Tuesday, June 26, 2012
Just wanted to follow up on Stephen Miller's post about the new TDR Handbook. I've had the privilege of working with co-author (and planning consultant extraordinaire) Rick Pruetz on several TDR projects here in the Southeast. This Handbook is a follow on to Rick's two previous books, Saved by Development and Beyond Takings and Givings. Rick is amazingly knowledgable and very generous with his time and expertise. We just finished helping the City of Milton implement a TDR program as part of their form-based code. I will continue to work with Rick during my year off (which starts Friday!).
Jamie Baker Roskie
Monday, June 18, 2012
Bustic, Gaeta & Radeloff on Using Zoning and Land Acquisition to Increase Property Values and Help Fish
The ability of zoning and land acquisition to increase property values and maintain largemouth bass growth rates in an amenity rich region
Source:Landscape and Urban Planning, Volume 107, Issue 1
Van Butsic, Jereme W. Gaeta, Volker Radeloff
Land use change is a leading cause of environmental degradation in amenity rich rural areas. Numerous policies have been used to combat these negative effects, including zoning and land acquisition. The empirical effects of these policies on the environment and land markets are still debated. Using a coupled economic–ecological model in conjunction with landscape simulations we investigate the effect of zoning and land acquisition on property prices and largemouth bass (Micropterus salmoides) growth in Vilas County, WI, an amenity rich region with growing rural development. Using econometric models of land use change and property prices, we simulate four alternative land use scenarios: a baseline simulation, a zoning change simulation, a land acquisition program simulation, and a land acquisition program+zoning simulation. Each scenario is simulated over 82 separate lakes. For each scenario we calculate the length of a 20-year old largemouth bass, property prices, and number of new residences at simulation years 20, 40 and 60. The policies have small effects on largemouth bass size and property prices on most lakes, although the effects are more pronounced on some. We also test if the increased property values due to land acquisitions are greater than the cost of the land acquisition program and find that in our case, land acquisition does not “pay for itself”. Our methodology provides a means to untangle the complex interactions between policy, land markets, and the environment. Empirically, our results indicate zoning and land acquisition are likely most effective when targeted to particular lakes.
Friday, June 15, 2012
Via Congress for the New Urbanism, I came across this link to what looks like a great panel discussion hosted by the Cato Institute and cosponsored by Next American City, called "The Death and Life of Affordable Housing." Here is the link to the video. The session features a terrific lineup of thoughtful commentators. From the event description:
Featuring Ryan Avent, Author of The Gated City; Adam Gordon, Staff Attorney, Fair Share Housing; Randal O'Toole, Senior Fellow, Cato Institute, and author of American Nightmare: How Government Undermines the Dream of Homeownership; Matthew Yglesias, author of The Rent Is Too Damn High; moderated by Diana Lind, Executive Director and Editor-in-Chief, Next American City. . . .
The Cato Institute and Next American City will jointly host a panel discussion about housing and development policy in American cities. For several decades, U.S. policymakers have grappled with how to make housing more affordable for more people. In the past year, several new books have claimed that various government tools, such as zoning and subsidies, have limited people's access to desirable, affordable housing—while other leading thinkers have suggested that markets alone will not create socially, economically, and environmentally sustainable communities. With a shared goal of creating livable, affordable communities for all people—but diverging ideas of how to get there—the panel will give voice to a range of perspectives on the hotly debated issue of how to shape 21st-century American cities.
I plan to check it out this weekend. Enjoy,
June 15, 2012 in Affordable Housing, Books, Conferences, Development, Environmentalism, Housing, Lectures, Planning, Scholarship, Sustainability, Urbanism, Zoning | Permalink | Comments (0) | TrackBack (0)
Wednesday, June 6, 2012
Christopher Leinberger (Brookings) and Mariela Alfonso have published Walk this Way:The Economic Promise of Walkable Places in Metropolitan Washington, D.C., an economic analysis of certain DC neighborhoods using walkability measures. The study offers four findings:
--More walkable places perform better economically.
--Walkable places benefit from being near other walkable places.
--Residents of more walkable places have lower transportation costs and higher transit access, but also higher housing costs.
--Residents of places with poor walkability are generally less affluent and have lower educational attainment than places with good walkability.
The authors urge inclusion of walkability measures into lender underwriting criteria, developer feasability analyses, and private foundation sustainability metrics. In a brief article on TheAtlanticCities.com, Leinberger argues that walkability in neighborhoods has become a price benefit and that cities need to meet the growing demand. (Hat tip to my NDLS colleague Chris O'Byrne for sharing TheAtlanticCities.com piece)
Tuesday, June 5, 2012
Earlier in the Spring, Matt let us know about the availability of the first chapter of Daniel Mandelker's Designing Planned Communities (2010). Now, Prof. Mandelker (Washington U.) has posted the next four chapters of the book. The entire book can be downloaded from the author's website. Here are the links to the second through fifth chapters in order with the author's descriptions:
This is the second chapter in a book, Designing Planned Communities (2010), that reviews the concepts and ideas that go into the design of planned communities, and explores how local governments can encourage and provide for their good design through land-use regulation. Planned communities require a number of design solutions: a design for the entire project as well as designs at the site, building, and streetscape levels. The discussion of these issues in this chapter assumes a planned community large enough to need design solutions at the project level and for a number of subsidiary elements such as mixed-use centers, neighborhoods, sites, buildings, and streetscapes. Many of these design solutions are also required in smaller planned communities such as mixed-use communities. All planned communities need a neighborhood design, for example, and all must consider designs for buildings and their sites. This is true even of cluster housing. The chapter surveys the design ideas, concepts, and solutions that are available for planned communities and for each level within these communities.
This is the third chapter in a book, Designing Planned Communities (2010), that reviews the concepts and ideas that go into the design of planned communities, and explores how local governments can encourage and provide for their good design through land-use regulation. This chapter shows how design policies and standards can be incorporated in local comprehensive plans, design guidelines, and manuals for the purpose of guiding the design of planned communities. Comprehensive, or general, plans are mandatory in many states and contain planning policies for the future growth of the jurisdiction. Land-use regulations and decisions are expected to take the planning policies into account, and, in some states, must be consistent with the plan. Design policies can be one of the elements in a plan. Design guidelines and manuals are separate and usually unofficial documents that supplement planning policies in the plan and land-use regulations in the zoning ordinance.
The role these documents play in the review and approval of planned communities varies. Significant design detail in these documents can provide a policy framework for planned community zoning amendments or for formal design standards in planned community regulations. Alternatively, some local governments adopt design guidelines and manuals if they know they will not be able to update their zoning regulations for some time, and need policies to support rezoning requests and variances that may arise from major conflicts with underlying zoning in the meantime.
This is the fourth chapter in a book, Designing Planned Communities (2010), that reviews the concepts and ideas that go into the design of planned communities, and explores how local governments can encourage and provide for their good design through land-use regulation. Design standards can be included in the planned community ordinance, where they function as one of the standards local governments consider when they review planned community projects. Such standards in planned community ordinances present a different legal problem than design standards in advisory plans, guidelines, and manuals. Design standards in ordinances are regulatory, and compliance with these standards is a condition to project approval. A constitutional problem may arise, however, if the design standards contain qualitative terms such as “harmonious,” “creative,” or “innovative,” which courts may find unconstitutionally vague.
There is no way around the constitutionality problem if only words are used to set forth a standard because all descriptive words are ambiguous and indeterminate. There is no language “fix” that can solve this problem. This chapter provides examples of design standards that use indeterminate terms that may make the standards vulnerable to constitutional objection. Selecting these standards for discussion was done intentionally, partly because plans, guidelines, and manuals can help give meaning to indeterminate standards, and partly because the constitutional objections are not as serious as many imagine. At the same time, local governments may not opt out of this problem by declining to have any standards for planned communities. A review without standards of planned community projects is an unconstitutional delegation of legislative power.
This is the fifth chapter in a book, Designing Planned Communities (2010), that reviews the concepts and ideas that go into the design of planned communities, and explores how local governments can encourage and provide for their good design through land-use regulation. Design standards in planned community regulations can raise constitutional problems because a court can hold them unconstitutionally vague or an unconstitutional delegation of legislative power. This problem occurs especially with planned community regulations that contain indeterminate design standards, such as equirements that a planned community’s design be “creative” or “harmonious.” The judicial record on the constitutional issues is mixed. Some courts have struck down stand-alone design standards that are not part of a comprehensive program for regulating planned communities, but some have not. Courts have upheld design standards when they are one element in a program of planned community regulation. Even when the courts have struck down design standards, they have provided drafting guidelines that can avoid constitutional problems.
Monday, June 4, 2012
Recently I came across the following cluster of five houses in an otherwise standard subdivision of front-
facing houses with their usual (yawn) front setbacks, side setbacks, and usual suburban land use controls that created the dominant suburban urban form.
The image of these five houses in Teton County, Idaho, however, will immediately induce a land use lawyer's headache. Inevitably, everyone knows, that if there is the will to make something like this work as a "one off" experiment, someone will call it a "planned unit development," or something like that, and there will quickly be a retreat from the strictures of the dominant code and a run for the relief provisions, whatever they may be locally. Maybe its a conditional use, maybe it's a special use district, a planned unit development. [Insert your local jurisdiction's relief provision here.]
But I began to wonder... what if you wanted to build a whole community, or thinking big--a whole city--built upon the premise of this five-house approach? As readers of this blog know, I have recently been somewhat infatuated with the idea of how attention to our smallest living units--neighborhoods--can be an impetus to solving our larger land use and environmental challenges. And so, I find this particular model of five units intriguing. Think about the density of these single-family houses (quite high), and think about the livability of an environment like this (also quite high, I believe). This approach will not appeal to everybody--nothing does--but if it can appeal to people in big-sky country of eastern Idaho, I think it could appeal to lots of other people, too. The combination of density and appealability seems to me a potentially winning combination in efforts to try to build more dense, environmentally sustainable communities.
Now, the question is, how could we make experiments in suburban neighborhood design like this easier from a land use law perspective? One person who has thought about the issue significantly is Ross Chapin, whose book Pocket Neighborhoods, addresses urban design of small neighborhood units in suburban reaches. Chapin's dominant proposal clusters 8 to 12 houses, rather than five, around a central "common," as shown in the graphic here. In addition, the Municipal Research and Services Center of Washington has compiled codes from places that have adopted this style of housing, which the Center calls cottage housing. For those interested in pursuing this, a review of the codes the Center has compiled is well worth it. These model and enacted codes provide approaches to neighborhood design that I believe could prove valuable to re-thinking what it means to live in a suburb, and maybe even in quasi-urban, environments.
Stephen R. Miller
Monday, May 28, 2012
Yesterday I took my kids to see The Avengers, the ensemble superhero movie featuring Ironman, Thor, Captain America, and The Hulk. But before all the world-saving action started up, I caught a throwaway line from the Gwyneth Paltrow character who plays Robert Downey Jr.'s assistant/girlfriend-- referring to their "Stark Tower" skyscraper in midtown Manhattan (powered by some futuristic sustainable energy source, natch) and their plans to build several more, she notes that she was planning to spend the next day "working on the zoning" for the other towers. I made a mental note that this could be a humorous, quick blog post reaffirming my theory that there is a land use angle to everything, and then proceeded to watch the superheroes smash it out with the bad guys to my son's delight.
But just now, the majesty of the Internet has shown me how badly I've been beaten to the punch. Via our Network colleagues at the Administrative Law Prof Blog, I found a link to a blog called Law and the Multiverse: Superheroes, Supervillans, and the Law, which has a blog post--nay, a 1,500+ word essay!--on this very subject called The Avengers: Arc Reactors and NYC Zoning Laws. This is unbelievable--from the same offhand script line that set off my land-use radar, the author delves deep into the New York City zoning code, citing chapter and verse of the regulations; identifies where Stark Tower is on the maps (all with copious linkage); and then explains the legal options available to our developer/hero:
I. Stark Tower’s Zoning District
As it happens, we know exactly where Stark Tower is meant to be located within New York: it’s built on the site of the MetLife building at 200 Park Ave.
(Update: Early on some sources indicated that it was built on the site of the MetLife building and now others indicate that Stark built the tower on top of the preexisting building. This doesn’t change the analysis. Whatever the zoning status of the MetLife building, the construction of Stark Tower was likely a “structural alteration” of the building that would disallow a grandfathered nonconforming use. It certainly exceeded the kind of “repair or incidental alteration” that would preserve the nonconforming use.)
Here’s a zoning map of the area. As you can see, it’s in a C5-3 commercial district in the Special Midtown District, which means Stark Tower has a maximum Floor Area Ratio of 18 (3 of that comes from the special district). Basically this means that if the building takes up its entire lot then it can only have 18 full-size floors (or the equivalent). There are various ways to increase the FAR, such as having a public plaza on the lot. The sloped, tapering structure of Stark Tower means that it can have more floors without exceeding its FAR because the upper floors are much smaller than the lower ones. Given the size of the 200 Park Ave lot, it’s believable that Stark Tower could be that tall, given its shape and the various means of increasing the FAR.
Stark mentions that the top ten floors (excluding his personal penthouse, presumably) are “all R&D.” Is that allowed in a C5-3?
Apart from residential uses, the permitted commercial uses in a C5 are use groups 5 (hotels), 6, 9 and 10 (retail shops and business services) and 11 (custom manufacturing). Unfortunately, research and development is not allowed as a permitted or conditional use in this district. In fact, scientific research and development is specifically allowed in a C6 as a conditional use, which requires a special permit and approval from the City Planning Commission.
So Stark needs some kind of special dispensation. How can he get it? There are many possible ways.
The essay goes on to analyze the options for rezoning, variances, and the related issues of electrical power generation permits and FAA approval, again chock full o' links to the statutes, regs, and caselaw. The author, James Daily, concludes that "while Pepper Potts may indeed have to do some work to get the next few buildings approved, it’s not far-fetched from a legal perspective." Read the whole thing, it's wild, and quite sophisticated too.
But I will draw this even more compelling conclusion: Even the world's greatest Superheroes are no match for the awesome power of the Zoning Code and the Planning Commission.
Thursday, May 24, 2012
Everyone in New York is talking about fracking. We routinely have folks stopping by our door asking us to sign petitions or donate money to fight fracking. (In fact, NYSPIRG stopped by last night.) I live in the city of Buffalo, which has banned fracking. This is the case in many towns and municipalities around the state and may work because of New Yorks Home Rule law. As there is a moratorium in place pending some additional environmental review, we have some time before courts fully examine the legitimacy of these local bans. The ban in Buffalo is largely sympolic as no one is proposing to drill any gas wells here, but some of these communities are in the heart of the Marcellus shale.
Last week, Vermont became the first state with a state-wide ban. Again this is probably largely symbolic but the public outcry against this technique is worth listening to.
Friday, May 18, 2012
The Big Apple is now greener than ever. On April 30, the New York City Council adopted some significant changes to its zoning code designed to promote distributed renewable energy and green building practices. These Green Zone Amendments will make it easier for New Yorkers to gain city approvals for small wind turbines, green rooftops, solar energy installations, skylights, and similar sustainable land uses on their properties. The NYC Department of City Planning has posted some short descriptions of the amendments on its website.
Among these new amendments are provisions that encourage rooftop wind turbines on tall buildings and that relax height and other restrictions for solar panels. It will be interesting to see whether the amendments are able to spur a major increase in small-scale wind and solar energy development in New York City in the coming years.
To read a New York Times interview of an NYC city planning official and real estate developer on the potential impact of these new amendments, click here.
Tuesday, May 15, 2012
Paul Boudreaux (Stetson)--the original Founding Editor of the Land Use Prof Blog-- has published a book that addresses one of the most critical issues in American land use in the 21st century: The Housing Bias--Rethinking Land Use Laws for a Diverse New America (Palgrave MacMillan, 2011). Here's the SSRN abstract:
As more than 300 million Americans squeeze into our country, and as single-person households now outnumber families of parents and children, it's time to rethink our land use laws that favor the single-family house. Our zoning laws were created in an age that assumed that nearly everyone outside of central cities preferred to live a house separated from neighbors; this assumption is no longer valid and no longer sustainable for a crowded nation. The Housing Bias explores the legal discrimination against apartment buildings and other forms of low-cost residences and how these laws make housing more expensive for modest-income Americans – a key factor in the development of subprime loans and other risky practices that eventually sparked our current economic crisis. Why do our laws prohibit the construction of low-cost housing? It is largely because existing homeowners prefer to exclude them – an astonishing example of law’s granting a legal privilege to wealthier citizens, a privilege that our nation can no longer afford.
This provocative book explores real-world 21st-century controversies of the housing bias. It visits the recent effort of Virginia suburbs to enforce “overcrowding” laws against mostly Latino families who migrated to the area to build new subdivisions, and then moves to New York, where eminent domain is used through a dubious interpretation of law to seize condominiums of middle-class families to build a new pro basketball arena. The book reports on the story of how laws requiring large house lots prevented the construction of a mobile-home community in a growing rural county in southern Michigan, and then examines the failed effort to legalize the widespread phenomenon of small “granny flats” in the backyards of the middle-class homes in the packed city of Los Angeles.
The Housing Bias concludes by exploring how we could update our laws to accommodate the housing needs of a diverse new America, in which half of all households now consist of only one or two persons. The prescriptions range from the complex, such as using state laws to override the power of local homeowners to zone out low-cost housing in certain zones, to the simple, such as facilitating the construction of apartments above suburban malls. It is useful for libraries and for college courses on society or law or for any intelligent reader. Written in an entertaining and jargon-free style, The Housing Bias is essential reading for understanding the flaws and the future of the American community.
One of the great things about land use is that it is fundamentally about places and their stories, and in this book Paul uses these examples to make a larger point about a critical issue of law and policy. The Housing Bias is definitely worth reading and thinking about.
Sunday, May 6, 2012
Sarah Schindler (Maine) has posted The Future of Abandoned Big Box Stores: Legal Solutions to the Legacies of Poor Planning Decisions, 83 Universtiy of Colorado Law Review 471 (2012). The abstract:
Big box stores, the defining retail shopping location for the majority of American suburbs, are being abandoned at alarming rates, due in part to the economic downturn. These empty stores impose numerous negative externalities on the communities in which they are located, including blight, reduced property values, loss of tax revenue, environmental problems, and a decrease in social capital. While scholars have generated and critiqued prospective solutions to prevent abandonment of big box stores, this Article asserts that local zoning ordinances can alleviate the harms imposed by the thousands of existing, vacant big boxes. Because local governments control land use decisions and thus made deliberate determinations allowing big box development, this Article argues that those same local governments now have both an economic incentive and a civic responsibility to find alternative uses for these “ghostboxes.” With an eye toward sustainable development, the Article proposes and evaluates four possible alternative uses: retail reuse, adaptive reuse, demolition and redevelopment, and demolition and regreening. It then devises a framework and a series of metrics that local governments can use in deciding which of the possible solutions would be best suited for their communities. The Article concludes by considering issues of property acquisition and management.
Prof. Schindler's article addresses an important problem in communities across the U.S., and offers some innovative solutions.
May 6, 2012 in Architecture, Development, Economic Development, Green Building, Local Government, Planning, Redevelopment, Scholarship, Suburbs, Sustainability, Zoning | Permalink | Comments (0) | TrackBack (0)
Friday, April 6, 2012
The food truck wars continue. In this piece on Slate, Matt Yglesias talks about several cities' and states' efforts to ban or regulate food trucks in a way that prevents them from competing with existing restaurants. He cites what he considers a particularly egregious example: a San Francisco ordinance that permits any existing business to comment on an application for a new vending license and directs the city to "consider" whether the new vendor will operate within 300 feet of an existing vendor in deciding whether to grant the license. Yglesias concludes: "a basic rule of thumb seems to suggest itself: The fact that business owners would prefer not to face competition is not a valid regulatory purpose."
This proposition would surely come as a surprise to most land use folks, who generally accept as a matter of course that land use regulations are, at their core, anti-competitive. From large-lot single-family residential zoning that inflates the cost of housing for the benefit of existing homeowners to anti-big-box store laws that are designed to protect quaint mom-and-pop businesses, zoning represents pure economic protectionism. Indeed, the San Francisco ordinance Yglesias mentions is pretty familiar: many zoning laws give neighbors the right to file a protest to a proposed land use change in their neighborhood, which can result in requiring the city to enact the zoning change by a supermajority vote or possibly even block the zoning change (I address the legality of these neighborhood zoning provisions in my article Neighborhood Empowerment and the Future of the City.)
Zoning laws are generally allowed to be anti-competitive because they are thought to be means of combatting free-rider problems. Economists like William Fischel and Bruce Hamilton have argued, for example, that a preponderance of expensive homes on large lots tends to correlate with higher-quality schools. But in the absence of large-lot zoning, people would have strategic incentives to build smaller, less expensive homes in the area just to have access to the better schools. Of course, if too many folks did the same, the very thing that attracted people to the area (the good schools) will be lost as the area becomes congested with smaller homes and more schoolchildren.
Food trucks, it would seem, present an even stronger free-rider problem. Foot traffic is drawn to an area because of the existing shops, restaurants, etc, and the foot traffic in turn generates a demand for more shops, restaurants, etc. Rents and property values go up, as do property taxes, and many high-traffic areas use special assessments or business improvement districts to provide collective sanitation or security services for the area (again overcoming a free-rider problem, as I explain in my Neighborhood Empowerment piece). When a food truck swoops into a high-traffic area, it pays no rent, no property taxes, and no assessments for that privilege, and its lower operating costs enable it to siphon some of that foot-traffic away from existing fixed eateries, thus free-riding on the efforts of those eateries to bring in the foot traffic in the first place. Think of it this way: if the food trucks are sufficiently successful to bankrupt the existing fixed eateries, leaving lots of vacant storefronts in their wake, people will stop coming to the area altogether, and the food trucks will move elsewhere. In other words, the food trucks depend on the existence of fixed eateries to fuel their business. But while fixed eateries pay taxes and fees for the ability to do business in a particular place, food trucks do not. So it should not be a surprise that existing businesses are unhappy.
The solution that suggests itself to me is fairly obvious: since business improvement districts are mechanisms for overcoming free-rider problems, than food trucks should be forced to pay assessments to the business improvement district or special assessment district in those areas where they operate. Legally and conceptually, though, this is difficult to accomplish because special assessments are, as a matter of hornbook law, supposed to be keyed to the benefits that accrue to real property. Because food trucks are not real property, it is difficult to apply the special assessment to them. But wouldn't it be possible for municipalities to use their home rule powers to impose some sort of free-rider fee on food trucks? I would hope that cities and states will consider this alternative rather than simply banning food trucks altogether.
For more on food trucks, see my colleague Ernesto Hernandez-Lopez's piece, LA’s Taco Truck War: How Law Cooks Food Culture Contests.
Wednesday, March 28, 2012
A couple of weeks ago, I sat down and read Matt Yglesias’ The Rent Is Too Damned High and Ryan Avent’s The Gated City back to back. Both were a pleasure to read, for their content, and for the opportunity to kick a couple of bucks to two of my fave bloggers behind an ennobling veil of commerce. As an avid reader of both authors’ online work, there were no huge surprises, but reading the ebooks took me deeper and inspired some more considered thought on their ideas. Ryan Avent and Matt Yglesias (and Ed Glaeser too!) are separate humans with their own identities and ideas. But these “econourbanists” share a core view, and I hope they will forgive me if I consider their work together. Although they arrive at a similar place, the two books take very different roads: Avent’s book is a bit wonkier and more economistic, focusing on the macro role of cities in enhancing productivity through economies of scale and agglomeration; Yglesias treats the same set of issues more polemically and with an emphasis on the personal, thinking about how individuals should expect to make a living in an increasingly service-oriented economy, the importance of accessible cities to the kind of prosperity he envisions, and the perils of any obstacle that makes urban life inaccessible (“the rent is too damned high!”). Read both!
This is a long post with extensive analysis of the reviewed work and the authors' own insights. Waldman is a qualified skeptic of the authors' approaches. A very insightful essay that grapples with the issues I am trying to address in my own scholarship. I am glad to add a new term-- "econourbanist"-- to my land use lexicon! Thanks to Geoff Corn for the link.
Thursday, March 15, 2012
Henry E. Smith (Harvard) has posted what looks to be a very important property theory piece, Property as the Law of Things, forthcoming in the Harvard Law Review. The abstract:
The New Private Law takes seriously the need for baselines in general and the traditional ones furnished by the law in particular. One such baseline is the “things” of property. The bundle of rights picture popularized by the Legal Realists downplayed things and promoted the expectation that features of property are detachable and tailorable without limit. The bundle picture captures too much to be a theory. By contrast, the information cost, or architectural, theory proposed here captures how the features of property work together to achieve property’s purposes. Drawing on Herbert Simon’s notions of nearly decomposable systems and modularity, the article shows how property employs a thing-based exclusion-governance architecture to manage complexity of the interactions between legal actors. Modular property first breaks this system of interactions into components, and this begins with defining the modular things of property. Property then specifies the interface between the modular components of property through governance strategies that make more direct reference to uses and purposes, as in the law of nuisance, covenants, and zoning. In contrast to the bundle of rights picture, the modular theory captures how a great number of features of property – ranging from in-rem-ness, the right to exclude, and the residual claim, through alienability, persistence, and compatibility, and beyond to deep aspects like recursiveness, scalability, and resilience – follow from the modular architecture. The Article then shows how the information cost theory helps explain some puzzling phenomena such as the pedis possessio in mining law, fencing in and fencing out, the unit rule in eminent domain, and the intersection of state action and the enforcement of covenants. The Article concludes with some implications of property as a law of modular things for the architecture of private law.
Thursday, March 8, 2012
I have just posted my most recent paper on ssrn. It is entitled Local Government, One Person/One Vote, and the Jewish Question. It can be downloaded for free here, and has recently been submitted to law reviews for publication. I presented a version of this paper at the ALPS conference last week Here is the abstract:
This article argues that the Supreme Court’s jurisprudence regarding the application of the 'one person/one vote' rule to local governments, while often considered hopelessly confused, actually contains an internal logic that reflects the ambiguous legacy of the Enlightenment in this country. There are three broad strands within the one person/one vote jurisprudence: the first, beginning with Avery v. Midland County, requires cities to apportion votes based on a 'one person/one vote' principle; the second, exemplified by Ball v. James, permits certain municipalities to apportion votes according to a 'one dollar/one vote' formula; and a third, captured in Holt Civic Club v. City of Tuscaloosa, gives the state plenary power to allocate votes with regard to some local government matters. Although these three strands seem impossible to reconcile, they are all consistent with an Enlightenment jurisprudential project to consolidate the power of the central state by suppressing the ability of entities exercising authority over particular territories, such as local governments, to challenge the state’s hegemony. Each line of cases accomplishes this end by creating an idealized standard for political participation that conceptualizes voters as abstract, homogenous individuals who are divorced from their parochial territorial commitments and thus capable of being acted upon by the state without regard to such commitments.
The article further reveals, however, that the evisceration of territory in these cases is actually an illusion. Under the guise that territory has been rendered immaterial, the courts surreptitiously permit local governments to exercise a substantial degree of territorial control. For example, in the case of City of Eastlake v. Forest City Enterprises, the Court upheld a tiny suburban municipality’s parochial exercise of the zoning power (excluding an affordable housing complex) by invoking the municipality’s subjection to the one person/one vote rule. Because one person/one vote purports to remove territorial affiliations from the political realm, it had the power in Eastlake to transform a small fragment of a large metropolitan region into 'the people,' a despatialized abstraction that was entitled, by virtue of its ostensible remove from territorial particularity, to exercise the zoning power in its own interest.
I explain the ambiguous use of territory in the jurisprudence by drawing upon the Enlightenment obsession with 'the Jewish question,' or the problem of incorporating territorially-bound subgroups like the Jewish ghetto into a modern nation-state predicated on the idea of a uniform citizenry. The tension between the surface homogenization and the underlying fragmentation of territory in the one person/one vote cases reflects an uneasy compromise between the Enlightenment attempt to incorporate groups such as the Jews into the abstract 'rights of man' and a pragmatic realization that territorial sovereignty is a precondition to securing human rights. This compromise, I argue, has troubling consequences: it enables those with sufficient political or financial power to retreat into insulated enclaves under the aegis of state neutrality, while foreclosing recompense for those excluded from such enclaves by deploying the fiction that they still retain their abstract rights. The article concludes accordingly that the egalitarian promise of the one person/one vote jurisprudence rings hollow.
Saturday, February 25, 2012
Daniel R. Mandelker (Washington U) has a new article called Housing Quotas for People with Disabilities: Legislating Exclusion, Urban Lawyer, Vol. 43, No. 4, p. 915, 2011. The abstract:
The transfer of people with disabilities from state institutions to residential housing is one of the great migrations in recent history, but finding adequate housing is difficult. Laws that enact housing quotas make this task even harder. Quotas can require a minimum distance between group homes, limit the number of group homes that can be allowed in a community, or limit the number of apartments in multifamily projects. This article considers the legality of these quotas under the federal Fair Housing Act, and their constitutionality as an equal protection violation.
Part I describes the universe of housing models available for people with disabilities. Part II examines the problem of clustering that occurs when this housing locates in groups. Part III describes state statutes that require a minimum distance between group homes for people with disabilities, and federal housing subsidy legislation that contains quotas and preferences. It criticizes the dispersion strategy for housing that quotas implicitly require. Part IV considers the constitutionality of housing quotas under the equal protection clause of the federal constitution.
Part V considers the legality of quotas under the federal Fair Housing Act, which makes it a violation to “otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap." Part VI discusses more acceptable models for distributing housing opportunities.
An important issue with a valuable discussion from one of the leaders in our field.
Tuesday, February 21, 2012
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.
Friday, February 10, 2012
The Pennsylvania legislature approved a bill that limits municipalities zoning
power with respect to gas drilling. The issue of municipal authority to zone for hydraulic fracturing and related operations has been a significant issue in Pennsylvania as it has in New York
(see February 2, 2012 post). Pennsylvania courts had determined the contours of municipal power but Governor Tom Corbett and industry representatives pushed a through bill that requires municipalities
to permit nearly all types of oil and gas operations in all zoning districts including residential neighborhoods and sensitive natural and cultural resource protection areas. The bill does not offer any increased protection to environmental resources although it does include some bonding requirements. Called a “compromise” the bill does include impact fees payable to the counties
and municipalities but concerns have been raised that the fees are insufficient to offset any costs. Governor Corbett is expected to sign the legislation this week.
Tuesday, February 7, 2012
How do you like the working title for my next law review article? In a recent decision, the New Jersey Supreme Court (of Mount Laurel fame) held that the first amendment does not necessarily require a particular municipality to provide access to adult businesses, as long as adult businesses can find adequate locations elsewhere in the metropolitan region --- even if the only accessible locations are across state lines. I call this the "bizarro" Mount Laurel doctrine because where Mount Laurel requires every municipality in New Jersey to accommodate its fair share of the regional need for a particular use (there, affordable housing rather than adult businesses,) under this reasoning municipalities do not need to accommodate their fair share provided that someone else in the region does. Several courts have used this bizarro logic to justify other forms of exclusionary zoning. Consider the Sixth Circuit's 1955 decision in Valley View v. Proffett, 221 F.2d 412 (6th Cir. 1955), regarding a zoning ordinance designed to maintain the exclusively residential character of a suburban village:
Traditional concepts of zoning envision a municipality as a self-contained community with its own residential, business and industrial areas. It is obvious that Valley View, Ohio, on the periphery of a large metropolitan center, is not such a self-contained community, but only an adventitious fragment of the economic and social whole. . . .The council of such a village should not be required to shut its eyes to the pattern of community life beyond the borders of the village itself . . . [but has the authority] to pass an ordinance preserving its residential character, so long as the business and industrial needs of its inhabitants are supplied by other accessible areas in the community at large.
The bizarro Mount Laurel doctrine seems suspiciously like a recipe for ghettoization. Those communities that have permitted land uses deemed undesirable by other communities, perhaps out of a willingness to absorb their fair share, will be branded as red-light districts or ghettos and become dumping grounds for undesirable uses, while those that have guarded their exclusiveness most zealously will get to continue doing so for no better reason than that they always have. City leaders will of course get the message that it's better to exclude everything than even try to be a good neighbor and accommodate your fair share. At least adult uses can lean on the first amendment for some protection. Where are advocates of affordable housing to turn? Obviously not to New Jersey governor Chris Christie, who has denounced the Mount Laurel decision as an "abomination" and is working hard to dismantle its legacy.
(Here's the court's opinion:Download A6610BoroughofSayrevillev35Club)
Thursday, December 22, 2011
Yes, more about "fracking", that is, oil and gas extraction through hydraulic fracturing. Erica Levine Powers (SUNY-Albany-Geography and Planning) has published Home Rule Meets State Regulation: Reflections on High-Volume Hydraulic Fracturing for Natural Gas, ABA St. & Loc. L. News (Vol. 35, No. 2, p.1). Here's the opening:
Hydraulic fracturing, or “fracking,” like all mining, is both a local matter impacting community development and environmental quality and a state matter impacting national energy security and regional economic development. Along with the discovery of new sources of natural gas—and methods for its recovery—have come increasing battles over local control and state interests. States have taken diverse positions on fracking, and, building on the experiences of other states, New York is the latest to wrestle with the issue. In the process, New York is defining the roles of local and state government by including an explicit role for local government in environmental review, by public input in the state review process, and through ongoing litigation that will define the rights of New York’s home-rule municipalities to regulate fracking.