March 08, 2013
Widener on Citizen 'Visioning' in Town Comprehensive Planning
Michael N. Widener (Phoenix) has posted Moderating Citizen 'Visioning' in Town Comprehensive Planning: Deliberative Dialog Processes, forthcoming in the Wayne Law Review. The abstract:
This article describes opportunities in Comprehensive Plan (aka General Plan or Master Plan) initial adoption or subsequent amendment processes where stakeholders provide inputs on behalf of a diverse citizens community. The moderation process described here involves the City of Scottsdale, Arizona, currently engaged in developing its 2014 Plan which seeks to extend the city’s planning vision through 2045. Part II of this article provides a brief primer of a General Plan’s role in municipal police power exercise. Parts III and IV describe the history of the Scottsdale experience in amending its General Plan with citizen aid and rebellion. Part V delivers some observations about a citizen input method into planning matters that is subject to popular critique. Part VI summarizes the purpose of citizen inputs into a comprehensive plan, and how professional moderation of the stakeholders' inputs may appropriately channel public contributions to a municipality's land use vision without distortion or corruption of the process.
August 24, 2012
Man Fights to Keep Wife's Remains Buried in Front Yard
If you've been reading the work of some of our colleagues at Property Prof like Tanya Marsh and Al Brophy, you know that cemeteries, memorials, and burial rules can be important issues in law and historical memory. Here's a more quotidian case in point, from the Huffington Post: James Davis, Alabama Man, Fights To Keep Remains Of Wife Buried In Front Yard. From the article:
Davis said he was only abiding by Patsy Ruth Davis' wishes when he buried her outside their log home in 2009, yet the city sued to move the body elsewhere. A county judge ordered Davis to disinter his wife, but the ruling is on hold as the Alabama Civil Court of Appeals considers his challenge.
While state health officials say family burial plots aren't uncommon in Alabama, city officials worry about the precedent set by allowing a grave on a residential lot on one of the main streets through town. They say state law gives the city some control over where people bury their loved ones and have cited concerns about long-term care, appearance, property values and the complaints of some neighbors.
But even some of the objecting neighbors are still concerned with the individual property-rights aspect of this situation:
A strong libertarian streak runs through northeast Alabama, which has relatively few zoning laws to govern what people do with their property. Even a neighbor who got into a fight with Davis over the gravesite – Davis said he punched the man – isn't comfortable with limiting what a homeowner can do with his property.
"I don't think it's right, but it's not my place to tell him he can't do it," said George W. Westmoreland, 79, who served three tours of duty in Vietnam. "I laid my life on the line so he would have the right to do this. This is what freedom is about."
The article profits from the analysis of Samford law prof Joseph Snoe (invoking Mahon (which I just taught) and other important precedents):
A law professor who is familiar with the case said it's squarely at the intersection of personal rights and government's power to regulate private property. While disputes over graves in peoples' yards might be rare, lawsuits over the use of eminent domain actions and zoning restrictions are becoming more common as the U.S. population grows, said Joseph Snoe, who teaches property law at Samford University in suburban Birmingham.
While it's a quirky fact pattern, this sort of case is intensely personal, and goes to show the broad range of issues that can end up in disputes over land use law. Thanks to Troy Covington for the pointer.
August 19, 2012
Bauer on Age-Restricted Communities and Civil Rights Laws & Regulation
Mark D. Bauer (Stetson) has posted ‘Peter Pan’ as Public Policy: Should Fifty-Five-Plus Age-Restricted Communities Continue to Be Exempt from Civil Rights Laws and Substantive Federal Regulation? The abstract:
Although millions of Americans live in 55-plus age-restricted housing, little research has been done to determine whether these communities benefit their residents, or the nation as a whole. This is particularly ironic because these communities exist in contravention to anti-discrimination laws by virtue of a specific exemption granted to real estate developers by an Act of Congress. Ordinarily age discrimination is prohibited by the Fair Housing Act, Title VIII of the Civil Rights Act of 1968. Successful lobbying by special interest groups carved out an exemption for 55-plus housing.
The original exemption required developers to offer elders special services and facilities in these communities in return for the exemption. Over time, those requirements were eliminated and now the only requirement is that these communities exclude families and children.
While lifestyles focused on golf and tennis may be attractive to younger retirees, older Americans often find themselves in communities bereft of the services and facilities they need for basic life activities and safety. The very nature of these communities result in elders left with depreciating homes, and many are without the financial means to retrofit their 55-plus home or to move into a community better adapted for their needs. This Article explores a popular form of “senior housing” that is unsuitable for most older Americans.
August 19, 2012 in Community Design, Constitutional Law, Development, Federal Government, History, Homeowners Associations, Housing, HUD, Real Estate Transactions, Scholarship, Sun Belt | Permalink | Comments (0) | TrackBack
August 04, 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.
April 11, 2012
Southern California's New Regional Plan
My last post discussed some of the backlash against Southern California's new regional plan, which emphasizes high-density transit-oriented development. California Planning & Development Report now provides some of the details of the plan, including:
- a total cost of $524 billion over 20 years
- $6.7 billion in funding for biking and walking
- $246 billion on public transportation
- 80 plus percent of all jobs and housing within a half mile of rail stations or bus stops by 2035
- 68% of all new development would be apartment or condos.
February 21, 2012
East L.A. Cityhood Proposal Defeated
An interesting local government story from the L.A. Times: East Los Angeles, an unincorporated and predominantly Latino neighborhood of 126,000 in Los Angeles county has had its latest petition to incorporate as a municipality denied by the Local Agency Formation Commission (LAFCO.)
Unlike many states, which simply permit any unincorporated area to incorporate if it can gather enough signatures for an incorporation petition, California actually requires all proposed municipal boundary changes to be approved by LAFCO, and one of the major factors LAFCO considers is the fiscal viability of the proposed municipality. In this case, the LAFCO concluded that East L.A. lacks sufficient taxable resources to generate sufficient tax revenue to finance the municipal services (fire, police, etc.) that the new city would require.
East L.A.'s situation is interesting for many reasons. For one thing, it highlights what Michelle Anderson has referred to as the problem of municipal "underbounding." Take a look at the map of the Los Angeles basin below:
It's hard to read, but you can see that I have circled East LA in the center of the map. The white portion of the map to the west and north of East LA are all encompassed within the city of Los Angeles. The multi-colored territories to the East and South are other incorporated cities. You can see that aside from a few small "islands" of unincorporated territory, most of the urbanized part of LA county lies within some incorporated municipality. So what happened?
As detailed in Gary Miller's excellent book Cities by Contract, during the 1940s and 50s the two largest cities in LA county, Los Angeles and Long Beach, began aggressively annexing neighboring unincorporated land. Many unincorporated areas were apprehensive because they sensed that annexation was driven by a desire to acquire tax-rich territory so as to redistribute tax revenue from the annexed territory to the annexing municipality. These unincorporated areas could prevent annexation only by incorporating as municipalities themselves, but if they did so, they would then become responsible for financing their own municipal services, a potentially crippling burden. LA county was also worried about the annexations because, as LA and Long Beach grew and swallowed unincorporated areas, they took power away from the county. So the county and the unincorporated areas came up with an ingenious idea called "the Lakewood plan." Under the Lakewood plan, any incorporated municipality could "contract" with the county for the provision of services so as to take advantage of the county's economies of scale in the provision of services while allowing municipalities to retain the powers they really wanted: taxing, zoning, and school control. With the Lakewood plan in place, there was no disincentive for unincorporated areas to incorporate, and they did so with abandon. Today there are 88 incorporated municipalities in LA county.
So why did East LA not incorporate? Frankly, no one wanted to annex poor areas like East LA, so East LA had no reason to incorporate. And, even under the Lakewood plan, incorporated municipalities would still be required to finance their schools out of their own tax base, which is a very significant expenditure for a poor area. The result is that East LA remained unincorporated. So why incorporate now? And why are they being prevented from doing so?
The second question is somewhat easier to answer. After the rash of Lakewood plan incorporations, someone in California state government decided this system of willy-nilly incorporation was crazy, and the LAFCO was formed in order to create a more orderly process of dealing with municipal boundary changes.
Now the harder question: why would east LA want to incorporate in light of the crushing financial burden that would impose? Remember, by remaining unincorporated, East LA receives services from LA county that are highly subsidized by residents of incorporated cities, who are still required to pay property taxes to the county in addition to the fees they pay for the contracted services. Why forego this subsidy and have to pay your own way? Incorporating would give East LA control of its own zoning, schools, and tax base, but with such a minimal tax base they would apparently be better off (and LAFCO certainly thought so) getting their subsidy from the county.
According to the website for the East LA cityhood movement, the goal is the basic one of bringing local government closer to the people. LA county government is the largest local government in the United States, with a population of 10 million, but has only a five-person board of supervisors. If my remedial math serves, that means each supervisor governs roughly 2 million people.
The East LA incorporation drive runs counter to the received wisdom that municipal boundary change follows a kind of "public choice" logic in which the motivation of annexing cities is to loot the tax revenue of unincorporated areas and unincorporated areas are driven by the selfish desire to hoard their stash from being redistributed to the urban masses. Here, it seems, the desire to incorporate stems from a yearning for self-government by a group of people who perceive themselves as a distinct community within the larger city.
Richard Briffault writes that there are two competing conceptions of local government in our political system: the polis and the firm. Local governments are sometimes seen as little democratic republics, and other times as participants in a marketplace. East LA's incorporation petition seems to rest on the former conception of local government -- a city is a forum for enlightened self-government. The reason East LA's petition has been stymied, however, is because LAFCO adheres to the latter conception -- local governments are business organizations. It is telling in this regard that the principal reason LAFCO gives for disapproving the incorporation is that East LA lacks a sufficient number of big-box stores to support an independent city.
November 09, 2011
Ballot Box Zoning -- A Response to Festa
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.
April 04, 2011
The Final Four and Land Use in the Unzoned City
As many of you might be aware, the NCAA Men's Basketball Final Four has been this weekend in Houston, where I live and teach. As I write this, the championship game is set to tip off in about an hour in Reliant Stadium, about a mile from my home. So of course you must be thinking "how is Festa going to turn this into a land use issue?"
Already done, with my students' help. On the first day of the semester, to make the point that land use issues intersect with almost everything that goes on in our communities, I put up the home page of the Houston Chronicle and challenged them to explain the land use issues in a given story. The lead story was something about the then-upcoming Final Four. So here's some of what we came up with on the fly:
Land assembly--where did they get the land to build the stadium and the parking? It's next to the old Astrodome (you can see a corner of it in the picture), so I don't believe eminent domain was needed this time around, but you know that's always a big issue with new sports stadiums.
Use--the Reliant/Astrodome complex was just used up until about two weeks ago for one of the nation's largest Livestock Show & Rodeo events with accompanying carnival. It's impressive that they could retrofit for the Final Four so quickly.
Transportation--can people get there? Do the roads need to be widened, etc.? If so, who pays, and are there legal changes needed? Houston has a seven-year old light rail that goes from downtown through the Texas Medical Center to the stadium, and it's been quite busy the past weekend. Also, there've been lots of limos, helicopters, and blimps around town the last few days--where do they go?
Local government--the stadium is goverened not by the City of Houston, but by an independent quasi-public County Sports Authority. Plus the transportation is governed by a separate Metro agency. However a lot of coordination is necessary for big events like the Final Four.
Facilities--lots of people coming in from all over the country; where do they stay, etc. For example, I took a ULI-sponsored construction site tour about a year ago of the just-opened Embassy Suites downtown. The city's goal was to get a hotel opened in time for the Final Four, so there was a fairly complicated tax incentive scheme put in place that involved changing the law to provide an occupancy-tax break for new hotels sited in a particular space (and they say we don't have zoning based on use). The incentivized siting was between the light rail and the new Discovery Green park--where a lot of free concerts have been given as part of the festivities--and the downtown convention center, where the "Bracketown" official hoopla program was held. All of this is just a few blocks from where I teach at South Texas College of Law. Discovery Green is itself also a recently-built and critically acclaimed new urban park and public space. Finally, all of the planning and coordination that involves a city's hosting a big event requires lots of logistics, regulatory changes, and many many permit approvals, for things ranging from temporary buildings to new signs.
So my students and I think there are a lot of land use issues involved with having the Final Four in town, and it goes to show that even in the Unzoned City, there are many ways that land use gets regulated and controlled. It's been fun having all the activity in town, and . . . Go Butler!
UPDATE: It wasn't to be for the underdogs, so congrats to Connecticut. The photo above was taken by Natalie Festa at almost the exact time that the national championship game tipped off. "The Road Ends . . ." = land use metaphor? Tuesday is the women's championship--don't tell my fellow Texans that I'll be pulling for Notre Dame vs. A&M.
April 4, 2011 in Development, Downtown, First Amendment, Green Building, History, Houston, Humorous, Local Government, Planning, Politics, Property, Property Rights, Scholarship, Signs, Sun Belt, Teaching, Texas, Transportation, Urbanism | Permalink | Comments (0) | TrackBack
March 02, 2011
Long on Sustainability v. Sprawl in the Post-Public-Lands West
Jerry Long (Idaho) explores the causes of and reasons for a community's commitment to sustainable land-use planning in his recently posted Private Lands, Conflict, and Institutional Evolution in the Post-Public-Lands West, 28 Pace Env. L. Rev. ___ (forthcoming 2011). Here's the abstract:
As rural communities face amenity-driven population growth and globalizing culture and economic systems, the process by which those communities imagine and implement desired futures grows increasingly complex. Globalization- and technology-facilitated and amenity-driven population growth increases the value of place-bound benefit streams – including land – promoting increased levels of physical development and a changed built environment. At the same time, globalizing culture and evolving local demographics might alter local land-use ideologies, yielding a preference for resource protection and more sustainable local land-use regimes. This article engages in a theoretical and empirical exploration that seeks to answer a single question: Why, in the face of competing land-use ideologies, might a community choose to adopt a more resource-protective, or resource-sustaining, land-use regime? Ultimately, it is only upon witnessing the actual effects of previous choices on the ground – including most significant, real harm to valued social or natural amenities – that a community is able to imagine and implement a land-use regime that can protect the amenities that community values.
March 2, 2011 in Community Design, Community Economic Development, Comprehensive Plans, Conservation Easements, Density, Development, Environmental Law, Environmentalism, Federal Government, Globalism, Land Trust, Las Vegas, Local Government, Planning, Scholarship, Smart Growth, Sprawl, Subdivision Regulations, Suburbs, Sun Belt, Sustainability, Urbanism, Water, Zoning | Permalink | Comments (0) | TrackBack
February 04, 2011
Snow Days in Texas and Elsewhere
Today I am in my hometown of Albany NY, trudging through waist-high ramparts of plowed snow. Much of the US has suffered tremendous snowfalls/blizzards in the past week. Back in my current home of Houston, TX, my family and students are having a "snow day" because they anticipate maybe getting some white stuff. Since the typical transplanted-yankee reaction is to scoff at the inability of southern cities to deal with snowy weather, I think it's worth editing and reprising this post from last year, where I defend the local government choice to take the occasional shutdown over the necessary land use investment for snow removal:
Snow Day in Texas
Hard to believe, but it might snow today in Houston. Such weather is pretty rare in Houston. My law school has closed for the day in mere anticipation of snow.
I grew up in upstate New York [where I am today, in Albany], where the average January temperature is 22 F (compared to Houston's 55 F); average winter snowfall was 64" (compared to Houston's < 0.05"). Tennessee, where I lived for about eight years as an adult, is just far enough north to get some decent snowstorms each winter, but overall it has a much warmer, and shorter, winter. Yet it seemed that in Tennessee the authorities were constantly cancelling school and shutting the city down. Often the schools had to extend their year to make up for all of the snow days. In New York we hardly ever lost a day of school due to snow; perhaps 0-2 per year. Even a 12-inch snowfall was not a problem, while in Tennessee they would preemptively close for a forecast of snow.
Fellow northern transplants and I would snicker at all this. You call this a snowstorm? I chalked up the different approaches to the hardiness of our yankee constitutions. But eventually I think I figured out what might be the biggest factor in the different regional reactions, and it's a land use & local government issue. Albany County's snow removal budget for supplies alone (salt, fuel) is $1,217,500. This doesn't include the operating costs for personnel, nor the capital outlays for the equipment; a new snow plow can cost a city around $200,000. Chicago's total snow removal budget is $17 million.
So while these types of expenditures are necessary in northern cities, it wouldn't make sense in warmer climes to purchase and maintain the equipment, supplies, and personnel necessary for snow removal capability. In Houston a freak storm like today's doesn't happen often enough to remotely justify the expense. It becomes a more difficult question for places in the latitudinal middle, like Tennessee and Kentucky. One could measure the economic impact of lost school and work days and business in the area, and compare it to the costs of snow removal. But even that would still need to make some predictive assumptions based on variance from year to year. (Besides, why invest in a snow plow when Georgia will soon be underwater due to global warming?)
Assuming rational actors, one would think we could draw lines between the places where it is more efficient as a matter of municipal policy to do snow removal, and those where it is more efficient to simply ride out the storms as they come. Obviously there are a lot of other factors for planners in making this decision, including geography, the urban/suburban/rural character of the place, and other unique factors. Plus there are the politics of snow removal (a blizzard is said to have altered the outcome of Chicago's mayoral primary in 1979).
But obviously it would never make sense on the Gulf Coast, so we'll just hunker down as we watch the freak snowfall today (my three-year-old [now four, and still talking about last year's snow] has no idea what this stuff is). But don't feel bad for me-- it will be back up to 74 F by Tuesday.
So take that, yankees. As Jessica points out, in Buffalo they make the social land use adjustments that are necessary, but they take a rational approach in Houston too. I might reconsider this stance tonight after I freeze off my fourth point of contact.
UPDATE: No snow in Houston, but everything's frozen. Contrast the icy fountain in front of my Houston apartment with the snowdrifts piled high in front of my childhood home in NY. Yet the local government responses are as different as the respective amounts of frozen H2O.
January 18, 2011
Price on the New Deal and the Federalization of the Mosquito
Polly J. Price (Emory) has posted Federalization of the Mosquito: Structural Innovation in the New Deal Administrative State, Emory Law Journal vol. 60 (2010). The abstract:
Malaria was a significant problem in the southern United States during the early decades of the twentieth century. Part of President Franklin D. Roosevelt’s New Deal focused on economic development of the South, with improvement of public health in that region as an integral part. This Article is a case study of increased federal public health efforts during the New Deal and World War II eras, which replaced some traditionally state and local areas of control. Efforts to "federalize" the mosquito encountered significant limitations, and never accomplished primary federal responsibility for the eradication of malaria. One federal agency in particular - the Office of Malaria Control in War Areas - institutionalized the federal response to malaria in the South during World War II. This assertion of wartime jurisdiction maintained only nominally the primacy of state authority.
The New Deal administrative state saw structural experimentation and innovation at a grand level; this Article’s study of federal efforts to combat malaria in the southern United States provides a good example. In one decade, federal efforts ranged from Works Progress Administration employment, experiments with scientific expertise within the Tennessee Valley Authority, federal intervention in civilian areas as a war strength rationale, and malaria control by federal appropriation. The most significant step resulted from reorganization of the New Deal administrative state under the Federal Security Agency, an independent agency of the U.S. government established pursuant to the Reorganization Act of 1939.
From a federalization perspective, a critical point is that the federal government initiated a malaria eradication effort with broad jurisdiction that helped reshape public perception of the federal government’s responsibilities. It did so under a "national security" mandate that blurred the distinction between domestic and international security, with an effect on the federal government’s regulatory power. But the federal government then withdrew from this wartime assertion of jurisdiction, leaving public health federalism largely unchanged.
The New Deal and of the rise of the administrative state had some significant land use stories that are not as well known as they should be.
January 13, 2011
See the Mojave!
This article examines how the law is being asked to adjudicate disputed sights in the context of the Mojave Desert. The Mojave is the best known and most explored desert in the United States. For many people, though, the Mojave is missing from any list of America’s scenic wonders. The evolution in thinking about the Mojave’s aesthetics takes places in two acts. In the first act, covering the period from the nineteenth century to 1994, what began as a curious voice praising the desert’s scenery developed into a powerful movement that prompted Congress to enact the CDPA. The second act begins around 2005, when the nation’s energy policy again turned to the potential of renewable energy. The Mojave is an obvious sight for large-scale solar energy development, but that supposedly green technology threatens many of the scenic values that Congress decided to protect in the CDPA.
The common theme that runs through this article is that the law needs to develop better ways to address the importance of visual perception of both natural and cultural sights. The sights of the Mojave Desert elicit different reactions from different people. Each of these reactions is both strongly held and reasonable, which challenges the law’s ability to accommodate them. The experience with desert preservation and the proposed solar facilities shows that the law needs to find a way to respect contrasting perceptions of the same things. Sometimes this can be achieved by putting the right thing in the right place. Often, though, the same sight that some people treasure is a sight that others find offensive. In such cases, we should prefer decision-making processes that solicit public involvement that first identifies those contrasting perceptions and then seeks to honor them. The role of public input is especially critical on government property, which characterizes most of the Mojave Desert. Congress has intervened to insure the appropriate response to the conflicting public perceptions for each of the three contested Mojave Desert sights. That congressional action and the attendant place-based lawmaking offer the best hope of honoring the contrasting perceptions of the sights of the Mojave.
January 13, 2011 in Aesthetic Regulation, Clean Energy, Environmental Law, Environmentalism, Federal Government, Las Vegas, Sun Belt, Sustainability, Wind Energy | Permalink | Comments (0) | TrackBack
December 06, 2010
Woman Claims Ownership of the Sun
Well it's not exactly "land" use, since the Sun is a ball of fiery gas, but it is a key player in the status of the Earth's land and ecology, and the issue involves property rights, so check out this story: Spanish Woman Claims Ownership of the Sun:
MADRID (AFP) – After billions of years the Sun finally has an owner -- a woman from Spain's soggy region of Galicia said Friday she had registered the star at a local notary public as being her property.
Angeles Duran, 49, told the online edition of daily El Mundo she took the step in September after reading about an American man who had registered himself as the owner of the moon and most planets in our Solar System.
There is an international agreement which states that no country may claim ownership of a planet or star, but it says nothing about individuals, she added.
"There was no snag, I backed my claim legally, I am not stupid, I know the law. I did it but anyone else could have done it, it simply occurred to me first."
Apparently she plans to start charging a fee (a special assessment?) to all users of the Sun. So prepare to either stay indoors forever (and ditch your solar panels) or pay up. When I get the information about where to send your checks, I'll pass it on. Thanks to Lyle Higginson for the pointer.
November 08, 2010
Adverse Possession and the Foreclosure Crisis?
This New York Times article, At Legal Fringe, Empty Houses go to the Needy, tells the story of a guy in Florida who seems to be attempting to use adverse possession to take abandoned homes and then lease them for low rent to needy families.
NORTH LAUDERDALE, Fla. — Save Florida Homes Inc. and its owner, Mark Guerette, have found foreclosed homes for several needy families here in Broward County, and his tenants could not be more pleased. Fabian Ferguson, his wife and two children now live a two-bedroom home they have transformed from damaged and abandoned to full and cozy.
There is just one problem: Mr. Guerette is not the owner. Yet.
In a sign of the odd ingenuity that has grown from the real estate collapse, he is banking on an 1869 Florida statute that says the bundle of properties he has seized will be his if the owners do not claim them within seven years.
A version of the same law was used in the 1850s to claim possession of runaway slaves, though Mr. Guerette, 47, a clean-cut mortgage broker, sees his efforts as heroic. “There are all these properties out there that could be used for good,” he said.
Apparently most of the homes are in foreclosure. Guerette has taken possession, made some improvements, and is paying the property taxes. The tenants and the neighbors--at least the ones quoted in the article, who understandably prefer occupied to abandoned houses next door--think he is doing a great thing. The State of Florida disagrees. He is being prosecuted for fraud.
Is this an innovative response to the foreclosure crisis, or is it a scam? No one likes adverse possession in theory when they first hear about it. Students always ask, like Jennifer Aniston in Office Space, "so how is that not stealing?" But of course the justification for AP--we prefer that abandoned land go to someone who will put it to its highest and best use--seems to have some application here. On the other hand, this certainly isn't a "good faith" trespass under a belief in legitimate title. The article quotes Florida law prof Michael Allan Wolf, who expresses concern that using adverse possession this way can lead to a serious disruption in chains of title and with the foreclosure process. And it's not hard to see how this kind of activity could lead to widespread confusion and potential fraud.
If this idea takes it a little too far, then what can we do about the parallel problems of massive foreclosures, abandoned buildings, and the lack of affordable housing? Thanks to Scott Rempell for the pointer.
November 8, 2010 in Affordable Housing, Financial Crisis, Housing, Mortgage Crisis, Mortgages, Property, Property Theory, Real Estate Transactions, Suburbs, Sun Belt | Permalink | Comments (1) | TrackBack
June 21, 2010
NYT on the Costs of Seizing Fannie & Freddie
Over the weekend this story by Binyamin Applebaum was featured on the front page of the New York Times: Cost of Seizing Fannie and Freddie Surges for Taxpayers.
CASA GRANDE, Ariz. — Fannie Mae and Freddie Mac took over a foreclosed home roughly every 90 seconds during the first three months of the year. They owned 163,828 houses at the end of March, a virtual city with more houses than Seattle. The mortgage finance companies, created by Congress to help Americans buy homes, have become two of the nation’s largest landlords. . . .
For all the focus on the historic federal rescue of the banking industry, it is the government’s decision to seize Fannie Mae and Freddie Mac in September 2008 that is likely to cost taxpayers the most money. So far the tab stands at $145.9 billion, and it grows with every foreclosure of a three-bedroom home with a two-car garage one hour from Phoenix. The Congressional Budget Office predicts that the final bill could reach $389 billion.
The article has some good vignettes of how the Fannie-Freddie "rescue" process is playing out in communities like the featured one in Arizona, where private contractors are paid to maintain, renovate, and try to resell the foreclosed homes. The article also gives a short but interesting background on Fannie and Freddie.
Fannie and Freddie increased American home ownership over the last half-century by persuading investors to provide money for mortgage loans. The sales pitch amounted to a money-back guarantee: If borrowers defaulted, the companies promised to repay the investors. . . .
“Our business is the American dream of home ownership,” Fannie Mae declared in its mission statement, and in 2001 the company set a target of helping to create six million new homeowners by 2014. Here in Arizona, during a housing boom fueled by cheap land, cheap money and population growth, Fannie Mae executives trumpeted that the company would invest $15 billion to help families buy homes.
As it turns out, Fannie and Freddie increasingly were channeling money into loans that borrowers could not afford. As defaults mounted, the companies quickly ran low on money to honor their guarantees. The federal government, fearing that investors would stop providing money for new loans, placed the companies in conservatorship and took a 79.9 percent ownership stake, adding its own guarantee that investors would be repaid.
The huge and continually rising cost of that decision has spurred national debate about federal subsidies for mortgage lending. . . .
I think the interesting question for the future is whether we are willing or able to reassess the idea of homeownership as the American Dream, and the extent to which we (over)promote homeownership as a public policy.
June 17, 2010
Stop The Beach I--The Lead Opinion
As mentioned below, the Supreme Court decided today what was billed to be the most significant property rights case of the Term, and probably since Kelo in 2005: Stop the Beach Renourishment v. Florida Dept. Environmental Protection. The decision doesn’t seem to be particularly earth-shattering in its result, but the opinions do give us quite a bit to analyze for its implications for property and land use law. In this post I will give my first-day analysis of the lead opinion; in subsequent posts I’ll review the concurrences, round up what other commentators are saying, and highlight some issues for the future. I think that Stop the Beach will provide a good background for lots of discussion about land use law over the coming weeks and months. I. The Breakdown of the Decision The Court ruled 8-0 to affirm the judgment of the Florida Supreme Court that the petitioners did not suffer an uncompensated taking of property rights under the Fifth and Fourteenth Amendments. Justice Stevens did not participate. Justice Scalia wrote the lead opinion, which is the Opinion of the Court for Parts I, IV, and V. Justice Scalia’s opinion in Parts II & III (joined by C.J. Roberts, J. Thomas, & J. Alito) argued that the Constitution recognizes the concept of a “judicial taking,” even though the claim in this case did not warrant such a ruling. Justice Kennedy (joined by J. Sotomayor) concurred, but wrote separately to argue that the case did not require the Court to decide the judicial takings issue. Justice Breyer (joined by J. Ginsburg) also concurred by arguing that it was unnecessary to resolve the constitutional question. II. Justice Scalia's Opinion of the Court Justice Scalia wrote the lead opinion, which is the Opinion of the Court for Parts I, IV, and V. In the first Part, Justice Scalia (writing for the eight Justices who agreed in the disposition) first reviewed the common law rights associated with “littoral,” or coastal property, including the right of access, right to use the water, right to an unobstructed view, and the right to receive accretions and relictions to the littoral property. Now, whether a particular state subscribes to the public trust doctrine, or some other legal baseline for property rights in beachfront property, the typical regime starts with the basic recognition that the state owns the “wet sand”—the land from the sea up to the mean high-tide line—and private landowners own the “dry sand” above that line, but usually subject to public access easements or other restrictions. The Opinion of the Court makes short work of the distinction between “accretion,” which is the gradual, imperceptible growing or shrinking of the coastline—where common law awards the land to the individual owner—and “avulsion,” which is a more “sudden and perceptible” addition or loss (caused by, e.g., a hurricane)—where the State, holding the property in public trust, remains the owner of the formerly submerged land. Justice Scalia’s Opinion notes that the Florida statutory scheme clearly delineates a program whereby the State may implement projects that “renourish” beaches by adding lots of sand, which allows the State to establish an “erosion control line” that effectively re-sets the property line. Because these State actions are more properly characterized as “avulsions” (even though they are caused by the government, and not natural forces such as a hurricane), they fit within the legitimate statutory scheme, and the property owners’ common law beachfront rights do not trump the State’s prerogative to do beach renourishment as a matter of constitutional takings law. III. Justice Scalia's Plurality Opinion While he wrote for a unanimous Court in the disposition of the case, the jurisprudential controversy will be over his Parts II & III. The meat of the Justice Scalia opinion, and what is certainly going to be the source of discussion, is his assertion that there can in fact be such a thing as a “judicial taking” within the scope of the Fifth and Fourteenth Amendments. In Part II.A., Justice Scalia sets forth his opinion that even though it is not the result here, there can in fact be such a thing as a (compensable) taking of property by a judicial decision. Noting that the “classic” case of a taking is a government acting through its legislative or executive branches to condemn title to private property through eminent domain or a regulatory taking, Justice Scalia insists that there is nothing in the Constitution that specifies which branch of government can be responsible for a taking: the Takings Clause, he writes, is “concerned simply with the act, and not with the governmental actor” (8). He makes much of the observation that first, state governments are not held to the same standards for separation of powers under the federal constitution, and that as a result, it shouldn’t matter which branch of a state government is responsible for an alleged deprivation of property rights. Justice Scalia articulates a test for “judicial takings” that is sure to be the baseline for arguments over the issue in years to come: If a legislature or a court declares that what was once an established right of private property no longer exists, it has taken that property, no less than if the State had physically appropriated it or destroyed its value by regulation. Justice Scalia’s Part II spends sections B and C tearing down the concurrences of Justices Kennedy and Breyer, so I’ll discuss those in a later post. For now, reading only the lead opinion of Justice Scalia, I think it’s safe to say that (1) it will be hard to argue that a court opinion effects a federal constitutional taking in the face of well-grounded state law; but that (2) the “judicial takings” issue is wide open for the future in property and land use law. Matt Festa
As mentioned below, the Supreme Court decided today what was billed to be the most significant property rights case of the Term, and probably since Kelo in 2005: Stop the Beach Renourishment v. Florida Dept. Environmental Protection. The decision doesn’t seem to be particularly earth-shattering in its result, but the opinions do give us quite a bit to analyze for its implications for property and land use law.
In this post I will give my first-day analysis of the lead opinion; in subsequent posts I’ll review the concurrences, round up what other commentators are saying, and highlight some issues for the future. I think that Stop the Beach will provide a good background for lots of discussion about land use law over the coming weeks and months.
I. The Breakdown of the Decision
The Court ruled 8-0 to affirm the judgment of the Florida Supreme Court that the petitioners did not suffer an uncompensated taking of property rights under the Fifth and Fourteenth Amendments. Justice Stevens did not participate. Justice Scalia wrote the lead opinion, which is the Opinion of the Court for Parts I, IV, and V. Justice Scalia’s opinion in Parts II & III (joined by C.J. Roberts, J. Thomas, & J. Alito) argued that the Constitution recognizes the concept of a “judicial taking,” even though the claim in this case did not warrant such a ruling. Justice Kennedy (joined by J. Sotomayor) concurred, but wrote separately to argue that the case did not require the Court to decide the judicial takings issue. Justice Breyer (joined by J. Ginsburg) also concurred by arguing that it was unnecessary to resolve the constitutional question.
II. Justice Scalia's Opinion of the Court
Justice Scalia wrote the lead opinion, which is the Opinion of the Court for Parts I, IV, and V. In the first Part, Justice Scalia (writing for the eight Justices who agreed in the disposition) first reviewed the common law rights associated with “littoral,” or coastal property, including the right of access, right to use the water, right to an unobstructed view, and the right to receive accretions and relictions to the littoral property. Now, whether a particular state subscribes to the public trust doctrine, or some other legal baseline for property rights in beachfront property, the typical regime starts with the basic recognition that the state owns the “wet sand”—the land from the sea up to the mean high-tide line—and private landowners own the “dry sand” above that line, but usually subject to public access easements or other restrictions.
The Opinion of the Court makes short work of the distinction between “accretion,” which is the gradual, imperceptible growing or shrinking of the coastline—where common law awards the land to the individual owner—and “avulsion,” which is a more “sudden and perceptible” addition or loss (caused by, e.g., a hurricane)—where the State, holding the property in public trust, remains the owner of the formerly submerged land. Justice Scalia’s Opinion notes that the Florida statutory scheme clearly delineates a program whereby the State may implement projects that “renourish” beaches by adding lots of sand, which allows the State to establish an “erosion control line” that effectively re-sets the property line. Because these State actions are more properly characterized as “avulsions” (even though they are caused by the government, and not natural forces such as a hurricane), they fit within the legitimate statutory scheme, and the property owners’ common law beachfront rights do not trump the State’s prerogative to do beach renourishment as a matter of constitutional takings law.
III. Justice Scalia's Plurality Opinion
While he wrote for a unanimous Court in the disposition of the case, the jurisprudential controversy will be over his Parts II & III. The meat of the Justice Scalia opinion, and what is certainly going to be the source of discussion, is his assertion that there can in fact be such a thing as a “judicial taking” within the scope of the Fifth and Fourteenth Amendments. In Part II.A., Justice Scalia sets forth his opinion that even though it is not the result here, there can in fact be such a thing as a (compensable) taking of property by a judicial decision. Noting that the “classic” case of a taking is a government acting through its legislative or executive branches to condemn title to private property through eminent domain or a regulatory taking, Justice Scalia insists that there is nothing in the Constitution that specifies which branch of government can be responsible for a taking: the Takings Clause, he writes, is “concerned simply with the act, and not with the governmental actor” (8). He makes much of the observation that first, state governments are not held to the same standards for separation of powers under the federal constitution, and that as a result, it shouldn’t matter which branch of a state government is responsible for an alleged deprivation of property rights. Justice Scalia articulates a test for “judicial takings” that is sure to be the baseline for arguments over the issue in years to come:
If a legislature or a court declares that what was once an established right of private property no longer exists, it has taken that property, no less than if the State had physically appropriated it or destroyed its value by regulation.
Justice Scalia’s Part II spends sections B and C tearing down the concurrences of Justices Kennedy and Breyer, so I’ll discuss those in a later post. For now, reading only the lead opinion of Justice Scalia, I think it’s safe to say that (1) it will be hard to argue that a court opinion effects a federal constitutional taking in the face of well-grounded state law; but that (2) the “judicial takings” issue is wide open for the future in property and land use law.
May 17, 2010
Dehring & Depken on Watershed Regulation
Carolina A. Dehring (Georgia--Dept. of Insurance, Real Estate, Legal Studies) and Craig A. Depken (North Carolina--Charlotte, Business Admin/Economics) have posted Sharing the Burden of Water Supply Protection, in
April 23, 2010
Are there "controlled experiments" in land use? Does it matter?
Land use appears to resist easy generalizations. We are often told, for example, that although land use is a formal power of the state, it is a matter of inherently "local" concern, involving fine-grained determinations of how proposed land uses will affect the character of a particular locale. Perhaps for this reason, states universally delegate the land use power to local governments. It is also said that every parcel of land is unique. Thus, as I teach my Property students, courts tend to prefer specific performance as a remedy for breach of real estate contracts, although specific performance is generally disfavored as a remedy for breach of other contracts. Likewise, most states have declined to pass the Uniform Land Transactions Act, perhaps out of deference to the notion that all land is unique. Given the apparent place-specific nature of land use, it is not surprising that many scholars tend to write about their own place -- so Jamie frequently writes about land use conflicts in Georgia, Matt about Houston, and my last several posts, here, here and here, have been mostly about southern California.
When I present my research on southern California's growth politics, I am often faced with a question or comment the gist of which is: "I'm from [Place X.] Why should I care what happens in southern California?" If, as the previous paragraph suggests, generalizations about land use are extremely difficult, how can we even answer this question? I typically answer it by noting that 1) southern California has long been a template for land use trends (and other political and cultural trends) throughout the nation and, 2) it is a fascinating case study in its own right. But both answers have proven unsatisfying. "Southern California as a template" works to an extent, but I quickly find that there are aspects of southern California's urban development that are so idiosyncratic as to greatly limit the usefulness of cross-jurisdictional comparisons. In other words, I run right smack into the problem I identified at the start, that every land use issue is unique and resistant to generalizations. "Southern California as a fascinating case study" solves that problem, but then brings back the "Why should I care?" question.
A palliative, if not a solution, to this problem arrived in the form of a passage from The Deliberative Practitioner, a book by John Forester, a professor of Urban Planning at Cornell. Forester recounts a conversation with a colleague in which the colleague expressed concern about presenting his research on urban planning in Cleveland because he worried that his work would be seen as "too Cleveland," not sufficiently national in scope. Forester's response: "There are no controlled experiments" in land use planning. Every city, every land use dispute, every political environment is unique, and efforts to generalize from one experience are doomed to fail. Thus, Forester argues, we should focus on the particular, on the "stories" planners tell of their own domestic milieus, rather than impressing those stories into the service of some grand scheme.
Forester's insight certainly made me feel better about the "who cares?" question, but didn't exactly answer it. If it is impossible to generalize from the particular, does that mean land use scholarship has value only within whatever local environment it studies? Can we draw no useful general principles from particular case studies?
Perhaps we need to add a bit of the lawyer's skill set to the planner's. After all, we common-law lawyers are trained in the art of distilling general principles from specific cases, of making comparisons between cases by highlighting important factual similarities, as well as distinguishing cases by identifying significant factual differences. Maybe when writing case studies of land use issues, it's a simple matter of making sure to separate those aspects that we think are generalizable from those that are unique to the specific circumstances of the case. Furthermore, it may well be that what makes a particular situation unique is also precisely what makes it an interesting object of study. To apply these principles to my case: I try to articulate that southern California's growth politics are typical of the polarization between developers and NIMBYs that we see in other growth conflicts throughout the nation, but that its politics are also unique because of the historical role of land development in the region's economy, the strong sense of neighborhood identity, and the willingness to resort to the initiative process to resolve issues of public policy. But I also make the case that southern California's uniqueness makes it a particuarly useful case study, because the animosity between developers and NIMBYs there is so acute that we can see it suffusing local politics (especially in public relations campaigns over slow-growth initiatives), where such animosity would perhaps remain latent elsewhere.
This is all well and good, but still leaves some lingering questions. Why must scholarship be "useful" anyway, rather than merely interesting or informative? Do we really need to justify our use of case studies by explaining their broader relevance? Is it sufficient to contribute something of value to the world's store of knowledge?
April 13, 2010
Krugman on Georgia Bank Failures
Illustrious economist and New York Times columnist Paul Krugman has directed his learned attention toward the failure of small banks in Georgia. Why? Embarrassingly enough, it's because Georgia leads the nation in bank failures, and the majority of those banks are small.
Georgia is part of what Krugman charmingly labels "Flatland" - where "permissive zoning and abundant land make it easy to increase the housing supply, a situation that prevented big price increases and therefore prevented a serious bubble." In most of Flatland, by Krugman's reckoning, no housing bubble means fewer bad mortgages means fewer bank failures. No so in Georgia.
Georgia’s debacle is that it doesn’t seem to have anything to do with the issues that have dominated debates about banking reform. For example, many observers have blamed complex financial derivatives for the crisis. But Georgia banks blew themselves up with old-fashioned loans gone bad.
And for all the concern about banks that are too big to fail, Georgia suffered, if anything, from a proliferation of small banks. Actually, the worst offenders in the lending spree tended to be relatively small start-ups that attracted customers by playing to a specific community. Thus Georgian Bank, founded in 2001, catered to the state’s elite, some of whom were entertained on the C.E.O.’s yacht and private jet. Meanwhile, Integrity Bank, founded in 2000, played up its “faith based” business model — it was featured in a 2005 Time magazine article titled “Praying for Profits.” Both banks have now gone bust.
So what’s the moral of this story? As I see it, it’s a caution against silver-bullet views of reform, the idea that cracking down on just one thing — in particular, breaking up big banks — will solve our problems. The case of Georgia shows that bad behavior by many small banks can do as much damage as misbehavior by a few financial giants.
Krugman's formula for reform in Georgia is better protections against predatory lending. Former Democratic Governor (and predatory lending lawyer) Roy Barnes tried hard for those protections when he was in office, only to have them later rolled back. Will this latest crisis change that calculation? Probably depends on the next governor, who might be - Roy Barnes. Predictions about how that race might come out are probably beyond even Krugman's prognosticating skills.
Jamie Baker Roskie
April 07, 2010
Zingales on the Menace of Strategic Default
Luigi Zingales (U. Chicago--Business) has an interesting article in the latest City Journal called The Menace of Strategic Default: Homeowners who walk away from their mortgages undermine our financial system. The idea of "strategic default" is that it might be economically rational for owners of underwater mortgages--where the debt owed is greater than the market value of the home--to walk away, even if they can in fact afford to keep making payments. Zingales looks at the numbers and surmises that while still low, the number of such "strategic defaults" is on the uptick. He posits that the only thing preventing a mass movement of strategic defaults is the lingering American normative disapproval of failing to pay debts:
What does prevent people from strategic default, it seems, is their sense of what’s right. More than 80 percent of Americans think that it’s immoral to default on a mortgage if you can afford to pay it, according to a recent paper by Luigi Guiso, Paola Sapienza, and myself, and these people are 77 percent less likely to declare their intention to default strategically than people who don’t find the act immoral.
Zingales is concerned that a breakdown of this social norm could put the entire system at risk.
How much risk? If the underwater homeowners who currently refuse to default changed their minds and decided to abandon their mortgage commitments, the results could be catastrophic. The more people walk away, the more houses get auctioned off, further depressing real-estate prices. This additional decline would push more homeowners into negative territory, leading to still more defaults.
To prevent the catastrophe resulting from such a normative breakdown, Zingales and Eric Posner offer a proposal:
Eric Posner and I have proposed a simple solution to the problem of underwater mortgages. We envision a reform of the bankruptcy code that, in areas where house prices have dropped precipitously, would require lenders to give homeowners the option of resetting their mortgages to the current value of their houses. In exchange, the lenders would get 50 percent of the houses’ future appreciation.
Interesting analysis; read the whole thing.