April 15, 2011
Stern's Reassessment of the Citizen Virtues of Homeownership
The assumption that homeownership creates more politically and civically engaged citizens who contribute to local communities (as well as national democracy) dominates property law. This belief underlies influential theories of property and land use and justifies housing policies promoting homeownership and expanding homeownership’s reach. This Essay challenges the “citizenship virtues” of homeownership and contends that the evidence reveals a far more modest, and particularized, picture of citizenship effects than commonly assumed. I explore psychological, historical, and economic factors that may underlie the variable citizenship effects from homeownership. Some of these factors elucidate not only why owners and tenants perform similarly in certain citizenship measures but, by the same token, why it is not universally true that fear of increased rents constrains local contribution by tenants. I consider the implications of this analysis for legal theory and note potential applications to housing policy.
April 14, 2011
Are Urban Walmarts a Good Thing?
That's the question that is generating increasing discussion these days.
What's happening is that Walmart has recognized the demand for huge suburban stores is waning in a major way. That leaves smaller urban sites as one of the few growth opportunities.
However, many land use codes limit building size and frontage types even more stringently in urban settings. This has led Walmart to consider new store types and formats that reach all the way down into the 15,000 square foot building size--smaller than even some Walgreens or CVS stores.
This article discusses whether--even if built in a context-sensitive size--urban Walmarts a good thing?
The Washington Post's Capital Business section today is all about Walmart, and reporters found an ambiguous picture when looking at locations that have already sprung up in the area. Existing big-box grocery stores don't do well once Walmart arrives, and new ones don't locate nearby (in D.C., Giant's unionized workers have taken to wearing Respect DC buttons on the job). But if you are a smaller store and offer something unique, a Walmart can bring more customers, not fewer.
Thoughts on Japan
Rob Verchick (Loyola) has a thoughtful editorial in the Christian Science Monitor about recovery from the recent earthquake and tsunami:
In policymaking circles, the questions are already flying. What parts of the landscape should be restored? How safe should sea walls and nuclear reactors be? How should the public participate in this debate? Looking to the recent history of disaster recovery, leaders are given two contrasting models for how to approach rebuilding: the heavy-handed approach of Kobe, Japan’s Mayor Kazutoshi Sasayama after the Great Hanshin earthquake in 1995 or the hands-off approach of Mayor Ray Nagin in New Orleans after hurricane or. Should leaders favor the heavy hand or the light touch? If history’s a guide, the path will be muddy. But already it may be taking shape.
Read more here.
I'm also disturbed by a recent article in The New York Times about how the nuclear industry relies on a large temporary workforce of economically vulnerable workers who brave extreme exposure to radiation without much training or job security. And, according to the article, this is not just a minority of low level workers, but the vast majority of the work force at plants such as Fukushima Daiichi.
Collectively, these contractors were exposed to levels of radiation about 16 times as high as the levels faced by Tokyo Electric employees last year, according to Japan’s Nuclear and Industrial Safety Agency, which regulates the industry. These workers remain vital to efforts to contain the nuclear crisis at the Fukushima nuclear plants.
They are emblematic of Japan’s two-tiered work force, with an elite class of highly paid employees at top companies and a subclass of laborers who work for less pay, have less job security and receive fewer benefits. Such labor practices have both endangered the health of these workers and undermined safety at Japan’s 55 nuclear reactors, critics charge.
“This is the hidden world of nuclear power,” said Yuko Fujita, a former physics professor at Keio University in Tokyo and a longtime campaigner for improved labor conditions in the nuclear industry. “Wherever there are hazardous conditions, these laborers are told to go. It is dangerous for them, and it is dangerous for nuclear safety.”
This disaster has raised serious questions about long-settled practices, in land use, disaster recovery, and energy generation. My hope is that the recovery process will teach us something about dealing effectively and humbly with the power of nature and its effect on how we order our lives.
Jamie Baker Roskie
April 13, 2011
The Demise of Historic Preservation?
As federal, state, and local governments face expanding budget crises, will historic preservation programs be one of the first items on the chopping block? President Obama's February budget proposal would have eliminated Save America's Treasures and Preserve America, which support historic preservation. Also in February, Governor Rick Perry of Texas proposed to eliminate funding for the Texas Historical Commission. The most important battles may be fought at the local level, however, where taxpayers are beginning to question the merits of tax breaks for property owners who preserve and maintain historic landmarks. On April 12, three homeowners in Austin sued the city and its city council, arguing that the tax breaks that apply to more than 500 landmarks in the city violate state law. In Detroit, historic buildings have crumbled as businesses have vacated structures, leaving them vulnerable to vandalism.
The U.S. Supreme Court in Penn Central Transportation Company v. City of New York noted that "nationwide legislative efforts" toward historic preservation reflect a "widely shared belief that structures with special historic, cultural, or architectural significance enhance the quality of life for all." But as governments struggle to provide funding for other essentials, pieces of our past may be lost.
April 12, 2011
More on Detroit...this time an interactive map...
Here's another interesting resource on my hometown related to land use and development issues: an interactive map from the NYT on how Detroit might shrink to concentrate the limited demand and services that the city faces.
It's beginning to appear more and more likely that Detroit is shaping up to be the living land use lab for all types of different ideas going into the future. That may actually end up being a good thing if it produces a new model(s) for effectively contracting municipal boundaries in an orderly way.
In Memorium: Milner Ball
Yesterday I attended the funeral service for long-time UGA law professor Milner Ball. Milner was best known as a constitutional law professor. He was also well known for creating the first civil law clinical program here at UGA - the Public Interest Practicum, and our first Environmental Law Clinic. (The Land Use Clinic is an offshoot of the Enviornmental Law Practicum that grew out of that first clinic.) All of the clinicians here owe a huge debt to Milner. Indeed, most of us would not be here without his influence and guidance. We all miss his grace, cheer, intellect, and gentle leadership.
His obituary can be found here. My condolences go out to his wife June, and his children and grandchildren.
Jamie Baker Roskie
UPDATE: The UGA School of Law has launched a tribute page for Milner.
NYU Furman Center's State of NYC Housing & Neighborhoods
Vicki Been and the NYU Furman Center for Real Estate & Urban Policy have announced the release of their 2010 State of New York City's Housing and Neighborhoods report. Here's the email announcement, posted with permission:
Dear Friends and Colleagues,
We are pleased to present the 2010 edition of the State of New York City’s Housing and Neighborhoods annual report. As you well know, this report is a critical resource for data on housing, demographics, and quality of life indicators for each borough and for the city’s 59 community districts.
This year, we examine multi-family rental properties, a critical source of housing for more than four in ten New Yorkers. We find that multi-family rental properties received more foreclosure notices in the last two years than any period since the early 1990s. The study finds that smaller multi-family rental buildings (5-19 units) are most likely to receive a foreclosure notice among the multi-family properties, while the largest properties (100 or more units) have experienced the sharpest uptick in foreclosures in the recent years. The report also finds evidence that renters experience deteriorating living conditions when multi-family rental properties fall into financial distress and foreclosure.
This year’s report also includes new chapters: Getting to Work in New York City, which presents an analysis of commuting patterns in New York City, and Public and Subsidized Rental Housing in New York City, which finds that nearly one in five residential units (18.4%) in the city is publicly supported.
A look at the trends in this year’s State of New York City’s Housing and Neighborhoods reveals that the state of New York City’s housing market remains uncertain. After dramatic declines in housing prices in 2008 and 2009, the prices of condominiums and multi-family buildings began to bounce back in 2010, but the prices of single-family and 2-4 family homes continued to decline. In Manhattan, where the market avoided the sharp declines of the outer boroughs, housing prices are down only 9.9 percent from their peak, compared to 27.8 percent citywide.
Mortgage lending remained low in 2009, but the number of refinancing loan originations jumped as homeowners took advantage of historically low interest rates. While the housing crisis has been felt across the city, it has had a disparate impact on different racial and ethnic groups. Homeownership grew more quickly among white and Asian families in the last decade than Hispanic or black households, and declines in home purchase during the recession were most dramatic among black and Hispanic borrowers.
Despite the recession, most of the city’s social and economic indicators have improved in the last decade. Median inflation-adjusted incomes increased about five percent between 2000 and 2009. Poverty declined citywide, falling from 21.2 percent in 2000 to 18.7 percent in 2009. The population has continued to grow, led by the Asian population, which increased by 32 percent between 2000 and 2010. Health and quality of life factors have improved since 2000, and the city has experienced overall reductions in asthma hospitalizations, infant mortality and crime.
As always, we eagerly await your comments and feedback. If you would like to receive a hard copy, please email firstname.lastname@example.org.
Vicki Been, Ingrid Gould Ellen, Sarah Gerecke
Fascinating information; you can download the full report at the link.
April 12, 2011 in Affordable Housing, Housing, Local Government, Mortgage Crisis, Mortgages, New York, Planning, Property, Race, Real Estate Transactions, Scholarship, Urbanism | Permalink | Comments (1) | TrackBack
April 11, 2011
Hybrid Communities with Public-Private Rules
This weekend at the American Planning Association's National Planning Conference I suggested in my presentation during the "Land, Covenants, and Law" panel (organized and led by Professor David L. Callies) that municipalities increasingly apply a combination of private covenants and zoning to form unique communities, which I call "hybrid communities." Hybrid communities typically arise when a municipal development authority decides to redevelop an area--often a brownfield or a blighted section of a city--into a mixed-use residential/commercial neighborhood. To form this hybrid community, the municipality initiates a lengthy and open public process to create a master plan, which the municipality's city council or similar legislative body eventually approves or rejects . If the council approves the plan, the developer of the community forms a private homeowners' association and records a set of covenants, conditions, and restrictions that also govern the community.
Most traditional "private" common interest communities (those with homeowners' associations and recorded covenants, conditions, and restrictions) operate under both zoning codes and servitudes, but there is not usually an explicit interaction between the public zoning rules and the private servitudes. Rather, those in the private community know (hopefully) that they must follow the zoning rules and also the servitudes, which are typically more detailed and restrictive than the zoning rules. The zoning rules typically require minimum setbacks and provide basic use restrictions, while the servitudes and associated design guidelines and rules add more use restrictions and include detailed aesthetic and design restrictions.
In a hybrid community, unlike a traditional private community, there is often more of an explicit relationship between the public zoning and the private servitudes, and the zoning itself often contains detailed design requirements. In the Lowry Redevelopment in Denver, for example, the redevelopment authority has aimed to create a green community through its public zoning work, and the private Lowry Community Master Association Rules and Regulations similarly reflect these "green" goals. They provide, for example, that "rocks used in landscaping should be material native to Colorado" and that "planting concepts, plant varieties, and irrigation techniques which minimize water consumption (xeriscape) are encouraged," referring residents to Denver Water Department publications for more information.
Other hybrid communities use a similar mix of private servitudes and detailed public zoning to create green, mixed-use living spaces, and these provide interesting case studies in what I argue is a relatively new public-private land use model. For examples beyond Lowry, see Playa Vista in Los Angeles, Symphony Park in Las Vegas, and the Mueller redevelopment in Austin, among others. It appears that all of these communities operate under both a public master plan and private servitudes. In some cases, the municipality might even serve as the "backstop" enforcement authority when a homeowners' association in the redevelopment fails to enforce one of the private rules; according to one conversation at the National Planning Conference this weekend, Missouri City, Texas follows this type of enforcement scheme in its Planned Development Districts. Professor Marc B. Mihaly describes these types of public-private developments--and the process of forming them--in his excellent article Living in the Past: The Kelo Court and Public-Private Economic Redevelopment.
Will public zoning and private land use controls eventually merge? Likely not. As attorney Jo Anne Stubblefield points out, cities have been slow to develop "traditional neighborhood design" districts that allow for mixed-use communities. But the growth of hybrid communities suggests that new, creative relationships between the public and private land use realms will continue to expand. These communities are not perfect, of course; they may displace low-income populations despite typically requiring a certain percentage of new affordable housing. And all communities with detailed design and aesthetic restrictions, whether public or private or hybrid, must ensure that those moving in are notified of the restrictions prior to purchase. These communities do, however, provide interesting food for thought--and possibly good case studies for the classroom, too.
Rule on Sharing the Wind
Troy Rule (Missouri) has posted another interesting paper: Sharing the Wind, from The Environmental Forum, Vol. 27, No. 5, pp. 30-33, September/October 2010. The abstract:
Landowners today are increasingly selling or leasing to others the right to use the wind flowing across their land to generate electric power. For the first time in history, the right to capture wind in some areas of the country has become marketable and highly lucrative. This article describes landowner conflicts over the wind turbine wake interference in the context of commercial wind energy development. The article contrasts wind currents with water, oil, and wild animals and ultimately advocates an “option approach” to govern situations when neighbors compete with each other over scarce wind resources.
Great title, too. We hope to hear more from Prof. Rule soon.
Hudson on Federal Constitutions, Global Governance, and Climate Change
Blake Hudson (Stetson) has posted Federal Constitutions and Global Governance: The Case of Climate Change, forthcoming in the Indiana Law Journal, Vol 87 (2012). The abstract:
Federal systems of government present more difficulties for international treaty formation than perhaps any other form of governance. Federal constitutions that grant subnational governments exclusive regulatory authority over certain subject matters constrain national governments during international negotiations - a national government that cannot constitutionally bind subnational governments to an international agreement cannot freely arrange its international obligations. At the same time, federal nations that grant subnational governments exclusive control over certain subject matters are seeking to maximize the benefits of decentralization in those regulatory areas. The difficulty lies in striking a balance between global governance and constitutional decentralization in federal systems. For example, recent scholarship demonstrates that U.S. federalism may jeopardize international negotiations seeking to utilize global forest management to combat climate change, since subnational forest management is a constitutional regulatory responsibility reserved for state governments. This article expands that scholarship by undertaking a comparative constitutional analysis of five other federal systems - Australia, Brazil, Canada, India, and Russia. These nations, along with the U.S., are crucial to climate negotiations since they account for 54 percent of the world’s total forest cover. This article reviews the constitutional allocation of forest regulatory authority between national and subnational governments in these nations to better understand potential complications that federal systems present for global climate governance aimed at forests. The article concludes that federal systems that maintain three key elements within their constitutional structure are most capable of agreeing to an international climate agreement that includes forests, successfully implementing that treaty on domestic scales, and doing so in a way that maintains the recognized benefits of decentralized forest management at the local level - 1. national constitutional primacy over forest management, 2. national sharing of constitutional forest management authority, and 3. adequate forest policy institutional enforcement capacity. The article also establishes the foundation for further research assessing how the constitutional structures of federal systems lacking key elements may be adjusted to achieve more effective climate and forest governance.
Prof. Hudson is also part of the group--with Lincoln Davies (Utah), Brigham Daniels (BYU), Lesley McAllister (San Diego), and our guest Hannah Wiseman (Tulsa)--who very recently relaunched the Environmental Law Prof Blog on our Law Professor Blogs Network. Welcome and congrats to them, and check out Prof. Hudson's paper.
April 10, 2011
Mr. Gorbachev, Tear Down This...Overpass...??
A very interesting piece that, even if less than half the predictions play out, could fundamentally alter land development patterns in several communities.