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!
Even though the media is obsessed with the 2012 elections, it is the first Tuesday after the first Monday in November, and as land use folks well know, a lot of important law is made at the state and local level during off-year elections. Today in Texas there are ten state constitutional amendments on the ballot for voter approval, generated by the 2011 legislative session (Texas' legislature still meets only bienially--one of four remaining states to do so, and the only major state).
I'm generally not a fan of constant new constitutional amendments, for two reasons, one structural and one democratic. First, many state constitutions--like Texas'--are already bloated. I printed it out once--all 80,806 words of it (sorry environmental profs)--and I make the point in class by comparing the massive document to a pocket U.S. Constitution. In general, I don't think that most mundane policy issues should be entrenched in fundamental law. On the other hand, this structural critique can be countered somewhat by the argument that while the federal constitution enables the Congress to do a certain range of things, state legislatures already have plenary power, so state constitutions largely exist to limit the legislature--and then they need to be amended often to adjust those limits. But still . . . 80,806 words?
My second beef with the practice of placing a slew of state constitutional amendments is has more to do with the theory of state and local elections, and I don't like it for the same reason I'm skeptical of the overuse of initiative and referendum. What could be more democratic than letting the people vote, you ask? The problem is informational. I usually ask my upper-level state & local government students--a sample of pretty well educated and informed voters--which way they voted on certain amendments or referenda from prior years. Almost universally I get two responses; either (a) no recollection whatsoever; or, occasionally, (b) they voted with their gut based on a cursory reading of the ballot text in the voting booth. And if they remember which way they voted, it was usually "yes" because the text sounded like "good things," or "no" because the text sounded like "spending more money."
There in turn at least two reasons why even smart voters end up voting with their gut on these important measures. First, the ballot language is usually vague and fuzzy, and often is quite different from the actual text of the law that will go on the books. I don't think this is usually done to confuse the voters, I think it's the opposite intent--but regardless, the ballot language in my experience is usually so general that it fails to communicate what the proposal is really about. Another major reason, of course, is that with a few exceptions, these items don't get very much media exposure. So most Texans probably know a lot more about, e.g., the latest in sexual harrassment allegations against national candidates, than they do about the 10 items they are probably going to add to the state constitution today. The info is out there, but it's up to the individual voter to burn some calories and go find and read information such as the analysis by the Texas Legislative Council.
Now in class, we talk about whatever amendments and referenda are on the ballot, and it's a lot of fun. Students do class presentations, we have guest speakers, and so on. And it often turns out that a lot of these state constitutional amendments (and local referenda) are substantively about land use--from eminent domain to land sales, zoning, conservation, and more (which was going to be the original point of this post, before I got off on my rant). So I do my part to create a group of 40 or 50 educated voters.
But if that's what it takes, is democracy really served by putting all this stuff on the ballot, and in such a vague manner? I find more and more that people in general really do care about land use in their communities and their region. A lot. Yet in the cases where they actually have a say in the matter, it gets translated so poorly that most votes actually cast are probably not informed ones. So it's the people behind the scenes in and around legislative bodies that end up making all the rules.
November 8, 2011 in Constitutional Law, Eminent Domain, Environmentalism, History, Local Government, Politics, Property Rights, State Government, Texas, Zoning | Permalink | Comments (0) | TrackBack (0)
Thursday, November 3, 2011
Land use news from Cuba: New law will let Cubans buy and sell real estate. (Paul Haven, AP).
HAVANA (AP) -- For the first time in a half-century, Cubans will be allowed to buy and sell real estate openly, bequeath property to relatives without restriction and avoid forfeiting their homes if they abandon the country.
The highly anticipated new rules instantly transform islanders' cramped, dilapidated homes into potential liquid assets in the most significant reform yet adopted by President Raul Castro since he took over the communist country from his brother in 2008.
But plenty of restrictions remain.
. . . including restrictions on sales to emigrants or foreigners, so shelve those plans to acquire your Caribbean resort. But it's a great step in the right direction for Cuba. Thanks to Adam MacLeod for the pointer!
Wednesday, November 2, 2011
The NYU Furman Center for Real Estate and Urban Policy has just sent out news of its latest fascinating and important study: American Murder Mystery Revisited: Do Housing Voucher Households Cause Crime? The study is authored by co-director Ingrid Gould Ellen, Michael C. Lens, and Katherine O'Regan. From the announcement:
We are pleased to share with you the latest paper from the Furman Center, American Murder Mystery Revisited: Do Housing Voucher Households Cause Crime? The study explores the link between housing vouchers and neighborhood crime rates. More than two million renters now receive Housing Choice Vouchers, which subsidize rent in private apartments. Although voucher holders live in a large variety of neighborhoods, community opposition to vouchers can be fierce due to perceptions that voucher holders will both reduce property values and heighten crime. The widely-circulated 2008 Atlantic Monthly article “American Murder Mystery” highlighted this controversy.
Our study, which examines changes in crime and voucher use over 12 years in ten major U.S. cities, finds no evidence that an increase of voucher holders in a community leads to increases in crime. Instead, we find a different association: that voucher holders are more likely to move into areas when crime rates are already rising. The paper was featured in an article in The Atlantic Cities, and presented September 19 at an internal briefing held at the HUD headquarters in Washington, DC. You can read the full paper here and accompanying fact sheet here.
When it comes to housing and land use, everyone has an opinion, because everyone lives somewhere and has anecdotal information. It's great to have a study like this to clarify popular conceptions based on facts. The Furman Center leads the way in producing these kinds of helpful studies.
Sunday, October 30, 2011
From the Wall Street Journal's Developments blog: What Occupy Wall Street Owes to Zoning.
Occupy Wall Street’s monthlong protest has been helped by donors willing to supply food, temperate fall weather and support from organized labor and some elected officials. But a less-visible asset has proved a big boon for the protesters: New York City’s land-use policy.
The geographic center of the protest is lower Manhattan’s Zuccotti Park, a one-block collection of trees and benches that is owned by an office landlord, Brookfield Office Properties Inc. Private ownership actually makes the space more accessible than public parks, many of which close at night.
As discussed in a Journal article on Saturday, the city’s zoning code requires that many privately owned parks be open to the public at all times — one of the factors that made Zuccotti Park a hospitable venue for the protesters’s all-hours encampment.
Termed a “privately owned public space” — or POPS, in zoning parlance — these plazas stand at the intersection of capitalist instinct and public interest. The zoning code puts restrictions on the scale of towers that developers are allowed to build. In an attempt to add public space in Manhattan without buying new parkland, city government allowed developers to build bigger structures if they set aside a plaza that remains open to the public.
While many of these are tucked away in the backs of buildings or in lobbies, Zuccotti Park turns out to be one of the most accessible POPS in the city. Of course, there is an irony that the space in which Occupy Wall Street has found a continued home is owned by the city’s largest landlord for financial services firms — the very industry they are protesting.
Friday, October 21, 2011
Perusing the latest issue of Tierra Grande, the magazine of the Texas A&M Real Estate Center, I came across this short article by Reid C. Wilson called All the Right Moves: Navigating the Land Use Maze. The "takeaway":
Land use regulations can be daunting. Landowners and developers must understand why land use regulation exists; appreciate the tough position of city staff members; do their own homework on specific regulations; and reserve adequate time for the process. Wilson is one of the leading real estate attorneys in Texas. This brief article is a good introduction to the process of navigating land use regulation, and might be a good read for students and professionals who want to start learning about it. Matt Festa
Land use regulations can be daunting. Landowners and developers must understand why land use regulation exists; appreciate the tough position of city staff members; do their own homework on specific regulations; and reserve adequate time for the process.
Wilson is one of the leading real estate attorneys in Texas. This brief article is a good introduction to the process of navigating land use regulation, and might be a good read for students and professionals who want to start learning about it.
Monday, October 3, 2011
Michael Lewis, the author of popular financial nonfiction books such as Liar's Poker, Moneyball, and The Big Short, has published an interesting Vanity Fair article on the looming municipal debt crisis called California and Bust. The intro:
The smart money says the U.S. economy will splinter, with some states thriving, some states not, and all eyes are on California as the nightmare scenario. After a hair-raising visit with former governor Arnold Schwarzenegger, who explains why the Golden State has cratered, Michael Lewis goes where the buck literally stops—the local level, where the likes of San Jose mayor Chuck Reed and Vallejo ﬁre chief Paige Meyer are trying to avert even worse catastrophes and rethink what it means to be a society.
While the piece isn't directly about land use, most of us know that land use is fundamentally intertwined with local government finance. The muni debt crisis flows from the real estate bubble, and future land use and development will be driven by the fiscal health of local governments. Also, just about anything by Michael Lewis is worth a read . . . no one else can spin a yarn about the financial world quite like him.
Wednesday, September 21, 2011
Michelle Wilde Anderson (Berkeley) has posted Dissolving Cities, forthcoming in the Yale Law Journal, 2012. The abstract:
During the twentieth century, 3,000 new cities took shape across America. Stucco subdivisions sprawled and law followed, enabling suburbs to adopt independent governments. That story is familiar. But meanwhile, something else was also happening. A smaller but sizable number of cities were dying, closing down their municipal governments and returning to dependence on counties. Some were ghost towns, emptied of population. In those places, jobs were lost and families struggled; crops died off and industries moved on. A larger group of dead cities were humming with civic life: places with people but no longer with a separate government. In these cities, citizens from the political left and right, often in coalition, rose up to eliminate their local governments.
As an end in itself, understanding these changes would be worthwhile. But this past has not passed. An unprecedented groundswell of cities and citizens are currently considering disincorporation in response to economic crisis, tax pressure, and population loss. The dissolution law they are turning to, as it is written in state codes and as it is understood in theory, is immature and thin. Cities’ experiences with dissolution are unknown, constraining our ability to judge the values it serves or undermines. If dissolution is to grow in importance as part of the legal machinery of urban decline - as cities themselves are asking it to become - we must understand what it meant in the decades that passed before.
Dissolving Cities tells the story of municipal dissolution. It is an article of law, theory, and urban history - a reminder that urban growth and local government fragmentation, which have long dominated academic discourse on cities, may not be the upward ratchet we have assumed them to be. Cities can die (legally at least), and when they do, they raise critical questions about decline, governance, taxes, race, and community.
This is a critically important topic for the future of land use in American communities, and Prof. Anderson's article looks like a must-read piece.
Sunday, September 11, 2011
Today America commemorates 9/11 on its tenth anniversary.
While the tragedy and heroics of that day appropriately take precedence, 9/11 has created long-running and controversial land use issues since 2001. From the logistics of managing the rescue operations and the excavation, to last year's "ground zero mosque" kerfuffle, issues from the local to the international have played out in discussions over land use at the WTC site in lower Manhattan.
Two of the most controversial land use questions, especially as the years passed, have been (1) how should 9/11 be remembered at the site, and (2) what and how to build/rebuild to replace the twin towers.
On the first question, public memory and historic presentation, you may have seen the news that the 9/11 Memorial opens with a dedication ceremony today. The project seems to be a classic American example of public-private cooperation:
The National September 11 Memorial & Museum at the World Trade Center Foundation, Inc. began formal operations in the spring of 2005 and worked with the Lower Manhattan Development Corporation on the design and construction management plan. In the summer of 2006, the organization assumed responsibility for overseeing the design and working with The Port Authority of New York and New Jersey (PANYNJ), the construction manager on the project. . . . In the beginning of October 2006, the Honorable Michael R. Bloomberg, Mayor of the City of New York, became Chair of the Foundation’s Board of Directors. Following the election of the Mayor as Chairman, the Foundation named Joseph C. Daniels as President.
At the website, there are links to a lot of of great photos and interactive views of the site and the Memorial.
The second enduring issue--whether and what to rebuild on the site--has generated a lot of criticism as a decade has passed without any replacement for the towers. This issue has been a perfect storm of land use issues: real estate, economics, regulation, federalism, urbanism, architecture, planning, transportation, culture, history, and of course, politics, politics, politics. For what it's worth, my impression has been that on the one hand, it's too simplistic to just say we should have built a ginormous tower immediately to stick it to the terrorists--yes, NY got the Empire State Building up in about 15 months during the Great Depression, but that's not realistic in lower Manhattan today. On the other hand, I think that the decade-long wait for putting some of the world's most valuable real estate to use says something important about the effect of the burdens that we have placed on property in the modern regulatory environment. Many of the procedural and political issues and delays might have been for justifiable ends, but really, a decade?
Things are finally moving along, though. From the Wall Street Journal's Developments real estate blog comes the helpful post Six Questions on Rebuilding the World Trade Center. The signature tower is in progress:
What’s the status of the office buildings? Some are further along than others. One World Trade Center, the site’s signature office building, is going up about a floor per week and is currently around 80 stories out of a total 104, and it’s already the tallest structure in Lower Manhattan.
On the delays:
What’s taken so long? Conflict has been a big theme of the rebuilding. There have been battles with insurers, wars between agencies, and repeated fights between the public sector and private developer Larry Silverstein over how to rebuild and fund his office towers. Those fights have often led to stalemates. Add onto that the fact that the site is extraordinarily complex — it’s often likened to a Rubik’s cube, but it’s sometimes more like a messy ball of rubber bands. The mechanics of the site are all intertwined — exits and emergency systems for the PATH station are in the neighboring towers, and deliveries to One World Trade Center need to run underneath 2, 3, and 4 World Trade Center. This means everything underground had to be built more or less at once, with precision. There is a laundry list of public agencies involved, and historically they hadn’t been great at communicating with each other.
The WSJ also has a great interactive graphic Exploring Ground Zero, Ten Years Later.
9/11 deserves our remembrance today, our continuing thanks for those serving in harm's way, and--secondarily--our commitment to good land use at this very important place for commerce, human activity, and public memory.
September 11, 2011 in Architecture, Development, Downtown, Federal Government, History, Local Government, New York, Planning, Politics, Property, Real Estate Transactions, Redevelopment, Urbanism | Permalink | Comments (0) | TrackBack (0)
Thursday, September 1, 2011
Since Justice Stevens told the states in Kelo v. City of New London (2005) that they were free to provide additional eminent domain restrictions through state law, policy groups and lawmakers in Texas have been trying to take him up. There were a few small measures to come through the past three (biennial) legislative sessions, but nothing too meaty. Governor Rick Perry even vetoed an eminent domain reform bill in 2007. But this spring after an "emergency" session, Gov. Perry signed Senate Bill 18--"An act relating to the use of eminent domain authority." And today, eminent domain reform became law in Texas.
September 1, 2001 is the day that dozens of laws passed in the spring 2011 legislative session take effect. The eminent domain reform--which is now codified in the Property Code, the Local Government Code, and various other statutes--basically makes it harder for entities to exercise eminent domain, and gives landowners more procedural protections:
- It requires that eminent domain can only be exercised for "public use," and replaces all statutory references (apparently there were many!) to "public purpose." "Public use" is still undefined, so while the legislature's intent is to restrict economic development and other types of takings, this one will probably end up in the courts.
- It adds public hearing and notice requirements and voting mandates to any use of eminent domain authority; it also adds certain requirements for bona fide written offers to purchase.
- It requires all public or private entities who think they have eminent domain power to submit a letter to the state comptroller for review by the legislature.
- It gives landowners additional statutory rights to repurchase property not actually used for the "public use."
We'll have to see if this law has substantive effects on the use of eminent domain, but at minimum it seems to provide some procedural protections. Yesterday at my daughter's soccer practice--i.e., the last day before the new law took effect--one of the other parents told me that his firm filed hundreds of lawsuits that day, related to ongoing projects. So at least there will be a lot of work for the lawyers!
Driving today I happened upon a radio broadcast of a talk given by Polly Trottenberg, Assistant Secretary for Transportation Policy at US DOT, to the Commonwealth Club of California. Here's a description of her talk from the Commonwealth's web page:
If you have ever been stuck in traffic on the Bay Bridge, late to meetings, or have had a ruined weekend because you couldn’t make it to a destination in time, you know that California suffers from a major transportation infrastructure problem. From pot holes jarring people’s necks and backs, to bridges collapsing nationwide, thousands of commuters are being affected every day by America’s inadequate and faltering transportation infrastructure system. U.S. Department of Transportation Undersecretary for Policy Polly Trottenberg explores solutions to this serious crisis. Trottenberg works toward implementing the president’s priorities for transportation including safety and creating jobs. The DOT employs more than 55,000 employees with a $70 billion budget that oversees air, maritime and surface transportation missions. For 12 years she worked extensively on transportation, public works, energy and environmental issues in the U.S. Senate, for Senators Barbara Boxer, Charles Schumer and Daniel Patrick Moynahan.
Her talk doesn't focus only on California - I tuned in during the question and answer session, when she took a broad range of questions on high speed rail, TIGER grants, freight movement, transportation safety, and other topics. You can download the podcast here.
Jamie Baker Roskie
Tuesday, August 30, 2011
Jeffrey Berry (Tufts-Political Science) and Kent Portney (Tufts-Political Science), nearly 20 years ago, published the award-winning study of grassroots citizen participation in five U.S. cities, The Rebirth of Urban Democracy. Now they have posted The Group Basis of City Politics, a paper they presented at the 2011 American Political Science Association Annual Meeting. Here's the abstract:
How do nonprofits empower themselves? In this paper we analyze nonprofit advocacy in city politics, emphasizing especially their interaction with local policymakers. First we discuss what we call the “politics of place” in cities, examining the participation of three types of citywide and neighborhood nonprofits. The second section develops two lines of inquiry and articulates a set of hypotheses that grow out of a theoretical construct relating to low barriers to entry. Next, after describing the empirical methodology, those hypotheses are tested with data derived from large scale surveys in 50 of the nation’s largest cities. The subjects of these three surveys are city councilors, agency administrators, and interest group advocates. We find that access to policymakers in city politics is relatively easy as the barriers to entry for advocates is quite low. Not surprisingly the evidence points to a privileged position for business, though neighborhood associations also stand out in terms of incorporation into the policymaking process.
Monday, July 18, 2011
Student author Darren M. Belajac has published a comment, THE PENNSYLVANIA LEGISLATURE TAKES A SIGNIFICANT, THOUGH INSUFFICIENT, STEP TOWARD ADDRESSING BLIGHT AND TAX DELINQUENCY: HOUSE BILL 712, THE LAND BANK ACT in the Duquesne Law Review. From the introduction:
The Pennsylvania House of Representatives recently passed a bill authorizing the creation of land banks for the purpose of addressing vacant and tax-delinquent properties in Pennsylvania municipalities. The bill, known as the Land Bank Act, is currently in the state Senate for consideration and will likely be voted upon soon. The Land Bank Act is an important, though insufficient, step toward addressing the problem of blight and abandonment of properties throughout Pennsylvania. The problem of blight is especially acute in the Commonwealth's two largest cities, Pittsburgh and Philadelphia. This comment will compare and contrast the contents of the bill against a competing version that stalled in the Pennsylvania Senate in early 2010. This juxtaposition will take place in the context of a more general discussion of how land banks operate to address blight and tax delinquency. In particular, the comment will analyze how the Land Bank Act should affect the City of Pittsburgh's efforts to address its blight. Lastly, this comment will seek to show how even once the bill passes the Senate (assuming it does), the legislature will still need to revamp the Commonwealth's tax foreclosure laws.
I'm surprised that Pennsylvania - which I usually consider to be ahead of Georgia on all things related to land use planning - is just now authorizing land banks. I'll add this to my considerable (and growing) pile of professional reading!
Jamie Baker Roskie
Wednesday, July 6, 2011
[This guest post is from Prof. Timothy Mulvaney (Texas Wesleyan), whom we've featured here before for his scholarship and commentary on judicial takings and on Severance v. Patterson--on which he hosted an excellent program in March. Here are his thoughts on the latest development in the case. Thanks!--Matt Festa]
The Land Use Prof Blog previously has included several entries on the long-running dispute regarding the Texas Open Beaches Act in the case of Severance v. Patterson (see here, here, here, here, and here). The case took yet another surprising turn last week when the plaintiff sold the last remaining property at issue in the suit.
At the filing of the complaint in 2006, the lawsuit involved three residential gulf-front properties owned by plaintiff Carol Severance. Following 2005’s Hurricane Rita, these properties ended up seaward of the vegetation line; after Rita, that is, Ms. Severance’s properties were composed almost entirely of dry sand beach. Ms. Severance challenged the State’s policy of removing homes that, due to erosion or coastal storms, now rest within the public’s “rolling” beach access easement.
In a 6-2 decision in November of 2010 on three certified questions from the Fifth Circuit, the Texas Supreme Court largely sided with Ms. Severance. The Court distinguished between (1) an easement destroyed by an avulsive event—which the majority held does not “roll” upland, such that the state must prove that a public easement across the “new” strip of beach adjacent to the post-Rita mean high water line has been established by custom, dedication, or prescription in each individual case, including Ms. Severance’s—and (2) an easement destroyed by imperceptible erosion—which the majority held does “roll” upland.
Yet in March of this year, the Court, at the request of the State and nearly two dozen amici, took the rather extraordinary step of deciding to re-hear the case. The Court ultimately conducted a second round of oral argument in April. Yet just last week, with the re-hearing decision pending, Ms. Severance sold the third and final property subject to the litigation (she had sold the other two properties several years earlier).
Upon receiving notice that Ms. Severance sold this last remaining property (notably, through a FEMA-funded buy-back program administered by the City of Galveston on the final day that she could avail herself of that option), the State immediately sent a letter to the Court suggesting that (1) the case is moot, and (2) the Court “should follow the established practice of vacating the latest opinion [the November 2010 opinion] before returning this matter to the Fifth Circuit.” Otherwise, said the State, the Court would be authorizing “a prevailing party to obtain through unilateral action what it was unable to accomplish in opposing a rehearing motion or a petition for review. … [the Court should not] permit an opinion to stand, by default, that was under active reconsideration.”
Counsel for Ms. Severance, David Breemer of the Pacific Legal Foundation, responded with a letter stating that the case is not moot because: (1) mootness cannot permit the state “to avoid a controversy over its property restrictions” by using those same controversial restrictions to force Ms. Severance to sell; (2) Ms. Severance owns another property in Galveston that was not included in her 2006 complaint but that is now subject to the State’s rolling easement policy; and (3) “there are ongoing personal and legal consequences to Severance” for which the Court can fashion a remedy.
In his letter, Mr. Breemer requested that the Court issue an expedited briefing schedule on the mootness issue. The Court obliged. The State filed its brief today, and Ms. Severance’s response is due next Tuesday. Stay tuned to the Land Use Prof Blog for updated information on Severance v. Patterson.
July 6, 2011 in Beaches, Caselaw, Coastal Regulation, Constitutional Law, Environmentalism, Politics, Property Rights, State Government, Takings, Texas, Water | Permalink | Comments (0) | TrackBack (0)
Monday, June 27, 2011
Kenneth Stahl (Chapman)--former Land Use Prof guest blogger--has posted All Power to the Neighborhoods?: The Delegation Doctrine and Neighborhood Control of Zoning. The abstract:
Whether cities should delegate some of their zoning power to neighborhood groups is one of the most hotly contested issues in municipal politics, yet it is also essentially a moot point. Since a bizarre series of Supreme Court cases in the early twentieth century, it has been largely settled that cities may not constitutionally delegate the zoning power to sub-municipal groups, at least where the power is delegated specifically to landowners in a certain proximity to a proposed land use change.
This article argues that the judicial prohibition on delegating zoning power to proximate landowners – a scheme I designate a “neighborhood zoning district” – is doctrinally illogical and indefensible as a matter of public policy. As a doctrinal matter, the cases barring the neighborhood zoning district are at odds with another line of cases in which courts have upheld municipal schemes that empower landowners within a territorial area to authorize the financing of services or improvements through a mandatory assessment, known as a “special assessment district,” or in its modern incarnation as a “business improvement district.” As I argue, neighborhood zoning districts are conceptually identical to special assessment districts. Both restrict the franchise to individuals deemed to have a particularly substantial interest based on land ownership in proximity to a proposed change in the character of the neighborhood. As such, both devices offer landowners the ability to efficiently manage local externalities and enable large, diverse cities to effectively compete with small, homogenous suburbs by mimicking the most attractive features of suburban government. The article attempts to reconcile the two doctrinal lines on several policy grounds, but finds that, in many cases, neighborhood zoning districts actually represent sounder public policy than special assessment districts. The article concludes that courts should broadly defer to municipal delegations of power to sublocal groups, so that cities can work out their own desired relationship between neighborhoods and city hall, and their own strategy for surviving in an era of intense inter-local competition.
This is a fascinating paper that really goes to the heart of some of the major questions about which level of government is best positioned to regulate land use. I saw Ken present some of these ideas at ALPS (before we played hooky at the National Building Museum) and the article's well worth reading.
I haven't been able to blog as much as usual lately, and one of the reasons is that we just moved. It was a local move, but I'm sure you all know what a hassle moving is. But today, the move actually helped my blogging. It seems that the previous tenant failed to cancel his multiple newspaper subscriptions. I rarely read news on dead tree anymore, so I might not otherwise have seen this morning's front page New York Times Story by Elisabeth Rosenthal called: Across Europe, Irking Drivers is Urban Policy.
ZURICH — While American cities are synchronizing green lights to improve traffic flow and offering apps to help drivers find parking, many European cities are doing the opposite: creating environments openly hostile to cars. The methods vary, but the mission is clear — to make car use expensive and just plain miserable enough to tilt drivers toward more environmentally friendly modes of transportation.
Some cities have closed entire streets; some introduced stiff fees for driving into the city; many have reduced on-street parking drastically; bike lanes have replaced car lanes without offset for traffic; others have purposely added red lights to mess with drivers; Zurich's tram operators seem to have the ability to change the lights to their favor as they approach. (I'm trying to imagine how much a magic traffic-light-changing remote control clicker would fetch on e-bay.)
According to the story, and probably not inconsistent with what some of you may have observed, many of these European cities have dramatically improved in walkability, transit options, and quality of public space. How much the policies are related causally to the result isn't clear, but we can assume they've had an impact.
I'm not entirely sure what I think of all this. I'm a strong proponent of improving urban life by incentivizing higher density, mixed-use development and increasing pedestrian-oriented neighborhood viability and transit-oriented development. Love it. Still, I am hesitant to pursue these goals through policies that actually make things worse for some people on purpose. What do these policies do to affordable housing? How about people from lower socioeconomic strata that need to make their living from driving goods and services around the city? How do public shared bikes help women who don't cycle (and families with kids)? By all means, make mass transit better, faster, more economical. But purposely creating red-light patterns just to deliberately piss people off just concerns me a bit. It also would seem to thwart a number of smart-growth-friendly options that nonetheless rely on roads, such as bus rapid transit.
Admittedly I'm looking at this from the urban planning side more than the environmental side, but it seems the environmental benefits of these policies will be much more difficult to observe than the effect on quality of life; it's easy to see the quality of life in the very nice and improved transit-accessible mixed-use public spaces, but these types of policies would seem to generate a lot of external costs--on purpose. Maybe that's a tradeoff people are willing to make. But to acheive the same progressive land use goals, I still have a preference for a positive approach (e.g., incentivizing (or even just allowing) smart growth and new urbanism) rather than purposely making some aspects of urban life worse by degrading capabilites to make some people's lives "miserable."
June 27, 2011 in Affordable Housing, Comparative Land Use, Density, Downtown, Environmentalism, New Urbanism, Parking, Pedestrian, Planning, Politics, Smart Growth, Sprawl, Transportation, Urbanism | Permalink | Comments (0) | TrackBack (0)
Thursday, June 2, 2011
A lot of attention gets paid to light rail, high speed rail, and highway expansion as possible (and highly contested) approaches toward solving urban, regional, and national transportation problems. Comparatively, much less attention is given to the emerging concept of Bus Rapid Transit (BRT). However, several citites are implementing BRT and there seems to be some positive feedback. From the May/June issue of the APA's Planning magazine, Now Boarding, the 5:15 Express; Bus rapid transit could be the economical answer to light rail.
It's the evening rush hour in downtown Cleveland, and the HealthLine bus pulls up to a sleek, modern station on bustling Euclid Avenue. The stop is brief — subway stop brief. In less than 30 seconds, passengers have gotten on and off and the bus has pulled away. Unlike a typical city bus, there is no line for the fare box. Passengers pay their fare and board from a slightly elevated loading platform something like the platforms made famous by the express buses in Curitiba, Brazil. In seconds, the 100-passenger bus revs up and heads east on Euclid. It occupies a lane that is reserved for express buses.
To many observers, this is the future of public transit.
Dubbed bus rapid transit, or BRT, this urban transportation mode is designed to look and feel much like a light-rail system, but without the heavy start-up costs.
In addition to all of the politics now surrounding light rail and high speed rail, I think many Americans continue to associate bus travel with lower socioeconomic status; but BRT could help change that. While it's not as widely known as an option, it could have a lot of upside:
While BRT is a relatively new idea in the U.S., the service is a good fit for many American cities, says Robert Cervero, a professor of city and regional planning at the University of California, Berkeley, who has studied BRT in Brazil and elsewhere. Because American cities have grown with automobile travel in mind, BRT service can be more easily incorporated than light-rail lines, he says. "I think it is the right technology. It's not the flavor of the day," he adds, referring to the buzz surrounding other new transit trends. "It's a meaningful response to emerging transit needs."
BRT doesn't necessarily have to throw light rail under the bus (sorry), but it's definitely worth more attention.
Sunday, May 29, 2011
David J. Reiss (Brooklyn) has posted Foundations of Federal Housing Policy, a chapter in the book COMMUNITY, HOME, AND IDENTITY, Michael Diamond, Terry Turnipseed, eds., 2011. The abstract:
Federal housing policy is heavily funded and made up of a morass of programs. This book chapter provides a taxonomy of goals for housing policy. The chapter first asks what the aim of housing policy is. In other words, what can a well-designed and executed housing policy achieve? The answer to this question is not at all clear-cut. Some argue that the aim of housing policy is to allow all Americans to live in safe, well-maintained and affordable housing. Others argue for a more modest aim – achieving an income transfer to low- and moderate-income families that mandates that the income transferred is consumed in increased housing. And yet others argue that the main aim is to create a nation of homeowner-citizens, a goal which hearkens back to Jefferson’s idealized “yeoman farmer” and continues through to George W. Bush’s "ownership society."
Beginning with these possibilities, I identify and categorize various "principles" of American housing policy. This is an important exercise because 80 plus years of housing policy; hundreds of billions of dollars; and literally hundreds of different housing programs have all conspired to confuse the essential aims of American housing policy. This chapter seeks to clarify debates surrounding American housing policy as the Obama Administration puts its own stamp on this field.
Looks like a fascinating contribution on a very important topic.
Sunday, May 15, 2011
Courtesy of Mark Edwards at Property Prof, a link to what looks like an important and troubling report, Million-Dollar Wasteland: HUD's Mismanagement of America's Affordable Housing. Here's Edwards' initial reaction:
Given that Congress is looking for areas to budget-cut, I suspect this series could be a game-changer for HUD. That's unfortunate, because the need for affordable housing in the United States is enormous. No doubt there is waste at HUD. But I suspect that the committed and well-intentioned people at HUD are trapped in a downward spiral: they aren't given enough resources to adequately oversee the projects they fund; the projects they fund are wasteful; so their resources are cut.
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