July 18, 2012
Murfreesboro Mosque Supporters Obtain US District Ct. TRO
It's been exactly a year since we last blogged about the siting of the mosque in Murfreesboro, Tenn. Last month, opponents of the mosque convinced a county judge to enjoin its construction by alleging that they were not given adequate notice of the zoning proceedings. Today, US District Court Todd Campbell granted the proponents an injunction based on RLUIPA to allow construction to proceed. The members of the local Muslim community were represented by the The Becket Fund for Religious Liberty. Here's a copy of the TRO.
April 23, 2012
NYT Story on Siting of Affordable Housing in Texas
The New York Times, through its partnership with the nonprofit news organization Texas Tribune, published today a story on the powerful state law tools that support NIMBYism in the siting of affordable housing. Texas Tribune along with the San Antonio Express-News studied public records to learn the extent of the problem:
The examination of data from the Texas Department of Housing and Community Affairs, which administers the biggest federal housing subsidy program in the state, found that of $9.7 billion in tax credits awarded from 1990 to 2011, more than three-quarters subsidized the construction of apartments in neighborhoods mostly made up of poor blacks and Hispanics. Few units built with support from the Low-Income Housing Tax Credit program, which gives federal incentives to private developers to build or rehabilitate low-cost apartments, were in areas that are predominantly white.
The examination found that:
¶Of the 193,000 tax-credit units subsidized statewide, 78 percent are in census tracts where more than half of all residents are minorities. By comparison, only 59 percent of all rented apartments are in the same areas, according to census data.
¶Roughly 31 percent of the units across the state are in neighborhoods with high concentrations of minority residents — 90 percent or more — which is about twice the rate for all rental housing.
¶Eighty percent of the low-income apartments, but only 64 percent of all rented units, are in poor census tracts where residents earned less than the state median household income, $49,646.
November 09, 2011
Ballot Box Zoning -- A Response to Festa
OK, I'll bite. Matt has laid down the gauntlet with his criticism of the initiative process. This subject is of great importance to land use profs because, at least in many sunbelt states, a good deal of land use policy is made through direct democracy -- so-called "ballot box zoning." In this post, I want to respond to some of Matt's criticisms and offer a very tentative defense of ballot box zoning. For those who are interested, I have defended ballot box zoning at greater length (although I ultimately call for its abolition anyway) in this paper.
I must first concede to Matt that the initiative process has serious deficiencies. He mentions transparency and voter ignorance. The social science literature confirms that these are major problems. I would also add a few more: the initiative process is often captured by special interest groups, as money and organizational resources are often decisive in initiative contests; the initiative tends to favor the affluent and well educated, which is not surprising since the affluent and well educated are more likely to vote on initiatives; voters are easily confused by deceptive wording on initiatives, and initiative advocates often deliberately use deceptive terms to confuse voters; the initiative process reduces complex issues to a simplistic yes/no dichotomy in which hyperbolic sound bytes replace rational discourse. I suppose I could go on, but you get the point.
So what virtues could the initiative process possibly have? I want to focus specifically on the land use initiative, although some of my comments may be generalizable. Although it is often asserted that local politics are controlled by homeowners who seek to limit or manage growth, that is generally true only in smaller municipalities. Sunbelt states like Texas and California, however, have a disproportionate number of medium to large-size municipalities, dubbed "boomburbs" by sociologists Robert Lang and Jennifer LeFurgy. The larger size of these municipalities gives homeowners less political power. At the same time, sunbelt boomburbs have often pursued headlong development as a means of economic growth and to overcome fiscal constraints imposed by constitutional or political limitations on raising tax revenue. Lang and LeFurgy accordingly assert that these municipalities tend to be in thrall to the "growth machine," a matrix of developers and related cohorts who facilitate urban growth. As I further argue in my paper, the fact that many of these boomburbs use at-large voting structures rather than ward voting systems further enhances the power of developers and dilutes the ability of neighborhood groups to fight development.
Obviously, this system is less than ideal for homeowners. And let's face it: while we might hate those NIMBYs, they have some pretty good reasons for opposing new growth. For years it has been national policy to induce Americans to purchase property through a combination of incentives, including low-interest mortgages and municipal zoning ordinances that provide some assurances to homeowners that their property values, and hence their ability to pay off their mortgages, will be protected against unpredictable declines. New growth and the externalities that accompany it are very likely to diminish property values, and hence prejudice the ability of homeowners to finance what is likely to be by far their most significant asset. Existing homeowners are in effect subsidizing new growth through diminished property values, and although city officials claim that everyone benefits from new growth, it is often a concentrated group of homeowners alone who must bear a disproportionate degree of the cost. As I questioned in a previous post, it can even be argued that homeowners have a regulatory takings claim -- but courts have never recognized such a cause of action.
As envisioned by its Progressive-era architects, the initiative is supposed to correct the defects in the ordinary legislative process, particularly the dominance of special interests. And that is exactly what ballot-box zoning appears to do in the sunbelt states -- the very states where boomburbs, at-large voting and the growth machine dominate the political landscape are also the states where ballot-box zoning is most robust. Ballot box zoning has proven to be a powerful weapon with which homeowners can fight back against the growth machine, because prevailing on a local initiative requires only a one-time infusion of cash and a constituency that is easily organized and highly motivated -- ie, a group of neighboring homeowners who are all extremely ticked off about land use changes around their neighborhood. This can counteract the repeat player and other advantages that the developer has in the legislative process. Granted, the initiative process itself invites special interest abuses and all sorts of other problems, but it seems no less messy or dysfunctional than the system of government it is designed to counterbalance.
November 03, 2011
NPR on Zoning out Hydrofracking in Upstate NY
From the "You Must Hear This" Dept., we have a really interesting NPR report this morning on attempts by some citizens of the town of Dryden, NY to zone out hydraulic fracturing ("hydrofracking") as a means of removing oil and gas from local shale deposits. The report features commentary on crucial state preemption issues by Eduardo Peñalver (Cornell).
I think siting of hydraulic fracturing operations is a terrific subject for discussion in a Land Use, Environmental or Property law class. I even used a hydraulic fracturing hypothetical on my Property final last Spring to test on inquiry notice and reciprocal servitudes. Focusing on public rather than private land use regulation, this story frames the state and local government issues nicely. Enjoy.
October 28, 2011
Takings Jurisprudence, NIMBYS, and Scalia's Hypothetical Highway
After slogging through the Mahon and Penn Central cases (booorrring), it's always a relief to start talking about Lucas v. South Carolina Coastal Council. The reason is simple: Justice Scalia knows how to keep us entertained. In particular, Scalia loves to get sassy in his footnotes. I'm sure readers have their favorites, but one of mine is footnote 8 of the Lucas opinion, which in addition to being enjoyable, is also very illuminating. I spend about 20 minutes of class time discussing this footnote and its implications for both takings law specifically and land use law more generally, including the intractable NIMBY problem.
The basic holding of Lucas is that a state regulation that deprives property of all economic value (i.e., a "total wipeout") is a per se taking, subject to a few caveats and exceptions that I'm not going to get into here. Footnote 8 takes on Justice Stevens's argument, in dissent, that the "total wipeout" rule is arbitrary because the landowner who suffers a 95% wipeout gets no compensation while the landowner who suffers a 100% wipeout gets 100% compensation. Scalia's response: that result "is no more strange than the landowner whose premises are taken for a highway (who recovers in full) and the landowner whose property is reduced to 5% of its former value by the highway (who recovers nothing). Takings law is full of these 'all-or-nothing' situations." To illustrate this hypothetical, I draw the following picture on the board:
I then ask my students the question left unanswered by this hypo: why does Owner "A," whose land is taken for the highway, get full compensation, whereas Owner "B", whose land is substantially devalued by the siting of a highway adjacent to his home, get nothing?
The doctrinal answer is reasonably clear: A has suffered a physical occupation, which is a per se taking under Loretto, whereas B has not, and thus can only bring a takings claim under the Penn Central balancing test. B is not likely to win under that test, as the government can articulate a substantial public interest in building a new highway and B has only a weak claim that the new highway interferes with any "distinct investment-backed expectations" since he, like the owners of Grand Central, can continue using his property in exactly the manner it has been used before: in my version of the hypo, as a single-family home.
But this then begs another question: why treat the physical occupation so differently from a siting decision with such severe impacts on adjacent landowners? To answer this, note that my initial drawing is, of course, highly misleading. Externalities rarely involve two isolated landowners. The following is a more accurate depiction:
The conceivable adverse impacts of the highway (noise, congestion, decreased property values) thus extend far beyond the immediately adjacent owners, even to households outside the frame of the picture depicted here. If a court were to hold that the diminution in property value suffered by an adjacent landowner were sufficient standing alone to state a compensable takings claim, then any other landowner who could likewise establish that the highway resulted in some decrease in his or her property values would seemingly be entitled to compensation, even if the land in question were located at a considerable remove from the highway and suffered only a de minimis decrease in value. The potential claimants could number in the dozens or even hundreds. Courts would be flooded with litigation and be stuck with the unenviable task of determining whose injuries are sufficiently severe to warrant compensation, while legislatures would have to worry that every regulatory intervention would subject them to massive liability for damages.
Limiting recovery to those who endured a physical occupation seemingly solves these problems. The class is relatively smaller and more discrete, and there is a fair presumption that a physical occupation has caused some pretty serious injury to the landowner. So courts are relieved of having to make fine distinctions and legislatures only have to worry about condeming land in the path of the proposed highway. In other words, the distinction between the owner whose land is taken for a highway and the owner whose land is devalued by the highway has nothing to do with the divergent expectations or quantum of injury necessarily suffered by the two landowners, and everything to do with easing the administrative burden on the legislature and the courts.
This short hypothetical thus brings out a number of important points. For one thing, it further emphasizes the point, made by the Court in the text of the Lucas opinion, that a "total wipeout" is essentially analogous to a physical occupation because of the presumed extent of the deprivation and the likelihood that a small class of discrete individuals is being singled out to bear a burden that benefits the public generally. More broadly, the hypo signals the way in which Lucas is self-consciously undertaking a philosophical shift away from Penn Central. Where Penn Central was comfortable with the indeterminacy of a balancing test for purposes of ensuring equitable treatment in individual cases, Lucas is more concerned with establishing a bright-line rule that provides certainty and eases administration, even if that rule is somewhat arbitrary and sacrifices fairness in some circumstances (the landowner whose land is taken for a highway is compensated in full, whereas his neighbor gets nothing for a 95% diminution in property value).
This hypo also illustrates the extent to which takings law -- and land use law generally -- favors developers and users of land as opposed to those with an interest in the non-use of land. The Court's analogy between a total wipeout and a physical occupation elides something important -- in the latter, the landowner has suffered a loss of the right to exclude, that most essential stick in the bundle of rights we call property, whereas in the former, the landowner still has the right to exclude, but has lost the right to develop. Scalia seems to be suggesting, therefore, that the right to develop is itself also an essential stick in the property rights bundle. This is consistent with Scalia's approach in other takings cases, such as Nollan, which expresses a concern about legislatures extorting developers in exchange for the right to exercise their right to develop. At the same time, the highway hypothetical makes clear that landowners with an interest in the non-use of neighboring land (i.e., NIMBYS) are not protected by takings law for all the reasons stated above.
NIMBYs could conceivably be protected against unwanted land use sitings, zoning changes, etc, by the Penn Central test. In principle, NIMBYs could make a strong case that they have "distinct investment backed expectations" in maintaining the status quo: 1) homeowners purchase property priced at a certain value, and take out a mortgage to finance such purchase, in reliance upon existing zoning regulations and land use patterns, which are capitalized into home prices; 2) zoning regulations are specifically designed to induce such reliance in order to attract homeowners who will contribute to the tax base; 3) a change in zoning or other authorized land use change depresses home values, while the principal on the mortgage remains unchanged, thus seriously prejudicing homeowners.
In reality, this argument has had little force. In takings and other contexts, courts insist that homeowners have no "vested rights" in existing zoning. Only developers, it seems, can have "distinct investment backed expectations." (In the takings context, I recognize, this may be because the initial zoning regulation upon which homeowners relied has actually increased home values, so it can hardly be called a "taking" to simply take back part of what has been given. But even if so, it would seem as though homeowners should have some state law cause of action for their expectations based on vested rights, NCU, or zoning estoppel). There are, I think, three reasons why the law so favors developers. First, as mentioned above, there is that problem of the administrative burden of dealing with innumerable NIMBY claims. Second, there is the traditional Lockean preference for the productive use of land, which is of course a very scarce resource, as opposed to its non-use. Finally, there may also be a public choice rationale at work here. As William Fischel and others claim, NIMBY homeowners tend to be the dominant faction in most municipalities, while developers are reduced to the status of supplicants. If that claim is true, then it is perfectly sensible that courts would favor the interests of politically disadvantaged developers while leaving NIMBYs to the political process where they are typically very successful.
This public choice rationale, however, raises some questions. The assumption that NIMBYs are all-powerful and developers powerless has been forcefully challenged, and the empirical evidence appears to show that, at least in larger municipalities, developers are quite powerful. Another question, with which I close this long post, is of the "chicken-or-the-egg" variety. Do courts favor developers because homeowners are disproportionately powerful in local politics, or are homeowners disproportionately powerful because the absence of a legal remedy for their grievances gives them a strong incentive to be politically active? As I mentioned above, the "expectations" inquiry is circular because courts do not only respond to expectations, but also shape them. Is it possible that the reason angry mobs of NIMBYs pack planning board meetings to oppose zoning changes, and the reason they perceive the deck to be stacked against them despite their power in the political process, is because the courts have traditionally favored the claims of developers and told NIMBYs to seek relief elsewhere?
October 23, 2011
Seicshnaydre on Public Housing and Racial Segregation in Post-Katrina New Orleans
Stacy Seicshnaydre (Tulane) has posted How Government Housing Perpetuates Racial Segregation: Lessons from Post-Katrina New Orleans, 60 Cath. L. Rev. 661 (2011). In it, she explores how quantity-minded public housing advocacy and NIMBY-style public housing resistance has combined to perpetuate the racial segregation that federal law prohibits. Here's the abstract:
This Article contends that post-Katrina New Orleans exemplifies the exclusionary dynamic in which government-assisted housing operates throughout America and the fundamental failure of American housing policy at the federal, state, and local levels to prevent the racial segregation that inevitably results. Federal law has prohibited racial segregation in government-housing programs for decades, yet it has proven difficult to reverse entrenched patterns of segregation in these programs. Patterns of racial segregation have been particularly intractable in New Orleans, which, prior to Hurricane Katrina in 2005, boasted the second-highest level of poverty concentration in the nation and relatively high levels of poverty concentration in all of the major government-housing programs. Furthermore, low-income white residents in pre-Katrina New Orleans had greater access to middle-income neighborhoods throughout the metropolitan area of New Orleans than low-income black residents, who were overwhelmingly concentrated into high-poverty neighborhoods.
Hurricane Katrina, with its massive levee failures and neighborhood flooding, offered an opportunity for New Orleans to emerge as a more inclusive region; new government-assisted housing could have helped facilitate inclusion, while also responding to the regional-housing needs of the area. However, rental housing bans proliferated throughout the region, primarily in communities that had previously served as affordable suburban alternatives for lower- and middle-income whites in prior decades. These communities sought not only to prevent the development of new rental housing, but also to limit the repair of rental housing that preexisted the storm. At the same time, other communities in metropolitan New Orleans that were the least affordable, most homogeneous, and nationally recognized as desirable places to live were not targeted for government-assisted housing, and thus did not pass similar sweeping rental bans. Therefore, rather than using recovery efforts to reverse racially segregated housing patterns, the region took steps to exacerbate them.
This Article describes a perennial dynamic of two impulses pulling in opposite directions—the anywhere-ist and nowhere-ist impulses, which conspire to perpetuate segregation. The anywhere-ists are primarily focused on securing as much federally assisted housing as possible; the nowhere-ists are primarily focused on keeping it out of their communities. This dynamic has created a “path of least resistance,” whereby government-assisted housing continues to be provided in places where it already exists or in places that are already open and affordable.
Ultimately, federal intervention in the housing market must encompass more than providing a subsidy. It must open neighborhoods not already open, make affordable what is not already affordable, enable housing subsidies to act as gateways to educational and employment opportunity, and inform families historically excluded from housing markets about their choices. Any federal housing interventions that are not so designed will almost certainly exacerbate existing racial segregation and poverty concentration, as they have done for decades, and—as post-Katrina New Orleans illustrates—as they will continue to do, again and again and again.
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.
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
September 19, 2011
Salkin on Bee Siting
Patricia Salkin (Albany), the quintessential "busy bee", has posted Honey, It's All the Buzz: Regulating Neighborhood Bee Hives (B.C. Env. Aff. L. Rev., forthcoming 2011). Here's the abstract:
Urban beekeeping, along with other types of urban agriculture, sustainable development and green building, has generated quite a buzz in recent years. Small-scale beekeeping has proven to be especially popular among people looking to obtain more of their food from local sources and urban bees provide important pollination services to community gardens, home vegetable gardens and fruit trees. Some people also believe that honey contributes to a healthier lifestyle by providing a minimally-processed sweetener and through its various uses as a homeopathic remedy. Small-scale beekeeping may augment local economies too. Despite the benefits and growing popularity of backyard beekeeping, apiaries are not always welcomed by the neighbors. This article is designed to provide information to land use regulators about the benefits and drawbacks of beekeeping in residential areas, and it offers strategies for addressing beekeeping activities through local laws and ordinances.
August 30, 2011
Berry and Portney on Interest Groups and City Politics
Jeffrey Berry (Tufts-Political Science) and Kent Portney (Tufts-Political Science), nearly 20 years ago, published the award-winning study of grassroots citizen participation in five U.S. cities, The Rebirth of Urban Democracy. Now they have posted The Group Basis of City Politics, a paper they presented at the 2011 American Political Science Association Annual Meeting. Here's the abstract:
How do nonprofits empower themselves? In this paper we analyze nonprofit advocacy in city politics, emphasizing especially their interaction with local policymakers. First we discuss what we call the “politics of place” in cities, examining the participation of three types of citywide and neighborhood nonprofits. The second section develops two lines of inquiry and articulates a set of hypotheses that grow out of a theoretical construct relating to low barriers to entry. Next, after describing the empirical methodology, those hypotheses are tested with data derived from large scale surveys in 50 of the nation’s largest cities. The subjects of these three surveys are city councilors, agency administrators, and interest group advocates. We find that access to policymakers in city politics is relatively easy as the barriers to entry for advocates is quite low. Not surprisingly the evidence points to a privileged position for business, though neighborhood associations also stand out in terms of incorporation into the policymaking process.
July 19, 2011
Herman Cain vs. the Murfreesboro Mosque
Having apparently never heard of RLUIPA, Republican presidential candidate Herman Cain is arguing on freedom of religion grounds that a mosque should not be built in Murfreesboro, Tennesee. The US Justice Department apparently disagrees, as does the head of the Southern Baptists...
Jamie Baker Roskie
July 11, 2011
NIMBY Beverly Hills
In a kind of ultimate "not in my backyard" move, the City of Beverly Hills is setting aside $350,000 to fight the LA Metropolitan Transit Agency's attempt to run the subway under Beverly Hills High...
Jamie Baker Roskie
April 30, 2011
Salkin on the Regulation of Controversial Land Uses
While the definition of what may constitute a controversial land use differs from community to community, the bottom line is that land use controls have been attempting to regulate these uses since the advent of zoning (and through nuisance law before that). When regulating many types of controversial land uses, constitutional issues may come into play and federal and state preemption issues may arise. However, local govenrments typically have wide discretion in designing standards and regulations for many types of controversial uses. This article explores four typically controversial uses - off-campus fraternity and sorority housing, tattoo parlors, medical marijuana and pawn shops - to demonstrate the types of regulations that may and may not be appropriate when it comes to planning and zoning laws.
Rather than prattle on along the where-she-does-find-the-time? theme, I will just note that this is the fourth piece she has posted in recent months. That count doesn't include the J. of Legal Ed. article that she and John Nolon published this Spring (see Jamie's post on the conference of the same name). In her down time, she also puts up a fine land use law blog of her own.
March 22, 2011
Smith and Bailey on Restrictive Zoning for Adult Uses/Sexually Oriented Businesses
George Smith (Catholic) and Gregory Bailey have posted Regulating Morality through the Common Law and Exclusionary Zoning, 60 Catholic L. Rev. 403 (2011). Here's the abstract:
The extent to which a free society seeks to regulate sexual expression is problematic. What was defined as immoral or contra bonos mores in the 20th century, has become less of an issue in today’s liberal society. Freedom of sexual intimacy and expression are, to be sure, 1st Amendment and 14th Amendment rights. But, with every assertion of a fundamental right or liberty must come a concomitant understanding that there is a co-ordinate responsibility to exercise that right reasonably. Determining the reasonableness of any conduct grounded in these two amendments must be fact sensitive and guided by community standards. Broad, open-ended moral judgments should be eschewed as foundational bases for legal judgments. Indeed, advancing moral grounds as justification for regulating personal liberties of sexual expression and association are being seen by some as invalid reasons for enacting exclusionary land use regulations - here, for the containment of activities connected with sexually oriented businesses [SOBs]. No unequivocal standard of dispositive clarity will ever be formulated which determines when conduct is unreasonable in that it is lewd and obscene or when written, electronic and photographic material pornographic in content rises to the level of obscenity and thereby subject to strict regulation. The most logical and common sense approach to this quandary is for legislators, land use planners, zoning commissioners and courts, in trying to either eliminate or contain the operation of SOBs, is to rely upon and use several tools: common law nuisance fortified by either moral, anticipatory or aesthetic iterations or models, and exclusionary zoning techniques. Difficult though determining when, under nuisance law, conduct is so unreasonable as to warrant its cessation, the Restatement of Torts Second provides a workable construct for making that determination. Both strengthened and guided by the doctrine of secondary effects, nuisance actions of all types have a clear placement in the arsenal of legal weapons which may be used to regulate effectively SOBs. The implementation of a community-based standard of morality for proper regulatory control of SOBs will always present an issue of unpredictability inherent in its underlying flexibility. For the content-neutral regulation of sexually oriented businesses, the only limiting requirement analyzed, aside from ensuring adequate alternative channels of communication, is determining if the regulation serves a significant government interest. Further, while the Supreme Court has held repeatedly that preventing a multitude of secondary effects is a significant government interest, the manner in which that goal could be served has not been meaningfully defined or limited. The secondary effects doctrine places great power, and corresponding responsibility, in the hands of each local community - but it does so at the peril of uniformity. While uniformity is not an absolute necessity in the Federalist system, the type and severity of secondary effect that can be a justification for regulating the location of a sexually oriented business should be clarified. The time, place, or manner restrictions imposed can be left up to each locality to tailor to their needs, but the triggering events for those restrictions must be more clearly defined.
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.
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
February 12, 2011
Eagle on Urban Revitalization, Eminent Domain, and Jane Jacobs
Steven J. Eagle (George Mason) has posted Urban Revitalization and Eminent Domain: Misinterpreting Jane Jacobs, forthcoming in the Albany Government Law Review. The abstract:
This article reviews the implications for land use policy of Jane Jacobs’ The Death and Life of Great American Cities. Fifty years after its publication in 1961, Death and Life remains a clarion call for resistance to monolithic development and to the reigning paradigm of urban planning in the mid-20th century. The article asserts, however, that government officials and planners have learned the wrong lesson from Jacobs. Their emphasis on the top-down imposition of what purports to be varied development is evident in the growth of condemnation for retransfer for private economic redevelopment. Such policies are directly contrary to Jacobs’ insistence on bottom-up organic development.
The article further describes the muddled state of the U.S. Constitution’s Public Use Clause, evident in Kelo v. City of New London and in state cases such as Goldstein v. New York State Urban Development Corporation. It asserts that judicial unwillingness to provide meaningful scrutiny to condemnation for private redevelopment is based, in part, on acceptance of the revisionist, and incorrect, reading of Jacobs’ work.
February 07, 2011
We've got a lot of exciting things going on here in Buffalo these days. At the end of March, we'll be holding a symposium and community forum on fracking. I hope to see some of you there!
- Jessica Owley
Hydrofracking: Exploring the Legal Issues in the Context of Politics, Science and the Economy
March 28-29, 2011 at University at Buffalo School of Law
Buffalo, New York
On March 28-29, 2011 the University at Buffalo Environmental Law Program and the Baldy Center for Law and Social Policy will host the conference: Hydrofracking: Exploring the Legal Issues in the Context of Politics, Science and the Economy.
Horizontal-gas drilling involving hydraulic fracturing, also known as hydrofracking or fracking, and its potential effects is an important environmental and energy concern for the nation. This conference provides an opportunity for a scholarly exchange of ideas regarding the issue as well as a forum for community discussion.
We welcome submissions on any related topic, including the following:
- Hydrofracking and Nuisance Law
- Impacts on Tribal Lands
- Administrative law and the EPA Rulemakings
- Environmental Review Processes
- Application of federal environmental laws, including the Clean Water Act and Clean Air Act
- Energy issues, in including the Energy Policy Act and DOE policy
- Endocrine Disruption and Human Health Impacts
Authors will have an opportunity to publish their work in the Buffalo Environmental Law Journal. You are invited to submit a paper or presentation proposal for of no more than 250 words by Monday, February 21st to firstname.lastname@example.org.
For more information, contact Jessica Owley [email@example.com or 716-645-8182] or Kim Diana Connolly [firstname.lastname@example.org or 716-645-2092]
February 7, 2011 in Clean Energy, Climate, Conferences, Environmental Justice, Environmental Law, Environmentalism, Exurbs, Federal Government, Local Government, New York, NIMBY, Nuisance, Oil & Gas, Planning, Politics, Property, Property Rights, Scholarship, State Government, Sustainability, Water | Permalink | Comments (3) | TrackBack
January 27, 2011
Zoning Out Young Students
Antonia Layard recently posted about new planning restrictions in the UK limiting the number of unrelated people occupying a house. These restrictions are not uncommon in the US, particularly in college towns. For example, Northwestern University students are in an uproar because the town of Evanston has decided to start enforcing an old ordinance, quaintly called the "brothel rule," forbidding more than three unrelated people living together.
Athens has an even stricter requirement that no more than two unrelated people can live together. However, in my experience this rule is rarely enforced. I have no issue with most of the student households in our neighborhood, but occasionally we get a group of three (usually very young) folks living in the house next door and engaging in loud partying and/or having incessantly barking dogs. I've had much more luck working directly with the tenants and the landlord, though, than I have getting Code Enforcement to come out and investigate.
Another current area of conflict in Athens is the placement of a fraternity in a historic neighborhood of Athens that is already home to several fraternities and sororities, but also to many families and working adults. This is one of the many, tricky balancing questions in land use law. How do we accomodate young folks who are still forming as individuals and learning what it means to be part of a community, without burdening the neighbors who need their beauty sleep and grow tired of noise and garbage?
Jamie Baker Roskie
January 20, 2011
Lupu and Tuttle on RLUIPA and Religious Accommodation
Ira Lupu (GW) and Robert Tuttle (GW) have posted The Forms and Limits of Religious Accommodation: The Case of RLUIPA, 32 Cardozo L. Rev ___ (forthcoming 2011), on SSRN. Here's the abstract:
This paper, prepared for a Symposium at the Benjamin Cardozo School of Law to mark the 20th anniversary of the Supreme Court’s decision in Employment Division v. Smith, focuses on the constitutionally appropriate forms for, and limits on, government protection of religious freedom. Part I articulates in general terms the primary constitutional strategy of mandatory accommodations – protection of religion and its secular analogues in matters of speech, association, and equality – and the limits on such accommodations, with an emphasis on a jurisdictional limit to the state’s capacity to decide questions of religious significance. Part II extends this concept of a jurisdictional limit to permissive accommodations, and analyzes the role of that limit in the interpretation of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). Part II argues that many of the land use provisions of RLUIPA can be constitutionally applied without official decision-makers violating that jurisdictional limit, but that some applications of the land use provisions, and a significant number of applications of the institutionalized persons provisions, raise profound problems of state exercise of religious authority.
January 14, 2011
Connecticut RLUIPA case on NPR
All Things Considered last night featured a four-minute story on a federal lawsuit brought by an Orthodox Jewish group challenging the denial of its building permit for a student center in an historic residential district. Patty Salkin (Albany) blogged at Law of the Land this past summer about the denial of the motion to dismiss.
December 06, 2010
Outka on The Renewable Energy Footprint
Uma Outka (Florida State) has posted The Renewable Energy Footprint, forthcoming in the Stanford Environmental Law Journal. The abstract:
Renewable energy is widely considered essential to climate change mitigation, and policies favoring renewable energy are finding their way into law at all levels of government. With the shift toward renewable energy comes the potential for staggering land impacts – many millions of acres may be consumed to meet demand for electricity and fuel over the next 20 years. To conservationists’ dismay, the more renewable energy we use, the more land we need. This article is concerned with two primary questions: What are the implications of renewable energy development for land use and land use law, and how might the land use context inform emerging energy policy?
Siting power plants and transmission lines is notoriously difficult, and renewable energy has proved no exception. As investment in the sector has grown, so has dissatisfaction with existing siting frameworks. This perceived inadequacy has led to a flurry of siting-related law and policymaking tailored to large-scale renewable energy infrastructure. So-called NIMBYs opposing renewable projects are derided for hindering the green economy. Almost reflexively, we hear, it’s a “trade-off”: shrink the carbon footprint, grow the land use footprint.
This article rejects the trade-off reflex as counterproductive for both causes – it presents an often false choice that obscures legitimate land use concerns and slows renewable development. Instead, our focus should be on deliberately crafting law that avoids needless compromise wherever we can. This perspective demands a far greater integration of energy policy and land use law. To date and across the board, regulatory apparatus for siting is almost exclusively fixated on site-specific land use. Although this remains important, it reflects a worrisome myopia given the land impacts at stake. Accordingly, I argue, cumulative land impacts should be a central consideration in the development and implementation of energy policy.