Land Use Prof Blog

Edwards on the Paradoxes of Restitution

Mark Edwards (William Mitchell) has posted The Paradoxes of Restitution, forthcoming in the West Virginia Law Review.  The abstract:

Restitution following mass dispossession is often considered both ideal and impossible. Why? This article identifies two previously unnamed paradoxes that undermine the possibility of restitution.

First, both dispossession and restitution depend on the social construction of rights-worthiness. Over time, people once considered unworthy of property rights ‘become’ worthy of them. However, time also corrodes the practicality and moral weight of restitution claims. By the time the dispossessed ‘become’ worthy of property rights, restitution claims are no longer practically or morally viable. This is the time-unworthiness paradox.

Second, restitution claims are undermined by the concept of collective responsibility. People are sometimes dispossessed because collective responsibility is unjustly imposed on them for wrongs committed by a few members of a group. But restitution may require the dispossession of innocent current occupiers of land – thus imposing a type of collective responsibility on them. Therefore, restitution can be seen as committing the very wrong it purports to right. This is the collective responsibility paradox.

Both paradoxes can be overcome, but only if we recognize the rights-worthiness of others before time fatally corrodes the viability of restitution. We must also draw a careful distinction between the imposition of collective rights-unworthiness, which results in the mass dispossession of others, and the voluntary acceptance of collective responsibility, which results in the restitution of others.

After developing these ideas, the article examines them in the context of a particularly difficult and intractable case of dispossession and restitution. It draws upon interviews with restitution claimants whose stories reveal the paradoxes of restitution. 

Matt Festa

Stern on State Legislative Checks and Judicial Takings

Here's another recently-posted paper from Stephanie Stern (Chicago-Kent): Protecting Property Through Politics: State Legislative Checks and Judicial Takings, forthcoming in the Minnesota Law Review.  The abstract:

In the 2010 Supreme Court case Stop the Beach Renourishment v. Florida Department of Environmental Protection, a plurality of the Court launched judicial takings in political and scholarly debate and laid the groundwork for expanding the Fifth Amendment to encompass court decisions. This Article explores a neglected institution in the debate over judicial takings — state legislatures. In the comparatively rare instances when state courts overreach, state legislatures can revise state court decisions and restore private property rights. Through case studies of state legislative checks of judicial activism, I examine the comparative institutional advantages, and the potential gaps, of situating primary responsibility for state court revision in state legislatures. In view of takings federalism and the costs of judicial takings, I contend that the existing balance of state legislative checks and state court restraint works well enough to police against state court property activism.

Matt Festa

Davidson on New Formalism in the Aftermath of the Housing Crisis

Nestor Davidson (Fordham) has posted New Formalism in the Aftermath of the Housing Crisis, Boston University Law Review, Vol. 93, No. 389, 2013.  The abstract:

The housing crisis has left in its wake an ongoing legal crisis. After housing markets began to collapse across the country in 2007, foreclosures and housing-related bankruptcies surged significantly and have barely begun to abate more than six years later. As the legal system has confronted this aftermath, courts have increasingly accepted claims by borrowers that lenders and other entities involved in securitizing mortgages failed to follow requirements related to perfecting and transferring their security interests. These cases – which focus variously on issues such as standing, real party in interest, chains of assignment, the negotiability of mortgage notes, and the like – signal renewed formality in nearly every aspect of the resolution of mortgage distress. This new formalism in the aftermath of the housing crisis represents something of an ironic turn in the jurisprudence. From the earliest history of the mortgage, lenders have had a tendency to invoke the clear, sharp edges of law, while borrowers in distress have often resorted to equity for forbearance. The post-crisis caselaw thus upends the historical valence of lender-side formalism and borrower-side flexibility. 

Building on this insight, this Article makes a normative and a theoretical claim. Normatively, while scholars have largely embraced the new formalism for the accountability it augurs, this consensus ignores the trend’s potential negative consequences. Lenders have greater resources than consumers to manage the technical aspects of mortgage distress litigation over the long run, and focusing on formal requirements may distract from responding to deeper substantive and structural questions that still remain largely unaddressed more than a half decade into the crisis. Equally telling, from a theoretical perspective, the new formalism sheds light on the perennial tension between law’s supposed certainty and equity’s flexibility. The emerging jurisprudence underscores the contingency of property and thus reinforces – again, ironically – pluralist conceptions of property even in the crucible of hard-edged formalism.

Matt Festa

Widener on Citizen 'Visioning' in Town Comprehensive Planning

Michael N. Widener (Phoenix) has posted Moderating Citizen 'Visioning' in Town Comprehensive Planning: Deliberative Dialog Processes, forthcoming in the Wayne Law Review.  The abstract:

This article describes opportunities in Comprehensive Plan (aka General Plan or Master Plan) initial adoption or subsequent amendment processes where stakeholders provide inputs on behalf of a diverse citizens community. The moderation process described here involves the City of Scottsdale, Arizona, currently engaged in developing its 2014 Plan which seeks to extend the city’s planning vision through 2045. Part II of this article provides a brief primer of a General Plan’s role in municipal police power exercise. Parts III and IV describe the history of the Scottsdale experience in amending its General Plan with citizen aid and rebellion. Part V delivers some observations about a citizen input method into planning matters that is subject to popular critique. Part VI summarizes the purpose of citizen inputs into a comprehensive plan, and how professional moderation of the stakeholders' inputs may appropriately channel public contributions to a municipality's land use vision without distortion or corruption of the process.

Matt Festa

Ngov on Selling Land and Religion

Eang L. Ngov (Barry) has posted Selling Land and Religion, Kansas Law Review, Vol. 61, No. 1, 2012 .  The abstract:

Thousands of religious monuments have been donated to cities and towns. Under Pleasant Grove City v. Summum, local, state, and federal governments now have greater freedom to accept religious monuments, symbols, and objects donated to them for permanent display in public spaces without violating the Free Speech Clause. Now that governments may embrace religious monuments and symbols as their own speech, the obvious question arises whether governments violate the Establishment Clause by permanently displaying a religiously significant object. 

Fearing an Establishment Clause violation, some governmental bodies have privatized religious objects and the land beneath them by selling or transferring the objects and land to private parties. Some transactions have included restrictive covenants that require the buyer to maintain the religious object or reversionary clauses that allow the government to reclaim the land. Others have sold or transferred the religious object without soliciting bids from other buyers. 

This article provides an in-depth analysis of five cases in which governmental bodies resorted to privatizing public land to avoid violating the Establishment Clause. Drawing from Establishment Clause jurisprudence involving religious displays, this article utilizes the Lemon and Endorsement tests as analytical tools for resolving the constitutionality of land dispositions involving religious displays.

This article considers the purported secular government purposes for selling or transferring land to private parties. The government has sought to justify these land dispositions as a means to provide memorials that honor veterans or promote civic-mindedness, to preserve the religious object in order to avoid showing disrespect to religion, and to avoid violating the Establishment Clause. I argue that these purported government purposes are secondary to a religious interest because there are other alternatives to achieve the government’s purposes.

I also examine the effects of these land dispositions on the reasonable observer. The Herculean efforts exerted by the government to save the religious monument send a message of government endorsement of religion. Restrictive covenants that require the private owner to maintain the religious monument and reversionary clauses that allow the government to reclaim the monument and underlying land perpetuate state action and excessively entangle the government.

I conclude that the best measure to avoid the Establishment Clause is to simply remove the religious object. Removing the religious object will protect the dilution of sacred religious symbols through their secularization and will provide greater inclusiveness in public spaces for religious minorities and nonbelievers.

An original and helpful analysis of an issue that I think has been relatively neglected over the last couple of years, particularly since the Summum case came out-- the interplay between private land use rights and the religion clauses always tends to highlight some of the salient fault lines in many communities.

Matt Festa

Missouri Law Conference on Promoting Sustainable Energy through Tax Policy

The University of Missouri School of Law is hosting a Symposium on February 22, 2013, called Promoting Sustainable Energy through Tax Policy.  Sponsored by the Journal of Environmental and Sustainability Law and the Missouri Tax Law Society, the event will be introduced by Mizzou profs Michelle Arnopol Cecil and our own guest blogger Troy Rule, and features panels with Alexandra Klass (Minnesota), Steve Gaw (The Wind Coalition), Felix Mormann (Miami), Roberta Mann (Oregon), Robert Peroni (Texas), with a keynote by David Weisbach (Chicago).  Here's the info and link:

Renewable energy and sustainable development are valuable means of combatting climate change and of reducing the nation’s reliance on foreign energy sources. Recognizing the importance of sustainable energy, state and federal policymakers have employed aggressive tax incentive programs to stimulate unprecedented growth in wind energy, solar energy, biomass, green building, and related industries in recent years. Unfortunately, shortfalls in many state budgets and growing concerns about the national debt are now creating pressure for governments to extinguish these tax programs — a move that could bring progress in the nation’s fledgling sustainable energy sector to a grinding halt.

This year’s Journal of Environmental and Sustainability Law symposium is being sponsored jointly with the University of Missouri Tax Law Society. The symposium explores questions about the long-term role of tax policy as a tool for promoting renewable energy and sustainability in the United States.

Cost and Registration

The symposium is free and open to the public.
Registration is suggested by Friday, February 15.

To register, please contact:
Journal of Environmental and Sustainability Law
University of Missouri School of Law
12E Hulston Hall
Columbia, MO 65211
umclawjesl@missouri.edu

More Information on 2013 JESL Symposium

Matt Festa

Dispute over Yard Sign Destroys Fairfax HOA

A Virginia Homeowner's Assocation appears to have gone bankrupt due to litigation over its attempts to enforce its rules against a four-inch violation by a couple's Obama yard sign during the 2008 election.  After four years, skyrocketing assessments, and hundreds of thousands of dollars in legal fees, the bankrupt HOA is considering selling off the central common area.  From the Washington Post, Feud over sign could force Fairfax's Olde Belhaven to sell square.

Such HOA disputes are as suburban as cul-de-sacs and two-car garages, but few metastasize into legal battles that spend years in the courts, break legal ground and bankrupt the HOA.

Most damaging of all, though, was a move probably unprecedented in area neighborhood feuds: The common area that is the literal and metaphoric heart of Olde Belhaven was put up for sale last year to settle its debts. It appeared that “the square,” as some called the neighborhood, would no longer have a square.

“It destroyed our community,” Maria Farran said.

The litigation ranged from a challenge to the HOA's power to fine the owners, and a retaliation claim.  It made some new law:

In 2010, a county judge sided with the Farrans on the fining issue. The case set a Virginia precedent that HOAs cannot claim powers, such as fining, that are not specifically laid out in their covenants. 

 You can read the whole article for a great description of the legal issues and the story.  As HOAs trend toward more extensive sets of rules, and as not everyone buys in, you can probably finds examples of similar (if not quite so expensive) conflicts in communities around the country.  And one thing that's common to both public and private regulation: when individual property rights clash with collective restrictions regarding people's homes, passions run high--even (especially?) when the stakes are as low as four inches on a political yard sign.

Thanks to Helen Jenkins for the pointer.

Matt Festa

Tyson on Localism, Annexation, and New Regionalism

Christopher J. Tyson (LSU) has posted Localism and Involuntary Annexation: Reconsidering
Approaches to New Regionalism, published in the Tulane Law Review, Vol. 87 (2012).  The abstract:

"Involuntary" annexation - the ability of cities to expand their territory unilaterally by extending their boundaries - is one of the most controversial devices in land use law. It is under attack in virtually every state where it exists. Involuntary annexation is a direct threat to "localism," the belief in small,
autonomous units of government as the optimum forum for expressing democratic freedom, fostering community, and organizing local government. Localism has been justifiably faulted with spurring metropolitan fragmentation and the attendant challenges it creates for regional governance. This critique is at the center of "New Regionalism," a movement of scholars and policy makers focused on promoting regional governance structures that respect the cultural draw of localism while correcting for its deficiencies. New Regionalism emphasizes bottom-up, voluntary governance structures and dismisses approaches like involuntary annexation as politically infeasible. Both types of approaches face considerable political challenges, but there are arguably more examples of well-functioning involuntary annexation regimes than there are successful models of New Regionalism. While involuntary annexation has been critical to the success of metropolitan regions in Texas and North Carolina, many regard it as a violation of the liberty and freedom that comes with property rights. Property rights are rooted in instinctive and culturally reinforced notions of personal identity and the inviolability of ownership. Localism extends this logic to municipal identity. The hostility toward involuntary annexation, therefore, can be understood as a response to the taking of a person's perceived right to express individual identity, group identity, status, and ownership through municipal identity. This notion of municipal identity as property threatens to undermine both existing involuntary annexation regimes as well as future New Regionalist proposals. While New Regionalism has well-reasoned justifications for focusing on more-voluntary, bottom-up governance structures, involuntary annexation remains a potent tool for facilitating regional governance and is worthy of defense and preservation.

Matt Festa

Election Day and Land Use: The Future of Houston Transit

It's Election Day, and we all know what's the most important thing on the ballot: local land use issues.  Through the initiative and referendum process, as well as in races for local government office, land use ballot issues often have an importance to our communities far beyond the relative amount of publicity they receive . . . especially in a presidential election year. 

In Houston, voters are going to the polls today to answer a number of local government ballot questions, including amendments to the City Charter, a number of bond issues for parks and schools, and perhaps most importantly, a referendum that is colloquially referred to as "METRO."

In the late 1970s, Houston joined about 15 other local government bodies (including the County, the school district, and a number of smaller suburban municipalities) to create the METRO transit authority.  METRO was responsible for regional buses and transit, and in the early 2000s it built the first Houston light rail line.  METRO has ambitious plans to expand the light rail into a regional transit system, but it has always been controversial.  METRO is supposed to be funded by a sales tax, but since its inception, the City has always diverted one-quarter of those revenues toward road improvements.  So the ballot question is whether we should *continue* diverting that portion of the transit tax for another decade.

We discussed it in land use class yesterday.  Here are some competing op-eds: METRO Board member Dwight Jefferson says that "Yes" on the METRO referendum will expand bus system, continue road building and reduce debt.  In opposition, Houston Tomorrow president David Crossley says More light rail for Houston? If you’re pro-transit, vote "No" on METRO ballot issue.  Mayor Annise Parker (D) and most politicians are in favor of the measure.  As you can see in Crossley's op-ed and at the opposition website http://supporthoustontransit.org/2012/, the smart growth/pro-transit crowd is passionately opposed.

So--depending on who you ask--the future of transit in the nation's fourth-largest city is on the line; or, its capability to deal with critical mobility issues. 

The unfortunate thing is that very few people even understand the ballot language, let alone the stakes.  Here is the language of the ballot question that is referred to as the "METRO ballot" issue:

THE CONTINUED DEDICATION OF UP TO 25% OF METRO'S SALES AND USE TAX REVENUES FOR STREET IMPROVEMENTS AND RELATED PROJECTS FOR THE PERIOD OCTOBER 1, 2014 THROUGH DECEMBER 31, 2025 AS AUTHORIZED BY LAW AND WITH NO INCREASE IN THE CURRENT RATE OF METRO'S SALES AND USE TAX.
□ FOR
□ AGAINST

Last year I wrote a screed complaining about ballot language for state constitutional referenda.  Ken Stahl penned a typically thoughtful response with a partial defense of the initiative process for land use issues (and of course he has the leading recent scholarly piece on Ballot Box Zoning).  But this METRO referendum language seems to me to be a perfect example of how screwy the process is.  Basically, if you are in favor of more transit generally and light rail expansion in particular, you are supposed to vote "NO" on the ballot referendum that everyone is referring to as "METRO."  If you want that tax revenue to contiue to be diverted away from transit and toward roads, then you are supposed to vote "Yes on METRO."

We discussed this in Land Use class yesterday and it confirmed to me how confusing this is.  My students are way above the average voter in land-use sophistication, but they still had a hard time figuring this out.  I suspect that most voters, motivated into the booth primarily by their choice for the presidential election, will only have the vaguest idea that if you are pro-transit you are supposed to vote "no" on "METRO."  That's counterintuitive, and I'm afraid that whatever the result is, it won't be a very good democratic indicator.  And that's just for the people who vote on it; the proposal is one of the last items on the ginormous sample ballot that I photographed above.  Many people will vote "straight party ticket" (that's an option in Texas) and walk out of the booth, without even seeing the referendum questions.

So we'll have to see how this land use question is resolved by the people, and, after that, what actually happens to the transit system and whether the political predicitons on either side come to fruition.  In the meantime, remember that while the national horse race gets all the attention, there are critically important land use issues being decided in communities across America tonight. 

Matt Festa

UPDATE: "METRO" passed by a large margin: 79-21.  The presidential vote in Houston was a statistical tie.  All of the other ballot referenda (mostly to approve debt for capital projects) passed as well.  I honestly have no idea whether the METRO vote represents anything at all with respect to public opinion on the future of transit.

Ramseyer on Land Reform in Occupied Japan

J. Mark Ramseyer (Harvard) has posted The Fable of Land Reform: Expropriation and Redistribution in Occupied Japan.  The abstract:

Land reform will not just reduce rural poverty, write development officials. It can raise productivity. It can promote civic engagement. Scholars routinely concur. Land reform may not always raise productivity and civic engagement, but it can - and during 1947-50 in occupied Japan it did.

This account of the Japanese land reform program is a fable, a story officials and scholars tell because they wish it were true. It is not. The program did not hasten productivity growth. Instead, it probably retarded it. The areas with the most land transferred under the program did not experience the fastest rates of productivity growth. They experienced the slowest.

Land reform reduced agricultural growth rates by interfering with the allocation of credit. A tenancy contract is a lease, and a lease is a capital market transaction. By precluding the use of leases, land reform effectively increased the cost of capital, reduced the amount of credit, and reduced the accuracy with which investors could target that credit. Banks provide an obvious alternative source of credit -- and post-land-reform, the areas with the fastest growth rates were those areas with the best access to those banks.

The fable of land reform rests on a fictitious account of pre-war Japan. Scholars assume tenancy rates reflected poverty levels. They did not. Instead, they reflected levels of social capital. Leases were not most common in the poorest communities. Given their character as capital market transactions, they were most common in those communities where investors could turn to social networks to induce farmers to keep their word.

Matt Festa

Flammable Cities

Greg Bankoff (History--University of Hull), Ewe Lubken (Rachel Carson Center, Munich), and Jordan Sand (History--Georgetown) have published Flammable Cities: Urban Conflagration and the Making of the Modern World (U. Wisconsin Press, 2012), an edited volume of essays on the role of fires in the history of urban development.  The blurb:

In most cities today, fire has been reduced to a sporadic and isolated threat. But throughout history the constant risk of fire has left a deep and lasting imprint on almost every dimension of urban society. This volume, the first truly global study of urban conflagration, shows how fire has shaped cities throughout the modern world, from Europe to the imperial colonies, major trade entrepôts, and non-European capitals, right up to such present-day megacities as Lagos and Jakarta. Urban fire may hinder commerce or even spur it; it may break down or reinforce barriers of race, class, and ethnicity; it may serve as a pretext for state violence or provide an opportunity for displays of state benevolence. As this volume demonstrates, the many and varied attempts to master, marginalize, or manipulate fire can turn a natural and human hazard into a highly useful social and political tool.

Over at The Atlantic Cities, Emily Badger has a review called The Uncomfortable Politics Behind the History of Urban Fires.  She notes how fires played a role in the contested theories and policies behind land use, property, and government:

In the United States, we’ve come to think of forest fires this way, as we spar over the rights of wealthy people to build their vacation homes in flammable places like Malibu. But the history of urban fires is similarly political, in large part because it reflects the story of how governments came to view and value property.

"Fire is, of course, this threat to human life, but conspicuously it’s about the destruction of property," Sand says. "Is it the obligation of the city fathers or [government] to prevent peoples' private property from being destroyed?"

Badger's review and the book have a lot of interesting observations.

Matt Festa

Heintzelman, Walsh, & Grzsekowiak on Open Space Referenda

Martin D. Heintzelman (Clarkson--Business), Patrick J. Walsh, and Dustin J. Grzeskowiak (Clarkson--Business) have posted Explaining the Appearance and Success of Open Space Referenda.  The abstract:

To guard against urban sprawl, many communities in the United States have begun enacting policies to preserve open space, often through local voter referenda. New Jersey sponsors such municipal action through the Green Acres Program by providing funding and low interest loans to towns that choose, through a referendum, to increase property taxes and spend the money raised on open space preservation for the purposes of conservation and/or recreation. Understanding which factors contribute to the appearance and success of these measures is important for policy makers and conservation advocates, not only in New Jersey, but across the United States. Although previous literature has examined this issue, this is the first study to account for spatial dependence/spatial autocorrelation and to explore dynamic issues through survival analysis. The traditional two stage model from the literature is extended by incorporating a Bayesian spatial probit for the first stage and a maximum-likelihood spatial error model in the second stage. A Cox – proportional hazard model is used to examine the timing of referenda appearance. Spatial dependence is found in the second stage of the analysis, indicating future studies should account for its influence. There is not strong evidence for spatial dependence or correlation in the first stage. The survival model is found to be a useful complement to the traditional probit analysis of the first stage.

Matt Festa

Penalver on Progressive Lessons from DeSoto

Eduardo M. Penalver (Cornell) has posted The Costs of Regulation or the Consequences of Poverty? Progressive Lessons from De Soto, which is a chapter from the book Hernando de Soto and Property in a Market Economy, (D. Benjamin Barros ed.), Ashgate, 2010.  Penalver's abstract:

Commentators have often characterized Hernando de Soto's advocacy of formalization of title for landless squatters as right-wing. And de Soto seems to understand himself as an advocate of individual property rights and free markets. But his analysis of informality and redistribution has a subtext with potentially progressive implications. Although de Soto sometimes reflexively attributes informality to overregulation, informality can always also be characterized as the consequence of being too poor to afford regulated goods. Indeed, for any particular regulation that puts the regulated good out of reach of the poor, we can either attribute this consequence to the cost of the regulation or to the consequences of a distribution of wealth that makes the regulated good unaffordable to those at the bottom. Thus, if the regulation is a good one, its effect on price, and therefore on informality, may argue in favor of keeping the regulation but redistributing purchasing power to blunt its pernicious impact on informality. What we need is a way of evaluating regulations that goes beyond merely observing their impact on the cost of goods and, indirectly, on the prevalence of informality. Specifically, we need to be able to evaluate four different possibilities: (1) regulation with redistribution to offset the impact of the regulation on the poor; (2) regulation without redistribution with its attendant increase in informality; (3) redistribution without regulation; and (4) no redistribution and no regulation. Choosing among these options is the domain of applied political theory. The choice is a far more complicated and demanding task than merely observing that regulation without redistribution increases informality.

All of the contributions to the 2010 Barros-edited volume on DeSoto are extremely interesting and thought-provoking.  Penalver's essay, just now posted on SSRN, pushes us to consider the property theory beyond the traditional political characterizations of DeSoto's ideas. 

Matt Festa

Can Eminent Domain Solve the Mortgage Crisis?

There has been some discussion over the past couple of months over an innovative proposal to have governments use the eminent domain power to take ownership of underwater mortgages, to decrease the risk of default and then refinance the obligations, all to promote the common good.  Here are some links to give you a sense of the major points of this debate.

The launch of this idea comes from a proposal by Law Professor Robert C. Hockett (Cornell) in his piece It Takes a Village: Municipal Condemnation Proceedings and Public/Private Partnerships for Mortgage Loan Modification, Value Preservation, and Local Economic Recovery.  The abstract:

Respected real estate analysts now forecast that the U.S. is poised to experience a renewed round of home mortgage foreclosures over the coming 6 years. Up to 11 million underwater mortgages will be affected. Neither our families, our neighborhoods, nor our state and national economies can bear a resumption of crisis on this order of magnitude.

I argue that ongoing and self-worsening slump in the primary and secondary mortgage markets is rooted in a host of recursive collective action challenges structurally akin to those that brought on the real estate bubble and bust themselves. Collective action problems of this sort require duly authorized collective agents for their solution. At present, the optimally situated such agents for purposes of mortgage market clearing are municipal governments exercising their traditional eminent domain authority.

I sketch a plan pursuant to which municipalities, in partnership with investors, can condemn underwater mortgage notes, pay mortgagees fair market value for the same, and systematically write down principal. Because in so doing they will be doing what parties themselves would do voluntarily were they not challenged by structural impediments to collective action, municipalities acting on this plan will be rendering all better off. They will also be leading the urgently necessary project of eliminating debt overhang nationwide and thereby at last ending our ongoing debt deflation.

Professor Hockett's idea was then promoted in the media by, among others, Prof. Robert J. Shiller (Yale--Economics & Finance), in the New York Times Piece Reviving Real Estate Requires Collective Action.  As the title indicates, Schiller theorizes the mortgage crisis as in part a collective action problem that can be addressed by Hockett's proposal to use eminent domain to seize underwater mortgages. 

But eminent domain law needn’t be restricted to real estate. It could be applied to mortgages as well. Governments could seize underwater mortgages, paying investors fair market value for them. This is common sense too. The true fair market value for these mortgages is arguably far below their face value, given the likelihood of default, with its attendant costs.

Professor Hockett argues that a government, whether federal, state or local, can start doing just this right now, using large databases of information about mortgage pools and homeowner credit scores. After a market analysis, it seizes the mortgages. Then it can pay them off at fair value, or a little over that, with money from new investors, issuing new mortgages with smaller balances to the homeowners.

Yesterday in The Atlantic Cities, Amanda Erickson published an excellent overview story about the proposal, Can Eminent Domain Solve our Mortgage Woes?.  Of note to us are the comments by the eminent eminent domain expert (that's not a typo) Prof. Thomas Merrill (Columbia). 

It's a clever idea. But is it legal? "It's very unusual," says Thomas W. Merrill, a law professor at Columbia University who specializes in property law. But, he notes, "this doesn't mean it's unconstitutional."

Before the landmark 2005 Kelo vs. New London decision, Merrill says, there's little doubt that the courts have upheld this kind of law. "Before Kelo, courts took a hands-off approach," Merrill says. In the 1984 case Hawaii Housing Authority vs. Midkiff, the Supreme Court ruled that the Hawaiian legislature could take a property controlled by landlords and sell it back to leasees. "Condemning a landlord's interest in property to transfer to a tenant is not too different," Merrill says.

But Kelo changed that. In that case, the Supreme Court ruled that cities could use eminent domain to transfer land from one private owner to another, and that doing so for economic development purposes constitutes a public use. "At this point, I guess you'd have to say all bets are off in terms of what is and isn't eminent domain," Merrill says.

And finally for now, Prof. Richard Epstein is critical of the idea. From More Nonsense on the Home Mortgage Front: Don't Let Municipal Governments Condemn Mortgages at Bargain Rates:

The idea has already been rightly panned by the Wall Street Journal. But the entire proposal needs still further consideration. First off, Hockett and his group insist that there is a huge collective action problem that prevents the rationalization of mortgage matters. And there is. It is called local government regulations that have blocked the foreclosure measures set out above. Handle those and the externalities to which they refer disappear. No longer do we have owners neglecting property or clogging the courts with endless motions.

Again, this post is just to give you some links to look at the arguments.  From my perspective, these are some fascinating arguments that illuminate not only the mortgage crisis but also the general debate over eminent domain. 

Matt Festa

Anaheim Police Shooting and At-Large Elections: Is there a link?

A major news item here in Orange County has been the rash of protests in the county's largest and most well-known city, Anaheim, sparked by a pair of police shootings of two suspected Latino gang members.  Activists and the media have drawn a link between the shootings and Anaheim's system for electing city councilmembers.  In Anaheim, as in most cities in California, all five members of the city council (technically four members plus the mayor, but the mayor is really just a fifth councilmember who gets to hold the gavel at meetings) are elected at-large, meaning the city as a whole is a single electoral district and candidates can reside anywhere in the city.  It has been alleged by the ACLU that the at-large system dilutes Latino voting power because it diminishes the ability of geographically concentrated groups (which often include minority communities) to elect representatives from their own neighborhoods, and places a premium on the ability to gather a huge war-chest, which advantages candidates with support from the more affluent constituencies.  In Anaheim, indeed, there is not a single Latino member of the city council despite Latinos representing more than 50% of the city's population, and four of the five councilmembers live in Anaheim's wealthy, largely white "Anaheim hills" area.  Thus, the argument goes, it is because the city government is out of touch with the concerns of its major constituency that incidents like these police shootings are able to happen.

This story hits home to me because I wrote an article a few years ago that made a very similar argument, although it was more focused on land use: The at-large electoral system deployed in most California cities means that neighborhoods have little voice on land use matters, which tends to favor the interests of the pro-development "growth machine."  I further argued that this system tended to dilute minority voices on land use issues (especially eminent domain, of blessed memory).  In my article, however, I argued that neighborhood interests did not simply fade away but necessarily expressed themselves outside the political system, either in the form of the initiative process or in the form of urban riots.  Indeed, the famous anti-tax initiative Proposition 13 has been referred to (although I could not definitively verify the original quote) as "the Watts riot of the middle class."   In the paper, I called for the jettisonning of the at-large system and the implementation of district or ward systems, which is precisely what the activists in Anaheim are calling for. 

It appears in Anaheim we may be seeing "the Proposition 13 of the disenfranchised."  Stay tuned.

Hat tip to my colleague Ernesto Hernandez-Lopez for some of these links and for alerting me to some of the details of the story.

Ken Stahl

Police Powers, Free Speech, and the Chick-fil-A Land Use Controversy

The Chick-fil-A land use controversy has mostly focused on freedom of speech, but I think there is a larger point about the police-power basis of land use regulation that has been overlooked.  In the wake of the Chick-fil-A CEO's comments on gay marriage, and the subsequent statements of public officials in Chicago and Boston indicating their opposition to building new Chick-fil-A franchises in their jurisdictions, there seems to be a general agreement that it would be illegal to deny building rights on the basis of the CEO's speech.  Ken Stahl and Stephen Miller have offered additional insights on the political, tax, and other potential motivations behind this controversy, with which I completely agree.  In this post, I want to expand on Ken's point about a potential Fourteenth Amendment violation of basing a land use decision on "animus" against the owner, and to peel back the onion a little bit and consider what might be the primary legal basis to a challenge to such a land use denial.

The general agreement seems to focus on the First Amendment free speech issue.  Eugene Volokh seems to have the definitive analysis that, whether or not one agrees with the CEO's opinions, it would be a First Amendment violation to deny a building permit on that basis (h/t Property Prof).  Viewed through the general prism of free speech and the Bill of Rights, this is entirely correct, and is probably sufficient for the public understanding of the issue.  As Prof. Volokh's caselaw indicates, there can be a First Amendment violation in denying a permit based on the property owner's speech.  But I think that's actually a secondary issue when it comes down to hypothetical litigation here.  What's really the primary issue, as I see it, is whether or not such a denial would be a violation of the police power itself.

The Chick-fil-A hypothetical permit denial does not on its face regulate speech: neither the CEO's personal remarks, nor the official speech of the corporation are being suppressed.  While there is a colorable as-applied claim of retaliation through the land use process in this hypo, the way I see it is that the primary cause of action would be that the permit denial was a violation of the statutory zoning/regulatory power itself.  In other words, Chick-fil-A would start by arguing that the city's denial of permission to build is not legitimately related to the purposes for which the state legislature granted the power to regulate.

The power of local governments to engage in planning, zoning, and building regulations comes from the police powers--the state legislature's plenary authority to regulate.  The Standard State Zoning Enabling Act, promulgated by Secretary Hoover's Commerce Department in 1926, starts with the standard description of the police-power font of authority for all modern land use regulation, which is "[f]or the purpose of promoting health, safety, morals, or the general welfare of the community . . . ."  This means that in theory, as long as there is a legitimate reason for regulating on those broad bases, a local government can be empowered to regulate land use in its political discretion.  Therefore there is a "presumption of constitutionality" granted to land use regulations (see Mandelker & Tarlock 1992 for a nuanced analysis of the presumption in judicial review).  Judicial review--again, in theory--has generally centered on whether the regulation itself (whether a use restriction, site requirement, etc.) is legitimately related to one of the police-power purposes.  A classic Euclidean example would be restriction of industrial uses from a residential area, for health and safety purposes.  

While the courts have given broad interpretation to the police power justifications of land use regulations, the outer limit is supposed to be--again, in theory--that the nature of the restriction is itself somehow related to the objective.  What it can't be is an arbitrary and capricious restriction based on considerations outside the police power. It's very similar to the "rational basis" standard of scrutinty that all lawyers learn about in consitutional law.

The reason this is important is because the presumption of constitutionality usually holds, the police powers usually win, and "arbitrary and capricious" challenges to land use decisions are hard to prove and usually lose.  Steve Clowney noted Matt Yglesias' insight that almost any seemingly-legitimate content-neutral reason could give a police-power justification to regulate despte ulterior motives (though I think his example of a Sunday-opening requirement isn't the best one--just about anything involving traffic, for example, would be much easier to justify), and this is obviously a longstanding issue in land use law.  But if I were trying to prove that a negative land use decision was outside the bounds of the police power basis of government regulation, I couldn't ask for a better piece of evidence than a published statement by a City Alderman like this:

"Because of this man's ignorance, I will now be denying Chick-fil-A's permit to open a restaurant in the 1st Ward."

(emphasis added).  In other words, the primary reason for the negative land use decision does not have anything to do with the actual use of the land itself, but instead is based primarily on the government official's opinion about the property owner's opinions about topics extraneous to the land use (again, the decision is not based on any discriminatory practice, or on speech taking place on the site).  This may in fact be a decision that is not rationally related to the police power basis for regulation, and could be struck down for that reason alone.  This is important because while the First Amendment angle that had dominated the discussion of the issue could apply "strict scrutiny" to the decision, this situation could be the much rarer case where a court could find a government decision to be arbitrary and capricous, and therefore to flunk the rational basis test itself.   Which means that this is potentially much more than just a case of an individual right trumping the regulatory power; it means that the city didn't have the power to do it in the first place.

This way of looking at the controversy allows us to consider the larger issue of what are the outer bounds of legitimate land use regulation, in a way that we don't often get to see in the real world.  I'm still no fan of the substance of the CEO's remarks on gay marriage, but as a land use specialist, I'm also very disturbed by what Ken identified as an attitude of "entitlement" to near-absolute discretion over land use decisions by government officials in informal systems such as Chicago's traditional "aldermanic privilege," which is apparently so ingrained that it can lead an elected official to say things like:

"You have the right to say what you want to say, but zoning is not a right."

Well, maybe not, but the latter certainly can't depend on what a government official thinks of the former.  Zoning still has to comport with the rule of law.

Matt Festa

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

Chick-fil-A, Gay Marriage, Constitutional Law, and Land Use

Even the culture wars often end up in a land use controversy.  Over the past few days, public officials in Boston and Chicago made statements that Chick-fil-A restaurants would not be welcome in their jurisdictions because of the anti-gay-marriage opinions expressed by the company's CEO.  According to the Wall Street Journal's Jack Nicas, one Chicago alderman went so far as to state that he would personally deny a permit solely on that basis.  From First Amendment Trumps Critics of Chick-fil-A:

Chicago Alderman Proco Moreno wrote in the Chicago Tribune Thursday, "Because of [Mr. Cathy's] ignorance, I will deny Chick-fil-A a permit to open a restaurant in my ward."

I don't agree with the CEO's statements either, but it's pretty clear that, under the Constitution, his opinions can't legitimately be the basis for granting or denying land use permission.  Cleveland State law prof Alan Weinstein put it best:

Alan Weinstein, a professor of law at Cleveland State University who specializes on the intersection of land-use law and constitutional issues, said he has seen officials try to use zoning laws to block adult stores or religious institutions, but never a commercial enterprise because of political views. He said that beyond the First Amendment, "in the land-use sphere, the government has no legitimate interest" in the political views of an applicant.

That last observation is key.  Most of the commentary on this issue has revolved around the CEO's First Amendment rights.  And it's true that free speech is one of the only areas where the courts will apply strict scrutiny to overturn government land use decisions.  But as Prof. Weinstein notes, this question isn't even really about regulating actual speech on land; it's about the rational basis for land use regulation itself under the police powers. 

From a pragmatic perspective, it's pretty easy to imagine a counterfactual scenario where an unpopular political opinion on the other side of the spectrum could likewise result in negative land use decisions under such a precedent.  It appears that this constitutional reality is setting in, and the public officials are backtracking.  Here's a video interview with the WSJ reporter:

 

I was one of the other "land use experts" who talked to the reporter, but Prof. Weinstein definitely said it best.   

So to sum up: Many of us disagree with the Chick-fil-A CEO's opinions, but everyone seems to agree that it would be unconsitituional to prohibit the company's land use on that basis.

Matt Festa

The London Olympics & Land Use--The Atlantic Cities' Coverage

As Jessie noted in her post on the Olympic Villages, there are many land use issues involved when a city hosts the Olympic Games.  For a fantastic overview of these issues, with numerous in-depth stories, there's no better place to start than The Atlantic Cities' "Special Report" Olympics 2012: London Gets Ready for the Summer Games.  Feargus O'Sullivan has been reporting from London for months, and in the past couple of weeks many of their other writers have contributed excellent stories on a slew of land-use-related Olympic issues.  Here are just a few examples of the wide range of topics they've addressed:

Whether hosting the Olypmic "boondoggle" is good or bad for your city; homelessness and tourism; security issues; public attitudes--politicians telling "whingers" to "put a sock in it"; transportation concerns; architecture; planning for post-Games facilities use; affordable housing; the always-controversial of building new stadiums (stadia?); and many, many other important issues that come up when a big city offers to play host to the world. 

The British media, of course, have lots of excellent coverage.  But for a more specific focus on land use, local government, and urban planning issues, I highly recommend starting with The Atlantic Cities' Olympics 2012 page.  They're posting several new stories each day. 

In the meantime, I hope you all enjoy watching that important land use event known as the Olympic Games!

Matt Festa

Land Use Profs Present at Harvard/Stanford/Yale Junior Faculty Forum

Over at Property Prof, Steve Clowney gave well-deserved kudos to two property professors who were selected to present their papers at the prestigious Harvard/Stanford/Yale Junior Faculty Forum this summer. 

I should add, though, that these two rising stars are not just property profs, but land use profs in their teaching and research.  Our own Land Use Prof blogger Ken Stahl (Chapman) presented his very interesting paper Local Government, One Person/One Vote, and the Jewish Question, and Ashira Ostrow (Hofstra) presented her forthcoming article Land Law Federalism. 

Congrats to both, and way to represent those of us in the property and land use junior ranks!

Matt Festa