Tuesday, December 9, 2014
Today I stumbled across a troubling article about how a type of nuisance ordinance I've never heard of - the so called "crime free housing" ordinance - creates some terrible unintended consequences for domestic violence victims. From the article, on the Aljazeera America website:
When Lakisha Briggs’ ex-boyfriend forced his way into her home in June 2012, she faced an impossible dilemma. Although the man had physically assaulted her on several occasions, Briggs knew that if she called the police for help, she and her 3-year-old daughter would likely be thrown out of their subsidized apartment.
Briggs, a 34-year-old mother residing in Norristown, Pennsylvania, found herself in this situation as the result of a city ordinance aimed at reducing “disorderly behavior” in rental housing. The ordinance stipulated that tenants who made three 911 calls in four months could be evicted. Briggs had already received three strikes as the result of emergency calls made during previous attacks by her ex, and the month before the incident, city officials had notified her that further calls would result in her removal from her apartment.
The article details how Briggs suffered a further brutal attack from her ex without calling the police, due to her fear of being evicted. Because a neighbor called 911, ultimately the city of Norristown began eviction proceedings against her. Only the intervention of the ACLU prevented her from losing her home.
The ACLU and the Shriver Center now have the I Am Not a Nuisance campaign to educate local governments about the dangers of these ordinances. And, as a result of Briggs' case, these ordinances are now illegal in Pennsylvania.
Jamie Baker Roskie
Thursday, October 23, 2014
As someone who clears title to vacant inner-city properties--first in Baltimore, now in South Bend--I have been asked more than once "Can Homeless People Move into Baltimore's Abandoned Houses?" An Atlantic article with that exact title tells the story of an attempt by a coalition of labor, community development and homelessness activists to transform vacant houses in the McElderry Park neighborhood of Baltimore into permanently affordable homes for the homeless. Regular readers of this blog may already be familiar with the Community Land Trust model and its use of resale restrictions to make sure that subsidized homes are affordable not just to the first homeowners but to subsequent homebuyers as well.
Housing Our Neighbors, the Baltimore group featured in the Atlantic piece, is ambitiously bringing together a permanent affordability model usually connected to homeownership with an upstart approach to ending homelessness called Housing First. The National Alliance to End Homelessness makes a straightforward argument: Life on the streets kills homeless people. The homeless need housing now. Rather than funnel the vast number of people on the streets through the impossibly tiny number of transitional units with supportive social services attached to them, Housing First advocates making housing immediately available to homeless persons, adding services as needed, and not making engagement with those services a condition of residents' right to stay.
The article offers a great deal to think about. Hat tip to Jaime Lee, my successor as Director of the University of Baltimore School of Law Community Development Clinic!
Wednesday, August 20, 2014
Posting from New Orleans (No. 3) -- Forging Successful Non-Profit Partnerships Following Crisis and Disaster: O.C. Haley Boulevard's Story
This blog post follows-up a pair of August 5th and August 12th New Orleans posts. Although I’m home in Atlanta getting ready to begin the new school year, I’m continuing an observance of Katrina’s 9th anniversary by ‘walking’ O.C. Haley Boulevard and looking at one of the city’s emerging post-storm neighborhood revitalization stories.
At the outset of this post, it is important to note that there are many more neighborhood stories that deserved to be told, ranging from stretches of St. Claude, Carrollton, and Claiborne Avenues to Freret and lower Magazine Streets. There are also many neighborhood corridors still struggling to come back all over the city, but particularly neighborhoods lying generally east and a little north of the French Quarter, including the vast area of New Orleans East as well as the Upper Ninth Ward and the Lower Ninth Ward.
As the son of an architect, I’m always ready to begin discussion of any neighborhood transformation by flashing slides of the ‘bricks and mortar’ improvements. Those are also the improvements that we as lawyers are most directly involved in supporting: the land acquisitions, the tax credit financings, the bridge loans, the condo documents, the parking easements. But to get any neighborhood to the point where it can provide the social and economic buttressing to support significant private market transactions, there’s often a foundation of community activism and advocacy. O.C. Haley Boulevard is no exception.
Very rarely is any one individual or organization the sole ‘mover’ behind a neighborhood’s re-emergence. Long before the levees and flood walls breached, non-profit, business owner, and neighborhood advocacy groups were working to lay the groundwork for O.C. Haley Boulevard’s resurgence. Carol Bebelle, co-founder of the Ashé Cultural Arts Center, moved the Center onto the Boulevard in 1998 in order to sustain and nurture the stories and traditions of New Orleans’ African American community. The Cultural Arts Center’s historic building, an adaptive use of a former department store, became a foothold for the Boulevard’s resurgence, supporting non-profit office space, exhibit and meeting space, and 29 apartments.
About the same time, O.C. Haley Boulevard Merchants and Business Association gathered local businesses to spearhead creation of a strategic plan for the Boulevard’s revitalization.
A couple of years later, in 2000, Café Reconcile opened across the street as an adaptive use of another large historic commercial building, housing a full-service restaurant dedicated to providing culinary training and life skills development to young men and women from the surrounding neighborhoods.
Along the way, the Boulevard attracted key regional community development partners, and led them to call the Boulevard ‘home.’ These partners included Hope Federal Credit Union (http://www.hopecu.org/) and Good Work Network (http://www.goodworknetwork.org/), both of which concentrate their resources on serving low and moderate income families and developing opportunities for minority and women-owned businesses.
In short, the Boulevard’s momentum had already been triggered when Katrina’s storm surge filled-up 80 percent of city, leaving the Boulevard and only a handful of other major corridors navigable by car as opposed to boat. (A relatively current map of the businesses that have grown-up on the Boulevard in the last fifteen years is found on the Merchants and Business Association’s website, http://ochaleyblvd.org/?page_id=5).
Lawyers – often community development lawyers – figure critically in these first stages of a neighborhood’s redevelopment, well before building projects begin ‘going vertical.’ Lawyers are counseling neighborhood groups and businesses on drafting their articles of incorporation and their bylaws or preparing their Form 1029 to seek IRS 501(c)(3) status. They are helping review applications seeking funding from foundations for planning and predevelopment award monies. They may be advising their clients to seek funds for a market study to help give current and future businesses a sense of where and how they might invest their capital and other resources. Or, they may be advocating at city hall for stricter enforcement of health and safety code violations affecting vacant or abandoned properties. Law students interested in pursuing urban and community development work should gain an appreciation in law school of these critical supporting and counseling roles that lawyers play for community groups.
Earlier this month, I visited with Kathy Laborde, President and CEO of the non-profit Gulf Coast Housing Partnership (GCHP). Laborde, who has worked on the Boulevard for almost two decades, described the factors that convinced her and the neighborhood’s stakeholders that they could turn around the Boulevard’s fortunes. GCHP has been a main driver of redevelopment on and around the corridor since Katrina. In sharing her thoughts and recollections concerning the Boulevard’s rebirth, Laborde described not only the last nine years’ key redevelopment projects, but at the same time she highlighted additional pieces of the urban redevelopment ‘puzzle’ that successful urban and community development lawyers need to appreciate to serve their clients well.
(Photo: Gulf Coast Housing Partnership offices (gray building) at 1610 O.C. Haley Blvd.)
Location is an essential consideration for any urban redevelopment project. Against the essential backdrop of an engaged group of neighborhood stakeholders, Laborde outlined the following factors as critical:
- The O.C. Haley corridor’s historic status as the one of the chief commercial centers for the city’s African American community;
- The corridor’s proximity to New Orleans’ Central Business District (separated only by the elevated U.S. 90, The Pontchartrain Expressway);
- The corridor’s proximity to St. Charles Avenue, one of nation’s great historic streets, which runs just 3 blocks to the corridor’s southeast; and
- The presence of historic commercial buildings fronting O.C. Haley Boulevard and stakeholders’ initial investment in rehabilitation of those structures.
These four areas of strength formed a sort of superstructure for the corridor’s redevelopment; however, by themselves, these four factors were not sufficient to draw significant investment to the corridor. The challenge for GCHP and the corridor’s stakeholders was how to connect O.C. Haley’s assets to the city’s surrounding areas of strength and investment while maintaining the corridor’s character. It was at this juncture, nine years ago, Hurricane Katrina unleashed its destructive forces.
Katrina fundamentally altered the way those inside and outside New Orleans viewed the city. To those living in New Orleans, the telltale watermark stains left by the epic flooding clearly distinguished O.C. Haley Boulevard as ‘high ground’ that did not flood. To those outside New Orleans, particularly local and national foundations and philanthropies, O.C. Haley Boulevard bordered one of the city’s toughest neighborhoods with one of its deepest pockets of poverty. Outsiders also appreciated that the Boulevard was surrounded by areas of significant strength, including the city’s wealthier Uptown neighborhoods, the Central Business District, St. Charles Avenue, and the former C.J. Peete (Magnolia) development which was a 1930s-era public housing development then-slated to receive millions of dollars in HUD funds for complete redevelopment into the new mixed-income Harmony Oaks community.
Outside funders immediately saw the Boulevard in a new way. It stood out not only as a neighborhood where the private foundations and philanthropic funders saw they could achieve programmatic goals of creating more equitable, inclusive, and prosperous inner-city neighborhoods, but also these private funders were buoyed by the fact that high levels of investment were occurring all around the Boulevard. Further, just as foundations and philanthropies were looking to leverage their investments, so too was the New Orleans Redevelopment Authority (NORA), which was responsible for making decisions about deployment of a tranche of federal disaster block grant monies for commercial corridor investments. It was a ‘no brainer’ for NORA to join the catalytic investments of the Greater New Orleans Foundation, Kellogg, Rockefeller, Ford, Surdna, and the J.P. Morgan Chase Foundations.
Make no mistake – even with this level of interest, the Boulevard was hardly awash in cash. In a post-Lehman Brothers world, banks had a low temperature for risk, and in post-Katrina New Orleans where the levee and flood control system rebuilding was not yet complete, caution was the rule for commercial lenders. But what the philanthropic and government funding accomplished was to make the development ‘math’ work for deals dependent on tax credits and tax exempt bonds. A non-profit developer could run a development pro forma that now yielded at least a sliver of a development fee. The challenge for those developers and their clients was to complete successful residential and commercial development projects that would help New Orleanians and visitors alike see O.C. Haley Boulevard as a safe place to live and work. As Laborde explains, this was the “show me stage” of the corridor’s redevelopment. Beginning in 2007, this is exactly what the Boulevard’s stakeholders began to do.
Over the last seven years, GCHP and the Boulevard’s other stakeholders have completed a steady stream of housing, restaurant, office and retail projects. The first pivotal project was GCHP’s completion of The Muses, a 263-unit mixed-income apartment community, which opened in 2009. This project brought hundreds of new residents to the Boulevard and helped bridge the three-block real estate market 'canyon' between St. Charles Avenue and the Boulevard.
The tipping point project may have been GCHP’s redevelopment of almost an entire city block between Martin Luther King, Jr., Boulevard, Thalia Street, O.C. Haley, and Rampart Street. GCHP convinced the New Orleans Redevelopment Authority to move its 45 employees from its downtown rented office space to become the anchor tenant of an office building with ground floor commercial space. This office and retail building were funded with New Markets Tax Credits, NORA’s investment of $2 Million in disaster Community Development Block Grant (dCDBG) funds, and private financing. The office building, in turn, helped secure financing for an adjacent 75-unit affordable senior housing development.
Another important project was Café Reconcile’s expansion and rehabilitation of its existing restaurant and training space.
Café Reconcile’s $6.5 Million expansion was funded by private donations, NORA dCDBG funds, and state and federal tax credits.
“Success in community development,” Laborde stresses, “is about getting people to follow.” And they are doing so on the Boulevard. More projects are just weeks and months from completion, including the adaptive use of an historic school as a grocery store and offices, the renovation of two large retail buildings into the Southern Food and Beverage Museum (SoFAB), including The Museum of the American Cocktail, as well as the first home of the New Orleans Jazz Orchestra (NOJO), including its 360-seat performance venue. The projects soon coming on-line include:
The school’s $17 million renovation is financed by New Markets Tax Credits, historic tax credits, $1 Million from the City’s dCDBG-funded Fresh Food Retailer Initiative, $900k from the New Orleans Redevelopment Authority, and $300k from the Foundation for Louisiana.
The NOJO Market and SoFAB redevelopment projects critically anchor two separate O.C. Haley Boulevard blocks where the Boulevard meets Martin Luther King, Jr., Boulevard. NOJO’s development is financed by State of Louisiana historic tax credits, State of Louisiana theater, musical, and theatrical production tax credits, $10 Million from Goldman Sachs’ Urban Investment Fund, an $800k loan from NORA’s commercial revitalization gap loan fund, and a bridge loan from Prudential Insurance Company. NOJO will open in the spring of 2015. A ribbon cutting for the SoFAB redevelopment is set for September 29, 2014.
Next week we will wrap-up our discussion of O.C. Haley and Katrina’s 9th anniversary with a discussion of what urban redevelopment professionals are looking for in the attorneys they hire.
John Travis Marshall, Georgia State University College of Law
August 20, 2014 in Affordable Housing, Architecture, Community Economic Development, Development, Downtown, Federal Government, Financial Crisis, Historic Preservation, Housing, HUD, Redevelopment, Teaching | Permalink | Comments (0)
Wednesday, December 18, 2013
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:
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.
Wednesday, December 11, 2013
Nowadays I usually get inspired to post on this blog by things that appear in my Facebook feed. Due to my long association with UGA Law many of my friends are in Georgia, and Georgia-related news gets lots of play. Recently a few land use savvy friends have posted this article from Slate, "Why Cul-de-Sacs Are Bad for Your Health."
My first thought - "Isn't this something the New Urbanists have been telling us for, oh, 20 years or so?" Andres Duany has certainly been on the topic for a long time - his book Suburban Nation came out in 2001.
But, this article supports the truth many of us have known for awhile - that living in the suburbs and commuting by car has a negative impact on one's health. This is being confirmed by a recent study at Georgia Tech. The article makes for interesting reading, regardless of where you live.
Jamie Baker Roskie
Monday, October 21, 2013
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.
Tuesday, July 23, 2013
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.
- 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.
- 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
Monday, June 10, 2013
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.
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, May 1, 2013
I stumbled across a recent artcle in Applied Geography that I think may be of interest to our readers. I got even more excited when I realized the piece was from colleagues in SUNY Buffalo's Geography Department. Amy Frazier, Sharmistha Bagchi-Sen, and Jason Knight examine the effect of demolition on land-use patterns and changes in human-environment interactions.
While many cities are worried about smart growth and we land use profs spend a lot of time thinking about it, shrinking cities like Buffalo face another challenge: smart decline. The authors (and others) have convinced me that maintaining pro-growth policies in a shrinking city is ill-advised. Instead of thinking we're going to suddenly grow Buffalo, let's think about how we can grow smaller gracefully. Smart decline policies include things like land banks, urban farming, and green infrastructures.
Frazier et al. look at the smart decline policy of demolition. Earlier studies (as well as conventional wisdom) suggest that vacant buildings attract criminal activities (the broken window effect). This study examined a five-year demolition program in Buffalo to assess whether demolitions of vacant buildings actually lead to reduced crime. Their results are fascinating and like all of the best projects point out areas where more research is needed. The big take aways seem to be that there may be some local reductions in crime, but that likely means that the criminal activity is pushed elsewhere. This can have unanticipated impacts on surrounding areas, transportation needs, housing values etc. Such policies need to examine the way that demolitions will shift land uses and impact human-environment interactions. To do so in a successful way will necessarily include regional approaches.
Amy E. Frazier, Sharmistha Bagchi-Sen, & Jason Knight, The Spatio-temporal Impacts of Demolition Land Use Policy and Crime in a Shrinking City 41 Applied Geography 55 (2013)
ABSTRACT: Land use change, in the form of urbanization, is one of the most significant forms of global change, and most cities are experiencing a rapid increase in population and infrastructure growth. However, a subset of cities is experiencing a decline in population, which often manifests in the abandonment of residential structures. These vacant and abandoned structures pose a land use challenge to urban planners, and a key question has been how to manage these properties. Often times land use management of these structures takes the form of demolition, but the elimination of infrastructures and can have unknown and sometimes unintended effects on the human-environment interactions in urban areas. This paper examines the association between demolitions and crime, a human-environment interaction that is fostered by vacant and abandoned properties, through a comparative statistical analysis. A cluster analysis is performed to identify high and low hot spots of demolition and crime activity, specifically assault, drug arrests, and prostitution, over a 5-year period. Results show that there is an association between the area targeted for significant demolition activity and the migration of spatial patterns of certain crimes. The direction of crime movement toward the edges of the city limits and in the direction of the first ring suburbs highlights the importance of regional planning when implementing land use policies for smart decline in shrinking cities.
May 1, 2013 in Community Design, Crime, Density, Downtown, Environmental Justice, Housing, Local Government, New Urbanism, Planning, Scholarship, Smart Growth, Urbanism | Permalink | Comments (1) | TrackBack (0)
Friday, April 19, 2013
Stephanie Stern (Chicago-Kent) has posted The Dark Side of Town: The Social Capital Revolution in Residential Property. Here's the abstract:
Social capital has pervaded property law, with scholars and policymakers advocating laws and property arrangements to promote social capital and relying on social capital to devolve property governance from legal institutions to resident groups. This Article challenges the prevailing view of social capital’s salutary effects with a more skeptical account that examines the dark side of residential social capital — its capacity to effectuate local factions and promote restraints and inegalitarianism that close off property. I introduce a set of claims about social capital’s dark side in residential property and explore these points through the examples of local racial purging, land cartels, and residential self-governance. First, contrary to the assumption of a social capital deficit, residential racial segregation and land cartelization, perhaps the deepest imprints on the American property landscape today, suggest an abundance of local social capital and possible unintended consequences of interventions to build social capital. Second, “governing by social capital,” or relying on social capital for property self-governance, may empower factions, breed conflict, and increase the demand for residential homogeneity as a proxy for cooperation. In light of the mixed evidence for social capital’s benefits and its sizable dark side, the more pressing and productive role for property law is not to promote social capital, but to address its negative spillovers and illiberal effects.
Wednesday, April 10, 2013
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.
Friday, March 29, 2013
Lee Anne Fennell (Chicago) has posted Property in Housing, 12 Academia Sinica Law Journal 31 (2013). The abstract:
The question of how to structure and package the residential experience is a deeply interesting and difficult one. How physically large or small should residential holdings be? How densely should they be clustered? Should spaces for working, recreating, cooking, and bathing be contained within the private residential unit, shared with other households, or procured a la carte? How permanent should the connection be between a household and a living space? How much control should households have over the environment surrounding the dwelling unit? Answers to these and many other queries differ both within and between societies. This keynote address, delivered at Academia Sinica’s Fourth Conference on Law and Economic Analysis in June 2012, shows how a law and economics perspective that emphasizes problems of scale can illuminate the task of configuring residential property optimally.
Monday, March 25, 2013
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.
Thursday, March 7, 2013
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.
Lots of interesting maps and data in this report, which should be of interest to anyone researching law, land, housing, and disaster planning
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)
Wednesday, February 20, 2013
Elizabeth Plummer (Texas Christian) has posted The Effects of Property Tax Protests on the Assessment Uniformity of Residential Properties, forthcoming in Real Estate Economics. The abstract:
This study examines whether the appeals process improves assessment uniformity for residential properties. The sample includes all single family residential properties in Harris County, Texas, for 2006-2008. I use a hedonic pricing model and Heckman’s two stage approach to explain the assessed values of all properties before and after the appeals adjustments. Full sample results suggest that the appeals process increased assessment uniformity and that the value adjustments were appropriate in amount. I also present results across properties of different values (low, medium, high). The first stage probit model provides evidence on the factors that affect the likelihood that an owner will protest.
I'm personally excited to see this study of real estate value effects in my own backyard, here in The Unzoned City.
Wednesday, January 2, 2013
Here's a story out of Arizona, where apparently a historic Frank Lloyd Wright house was under dispute. From the New York Times story by Fernanda Santos and Michael Kimmelman:
The conservancy and other organizations petitioned the city in June to consider giving the house landmark status, after they learned of the former owners’ plans to split the lot to build the new homes. Three local government bodies approved the landmark designation, but the Council, which has the final say, postponed its vote twice, in part to give the parties more time to strike some type of compromise. There was also uncertainty over how some of its members would vote, given the homeowners’ lack of consent for the landmark process.
“If ever there was a case to balance private property rights versus the public good, to save something historically important to the cultural legacy of the city, this was it,” Larry Woodin, the president of the conservancy, said in an interview.
Seems like a good result here, while communities across the nation continue to struggle with how to strike that balance.
January 2, 2013 in Aesthetic Regulation, Architecture, Historic Preservation, History, Homeowners Associations, Housing, Local Government, Planning, Property Rights | Permalink | Comments (0) | TrackBack (0)
Thursday, November 15, 2012
Andra C. Ghent (Arizona State--Finance) has posted The Historical Origins of America's Mortgage Laws. This paper would be a really good resource for students, teachers, or practitioners who are interested in a concise but explanatory introduction to the development of state mortgage laws, including mortgage theory, foreclosure, and other important topics. The paper is a report for the Research Institute for Housing America. The abstract:
This paper examines the different legal frameworks for mortgage markets in different states, focusing on how and when they came into existence, including the British influence on laws in some of the older states, with a particular emphasis on foreclosures, including judicial vs. non-judicial regimes, redemption rights and deficiency judgments. The paper concludes that mortgage laws in America are a patchwork driven by path dependence, rather than a coordinated effort or a reaction to some economic event or condition.
Wednesday, October 31, 2012
Happy Halloween! If you're out trick-or-treating tonight, think about what planners call the "trick-or-treat test" for your neighborhood. The idea is that based on design and form, a great neighborhood for trick-or-treating--kids and families walking around the streets, visiting door to door--is also likely to be a great neighborhood year-round. City Planner Brent Toderian writes about this at the Huffington Post in Does Your Neighbourhood Pass the 'Trick or Treat Test'?:
Great neighbourhoods for trick-or-treating also tend to be great neighborhoods for families everyday:
- Tree-lined streets designed for walkers more than speeding cars.
- Enough density and community completeness, to activate what I call "the power of nearness" - everything you need, nearby.
- Good visual surveillance through doors and stoops, windows (and I don't mean windows in garages), porches and "eyes on the street."
- Connected, legible streets that let you "read" the neighbourhood easily -grids tend to be good for this, but other patterns work too.
All of these are great for trick-or-treating, and equally great for walkable, healthy, economically resilient communities year-round.
It makes a great deal of sense, though I hadn't previously known that the "trick-or-treat test" was a term of art in the planning community. Thanks to Jenna Munoz for the pointer. A related item is Richard Florida's 2012 Halloween Index at The Atlantic Cities:
For this year's "Halloween Index," Kevin Stolarick and my Martin Prosperity Institute (MPI) colleagues focused on five factors that make for a great Halloween metro area — population density (which makes for efficient trick-or-treating), kids ages five to 14 (as a share of metro population), and median income (a measure of regional affluence), as well as candy stores and costume rental stores per one hundred thousand people.
In the story at the link, you can check out the map which shows the best scoring cities in the categories; Chicago is #1. Zillow, however, has San Fransisco at #1 with its similar but slightly different methodology for determining the 20 Best Cities to Trick or Treat in 2012:
There is a common belief that wealthy neighborhoods are the Holy Grail for harvesting the most Halloween candy. However, to provide a more holistic approach to trick-or-treating, the Zillow Trick-or-Treat Index was calculated using four equally weighted data variables: Zillow Home Value Index, population density, Walk Score and local crime data from Relocation Essentials. Based on those variables, the Index represents cities that will provide the most candy, with the least walking and safety risks.
Finally, Paul Knight at Treehugger provides a mathematical forumula in More on the Trick or Treat Test: Calcluating the "Candy Density":
Potential Candy Score (Candy Pieces) = Target Neighborhood (Acres) x Houses-Per-Acre x Families-Per-House (accounting for duplexes, etc) x % Candy-Giving-Families x Candy-Pieces-Per-Family
I always say that land use is ultimately about the built environment of the communities in which we live. If you are out in your community on Halloween night, be safe, and take the opportunity to observe and think about land use!
Friday, October 19, 2012
Marcia Johnson (Texas Southern) has posted Will the Current Economic Crisis Fuel a Return to Racial Policies that Deny Homeownership Opportunity and Wealth to African Americans?, published in The Modern American, Volume 6, Issue 1, Spring 2010. From the introduction:
Perhaps the greatest threat to the continued realization of the American dream is the latest economic crisis rooted in the sub-prime mortgage collapse.12 Some blame the CRA of 1977 for creating a market that they claim provided housing loans to noncreditworthy borrowers – particularly African American families – in the low and moderate income range.13 However, this charge is without direct factual support as the post-CRA period saw a decline in homeownership for African Americans but a mild increase for White homeowners.14 Illegal and fraudulent practices in property appraisals and income reporting directed program benefi ts away from those the program was meant to aid. . . .
This paper is written to examine the potential effect of the market collapse on our nation’s homeownership policies. Part I reviews America’s historical housing and homeownership policies. Part II considers the expansion of homeownership opportunities to historically non-participating communities, particularly the African American community. Part III reviews the culprits of the economic crash of 2008 and explains why sub-prime borrowers often get blamed. Part IV examines solutions to maintain America’s pro-homeownership policy, and Part V concludes that America’s homeownership policy should continue to be vigorously pursued with a goal of including African Americans who have long been excluded by government policies and sanctions from building wealth and thereby stabilizing their communities.
Tuesday, October 9, 2012
This month's installment of the ABA Section on Real Property's "Professor's Corner"--a free monthly teleconference featuring scholars' takes on important new property cases and issues--will feature a really hot topic, the proposal for municipal governments to take property by eminent domain to combat the mortgage/foreclosure crisis. The info, via David Reiss (who also recently posted a related public comment):
The program is Wednesday, October 10, at 12:30 pm EDT; 11:30 am CDT; 10:30 am MDT; 9:30 am PDT.
Participant Passcode: 5577419753
This month’s topic is Can/Should Municipalities Use Eminent Domain to Take Mortgages to Facilitate Mortgage Modifications? This conference call will be moderated by Professor James Geoffrey Durham, University of Dayton School of Law. Professor Steven J. Eagle, Professor of Law, George Mason University School of Law, is one of the nation’s leading scholars on eminent domain and regulatory takings. Professor Eagle will discuss whether it is possible for local governments to use eminent domain to acquire notes secured by mortgages in order to resell them to a private party which will then modify them, both under the 5th Amendment to the U.S. Constitution and also under state constitution taking clauses as they have been limited by amendments and statutes seeking to define what is a public use. Professor Robert C. Hockett, Professor of Law, Cornell Law School, is the scholar who in June proposed that municipalities could use eminent domain to acquire mortgages, in order to facilitate mortgage modifications to benefit underwater homeowners, in his article: It Takes a Village: Municipal Condemnation Proceedings and Public/Private Partnerships for Mortgage Loan Modification, Value Preservation, and Local Economic Recovery (download paper). Professor Hockett will discuss his proposal, which has received widespread attention. Professor Dale A. Whitman, James E. Campbell Missouri Endowed Professor Emeritus of Law, University of Missouri, Columbia, School of Law, is one of the premier experts on American property law and one of the nation’s foremost mortgage law scholars. Professor Whitman will discuss the impact that implementation of Professor Hockett’s proposal might have on the mortgage markets.
Check out the free telecast on this very interesting and current issue.
October 9, 2012 in Conferences, Eminent Domain, Financial Crisis, Housing, Local Government, Mortgage Crisis, Mortgages, Property, Real Estate Transactions, Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)
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