conformity to what is currently trendy. 

As to modernism's status as a political philosophy, Eric's post wonders how LeCorbusier and the modernists successfully convinced the public to accept their "monstrosities" in the midst of our cities.  In part, Eric's question is answered by what I've just said -- the Seagram building, for example, was such a sensation at the time it was built that there was great public clamor for more buildings like it.  But that only answers the question in part, because modernist building continued long after it became clear that there would never be another Seagram Building, and long after the public had expressed its discontent with modernist architecture.  The real answer to Eric's question is, frankly, that the modernist architects didn't have to convince "the people" of anything; they had only to convince a handful of power brokers.  During the modernist era, city planners like Robert Moses and Edmund Bacon had carte blanche to carry out redevelopment schemes.  Public participation in the process was but a fig leaf.  The planners' preferred modus operandi was to eradicate the existing urban fabric and build anew on its ashes.  Their methods dovetailed neatly with modernist ideology, which preached that the past was an egregious mistake to be paved over with heroic modernist structures.  In short, modernism flattered the ego of city planners, and the city planners returned the favor by making modernist design the order of the day. 

Our current political era, largely reactive to the excesses of modernism, prizes citizen participation in the development process.  This is a trend that should of course be applauded.  However, while undoubtedly more democratic, our era has also made bold, innovative architecture far more difficult to achieve (except in China, which, of course, is not democratic).  I, for one, look back on modernism's true triumphs with a kind of nostalgia for a simpler age when it was possible to build big and to dream big without being thought delusional.   

--  Ken Stahl (

July 2, 2010 | Permalink | Comments (0) | TrackBack (0)

Denver's new Form Based Zoning Code

Denver has adopted a brand new zoning code, it's first major revision in over 50 years.  The new code is billed as form-based.  We've posted before about Denver's process towards this new code.  From the Denver Post: Denver Council Passes Overhaul of City's Zoning Laws.

The Denver City Council on Monday unanimously approved an overhaul of the city's zoning laws, making the first comprehensive change to the city's land-use rules since 1956. . . . 

The new code would replace one that city planners characterize as inefficient and inflexible. They said the new rules would steer growth and density to areas near transit corridors and support existing development patterns in long-established neighborhoods.

The Post article is a little short on substantive description of the new ordinance, but it has a nice graphic illustrating the different characteristics of the new zones: downtown; urban center; general urban; urban edge; and suburban [sounds pretty transect-y, doesn't it?].  The process started with the Denver comprehensive plan in 2000 and was supplemented by the Blueprint Denver movement.  There is a very good website promoting the new code called The New Zoning Code: Putting Blueprint Denver to Work, at lots of information, explanations, and the new ordinance's text and map.  Check it out.

Matt Festa

July 2, 2010 in Form-Based Codes, Local Government, New Urbanism, Planning, Smart Growth, Urbanism | Permalink | Comments (1) | TrackBack (0)

Byrne on Regulatory Takings and Climate Change

J. Peter Byrne (Georgetown) has posted Rising Seas and Common Law Baselines: A Comment on Regulatory Takings Discourse Concerning Climate Change, Vermont J. of Envt'l Law, Vol. 11 (2010).  The abstract:

In several recent cases considering claims that regulatory measures addressing rising sea levels violate the Takings Clause, courts have given significant normative weight to traditional common law rules, even when such rules have long been superseded by statutory provisions. This essay argues that giving analytic precedence to such common law baselines lacks justification and can pose serious obstacles to reasonable measures to adapt to climate change.
Matt Festa

July 2, 2010 in Beaches, Caselaw, Coastal Regulation, Environmental Law, Property Rights, Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

HUD and USDOT Join Together... promote sustainable development through federal funding sources:

Together, the U.S. Departments of Transportation (DOT) and Housing and Urban Development (HUD), for the first time ever, will join forces to award up to $75 million in funding – $35 million in TIGER (Transportation Investment Generating Economic Recovery) II Planning Grants and $40 million in Sustainable Community Challenge Grants for localized planning activities that ultimately lead to projects that integrate transportation, housing and economic development.


The new program builds on the Partnership for Sustainable Communities, an innovative new interagency collaboration, launched by President Obama in June 2009, between the Department of Transportation (DOT), the Department of Housing and Urban Development (HUD) and the Environmental Protection Agency (EPA). Guided by six Livability Principles, the Partnership is designed to remove the traditional federal government silos that exist between departments and strategically target the agencies’ transportation, land use, environmental, housing and community development resources to provide communities the resources they need to build more livable, sustainable communities.

I've followed previous federal efforts to promote sustainable development practices (such as Hope VI and others) and this has the potential to be one of the most significant ones to date.

What is especially noteworthy is the multi-faceted approach of the initiative. For too long, road building and structure building have been treated as separate "silos" of development when in fact both necessarily influence the other. Hopefully, this will be a big step in practice and effect toward breaking down those artificial barriers and recognizing a regulatory and funding system that integrates the two.

--Chad Emerson, Faulkner U.

July 2, 2010 | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 30, 2010

Toohey & Toohey on Therapeutic Jurisprudence in Community Titles Disputes

Lisa C. Toohey (Queensland) and Daniel J. Toohey (New South Wales) have posted Achieving Quality Outcomes in Community Titles Disputes: A Therapeutic Jurisprudence Approach.  The abstract:

Community title schemes are an increasingly popular form of housing in Queensland and throughout Australia in general. Community title housing (typically apartment buildings and townhouses) involve medium to high-density living, which in turn tend to produce a higher incidence of neighbourhood disputes than lower density living options. However, a second reason for the prevalence of the disputes is the varied nature of interests in a community title scheme. Within the single scheme, there may be owner occupiers (either residential or commercial or both), tenants (again, residential, commercial or both), members of the body corporate committee, and property managers. Each of these types of stakeholders has different interests and perceptions of how a scheme ought to operate, with the potential for serious disputes to result.

Recognising the potentially harmful effects of community title disputes and the need for accessible dispute resolution options, the Office of the Commissioner for Body Corporate and Community Management (OBCCM) was established to provide specialist dispute resolution procedures. The OBCCM offers conciliation and adjudication, with avenues of appeal available to the newly-established Queensland Civil and Administrative Tribunal. 

The OBCCM’s self-identified objective in relation to this service is to offer “a quality dispute resolution service which is timely and responsive.” In practice, the dispute resolution services are a hybrid of inquisitorial and adversarial approaches, focussing on the legal aspects of the dispute. 

This paper combines academic and practitioner perspectives to explore the possibility of a therapeutic approach to body corporate and community title disputes. The paper firstly provides an overview of the dispute resolution context of community title disputes and the role of the OBCCM. It then considers the effect of current OBCCM practices on participant wellbeing, and questions whether the introduction of a therapeutic approach might not only improve outcomes in discrete cases, but in fact have the potential to enhance or restore community living within troubled schemes. Finally, the paper comments on the type of legal and dispute system changes that might be required to facilitate such an approach.

Matt Festa

June 30, 2010 in Comparative Land Use, Housing, Scholarship | Permalink | Comments (0) | TrackBack (0)

Hauser on the Case for Allowing Mortgage Modifications in Bankruptcy

Susan E. Hauser (North Carolina Central) has posted Cutting the Gordian Knot: The Case for Allowing Modifications of Home Mortgages in Bankruptcy, Journal of Business & Technology Law, Vol. 5, p. 207, 2010.  The abstract:

More than 5 million mortgages have gone into foreclosure since 2007, and an additional 8 to 13 million foreclosures are projected to follow before the current foreclosure crisis abates. Voluntary loan modification programs have failed to ameliorate the crisis, in large part because mortgage lending abuses and declining home values have left many borrowers stranded in "under-water" mortgages.

This article endorses a targeted amendment to section 1322(b)(2) of the Bankruptcy Code that would allow bankruptcy judges to oversee the modification of residential mortgages written to borrowers during years when mortgage-lending abuses were most rampant. Part I of this Article examines existing Bankruptcy Code provisions that allow the modification of other types of loans and then traces the history of the existing statutory and case law that currently prevents borrowers from modifying the terms of most residential mortgages in bankruptcy. Part II describes legislation presently pending in Congress and explains why allowing home mortgages to be modified in chapter 13 bankruptcy offers an efficient and fair solution that not only allows borrowers to remain in their homes, but also benefits lenders and taxpayers. Part III considers and distinguishes the counterarguments offered by the mortgage banking industry. 

My conclusion is that allowing mortgages to be modified in chapter 13 plans offers distinct advantages to all parties. Accordingly, a time-limited amendment to section 1322(b)(2) would provide a simple and elegant mechanism for reducing the pain that the home mortgage crisis is causing to borrowers, communities, creditors, and the national economy. 
Matt Festa

June 30, 2010 in Federal Government, Housing, Mortgage Crisis, Mortgages, Real Estate Transactions, Scholarship | Permalink | Comments (0) | TrackBack (0)

Very Real Problems...

I really (no pun intended) enjoy the "Really?" series over at the Lasner on Real Estate blog as it really (again, no pun really intended) outlines the continuing lack of reality in the land development world.

In particular, these two entries:  "Really?  Embattled landlords get a break" and "Really? Condos converting back to rentals" really represent the very real problems that land development continues to face.

--Chad Emerson, Faulkner U.

June 30, 2010 | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 29, 2010

Russian "Spies" Sought American Dream

You may have heard the news about the 10 Russian agents who were arrested recently after years of deep cover living in the U.S., and apparently with little in the way of actual intelligence to show for it.  Playing my favorite game, "what can't Prof. Festa turn into a land use story," I found a property angle: apparently a couple of the agents had adopted the norm of home ownership as the American Dream--or, as they seem to have told their handlers, they thought that owning their home in New Jersey was necessary to enhance their cover as Real Americans.  From the BBC News, Russian "Spies" were no James Bonds:

In one case, the major issue for the couple concerned - "Richard and Cynthia Murphy", known as the "New Jersey Conspirators", was why they could not buy the house they were living in.

They pointed out correctly to "Moscow Centre" that the US was a society "that values home ownership" and that when in Rome "do as the Romans do".

It was a neat argument, but Moscow suspected that they were taking advantage. They hotly protested that they had not "deviated" from their mission.

Were they merely shrewd observers of the American culture of ownership; did they drink the kool-aid themselves; or is the home ownership desire truly universal?

Matt Festa

June 29, 2010 in Comparative Land Use, Housing | Permalink | Comments (1) | TrackBack (0)

Johnson on Le Corbusier and Law School Architecture

Eric Johnson has a post at Prawfsblawg called Le Corbusier and Certain Pro Se Litigants, with some thoughts on Le Corbusier's architecture including a nice (and grim!) photo of a Le Corbusier apartment complex in France.  Johnson ultimately jumps off to the question of which law schools have the best architecture, but first he has some interesting thoughts on Le Corbusier:

Recently, I've been taking a peek at the writings of Le Corbusier. He's one of history's most celebrated architects, and he has had a profound influence on the modern cityscape. He has designed buildings such as the Saddam Hussein Gymnasium in Iraq. These are buildings that don't exactly exude warmth. Basically, Le Corbusier is the creative genius behind the concrete box.

What's that? You're not a fan? Well, you should know that Le Corbusier provided lengthy philosophical justification for his concrete-box style of building. Here is how he begins his argument in the book Toward a New Architecture:

The Engineer's Aesthetic, and Architecture, are two things that march together and follow one from the other: the one being now at its full height, the other in an unhappy state of retrogression. The Engineer, inspired by the law of Economy and governed by mathematical calculation, puts us in accord with universal law. He achieves harmony. The Architect, by his arrangement of forms, realizes an order which is a pure creation of his spirit ... he determines the various movements of our heart and our understanding; it is then that we experience the sense of beauty. . . .

I'd quote more, but you've got a flavor for it: It sounds like a brief from one of those pro se litigants who is suing the president. If you've clerked, you definitely know what I'm talking about. In a word: CRAZY.

. . . .

Governments, universities (law school's included), and public housing authorities in the United States got hit especially hard by the brutalist architecture hysteria in the 1950s, 60s, and 70s. People think lawyers are clever persuaders. But what about architects? How did they persuade people to actually erect such monstrosities? Gerry Spence, eat your heart out.

Le Corbusier as crazy pro se litigant . . . who actually won many of his cases!  Hilarious.  Read the whole post

Matt Festa

June 29, 2010 in Architecture, Density, Humorous, Planning | Permalink | Comments (0) | TrackBack (0)

Monday, June 28, 2010

Anderson on the Offside Goals Rule in Practice

Ross G. Anderson (University of Glasgow) has posted The Offside Goals Rule in Practice.  I must admit that the paper title caught my eye primarly because we've been watching a lot of World Cup soccer around here [for evidence, see this local news video from Rice Soccer Camp with my daughter giving her pre-game analysis of the U.S.-Algeria game (and showing off some footwork) from last week!]. 

But it turns out that Anderson's paper is actually about property law--Scottish property law to be exact.  The abstract:

The author discusses the rule which penalises purchaser's of property who have private knowledge of the rights of a prior purchaser. In particular, he focusses on the practical implications of the rule for transactional lawyers.

From skimming the paper it looks like the "offside goals rule" is somewhat analagous to the American concept of race-notice recording of land conveyances.  But I like the soccer metaphor. 

Matt Festa

June 28, 2010 in Comparative Land Use, Contracts, Property, Real Estate Transactions, Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, June 27, 2010

SmartCode Zoning Restrictions Upheld...

For starters (and full disclosure), I do a great deal of writing, research, and consulting on the SmartCode and transect-based zoning.  That said, facts are facts so I don't mind reporting that the SmartCode recently withstood an interesting legal challenge.

What makes it interesting is that some people I've heard comment of the SmartCode have made claims that the SmartCode allows unfettered density.  The gist is that the code is pro-density. 

That's actually not the case at all.  Instead, the SmartCode is only pro-density in the more urban settings where greater density is appropriate to the scale of development.

Which leads to this recent lawsuit in Gulfport, Mississippi which involved a landowner trying to get more density than the SmartCode allowed--just the opposite of the aforementioned assumptions.

Read more here:

Three Gulfport residents prevailed in a zoning dispute Friday, when Circuit Judge Lisa Dodson ruled against a high-density development in their single-family neighborhood. Dodson said the information presented to the city did not support the City Council’s decision in August to rezone the property for up to 60 units on 4.3 acres.

Under SmartCode regulations West Gulfport residents helped develop, only five units per acre were allowed before the zoning change.

--Chad Emerson, Faulkner U.

June 27, 2010 | Permalink | Comments (0) | TrackBack (0)