Thursday, August 30, 2012

Singer on the Rule of Reason in Property Law

Joseph Singer (Harvard) has posted The Rule of Reason in Property Law (UC Davis Law Review, 2013).  The abstract:

Property rights cannot work if they are not clear, and scholars generally assume that the best way to attain this goal is to define property rights by relatively rigid rules. However, recent evidence suggests that the intuitive view may be mistaken. The subprime crisis shows that clear rules do not produce clear titles if owners do not follow those rules. And during the twentieth century property law moved dramatically away from rigid rules toward flexible standards. Standards turn out to be crucial to property law, as well as increasingly important in property doctrine.

Empirical evidence and historical experience alike demonstrate that rules cannot be applied without being supplemented by standards to determine the scope of those rules. Conversely, standards achieve predictability through core exemplars, precedent, and presumptions. Thus rules and standards are less distinct from each other than one might imagine. Standards perform crucial functions for property law. They perform systemic functions to shape the infrastructure and the outer contours of the property system by (1) setting minimum standards compatible with the norms of a free and democratic society, (2) protecting the justified expectations of consumers, and (3) responding to externalities and systemic effects of the exercise of property rights. Standards also determine the scope of property rights by (4) distinguishing cases; (5) resolving conflicting norms; (6) excusing mistakes; (7) escaping the "dead hand" of the past; and (8) deterring the "bad man" from abusing property rights.

A few pages of the article discuss land use regulation and the shift from relatively rigid early zoning to a world in which "[n]egotiated zoning is now the norm." The core of the argument is that:

On the surface, negotiated zoning is less predictable than Euclidean zoning. One either was or was not entitled to build a certain type of structure under the old rules. But of course the predictability of traditional zoning rules was always a bit of an illusion. One could always seek a rezoning of the property by the city council, for example, or sue to obtain a variance. Since zoning boards are political creatures, they tend to grant variances if no one objects. 

        . . .

In some ways the modern system is more predictable. All one has to do is to obtain agreement among relevant actors within a regulatory framework. Determining whether one can or cannot successfully complete a planned development requires a prediction about whether one can convince relevant audiences that it is a good idea. Experienced developers are likely to be more accurate in guessing whether this is the case than in predicting the outcome of a lawsuit determining whether a rezoning is or is not "inconsistent with the general plan."

John Infranca

August 30, 2012 in Property, Property Theory, Scholarship, Zoning | Permalink | Comments (0) | TrackBack (0)

Community Economic Development Law: A Text for Engaged Learning a welcome addition to the CED literature

As a professor leading an economic development clinic, I am always on the lookout for good class textbooks that address the smorgasbord of issues that economic development and community economic development clinics face, and can help students get up-and-running with clients.  But despite the growth of CED and ED clinics in the last several decades, the legal academic literature has not kept pace.  Only a few top-notch books exist.  One that I particularly like is that of Roger A Clay, Jr. (a former mentor of mine at the National Economic Development & Law Center, now Insight) and Susan R. Jones' Building Healthy Communities:  A Guide to Community Economic Development for Advocates, Lawyers, and Policymakers (2009), published by the American Bar Association (table of contents here).   Community Economic Development Law

New to the field this year is Community Economic Development Law:  A Text for Engaged Learning (2012), just out from Carolina Academic Press and co-authored by Susan D. Bennett, Brenda Bratton Blom, Louise A. Howells, and Deborah S. Kenn.  The book covers a lot of the same ground as the Clay and Jones text (table of contents here).  One thing I really like about this book, however, is that it introduces a role-playing game to the book to help students understand the multitude of community participants, governmental agencies, and private-sector actors that participate in ED and CED activities.  The book describes this role-playing game as follows:

The text enables students to approach the substantive material as would problem-solving, community-based practitioners. They do so by entering the community of Ourfuture City, whose Old World immigrants built a vanished industrial prosperity; and of its neighborhood, Milkweed Park, whose new immigrants and long-time residents confront the stresses of physical and financial isolation, racial segregation and economic disinvestment. Students assume the roles of advisors and advocates for the families, teachers, clergy, bankers, entrepreneurs, non-profits, public institutions, and activists of this prototypical struggling municipality.

Not hyped enough in the book's materials is that it comes with a map of the hypothetical Ourfuture City that lays forth a visual representation of the very abstract, but very real factors playing into ED and CED issues.  I can't say how much I love to see this. 

For a number of years I have participated in the Urban Land Institute's wonderful UrbanPlan role-playing game (see San Francisco ULI's UrbanPlan page), which provides students a typical redevelopment scenario, a map of a complicated area and a game text replete with gentrification factors, a homeless shelter, historic buildings, and lots of other factors that pose the constant dilemmas of redevelopment.  In the UrbanPlan game, students have to find a way to develop an area that "pencils out" and then, competing against other student groups, sell their vision of the development to a "city council," which is composed of ULI volunteers. 

I absolutely love UrbanPlan, as I believe it provides students a hands on experience in the trade-offs implicit in any redevelopment.  The trouble is that UrbanPlan is very complex and requires a little too much class time to fully integrate it into a law school curriculum.  (UrbanPlan's intended audience is high school seniors, but I have also seen it played by graduate students in planning departments and development professionals who struggle under the game's rigor!). 

And that is why I am excited to dip into this new book.  If there is a way to bring some of that sense of embodied decision-making to the fast-paced legal classroom, which is seems this new book seeks to do with its role-playing component, I would certainly adopt it.  It will be exciting to take a closer look.

Stephen R. Miller



August 30, 2012 | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 29, 2012

Proposed Final Settlement in Baltimore Fair Housing Case

The Baltimore Sun reported this past weekend on the proposed final settlement in Thompson v. HUD, a fair housing case that dates to 1995. 

The case arose when the American Civil Liberties Union of Maryland sued HUD, saying that it demolished old public housing high-rises where mostly African-Americans lived — only to move the residents to equally segregated housing and poor conditions in other parts of the city.

Attorneys for the residents said Friday that the government in effect “perpetually locked” African-American families in neighborhoods of concentrated poverty, violating federal civil right laws. The settlement, which would cover all claims in the case, was filed in conjunction with Baltimore City and the Housing Authority of Baltimore City.

As the Legal Defense Fund, which worked with the ACLU on the case, notes in its press release, the court had ruled in 2005 “that the U.S. Department of Housing and Urban Development (“HUD”) violated the Fair Housing Act by unfairly concentrating African-American public housing residents in the most impoverished, segregated areas of Baltimore City.  Judge Garbis held that HUD must take a regional approach to promoting fair housing opportunities throughout the Baltimore Region.” 

The settlement requires HUD to allocated money towards expansion of the Baltimore Housing Mobility Program, which has been in place since a partial settlement in the 1990s.  The program has enabled over 1,800 families to move to neighborhoods in other parts of the city and to surrounding suburbs.  Under the settlement, the program will, among other things, fund vouchers and counseling over the next seven years for up to 2,600 additional families.

The case is particularly interesting given its regional approach to questions of housing and segregation.  Housing vouchers can be used throughout the region, enabling participants to voluntarily move to suburban areas with greater employment and educational opportunity.  The program provides extensive housing counseling and mobility assistance to aid families interested in moving to lower-poverty neighborhoods.  For more details, see this  2009 report discussing the progress of the program at that time. 

John Infranca

August 29, 2012 in Affordable Housing, Federal Government, Housing, HUD, Local Government, Race, Suburbs | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 28, 2012

Gage Lecture: Garnett on School Closures in Urban Neighborhoods

Gage lectureUMKC Law and the ABA Section on State & Local Government are hosting an education law symposium with The Urban Lawyer, preceded by the 2012 Gage Lecture, featuring Nicole Stelle Garnett (Notre Dame) on "School Closures in Urban Neighborhoods: Lesson's from Chicago's Catholic Schools."

Thursday, Oct. 4, 2012 | 6:30 p.m.
UMKC School of Law's Thompson Courtroom

What Happens When You Close Urban Schools

America’s educational landscape is changing with the rapid disappearance of Catholic schools from the urban core. Yet, studies show negative effects on neighborhoods when schools close. Scholar Nicole Garnett will discuss what this means for urban and educational policy.

Professor Garnett's lecture is free and open to the public; the program and registration for the Oct. 5 symposium are available at the website

Matt Festa

August 28, 2012 in Chicago, Conferences, Lectures, Local Government, Scholarship, State Government, Urbanism | Permalink | Comments (0) | TrackBack (0)

Monday, August 27, 2012

A slim volume on the Quiet Revolution (and a digression on the California Delta)

First and foremost, I want to apologize to our loyal readers for disappearing into the ether for the past few weeks.  Getting ready for the first days of class meant something had to give, and this time, it was the blogging.  But I'm back!  And starting later this week, I'm hoping to try something new:  a series of posts about the same topic--and one of the biggest land use stories of the summer that we have not yet touched upon at this blog--California Governor Jerry Brown's second try at building a peripheral canal around the California Delta.  More on that later this week...

Today I'm dropping in to commend the John Marshall Law Review on putting out an excellent volume with articles from many of the land use field's luminaries on the 40th anniversity of the Quiet Revolution in land use control.  We have already blogged about the conference, and Patricia Salkin's article in this volume.  However, a hard copy of the full volume landed in my mail box over the weekend, and I just couldn't help but write to say that, if you have a copy in your mail box, take the time to read it, and if you don't, go get it!  Articles by Fred Bosselman, Patricia Salkin, Daniel Mandelker, David Callies, Edward Sullivan are just the beginning.  Of course, the Quiet Revolution in Land Use Control was a landmark 1971 publication (available here) authored by Fred Bosselmann and David Callies.  If you haven't checked out the original, download it and add it to your reading list!

A happy start to the semester to all!

Stephen R. Miller


August 27, 2012 | Permalink | Comments (0) | TrackBack (0)

New York Times on Home Businesses

The NY Times has a recent article on home businesses in New York City, some of which operate in violation of zoning rules.  The businesses discussed include one-room hotels, children's used-clothing shops, personal training, and a vegan cookie business.  Operating a business from home is of course, partly motivated by high commercial rents.  The article notes that the number of these businesses in New York is unclear: 

Because so many home businesses operate under the radar, it is hard to say just how many there are. Complaints to the city’s 311 telephone system about illegal commercial use in a residential area have been decreasing. In 2011, the tally was roughly 2,150, down from about 2,450 in 2008. Even so, the data may not accurately reflect the full range of complaints about businesses, because annoyed tenants who call 311 to carp about ungodly noise may not know about zoning rules.        

Not every home business is legal, but the prohibited businesses are not always obvious:

Not surprisingly, kennels and veterinary practices aren’t allowed to operate from homes. Zoning rules also prohibit a curious mix of other businesses, including advertising and public relations. Stock brokerages and offices for real estate, insurance and interior design aren’t supposed to operate from a desk in the bedroom. Running a commercial kitchen at home isn’t permitted, either — “home processors” like Mr. Semosh cannot use commercial-size equipment.

New York City's Zoning Resolution, at Section 12-10, expressly includes “fine arts studios,” “professional offices,” and “teaching of not more than four pupils simultaneously” within the definition of permitted “home occupation.”  It expressly does not include, among others, advertising or public relations, barber shops and beauty parlors, interior decorators’ offices, stockbrokers, ophthalmic dispensing, and real estate or insurance offices.  In addition, the code prohibits the sale of articles produced elsewhere and exterior displays. One person who does not reside at the unit may be employed “in connection with the practice of a profession.” Finally, the home occupation must not “produce offensive noise, vibration, smoke, dust or other particulate matter, odorous matter, heat, humidity, glare, or other objectionable effects.”

It is not clear that the prohibited occupations are more likely to produce these nuisances or would cause more traffic or related negative externalities in a neighborhood than the permitted home occupations.  It is worth considering whether the categorical acceptability of "professional offices" and the outright prohibition on "beauty parlors," without regard to a specific uses' impact on neighboring properties, reflects a class-conscious determination of what is desirable and should be replaced by a more careful consideration of specific factors that affect residential neighborhood character.  

For a discussion of how home occupation regulations might be modernized, see this publication from a few years ago by Patricia Salkin.

John Infranca


August 27, 2012 in Local Government, New York, Nuisance, Zoning | Permalink | Comments (1) | TrackBack (0)