Saturday, October 15, 2011

Can Design Express the Public/Private Distinction?


According to this interesting post from the NY Times City Room Blog, signs like the one above have recently proliferated in New York City's Central Park, courtesy of the Central Park Conservancy.  The Conservancy, according to its website, "manages and maintains Central Park under contract with the city of New York."  If you ask me, an exclusive contract to manage and maintain city property would make an organization a government agency, but as is typical in modern urban governance both the City and the Conservancy are eager to characterize the latter as "private."  Hence, these signs, whose "Titling Gothic" font and "Conservancy Green" background are designed to exude the warmth and informality of a private organization rather than the arbitrary meanness of a regulatory entity, even as the signs tell you where you are and are not supposed to go.  The money quote, from the designer of the font in question: "None of the styles of Titling Gothic exude the kind of authoritarian insistence of Helvetica...."

Ken Stahl

October 15, 2011 | Permalink | Comments (1) | TrackBack (0)

HOT Lanes Catch Heat in Hotlanta

Wednesday I drove into Atlanta to hear a talk by Rob Teilhet, the new executive director of Georgia Conservation Voters. Rob had some great things to say about finding common ground on environmental policy in this fractious political environment.

On the way home, though, I saw the new HOT (high-occupancy-toll) lanes in Gwinett and DeKalb counties.  HOT lanes are Atlanta's new version of HOV (high-occupancy-vehicle) lanes. Previously one could only use HOV lanes with two or more passengers. HOT lanes can be used by vehicles with three or more passengers, or with two or fewer passengers who have a "Peach Pass" (an electronic window sticker that records tolls to be paid from an account the driver establishes with the State Road and Tollway Authority).  The tolls depend on the distance traveled, and vary by time of day (a version of congestion pricing).

This week is the first week of operation for the HOT lanes, and so far everyone's confused and nobody's happy.  Despite the fact that it was rush hour, I saw absolutely no vehicles in the HOT lane (not even cars or motorcycles, which still travel free).  There were a couple of police cars in the median watching for violators, but otherwise the lane just seemed like an extra big shoulder.  Drivers have been extremely critical, and the Governor's office is lowering tolls to attract drivers and alleviate congestion.

HOT lanes have been touted by conservative commentators a better alternative to HOV lanes.  Philisophically I love the idea of carpooling, but in reality (and since there are no reasonable public transportation options between Athens and Atlanta) I'm often the only occupant of my vehicle, so I'm vaguely considering getting a Peach Pass. We'll see how things work once (or if) they get the kinks worked out.

Jamie Baker Roskie

October 15, 2011 in Georgia, Transportation | Permalink | Comments (0) | TrackBack (0)

Friday, October 14, 2011

Barnett on Silberman on the "logic" of Wickard

In light of our earlier ponderings about land use, federalism, and whether Wickard can support a general federal power of land use regulation, this post by Randy Barnett might be of interest. Barnett, of course, is the chief architect of the case against the individual mandate in the health insurance act, so he has been lately paying a lot of attention to the question how far Wickard reaches.

Adam MacLeod

October 14, 2011 | Permalink | Comments (0) | TrackBack (0)

Salkin & Ko on Health Impact Assessment (HIA) in Land-Use Decision Making

Patricia Salkin (Albany) and Pamela Ko (Albany) have posted The Effective Use of Health Impact Assessment (HIA) in Land-Use Decision Making, Zoning Practice (Oct. 2011). The abstract:

Health impact assessments (HIAs) outside of the United States have long been used to hone in on the public health impacts of certain government decision making. While health impacts have been considered to a lesser degree through environmental impact review (EIR) in the United States, recent findings suggest that HIAs can be very helpful in analyzing proposed development and redevelopment projects. This article briefly reviews the history of the HIA movement, examines the differences between HIA and EIR, and provides those involved with the land use planning and regulation examples of how to best integrate HIAs into the land use decision making process.

Matt Festa

October 14, 2011 in Development, Local Government, Planning, Scholarship | Permalink | Comments (0) | TrackBack (0)

For sale: 198 square feet, all in a row

Long-range shotgun house.

The ordinance in question would require 5-foot sideyards in the event that plaintiff would construct a residence on her property commonly known as 482 Park Avenue, Glencoe, Illinois. This property measures 25 feet by 198 feet, and, therefore, a residence erected pursuant to the ordinance could measure 15 feet in width at maximum.

Ziman v. Village of Glencoe, 275 N.E.2d 168, 169 (Ill. App. 1971)

Adam MacLeod

October 14, 2011 | Permalink | Comments (0) | TrackBack (0)

Thursday, October 13, 2011

Chan, Sharygin, Been, & Haughwout on What Happens to Distressed Mortgage Borrowers and Their Homes

Sewin Chan (NYU Wagner School), Claudia Sharygin (NYU Furman Center), Vicki Been (NYU Law), and Andrew Haughwout (Federal Reserve Bank--NY) have posted Pathways after Default: What Happens to Distressed Mortgage Borrowers and Their Homes? The abstract:

We use a detailed dataset of seriously delinquent mortgages to examine the dynamic process of mortgage default – from initial delinquency and default to final resolution of the loan and disposition of the property. We estimate a two-stage competing risk hazard model to assess the factors associated with whether a borrower behind on mortgage payments receives a legal notice of foreclosure, and with what ultimately happens to the borrower and property. In particular, we focus on a borrower’s ability to avoid a foreclosure auction by getting a modification, by refinancing the loan, or by selling the property. We find that the outcomes of the foreclosure process are significantly related to: the terms of the loan; the borrower’s credit history; current loan-to-value and the presence of a junior lien; the borrower’s post-default payment behavior; the borrower’s participation in foreclosure counseling; neighborhood characteristics such as foreclosure rates, recent house price depreciation and median income; and the borrower’s race and ethnicity.

Matt Festa

October 13, 2011 in Affordable Housing, Housing, Mortgage Crisis, Mortgages, New York, Race, Real Estate Transactions, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 12, 2011

Salkin & Gross on International Comparative Property Rights

Patricia Salkin (Albany) and Daniel Gross (Albany) have posted International Comparative Property Rights: A Cross-Cultural Discipline Comes of Age. The paper is being given this weekend at the Brigham-Kanner Conference, which is being held in Beijing this year. The abstract:

This article provides an overview of the differences and similarities among a select group of nations through an examination of their real property protection regimes. The countries selected – South Africa, India, Chile, Singapore and Ghana – were chosen to illustrate how geographical, social, and economic diversity all contribute to different property rights cultures and legal approaches. Part II of this article examines general international or global factors that affect property rights. Part III offers a focused look at the historical and cultural development of property rights in the five selected countries. Part IV follows with a discussion of some of the domestic factors present in these five different countries that contribute to or influence the development and enforcement of different property rights regimes. The article concludes in Part V with a discussion about the importance of understanding the property rights regimes in other countries to better enable practitioners to provide responsible legal counsel to clients.

This one looks really interesting for those who are looking at comparative perpsectives. There have been a lot of land use and property related articles posted recently (I think we're probably two articles behind just on Prof. Salkin's recent work!)-- we'll be bringing them to you soon . . . and if you have an article that you'd like us to post about, let us know.

Matt Festa

October 12, 2011 in Comparative Land Use, Conferences, Property Rights, Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

Whither the Constitution?

Jim’s post linking to Ashira Ostrow’s latest article brought to my mind a question that has perplexed me for some time, for which I have yet received no satisfactory answer. When prominent, accomplished land use scholars discuss federalism why do they pay so little attention to the United States Constitution? However one views the desirability of any particular attempt by Congress to regulate land use, if Congress does not have the power to regulate then the rest of the discussion is moot. Yet, though extensive scholarly discussion has in recent months been committed to the problem of federalism in land use controls, scant attention has been paid to the powers enumerated in Article I.

I do not mean to single out Ashira Ostrow here. She is a very accomplished land use scholar. She has forgotten more land use law than I have ever known. I’ve not yet read her latest article (though I certainly will; her articles always reward the careful reader). From a cursory glance it appears that Ashira has paid attention to the Commerce Clause, arguing that land, like wheat grown locally for personal consumption (see Wickard v. Filburn), is a “national resource, properly subject to federal regulation.” Okay, but what about the Lopez and Morrison decisions? What about enumerated powers? That the national government has an interest in the use of land does not entail that it has the power to regulate land use.

Simply by mentioning the Commerce Clause, Ashira has paid more attention to the problem than most. For example, one of the most strenuously-asserted objections to the Religious Land Use and Institutionalized Persons Act (RLUIPA) is that it violates principles of federalism. Two very prominent scholars have argued that RLUIPA intrudes upon local control of land use without sufficient reason. I think these arguments fail, for reasons that I discuss in an article forthcoming in the Real Estate Law Journal. But the critics miss entirely a federalism argument that I believe is nearly-fatal to RLUIPA, namely that RLUIPA is not a permissible exercise of the Commerce Clause power.

RLUIPA does not regulate commerce. It regulates courts in their review of decisions by local governments, which concern land use. Specifically, it directs state and federal courts to subject to strict scrutiny review those land use decisions that substantially burden exercises of religion. And religious exercise is generally performed by claimants engaged in non-commercial activities. Under Morrison and Lopez, which to my knowledge remain good law, the Commerce Clause predicate for RLUIPA seems indefensible.

What’s baffling is that the critics of RLUIPA whom I mentioned both have sparkling credentials. They are at least as smart as I am and far more prominent. Yet they ignored the strongest, most obvious, and most basic federalism critique of RLUIPA. Why? Do they suppose that the Constitution is irrelevant to the federalism discussion? Surely they have enough intellectual integrity to avoid such a blunder. Do they not know about Morrison and Lopez? That also cannot be. Perhaps it is an act of charity toward less-prominent scholars; they leave the low-hanging fruit for people like me.

It’s strange. Federalism in land use law is a hot topic right now (due, in largest part I think, to the stellar scholarship of Ashira Ostrow). On several occasions recently I have found myself in a room full of land use scholars, all at least as intelligent and informed as I, who have provided sophisticated, detailed accounts of the local, state, and national interests involved in various land use problems but never stop to consider whether any of their proposals are constitutional. Am I missing something?

Adam MacLeod

October 12, 2011 | Permalink | Comments (3) | TrackBack (0)

Tuesday, October 11, 2011

Property Theory and Land Use, Part I

Why do landowners get to decide what to do with their land? If the answer to this question is, as economists would have it, that those who invest their resources in the purchase, development, and use of land are generally in the best position to maximize the value of land, then what happens if this turns out not to be true? What to make of economically irrational landowners, or unproductive or wasteful landowners? Are they exceptions to the rule? Can they be managed with rare exercises of the eminent domain power? Or does their existence supply reason to doubt altogether the efficacy of owner sovereignty? And what about considerations for which economists cannot account, values that are incommensurable to each other, such as charity and the other virtues? Can one run a regression analysis to measure the effectiveness of private property in promoting generosity?

These are some of the questions that Progressive property theorists have prompted in recent years, raising formidable challenges to private property generally, and land owner sovereignty in particular. Consider perhaps the most prominent and influential of these challenges, the Statement of Progressive Property authored by Gregory Alexander, Eduardo M. Peňalver, Joseph William Singer, and Laura Underkuffler. They doubt that private property ownership accrues to the common good, on balance. And they challenge the orthodox view of property as a core right to exclude, with government regulation operating only at the margins. They claim instead that the core of property is complex, and includes management by government.

Of course, one could just as easily ask the questions the other way around. Why are governments empowered to regulate land use? If the answer to this question is, as land planning advocates would have it, that controls on land use are necessary to internalize negative externalities, and to reduce conflict and waste, then why do we allow ex ante controls? The common law had mechanisms—doctrines of nuisance and waste, the power of eminent domain—to alleviate or eradicate harmful uses and non-uses of land. Ex ante planning rests on the assumption that government planners are capable of discerning the best uses of land and avoiding the worst, an assumption upon which scholars have cast considerable doubt (including on this very page, no less). And what about considerations for which government planners cannot account, such as (lack of) market demand, that irritating reality? The development authorities of New London, Connecticut had planned a real shining city by the sea. The dreams and plans of redevelopment authorities are often strikingly attractive. They could transform the world if only they never had to be implemented.

It is fine to acknowledge the value of incommensurable ends, to insist that the institution of property account for virtues and other values that are difficult to quantify. But are Progressive theorists really advancing these ends in a way that owner sovereignty does not? Henry Smith thinks not. He insists that both defenders and critics of private property rights are in favor of virtue and human flourishing. They disagree merely over the means that best serve the agreed-upon ends. The critics of private property rights are simply impatient with the “mysterious way” that property promotes human flourishing.

This is (very) roughly the current state of what is arguably the most interesting debate in property theory today. Why should land use lawyers care about this debate? Today’s legal theory is tomorrow’s legal doctrine. Economic substantive due process was just a theory before the Court decided Lochner. Originalism was just a theory before a young Justice named Scalia began questioning the judicial-supremacy orthodoxy espoused by Justice Brennan. John Locke had a theory. If you’re curious what came of it, read the Declaration and Constitution in one hand with a copy of the Second Treatise in the other. Holmes had a theory. He failed to persuade a majority of his colleagues on the Lochner Court, but his theory ultimately prevailed in West Coast Hotel v. Parrish.

Over the course of the next couple of weeks, I hope to explore some of the implications of this debate among property theorists. In particular, I’d like to think with our readers about how these principles play out in land use law. Are there principled reasons why the age of landowner sovereignty should come to and end? Do policy makers have principled reason to doubt the efficacy of government planning of land use? Or can landowner sovereignty and government planning co-exist on rational, coherent grounds?

Adam MacLeod

October 11, 2011 | Permalink | Comments (1) | TrackBack (0)

Ostrow on Land Law Federalism

Ashira Ostrow (Hofstra) has posted Land Law Federalism, 61 Emory L.J. ___ (forthcoming 2012). A must-read, this foundational work explores the theoretical framework for appropriate federal intervention in the state/local-dominated area of land use regulation. Here's the abstract:

In modern society, capital, information and resources pass seamlessly across increasingly porous jurisdictional boundaries; land does not. Perhaps because of its immobility, the dominant descriptive and normative account of land use law is premised upon local control. Yet, land exhibits a unique duality. Each parcel is at once absolutely fixed in location but inextricably linked to a complex array of interconnected systems, natural and man-made. Ecosystems spanning vast geographic areas sustain human life; interstate highways, railways and airports physically connect remote areas; networks of buildings, homes, offices and factories, create communities and provide the physical context in which most human interaction takes place.

Given the traditional commitment to localism, scholars and policymakers often reflexively dismiss the potential for an increased federal role in land use law. Yet, modern land use law already involves a significant federal dimension resulting, in part, from the enactment of federal statutes that have varying degrees of preemptive effect on local authority. Moreover, this Article maintains that federal intervention in land use law is warranted where the cumulative impact of local land use decisions interferes with national regulatory objectives (such as developing nationwide energy or telecommunications infrastructure).

Finally, this Article advances an interjurisdictional framework for federal land law that harnesses (a) the capacity of the federal government, with its distance from local politics and economic pressures, to coordinate land use on a national scale and (b) the capacity of local officials, who have detailed knowledge of the land and are politically accountable to the local community, to implement land use policies.

Jim K.


October 11, 2011 in Climate, Development, Environmental Law, Environmentalism, Federal Government, Globalism, Green Building, Inclusionary Zoning, Local Government, NIMBY, Planning, Scholarship, Smart Growth, Sprawl, Subdivision Regulations, Sustainability, Transportation, Wetlands, Zoning | Permalink | Comments (1) | TrackBack (0)

Monday, October 10, 2011

Anderson and Plaut on Implicit Racial Bias and Residential Racial Segregation

Michelle Wilde Anderson (Cal-Berkeley) and Victoria Plaut (Cal-Berkeley) have posted Property Law: Implicit Bias and the Resilience of Spatial Colorlines, a chapter in Implicit Racial Bias Across the Law (forthcoming 2011, Cambridge U. Press, Levinson & Smith, eds). Here's the abstract:

Subjectivity and discretion exert tremendous influence over property and our built environment. From members of a city council to planning commissioners, from bank actuaries to developers, from tax assessors to neighbors, individuals constantly and silently make consequential judgments. How much is a home worth? How trustworthy is a credit-seeker? Is a proposed development, land use, or landowner suitable for this community? Is this neighborhood safe? Current research in psychology can tell us much about how we make such decisions and how the race of parties involved can shape those outcomes. This chapter investigates the application of unconscious bias research to property and land use decisions that affect where people live, work, shop, and travel - decisions that in turn affect household wealth, educational opportunity, health, and personal safety.

Jim K.

October 10, 2011 in Housing, Race, Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, October 9, 2011

Bonus Zoning and Mansionization in Los Angeles

The indispensable Planetizen links to this interesting blog post on Los Angeles's efforts to deal with "Mansionization," in which homeowners tear down existing homes and build huge mansions on small lots (see the photo here.)  One wonders how much of a problem Mansionization is in the current economy, but apparently it still is, at least in some of LA's more affluent residential neighborhoods. 

In any event, Los Angeles apparently set down some basic Mansionization regulations, but allowed individual neighborhoods to adopt their own, more restrictive rules (which are subject to city council approval because, as I explain here, municipalities cannot constitutionally delegate their zoning power to neighborhoods).  Studio City, one of the aforementioned affluent residential neighborhoods, did in fact adopt a more restrictive set of Mansionization regulations, which the city council is expected to approve.  It is certainly intriguing to see wealthy homeowners signing on to a proposal that will reduce maximum home sizes, perhaps recognizing that property values are driven by aesthetic factors other than just size.

With that in mind, the text of the proposed Studio City ordinance, here, is very interesting.  It appears to be modeled on New York City's landmark 1961 zoning regulation, which introduced the concept of "bonus" or "incentive" zoning.  (Jerold Kayden has written a great book, Privately Owned Public Space, about the NYC regulation).  The Studio City ordinance provides for a maximum FAR (Floor Area Ratio -- percentage of the lot which can be covered with buildings), but permits greater lot coverage if homeowners incorporate certain design elements that mitigate the impact of the larger home.  In addition, homeowners can also qualify for an FAR bonus if they incorporate certain green building standards, such as qualifying for the LEED "Gold" standard. 

On a related note, and the hopeful subject of a future post, recent California legislation allows the governor to "fast-track" environmental review under the state's CEQA law if it meets the same LEED standard.  It appears, then, that these LEED standards are more and more being used as a talisman that assures some minimum level of environmental protection and therefore justifies the circumvention of otherwise applicable regulations.  But my admittedly amateurish understanding of LEED suggests that these standards leave a lot to be desired -- they can, for example, easily be manipulated to rack up lots of "points" for trivial environmental benefits. 

Should we be placing so much faith in LEED standards?  I welcome comments from those with greater knowledge of LEED.

Ken Stahl

October 9, 2011 | Permalink | Comments (1) | TrackBack (0)