Thursday, November 21, 2013
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.
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.
Friday, August 23, 2013
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.
Friday, April 6, 2012
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.
Tuesday, October 11, 2011
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.
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
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.
Thursday, May 19, 2011
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.
Sunday, April 3, 2011
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.
Friday, February 18, 2011
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.
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
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.
James J. Kelly, Jr.
Visiting Prof. of Law, W&L
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
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:
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)