Monday, October 6, 2014

Should More Land Use Professors be Libertarians?

In case you missed it, I am cross-posting something I initially posted to Concurring Opinions, that may be of interest to our readers here.  Parts II and III to follow:

Many professors who study land use and local government law, myself included, consider ourselves leftists rather than libertarians. That is, we have some confidence in the ability of government to solve social problems. Nevertheless, were you to pick up a randomly selected piece of left-leaning land use or local government scholarship (including my own) you would likely witness a searing indictment of the way local governments operate. You would read that the land use decisionmaking process is usually a conflict between deep-pocketed developers who use campaign contributions to elect pro-growth politicians and affluent homeowners who use their ample resources to resist change that might negatively affect their property values. Land use “planning” – never a great success to begin with – has largely been displaced by the “fiscalization” of land use, in which land use decisions are based primarily on a proposed land use’s anticipated contribution to (or drain upon) a municipality’s revenues. Public schools in suburban areas have essentially been privatized due to exclusionary zoning practices, and thus placed off limits to the urban poor, whereas public schools in cities have been plundered by ravenous teachers’ unions.

Continue reading

October 6, 2014 in Affordable Housing, Inclusionary Zoning, Local Government, NIMBY, Planning, Scholarship, Sprawl, State Government, Suburbs, Urbanism, Zoning | Permalink | Comments (0)

Tuesday, December 10, 2013

Serkin and Wellington on Exclusionary Dynamics Beyond Zoning Ordinances

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

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

 

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

Thursday, November 21, 2013

Davidson and Foster on the Mobility Case for Regionalism

So excited about this one.  Nestor Davidson (Fordham) and Sheila Foster (Fordham) have posted The Mobility Case for Regionalism, 47 U. C. Davis L. Rev. 63 (2013).  Here's the abstract:

In the discourse of local government law, the idea that a mobile populace can “vote with its feet” has long served as a justification for devolution and decentralization. Tracing to Charles Tiebout’s seminal work in public finance, the legal-structural prescription that follows is that a diversity of independent and empowered local governments can best satisfy the varied preferences of residents metaphorically shopping for bundles of public services, regulatory environment, and tax burden.

This localist paradigm generally presumes that fragmented governments are competing for residents within a given metropolitan area. Contemporary patterns of mobility, however, call into question this foundational assumption. People today move between — and not just within — metropolitan regions, domestically and even internationally. This is particularly so for a subset of residents — high human-capital knowledge workers and the so-called “creative class” — that is prominently coveted in this interregional competition. These modern mobile residents tend to evaluate the policy bundles that drive their locational decisions on a regional scale, weighing the comparative merits of metropolitan areas against each other. And local governments are increasingly recognizing that they need to work together at a regional scale to compete for these residents.

This Article argues that this intermetropolitan mobility provides a novel justification for regionalism that counterbalances the strong localist tendency of the traditional Tieboutian view of local governance. Contrary to the predominant assumption in the legal literature, competition for mobile residents is as much an argument for regionalism as it has been for devolution and decentralization. In an era of global cities vying for talent, the mobility case for regionalism has significant doctrinal consequences for debates in local government law and public finance, including the scope of local authority, the nature of regional equity, and the structure of metropolitan collaboration.

Jim K.

November 21, 2013 in Inclusionary Zoning, Local Government, Planning, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, October 21, 2013

Kirp in NY Times on Mt. Laurel Today

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

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

 

Jim K.

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

Friday, August 23, 2013

Iglesias on the Legality of Local Inclusionary Zoning Ordinances

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

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

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

Jim K.

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

Friday, April 6, 2012

Kelly on Calavita and Mallach on Global Inclusionary Housing

Our own James J. Kelly (Notre Dame) has posted a review essay on Calavita & Mallach eds., Inclusionary Housing in International Perspective: Affordable Housing, Social Inclusion, and Land Value Recapture.  Jim's review essay, Inclusionary Housing on a Global Basis, appears in his own Journal of Affordable Housing and Community Development Law, Vol. 20, p. 261, Spring/Summer 2011. The abstract:

This is a book review of Inclusionary Housing in International Perspective: Affordable Housing, Social Inclusion, and Land Value Recapture (2010, Nico Calavita and Alan Mallach, eds.). The book offers a comparative look at land-use based approaches to the creation of affordable housing in a broad range of developed countries. A little less than a sixth of the book is dedicated to the U.S., with special attention given to the development on inclusionary programs in California and New Jersey. The editors then devote a chapter each to Canada, England, Ireland, France, Spain and Italy. The penultimate chapter looks at inclusionary practices in a variety of other countries including India, Israel, Colombia and South Africa. The review welcomes this addition to the study of affordable housing programs across the developed world.

A link to the Lincoln Land Institute publication is at Jim's earlier blog post on the book. 

Matt Festa

April 6, 2012 in Affordable Housing, Books, Comparative Land Use, Housing, Inclusionary Zoning, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 11, 2011

Ostrow on Land Law Federalism

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

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

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

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

Jim K.

 

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

Wednesday, September 14, 2011

Von Hoffman on Housing Rights and Inequality in Post-War America

Alexander Von Hoffman (Harvard-Joint Center for Housing Studies) has posted Housing Rights and Inequality in Post-War America, a paper he presented at the 2011 Annual Meeting of the American Political Science Association (APSA).  His brief abstract reads:  In the United States the extension of social rights, as expressed in the Universal Declaration of Human Rights adopted by the United Nations in 1948, has been contested and uneven. The politics that have shaped the American welfare state has provided some population groups greater access to these rights than others. By examining the extension of government housing subsidies during the middle decades of the twentieth century era, this paper reveals the dynamics that created social rights for some groups of citizens but not for others.

Jim K.

J.Kelly@nd.edu

September 14, 2011 in Affordable Housing, Inclusionary Zoning, Race | Permalink | Comments (0) | TrackBack (0)

Thursday, May 19, 2011

Ramapo Village Spent $450,000 in Losing Battle over Discriminatory Zoning

Most land use professors are familiar with the town of Ramapo, New York, whose phased-growth program was upheld as constitutional nearly 40 years ago.  Among other things, the court in the famed Ramapo case found that the town’s program was “far from being exclusionary” and sought only to “provide a balanced and cohesive community.”  Interestingly, certain land use controls in one Ramapo village have proven far more vulnerable to constitutional challenge for their exclusionary effects.

Recently, the Village of Airmont (which is located within Ramapo) settled a lawsuit filed under the RLUIPA and Fair Housing Act relating to the Village’s zoning prohibition on boarding schools.  The Manhattan U.S. Attorney’s office brought its claim against the Village back in 2005 after the Village denied a permit application from the Hasidic Jewish Congregation Mischknois Lavier Yakov to construct a religious boarding school in the community.    

According to recent stories in the Wall Street Journal and elsewhere, the Village finally settled the lawsuit a couple of weeks ago after expending more than $450,000 in legal fees.  The May 9 consent decree formalizing the settlement gives the Village until October 15, 2011, to amend its zoning code to allow construction of the religious school and to otherwise bring its code into compliance with federal laws “prohibiting discrimination and unreasonable imposition on religious freedom.” 

This isn’t the first time that Airmont has effectively lost a discriminatory zoning claim.  According to the New York Times, the Village previously had to amend its zoning ordinances in response to a 1991 Fair Housing Act claim contesting a zoning prohibition on the use of private homes as places of worship.

These constitutional zoning challenges in the decades following the Ramapo case offer at least some support for the theory offered by Fred Bosselman back in the 1970s (see generally 1 Fla. St. L. Rev. 234, 248-50 (1973)) that exclusionary motives were partly behind the town’s famous phased-growth scheme. 

Troy Rule

May 19, 2011 in Housing, Inclusionary Zoning, Local Government, New York, RLUIPA, Suburbs, Zoning | Permalink | Comments (0) | TrackBack (0)

Sunday, April 3, 2011

Glover Blackwell on Social Equity and Geographic Inclusion

Angela_m 
Just in time for this week's discussion of the Mt. Laurel responses to exclusionary zoning, Shelterforce, the magazine of the National Housing Institute, features an article by PolicyLink's founder and CEO, Angela Glover Blackwell.  In Equity Is Not Optional, she makes the case for both social equity as indispensable to sustainable national success and commitment to inclusionary, place-based strategies as critical to social equity.  She then sets out five principles for a social equity strategy illustrating each with model programs such as Harlem Children’s Zone and San Diego's Market Creek Plaza.   With Patrick Maier's sidebar on Inclusionary Zoning, it may make for some timely supplemental reading.

Jim K.

April 3, 2011 in Affordable Housing, Community Economic Development, Inclusionary Zoning, Race | Permalink | Comments (0) | TrackBack (0)

Friday, February 18, 2011

Callison on the LIHTC and Geographic Desegregation

Bill Callison (Faegre & Benson, LLP; also ABA Forum on Aff. Housing and Comm. Dev. Law) has posted Achieving Our Country: Geographic Desegregation and the Low-Income Housing Tax Credit, 19 S. Cal. Rev. L. & Soc. Just. 213 (2010).  Here's the abstract:

This Article, which blends educational policy, housing policy, and tax policy, argues that one path down the precipice of racial inequality is to reverse a path that led us to where this problem began; namely, the racial segregation of the places where we live. This Article examines the country’s most important subsidy for creating affordable housing, the Federal Low-Income Housing Tax Credit (“LIHTC”), and considers whether the tax credit program has served as a tool for desegregating metropolitan neighborhoods. After concluding that the LIHTC program has not been an effective tool for reducing or eliminating continuing patterns of racial segregation and poverty concentration, this Article proposes numerous programmatic changes that could allow the tax credit program to promote greater geographic desegregation. Others have considered the impact of fair-housing laws on the LIHTC program. This Article contributes to that literature by going beyond fair housing to examine both the “cooperative federalism” concepts embedded in the program and the economic structure of tax credits, and by making practical suggestions on how the program can be improved to obtain racial integration. It takes a two-prong approach: First, this Article encourages more robust national guidance in order to encourage states to use credits to foster desegregation. Second, this Article considers changes to the economic structure of the program to provide incentives to developers and investors who undertake to provide affordable housing that results in desegregation.

Jim K.

February 18, 2011 in Affordable Housing, Development, Housing, HUD, Inclusionary Zoning, Land Trust, Landlord-Tenant, NIMBY, Planning, Race, Scholarship, Smart Growth | Permalink | Comments (0) | TrackBack (0)

Monday, January 10, 2011

Inclusionary Housing in International Perspective

 The Lincoln Institute of Land Policy has recently released Inclusionary Housing in International Perspective: Affordable Housing, Social Inclusion and Land Value Recapture, edited by Nico Calavita (Planning-San Diego State) and Alan Mallach (Brookings).  After 60 pages on the U.S., the book devotes a chapter each to Canada, England, Ireland, France, Spain and Italy.  The penultimate chapter looks at inclusionary practices in a variety of other countries including India, Israel, Colombia and South Africa.

Jim K.

James J. Kelly, Jr.

Visiting Prof. of Law, W&L

kellyj@wlu.edu

January 10, 2011 in Affordable Housing, Books, Comparative Land Use, Development, Inclusionary Zoning, Local Government, Planning, Smart Growth, Suburbs, Zoning | Permalink | Comments (0) | TrackBack (0)

Sunday, August 8, 2010

Kelly on Homes Affordable for Good

James J. Kelly, Jr., of Baltimore Law and intrepid Land Use Prof guest blogger, has posted Homes Affordable for Good: Covenants and Ground Leases as Long-Term Resale Restriction Devices, a symposium piece in the St. Louis University Public Law Journal, Vol. 29, p. 9 (2009).  The abstract:

Covenants and ground leases have been, and continue to be, used to create shared spaces that are fundamentally, and often invidiously, exclusive. Famously made a dead letter in the case of Shelley v. Kraemer, covenants banning resale to nonwhite households put the force of law behind the segregated birth of America’s suburbs. Today, gated residential communities and shopping malls assure a degree of class exclusivity through covenants and commercial ground leases, respectively. These same legal mechanisms, however, are now deployed to assure long-term inclusion as well. 

Developers of affordable housing are creating homes that are not only beneficial to the original homeowners but also available for future generations of qualified home buyers. When selling the newly developed homes, they are having subsidized homeowners promise to pass the good deals on to future home buyers. These resale restrictions allow single-family homes to be sold, and later resold, to low and moderate-income households in neighborhoods that would otherwise be unavailable to them. Affordability protections of 15 years or less are relatively common and can be achieved through a number of legal arrangements. Common law and statutory hostility to long-term private arrangements that limit alienability, however, have made the search for perpetual affordability more challenging. Those seeking to sustain economic diversity in residential communities over multiple generations of homeowners have turned to covenants authorized by statute and ground leases as the vehicles by which these promises can be enforced. 

As stand-alone enforceable promises that run with land, covenants have become the primary vehicle for Inclusionary Zoning programs that seek to preserve the mixed-income nature of affected for-profit housing developments for the long haul. Community Land Trusts have generally preferred the ground lease, a standard device for shopping mall creation, to ensure that subsidized single-family homes developed by nonprofit housing organizations can remain affordable forever. As economic diversity in communities is given its proper place as a long-term goal for America’s metropolitan areas, 21st century real estate law will need to integrate both covenants and ground lease reversion interests as stable, effective means of enforcing affordability-preserving resale restrictions. In addition to arguing for the importance of both covenants and ground leases as affordability conservation mechanisms, this article will analyze and evaluate each device as to its effectiveness in achieving the development goal of creating and sustaining economically diverse communities of choice.
Matt Festa

August 8, 2010 in Affordable Housing, Housing, Inclusionary Zoning, Land Trust, Landlord-Tenant, Local Government, Real Estate Transactions, Scholarship, Servitudes, Zoning | Permalink | Comments (0) | TrackBack (0)