Monday, February 27, 2012
The possibility of Walmart coming to Athens, GA has now made the mainstream (albiet on-line) media with this story in Salon:
The Athens, Ga., soul-food joint Weaver D’s has barely changed in the 20 years since its slogan, “Automatic for the People,” supplied the name of a groundbreaking R.E.M. album.
You could say the same about Athens itself. After businesses fled in the ’80s, downtown Athens rebounded as an alt-rock mecca that spawned the soundtrack of Generation X. R.E.M., the B-52s, Widespread Panic and thousands of other musicians and artists helped create what is, in many ways, today a dream city: a mixed-use, walkable urban core filled with small businesses, plenty of green space — and a music scene that rivals that of cities 10 times its size.
Cue “The End of the World as We Know It.” A multi-building mall-like shopping complex, likely to include the dreaded Walmart, has set its sights on downtown Athens. Renderings by the Atlanta-based developer Selig Enterprises show a bricked concourse surrounded by large-scale retail, including a 94,000-square-foot superstore, topped with apartments. It also includes three restaurants — two of which are over 10,000 square feet — and 1,150 parking spaces. This is new for downtown Athens, which unlike most college towns, has largely kept chains away.
“There’s an Athens style,” says Willow Meyer, a 37-year-old lawyer who moved here with her husband [UGA law prof Tim Meyer] two years ago, “and if you just import this kind of ‘Anywhere, USA’ development, the city loses something.”
Another group in metro Atlanta is also fighting a Walmart, proposed by the same company behind the Athens development.
Jamie Baker Roskie
February 27, 2012 in Community Design, Community Economic Development, Development, Downtown, Economic Development, Georgia, Local Government, Planning, Politics, Redevelopment, Smart Growth, Urbanism | Permalink | Comments (1) | TrackBack (0)
Monday, February 20, 2012
The case of Harmon v. Markus, currently before the Supreme Court on a petition for cert, is starting to draw some attention. Among others, George Will devoted his latest column to urging the Court to hear the case in Supreme Court should take on New York City's Rent Control Laws:
James and Jeanne Harmon reside in and supposedly own a five-story brownstone on Manhattan’s Upper West Side, a building that has been in their family since 1949. But they have, so to speak, houseguests who have overstayed their welcome by, in cumulative years, more than a century. They are the tenants — the same tenants — who have been living in the three of the Harmons’ six apartments that are rent controlled.
The Harmons want the Supreme Court to rule that their home has been effectively, and unconstitutionally, taken from them by notably foolish laws that advance no legitimate state interest. The court should.
This “taking” has been accomplished by rent-control laws that cover almost 1 million — approximately half — of the city’s rental apartments. Such laws have existed, with several intervals of sanity, since the “emergency” declared because returning soldiers faced housing shortages caused by a building slowdown during World War I.
This is a tough issue on the equities; rent-control laws (most prominently in New York) are of incredible help to some people and have a very negative effect on others, not only developers, but also (perhaps most especially) would-be entrants-- which is why the politics on this issue are more difficult to track. Rent control favoring current (and often, inherited) tenants is getting increasingly hard to justify on policy grounds, but as a matter of property law, is it unconstitutional? Harder to prove on legal doctrine.
Richard Epstein has a podcast on the case for the Federalist Society. I've been looking for commentaries on the other side but haven't found quite as much; let me know.
February 20, 2012 in Affordable Housing, Caselaw, Constitutional Law, Landlord-Tenant, Local Government, New York, Politics, Property Rights, Supreme Court, Takings | Permalink | Comments (0) | TrackBack (0)
Ilya Somin (George Mason) has a post on the Volokh Conspiracy called Another Chance at Federal Eminent Domain Reform:
In the aftermath of the Supreme Court’s controversial Kelo decision, which allowed the condemnation of private property for economic development, some 44 states have passed eminent domain reform laws. Although many of those laws are likely to be ineffective, overall a good deal of progress has been made at the state level in curbing abusive condemnations, including by state courts enforcing the property rights provisions of their state constitutions.
Unfortunately, very little has been achieved at the federal level during that time. On the third anniversary of Kelo in 2008, I summed up federal reform efforts as follows:
[Insert sound of crickets chirping, grass growing, and paint drying].
Somin cites an op-ed by Christina Walsh of the Institute of Justice:
A bipartisan bill, H.R. 1433, making its way through the House would strip a city of federal economic development funding for two years if the city takes private property to give to someone else for their private use. Cities that want to keep their funding will have to be more circumspect in using eminent domain.
This bill undoubtedly will pass the House as it did in 2005, and likely will get stalled in the Senate Judiciary Committee, headed by Sen. Patrick J. Leahy, Vermont Democrat, where it has gone to die in years past.
It'll be interesting to see if this goes anywhere, but I suspect there's probably too much political noise this year.
Wednesday, February 15, 2012
There is a growing trend of Tea Party activism against the idea of sustainable energy. Whilst many claim to support environmental protection, Tea Partiers object to what they see as attempts by foreign international bodies, coordinating with local environmental groups and the government, to restrict private property rights. Concerned Tea party members often refer to the UN’s “Agenda 21” and what they see as its attempts to subordinate the rights of man to the needs of the environment.
Agenda 21 is comprehensive plan of action that calls for the integration of developmental and environmental concerns to fulfil basic needs and improve living standards for all. It has been adopted but never ratified in the United States. The Tea Party appears to be very concerned with Section I chapter 7 which refers to sustainable human settlements. The stated goals are promoting housing for all and promoting sustainable construction, amongst other things. Even without considering the fact that “promoting” is a somewhat passive word that certainly does not evoke the idea that there will be “enforcement” of these objectives, the provision seems harmless.
Yet the agitated tea party members object to the plan whose method of implementation includes broad concepts such as, education on patterns of consumption that do not completely deplete natural resources, one member sees the plan as “caging the humans whilst the animals run free.” Some tea party members see the non-binding UN resolution as merely a hoax to redistribute wealth. Others have gone so far as to liken the mandate of Agenda 21 to communism. Claiming it will result in government rationing of food and water a concept that they believe is at its core, Un-American.
Proponents of the movement use striking images of crowded houses and maps of the United States with nary a trace of the human population to demonstrate what they believe is the end goal of Agenda 21. Opponents to sustainable development claim, without evidence, that the program is already being implemented in states like New Jersey as part of a broader conspiracy theory, despite the fact that the sustainability in New Jersey does not indicate any ties to international or federal efforts to attain sustainability.
In New Jersey, Tea Partiers oppose the State’s proposed Strategic Plan and efforts by an organization called Sustainable New Jersey which offers municipalities monetary grants conditioned on certain actions, ranging from innocuous energy audits and waste reductions to contested sustainable community planning, collaborative land preservation programs, and carbon reduction targets. The Tea Party finds fault with Sustainable New Jersey’s mission to embrace social justice and fairness. Among their chief complaints is a recommended ordinance reducing lot size and placing homes closer together. Criticism varies from the “mild” allegation that such programs transfer America’s wealth to developing countries to more extreme charges that the government is clearing the way for insider businesses to exploit the land’s natural resources. The program is entirely voluntary and the New Jersey State government and Wal-Mart are its two largest benefactors.
Perhaps the concerns of the Tea Party would be more convincing were they grounded in pertinent law. If even some states choose to conform to international environmental standards the United States is, after all, based on a federal system that allows this. Even a cursory glance anywhere indicates that Agenda 21, which as an example demands huge new sources of material wealth to developing countries, has had little if any impact in the United States and the concept of sustainable development appears much less sinister than its opponents, who believe it is a cover up, would have you believe. In this world, a world of limited resources, it is probably a good idea for us all to be more considerate of our consumption patterns both in terms of resources and space as opposed to clinging to the idea that the world is trying to dupe us into giving up our land.
Saturday, February 11, 2012
I hope Matt will forgive me for moonlighting, but The Atlantic Cities blog (a great resource I have blogged about before) invited me to write a guest blog post about how the Occupy protests challenged the predominant model of urban government. You can check it out here. My basic thesis is:
The Occupy movement challenged cities’ attachment to mobile capital by making place central to its worldview. In establishing flimsy tent-cities in actual urban spaces and refusing to leave, the Occupy protests mocked the idea of mobility peddled by urban officials. More than that, they implicitly advocated the notion that urban areas are places bound up with the identity of local communities, rather than disposable products in a global marketplace.
Thursday, February 9, 2012
While environmentalists and avant-garde artists are sometimes assumed to be political bedfellows, it turns out that they are not always cut from the same cloth. There's a controversy over a famous artist's plans to drape the Arkansas River in copious amounts of textile product. From the New York Times story Note to Christo: Don't Start Hanging the Fabric Yet:
CAÑON CITY, Colo. — The shouting isn’t over for “Over the River.”
The $50 million project by the artist Christo, who hopes to drape nearly six miles of the Arkansas River here in southern Colorado with suspended bank-to-bank fabric, received approval from federal land managers late last year.
But on Wednesday, a new battlefield emerged in law and local politics: in Denver, opponents filed a federal lawsuit aiming to block construction, which Christo had hoped to begin this summer. The suit argues that land managers violated federal law in approving the plan and gauging its environmental impacts.
And there are some intrepid law students involved in the case.
The lawsuit, filed on ROAR’s behalf by a group of students at the University of Denver’s Sturm College of Law, argues that land managers did not adequately address the long-term effects of the project on wildlife, especially the bighorn sheep that clamber about on the canyon’s cliffs.
An interesting issue, with both sides clothed in good intentions. Understandably, no one wants to pull the wool over the eyes of any interested party, least of all the wildlife. Hopefully the project is not a wolf in sheep's clothing. I hope it doesn't irreparably tear at the fabric of the regional community.
Thursday, February 2, 2012
President Obama gave a speech yesterday in Falls Church, VA, explaining his State of the Union thoughts on housing. From the White House transcript:
As I indicated at the State of the Union last week, I am sending Congress a plan that will give every responsible homeowner in America the chance to save about $3,000 a year on their mortgage by refinancing at historically low rates. (Applause.) No more red tape. No more runaround from the banks. And a small fee on the largest financial institutions will make sure it doesn’t add to our deficit.
I want to be clear: This plan, like the other actions we’ve taken, will not help the neighbors down the street who bought a house they couldn’t afford, and then walked away and left a foreclosed home behind. It’s not designed for those who’ve acted irresponsibly, but it can help those who’ve acted responsibly. It’s not going to help those who bought multiple homes just to speculate and flip the house and make a quick buck, but it can help those who’ve acted responsibly.
What this plan will do is help millions of responsible homeowners who make their payments on time but find themselves trapped under falling home values or wrapped up in red tape.
Tuesday, January 17, 2012
From Michael Allan Wolf comes the sad news that Charles M. Haar has passed away. Haar, the Louis D. Brandeis Professor Emeritus at Harvard Law School, was one of the true giants of legal scholarship and teaching in the fields of land use and local government. From the Harvard tribute:
Professor Emeritus Charles M. Haar ‘48, a pioneer in land-use law whose scholarship focused on laws and institutions of city planning, urban development and environmental issues, died on January 10, 2012. He was 91.
During his more than five-decade career, Haar influenced urban policy and planning throughout the country, drafted key legislation for inner city revitalization, developed influential legal theories to support equality of services for urban dwellers and access to suburbs, helped pioneer the modern environmental movement, and mentored a generation of scholars and activists.
“Charles Haar was a genuine pioneer who created new ways of making scholarship relevant to the improvement of the human condition through the improvement of the environment,” observed Harvard Law School Dean Martha Minow. “He was a visionary leader in the field of land use law and urban planning with a focus on improving the lives of all Americans, regardless of race or economic status. His legacy includes major tenets of the modern-day environmental movement and the way we teach and study environmental law. It also includes the generations of students to whom he was a mentor and friend, and the contributions they made after learning from him. He will be deeply missed.”
Please read the whole thing for a full appreciation of Professor Haar's amazing contributions to teaching, scholarship, and service. He served the legal profession and the nation in numerous ways, from his WWII military service, to extensive participation in professional organizations, to service to presidential administrations and legislation-drafting. His scholarship has been incredibly influential. I am currently in the middle of reading his 1990 book Zoning and the American Dream: Promises Still to Keep (with Jerold S. Kayden) which is just one of his many important books, casebooks, and treatises. Testimony from his students and colleagues, such as Prof. Wolf, speaks to his deep humanity and profound influence as a teacher and mentor.
We are all in a great debt to Charles M. Haar as one of the pioneers of land use law in scholarship and practice. Professor Haar was instrumental in creating the field that we now know as land use law. "Land Use" has strong doctrinal and practical ties to property law, state & local government law, environmental law, and other fields; but it has only been because of the work of Professor Haar and his colleagues and students that Land Use Law has been recognized as its own separate field of study and practice in law, and as an important part of our society. May we all be inspired to serve by the example of Charles M. Haar.
Hope everyone had a good Martin Luther King Day yesterday. An important part of Dr. King's legacy is his involement in advocating against de facto residential segregation and for fair and affordable housing as part of a broader conception of civil rights. On this issue, King did more than make speeches-- he actually moved his family's home. From the Chicago Encyclopedia:
King relied on his lieutenant James Bevel to energize the first phases of the campaign, but in January 1966 he captured national headlines when he moved his family into a dingy apartment in the West Side ghetto. It was not until June that King and his advisors, under pressure to produce results, settled on a focus for the Chicago movement. King himself participated in two dramatic marches into all-white neighborhoods during a two-month open-housing campaign during the summer of 1966. These fair-housing protests brought real estate, political, business, and religious leaders to the conference table for “summit” negotiations.
And the Chicago Tribune:
The marches led to an accord that year between the protesters and the Chicago Real Estate Board. The board agreed to end its opposition to open-housing laws in exchange for an end to the demonstrations. Before he left town, King said it was "a first step in a 1,000-mile journey."
A journey that still continues.
UPDATE: Steve Clowney at Property Prof links to an opinion piece on Dr. King's legacy and fair housing in New Jersey today.
Thursday, January 5, 2012
I've been enjoying the outstanding posts on last week's landmark California Supreme Court ruling by Ken Stahl (here and here) and guest-blogger Stephen Miller (here and here) (I smell a great panel or symposium topic in the making). Just now I came a cross an early analysis by Stephen Greenhut at City Journal, the always-interesting center-right urban affairs journal. Greenhut has a strongly positive take on the decision in Crony Capitalism Rebuked California’s supreme court strikes a blow for property rights and fiscal sanity:
On December 29, the California Supreme Court handed down what the state’s urban redevelopment agencies (RDAs) and their supporters called a “worst of all worlds” ruling—first upholding a law that eliminates the agencies, then striking down a second law that would have allowed them to buy their way back into power. This was great news for critics who had spent years calling attention to the ways modern urban-renewal projects distorted city land-use decisions, abused eminent-domain policies, and diverted about 12 percent of the state budget from traditional public services to subsidies for developers, who would build tax-producing shopping centers and other projects sought by city bureaucrats. As of now, the agencies are history, though the redevelopment industry is working to craft new legislation that would resurrect them in some limited form.
January 5, 2012 in California, Caselaw, Constitutional Law, Development, Economic Development, Eminent Domain, Judicial Review, Local Government, Politics, Property Rights, Real Estate Transactions, Redevelopment, State Government | Permalink | Comments (1) | TrackBack (0)
Friday, December 30, 2011
Michael Allan Wolf (Florida) has a new book out called The Supreme Court and the Environment: The Reluctant Protector (CQ Press, 2012). Here's the Amazon blurb:
Silent Spring (1962) can arguable be cited as one of the most influential books of the modern era. This book, along with 1960's rampant activism reacting to high-profile ecological calamities, helped create the modern environmental movement. The Supreme Court and the Environment, written by Michael Wolf, discusses one of this movement's most important legacies, namely the body of federal statutory law amassed to fight pollution and conserve natural resources that began with the enactment of the National Environmental Policy Act of 1969. Instead of taking the more traditional route of listing court decisions, The Supreme Court and the Environment puts the actual cases in a subsidiary position, as part of a larger set of documents paired with incisive introductions that illustrate the fascinating and sometimes surprising give-and-take with Congress, federal administrative agencies, state and local governments, environmental organizations and private companies and industry trade groups that have helped define modern environmental policy.
And for a preview, Prof. Wolf has posted the introduction on SSRN. The abstract:
This document contains the Introduction and Contents for The Supreme Court and the Environment: The Reluctant Protector (CQ Press/Sage 2012). When one views the body of modern environmental law — the decisions and the other key documents — the picture that emerges is not one of Supreme Court dominance. In this legal drama, the justices have most often played supporting roles. While we can find the occasional, memorable soliloquy in a Supreme Court majority, concurring, or dissenting opinion, the leading men and women are more likely found in Congress, administrative agencies, state and local legislatures, nongovernmental organizations, private industry, and state and lower federal courts.
What one learns from studying the Supreme Court’s environmental law output is that the justices for the most part seem more concerned about more general issues of deference to administrative agencies, the rules of statutory interpretation, the role of legislative history, the requisites for standing, and the nature of the Takings Clause than the narrow issues of entitlement to a clean environment, the notion of an environmental ethic that underlies written statutes and regulations, and concerns about ecological diversity and other environmental values. When we widen the lens, however, and focus on the other documents that make up essential parts of the story of the Supreme Court and the environment — complaints by litigants, briefs by parties and by friends of the court, oral argument transcripts, the occasional stirring dissent, lower court decisions, presidential signing statements and press conference transcripts, media reports and editorials, and legislative responses to high court decisions — we discover what is often missing in the body of Supreme Court decisions.
Looks fascinating, and is a very original take that situates the cases themselves within a broader context of Supreme Court jurisprudence and goes beyond to the larger networks of actors that shape law.
December 30, 2011 in Books, Caselaw, Coastal Regulation, Constitutional Law, Environmental Law, Environmentalism, Federal Government, History, Judicial Review, Politics, Property Rights, Scholarship, Supreme Court, Takings, Wetlands | Permalink | Comments (0) | TrackBack (0)
Wednesday, December 14, 2011
Ioan Voicu (US Gov't--Office of the Comptroller of the Currency), Vicki Been (NYU), Mary Weselcouch (NYU Furman Center), and Andrew Tschirart (US Gov't--OCC) have posted Performance of HAMP versus non-HAMP Loan Modifications--Evidence from New York City. The abstract:
Policymakers have heralded mortgage modifications as a key to addressing the ongoing foreclosure crisis. However, there is a lack of research about whether modifications are successful at helping borrowers stay current on their loans over the long run and what kinds of modifications are most successful. Our empirical strategy employs logit models in a hazard framework to explain how loan, borrower, property, servicer and neighborhood characteristics, along with differences in the types of modifications, affect the likelihood of redefault. The dataset includes both HAMP modifications and proprietary modifications. Our results demonstrate that borrowers who receive HAMP modifications have been considerably more successful in staying current than those receiving non-HAMP modifications.
Thursday, December 8, 2011
Will Oremus writes in Slate on a Requiem for a Train: High Speed Rail is Dead in America; Should we Mourn it? From the article:
Well, you can stop imagining it now. High-speed rail isn’t happening in America. Not anytime soon. Probably not ever. The questions now are (1) what killed it, and (2) should we mourn its passing? . . .
Though Republicans’ outright rejection of high-speed rail is short-sighted, so were many of the plans themselves. Rather than focus on the few corridors that need high-speed rail lines the most, the Obama administration doled out half a billion here and half a billion there, a strategy better-suited to currying political support than to addressing real infrastructure problems. Spread across 10 corridors, each between 100 and 600 miles long, Obama’s rail system would have been, at best, a disjointed patchwork. The nation’s most gridlocked corridor, along the East Coast between Washington, D.C. and Boston, was left out of the plans entirely. Worse, much of the money was allocated to projects that weren’t high-speed rail at all.
Lots of mistakes were made in the roll-out of the HSR plan, but one of the main problems was that it was fantasized in a lot of places where it isn't really necessary, and ignored in the places where it could be great.
Last month I posted a rant on Election Day and State Constitutions based on the referendum for new Texas constitutional amendments; Ken Stahl posted a thoughtful response with a qualified defense of direct democracy in ballot-box zoning, which set forth some thoughts that he more fully elaborates in his excellent article The Artifice of Local Growth Politics: At-Large Elections, Ballot-Box Zoning, and Judicial Review.
My complaints--prompted by my frustration with a slate of ten poorly-articulated and confusing process amendments for which the State Legislature required a nominal thumbs-up from the people-- were more focused on (1) statewide (more than with local) lawmaking through referenda; and (2) the over-constitutionalization of public policy in fundamental state law. Troy Senik has written an article for City Journal that articulates some of the points of this (hardly original) critique: Direct Dysfunctionality: California celebrates 100 years of the initiative, referendum, and recall.
Golden State voters can approve or reject public-policy changes at the ballot box through the use of the initiative and referendum. They can also remove unpopular elected officials with the less frequently employed recall, made famous when it chased out Governor Gray Davis in 2003. While nearly half of U.S. states have an initiative process of some kind, nowhere is it as central to the political process as in California, where, in 2010 alone, 14 issues appeared on the ballot. As a result, voters constitute a de facto fourth branch of government. . . .
These measures were introduced in the salad days of the early Progressive movement, when California Governor Hiram Johnson (who would eventually serve as Theodore Roosevelt’s running mate on the Bull Moose presidential ticket of 1912) pressed for their implementation as a firewall against political domination by special interests—particularly those of the well-heeled railroads. . . .
But statewide direct constitution-making has its problems:
Expediting policy shifts, however, is a relatively modest benefit in exchange for the dramatic cost of the initiative process: inducing widespread public-sector sclerosis. Rather than simply providing an outlet for popular grievances, direct democracy actually annexes huge swaths of policymaking from the legislature. When voters mandate a policy directive from the ballot box, the legislature has no way to override the decision, even by supermajority. As a result, any issue that voters weigh in on directly becomes their exclusive purview in perpetuity—amendable or repealable only by another popular vote. This also has the ironic effect of slowing down the democratic process that the initiative system is supposed to make more responsive, ensuring that policy shifts can only come on election days spread years apart. And many of the ballot measures take the form of constitutional amendments, a trend that has given California the unenviable distinction of having the third-longest constitution in the world, after India and (believe it or not) Alabama. Because altering the state’s foundational political charter only requires a simple majority, California ends up inhabiting a bizarro world where it’s relatively easy to amend the constitution but can be nearly impossible to alter basic public policy.
So as with any political process tool, it's a mixed bag with some good things that can be contorted into bad results; my tentative thesis is that direct democracy is less effective the broader the polity (i.e. state vs. local) that engages in it. I know, James Madison and others had something to say about this too.
Soon I'll blog about an interesting local-government direct democracy land use requirement that is a little different from the ones that Ken has written about.
Monday, December 5, 2011
Perhaps no theology more grips the nation’s mainstream media — and the planning community — more than the notion of inevitable suburban decline. The Obama administration’s housing secretary, Shaun Donavan, recently claimed, “We’ve reached the limits of suburban development: People are beginning to vote with their feet and come back to the central cities.”
Yet repeating a mantra incessantly does not make it true. Indeed, any analysis of the 2010 U.S. Census would make perfectly clear that rather than heading for density, Americans are voting with their feet in the opposite direction: toward the outer sections of the metropolis and to smaller, less dense cities. During the 2000s, the Census shows, just 8.6% of the population growth in metropolitan areas with more than 1 million people took place in the core cities; the rest took place in the suburbs. That 8.6% represents a decline from the 1990s, when the figure was 15.4%.
Nor are Americans abandoning their basic attraction for single-family dwellings or automobile commuting. Over the past decade, single-family houses grew far more than either multifamily or attached homes, accounting for nearly 80% of all the new households in the 51 largest cities. And — contrary to the image of suburban desolation — detached housing retains a significantly lower vacancy rate than the multi-unit sector, which has also suffered a higher growth in vacancies even the crash. . . .
It turns out that while urban land owners, planners and pundits love density, people for the most part continue to prefer space, if they can afford it. No amount of spinmeistering can change that basic fact, at least according to trends of past decade.
But what about the future? Some more reasoned new urbanists, like Leinberger, hope that the market will change the dynamic and spur the long-awaited shift into dense, more urban cores.
Kotkin provides further statistics derived from his Census analysis. This debate is central to the future of housing policy and urban planning in America.
Wednesday, November 30, 2011
So, today I waded into the local controversy about the possibility of a Wal-Mart in downtown Athens with an editorial in the local weekly. [Note - this article is no longer available on the original site, so this link is to a re-posted version.] Specifically, I responded to media reports that the county attorney has said the developers have vested rights to develop the property based on the amount of money they claim to have spent on site preparation. Now, Georgia has a pretty generous vested rights doctrine, but it's not that generous. As in most states, you still have to have some kind of official assurance for rights to vest. Apparently now the county attorney doesn't want to talk about it, but other folks on both sides of the issue certainly have been.
This type of controversy is not unique to Athens, apparently. A casual perusal of media reports turns up vested rights controversies over proposed Wal-Marts in Hood River, Oregon, Leon County, Florida, San Antonio, Texas, and Abingdon, Virginia. Is this some kind of trend?
Jamie Baker Roskie
Friday, November 11, 2011
Roderick M. Hills, Jr. (NYU) and David Schleicher (George Mason) have posted Balancing the 'Zoning Budget', published in Regulation, vol. 34, no. 3 (2011). The abstract:
Local government officials regularly adopt zoning changes that result in fewer potential housing units, despite making public commitments to improve housing supply. The reason these zoning changes are successful is because they are often desired by current voters who want to protect the “character” of their neighborhoods, while most of the beneficiaries of increased housing supply are not current voters in the affected district. This political economy dynamic can cause long-term economic harm to communities by harming housing affordability. This paper recommends that local policymakers adopt an annual “housing budget” to clearly identify the number of potential housing units that they want to exist. With this budget established, changes in zoning that reduce the number of potential housing units must be balanced with other changes that expand housing units.
This shorter piece is a very interesting and accessible read, and I especially recommend it if you haven't had the chance to read the longer version from the Case Western Law Review. This innovative idea has been featured in several media outlets. The always-fascinating Atlantic "Cities" Blog discusses it in The Case for Strengthening Urban Property Rights; Matt Yglesias posted on it at Think Progress; and the ideas are featured in the book The Gated City by The Economist's Ryan Avent.
Thursday, November 10, 2011
Ilya Somin (George Mason) has an op-ed in Daily Caller about the passage of Mississippi Measure 31, a post-Kelo eminent domain reform measure: Referendum Initiatives Prevent Eminent Domain Abuse. The intro:
The Supreme Court’s 2005 decision in Kelo v. City of New London generated a record political backlash. Kelo upheld the condemnation of private property for transfer to other private owners in order to promote “economic development.” The case inspired widespread outrage. Polls show that over 80% of the public opposes economic development takings. As a result, 44 states have enacted eminent domain reform laws that restrict the condemnation of property for the benefit of private interests.
The most recent state to react to Kelo is Mississippi. On Tuesday, Mississippi voters adopted Measure 31 by a decisive 73% to 27% margin. The new law will make taking property for economic development unprofitable by forbidding most transfers of condemned land to a private party for 10 years after condemnation. The measure is a major victory for both property owners and the state’s economy.
Somin has also blogged on the measure at the Volokh Conspiracy here and here. And from the former post, here's a nugget that's relevant to the discussion Ken and I have been having on direct democracy in land use:
As I explain in this article, referendum initiatives like Measure 31 tend to be stronger than reforms adopted by state legislatures because many of them are drafted by activists rather than by politicians. Measure 31 was submitted drafted by the Mississippi Farm Bureau Federation (small farmers are often victims of eminent domain in the state). The vast majority of post–Kelo referenda adopted by voters impose tough restrictions on takings.
More on that to come soon!
Wednesday, November 9, 2011
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.
Tuesday, November 8, 2011
So I sat down to write a post noting some of the land-use related issues that are before Texas voters today as proposed amendments to the state constitution, and then I went off on a rant about why I don't like voting on state constitutional amendments--generally, because they're already too bloated with non-fundamental policy; and specifically, because of the informational problems that make it a terrible democratic mechanism. But anyway, there are ten proposed amendments to the Texas constitution today, so let's see if any involve land use . . .
None of them seem to be that radical this year, and hence haven't gotten any publicity to speak of (unlike last time around (2009), when eminent domain reform and constitutionalizing the Texas Open Beach Act were on the ballot). But as always, a few of them will affect land use--politically, structurally, and fiscally. The 2011 Analysis of Proposed Constitutional Amendments by the Texas Legislative Council is probably the best source out there. So let's take a look at a few. I'll paraphase the ballot language, which in turn only paraphrases the actual text of the amendments that will be come law!
1. Authorizing the legislature to provide a property tax exemption on the residential homestead of a surviving spouse of a 100% disabled veteran;
2. Authorizing the Texas Water Board to issue general obligation bonds up to $6 billion for water projects;
4. Authorize the legislature to allow a county to incur debt "to finance the development or redevelopment of an unproductive, underdeveloped, or blighted area within the county," and to pay for it with increased tax revenues from that area.
Now this one really strikes me as a great example of what I was talking about in my last post. What this is about is tax-increment financing, e.g. TIFs. On the one hand, if you read the background of this proposal, it's not radical; it's simply giving county governments the same power that municipal governments already have. On the other hand, the uses and abuses of TIFs are a big deal, and if it took this land use professor a few minutes of closely reading the ballot language to figure out that that's what were voting on, I can't have much confidence that this vote is in any way informed.
5. Authorize the legislature to allow city and county governments to enter contracts with each other (for, e.g., consolidation or regional projects) without the imposition of a tax or a sinking fund).
6. Allow the General Land Office to distribute revenue from certain dedicated lands for educational purposes.
7. Allow El Paso County to create conservation and reclamation districts to develop parklands.
8. Require the legislature to tax open space land devoted to water stewardship based on its productive capacity rather than its (usually higher) market value.
So there you have it, out of ten proposed state constitutional amendments put before the people of Texas today by the biennial session of the legislature, seven of them by my count have at least something to do with land use, even though they're more about structure and finance than use regulations per se. But of course, some of my students accuse me of "turning everything into a land use issue." But we all know it's true, right?
Anyway, I've got to run out now and go vote!
UPDATE 11/9/11: Seven amendments passed; the three that failed were #4 (county TIFs); #7 (El Paso parks); and #8 (tax assessment for water stewardship). The Secretary of State has the results. But hey, over 5% of the registered voters turned out!