Monday, April 28, 2014

The Guardian Calls Out Donald Sterling for Being a Racist...Landlord

Usually the intersection between land use law and sports comes in the siting of sports arenas.  But, today I happened across an article in The Guardian about the LA Clippers/Donald Sterling racism scandal that takes issue with the NBA's non-action, for years, on his racism in his business practices:

But all those years, not enough people looked at Donald Sterling as the racist landlord the law so bore him out to be.

Neither the league, nor the players, nor the sports media paid much if any attention to Sterling's agreement in 2003 to pay upwards of $5m to settle a lawsuit brought by the Housing Rights Center charging that he tried to drive non-Korean tenants out of apartments he bought in the Koreatown section of Los Angeles. Only a few observers noted in 2006 that the Justice Department sued Sterling for allegations of housing discrimination in the same neighborhood. The charges included statements he allegedly made to employees that black and Hispanic families were not desirable tenants.

And while a handful of us in the media excoriated Sterling and the NBA in 2009 when Sterling settled the lawsuit by agreeing to pay $2.73m following allegations he refused to rent apartments to Hispanics, blacks and families with children, the story didn't resonate – despite it being the largest housing discrimination settlement in Justice Department history.

Read the entire article, "The real tragedy of Donald Sterling's racism: it took this long for us to notice," here.

Jamie Baker Roskie

April 28, 2014 in Affordable Housing, California, Race | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 18, 2013

Bray on Progressive Property and Low-Income Housing

Zachary Bray (University of Houston) has posted The New Progressive Property and the Low-Income Housing Conflict, BYU Law Review, Volume 2012, Issue 4, p. 1109 (2012).  The abstract:

The foundation of property law has been much debated in recent years, as several scholars have sought to provide a theoretical alternative to what they call the dominant, “law-and-economics” approach to property. In place of the law-and-economics approach, these scholars advance a new theoretical approach, which I call “the new progressive property.” At its core, this new approach favors rules thought to promote the collective well-being of the larger community while ensuring that relatively disadvantaged members of society have access to certain basic resources. This Article explores the boundaries and practical implications of the new progressive property. To do so, I focus on two potential examples of this theoretical approach related to low-income housing: the federal Section 8 housing voucher program and local rent-control ordinances. I argue that Section 8 is a better example than rent control of the new progressive-property approach, even though rent control has previously been identified as a practical example of the new progressive property and Section 8 has not.

I then turn to examine a deep conflict at the intersection of Section 8 and rent control, which presents an important opportunity to further test and refine the new progressive property. In particular, I argue that this underexamined low-income housing conflict provides good reasons to abandon rent control, even from a progressive-property perspective. In addition, the low-income housing conflict between Section 8 and rent control sheds light on the ambiguous relationship between law-and-economics analysis and the progressive-property framework. More specifically, I argue that the conflict between rent control and Section 8 demonstrates that even the most basic law-and-economics tools must be incorporated into a progressive-property framework to achieve the ends of the new progressive property.
 
Very interesting, and an an original contribution in comparing two different facets of housing policy in the context of the larger theoretical discussion of progressive property.
 
Matt Festa

December 18, 2013 in Affordable Housing, Housing, Landlord-Tenant, Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 10, 2013

Serkin and Wellington on Exclusionary Dynamics Beyond Zoning Ordinances

Chris Serkin (Vanderbilt) and Leslie Wellington have posted Putting Exclusionary Zoning in its Place: Affordable Housing and Geographical Scale, 40 Fordham Urb. L. J. 1667 (2013).  Here's the abstract:

The term “exclusionary zoning” typically describes a particular phenomenon: suburban large-lot zoning that reduces the supply of developable land and drives up housing prices. But exclusionary zoning in its modern form also occurs both within the urban core and region-wide. Exclusionary zoning at the sub-local and regional scales results in property values that fully capitalize the benefits of living in higher-wage regions, and the value of local public goods (like high-quality schools). Lower-income households then cannot meaningfully access those advantages, even if every municipality accommodates its fair share of regional need. The long-standing focus of exclusionary zoning on the content of local ordinances, instead of on these broader exclusionary dynamics, has defined the problem of exclusionary zoning too narrowly. We remedy that deficiency in our contribution to the Fordham Urban Law Journal’s Fortieth Anniversary issue.

 

December 10, 2013 in Affordable Housing, Inclusionary Zoning, Scholarship, Suburbs, Transportation | Permalink | Comments (0) | TrackBack (0)

Monday, October 21, 2013

Kirp in NY Times on Mt. Laurel Today

David Kirp (UC Berkeley--Public Policy)  has published an op-ed in the NY Times entitled "Here Comes the Neighborhood."  In it, he discusses the overwhelmingly positive impact of the affordable housing built in the New Jersey township of Mt. Laurel.  Referencing the recently published book, Climbing Mt. Laurel: The Struggle for Affordable Housing and Social Mobility in an American Suburb by Douglas Massey (Princeton-Sociology) with others, Kirp counters the claims of those who saw the judicial response to exclusionary zoning as grafting urban cancer onto healthy suburban tissue.  The cancer metaphor comes from Mt. Laurel's then-mayor Jose Alvarez and seems absurd in light of the overwhelmingly positive effects documented four decades later.

My good friend and NDLS clinic colleague, Bob Jones, sent the link to me because I am working on a paper looking at Catholic Social Teaching's response to overconcentration of poverty.  I think this anectdotal account from the birthplace of judicially mandated inclusionary zoning should complement the 2011 study American Murder Mystery Revisited by Ingrid Gould Ellen, Michael Lens and Katherine O'Regan undercutting some loose talk about spreading violence and disorder through the Housing Choice Voucher program that followed the controversial eponymous 2008 Atlantic Monthly article.

 

Jim K.

October 21, 2013 in Affordable Housing, Housing, Inclusionary Zoning, Race, Suburbs, Zoning | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 4, 2013

Singer's Keynote on Property, Poverty and Immigration in a Free and Democratic Society

I hope many of you attended the AALS Workshop on Property, Poverty and Immigration this past summer in San Diego.  For those of us who couldn't (or did, but just weren't taking copious notes), the keynote speaker, Joseph William Singer (Harvard), has posted his talk entitled Titles of Nobility: Property, Poverty, and Immigration in a Free and Democratic Society.  Here's the abstract:

Both property and immigration are premised on exclusion yet both human rights and democratic norms require us to treat every human being with equal concern and respect. While neither sovereigns nor owners can have completely open borders, they have obligations to respect the human dignity of "the stranger." Biblical sources link the stranger with the poor and develop a version of the Golden Rule that requires both to be accorded "love." The related secular principle of equal concern and respect means that poverty is, in principle, incompatible with the norms of a free and democratic society. That principle is embodied in the constitutional prohibition on titles of nobility which mandates treating every human being as of equal value and importance. While the nobility clauses do not mandate particular policies, they do outlaw treatment that places some as occupying a lower status than others.This has consequences for both immigration and property law, as well as laws and policies designed to alleviate and prevent poverty.

Jim K.

September 4, 2013 in Affordable Housing, Constitutional Law, Property, Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, August 23, 2013

Iglesias on the Legality of Local Inclusionary Zoning Ordinances

Tim Iglesias (USF) has recently published Framing Inclusionary Zoning: Exploring the Legality of Local Inclusionary Zoning and its Potential to Meet Affordable Housing Needs, 36 No. 4 Zoning and Planning Law Report 1 (2013).  The Report is a West publication, so even if you cannot find the piece on SSRN or bepress, it is available here at Westlaw (login required). Apart from clicking on the link, you can copy the citation above into the Find By Citation box on the Westlaw sidebar.

Tim's briefly examines how opponents and supporters have attempted to frame various kinds of inclusionary zoning ordinances as land use regulation, exactions, rent control or something distinct from all three.  His review of leading cases on the validity of local inclusionary zoning measures looks at each of the three frames in turn, with the latter two involving state preemption as well as constitutional issues. 

I don't plan on returning to the Land Use Planning course for a few semesters, but I recommend this piece as supplemental reading for students trying to get their heads around the legal vulnerability of inclusionary zoning ordinances, particularly in the wake of Koontz.

Jim K.

August 23, 2013 in Affordable Housing, Constitutional Law, Inclusionary Zoning, Local Government, Scholarship, Smart Growth | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 23, 2013

HCN Article About Jackson, Wyoming Highlights Concerns with Conservation Easements

I am not sure how many of you are readers of High Country News, but it is of course the go to source for news about the West (especially if you are interested in land use, conservation, or rural peoples). I get it in hard copy because even though you can get it electronically, it is hard to beat seeing their large format magazine with awesome images. An article by Ray Ring from the June 10th issue caught my eye and I thought might be interesting to some of you.

In Paradise at a Price, Ring examines how conservation goals collide with affordable housing. He uses Jackson, Wyoming to tell his tale but it is a story we have seen in many towns. Jackson has some special challenges because of its high percentage of publicly owned land, but we see similar patterns in several resort communities. The story is a simple one. Beautiful areas attract people. Beautiful areas with recreation opportunities in particular end up with communties dominated by fancy vacation homes and amenities for tourists. Real estate prices are high. But all those tourists and Californians with second homes still need goods and services. The problem is that employees of the stores, the ski resorts, the hotels, and the grocery stores can't afford to live in Jackson. This means we need afforable housing projects. Unfortunately, in areas like Jackson the affordable housing projects compete not only with other private residential development but also with conservation efforts.

This article was not about conservation easements, but its description of conservation easements in Jackson illuminated two somewhat conflicting concerns with conservation easements. I'll give you the facts and then explain my concerns.

  • More than 97% of Teton County's land is public (owned by federal, state, or local government)
  • This leaves only 78,000 acres of private land for development
  • Much of this private land is covered by vacation homes for the wealthy
  • 1964 local planning laws established overlay districts, protecting wildlife habitat and scenic views. This restricts development on 48,000 acres (leaving only 30,000 unrestricted acres).
  • Conservation easements prevent development on 22,000 acres. Most (but not all) of the conservation easements are within the overlay districts
  • 20,000 acres are too steep to build on (I think this may leave 10,000 unrestricted developable acres but I am not exactly sure what category these 20,000 acres fall into)
  • Restrictions throughout the county limit things like building height (usually nothing over 2 stores) and include specific rules limiting construction near things like spawning areas and swan nests

Okay, so now my concerns. Note, there are many concerns here about affordable housing which are obviously just from looking at the facts above and are well explained in Ring's article, so let me just look to the conservation easement issue.

  1. Conservation easements are part of the problem on the affordable housing front. The restrictions on development puts up obstacles for people trying to build needed housing. Depending on your goals, you may be okay with that outcome but most of these conservation easements are ways for wealthy people to protect their views and open space (often with receiving attractive tax breaks). I know protecting these beautiful areas is important, but when we let private individuals make all the decisions about what to protect ... it makes me nervous.
  2. Conservation easements may not get you a lot of bang for your buck. The article states that most of the conservation easements in the community are in areas already protected by overlay districts. This makes me really curious about what type of compensation or development permit the landowners got in exchange for the conservation easements. What are they worth if land use was restricted without them. Admittedly, the conservation easements may have additional restrictions and will remain even if the County changes the contours and rules for the overlay districts. I don't have information about these individual conservation easements, and I am sure the Jackson Hole Land Trust would be pissed at perturbed by my claims but I have seen several examples from conservation easements I have dealt with directly where the landowner receives a large benefit for agreeing not to do something she never intended to do.

Just some food for thought

Jessie Owley

 

July 23, 2013 in Affordable Housing, Conservation Easements, Development, Environmental Justice, Housing | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 18, 2013

Godsil on a Fair Housing Response to Gentrification

Rachel Godsil (Seton Hall) has posted The Gentrification Trigger: Autonomy, Mobility, and Affirmatively Furthering Fair Housing, 78 Brook. L. Rev. 319 (2013).  It's wonderful to have Rachel's civil rights scholarship back in the (urban) neighborhood again.  Here's the abstract:

Gentrification connotes a process where often white “outsiders” move into areas in which once attractive properties have deteriorated due to disinvestment. Gentrification creates seemingly positive outcomes, including increases in property values, equity, and a city’s tax base, as well as greater residential racial and economic integration; yet it is typically accompanied by significant opposition. In-place residents fear that they will either be displaced or even if they remain the newcomers will change the culture and practices of the neighborhood. Gentrification then is understood to cause a loss of community and autonomy – losses that have been well recognized in the eminent domain literature.

This article focuses on gentrifying neighborhoods that were abandoned during the government sponsored suburban migration of the 1950s through the 1980s. Racially discriminatory practices of government and private actors often denied Black and Latino families the option either to join the migration to the suburbs or to maintain their homes in city neighborhoods. This article argues that in-place residents of now gentrifying neighborhoods should have access to rental vouchers or low-interest loans to restore the autonomy they were previously denied, providing them with viable, self-determining options to remain or exit the neighborhood. Such a remedy – which is consistent with the Fair Housing Act’s obligation to HUD and its grantees to “affirmatively further fair housing” – has the potential to alter the political terrain of gentrification.

Jim K.

June 18, 2013 in Affordable Housing, Race, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, June 10, 2013

Brinig & Garnett on Accessory Dwelling Unit Reforms and Local Parochialism

Margaret F. Brinig (Notre Dame) and Nicole Stelle Garnett (Notre Dame) have posted A Room of One's Own? Accessory Dwelling Unit Reforms and Local Parochialism, forthcoming in The Urban Lawyer (2013).  The abstract:

Over the past decade, a number of state and local governments have amended land use regulations to permit the accessory dwelling units (“ADUs”) on single-family lots. Measured by raw numbers of reforms, the campaign to secure legal reforms permitting ADUs appears to be a tremendous success. The question remains, however, whether these reforms overcome the well-documented land-use parochialism that has, for decades, represented a primary obstacle to increasing the supply of affordable housing. In order to understand more about their actual effects, this Article examines ADU reforms in a context which ought to predict a minimal level of local parochialism. In 2002, California enacted state-wide legislation mandating that local governments either amend their zoning laws to permit ADUs in single-family zones or accept the imposition of a state-dictated regulatory regime. We carefully examined the zoning law of all California cities with populations over 50,000 people (150 total cities) to determine how local governments actually implemented ADU reforms “on the ground” after the state legislation was enacted. Our analysis suggests that the seeming success story masks hidden local regulatory barriers. Local governments have responded to local political pressures by delaying the enactment of ADU legislation (and, in a few cases, simply refusing to do so despite the state mandate), imposing burdensome procedural requirements that are contrary to the spirit, if not the letter, of the state-law requirement that ADUs be permitted “as of right,” requiring multiple off-street parking spaces, and imposing substantive and procedural design requirements. Taken together, these details likely dramatically suppress the value of ADUs as a means of increasing affordable housing.

This looks really interesting.  Here in Houston we have a significant number of ADUs--so-called "granny flats" because--stop me if you've heard this before--Houston has no zoning to make it illegal, as this article shows it has been in single-family residentail neighborhoods around the country.  These ADUs provide an important supply of affordable "inside-the-Loop" (i.e. central city area) housing. 

Matt Festa

June 10, 2013 in Affordable Housing, California, History, Housing, Houston, Local Government, Planning, Politics, Property, Property Rights, Scholarship, State Government, Subdivision Regulations, Zoning | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 10, 2013

Davidson on New Formalism in the Aftermath of the Housing Crisis

Nestor Davidson (Fordham) has posted New Formalism in the Aftermath of the Housing Crisis, Boston University Law Review, Vol. 93, No. 389, 2013.  The abstract:

The housing crisis has left in its wake an ongoing legal crisis. After housing markets began to collapse across the country in 2007, foreclosures and housing-related bankruptcies surged significantly and have barely begun to abate more than six years later. As the legal system has confronted this aftermath, courts have increasingly accepted claims by borrowers that lenders and other entities involved in securitizing mortgages failed to follow requirements related to perfecting and transferring their security interests. These cases – which focus variously on issues such as standing, real party in interest, chains of assignment, the negotiability of mortgage notes, and the like – signal renewed formality in nearly every aspect of the resolution of mortgage distress. This new formalism in the aftermath of the housing crisis represents something of an ironic turn in the jurisprudence. From the earliest history of the mortgage, lenders have had a tendency to invoke the clear, sharp edges of law, while borrowers in distress have often resorted to equity for forbearance. The post-crisis caselaw thus upends the historical valence of lender-side formalism and borrower-side flexibility. 

Building on this insight, this Article makes a normative and a theoretical claim. Normatively, while scholars have largely embraced the new formalism for the accountability it augurs, this consensus ignores the trend’s potential negative consequences. Lenders have greater resources than consumers to manage the technical aspects of mortgage distress litigation over the long run, and focusing on formal requirements may distract from responding to deeper substantive and structural questions that still remain largely unaddressed more than a half decade into the crisis. Equally telling, from a theoretical perspective, the new formalism sheds light on the perennial tension between law’s supposed certainty and equity’s flexibility. The emerging jurisprudence underscores the contingency of property and thus reinforces – again, ironically – pluralist conceptions of property even in the crucible of hard-edged formalism.

Matt Festa

April 10, 2013 in Affordable Housing, Housing, Mortgages, Politics, Property, Real Estate Transactions, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, March 25, 2013

Poirier's Comparative Analysis of the Right to Dwell

Marc Poirier (Seton Hall) has posted Brazilian Regularization of Title in Light of Moradia, Compared to the United States’ Understandings of Homeownership and Homelessness, __ U. Miami Inter-Am. L. Rev.  ___ (forthcoming). Here's the abstract:

This Essay considers the cultural resonances of regularization of title (regularização) for homeownership in the favelas of Rio de Janeiro. It compares those resonances to the cultural meaning of homeownership in the United States. Brazil’s approach is informed by an understanding of moradia, a right to dwell someplace, that is a far cry from its typical English translation as a right to housing. Brazil also draws on constitutional provisions and a long Latin American tradition concerning the social function of property, as well as a general theoretical understanding of the right to the city and of cidadania, a certain kind of citizenship. All of these frames construct homeownership as a gateway to interconnection and full participation in the life of the city. This is distinctly different from the individualistic cast of the prevailing understanding of homeownership in the United States, as personal success and the achievement of wealth, status, and a private castle.

The Essay also considers the standard United States construction of homelessness, which again tends to frame the issue in terms of individual responsibility or blame or of the role of institutional structures as they affect individuals, and typically fails to recognize the effect of having no property on relationships and interconnectedness and ultimately citizenship. The Essay advances five reason for the differences between Brazilian and United States understandings of homeownership. These include very different histories concerning the distribution of public lands; the absence in United States property jurisprudence of anything like the notion of a social function of property; the physical invisibility of informal communities in the United States; United States jurisprudence’s rejection of vague, aspirational human rights claims as law; and an insistence in United States jurisprudence on legal monism and an abstract, universalizing account of property ownership that valorizes one-size-fits-all law rather than case-by-case accounts of how land and dwellings are managed by various local communities.

Finally, the Essay observes a recent groundswell of United States scholarship that debunks “A own Blackacre” as an adequate account of the ownership of land and homes, insisting on a more race- and class-informed account as to both the history of homeownership and possible solutions for providing secure dwelling for the poor. The Essay recommends a convergence of studies of informal communities worldwide with a more nuanced, race- and class-informed understanding of homeownership.

Jim K.

March 25, 2013 in Affordable Housing, Comparative Land Use, Housing, Property, Property Rights, Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, March 7, 2013

Furman Center report on Housing & Superstorm Sandy

The NYU Furman Center has issued a timely report called Sandy's Effects on Housing in New York City.  From the announcement by Vicki Been and Ingrid Gould Ellen:

We are pleased to share with you our latest fact brief: Sandy's Effects on Housing in New York City (PDF) Our report is the first independent, comprehensive analysis of the Superstorm's impact on housing in New York City.

 

The study revealed some surprising insights into the impacts of the Superstorm Sandy. It found that low-income renters were disproportionately impacted by the storm's surge; over half of the victims were renters, 61 percent of whom make less than $60,000 per year, instead of middle-class homeowners. It also exposed the age of the housing stock affected by the surge; 82% of the properties hit by Sandy were built before 1980, before the latest flood maps and building standards were established.

 

The report also summarizes newly available information about the characteristics of properties in the area in New York City flooded by Sandy's storm surge, as well as demographic characteristics of households that have registered to receive assistance from FEMA. The study was released in partnership with Enterprise Community Partners, who provided a similar analysis on Long Island and New Jersey.

 

The press release (PDF) and report (PDF) are now available online.

 

Lots of interesting maps and data in this report, which should be of interest to anyone researching law, land, housing, and disaster planning

 

Matt Festa

March 7, 2013 in Affordable Housing, Beaches, Coastal Regulation, Community Economic Development, Environmentalism, Federal Government, Housing, Local Government, New York, Property, Redevelopment, Scholarship, Water | Permalink | Comments (0) | TrackBack (0)

Monday, February 25, 2013

Bipartisan Policy Center Housing Commission Report

I am just finished streaming the press conference for the release of the Bipartisan Policy Center's Housing Commision Report.  Led by its Co-Chairs, Sens. George Mitchell, Mel Martinez and Kit Bond, as well as former HUD Secretary Henry Cisneros, the Commission is offering a far-reaching set of recommendations regarding the housing finance system, public subsidy for affordable housing development and preservation (particularly in rural areas) and promotion of housing counseling as a vital resource.  Even if the Executive Summary is too long for you, I would encourage you to check out a two-page article available on Politico authored by the four co-chairs.   

Jim K.

February 25, 2013 in Affordable Housing, Federal Government, HUD, Mortgage Crisis, Mortgages | Permalink | Comments (0) | TrackBack (0)

Thursday, February 21, 2013

ABA Forum of Aff. Housing and Comm. Dev. Law Student Writing Competition-2013

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Every year, the ABA Forum of Affordable Housing and Community Development Law sponsors a student writing competition.  The winner gets a $1000, plus an expenses-paid trip trip to DC in May for our Annual Meeting chock full of potential private and public-sector legal employers as well as a chance to publish the submitted piece in our Journal. 

As Editor-in-Chief of the Journal of Affordable Housing and Community Development Law, I wanted to make sure you and your students already knew about the Student Writing Competition.  Particularly if you know of a relevant student-written scholarly work (a note, a seminar paper or the like) that deserves consideration, encourage the student to submit the work to me at the email address below on or before Friday, March 8th

 

Jim K.

J.Kelly@nd.edu

February 21, 2013 in Affordable Housing, Conferences, Scholarship | 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)

Monday, August 6, 2012

New Jersey Seeks to Take Back Affordable Housing Funds

An article in this Sunday's Philadelphia Inquirer discusses New Jersey Governor Chris Christie's demand that towns in New Jersey turn over to the state money that has been in their affordable-housing trust funds for more than four years, a total of $141.2 million.  A state law (N.J.S.A. 52:27D-329.2) requires that this money, which towns receive from fees paid by developers, be committed within four years. The state recently sent letters to 372 town outlining how much each one is being asked to transfer to the state's Affordable Housing Trust Fund.  (NJ's Fair Share Housing Center posted a copy of one of these letters.)

Christie's effort, as the Inquirer article notes, is just the latest episode in New Jersey's battles over zoning and affordable housing regulation, battles made famous by the Mount Laurel decision.  Christie previously sought to eliminate the state's Council on Affordable Housing (COAH), which enforces the judicial requirements regarding how much housing must be built in each town.  However, NJ's Supreme Court rejected his attempt.  (For an interesting perspective on Christie's "War Against the Mount Laurel Doctrine," see this piece by Rick Hills from a while back on PrawfsBlawg).

Now, critics claim Christie is seeking the money to fill holes in the state budget, while the Governor's camp responds that the money will be used for housing programs at the state level.  Local officials assert their failure to spend the money is largely due to the state's confusing guidelines, particularly regarding what it means to have, as the law requires, "committed" funds to fulfill their affordable housing obligations.

When Christie first announced his plans to seize the funds, the Fair Share Housing Center filed a motion seeking to enjoin the state's actions, arguing that COAH failed to promulgate standards outlining what municipalities must do to "commit" the funds.  The Appellate Division of the NJ Superior Court refused to issue an injunction, but did require that municipalities receive written notice of the amount they owed and how it was calculated.  This notice came in the form of the subsequent letters stating the amount due and demanding that towns transfer the funds - or dispute the amount calculated - by August 13, 2012.  The Fair Share Housing Center, joined by the NJ State League of Municipalities, now contend that the letter sent to municipalities fails to comply with the requirement that municipalities be informed regarding how the amount was calculated.  

To my mind, it seems the challenge to the state's actions will be an uphill battle for the municipalities. The statute the state is relying upon in seizing the funds states:

"The council shall establish a time by which all development fees collected within a calendar year shall be expended; provided, however, that all fees shall be committed for expenditure within four years from the date of collection. A municipality that fails to commit to expend the balance required in the development fee trust fund by the time set forth in this section shall be required by the council to transfer the remaining unspent balance at the end of the four-year period to the “New Jersey Affordable Housing Trust Fund" . . . to be used in the housing region of the transferring municipality for the authorized purposes of that fund."

In its Order denying the request for an injunction, the court declared that "[t]he ambiguity, if any, concerning the term commit has not precluded municipalities from seeking COAH's approval of particular housing projects on a case-by-case basis."  The court's chief concern, as noted, was that the municipalities receive notice and an opportunity to contest the transfer.  It is likely this battle will continue to drag out, largely focused on the process through which the state is seeking to take back the funds, but it seems difficult to envision a strong legal basis for the municipalities ultimately stopping the seizure of the funds.  It may be more likely that political pressure, from local municipalities and residents who will still need to fulfill their affordable housing obligations, but will be forced to find new sources of funding, may stop the state's efforts.

John Infranca  

August 6, 2012 in Affordable Housing, Local Government, State Government, Zoning | Permalink | Comments (0) | TrackBack (0)

Thursday, August 2, 2012

Is Smaller Always Better?

As I mentioned in my first post, I want to use some of my time as a guest-blogger here to introduce a few projects I am current working on through the Furman Center.  Today I want to talk about a fairly new project examining regulatory barriers to the construction of smaller housing units.

There has been significant discussion recently of the benefits of allowing the construction of very small apartments.  In Boston, Mayor Menino has advocated the development of micro-units, smaller than those permitted by current regulations, targeted at young professionals.  As reported on the PropertyProf Blog, San Francisco is exploring ways to reduce existing unit size minimums from 290 square feet to 220 square feet.  In New York, Mayor Bloomberg announced a request for proposals to build an apartment building with units measuring between 275 and 300 square feet (currently units must be at least 400 square feet).  The associated request for proposals for the project has already been downloaded over 1,000 times by interested parties throughout the world. 

Parallel with this discussion of micro-units, a number of municipalities, both large and small, are rethinking regulations governing the construction of accessory dwelling units (ADUs) in single family neighborhoods.  Some communities, such as Santa Cruz, California, have gone further and actively encourage the construction of accessory dwelling units by providing technical assistance to prospective landlords, pre-approved designs, low-interest loan programs, and other resources.  These units, which may be located over a garage or in a basement, offer opportunities for encouraging denser development and urban infill.  They also are seen by some as a way to help seniors maintain their homes or “age in place.”  

Efforts to encourage construction of smaller housing are motivated in part by the recognition that changing demographics and household composition have created a mismatch between demand and existing housing supply.  A recent book, Going Solo:  The Extraordinary Rise and Surprising Appeal of Living Alone, explored the increasing prevalence of single urban dwellers.  New York City’s Citizens Housing Planning Council raised attention to this issue through a recent project called “Making Room,” which enlisted a set of architects to propose different designs for innovative housing types that would meet these changing needs, but would demand regulatory changes in order to be built.  The project recognized that many individuals, who cannot find housing that meets their needs, currently live in unregulated apartments within an underground housing market.  These illegal conversions and other sources of affordable housing can create dangerous living conditions for occupants. 

Smaller units – both in the form of micro-units in a multifamily development and accessory dwelling units in a single-family residential area – hold promise for serving a variety of needs:  providing affordable housing, fostering greater density and more sustainable development patterns, increasing demand for mass transit in an area, and, as championed in Boston and New York, making expensive cities more attractive to young professionals who spend little time at home. 

One supporter of the micro-unit proposal in New York was quoted in the Wall Street Journal as saying that “the city should ‘not be charged with regulating people’s preferences.’”  This is, of course, the deeper question raised by changing the regulatory landscape to permit smaller housing units.  Are these changes simply a matter of removing a (perhaps, to some, anachronistic or paternalistic) constraint on individual preferences?  Or do the laws restricting this housing continue to serve an essential public purpose related to the health, safety, and welfare of residents?  Commentators have noted that the zoning regulations that will be waived to allow the micro-unit prototypes in New York City were instituted in the early 20th Century to provide more humane living conditions, particularly through greater access to light and air.  But modern construction methods and technology may provide news means to address these same health and safety issues, without returning to dreary and dangerous tenement living.

The discussion about changing regulations to allow smaller housing units is really just one piece of a broader question:  do changes in living patterns, family composition, and technology demand a radical rethinking of the legal framework that governs urban life?  Should the presence of vast amounts of currently illegal housing be seen as an indication that existing regulation is too strict and prevents the market from meeting demand?  Are some regulations championed as serving goals related to health, safety and welfare, really more about the aesthetic or other preferences of existing residents?

To address the narrower regulatory questions raised by compact housing units, the Furman Center has begun a project, in partnership with CHPC, looking at a number of cities throughout the United States and examining regulatory barriers to smaller housing units, as well as efforts currently underway to change regulations or build these forms of housing.  We are planning to study New York; Washington, DC; Austin; Denver; and Seattle, a mix of cities with varying degrees of interest and progress related to these issues.  We will be examining a broad range of existing regulations, including zoning, building codes, accessibility laws, and occupancy regulations, that might prohibit or stymie the construction of these types of housing.  Our goal is to outline the regulatory barriers that policy makers would need to address if they wished to allow more compact housing and to frame the questions that would need to be considered in conducting a more sophisticated cost-benefit analysis of the potential tradeoffs of changing these regulations, some of which may still serve a vital role in making cities more safe and livable. 

John Infranca

August 2, 2012 in Affordable Housing, Development, Housing, New York, Zoning | Permalink | Comments (0) | TrackBack (0)

Thursday, July 26, 2012

The London Olympics & Land Use--The Atlantic Cities' Coverage

As Jessie noted in her post on the Olympic Villages, there are many land use issues involved when a city hosts the Olympic Games.  For a fantastic overview of these issues, with numerous in-depth stories, there's no better place to start than The Atlantic Cities' "Special Report" Olympics 2012: London Gets Ready for the Summer Games.  Feargus O'Sullivan has been reporting from London for months, and in the past couple of weeks many of their other writers have contributed excellent stories on a slew of land-use-related Olympic issues.  Here are just a few examples of the wide range of topics they've addressed:

Whether hosting the Olypmic "boondoggle" is good or bad for your city; homelessness and tourism; security issues; public attitudes--politicians telling "whingers" to "put a sock in it"; transportation concerns; architecture; planning for post-Games facilities use; affordable housing; the always-controversial of building new stadiums (stadia?); and many, many other important issues that come up when a big city offers to play host to the world. 

The British media, of course, have lots of excellent coverage.  But for a more specific focus on land use, local government, and urban planning issues, I highly recommend starting with The Atlantic Cities' Olympics 2012 page.  They're posting several new stories each day. 

In the meantime, I hope you all enjoy watching that important land use event known as the Olympic Games!

Matt Festa

July 26, 2012 in Affordable Housing, Architecture, Comparative Land Use, History, Housing, Local Government, Planning, Politics, Redevelopment, Transportation, Urbanism | Permalink | Comments (0) | TrackBack (0)

Monday, July 23, 2012

Disputes over Westchester Housing Settlement Continue

    Westchester County's protracted battle with HUD over the implementation of a 2009 lawsuit continues.  By way of background, the case, United States ex rel Anti-Discrimination Center of Metro New York, Inc. v. Westchester County, New York, was brought as a qui tam action under the False Claims Act, alleging that the county, through certifications made to HUD to receive Community Development Block Grant funds, falsely certified that it fulfilled its obligation to "affirmatively further fair housing."  The Anti-Discrimination Center (ADC), which brought the case, claimed that Westchester failed to consider race-based impediments to housing choice and failed to identify and take steps to overcome these impediments, as required by law.  The DOJ intervened and negotiated a settlement on behalf of HUD.  The settlement requires Westchester to, among other things, spend $51.6 million to develop, primarily in municipalities with overwhelmingly white populations, at least 750 affordable housing units that affirmatively further fair housing.  The County also must affirmatively market the housing in surrounding areas with significant non-white populations.  The court appointed a monitor to oversee and facilitate implementation of the settlement. (In the interest of disclosure, through my work at the Furman Center, I provided technical assistance to the Monitor's team earlier in the process). 

    The County argues that it is complying with the settlement and is ahead of schedule in constructing the units.  However, the ADC has asserted, that the locations of these units so far, which are often isolated from the surrounding community, fail to further the settlement's underlying goal of desegregating housing patterns.  The County has responded that the cost and availability of land restrict the options available.  The County Executive, who was elected after the settlement was reached (and has repeatedly said he would not have signed it), contends that HUD is overreaching, requiring the County to take actions beyond the terms of the settlement.  In May, the District Court ruled against the County, finding that it failed to comply with the settlement's requirements that it promote legislation prohibiting source-of-income discrimination.

        The most recent contentions focus on zoning issues and the County's compliance with a requirement that it conduct an "Analysis of Impediments" (AI), which examines barriers to fair housing choice.  HUD has withheld funding from the County, declaring the AIs it has filed fail to properly consider the impact of race on housing choice and whether local zoning regulation is exclusionary.  The County's AI concluded that no exclusionary housing existed in its municipalities.  Rather than revise that submission in response to the Monitor's list of deficiencies, the County refiled the same AI, accompanied by a legal analysis by the Land Use Law Center at Pace Law School, supporting its approach. 

The County argues that its review of local zoning followed the analysis of exclusionary zoning put forth by the NY Court of Appeals in Berenson v. New Castle, which requires that local zoning ordinances consider regional housing needs in developing a "properly balanced and well-ordered plan."  It concludes that all of the local ordinances consider regional needs and allow the development of multi-family housing and a range of uses and consequently are not exclusionary.  Therefore the County need not take any further steps to comply with the settlement's requirement that it use "all available means," including taking legal action, to address a municipality's action or inaction in promoting the settlement. 

HUD's response, and the next steps in this dispute, will raise interesting questions regarding the relationship between a County and its municipalities, the definition of exclusionary zoning and scope of judicial review of local zoning, and the courses of action available to HUD in challenging local zoning.  

John Infranca

 

July 23, 2012 in Affordable Housing, Federal Government, Housing, HUD, Local Government, Zoning | Permalink | Comments (0) | TrackBack (0)

Gade on Olympic Villages

Check out this interesting article and fascinating slide show on Olympic Villages over the years. As Matt always tells us, everything can be a land use issue and the Olympics are no exception. Many buildings and facilities are erected for each Olympics, and one necessary element is a place to house all the visiting athletes. This slide show of what the housing as looked like over the year (and in some cases what those properties look like still today).

Jessie Owley

July 23, 2012 in Affordable Housing, Community Design, Development, Housing, Planning, Scholarship | Permalink | Comments (0) | TrackBack (0)