Thursday, January 27, 2011
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
Thursday, January 20, 2011
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.
Friday, January 14, 2011
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.
Monday, December 6, 2010
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.
Tuesday, August 24, 2010
In the land use community the NIMBY concept--"not in my back yard"--is a nearly omnipresent factor in development issues, comprehensive planning, regionalism, and other law and policy issues. I'd even say that NIMBY might be the land-use concept that has been the most widely established in popular culture. For a twist on the concept, Foreign Policy magazine has an article by Sylvie Stein called The YIMBYs: Five places saying "yes, in my backyard" to the nasty stuff that no one else wants.
The FP article is about national policies (rather than local land use decisions) to engage in economic activities that are unpopular elsewhere, such as opium growing (Tasmania), nuclear waste (Russia), offshore drilling (Mexico), trash (Ghana), and prisons (Netherlands). But I thought it would still be interesting for us to contemplate the concept of the YIMBY. And it wouldn't be too surprising, especially in a down economy, if the YIMBY factor started to emerge in local politics. It could be strictly for economics/jobs/tax base, or perhaps even as a sort of upside-down Tiebout model where localities compete for the economic benefits of activities traditionally shunned by NIMBYs and residents follow. Have any of you seen something that could be described as a local YIMBY?
Friday, August 6, 2010
Lee Anne Fennell (Chicago) and Julie Roin (Chicago) have posted Controlling Residential Stakes, University of Chicago Law Review, Vol. 77, p. 143 (2010). The abstract:
As you might expect, this looks like a very interesting and important paper.
August 6, 2010 in Finance, Housing, Landlord-Tenant, Local Government, Mortgage Crisis, Mortgages, NIMBY, Property Theory, Real Estate Transactions, Scholarship, State Government | Permalink | Comments (0) | TrackBack (0)
Friday, April 23, 2010
Land use appears to resist easy generalizations. We are often told, for example, that although land use is a formal power of the state, it is a matter of inherently "local" concern, involving fine-grained determinations of how proposed land uses will affect the character of a particular locale. Perhaps for this reason, states universally delegate the land use power to local governments. It is also said that every parcel of land is unique. Thus, as I teach my Property students, courts tend to prefer specific performance as a remedy for breach of real estate contracts, although specific performance is generally disfavored as a remedy for breach of other contracts. Likewise, most states have declined to pass the Uniform Land Transactions Act, perhaps out of deference to the notion that all land is unique. Given the apparent place-specific nature of land use, it is not surprising that many scholars tend to write about their own place -- so Jamie frequently writes about land use conflicts in Georgia, Matt about Houston, and my last several posts, here, here and here, have been mostly about southern California.
When I present my research on southern California's growth politics, I am often faced with a question or comment the gist of which is: "I'm from [Place X.] Why should I care what happens in southern California?" If, as the previous paragraph suggests, generalizations about land use are extremely difficult, how can we even answer this question? I typically answer it by noting that 1) southern California has long been a template for land use trends (and other political and cultural trends) throughout the nation and, 2) it is a fascinating case study in its own right. But both answers have proven unsatisfying. "Southern California as a template" works to an extent, but I quickly find that there are aspects of southern California's urban development that are so idiosyncratic as to greatly limit the usefulness of cross-jurisdictional comparisons. In other words, I run right smack into the problem I identified at the start, that every land use issue is unique and resistant to generalizations. "Southern California as a fascinating case study" solves that problem, but then brings back the "Why should I care?" question.
A palliative, if not a solution, to this problem arrived in the form of a passage from The Deliberative Practitioner, a book by John Forester, a professor of Urban Planning at Cornell. Forester recounts a conversation with a colleague in which the colleague expressed concern about presenting his research on urban planning in Cleveland because he worried that his work would be seen as "too Cleveland," not sufficiently national in scope. Forester's response: "There are no controlled experiments" in land use planning. Every city, every land use dispute, every political environment is unique, and efforts to generalize from one experience are doomed to fail. Thus, Forester argues, we should focus on the particular, on the "stories" planners tell of their own domestic milieus, rather than impressing those stories into the service of some grand scheme.
Forester's insight certainly made me feel better about the "who cares?" question, but didn't exactly answer it. If it is impossible to generalize from the particular, does that mean land use scholarship has value only within whatever local environment it studies? Can we draw no useful general principles from particular case studies?
Perhaps we need to add a bit of the lawyer's skill set to the planner's. After all, we common-law lawyers are trained in the art of distilling general principles from specific cases, of making comparisons between cases by highlighting important factual similarities, as well as distinguishing cases by identifying significant factual differences. Maybe when writing case studies of land use issues, it's a simple matter of making sure to separate those aspects that we think are generalizable from those that are unique to the specific circumstances of the case. Furthermore, it may well be that what makes a particular situation unique is also precisely what makes it an interesting object of study. To apply these principles to my case: I try to articulate that southern California's growth politics are typical of the polarization between developers and NIMBYs that we see in other growth conflicts throughout the nation, but that its politics are also unique because of the historical role of land development in the region's economy, the strong sense of neighborhood identity, and the willingness to resort to the initiative process to resolve issues of public policy. But I also make the case that southern California's uniqueness makes it a particuarly useful case study, because the animosity between developers and NIMBYs there is so acute that we can see it suffusing local politics (especially in public relations campaigns over slow-growth initiatives), where such animosity would perhaps remain latent elsewhere.
This is all well and good, but still leaves some lingering questions. Why must scholarship be "useful" anyway, rather than merely interesting or informative? Do we really need to justify our use of case studies by explaining their broader relevance? Is it sufficient to contribute something of value to the world's store of knowledge?
Wednesday, April 14, 2010
You wouldn't know it from watching TV over the last year, but the Jersey Shore isn't just about Snookie and "The Situation" and their boozy boardwalk-and-nightclub lifestyle as displayed on the appalling MTV reality show. Long Beach Island is an 18-mile barrier island that's mostly low-density residental development. (I even lived on LBI for a short time growing up, and I turned out mostly OK). The focus there is on the beach, and like many places at the water's edge, there is a land use controversy over property rights and the eroding coastline:
LONG BEACH TOWNSHIP, N.J. - The line in the sand is drawn in this New Jersey shore community, where township officials say they'll use "peer pressure" to pit neighbor against neighbor in an effort to persuade 230 oceanfront property owners to let a beach restoration project proceed.
The holdouts are refusing to sign on because they don't want their views of the ocean blocked, and because they fear the government might build a boardwalk or toilets next to their homes. So the township says it hopes neighbors will coax, shame or force holdouts to sign, and is even encouraging them to picket outside the homes of those who won't give in.
"Long Beach Township is talking about anarchy here," said Kenneth Porro, an attorney for the holdouts.
We're all familiar with land use contests over beachfront property, from Lucas to Stop the Beach Renourishment (remember, hypothetical hot dog stands and port-a-potties were much discussed in oral argument last December at the US Supreme Court!) and other cases. But the more typical framework pits the individual landowners against the power of the state. Here, according to the AP story, the government is intentionally pitting neighbor against neighbor.
"We should all be in this together," [one landowner] said. "I've spoken to some very reasonable people who feel the government is taking away their property rights. Nothing could be further from the truth. It's just an easement to put more sand there."
Well, we'll have to see the terms of the proposed easement, but those recalcitrant neighbors are generally correct--when you give someone an easement, you have certainly given away some of your property rights. And many first-year property students can tell you that in New Jersey, the public has a right of access over the "dry sand" though application of the public trust doctrine (remember Matthews v. Bay Head Improvement Ass'n?). The question is whether you need to do that not just for the collective good but to save your house from falling into the sea. Of course there is one other solution not yet on the table:
Long Beach Township officials say eminent domain and its potential costs are a last resort.
Suffice it to say that beachfront property within 100 miles of both NYC and Philadelphia isn't cheap, even if you do have to share the Parkway with Snookie and the gang. So condemning an easement through eminent domain might prove well beyond the township's resources. The holdouts may well be either unreasonable or even acting against their own self-interest. But I do think that the officials should proceed with caution on the campaign to encourage people to call, picket, and otherwise shame their holdout neighbors. We all know how personal and emotional property can be, and how land use controversies can do lasting damage to the social fabric of a community. Intentionally pitting neighbor against neighbor over land can have significant long-term secondary effects.
Tuesday, April 6, 2010
In my previous posts, here and here, I discussed the nature of local growth politics in southern California and elsewhere. The central dynamic of local growth politics nationwide is the conflict between developers and homeowners about whether, where, and what form new development should take. This dynamic presupposes that growth is something perpetual and that the critical issue is how to "manage" growth in the same way we would use dams and levees to manage a raging river. The history of Los Angeles and other sunbelt cities certainly gives us much reason to believe that growth is indeed inexorable unless some force of nature (such as extremely arid or mountainous terrain), some accident of history (such as the huge landholdings of the Irvine company), or some political movement (such as the environmental and slow-growth movements of the 1970s and 80s), applies the brakes. And according to the "growth machine" school, even these latter forces can only re-direct or temporarily slow growth.
The events of the last few years, however, have cast doubt on whether growth is in fact perpetual and inexorable, as we are now seeing ghost-town residential subdivisions appearing on the fringes of many once booming cities and established neighborhoods becoming gap-tooted with boarded up, foreclosed homes. It was no force of nature, political movement, or accident of history that caused this downturn, however, but rather the very idea that growth was going to continue perpetually. As property values were increasing up to 30% a year, interest rates were low and mortgages were easy to get even for the worst credit risks, real estate began to be seen as a fool-proof and inflation-proof investment, with no thought that there would eventually be a market correction. Unbounded optimism about growth drove real estate values higher until the now-infamous "bubble" burst. Today we look back on this bygone era as some sort of extended Ponzi scheme, and those who peddled the benefits of growth as glorified scam-artists. Many are calling for more stringent regulation of the mortgage-backed securities market, prosecution of predatory lenders, or the deconstruction of the long-cherished ideal of homeownership.
As part of the postmortem on the real estate crisis, we should question what the future of growth politics holds. Will NIMBY homeowners become more favorably disposed to development as growth-driven revenue slows to a trickle? With property values collapsing, will homeowners begin to challenge the suite of public policies (highway subsidies, mortgage interest deductions, Euclidean zoning, etc.) that have long reified the idea of homeownership? Will developers see the need to build high-density transit-oriented development rather than undertaking speculative homebuilding in the exurbs? Will they work with community groups to avoid costly delays as their profit margins get thinner?
We can only speculate as to the answer to these questions, but my research leads to the preliminary conclusion that no, the dynamics of growth politics have not substantially changed. To the contrary, anecdotal evidence suggests that the real estate slowdown may deepen the existing animosity between developers and homeowners. On one hand, the real estate downturn has resulted in increased cynicism about the traditionally pro-growth policies of local governments. In Florida, a grassroots movement called “Hometown Democracy” is pushing a ballot measure for November 2010 that would require voter referenda on all amendments to a general plan. In its campaign literature, Hometown Democracy argues that land use control needs to be taken out of the hands of local officials, whose habit of “rubberstamping speculative plan changes” caused Florida’s “destructive boom-bust cycle.” On the other hand, influential students of urban development like the New Urbanist scholar Andres Duany have pinned the blame for the real estate crisis squarely on NIMBY homeowners, who supposedly perpetuated sprawl to safeguard their own lifestyle. In short, the anecdotal evidence indicates that the polarized discourse of growth politics is unlikely to subside any time soon.
I invite you to share your own thoughts about how, if at all, the real estate crisis may alter the dynamics of local growth politics or other aspects of land use law or policy.
Friday, March 26, 2010
In my previous post, I briefly sketched the thesis of my recent paper on local growth politics. Here, I want to provide some important background for the project. Those of us who study land use and local government tend to believe that local politics are dominated by homeowners, who disproportionately participate in local politics, either by vote or otherwise (such as appearing at a hearing to oppose a rezoning request), and whose participation is motivated solely by their own self-interest as homeowners. That is, homeowners will advocate whatever local policies will boost property values, lower property taxation, ensure quality schools for their children, and protect neighborhood quality of life. Usually, this means that homeowners support growth controls, exclusionary zoning policies that enable communities to screen for wealth, and opposition to almost any new development. The thesis that "homevoters" control local government was most recently articulated in William Fischel's influential book, The Homevoter Hypothesis, but it is also amply supported by other important scholarship and caselaw.
As Fischel points out in his book, the homevoter hypothesis really only works in relatively small suburban communities where homeowners can be assured of dominance. It works less well in large, more diverse cities. But Fischel assures us that this fact does not diminish the importance of his thesis because, after all, only 25% of the nation's population live in cities larger than 100,000 residents. We are, in other words, a suburban nation full of homevoters. Again, land use caselaw seems to support Fischel here, as so many of the important land use cases deal with small suburban communities attempting to use their zoning powers to maintain their suburban character. Scholarship on land use and local government, likewise, frequently bemoans the exclusionary practices of small suburbs and the increasing fragmentation of metropolitan regions brought on by the proliferation of such small suburbs.
Having been steeped in this literature, I could not have been more surprised when I started reading a book by Robert Lang and Jennifer LeFurgy entitled Boomburbs: The Rise of America's Accidental Cities (2007). According to the authors, Fischel's depiction of small suburban communities dominated by homevoters completely ignores what was (at the time) the fastest-growing, highly populated, and most politically influential region of the country, the Sunbelt. Most communities in this region are neither small suburbs nor conventional big cities but "boomburbs," large, incorporated cities of over 100,000 that are "suburban" in density and attitude but "urban" in size and diversity (ethnic, architectural, and otherwise). The authors argue that these boomburbs are far too large and diverse for homevoters to dominate; instead, boomburb politics are driven by the "growth machine," a matrix of interests that profits from development, including politicians, developers, construction companies, unions and the media. It is not only size and diversity that weaken the influence of the homevoter; boomburbs virtually all use at-large voting systems that tend to dilute the influence of neighborhood homeowners' groups and maximize the influence of deep-pocketed developers.
Lang and LeFurgy's book was a revelation, but something about their argument struck me as far too simplistic. A significant plurality of the boomburbs the author identify are right here in southern California. Indeed, southern California has often been considered an archetype of the "growth machine" thesis. However, southern California has also been labeled the birthplace of the NIMBYs ("Not in My Backyard,") a somewhat more pejorative name for Fischel's homevoters, and writers like Mike Davis have chronicled the bitter growth wars southern California has endured over the past several decades as developers have done battle with affluent homeowners. It occurred to me that Lang and LeFurgy were ignoring something crucial: In the sunbelt, and in southern California specifically, "homevoters" who are dissatisfied with the "growth machine" and the at-large system can use the initiative process to put the brakes on growth. In fact, homeowners in southern California have passed scores of slow-growth initiatives after the passage of the epochal (or apocalyptic) Proposition 13, which itself was partially the result of strong anti-growth sentiment. So there seems to be an uneasy equilibrium between development interests and homevoters in places like southern California, brought about, at least in part, by the co-existence of at-large voting and the initiative process. Making matters even more interesting, I discovered that both at-large voting and the initiative process were enacted as part of the Progressive movement's effort to reform local politics. This signaled that despite the opposition between pro-growth and anti-growth interests built into the political structures of boomburbs, there might be some underlying continuity as well. Indeed, that continuity became my thesis, as you can see from my previous post. You can also download the paper here.
Friday, March 19, 2010
Many thanks to Matt and the rest of the editors at the Land Use Prof Blog for inviting me to "guest blog" here about my paper on local growth politics. You can find the abstract and a link to the paper here or here. Let me start out by saying that the folks here at the Land Use Prof Blog have been doing a great job. The site is continuously updated with important and interesting developments in land use law. For me, the site is a must-read every day (especially now that I'm posting!)
In this post, I'll just say a few words about the paper's thesis, then outline where I hope to go in the next few posts. Evidence abounds that local politics are riven by conflict between developers, who push municipalities to pursue growth, and homeowners' groups, aka NIMBYs, who resist growth in or near their neighborhoods. There is substantial disagreement, however, about who "really" runs things in local politics, with developers arguing that they are unable to accomplish anything over the incessant objections of pampered homeowners, and neighborhood groups complaining that their concerns are totally ignored by developer-friendly bureaucrats. The conflict between developers and homeowners -- and confusion about who has the upper hand between them -- is especially acute in regions like southern California, which serves as a case study in my paper. I argue that politics in southern California have been structured in a way that heightens, rather than alleviates, the inherent tension between developers and homeowners. On one hand, most southern California cities use at-large voting systems, which maximize the influence of developers and dilute the influence of neighborhood groups. On the other hand, all California cities retain the right of local initiative, which slow-growth groups have used with increasing effectiveness in recent decades to counteract the pro-growth tendencies of the at-large system.
The juxtaposition of at-large voting and the local initiative thus enhances conflict between developer and homeowners. However, my research reveals that beneath this conflict there is a fundamental continuity between at-large voting and the local initiative (both of which, incidentally, were originally introduced into local politics during the Progressive age as complementary facets of the Progressive movement's efforts to reform local politics.) The structuring of local politics in southern California fosters an artificial dichotomy between pro-growth and anti-growth positions that subverts the possibility of compromise, truncates the municipal political agenda to a narrow conflict between competing middle class elites about whether to privilege the use or exchange value of property, and suppresses a wide range of views about growth and other issues, thus effectively silencing large portions of the metropolitan population whose views are inadequately captured by the pro-growth/no-growth binary. I further argue that the reason courts have rejected most challenges to this distorted political system is because they have placed far too much faith in the vigorous application of judicial review to compensate for the flaws in the political process. I conclude that a superior approach would be for courts to focus on correcting these process defects so as to enable a more robust conversation about growth and other local political issues
In future posts, I plan to address the impetus of the project, its contribution to existing scholarship, the impact of the recent real estate crisis on my thesis, southern California's suitability as a case study of national trends in growth politics, and the strengths and weaknesses of my proposed reforms.
Saturday, January 30, 2010
Earlier today Matt Festa posted about Obama's funding for high speed trains. Wired Magazine also has a great spread this month on high speed rail coming to the US. The writers are breathless about the technology, of course, but the article also covers some very interesting land use aspects of the scheme. Catch the sidebars about how NIMBYism threatens part of the route of the California train, and how the train will reduce travel time from exurbs like Merced to population centers like Sacramento, making those exurbs a more viable housing option for big-city workers. There's also an analysis of how high speed rail, while expensive, will ultimately be cheaper than maintaining our current car culture. The article has maps of the proposed routes and a history of fast trains. I'm not normally much of a train buff, but I found the whole piece really fascinating.
Jamie Baker Roskie