Thursday, December 11, 2014

Urban Decay Theory v. Broken Windows Theory

Brent White (Arizona) , Simone Sepe (Arizona) and Saura Masconale (AZ-Gov't & PP) have published Urban Decay, Austerity, and the Rule of Law, 64. Emory L.J. 1 (2014).  In the article, the authors offer a "make 'gov', not war" alternative to the Broken Windows Theory (BWT) and its support for order-maintenance policing.  Building upon an intuitively compelling social contract theory insight, the article sets out the theoretical and empirical cases for the authors’ contention that sustained investment in highly visible, essential local public goods provides crucial support for rule of law. Focusing on the refusals of the U.S. and Michigan governments to bail out Detroit and avoid the need for it to file for bankruptcy, the authors use their Urban Decay Theory (UDT) to support their proposal that all municipal governments receive at least some level of fiscal insurance to sustain continuous investment in urban infrastructure, which, according to the UDT is predictive of citizen commitment to rule of law.

At the invitation of the editors of the Emory Law Journal, I wrote a response to Urban Decay for the Emory Law Journal Online.  In "All Good Things Flow . . .":  Rule of Law, Public Goods, and the Divided American Metropolis , 64 Emory L. J. Online 2017 (2014),  I welcome the article’s introduction of the rule of law paradigm to domestic urban policy, find fault with its selection of public goods that purportedly influence rule of law, and contend that the UDT has far greater potential than the poor support it can offer the authors’ flawed policy proposal. By conceptualizing the domestic urban policy goal as rule of law rather than order, the authors open measurements of success to go beyond crime rates and majoritarian perceptions of personal safety. Without losing the groundedness necessary for empirical investigation, rule of law can incorporate ideal aspects of lawful order that address sustainability and inclusion of minority perceptions of legitimacy. While the White/Sepe/Masconale article does not succeed in constructing as compelling an understanding of the most salient public goods, an improved analysis of the root causes of the fiscal degradation of America’s legacy cities can unlock a potentially valuable reframing of urban, metropolitan, and regional policy debates.

In focusing their policy proposal on fiscal guarantees for municipal creditors, the authors, from my perspective, have missed the role that the urban-suburban divide has played in the inability of city governments to provide basic public goods.  But, their expansion of the public policy goal to rule of law allows us to get a more holistic picture of the foundation of a truly inclusive, flourishing community. All in all, I think that, by altering the paradigm from order maintenance to rule of law, the authors have, in formulating the Urban Decay Theory, offered a useful complement to the Broken Windows Theory rather than a truly competitive alternative to it.  

 

Jim K.

December 11, 2014 in Community Economic Development, Crime, Detroit, Federal Government, Financial Crisis, Local Government, Race, Scholarship, Smart Growth, State Government, Urbanism, Zoning | Permalink | Comments (0)

Sunday, November 30, 2014

Addressing American Indian Land Tenure – by Jessica A. Shoemaker

For my last guest post this month, I want to return to my primary area of research to date: American Indian land tenure. As I’ve written about here already, one of my primary interests is in thinking broadly about the many varied factors that influence landowners’ decision-making about how they use their lands. Our essential land tenure institutions are foundational in this sense and directly impact land use decision-making before anything like zoning or other direct regulation of land use even has a chance to take effect. Nowhere is the influence of the design of foundational property rights more apparent than in the land tenure relationships in the modern American Indian reservation, where significant swaths of Indian-owned lands are currently not used by Indian landowners themselves but instead sit idle or are leased to non-Indian users. In fact, I have a hard time imagining a property system better designed to discourage Indian prosperity on Indian land than the top-down system of property imposed on indigenous people in this country today. 

In this post, I want to give at least an overview of some of what I think are the most important and influential aspects of American Indian land tenure and then talk just a bit about why I think further scholarly engagement in this arena would be incredibly valuable in a range of settings.

    I.    The Indian Land Tenure Challenge

To start, I appreciate that there is a wide spectrum of knowledge regarding the nuances of modern American Indian land tenure. For some of us, it’s just a mystery how land is owned and held within reservation boundaries. For others, the system is so complex that once we start to study it at all, conversations and work regarding indigenous land rights devolve into a level of generality that isn’t as productive as it could be. Thus, a significant part of my current research agenda is trying to do the deep work required to develop a really rigorous understanding of the modern property rights framework within this very complex reservation setting. This post won’t be able to do all of this work justice.  Nonetheless, here is a brief overview.

Two of the biggest and most widely recognized challenges for Indian landowners are the federal trust status on many Indian-owned lands and the fractionation (or extreme co-ownership) conditions within many of those same properties.

Many, but not all, Indian-owned lands within federal Indian reservations are held in a special trust status over which the federal government acts as trustee for the benefit of the individual or tribal landowner. This trust status’s history is complex, but the important point for this purpose is that the trust status has been extended indefinitely and, to many eyes, appears to be perpetual.

This federal trust status certainly has some legal advantages—as evidenced, for example, by ongoing efforts by many Indian tribes to have additional lands taken into trust. The primary benefits include cementing a stronger case for exclusive federal/tribal (as opposed to state) jurisdiction over the space and also clarifying that state property taxes may not be imposed on that trust land. (The property tax issue is not quite that black and white. Many tribes still make special payments in lieu of taxes to state and local government in exchange for services and to help eliminate conflicts over fee-to-trust conversions.)

The trust status, however, also has significant disadvantages for Indian landowners. It is restrictive and extremely bureaucratic. The federal government exercises significant land management control, and most Indian-owned trust lands cannot be sold, mortgaged, leased, or otherwise developed or used without a formal approval from the Department of Interior after a cumbersome process of appraisals, oversight, and multi-level review. This trust system very dramatically increases the transaction costs for any land use and is often inefficient and even demoralizing for Indian landowners (not to mention extremely expensive for the federal government to maintain).

The second problem, fractionation, is closely related to the trust status issues. Fractionation refers to the fact that many individually owned Indian trust lands (often called allotments) are now jointly owned by many, many co-owners—sometimes as many as several hundred or more. Fractionation makes any kind of coordinated decision-making among all of these co-owners practically difficult and, as an individual co-owner’s interest size diminishes, reduces the likelihood that the co-owners will so cooperate. This then increases co-owners’ reliance on the federal government’s ongoing trust management role over these lands.  All of these tiny interests, in turn, overwhelm the federal trust system, as evidenced by the recent Cobell class action litigation which uncovered the federal government’s gross inability even to account accurately for all of these small interests. 

The federal government has explicitly acknowledged that this fractionation problem is a direct consequence of its own failed federal policies on Indian lands. For example, historic prohibitions on will writing for Indian landowners and the modern alienation restraints on Indian trust land have all exacerbated fractionation. Implementing any kind of solution to consolidate these small interests has been exceedingly difficult. This is true both because of the general idea that it’s much harder to reassemble property than it is to disassemble it and because of a host of other political, legal, economic, and even moral issues. Possible solutions do exist, and part of the Cobell settlement funds are currently going to fund a limited buy-back program that will purchase some individual small interests from willing sellers and re-consolidate them in tribal ownership. However, the general trend has been that any such effort at a solution moves so slowly and addresses such a small proportion of the problem that new tiers of fractionation outpace any improvements, with exponentially more small interests continually being created through further subdivision of already small interests over new generations of heirs. 

While these two issues—the federal trust status and the fractionated ownership patterns—are complex enough, I don’t think they give a complete picture of all of the issues going on in American Indian land tenure. For example, in a piece called No Sticks in My Bundle: Rethinking the American Indian Land Tenure Problem that I’m currently wrapping up edits on for the Kansas Law Review, I argue that a third significant problem for Indian land use is the gradual elimination over time of any informal use and possession right for co-owners of Indian trust land. Although co-owners in any non-Indian tenancy in common would have a default right to use and possess their own jointly owned land presumptively and informally and without any prior permission from their other co-owners, that is not the case in fractionated Indian lands. Modern federal regulations have recently evolved to require Indian co-owners to get permission or a formal lease from co-owners before taking possession of their own land and also to pay those co-owners rent. I think preserving some route for direct owner’s use of jointly owned land is important and valuable, even in highly fractionated properties, and as noted, I am writing about this more here

In addition, in another piece I’m currently writing and calling Emulsified Property, I am exploring the problem of uncertain and sometimes overlapping jurisdictional authorities within Indian Country as it relates to land use. This piece explores new dimensions of these property-related jurisdictional issues, but at a high level, the fact is that modern Indian reservation are uniquely plagued by a mind boggling array of unsettled, case-specific, or otherwise unresolved jurisdictional questions. Part of this stems from the fact that most reservations include not only Indian-owned trust lands but also fee lands, which might be owned by non-Indians, Indians of another tribe, tribal citizens, or the governing tribe itself. The state or local government is likely to assert jurisdiction at least over the non-Indian fee properties, but where that state and local jurisdiction ends, and when and if it overlaps with tribal or federal jurisdiction as well, turns on a complex balancing of multiple factors, depending on the type of jurisdiction being asserted. It continually shocks me (and my research assistants) how many unresolved questions there are in terms of who governs what in Indian Country.  In my property law class, we often talk about the importance of certainty in property rules. So many of our social and economic institutions rely on having clearly established, easily communicated entitlements and responsibilities with respect to a given thing. In Indian law, there is often very, very little of that certainty.

This just scratches the surface of the American Indian land tenure paradigm, but it is already easy to see why land use is such a challenge in Indian Country. Despite significant reserved lands and natural resources, Indian people suffer some of the worst poverty in the United States.

    II.    Why It Matters

Now for my plug for why I think more of us should be engaging in this important work around Indian property and land use. Of course, immediately and most importantly, there is the compelling problem of justice and fairness for indigenous people, who suffer the consequences of these failed property systems most directly. The Harvard Project on American Indian Economic Development has found repeatedly that Indian people having the power and the liberty to make their own decisions with respect to their resources and their futures is the best and most effective solution to the persistent problems, including persistent poverty, in Indian Country. In many respects, it is the law that stands most in the way of this, and it will take legal minds to dismantle the current ineffective system. And legal minds who are uniquely interested in the transformative potential of property institutions are especially well suited to begin this task. 

On another practical note, the problem of American Indian land tenure also matters economically for all of us. The federal government has acknowledged again and again that it using (wasting) incredible resources continuing to maintain this broken property system.

However, as land use legal scholars, there are other important reasons to work in this rich area. I believe a sustained and careful understanding of these unique Indian property institutions, and the evolution of these property relationships through various federal land reforms over time, can help us address property and land use challenges not only in Indian Country but in other venues as well. Other scholars have sometimes analogized to Indian land tenure issues for this kind of purpose, but that work has sometimes lacked a real detailed and deep understanding of how complex Indian land tenure issues actually are. However, with more careful analysis, there could be very fruitful comparative work.  Let me give just two immediate examples, both of which I'm just beginning to work on.  

First, the co-ownership institutions in Indian Country are unique, but the fractionation (or heir property) issues are not. Paying attention to the default co-ownership rules for individually owned Indian lands can help us learn about and address co-ownership challenges in other settings—such as the role of default co-tenancy rules in balancing flexible use arrangements with land preservation strategies for at-risk communities. It can also inform property theory and practice on how co-ownership institutions can best be designed to promote coowner cooperation and efficient use of resources more generally, how anticommons properties actually work, and what methods are most useful to re-aggregate overly fractionated property rights.

Second, I am also excited about how learning from indigenous land planning practices across multiple potential stakeholder jurisdictions within a given reservation (i.e., local municipalities and county governments, state governments, federal governments, and the tribe itself) may translate to inform other work on moving land use planning more generally to more regional, cross-jurisdictional models. Cooperation among multiple levels of government is a persistent challenge in efforts to plan more broadly on a regional, resource-based, or ecosystem level, and yet almost any natural resources or planning person would tell us that this is the kind of decision-making we must do. These kinds of jurisdictional conflicts are being addressed at the reservation level on an ongoing basis, and work on indigenous planning may teach us a lot about how we can plan across jurisdictional boundaries in wider settings. (This is not to suggest that there is a broad literature on indigenous planning or land use issues within reservation legal settings that already exists. There is not. However, for anyone looking to start to review the literature, I recently read an interesting dissertation on comprehensive planning on American Indian reservations and on the Oneida reservation in Wisconsin specifically by Dr. Rebecca Webster, a former law school classmate of mine, that provides a nice place to start and can be found here.) The challenges of planning within a reservation are different and, in some ways, arguably even more complex than the challenges of regional planning generally. Notably, within reservation boundaries, jurisdictional uncertainty may increase concerns about any decision that would jeopardize a future case for asserting jurisdiction, and there are long conflicted histories between neighboring sovereigns. Still, it is a comparison I hope to continue to explore.

This long post only barely skims the surface of all the rich and fascinating land use issues at play in American Indian land tenure. Please consider this an invitation to reach out any time for further discussions on this subject. I would love to continue to engage with more colleagues in this critical subject area and to build more critical learning connections across subject areas and disciplines.

Thanks again for the opportunity to discuss this and other issues here this month.

-          Jessica A. Shoemaker

November 30, 2014 in Community Economic Development, Comparative Land Use, Comprehensive Plans, Economic Development, Federal Government, History, Local Government, Planning, Property, Property Rights, Property Theory, Race, State Government, Zoning | Permalink | Comments (0)

Monday, April 28, 2014

The Guardian Calls Out Donald Sterling for Being a Racist...Landlord

Usually the intersection between land use law and sports comes in the siting of sports arenas.  But, today I happened across an article in The Guardian about the LA Clippers/Donald Sterling racism scandal that takes issue with the NBA's non-action, for years, on his racism in his business practices:

But all those years, not enough people looked at Donald Sterling as the racist landlord the law so bore him out to be.

Neither the league, nor the players, nor the sports media paid much if any attention to Sterling's agreement in 2003 to pay upwards of $5m to settle a lawsuit brought by the Housing Rights Center charging that he tried to drive non-Korean tenants out of apartments he bought in the Koreatown section of Los Angeles. Only a few observers noted in 2006 that the Justice Department sued Sterling for allegations of housing discrimination in the same neighborhood. The charges included statements he allegedly made to employees that black and Hispanic families were not desirable tenants.

And while a handful of us in the media excoriated Sterling and the NBA in 2009 when Sterling settled the lawsuit by agreeing to pay $2.73m following allegations he refused to rent apartments to Hispanics, blacks and families with children, the story didn't resonate – despite it being the largest housing discrimination settlement in Justice Department history.

Read the entire article, "The real tragedy of Donald Sterling's racism: it took this long for us to notice," here.

Jamie Baker Roskie

April 28, 2014 in Affordable Housing, California, Race | Permalink | Comments (0) | TrackBack (0)

Monday, October 21, 2013

Kirp in NY Times on Mt. Laurel Today

David Kirp (UC Berkeley--Public Policy)  has published an op-ed in the NY Times entitled "Here Comes the Neighborhood."  In it, he discusses the overwhelmingly positive impact of the affordable housing built in the New Jersey township of Mt. Laurel.  Referencing the recently published book, Climbing Mt. Laurel: The Struggle for Affordable Housing and Social Mobility in an American Suburb by Douglas Massey (Princeton-Sociology) with others, Kirp counters the claims of those who saw the judicial response to exclusionary zoning as grafting urban cancer onto healthy suburban tissue.  The cancer metaphor comes from Mt. Laurel's then-mayor Jose Alvarez and seems absurd in light of the overwhelmingly positive effects documented four decades later.

My good friend and NDLS clinic colleague, Bob Jones, sent the link to me because I am working on a paper looking at Catholic Social Teaching's response to overconcentration of poverty.  I think this anectdotal account from the birthplace of judicially mandated inclusionary zoning should complement the 2011 study American Murder Mystery Revisited by Ingrid Gould Ellen, Michael Lens and Katherine O'Regan undercutting some loose talk about spreading violence and disorder through the Housing Choice Voucher program that followed the controversial eponymous 2008 Atlantic Monthly article.

 

Jim K.

October 21, 2013 in Affordable Housing, Housing, Inclusionary Zoning, Race, Suburbs, Zoning | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 18, 2013

Godsil on a Fair Housing Response to Gentrification

Rachel Godsil (Seton Hall) has posted The Gentrification Trigger: Autonomy, Mobility, and Affirmatively Furthering Fair Housing, 78 Brook. L. Rev. 319 (2013).  It's wonderful to have Rachel's civil rights scholarship back in the (urban) neighborhood again.  Here's the abstract:

Gentrification connotes a process where often white “outsiders” move into areas in which once attractive properties have deteriorated due to disinvestment. Gentrification creates seemingly positive outcomes, including increases in property values, equity, and a city’s tax base, as well as greater residential racial and economic integration; yet it is typically accompanied by significant opposition. In-place residents fear that they will either be displaced or even if they remain the newcomers will change the culture and practices of the neighborhood. Gentrification then is understood to cause a loss of community and autonomy – losses that have been well recognized in the eminent domain literature.

This article focuses on gentrifying neighborhoods that were abandoned during the government sponsored suburban migration of the 1950s through the 1980s. Racially discriminatory practices of government and private actors often denied Black and Latino families the option either to join the migration to the suburbs or to maintain their homes in city neighborhoods. This article argues that in-place residents of now gentrifying neighborhoods should have access to rental vouchers or low-interest loans to restore the autonomy they were previously denied, providing them with viable, self-determining options to remain or exit the neighborhood. Such a remedy – which is consistent with the Fair Housing Act’s obligation to HUD and its grantees to “affirmatively further fair housing” – has the potential to alter the political terrain of gentrification.

Jim K.

June 18, 2013 in Affordable Housing, Race, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, May 27, 2013

Memorial Day & Land Use

The U.S. tradition of Memorial Day has a long and complex relationship with land, history, and memory.  This post has some thoughts on the subject from last year.

Today was Memorial Day in the US.  There are lots of land use issues that we can associate with Memorial Day, which, stripped to its essence, is designed as a day to remember the military members who died in service to the nation.  There is the obvious land use issue of cemeteries, and the related legal and cultural norms governing how we memorialize the dead (check out any of the interesting blogposts or scholarship by Al Brophy and Tanya Marsh on cemeteries).  It gets even more relevant when we start talking about government-owned national or veterans' cemeteries, and the attendant controversies about First Amendment and other issues.  [The photo is from last year's Memorial Day ceremony at Houston National Cemetery, which my daughter attended to honor fallen Marine Lance Corporal Matthew Sauer Medlicott.]  Of course, there are always land use and local government issues involved with things like parades and public ceremonies, and in many communities there are specific rules that govern the "summer season" informally commenced on Memorial Day weekend.

Check out the whole post for some info about a couple of little-known and interesting events from the early history of Memorial Day and land use, including what may be the first Memorial Day celebration, by African-Americans in Charleston on the former planters' racecourse, and a U.S. Supreme Court case about eminent domain for historic preservation on Gettysburg National Battlefied.

We hope you had a safe and happy Memorial Day.

Matt Festa

May 27, 2013 in Eminent Domain, Federal Government, Historic Preservation, History, Property, Race, Scholarship, Supreme Court | Permalink | Comments (0) | TrackBack (0)

Thursday, April 18, 2013

Rose on the History of Racially Restrictive Covenants

Carol Rose (Yale & Arizona) has posted Property Law and the Rise, Life, and Demise of Racially Restrictive Covenants, which is available in the 2013 edition of Powell on Real Property.  Here's the abstract:

This article was given as the 6th Annual Wolf Family Lecture on the American Law of Real Property, University of Florida Levin College of Law (2013). It draws on property law discussions in Richard R.W. Brooks and Carol M. Rose, Saving the Neighborhood: Racially Restrictive Covenants, Law, and Social Norms (Harvard Univ. Press 2013). The article outlines the ways in which constitutional law and property law engaged in a dialog about white-only racial covenants from their early twentieth-century origins to the middle of the twentieth century and beyond. After a shaky beginning, both constitutional law and property law became relatively permissive about racial covenants by the 1920s. But proponents of racial covenants had to work around property law doctrines — including seemingly arcane doctrines like the Rule Against Perpetuities, disfavor to restraints on alienation, "horizontal privity," and "touch and concern." Moreover, property law weaknesses gave leverage to civil rights opponents of covenants, long before Shelley v. Kraemer (1948), the major constitutional case that made these covenants unenforceable in courts. Even after Shelley's constitutional decision, property law continued to be a contested area for racial covenants, with echoes even today.

Jim K.

April 18, 2013 in Constitutional Law, Property, Race, Scholarship, Servitudes, Supreme Court | Permalink | Comments (0) | TrackBack (0)

Friday, April 12, 2013

AALS Workshop on Poverty, Immigration and Poverty/Perry on Gentrification and Transracial Adoption

I got my registration brochure this past week for the AALS Midyear Meeting to be held in San Diego in early June.  Along with two criminal justice programs, it features a Worskhop on Poverty, Immigration and Property that brings together a fascinating mix of presentations from scholars frequently referenced on your favorite land use law blog. Unfortunately, I won't be able to attend; but, I look forward to seeing the papers. 

One panel that drew my eye features work from David Reiss (Brooklyn), Marc Poirier (Seton Hall)  and Twila Perry (Rutgers-Newark).  We have previously blogged about related work by David and Marc.  Prof. Perry has written extensively about transracial adoption, but I was not familiar with her work prior to receiving the mailing.  She will be presenting in June on Gentrification: Race, Class Law and the Integrationist Ideal.  I came across an earlier work she published comparing gentrification and transracial adoption entitled Transracial Adoption and Gentrification: An Essay on Race, Power, Family, and Community, 26 B.C. Third World L.J. 25 (2006).  Here's the abstract:

In this article, Professor Perry finds common ground between the two seemingly disparate contexts of transracial adoption and gentrification. Professor Perry argues that both transracial adoption and gentrification represent contexts in which, in the future, there may be increasing competition for limited resources. In the former case, the limited resource is the healthy Black newborn. In the latter, it is desirable, affordable housing in the centers of our cities. After explaining how a competition between Blacks and whites over Black newborns could arise, Professor Perry argues that in any such competition, Blacks will increasingly find themselves at a disadvantage stemming from the consequences of institutionalized racism. The article argues that there is a public discourse in both contexts that blames Blacks for the problems facing Black families and Black communities and valorizes whites who transracially adopt or move into inner-city neighborhoods undergoing gentrification. Professor Perry urges increased government involvement to preserve Black families and to protect Blacks against the displacement that often results from gentrification.

Jim K.

April 12, 2013 in Property Theory, Race, Scholarship, Urbanism | Permalink | Comments (0) | TrackBack (0)

Saturday, December 22, 2012

Urban Gun Violence

Today I stumbled across this compelling Associated Press story about how urban advocates have very mixed feelings about how the Newtown shootings have seemingly changed the national debate around gun control.

The moment also is causing some to reflect on the sudden change of heart. Why now? Why weren't we moved to act by the killing of so many other children, albeit one by one, in urban areas?

Certainly, Newtown is a special case, 6- and 7-year-olds riddled with bullets inside the sanctuary of a classroom. Even in a nation rife with violence, where there have been three other mass slayings since July and millions enjoy virtual killing via video games, the nature of this tragedy is shocking.

But still: "There's a lot of talk now about we have to protect our children. We have to protect all of our children, not just the ones living in the suburbs," said Tammerlin Drummond, a columnist for the Oakland Tribune.

In her column Monday, Drummond wrote about 7-year-old Heaven Sutton of Chicago, who was standing next to her mother selling candy when she was killed in the crossfire of a gang shootout. Also in Chicago, which has been plagued by a recent spike in gun violence: 6-year-old Aaliyah Shell was caught in a drive-by while standing on her front porch; and 13-year-old Tyquan Tyler was killed when a someone in a car shot into a group of youths outside a party.

Food for thought.

Jamie Baker Roskie

 

December 22, 2012 in Crime, New York, Race, Suburbs, Urbanism | Permalink | Comments (0) | TrackBack (0)

Friday, October 19, 2012

Johnson on the Economic Crisis, Homeownership, and Race

Marcia Johnson (Texas Southern) has posted Will the Current Economic Crisis Fuel a Return to Racial Policies that Deny Homeownership Opportunity and Wealth to African Americans?, published in The Modern American, Volume 6, Issue 1, Spring 2010.  From the introduction:

Perhaps the greatest threat to the continued realization of the American dream is the latest economic crisis rooted in the sub-prime mortgage collapse.12 Some blame the CRA of 1977 for creating a market that they claim provided housing loans to noncreditworthy borrowers – particularly African American families – in the low and moderate income range.13 However, this charge is without direct factual support as the post-CRA period saw a decline in homeownership for African Americans but a mild increase for White homeowners.14 Illegal and fraudulent practices in property appraisals and income reporting directed program benefi ts away from those the program was meant to aid. . . .

This paper is written to examine the potential effect of the market collapse on our nation’s homeownership policies. Part I reviews America’s historical housing and homeownership policies. Part II considers the expansion of homeownership opportunities to historically non-participating communities, particularly the African American community. Part III reviews the culprits of the economic crash of 2008 and explains why sub-prime borrowers often get blamed. Part IV examines solutions to maintain America’s pro-homeownership policy, and Part V concludes that America’s homeownership policy should continue to be vigorously pursued with a goal of including African Americans who have long been excluded by government policies and sanctions from building wealth and thereby stabilizing their communities.

Matt Festa

October 19, 2012 in Federal Government, History, Housing, Houston, Race, Real Estate Transactions, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 29, 2012

Proposed Final Settlement in Baltimore Fair Housing Case

The Baltimore Sun reported this past weekend on the proposed final settlement in Thompson v. HUD, a fair housing case that dates to 1995. 

The case arose when the American Civil Liberties Union of Maryland sued HUD, saying that it demolished old public housing high-rises where mostly African-Americans lived — only to move the residents to equally segregated housing and poor conditions in other parts of the city.

Attorneys for the residents said Friday that the government in effect “perpetually locked” African-American families in neighborhoods of concentrated poverty, violating federal civil right laws. The settlement, which would cover all claims in the case, was filed in conjunction with Baltimore City and the Housing Authority of Baltimore City.

As the Legal Defense Fund, which worked with the ACLU on the case, notes in its press release, the court had ruled in 2005 “that the U.S. Department of Housing and Urban Development (“HUD”) violated the Fair Housing Act by unfairly concentrating African-American public housing residents in the most impoverished, segregated areas of Baltimore City.  Judge Garbis held that HUD must take a regional approach to promoting fair housing opportunities throughout the Baltimore Region.” 

The settlement requires HUD to allocated money towards expansion of the Baltimore Housing Mobility Program, which has been in place since a partial settlement in the 1990s.  The program has enabled over 1,800 families to move to neighborhoods in other parts of the city and to surrounding suburbs.  Under the settlement, the program will, among other things, fund vouchers and counseling over the next seven years for up to 2,600 additional families.

The case is particularly interesting given its regional approach to questions of housing and segregation.  Housing vouchers can be used throughout the region, enabling participants to voluntarily move to suburban areas with greater employment and educational opportunity.  The program provides extensive housing counseling and mobility assistance to aid families interested in moving to lower-poverty neighborhoods.  For more details, see this  2009 report discussing the progress of the program at that time. 

John Infranca

August 29, 2012 in Affordable Housing, Federal Government, Housing, HUD, Local Government, Race, Suburbs | Permalink | Comments (0) | TrackBack (0)

Saturday, August 4, 2012

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

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

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

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

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

Ken Stahl

August 4, 2012 in California, Local Government, Politics, Race, Sun Belt | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 17, 2012

Clowney on Landscape Fairness and Discrimination in the Built Environment

Stephen Clowney (Kentucky), our colleague over at Property Prof, has posted his latest piece, called Landscape Fairness: Removing Discrimination from the Built Environment, forthcoming in the Utah Law Review (2012).  It looks very interesting.  The abstract:

At its core, this Article argues that the everyday landscape is one of the most overlooked instruments of modern race-making. Drawing on evidence from geography and sociology, the paper begins by demonstrating that the built environment inscribes selective and misleading versions of the past in solid, material forms. These narratives — told through street renamings, parks, monuments, and buildings — ultimately marginalize African-American communities and transmit ideas about racial power across generations.

After demonstrating that the landscape remains the agar upon which racial hierarchies replicate themselves, the Article then pivots and examines current efforts to rid the built environment of discriminatory spaces. I put forth that contemporary attacks on the landscape are doomed to fail. The approaches suggested by academics in law and geography either turn a blind eye to the political economy of local decision-making or fail to consider entrenched legal precedent.

The final section of the manuscript lays out a policy proposal that could spark a new focus on issues of “landscape fairness.” I argue in favor of a set of basic procedural requirements that would force jurisdictions to reconsider the discriminatory places within their borders. Procedural mandates would force government to internalize values it might otherwise ignore, allow citizen-critics to challenge dominant historical narratives, and push communities to view the past (and future) in much more diverse terms.

This article touches on one of the most important but least discussed aspects of land use and the community landscape, and it builds on some of Steve's earlier work.  Check it out.

Matt Festa

July 17, 2012 in Community Design, History, Local Government, Planning, Politics, Race, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, May 28, 2012

Memorial Day

Memorial Day Houston National CemeteryToday was Memorial Day in the US.  There are lots of land use issues that we can associate with Memorial Day, which, stripped to its essence, is designed as a day to remember the military members who died in service to the nation.  There is the obvious land use issue of cemeteries, and the related legal and cultural norms governing how we memorialize the dead (check out any of the interesting blog posts or scholarship by Al Brophy and Tanya Marsh on cemeteries).  It gets even more relevant when we start talking about government-owned national or veterans' cemeteries, and the attendant controversies about First Amendment and other issues.  [The photo is from last year's Memorial Day ceremony at Houston National Cemetery, which my daughter attended to honor fallen Marine Lance Corporal Matthew Sauer Medlicott.]  Of course, there are always land use and local government issues involved with things like parades and public ceremonies, and in many communities there are specific rules that govern the "summer season" informally commenced on Memorial Day weekend.

For this post, though, I'll go back to the origins of the holiday.  Interestingly, it started as a private or quasi-public endeavor (perhaps like most civic affairs in the nineteenth century).  In the immediate aftermath of the American Civil War--and for much of the rest of the lives of the generations that fought it--Americans on both sides focused a great deal of attention on preserving its history and creating/controlling its public memory.  In 1868 General John Logan, head of the Union veterans' organization the Grand Army of the Republic (a private society with a great deal of government involvement), issued General Order No. 11, creating what became known as Decoration Day:

The 30th day of May, 1868, is designated for the purpose of strewing with flowers or otherwise decorating the graves of comrades who died in defense of their country during the late rebellion, and whose bodies now lie in almost every city, village, and hamlet church-yard in the land. In this observance no form of ceremony is prescribed, but posts and comrades will in their own way arrange such fitting services and testimonials of respect as circumstances may permit.

Even though this Decoration Day was only adopted in Union states until after World War I (when it was renamed Memorial Day and formally associated with all American wars), the former Confederate states had their own versions to remember the war dead at cemeteries and public venues.  And according to eminent Yale historian David Blight, the first Memorial Day celebration was performed in Charleston, SC, by newly-liberated blacks:

Thousands of black Charlestonians, most former slaves, remained in the city and conducted a series of commemorations to declare their sense of the meaning of the war. The largest of these events, and unknown until some extraordinary luck in my recent research, took place on May 1, 1865. During the final year of the war, the Confederates had converted the planters' horse track, the Washington Race Course and Jockey Club, into an outdoor prison. Union soldiers were kept in horrible conditions in the interior of the track; at least 257 died of exposure and disease and were hastily buried in a mass grave behind the grandstand. Some twenty-eight black workmen went to the site, re-buried the Union dead properly, and built a high fence around the cemetery. They whitewashed the fence and built an archway over an entrance on which they inscribed the words, "Martyrs of the Race Course" . . . . Then, black Charlestonians in cooperation with white missionaries and teachers, staged an unforgettable parade of 10,000 people on the slaveholders' race course. The symbolic power of the low-country planter aristocracy's horse track (where they had displayed their wealth, leisure, and influence) was not lost on the freedpeople.

Anyone interested in the contested history of these issues--with full attention to the negative aspects as well--should read the magnificent book by Prof. Blight (with a name like that, it's a shame he didn't go into land use!), Race and Reunion: The Civil War in American Memory.  And a related part of this history, along with the Decoration/Memorial Day commemorations, was the incipient historic preservation movement.  This confluence of impulses, as well as the also-new movement for environmental conservation, led to the novel idea of having the federal government acquire and administer large tracts of land for the purpose of preserving Civil War history.  As noted in the fascinating monograph by the late National Park Service Historian Ronald F. Lee, The Origin & Evolution of the National Military Park Idea, this was a new and not-uncontroversial exercise of government power over land use:

The idea of the Nation acquiring an entire battlefield and preserving it for historical purposes was new in 1890. It is therefore not surprising that it soon engendered a serious controversy, which arose, fittingly enough, at Gettysburg. The controversy involved two questions of fundamental importance to the future of historic preservation by the Federal Government. Is preserving and marking the site of an historic battlefield a public purpose and use? If so, is it a purpose for which Congress may authorize acquisition of the necessary land by power of eminent domain? The circumstances of this dispute, which had to be settled by the Supreme Court of the United States, are of unusual interest and provide an appropriate introduction to our story.

Lee describes the case, United States v. Gettysburg Electric Ry. Co., 160 U.S. 668 (1896), in the on-line version of the book provided by the NPS.  The case was brought by a railway which objected to the federal government's use of eminent domain to condemn their right of way for construction of a railway to take tourists to the significant "Devil's Den" area of the battlefield, "claiming that establishment of Gettysburg National Park was not a public purpose within the meaning of earlier legislation and that 'preserving lines of battle' and 'properly marking with tablets the positions occupied' were not public uses which permitted the condemnation of private property by the United States."  [What a long way from Kelo that was!]  Justice Rufus Peckham wrote for the unanimous majority in upholding the taking for preservation purposes (and not simply because members of the public could visit the park):

Such a use seems necessarily not only a public use, but one so closely connected with the welfare of the republic itself as to be within the powers granted Congress by the constitution for the purpose of protecting and preserving the whole country.

The Court thus established the constitutionality of taking land by the federal government for national parks, and struck an important legal blow for historic preservation generally.

So from cemeteries to public memory to national parks and historic preservation and much more, Memorial Day is tied to land use law in many ways.  I hope that our US readers have had a good one, and with remembrance for those whom the holiday commends.

Matt Festa

May 28, 2012 in Caselaw, Constitutional Law, Eminent Domain, Environmentalism, Federal Government, First Amendment, Historic Preservation, History, Houston, Politics, Property Rights, Race, Scholarship, State Government, Supreme Court, Takings | Permalink | Comments (0) | TrackBack (0)

Monday, April 30, 2012

Carlson on Priceless Property

Kirsten Matoy Carlson (Wayne State) has posted Priceless Property, forthcoming in the Georgia State University Law Review.  The abstract:

In 2011, the poorest Indians in the United States refused to accept over $1 billion dollars from the United States government. They reiterated their long held belief that money – even $1.3 billion dollars – could not compensate them for the taking of their beloved Black Hills. A closer look at the formation of the Sioux claim to the Black Hills helps us to understand why the Sioux Nation has repeatedly rejected over $1 billion dollars in compensation for land taken by the United States over 100 years ago. This article seeks to understand why the Sioux view the Black Hills as priceless by studying the formation of the Black Hills claim. It constructs a new, richer approach to understanding dispute formation by combining narrative analysis with the sociolegal framework for explaining dispute formation. The article argues that narratives enrich the naming, claiming, and blaming stages of dispute creation and illustrates the usefulness of this new approach through a case study of the Black Hills claim. It uses the autobiographical work of an ordinary Sioux woman to provide a narrative lens to the creation of the Sioux claim to the Black Hills. American Indian Stories by Zitkala-Sa presents a narrative of Sioux life around the time of the claims emergence. By contextualizing and humanizing the claim, my analysis provides insights into why the Sioux claim to the Black Hills emerged into a legal dispute and helps to explain why the Black Hills remain priceless property to the Sioux Nation today.

This article employs more of a law-and-humanities approach focusing on social and historical context and personal stories, which I think makes it an interesting read.

Matt Festa

April 30, 2012 in Constitutional Law, Federal Government, History, Property, Property Rights, Race, Scholarship, Supreme Court, Takings | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 6, 2012

Alexander on Hip-Hop and Housing

It was great to see Matt, Ngai, Ken, Steve Clowney (PropertyProf blog) and a bunch of other friends at ALPS this past weekend.  I was very glad to have the chance to meet Lisa Alexander (Wisconsin), whose scholarship Matt (here) and I (here) have blogged about before.  Lisa has posted a new work, Hip-Hop and Housing: Revisiting Culture, Urban Space, Power, and Law, 63 Hastings L. J. 803 (2012).  Here's the abstract: 

U.S. housing law is finally receiving its due attention. Scholars and practitioners are focused primarily on the subprime mortgage and foreclosure crises. Yet the current recession has also resurrected the debate about the efficacy of place-based lawmaking. Place-based laws direct economic resources to low-income neighborhoods to help existing residents remain in place and to improve those areas. Law-and-economists and staunch integrationists attack place-based lawmaking on economic and social grounds. This Article examines the efficacy of place-based lawmaking through the underutilized prism of culture. Using a sociolegal approach, it develops a theory of cultural collective efficacy as a justification for place-based lawmaking. Cultural collective efficacy describes positive social networks that inner-city residents develop through participation in musical, artistic, and other neighborhood-based cultural endeavors. This Article analyzes two examples of cultural collective efficacy: the early development of hip-hop in the Bronx and community murals developed by Mexican immigrants in Chicago's Pilsen neighborhood. These examples show that cultural collective efficacy can help inner-city residents mitigate the negative effects of living in a poor and segregated community and obtain more concrete benefits from urban revitalization in their communities. Cultural collective efficacy also provides a framework to examine important microdynamics in the inner-city that scholars and policymakers have ignored. Lastly, this Article devises new combinations of place-based laws that might protect cultural collective efficacy, such as: (1) historic districts with affordable housing protections secured through transferable development rights, (2) foreclosure prevention strategies, (3) techniques to mitigate eminent domain abuse, and (4) reinterpretations of the Fair Housing Act's "affirmatively furthering" fair housing mandate. These examples of place-based lawmaking may more effectively promote equitable development and advance distributive justice in U.S. housing law and policy.

Jim K.

March 6, 2012 in Housing, Race, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 17, 2012

Martin Luther King, Civil Rights, and Housing

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.

Matt Festa

January 17, 2012 in Affordable Housing, Chicago, History, Housing, Politics, Property Rights, Race | Permalink | Comments (0) | TrackBack (0)

Monday, November 28, 2011

McFarlane on Instability and Minority Homeownership

My former colleague, Audrey McFarlane (Baltimore), has posted The Properties of Instability: Markets, Predation, Racialized Geography, and Property Law, 2011 Wisc. L. Rev. 855 (2011).  Here's the abstract:

A central, symbolic image supporting property ownership is the image of stability. This symbol motivates most because it allows for settled expectations, promotes investment, and fulfills a psychological need for predictability. Despite the symbolic image, property is home to principles that promote instability, albeit a stable instability. This Article considers an overlooked but fundamental issue: the recurring instability experienced by minority property owners in ownership of their homes. This is not an instability one might attribute solely to insufficient financial resources to retain ownership, but instead reflects an ongoing pattern, exemplified throughout the twentieth century, of purposeful involuntary divestment of land owned by members of racial minorities, particularly Black Americans. The subprime mortgage crisis, the most current manifestation of this involuntary land loss, can be attributed to property doctrine’s policy embrace of markets and importation of contract principles such as the “freedom of contract.” This embrace of markets and contracts ignores the reality that real estate markets are racially segregated, and due to the nature of those disparate markets, easily exploitable. The current racially concentrated subprime mortgage crisis has torn the stable property image apart by revealing longstanding truths: that fraud, exploitation, and desperation are not anomalous. These truths present a disquieting reality: that the persistent and enduring experience for minorities is instability. They also present an overlooked insight that there is a dark side of property ownership: that fraud, exploitation, and desperation are the bad that enables the good of property markets. Because this “bad” is both ubiquitous and geographically situated, it suggests that stability for some within the system of property ownership is provided at the expense of instability for others. This Article argues that we should begin to pay attention to an under-theorized stick in the bundle of property rights: “the right to keep.”

Jim K.

November 28, 2011 in Affordable Housing, Property, Race | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 25, 2011

Chan, Gedal, Been, & Haughwout on the Role of Neighborhood Characteristics in Mortgage Default

Sewin Chan (NYU Wagner), Michael Gedal (NYU Wagner), Vicki Been (NYU Law), and Andrew Haughwout (Federal Reserve Bank-New York) have posted The Role of Neighborhood Characteristics in Mortgage Default Risk: Evidence from New York City. The abstract:

Using a rich database of non-prime mortgages from New York City, we find that census tract level neighborhood characteristics are important predictors of default behavior, even after controlling for an extensive set of controls for loan and borrower characteristics. First, default rates increase with the rate of foreclosure notices and the number of lender-owned properties (REOs) in the tract. Second, default rates on home purchase mortgages are higher in census tracts with larger shares of black residents, regardless of the borrower’s own race. We explore possible explanations for this second finding and conclude that it likely reflects differential treatment of black neighborhoods by the mortgage industry in ways that are unobserved in our data.

Matt Festa

October 25, 2011 in Local Government, Mortgages, New York, Race, Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, October 23, 2011

Seicshnaydre on Public Housing and Racial Segregation in Post-Katrina New Orleans

Stacy Seicshnaydre (Tulane) has posted How Government Housing Perpetuates Racial Segregation: Lessons from Post-Katrina New Orleans, 60 Cath. L. Rev. 661 (2011). In it, she explores how quantity-minded public housing advocacy and NIMBY-style public housing resistance has combined to perpetuate the racial segregation that federal law prohibits. Here's the abstract:

This Article contends that post-Katrina New Orleans exemplifies the exclusionary dynamic in which government-assisted housing operates throughout America and the fundamental failure of American housing policy at the federal, state, and local levels to prevent the racial segregation that inevitably results. Federal law has prohibited racial segregation in government-housing programs for decades, yet it has proven difficult to reverse entrenched patterns of segregation in these programs. Patterns of racial segregation have been particularly intractable in New Orleans, which, prior to Hurricane Katrina in 2005, boasted the second-highest level of poverty concentration in the nation and relatively high levels of poverty concentration in all of the major government-housing programs. Furthermore, low-income white residents in pre-Katrina New Orleans had greater access to middle-income neighborhoods throughout the metropolitan area of New Orleans than low-income black residents, who were overwhelmingly concentrated into high-poverty neighborhoods.

Hurricane Katrina, with its massive levee failures and neighborhood flooding, offered an opportunity for New Orleans to emerge as a more inclusive region; new government-assisted housing could have helped facilitate inclusion, while also responding to the regional-housing needs of the area. However, rental housing bans proliferated throughout the region, primarily in communities that had previously served as affordable suburban alternatives for lower- and middle-income whites in prior decades. These communities sought not only to prevent the development of new rental housing, but also to limit the repair of rental housing that preexisted the storm. At the same time, other communities in metropolitan New Orleans that were the least affordable, most homogeneous, and nationally recognized as desirable places to live were not targeted for government-assisted housing, and thus did not pass similar sweeping rental bans. Therefore, rather than using recovery efforts to reverse racially segregated housing patterns, the region took steps to exacerbate them.

This Article describes a perennial dynamic of two impulses pulling in opposite directions—the anywhere-ist and nowhere-ist impulses, which conspire to perpetuate segregation. The anywhere-ists are primarily focused on securing as much federally assisted housing as possible; the nowhere-ists are primarily focused on keeping it out of their communities. This dynamic has created a “path of least resistance,” whereby government-assisted housing continues to be provided in places where it already exists or in places that are already open and affordable.

Ultimately, federal intervention in the housing market must encompass more than providing a subsidy. It must open neighborhoods not already open, make affordable what is not already affordable, enable housing subsidies to act as gateways to educational and employment opportunity, and inform families historically excluded from housing markets about their choices. Any federal housing interventions that are not so designed will almost certainly exacerbate existing racial segregation and poverty concentration, as they have done for decades, and—as post-Katrina New Orleans illustrates—as they will continue to do, again and again and again.

Jim K.

October 23, 2011 in Affordable Housing, Housing, HUD, NIMBY, Race, Scholarship | Permalink | Comments (0) | TrackBack (0)