Thursday, October 4, 2012
David J. Reiss (Brooklyn) has posted Comment on the Use of Eminent Domain to Restructure Performing Loans, which was submitted to the Federal Housing Finance Agency (No. 2012–N–11) (2012). The abstract:
There has been a lot of fear-mongering by financial industry trade groups over the widespread use of eminent domain to restructure residential mortgages. While there may be legitimate business reasons to oppose its use, its inconsistency with Takings jurisprudence should not be one of them. To date, the federal government’s responses to the current crisis in the housing markets have been at cross purposes, half-hearted and self-defeating. So it is not surprising that local governments are attempting to fashion solutions to the problem with the tools at their disposal. Courts should, and likely will, give these democratically-implemented and constitutionally-sound solutions a wide berth as the ship of state tries to right itself after being swamped by a tidal wave of mortgage defaults.
A concise and thoughtful public comment on what is emerging as a hot, hot issue.
October 4, 2012 in Constitutional Law, Eminent Domain, Finance, Housing, Local Government, Mortgage Crisis, Mortgages, Property Rights, Real Estate Transactions, Scholarship, State Government, Takings | Permalink | Comments (0) | TrackBack (0)
Tuesday, October 2, 2012
Robert C. Ellickson (Yale) has posted The Law and Economics of Street Layouts: How a Grid Pattern Benefits a Downtown, forthcoming in the Alabama Law Review from its lecture series on boundaries. The abstract:
People congregate in cities to improve their prospects for social and economic interactions. As Jane Jacobs recognized, the layout of streets in a city’s central business district can significantly affect individuals’ ability to obtain the agglomeration benefits that they seek. The costs and benefits of alternative street designs are capitalized into the value of abutting lots. A planner of a street layout, as a rule of thumb, should seek to maximize the market value of the private lots within the layout. By this criterion, the street grid characteristic of the downtowns of most U.S. cities is largely successful. Although a grid layout has aesthetic shortcomings, it helps those who frequent a downtown to orient themselves and move about. A grid also is conducive to the creation of rectangular lots, which are ideal for siting structures and minimizing disputes between abutting landowners. Major changes in street layouts, such as those accomplished by Baron Haussmann in Paris and Robert Moses in New York City, are unusual and typically occur in bursts. Surprisingly, the aftermath of a disaster that has destroyed much of a city is not a propitious occasion for the revamping of street locations.
Highly recommended, with lots of interesting planning-type details in addition to the larger importance to land use theories and approaches.
Monday, September 10, 2012
Adam J. Levitin (Georgetown Law) and Susan Wachter (Penn--Wharton--Real Estate) have posted Why Housing?, Housing Policy Debate, vol. 23 (2012). The abstract:
come and go. Only the housing bubble, however, brought the economy to its knees.
Why? What makes housing uniquely a cause of macroeconomic risk?
This Article examines the workings of the housing market as well as theories and empirical evidence about the housing bubble. It explains why housing is a particular source of macroeconomic risk and how changes in the housing finance channel were the critical element in the formation of the bubble.
Interesting stuff. A lot has been written about the mortgage/financial crisis, but this is a good point in time for looking back with a more long-term perspective.
Wednesday, August 29, 2012
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.
Sunday, August 19, 2012
Gregory M. Stein (Tennessee), who has written a bunch on real estate and land use in contemporary China, has posted Is China's Housing Market Heading Toward a US-Style Crash?, Arizona Journal of International and Comparative Law, Vol. 29, No. 1, 2011 . The abstract:
This article aims to determine whether China is heading toward a U.S.-style market crash in its housing market. Rather than attempting to maintain any suspense, I will disclose here that my conclusion is, “Who knows?” China and the United States have dramatically different histories, cultures, governments, economies, and legal systems. Anyone who claims to have a definitive answer to this question is overly confident.
My more modest goals in this article are to examine the available evidence and see which way it seems to point. The article begins by listing and describing several different ways in which the American housing market failed. It then evaluates the consequences of these failures for the U.S. housing market. Next, the article demonstrates some of the key respects in which the Chinese market differs from the market in the United States. This central portion of the article emphasizes just how difficult it is to make predictions about what might happen in one nation’s housing market based on the experiences of another nation that differs in so many significant ways. Finally, the article provides a description of some of the worrisome similarities between the Chinese and American housing markets. To the extent the previous analysis may have comforted the reader into believing that the Chinese market is unlikely to experience a downturn anytime soon, this last discussion will create some apprehension by highlighting some of the ways in which China might, in fact, be heading down the same path as the United States.
Mark D. Bauer (Stetson) has posted ‘Peter Pan’ as Public Policy: Should Fifty-Five-Plus Age-Restricted Communities Continue to Be Exempt from Civil Rights Laws and Substantive Federal Regulation? The abstract:
Although millions of Americans live in 55-plus age-restricted housing, little research has been done to determine whether these communities benefit their residents, or the nation as a whole. This is particularly ironic because these communities exist in contravention to anti-discrimination laws by virtue of a specific exemption granted to real estate developers by an Act of Congress. Ordinarily age discrimination is prohibited by the Fair Housing Act, Title VIII of the Civil Rights Act of 1968. Successful lobbying by special interest groups carved out an exemption for 55-plus housing.
The original exemption required developers to offer elders special services and facilities in these communities in return for the exemption. Over time, those requirements were eliminated and now the only requirement is that these communities exclude families and children.
While lifestyles focused on golf and tennis may be attractive to younger retirees, older Americans often find themselves in communities bereft of the services and facilities they need for basic life activities and safety. The very nature of these communities result in elders left with depreciating homes, and many are without the financial means to retrofit their 55-plus home or to move into a community better adapted for their needs. This Article explores a popular form of “senior housing” that is unsuitable for most older Americans.
August 19, 2012 in Community Design, Constitutional Law, Development, Federal Government, History, Homeowners Associations, Housing, HUD, Real Estate Transactions, Scholarship, Sun Belt | Permalink | Comments (0) | TrackBack (0)
Saturday, August 11, 2012
There has been some discussion over the past couple of months over an innovative proposal to have governments use the eminent domain power to take ownership of underwater mortgages, to decrease the risk of default and then refinance the obligations, all to promote the common good. Here are some links to give you a sense of the major points of this debate.
The launch of this idea comes from a proposal by Law Professor Robert C. Hockett (Cornell) in his piece It Takes a Village: Municipal Condemnation Proceedings and Public/Private Partnerships for Mortgage Loan Modification, Value Preservation, and Local Economic Recovery. The abstract:
Respected real estate analysts now forecast that the U.S. is poised to experience a renewed round of home mortgage foreclosures over the coming 6 years. Up to 11 million underwater mortgages will be affected. Neither our families, our neighborhoods, nor our state and national economies can bear a resumption of crisis on this order of magnitude.
I argue that ongoing and self-worsening slump in the primary and secondary mortgage markets is rooted in a host of recursive collective action challenges structurally akin to those that brought on the real estate bubble and bust themselves. Collective action problems of this sort require duly authorized collective agents for their solution. At present, the optimally situated such agents for purposes of mortgage market clearing are municipal governments exercising their traditional eminent domain authority.
I sketch a plan pursuant to which municipalities, in partnership with investors, can condemn underwater mortgage notes, pay mortgagees fair market value for the same, and systematically write down principal. Because in so doing they will be doing what parties themselves would do voluntarily were they not challenged by structural impediments to collective action, municipalities acting on this plan will be rendering all better off. They will also be leading the urgently necessary project of eliminating debt overhang nationwide and thereby at last ending our ongoing debt deflation.
Professor Hockett's idea was then promoted in the media by, among others, Prof. Robert J. Shiller (Yale--Economics & Finance), in the New York Times Piece Reviving Real Estate Requires Collective Action. As the title indicates, Schiller theorizes the mortgage crisis as in part a collective action problem that can be addressed by Hockett's proposal to use eminent domain to seize underwater mortgages.
But eminent domain law needn’t be restricted to real estate. It could be applied to mortgages as well. Governments could seize underwater mortgages, paying investors fair market value for them. This is common sense too. The true fair market value for these mortgages is arguably far below their face value, given the likelihood of default, with its attendant costs.
Professor Hockett argues that a government, whether federal, state or local, can start doing just this right now, using large databases of information about mortgage pools and homeowner credit scores. After a market analysis, it seizes the mortgages. Then it can pay them off at fair value, or a little over that, with money from new investors, issuing new mortgages with smaller balances to the homeowners.
Yesterday in The Atlantic Cities, Amanda Erickson published an excellent overview story about the proposal, Can Eminent Domain Solve our Mortgage Woes?. Of note to us are the comments by the eminent eminent domain expert (that's not a typo) Prof. Thomas Merrill (Columbia).
It's a clever idea. But is it legal? "It's very unusual," says Thomas W. Merrill, a law professor at Columbia University who specializes in property law. But, he notes, "this doesn't mean it's unconstitutional."
Before the landmark 2005 Kelo vs. New London decision, Merrill says, there's little doubt that the courts have upheld this kind of law. "Before Kelo, courts took a hands-off approach," Merrill says. In the 1984 case Hawaii Housing Authority vs. Midkiff, the Supreme Court ruled that the Hawaiian legislature could take a property controlled by landlords and sell it back to leasees. "Condemning a landlord's interest in property to transfer to a tenant is not too different," Merrill says.
But Kelo changed that. In that case, the Supreme Court ruled that cities could use eminent domain to transfer land from one private owner to another, and that doing so for economic development purposes constitutes a public use. "At this point, I guess you'd have to say all bets are off in terms of what is and isn't eminent domain," Merrill says.
And finally for now, Prof. Richard Epstein is critical of the idea. From More Nonsense on the Home Mortgage Front: Don't Let Municipal Governments Condemn Mortgages at Bargain Rates:
The idea has already been rightly panned by the Wall Street Journal. But the entire proposal needs still further consideration. First off, Hockett and his group insist that there is a huge collective action problem that prevents the rationalization of mortgage matters. And there is. It is called local government regulations that have blocked the foreclosure measures set out above. Handle those and the externalities to which they refer disappear. No longer do we have owners neglecting property or clogging the courts with endless motions.
Again, this post is just to give you some links to look at the arguments. From my perspective, these are some fascinating arguments that illuminate not only the mortgage crisis but also the general debate over eminent domain.
August 11, 2012 in Constitutional Law, Eminent Domain, Finance, Housing, Local Government, Mortgage Crisis, Mortgages, Politics, Property Theory, Real Estate Transactions, Scholarship, Takings | Permalink | Comments (1) | TrackBack (0)
Wednesday, August 8, 2012
The Pew Research Center published a report this month that found an increase in residential segregation by income across the U.S. over the past three decades. Twenty-seven of the 30 largest major metropolitan areas in the county saw a rise in residential segregation. The report's overview links the increase n residential segregation to broader increases in income inequality and notes that segregation by income is still "less pervasive than residential segregation by race." Although it briefly notes the potential relevance of local housing policies, zoning laws, and real estate practices, the report does not explore in detail the causes of the differences found among metro areas.
In addition to the report, the Pew website has maps of residential income segregation in the ten largest U.S. metro areas.
Thursday, August 2, 2012
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.
Thursday, July 26, 2012
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!
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
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.
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).
Tuesday, July 17, 2012
The latest report from the NYU Furman Center for Real Estate & Urban Policy:
We are pleased to share with you our latest New York City Quarterly Housing Update (Q1 2012). We find that home sales volume rose in the first quarter of 2012, with the number of transactions citywide up almost five percent. Housing prices throughout the city are up 3.5 percent compared to the same quarter last year. In the Bronx, however, prices fell more than nine percent between the fourth quarter of 2011 and the first quarter of 2012--the largest single-quarter decline in the borough since 2002.
The report also finds that the number of foreclosure notices issued in Q1 2012 has fallen citywide since its peak in the third quarter of 2009. However, foreclosure notices in Queens and Staten Island increased by more than 20 percent from the fourth quarter of 2011. You can read the full report here, or the press release here.
The Furman Center's Quarterly Housing Update is unique among New York City housing reports because it incorporates sales data, residential development indicators, and foreclosures. It also presents a repeat sales index for each borough to capture price appreciation while controlling for housing quality. The publication is available on a quarterly basis at:
Valuable data and analysis, as always.
Saturday, July 14, 2012
There is a lot of exciting stuff going on at CUNY these days. Not only have they got themselves a shiny new campus in Long Island City, the just inaugurated their new Center for Urban and Environmental Reform (CUER –pronounced “cure”). Headed up by Rebecca Bratspies, this new center is one of the few places engaging specifically with urban environmental issues. Such an endeavor necessarily involves land use issues. I was lucky enough to be invited to CUER’s inaugural scholar workshop. Titled a “Scholar’s Workshop on Regulating the Urban Environment,” the event brought together scholars from multiple disciplines as well as activists and policy makers. It was an interesting format for an event and I enjoyed hearing from architects, historians, geographers and others. I think we’ll be seeing a lot of interesting events and endeavors from this new center. I know I will be keeping my eye on it.
July 14, 2012 in Community Economic Development, Density, Development, Downtown, Economic Development, Green Building, Historic Preservation, Housing, Local Government, New Urbanism, New York, Planning, Sustainability, Urbanism | Permalink | Comments (1) | TrackBack (0)
Tuesday, July 3, 2012
James G. Dwyer (William & Mary) has posted No Place for Children: Addressing Urban Blight and Its Impact on Children Through Child Protection Law, Domestic Relations Law, and 'Adult-Only' Residential Zoning, Alabama Law Review, vol. 62 (2011). The abstract:
For any child, residential location is a large determinant of well-being. At the negative extreme, a neighborhood can pose threats to children's well-being far exceeding those present within the home in typical cases of child protection removal. The worst neighborhoods pose direct threats to children's physical and psychological well-being, and they also adversely affect children indirectly by creating stressors that undermine parents' abilities to care for children. Pervasive crime and substance abuse, in particular, substantially elevate risks to children beyond those created just by less capable or less motivated parents. Given that a relatively high percentage of adults who live in the worst neighborhoods are marginal to begin with, in terms of their inherent capacities for giving care and maintaining safe and healthy homes, the additional threats present in the larger residential environment push the experience of most children in such neighborhoods below what most people -- including those who live in the neighborhoods -- would regard as a minimally acceptable quality of life. Because such neighborhoods are also likely to have inadequate -- even dangerous -- schools and few legal employment opportunities, living in them severely diminishes the life prospects of children forced to grow up in them.
To date, government efforts to improve the lives of these children, and scholarly writing on the topic, have focused on urban renewal and criminal law enforcement in these neighborhoods. These have mostly been unsuccessful, where they do succeed they typically do so by simply relocating the dysfunction to another neighborhood, and even if renewal efforts undertaken today might ultimately be successful that is of no help to a child born today into dangerous urban blight. The only way to ensure that children do not suffer the effects of growing up in deeply dysfunctional communities is to get them out now. Policy should shift to a strategy of separating children as early as possible from the adults who are creating toxic social environments in impoverished areas. In fact, programs that have assisted parents who wished to relocate with their children from high-poverty, inner-city neighborhoods to low-poverty areas have greatly improved the children's well-being and longterm life prospects. This Article presents a novel argument for expanding such relocation programs, an argument founded upon basic rights of children -- not rights against private actors who might harm them, though children certainly possess such rights, but rather rights against the state. I argue that the state violates basic rights of children by making certain decisions about children's lives that effectively consign many of them to living in hellish conditions. To remedy this violation of children's rights, the state should now institute reforms such as giving children first priority in distribution of housing vouchers and in provision of relocation assistance and, most controversially, making relocation out of the most dangerous neighborhoods mandatory rather than voluntary for parents who have and wish to retain custody of children. The state should no more permit parents to house children in apartments where stray bullets come through windows and drug addicts clutter the hallways outside than permit parents to take children into casinos and nightclubs. This Article argues that the state is legally free, and in fact morally and legally obligated, to adopt new legal rules and policies aimed at ensuring that no children live in the horrible neighborhoods that exist, and likely will always exist, in our society. It also presents a constitutional lever for overcoming political and community resistance to taking the necessary measures. These measures would entail changes to the law in three broad areas -- child maltreatment, domestic relations, and zoning.
Friday, June 15, 2012
Via Congress for the New Urbanism, I came across this link to what looks like a great panel discussion hosted by the Cato Institute and cosponsored by Next American City, called "The Death and Life of Affordable Housing." Here is the link to the video. The session features a terrific lineup of thoughtful commentators. From the event description:
Featuring Ryan Avent, Author of The Gated City; Adam Gordon, Staff Attorney, Fair Share Housing; Randal O'Toole, Senior Fellow, Cato Institute, and author of American Nightmare: How Government Undermines the Dream of Homeownership; Matthew Yglesias, author of The Rent Is Too Damn High; moderated by Diana Lind, Executive Director and Editor-in-Chief, Next American City. . . .
The Cato Institute and Next American City will jointly host a panel discussion about housing and development policy in American cities. For several decades, U.S. policymakers have grappled with how to make housing more affordable for more people. In the past year, several new books have claimed that various government tools, such as zoning and subsidies, have limited people's access to desirable, affordable housing—while other leading thinkers have suggested that markets alone will not create socially, economically, and environmentally sustainable communities. With a shared goal of creating livable, affordable communities for all people—but diverging ideas of how to get there—the panel will give voice to a range of perspectives on the hotly debated issue of how to shape 21st-century American cities.
I plan to check it out this weekend. Enjoy,
June 15, 2012 in Affordable Housing, Books, Conferences, Development, Environmentalism, Housing, Lectures, Planning, Scholarship, Sustainability, Urbanism, Zoning | Permalink | Comments (0) | TrackBack (0)
Tuesday, June 12, 2012
The Harvard Civil Rights and Civil Liberties Law Review has published Property and Identity: Vulnerability and Insecurity in the Housing Crisis, 47 Harv. C.R.-C.L. L. Rev. 119 (2012) by Nestor Davidson (Fordham). This piece builds on the author's previous theoretical work in the area of property and personal identity by taking a hard look at the, perhaps evanescent, soul-searching occasioned by the nation's mortgage crisis. Here's an excerpt from the introductory section:
A growing body of evidence in a number of fields has challenged the ethos of acquisition thatprevailed before the crash, and these insights can form the basis for a different understanding of property and identity. It is not clear, however, that this opportunity is taking hold. As the economy stabilizes, early signs of a rebalance involving a shift toward an emphasis on personal relationships and experiences rather than possessions seem to be fading.
The housing crisis, in short, holds lessons about the ineluctable distortions that the intimate landscape of property can generate. This Article focuses on three facets of that landscape. Part I examines the role that status anxiety played in the housing boom. Part II turns to emotional aspects of how the pendulum has swung against homeownership after the downturn. Part III reflects on what these dynamics suggest for rethinking homeownership as a touchstone, and for re-examining the centrality of consumption more broadly. The Article concludes in Part IV by arguing that the legal system and housing policy must be more cognizant of these emotional variables, even if the institutional mechanisms available to do so are relatively limited.
Monday, June 4, 2012
Recently I came across the following cluster of five houses in an otherwise standard subdivision of front-
facing houses with their usual (yawn) front setbacks, side setbacks, and usual suburban land use controls that created the dominant suburban urban form.
The image of these five houses in Teton County, Idaho, however, will immediately induce a land use lawyer's headache. Inevitably, everyone knows, that if there is the will to make something like this work as a "one off" experiment, someone will call it a "planned unit development," or something like that, and there will quickly be a retreat from the strictures of the dominant code and a run for the relief provisions, whatever they may be locally. Maybe its a conditional use, maybe it's a special use district, a planned unit development. [Insert your local jurisdiction's relief provision here.]
But I began to wonder... what if you wanted to build a whole community, or thinking big--a whole city--built upon the premise of this five-house approach? As readers of this blog know, I have recently been somewhat infatuated with the idea of how attention to our smallest living units--neighborhoods--can be an impetus to solving our larger land use and environmental challenges. And so, I find this particular model of five units intriguing. Think about the density of these single-family houses (quite high), and think about the livability of an environment like this (also quite high, I believe). This approach will not appeal to everybody--nothing does--but if it can appeal to people in big-sky country of eastern Idaho, I think it could appeal to lots of other people, too. The combination of density and appealability seems to me a potentially winning combination in efforts to try to build more dense, environmentally sustainable communities.
Now, the question is, how could we make experiments in suburban neighborhood design like this easier from a land use law perspective? One person who has thought about the issue significantly is Ross Chapin, whose book Pocket Neighborhoods, addresses urban design of small neighborhood units in suburban reaches. Chapin's dominant proposal clusters 8 to 12 houses, rather than five, around a central "common," as shown in the graphic here. In addition, the Municipal Research and Services Center of Washington has compiled codes from places that have adopted this style of housing, which the Center calls cottage housing. For those interested in pursuing this, a review of the codes the Center has compiled is well worth it. These model and enacted codes provide approaches to neighborhood design that I believe could prove valuable to re-thinking what it means to live in a suburb, and maybe even in quasi-urban, environments.
Stephen R. Miller
Tuesday, May 29, 2012
Kermit Lind, a long-time clinician at Cleveland Marshall School of Law, has posted Collateral Matters: Housing Code Compliance in the Mortgage Crisis. Cleveland has been ground zero for foreclosure crisis response, especially as it concerns the impact of subprime lending practices on vacant and abandoned properties. Here's the abstract:
This article first describes the paradigm shift in mortgage loan servicing over the past two decades. Securitization of mortgages as commodities and exotic financing products changed the position and role of mortgage loan collateral. As new and unregulated mortgage servicing and debt collection practices were increasingly insulated from mortgage ownership, collateral as a securing factor became remote and overlooked by mortgagees. Meanwhile, the collateral matters greatly to those proximately affected by the neglect of its condition. Mortgagees, but not servicers, are listed in public records as the party holding the legal interest in the property while the mortgage industry deems the servicers to have complete control over the real property abandoned by owners. This change renders conventional housing code compliance procedures obsolete in the face of massive loan failures. The article then suggests that new strategic thinking is needed to redesign and retool code compliance processes. It offers some examples of changes that are needed. There is still imminent disaster for many homeowners, neighborhoods and communities from serious blight. Upgrading local code enforcement and being strategic in its application is essential in order to limit the damage resulting from the mortgage crisis.
Sunday, May 20, 2012
Eloisa C. Rodriguez-Dod and Olympia Duhart (Nova Southeastern) have posted Evaluating Katrina: A Snapshot of Renters’ Rights Following Disasters, Nova Law Review Vol. 31, p. 467. The abstract:
Hurricane Katrina destroyed the homes of many people living in parts of the Gulf Region. The storm displaced as many as 800,000 victims and it is still difficult for them to return home. Consequently, many homeowners have turned to renting because of the slow recovery process. Renters face added difficulties; they are often the last in line for government benefits and other assistance. There is much hostility towards the rights of renters, creating even more difficulties for them.
This article focuses on the difficulties facing evacuee renters in New Orleans following the disaster. These renters face such obstacles as scarcity of land, increases in costs for repairs, higher insurance, infrastructure uncertainty, rental property inflation, uncertainty over flood protection, zoning restrictions, and criminalization. This article discusses legislation and attempted legislation impacting renters post Katrina. The article explores the increase in rent after disasters and a suggested control. It further discusses the manner in which criminal backgrounds determine rental options following disasters. Specifically, the article focuses on legislation limiting access to rentals and suggests, with the right legislation in place, New Orleans will be able to successfully rebuild its lower and middle income housing.