Land Use Prof Blog

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

The Community Land Trust Reader

From the folks at the National Community Land Trust:

THE COMMUNITY LAND TRUST READER

A new collection of essays, assembled for the first time, traces the roots, evolution, and prospects of the community land trust -- an innovative model of affordable housing shaped by the likes of Henry George and Ebenezer Howard, and flourishing today in hundreds of U.S. communities.

The Community Land Trust Reader, published by the Lincoln Institute of Land Policy and edited by John Emmeus Davis, brings together the seminal texts that inspired and defined the community land trust movement.  The essays - many of which have never before appeared in print, and others written expressly for this volume -- trace the intellectual origins of an eclectic model of tenure that was shaped by the social theories of Henry George, Ebenezer Howard, Ralph Borsodi, and Arthur Morgan, and by social experiments like the Garden Cities of England and the Gramdan villages of India.

For more information about The Community Land Trust Reader, go to www.cltnetwork.org.

Sounds pretty interesting, although if I bought it I'd have to add it to my huge stack of professional reading that never gets done...

Jamie Baker Roskie

Kelly on Land Trusts that Conserve Communities

James J. Kelly, Jr. (Baltimore) has posted Land Trusts that Conserve Communities, DePaul Law Review, Vol. 59, p. 69 (2009).  The abstract:

Much has been written about land trusts that conserve wilderness, agriculture or other environmentally beneficial uses that would be threatened by unfettered development. In the context of inner-cities, Community Land Trusts (CLTs) conserve neighborhoods. Like their environmental and agricultural counterparts, CLTs employ use restrictions to prioritize communally beneficial development. Conserving communities, however, requires other legal tools as well. CLTs create and sustain permanently affordable homes to break the market’s bias toward socioeconomic homogeneity. CLTs also make room, literally, for green space, sites of shared culture and other productive activities that the market tends to commercialize or marginalize. By sustaining a range of housing opportunities, CLTs decommodify community membership. By managing commons land with a light touch, they allow that diverse population to celebrate and deepen personal creativity even while promoting cohesion. Most importantly, as democratically controlled organizations, CLTs and their community partner organizations do not offer these primary goods as gifts but instead give community members only the opportunities to fight for them and continually discern good and better ways of retaining them. The process of sustaining community by owning land itself sustains community. If adjustment of alienability and commons management comprise the substance of community stewardship, then the development and the governance of the land trust itself is its transformative process.

The substance and process of connecting community and land evoke an understanding of human flourishing that challenges conventional welfare economics approaches. This article argues that Community Land Trusts are better appreciated, evaluated and guided by neo-Aristotelian social philosophies that appreciate the importance of the community and land in the urban neighborhood context. As an advocate for policies focused on human capabilities, Amartya Sen returns market economics to its roots in a moral philosophy of the human good and demonstrates the need for holistic, broad-based development, albeit one that is thoroughly committed to personal freedom. Alasdair MacIntyre insists that popularly controlled, community institutions are needed to foster and sustain the networks of giving and receiving that will inculcate the “virtues of acknowledged dependence” essential to an authentic and productive politics. While Sen’s writings develop a broader information base for judging the gains of CLTs, MacIntyre’s work finds indispensable communal institutions like CLTs that preserve the gains of citizens continually contending with both the state and the market. 

Drawing upon the actual struggles and achievements of communities in Boston, Los Angeles and Syracuse, this article will show how land trusts conserve communities and the significance of long-term community control of neighborhood land resources for the stable growth of inner-city communities and the people who make them up. Part II will discuss how short-term investment thinking is harming inner-city neighborhoods and the measures three community land trusts have taken to conserve their communities. Part III of the article will examine the neo-Aristotelian thought of Amartya Sen and Alasdair MacIntyre as providing a rationale for community conservation institutions in a world divided between the market and the state. The article will conclude by showing how a theoretical awareness of the significance of local communities in human flourishing informs the precise corporate and property relationships inner-city neighborhoods should look to for creating and sustaining economically diverse communities of choice.

This is a fascinating paper, and Prof. Kelly has done some innovative and significant work on the subject of affordable housing land trusts, both academically and in the policy world.  I will hint to blog readers that we might be hearing more about it soon.

Matt Festa

Community Land Trusts in Athens

This week the National Community Land Trust Network is having its annual conference here in Athens, Georgia.  Here's their mission statement from their website:

The National Community Land Trust Network provides training, advocacy and resources for its member organizations which nurture and sustain healthy and economically diverse communities by providing permanently affordable access to land, homes, and related resources.

NCLTN provides technical and other support to community land trusts who are providing affordable housing.  Community land trusts market affordable homes to low to moderate income clients.  The homeowners hold title to the improvements on the land, while the land trust holds title to the land and leases it to the homeowner through a renewable 99 year ground lease.  This allows the land trust to keep the housing permanently affordable. NCLTN is different from the Land Trust Alliance, which provides support to land trusts engaged in land conservation activities around the country.

Some colleagues and I are giving a presentation Thursday on land use issues faced by communities where community land trusts operate.  I'll blog more about that later this week.

Jamie Baker Roskie

How Food Safety Affects Land Use

Many of you have already read the recent compelling piece in The New York Times about beef safety.  The article chronicles the devastating story of a young dance instructor paralyzed by a virulent strain of E. Coli in a patty of ground beef packaged by Cargill.

Interesting, but why am I posting about this on the Land Use Prof blog?  It's because of a follow up piece  on Grist about why ground meat is so prevalently infected with this strain of bacteria. The author's conclusion is that in industrial food production, cows are consistently fed corn, which they cannot easily digest.  His advice, therefore, is to eat locally-grown, grass fed beef.  And there's your land use issue - how can we ensure there is enough agricultural land capable of sustaining enough grass-fed beef production to satisfy local demand?  I know that here in Athens our organic farmers and local meat suppliers struggle with capacity issues.  And even in this recession, productive agricultural land continues to be eaten up by sprawl.  Organizations like the American Farmland Trust are working hard to reverse that trend, by encouraging agricultural land conservation and changes in federal farmland policy.  What is your locality doing on this issue?

Jamie Baker Roskie