Thursday, August 2, 2012

Is Smaller Always Better?

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. 

John Infranca

August 2, 2012 in Affordable Housing, Development, Housing, New York, Zoning | Permalink | Comments (0) | TrackBack (0)

Monday, July 30, 2012

The Politics of Chick Fil-A Bans

Matt has the legality of the various proposed Chick Fil-A bans covered.  As numerous commentators have pointed out, prohibiting Chick Fil-A stores based on the opinions of the store's owner is flagrantly unconstitutional.  While most commentators have focused on the First Amendment, I think Chik Fil-A has an equally strong legal argument under the Fourteenth Amendment given the Supreme Court's decision in Village of Willowbrook v. Olech, 528 U.S. 562 (2000): it is a violation of the equal protection clause to discriminate against a particular landowner due to "animus" against the landowner. 

To me, the more interesting question is why city officials would propose something that is obviously unconstitutional (leaving aside the possibility that these officials are dumb, which is of course a legitimate possibility).  In fact, if city officials really wanted to prevent Chick Fil-A from locating in their towns, the very worst thing they could have done is announce publicly their discriminatory animus toward the franchise.  As land use folks have seen time and again, it's really easy for communities to exclude land uses they don't like (e.g., affordable housing) by citing vague concerns about traffic, noise, congestion, and so on.  They rarely make the mistake of saying "we just don't want poor people living here."  Now, because of what the various officials in Chicago, San Francisco, Boston, etc have said, it will only be harder to exclude Chick Fil-A even if the city has legitimate concerns about traffic, noise, etc because the inference of discriminatory animus will be so hard to shake.  So why, to repeat my question, are city officials doing this?  There are two possible answers, as I see it:

1) City officials see themselves as having nearly absolute power over zoning. Such a sense of entitlement may stem from a variety of sources: 1) city officials' authority is rarely challenged by repeat-player developers who would rather not anger city officials they may have to deal with again and again; 2) the news media rarely takes up zoning issues as causes celebre, and 3) courts are largely deferential toward local zoning practices.  This sense of entitlement may be especially acute in Chicago, where the informal practice of "aldermanic privilege" essentially grants the alderman in each ward the unfettered right to dole out land use permissions.

This is the less likely of two alternatives, however.

2) City officials knew all along that what they were proposing was unconstitutional, and never had any serious intention of banning Chick Fil-A.  The real reason for their strident statements: signalling that they are gay-friendly communities.  Under the public choice model of local governance, cities are conceptualized as "firms" who compete for affluent residents and tax revenues.  Richard Florida has provocatively argued that one of the greatest potential resources for cities are gay residents, who tend to have high disposable incomes and have had a history of revitalizing depressed neighborhoods in many urban areas.  Thus, it makes sense that these cities would want to signal their friendliness toward gays, and it especially makes sense that once one city so signalled, others did the same to ensure that they're not seen as any less gay-friendly.  In this sense, the proposed Chick Fil-A bans are very similar to then-mayor Gavin Newsom performing gay marriages in San Francisco in 2004 in flagrant violation of California law. 

One footnote here: If I'm right, why did New York mayor Mike Bloomberg so forcefully diverge from these other big-city officials and declare that cities have no right to ban Chick Fil-A?  Perhaps Bloomberg felt he already had sufficient credibility with gays that this was an unnecessary stunt.  In addition, cities aren't just competing for gays but for business.  Bloomberg's corporate instincts probably led him to conclude that potential investors in NY real estate might be deterred if the city started engaging in viewpoint-discrimination among different businesses.  This shows the delicate tap-dance big city officials have to constantly engage in: give sufficient tribute to the liberal constituencies while not alienating big business. 

Ken Stahl

July 30, 2012 in Chicago, Constitutional Law, First Amendment, Food, Local Government, New York, Politics, Urbanism, Zoning | Permalink | Comments (0) | TrackBack (0)

Thursday, July 19, 2012

New York City's Proposed East Midtown Rezoning and the Use of TDRs

I am very excited for the opportunity to blog on the Land Use Prof Blog over the next month.  Thanks to Matt Festa and the other editors for inviting me to do so.  As Matt mentioned in his introduction, I am a Research Fellow at NYU's Furman Center for Real Estate and Urban Policy.  For those not  familiar with the Center, we are a joint endeavor of NYU's law and public policy school and we conduct interdisciplinary legal and empirical research on land use, affordable housing, housing finance, neighborhood change, and a host of other urban issues.  Although we particularly focus on issues in New York City, we are increasingly pursuing projects in other cities and working on national affordable housing and urban policy issues.

My plan during the next month is to talk about a few interesting projects I am pursuing with the Furman Center, a few of my personal research projects, and of course to write about new land use issues. 

For this first post, I thought I would discuss one of the big land use issues on our radar here in New York, Mayor Bloomberg's recent proposal to rezone a significant part of East Midtown Manhattan, in the area around Grand Central Terminal.  Over the past decade the Bloomberg administration has dramatically altered New York City's zoning through over 100 rezonings affecting approximately one-quarter of the city's landThis new proposal, which includes changes in the rules governing the use of the air rights/transferable development rights over Grand Central (the rights at issue in Penn Central, only a fraction of which have been sold) raises a number of interesting issues and questions.

The proposed rezoning (see the Department of City Planning study presentation) covers 78 blocks and seeks to encourage the development of more modern and taller office buildings in an area where the average office building is currently over 70 years old.  The proposal would allow new buildings substantially taller than what currently exists in the area and potentially as large as the Empire State Building.  These new buildings, which would only be allowed on sites that cover a block's full frontage on one of the area's avenues, would provide larger floor plates, fewer internal supports, and other amenities the City feels are needed for the area to stay competitive with business districts in "global competitor cities."

What is particularly interesting is that -- rather than simply upzone the area to allow these larger buildings -- developers would be able to obtain greater densities (through a higher maximum floor-area-ratio) as-of-right (meaning no required city planning approval process) only by either purchasing transferable development rights (TDRs) from nearby landmarks (the major seller being Grand Central, which has nearly two million square feet available) or by obtaining a bonus in exchange for a contribution to a City fund dedicated to area improvements.  Beyond these as-of-right FAR increases, even taller buildings (close in size to the Empire State Building) could be constructed, but would be subject to a Special Permit process, which would include a design review and would require certain public improvements to be provided. 

The proposal raises a host of issues.  If additional density is desirable in the area, why not simply rezone, rather than require the purchase of TDRs on the private market or contributions to a City fund? Is the City simply selling an upzoning or demanding an exaction from developers?  And of course, for area residents and workers and potential developers other concerns exist:  what effect would these new buildings have on the nearby subway, which already operates above capacity, and how much will it cost to buy these additional square feet of permitted development?

The proposal is also interesting because it represents the latest example of the City's creative use of transferable development rights, a tool that in New York has historically operated in a manner akin to density zoning or, in the case of landmarks, as a means of mitigating the effects of development restrictions.  These new programs in New York use TDRs instead as a means of furthering traditional and quite specific planning and land use goals in a manner more akin to how TDRs have been used in suburban and rural areas nationwide.  The City's proposal builds upon the use of TDRs in the rezoning of West Chelsea, site of the elevated High Line Park, and at Hudson Yards, an area west of Penn Station in Midtown Manhattan.  Both these districts involve the innovative use of TDRs to serve a variety of planning, preservation, and development goals.  Vicki Been and I will be exploring these themes further in a forthcoming article. 

At the Furman Center, we are also nearing completion of the first comprehensive database of TDR transactions in New York City.  We have recorded data on over 400 of these transactions between 2003 and 2011 and have begun reviewing the data to learn more about the market for TDRs in New York and how developers use them in place or in addition to other tools for increasing the size of a project.  I plan to say more about this data, our plans for it, and its relevance for thinking about TDRs in other cities in a future post.

 John Infranca


July 19, 2012 in Development, New York, Planning, Transferable Development Rights, Zoning | Permalink | Comments (3) | TrackBack (0)

Tuesday, July 17, 2012

Welcome John Infranca

Infranca (2)Speaking of the NYU Furman Center, we're delighted to present John Infranca (Fellow, Furman Center) as our newest guest blogger.  Here's his Furman Center bio:

John Infranca is a Legal Research Fellow at the Furman Center. Prior to joining the Center, he served as a law clerk to Judge Julio Fuentes, United States Court of Appeals for the Third Circuit, and Judge Berle Schiller, United States District Court for the Eastern District of Pennsylvania.  John received a J.D., Order of the Coif, from New York University School of Law, where he was an editor of the New York University Law Review, a Lederman Fellow in Law and Economics, and a fellow in the Arthur Garfield Hays Civil Liberties Program.  He also earned a B.A and an M.T.S. degree (in moral theology) from the University of Notre Dame.  After college and during graduate school, John worked with a number of homeless services organizations, as a case manager for refugees, and as the director of a service learning program in Mexico.  He has authored law review articles on the Earned Income Tax Credit and the informal economy, on protecting social security benefits from bank freezes and garnishments, and on institutional free exercise and religious land uses.  At the Furman Center, John’s research focuses on land use regulation, affordable housing and urban policy.  His recent projects have included providing technical assistance to the court-appointed monitor overseeing a fair housing settlement, analyzing the impact of the market downturn on multi-family rental housing, and legal and empirical studies of development rights transfers, rezonings, and residential landlord characteristics and behaviors. 

John already has some great writing out there, and I've seen him at ALPS; we're thrilled to have this rising star join us at the Land Use Prof Blog for the next month. 

Matt Festa

July 17, 2012 in Affordable Housing, New York, Property, Scholarship, Urbanism | Permalink | Comments (0) | TrackBack (0)

Furman Center's 1Q New York City Housing Update

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.

Matt Festa

July 17, 2012 in Affordable Housing, Housing, New York, Real Estate Transactions, Scholarship | Permalink | Comments (0) | TrackBack (0)

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.

Jessie Owley

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, May 29, 2012

The biking bug

Coming this July, New York City will launch a bike share program with 10,000 bikes at 600 stations across lower Manhattan (below 59th Street) and the hipster enclaves of west Brooklyn.

David Byrne, former-Talking Heads front man turned biking proselytizer (maybe you've read his Bicycle Diaries about biking in cities around the world), has a great piece about biking in the Big Apple in last Sunday's New York Times. In the article, he focuses on the practical aspects of the bicycle program for daily activities, like getting some groceries or going across town to a meeting.

Byrne notes that some 200 cities around the world have bike-share programs. I've never used a bike-share program, but not for want of trying. When we were in London last summer, my wife and I were trying to find a rack in that city's bike-share program with two bikes for the both of us, and in London's Soho, we had no such luck. The good news is that the program was obviously immensely popular in London, and I have no doubt it will be in New York. (In particular, I predict Ess-a-Bagel on 1st Avenue will see an even longer line as its bagels become just a short bike-ride away for that many more people).

As a matter of policy, however, I wonder whether the best use of bikes is really the freedom it offers for complete trips, or whether biking's long-term value for large cities isn't the ability for people to use bikes to access other forms of public transportation, such as trains. For several years in San Francisco, I rode my bike, rain or shine, from Potrero Hill to the 24th Street BART station, and then took the train in to work. There were a lot of others doing the same. That requires a different biking infrastructure than bike share programs. Instead of the rental bike stands, it requires secure places to park bikes at train stations and safe pathways through more distant parts of the city. The value, of course, is making public transportation options, such as trains, more readily available to more people. Imagine such a program in the far reaches of Brooklyn or Queens linking to the city's established subway system.

Biking programs can take a long time to develop. For instance, San Francisco's bike plan went through litigation and was required to conduct an extensive environmental impact report under the California Environmental Quality Act. As such, thinking through the variety of ways that bikes can assist getting around a city, should be conducted and evaluated up front. Bike shares and bike-to-transit, I'd suggest, are both important parts of the project.

For those cities contemplating such bike-friendly options, I have two free ideas I'm offering to you. First, a bike commuter greenbelt. This is not new, by any means, but this year I've discovered the joys of bike commuting along Boise's Greenbelt, and it is such a remarkable daily experience down by the cool river. For any city that has the option of making this a reality, just do it. Second, parking squids. That's right, parking squids. Parking squids are being deployed by Seattle as a means of creating bike parking within existing parking spaces. The parking squids each park eight bikes and fit within a traditional car parking space. The squids provide utility and whimsy in the same fixture. Could there be anything better in ending a work commute than locking a bike up to a squid before heading to office?

Stephen R. Miller

May 29, 2012 in Books, California, New York, Transportation | Permalink | Comments (0) | TrackBack (0)

Monday, May 28, 2012

Superheroes and Zoning

Yesterday I took my kids to see The Avengers, the ensemble superhero movie featuring Ironman, Thor, Captain America, and The Hulk.  But before all the world-saving action started up, I caught a throwaway line from the Gwyneth Paltrow character who plays Robert Downey Jr.'s assistant/girlfriend-- referring to their "Stark Tower" skyscraper in midtown Manhattan (powered by some futuristic sustainable energy source, natch) and their plans to build several more, she notes that she was planning to spend the next day "working on the zoning" for the other towers.  I made a mental note that this could be a humorous, quick blog post reaffirming my theory that there is a land use angle to everything, and then proceeded to watch the superheroes smash it out with the bad guys to my son's delight.

But just now, the majesty of the Internet has shown me how badly I've been beaten to the punch.  Via our Network colleagues at the Administrative Law Prof Blog, I found a link to a blog called Law and the Multiverse: Superheroes, Supervillans, and the Law, which has a blog post--nay, a 1,500+ word essay!--on this very subject called The Avengers: Arc Reactors and NYC Zoning Laws.  This is unbelievable--from the same offhand script line that set off my land-use radar, the author delves deep into the New York City zoning code, citing chapter and verse of the regulations; identifies where Stark Tower is on the maps (all with copious linkage); and then explains the legal options available to our developer/hero:

I. Stark Tower’s Zoning District

As it happens, we know exactly where Stark Tower is meant to be located within New York: it’s built on the site of the MetLife building at 200 Park Ave.

(Update: Early on some sources indicated that it was built on the site of the MetLife building and now others indicate that Stark built the tower on top of the preexisting building. This doesn’t change the analysis. Whatever the zoning status of the MetLife building, the construction of Stark Tower was likely a “structural alteration” of the building that would disallow a grandfathered nonconforming use. It certainly exceeded the kind of “repair or incidental alteration” that would preserve the nonconforming use.)

Here’s a zoning map of the area. As you can see, it’s in a C5-3 commercial district in the Special Midtown District, which means Stark Tower has a maximum Floor Area Ratio of 18 (3 of that comes from the special district). Basically this means that if the building takes up its entire lot then it can only have 18 full-size floors (or the equivalent). There are various ways to increase the FAR, such as having a public plaza on the lot. The sloped, tapering structure of Stark Tower means that it can have more floors without exceeding its FAR because the upper floors are much smaller than the lower ones. Given the size of the 200 Park Ave lot, it’s believable that Stark Tower could be that tall, given its shape and the various means of increasing the FAR.

Stark mentions that the top ten floors (excluding his personal penthouse, presumably) are “all R&D.” Is that allowed in a C5-3?

Apart from residential uses, the permitted commercial uses in a C5 are use groups 5 (hotels), 6, 9 and 10 (retail shops and business services) and 11 (custom manufacturing). Unfortunately, research and development is not allowed as a permitted or conditional use in this district. In fact, scientific research and development is specifically allowed in a C6 as a conditional use, which requires a special permit and approval from the City Planning Commission.

So Stark needs some kind of special dispensation. How can he get it? There are many possible ways.

The essay goes on to analyze the options for rezoning, variances, and the related issues of electrical power generation permits and FAA approval, again chock full o' links to the statutes, regs, and caselaw.  The author, James Daily, concludes that "while Pepper Potts may indeed have to do some work to get the next few buildings approved, it’s not far-fetched from a legal perspective."  Read the whole thing, it's wild, and quite sophisticated too. 

But I will draw this even more compelling conclusion: Even the world's greatest Superheroes are no match for the awesome power of the Zoning Code and the Planning Commission.

Matt Festa

May 28, 2012 in Architecture, Clean Energy, Density, Development, Green Building, Humorous, Local Government, New York, Planning, Redevelopment, Zoning | Permalink | Comments (0) | TrackBack (0)

Thursday, May 24, 2012

Fracking Bans

Everyone in New York is talking about fracking. We routinely have folks stopping by our door asking us to sign petitions or donate money to fight fracking. (In fact, NYSPIRG stopped by last night.) I live in the city of Buffalo, which has banned fracking. This is the case in many towns and municipalities around the state and may work because of New Yorks Home Rule law. As there is a moratorium in place pending some additional environmental review, we have some time before courts fully examine the legitimacy of these local bans. The ban in Buffalo is largely sympolic as no one is proposing to drill any gas wells here, but some of these communities are in the heart of the Marcellus shale.

Last week, Vermont became the first state with a state-wide ban. Again this is probably largely symbolic but the public outcry against this technique is worth listening to.

Jessie Owley

May 24, 2012 in Local Government, New York, Oil & Gas, Zoning | Permalink | Comments (0) | TrackBack (0)

Friday, May 18, 2012

New Green Zoning Provisions in NYC

The Big Apple is now greener than ever.  On April 30, the New York City Council adopted some significant changes to its zoning code designed to promote distributed renewable energy and green building practices.  These Green Zone Amendments will make it  easier for New Yorkers to gain city approvals for small wind turbines, green rooftops, solar energy installations, skylights, and similar sustainable land uses on their properties.  The NYC Department of City Planning has posted some short descriptions of the amendments on its website.

Among these new amendments are provisions that encourage rooftop wind turbines on tall buildings and that relax height and other restrictions for solar panels.  It will be interesting to see whether the amendments are able to spur a major increase in small-scale wind and solar energy development in New York City in the coming years. 

To read a New York Times interview of an NYC city planning official and real estate developer on the potential impact of these new amendments, click here.

Troy Rule

May 18, 2012 in Clean Energy, Environmental Law, Green Building, New York, Smart Growth, Sustainability, Wind Energy, Zoning | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 16, 2012

Furman Center's State of New York City Housing & Neighborhoods

Last week the NYU Furman Center published its latest research on the State of New York City's Housing and Neighborhoods.

The Furman Center is pleased to present the 2011 edition of the State of New York City’s Housing and Neighborhoods. In this annual report, the Furman Center compiles statistics on housing, demographics and quality of life in the City, its five boroughs and 59 community districts.

This year we examine the distribution of the burden of New York City’s property tax, analyze the changing racial and ethnic makeup of city neighborhoods, evaluate the state of mortgage lending in New York City and highlight the Furman Center’s latest research on public and subsidized rental housing.

Here is a link to the full report:

The Furman Center does the leading empirical analysis of land use policy today.  This report shows that "owners of New York City’s large rental apartment buildings are subject to a higher effective property tax rate than owners of one-to three-family homes, and bear a disproportionate share of the city’s overall property tax burden."  Very interesting stuff.  Thanks to Meghan Lewit for the link. Here is the web link to the project, and the full report is here.

Matt Festa

May 16, 2012 in Affordable Housing, History, Housing, Mortgages, New York, Property, Real Estate Transactions, Scholarship, Urbanism | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 15, 2012

Boudreaux on The Housing Bias

Boudreaux Housing BiasPaul Boudreaux (Stetson)--the original Founding Editor of the Land Use Prof Blog-- has published a book that addresses one of the most critical issues in American land use in the 21st century: The Housing Bias--Rethinking Land Use Laws for a Diverse New America (Palgrave MacMillan, 2011).  Here's the SSRN abstract:

As more than 300 million Americans squeeze into our country, and as single-person households now outnumber families of parents and children, it's time to rethink our land use laws that favor the single-family house. Our zoning laws were created in an age that assumed that nearly everyone outside of central cities preferred to live a house separated from neighbors; this assumption is no longer valid and no longer sustainable for a crowded nation. The Housing Bias explores the legal discrimination against apartment buildings and other forms of low-cost residences and how these laws make housing more expensive for modest-income Americans – a key factor in the development of subprime loans and other risky practices that eventually sparked our current economic crisis. Why do our laws prohibit the construction of low-cost housing? It is largely because existing homeowners prefer to exclude them – an astonishing example of law’s granting a legal privilege to wealthier citizens, a privilege that our nation can no longer afford.

This provocative book explores real-world 21st-century controversies of the housing bias. It visits the recent effort of Virginia suburbs to enforce “overcrowding” laws against mostly Latino families who migrated to the area to build new subdivisions, and then moves to New York, where eminent domain is used through a dubious interpretation of law to seize condominiums of middle-class families to build a new pro basketball arena. The book reports on the story of how laws requiring large house lots prevented the construction of a mobile-home community in a growing rural county in southern Michigan, and then examines the failed effort to legalize the widespread phenomenon of small “granny flats” in the backyards of the middle-class homes in the packed city of Los Angeles.

The Housing Bias concludes by exploring how we could update our laws to accommodate the housing needs of a diverse new America, in which half of all households now consist of only one or two persons. The prescriptions range from the complex, such as using state laws to override the power of local homeowners to zone out low-cost housing in certain zones, to the simple, such as facilitating the construction of apartments above suburban malls. It is useful for libraries and for college courses on society or law or for any intelligent reader. Written in an entertaining and jargon-free style, The Housing Bias is essential reading for understanding the flaws and the future of the American community.

One of the great things about land use is that it is fundamentally about places and their stories, and in this book Paul uses these examples to make a larger point about a critical issue of law and policy.  The Housing Bias is definitely worth reading and thinking about.

Matt Festa

May 15, 2012 in Affordable Housing, Books, California, Housing, Mortgage Crisis, Mortgages, New York, Planning, Property, Scholarship, Zoning | Permalink | Comments (0) | TrackBack (0)

Saturday, March 31, 2012

Furman Center Reports on NYC Housing and Parking

The MacArthur Award-winning NYU Furman Center recently has produced two reports that are well worth noting.  First, an important policy paper on parking and housing:

We are pleased to share with you the latest policy brief from the Furman Center and its Institute for Affordable Housing Policy: Searching for the Right Spot: Minimum Parking Requirements and Housing Affordability in New York City. The report examines the minimum residential parking requirements in communities throughout the city, and explores the effects the requirements may have on housing affordability and the city's sustainability goals.


Our findings suggest that the requirements generally cause developers to provide more off-street parking than they think buyers and tenants really demand, potentially driving up the cost of housing and promoting inefficient car ownership. The  report provides examples of tools other cities have used to refine their parking regulations to better balance concerns about housing affordability, sustainability, and traffic congestion with the needs of car owners.


Please find the full report here, and the press release here. We hope you find the report informative, and we look forward to receiving your feedback.

The Center has also released its Fourth Quarter NYC Housing Report:

We are pleased to share with you our latest New York City Quarterly Housing Update (Q4 2011). We find that home sales volume continued to decline, with the number of transactions citywide down 15 percent from the previous quarter and 11 percent from the fourth quarter of 2010.  


The report finds, however, that foreclosure starts were down in most of the city, with 33 percent fewer foreclosure notices issued in the fourth quarter of 2011 compared to the same quarter in 2010. Manhattan was the only borough where the number of foreclosure starts increased, although the number of foreclosure notices issued in Manhattan remained well below the numbers issued in any of the other boroughs. 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: 

Very valuable research and analysis, as usual. 

Matt Festa

March 31, 2012 in Affordable Housing, Housing, Local Government, New York, Parking, Property, Real Estate Transactions, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, March 26, 2012

NYU's Controversial Expansion Plans

Property Prof Blogger extraordinaire and official Land Use Prof Blog Buddy Steve Clowney draws attention to an interesting recent column from NY Times architecture critic Michael Kimmelman about NYU's plans to expand within Greenwhich Village.  I agree with Steve's assessment that the column focuses too much attention on the effect the expansion would have on a little used plot of park space.  It is curious that Kimmelman opens the column describing NYU's expansion plans as "acrimonious" but then immediately pivots away from describing any of the actual acrimony to an issue that only he seems to care about, to wit, this "underrated" park that nobody know exists.  

Kimmelman's main argument appears to be that NYU itself is responsible for the park space in question falling into disuse, and so the city should leverage its zoning power to force NYU to make the park more accessible.  At this point, I was running for my land use casebook to consult the Supreme Court's exactions jurisprudence (For land use newbies: governments are generally not allowed to leverage their zoning power for concessions absent an "essential nexus" between the concession sought and the land use approval requested).

In any event, I can't say Kimmelman is wrong as a policy matter.  He may be right that the village needs more open space and that NYU's plan is antithetical to that need.  To me, the most interesting part of Kimmelman's piece was his contention that the original Modernist "tower-in-the-park" design that spawned the endangered park space had actually done a good job of bringing much-needed open space to the village before NYU messed it all up.  This is at odds with the conventional wisdom that the tower-in-the-park idea was a monstrosity that necessarily brought about extremely alienating public spaces (wisdom made conventional, of course, by a previous crusader against Greenwhich Village construction plans, Jane Jacobs).  For an example of such an alienating space, check this out:


For those wondering, this is Empire State Plaza in Albany, New York, a gift of Modernist-loving governor Nelson Rockefeller. 

I see an interesting parallel between Kimmelman's affection for Modernist park design in this column and his paean to the virtues of Modernist housing complexes in another column about which I blogged previously.  Kimmelman seems committed to resuscitating a form of urban design that has been largely relegated to the dustbin of bad planning ideas. For that, I commend him!

Ken Stahl 

March 26, 2012 in Community Design, Density, Development, Downtown, Economic Development, Local Government, New York, Planning, Urbanism | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 14, 2012

The Greatest Grid: New Exhibit at the Museum of the City of New York

While visiting New York City recently for the Association of American Geographers' annual meeting, I took in a great exhibit at the Museum of the City of New York entitled The Greatest Grid: The Master Plan of Manhattan 1811-2011.  The exhibit coincides with the 200th anniversary of the adoption of the famous street grid for the island of Manhattan.  It is a fascinating exploration of one of the most significant urban planning endeavors in American history.  You can see an overview of the exhibit here, and the New York Times Review of the exhibit here.  My thoughts on the exhibit, with pictures, are below:

Continue reading

March 14, 2012 in Comprehensive Plans, Development, History, Local Government, New York, Planning, Transportation, Urbanism | Permalink | Comments (0) | TrackBack (0)

Monday, February 20, 2012

NYC Rent Control Laws at Supreme Court?

The case of Harmon v. Markus, currently before the Supreme Court on a petition for cert, is starting to draw some attention.  Among others, George Will devoted his latest column to urging the Court to hear the case in Supreme Court should take on New York City's Rent Control Laws:

James and Jeanne Harmon reside in and supposedly own a five-story brownstone on Manhattan’s Upper West Side, a building that has been in their family since 1949. But they have, so to speak, houseguests who have overstayed their welcome by, in cumulative years, more than a century. They are the tenants — the same tenants — who have been living in the three of the Harmons’ six apartments that are rent controlled.

The Harmons want the Supreme Court to rule that their home has been effectively, and unconstitutionally, taken from them by notably foolish laws that advance no legitimate state interest. The court should.

This “taking” has been accomplished by rent-control laws that cover almost 1 million — approximately half — of the city’s rental apartments. Such laws have existed, with several intervals of sanity, since the “emergency” declared because returning soldiers faced housing shortages caused by a building slowdown during World War I.

This is a tough issue on the equities; rent-control laws (most prominently in New York) are of incredible help to some people and have a very negative effect on others, not only developers, but also (perhaps most especially) would-be entrants-- which is why the politics on this issue are more difficult to track.  Rent control favoring current (and often, inherited) tenants is getting increasingly hard to justify on policy grounds, but as a matter of property law, is it unconstitutional?  Harder to prove on legal doctrine.

Richard Epstein has a podcast on the case for the Federalist Society.  I've been looking for commentaries on the other side but haven't found quite as much; let me know.

Matt Festa

February 20, 2012 in Affordable Housing, Caselaw, Constitutional Law, Landlord-Tenant, Local Government, New York, Politics, Property Rights, Supreme Court, Takings | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 15, 2012

MacArthur Awards announced for Furman Center and other Land Use Projects

Hot off the wire, the 2012 John D. and Catherine T. MacArthur Awards for Creative and Effective Institutions have just been announced.  Among the big winners were our friends at the NYU Furman Center:

We are delighted to announce that the John D. and Catherine T. MacArthur Foundation just named NYU's Furman Center for Real Estate and Urban Policy a recipient of the MacArthur Award for Creative and Effective Institutions. This distinguished award recognizes the Furman Center's excellence in providing objective, policy-relevant research to address the challenges facing neighborhoods in New York City and across the nation.


The award also is an investment into the Furman Center's future. It comes with a grant of $1 million, which we will use to build data and research partnerships that will allow us to broaden the geographic scope of our research; strengthen and expand our policy analysis; and improve our communications and data management infrastructure. This provides us with a remarkable opportunity to expand our research beyond New York City to help policymakers in Washington and across the nation make more effective housing and community development investments and policies.

By my rough count, about 6 of the 15 awards went to groups for land use, housing, or environmental projects.  Here are some of the others:

Albertine Rift Conservation SocietyKampala, Uganda ($350,000) champions collaborative conservation initiatives in one of the world’s most important ecosystems;

Business and Professional People for the Public Interest – Chicago, Illinois ($750,000) works to strengthen impoverished communities, preserve and increase affordable housing, improve Chicago schools and promote open, honest government in Illinois;

Center for Responsible Lending – Durham, North Carolina ($2 million) protects homeownership and family assets by working to eliminate abusive financial practices and consumer products;

Community Investment Corporation – Chicago, Illinois ($2 million) provided assistance to developers of rental housing in low- and moderate-income neighborhoods in Chicago

Conservation Strategy Fund – Sebastopol, California ($750,000) trains conservation professionals in economics and policy analysis to strengthen and protect the environment;

Congratulations to the winners; and thanks to Hattaway Communications for the heads-up.

Matt Festa

February 15, 2012 in Affordable Housing, Environmentalism, Housing, New York | Permalink | Comments (0) | TrackBack (0)

Saturday, February 11, 2012

How the Occupy Movement Challenged The Existing Model of Local Governance

I hope Matt will forgive me for moonlighting, but The Atlantic Cities blog (a great resource I have blogged about before) invited me to write a guest blog post about how the Occupy protests challenged the predominant model of urban government.  You can check it out here.  My basic thesis is:

The Occupy movement challenged cities’ attachment to mobile capital by making place central to its worldview. In establishing flimsy tent-cities in actual urban spaces and refusing to leave, the Occupy protests mocked the idea of mobility peddled by urban officials. More than that, they implicitly advocated the notion that urban areas are places bound up with the identity of local communities, rather than disposable products in a global marketplace. 

Ken Stahl

February 11, 2012 in Downtown, Local Government, New York, Politics, Urbanism | Permalink | Comments (1) | TrackBack (0)

Wednesday, February 1, 2012

Hail and Farewell-- Introducing Susan Kraham

First, thanks so much to Stephen Miller for doing such a terrific job guest-blogging throughout January.  Great stuff.

KrahamNext, we're proud to welcome Susan J. Kraham (Columbia Law School) as our guest blogger for the month of February.  Here's Susan's bio:

Susan J. Kraham is a Senior Staff Attorney and Lecturer-in-Law at Columbia Law School's Environmental Law Clinic. Susan has spent her legal career representing public interest clients with a particular focus on environmental and land use law. Prior to joining the Environmental Law Clinic, Susan served as Counsel to the New Jersey Audubon Society. From 1998 until 2005 she was an Associate Clinical Professor in the Environmental Law Clinic at Rutgers Law School, Newark. Susan was a 1992 graduate of Columbia Law School. She also has a Masters in Urban Planning from New York University’s Wagner School. After graduation from Law School, Susan clerked for the Honorable Justice Gary Stein of the New Jersey Supreme Court. She was a Skadden fellow. Susan was also an echoing green fellow where she partnered on a community-based environmental justice project.

We're excited to have her on board, and we look forward to reading her posts!

Matt Festa

February 1, 2012 in Environmental Law, New York, Planning, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 14, 2011

Voicu, Been, Weselcouch, & Tschirart on HAMP vs. non-HAMP Loan Modifications

Ioan Voicu (US Gov't--Office of the Comptroller of the Currency), Vicki Been (NYU), Mary Weselcouch (NYU Furman Center), and Andrew Tschirart (US Gov't--OCC) have posted Performance of HAMP versus non-HAMP Loan Modifications--Evidence from New York City.  The abstract:

Policymakers have heralded mortgage modifications as a key to addressing the ongoing foreclosure crisis. However, there is a lack of research about whether modifications are successful at helping borrowers stay current on their loans over the long run and what kinds of modifications are most successful. Our empirical strategy employs logit models in a hazard framework to explain how loan, borrower, property, servicer and neighborhood characteristics, along with differences in the types of modifications, affect the likelihood of redefault. The dataset includes both HAMP modifications and proprietary modifications. Our results demonstrate that borrowers who receive HAMP modifications have been considerably more successful in staying current than those receiving non-HAMP modifications.

Matt Festa

December 14, 2011 in Federal Government, Finance, Housing, Mortgage Crisis, Mortgages, New York, Politics, Real Estate Transactions, Scholarship | Permalink | Comments (0) | TrackBack (0)