Monday, January 26, 2015
New York Housing Court sounds like a disaster:
Two weeks ago, a city housing inspector visited an apartment on the fourth floor of 940 Prospect Place in Brooklyn and issued a violation to the landlord for inadequate heat. The visit was nothing new — since December 2013, residents of 940 and the adjoining building at 930 Prospect Place have made more than 100 complaints about lack of heat or hot water.
How does a simple heat complaint, confirmed by city housing inspectors, take more than a year to resolve?
For many tenants stuck in cold apartments, Housing Court is, on paper at least, the place where they can meet their landlord on equal footing. In practice, tenants and lawyers say, it can feel more like a black hole where complaints languish, city agencies lack enforcement powers and delay seems to be the rule.
[...] When a resident calls 311 with a heat complaint, the call goes to the Department of Housing Preservation and Development, which automatically notifies the landlord. Two or three days later, the agency is supposed to send an inspector to the apartment that called in the complaint. If the resident is at home when the inspector arrives, and if the apartment is cold at the time, the inspector can issue a violation, giving the landlord 24 hours to repair the condition. The agency issued 12,352 violations for heat and hot water in fiscal year 2014, roughly one for every 10 complaints.
[...] Violations alone do not mean penalties. Unlike city agencies that regulate parking or sanitation, the housing department cannot directly assess fines; instead, it must seek them in Housing Court. Even then, Mr. Henriquez of Make the Road said, civil penalties are usually reduced in negotiations between the landlord and the agency. “When landlords know that,” he said, “that incentivizes a culture of noncompliance.”
William Fischel (Dartmouth - Econ) has posted The Politics and Economics of Metropolitan Sprawl (Book Chapter) on SSRN. Here's the abstract:
This is chapter 8 from my forthcoming book, "Zoning Rules! The Economics of Land Use Regulation," which will be published by the Lincoln Institute of Land Policy in 2015. This chapter addresses the metropolitan problems caused by local zoning, particularly its contribution to excessive suburbanization and regional housing costs. The chapter starts with a stylized political-economic characterization of government in metropolitan areas and explains how the local politics of zoning differ among big central cities, small suburbs, and rural townships and counties. This simple model offers a foundation for explaining exclusionary zoning, metropolitan sprawl, and regional income sorting. The chapter next considers some variations on this model, which are epitomized by the growth boundaries of Portland, Oregon, and the rejection of comprehensive zoning by Houston, Texas. Both have some merit in combatting the problems of local zoning, but both have some drawbacks that undermine either as a paradigm.
Finally, the chapter asks why housing costs and the stringency of land use regulations varies so much by region of the United States. I argue that restrictiveness is largely the product of the demand for housing itself. High productivity regions attract affluent people who want more land use restrictions to protect their home values. Local homeowners control the political process in the high-demand Northeast by virtue of their control of small local governments, where homeowners prevail easily over developers. In the high-demand West Coast, homevoters prevail because of the availability of the voter initiative, which trumps the otherwise prodevelopment politics of counties and larger cities. Evidence for this was the migration to the sunbelt as a result of the 1970s energy crisis. Housing supply remained elastic and home prices stayed low because most states in the South lack both responsive local governments and the voter initiative that would otherwise have facilitated more regulation.
Friday, January 23, 2015
As a result of some sudden retirements, Valparaiso is seeking two property profs to start teaching in the 2015-2016 academic year. The school's advertisements are reproduced below:
FULL TIME TENURE TRACK – 2015-16 Academic Year
VALPARAISO UNIVERSITY LAW SCHOOL (VULS) is seeking to fill a full-time tenure track position with someone interested in teaching property courses as her/his primary teaching responsibility. Beyond property, we have a number of curricular needs, including transactional law, skills training, and experiential learning programs. Applications from entry level and experienced teachers are welcome. Valparaiso University is located in Valparaiso, Indiana, a small college town near the southern shore of Lake Michigan that is approximately fifty miles from downtown Chicago. The town has excellent schools and affordable housing. VULS is an equal opportunity employer with a diverse student body; approximately 38% of the members of the current student body are underrepresented minorities. Please send information to: Chair of the Appointments Committee, Valparaiso University Law School, 656 Greenwich Street, Valparaiso, Indiana, 46383; or, send information by e-mail to firstname.lastname@example.org.
FULL TIME VISITING PROFESSOR – 2015-16 Academic Year
VALPARAISO UNIVERSITY LAW SCHOOL (VULS) is seeking to fill a full-time visiting professor position with someone interested in teaching property courses as her/his primary teaching responsibility. Beyond property, we have a number of curricular needs, including transactional law, skills training, and experiential learning programs. Applications from entry level and experienced teachers are welcome. Valparaiso University is located in Valparaiso, Indiana, a small college town near the southern shore of Lake Michigan that is approximately fifty miles from downtown Chicago. The town has excellent schools and affordable housing. VULS is an equal opportunity employer with a diverse student body; approximately 38% of the members of the current student body are underrepresented minorities. Please send information to: Chair of the Appointments Committee, Valparaiso University Law School, 656 Greenwich Street, Valparaiso, Indiana, 46383; or, send information by e-mail to email@example.com.
Julie Lawton (DePaul) has posted Unraveling the Legal Hybrid of Housing Cooperatives (UMKC Law Review) on SSRN. Here's the abstract:
Housing cooperatives are a form of residential property ownership that first populated in the United States in 1876, though they continue to create legal confusion for legislatures and courts around the country. Housing cooperatives are a corporation, formed pursuant to state statute, solely for the purpose of owning and operating real property for residents. The housing cooperative corporation owns multi-family property occupied by members of the housing cooperative. To become a member, individual residents purchase shares in the cooperative corporation providing them co-ownership in the cooperative corporation, and by extension, co-ownership in the real property. In tandem with the purchase of the cooperative share, each resident executes a proprietary lease representing the occupancy agreement between the resident and the cooperative corporation. The proprietary lease can be short term, such as twelve months, or long term, such as ninety-nine years. Regardless of the term, each resident’s occupancy is governed by the proprietary lease. Residents do not own the real property; the cooperative corporation owns the real property and residents own shares in the corporation. This confluence creates the legal hybrid nature of housing cooperatives: a resident is, at once, both a tenant of the cooperative corporation and co-owner in the cooperative corporation. It is this dual nature that creates the legal conflict in trying to define the legal structure of the housing cooperative.
Some courts, such as Arizona, designate housing cooperatives as ownership and specifically reject the idea of a housing cooperative as rental property. Other courts, such as Illinois, designate housing cooperatives as rental property and reject the argument that a housing cooperative is ownership. One jurisdiction, Georgia, noted that a housing cooperative can be designated homeownership or rental property by the language of the cooperative’s corporate documents. Even the federal government added to the confusion. In an argument before the federal Tax Court, the IRS claimed that a housing cooperative was ownership property, not rental property. The Tax Court disagreed, holding that the residents of the housing cooperative were lease holders, not owners of the housing cooperative real property.
This question of the legal structure of housing cooperatives becomes particularly important when determining the legal process for forcibly terminating the membership of a cooperative resident in an effort to reclaim possession of a terminated member’s unit. Housing cooperatives often attempt to reclaim possession of the unit through an eviction proceeding pursuant to a state’s rental property eviction laws. Residents frequently counter, and some courts have held, that since housing cooperatives are not rental properties, the issue cannot thus be resolved pursuant to an eviction action.
After the court determines whether the cooperative resident is a tenant, there remains the question of the resident’s ownership of the cooperative share. An action of eviction is an action for possession and does not directly resolve the resident’s ownership interest in the cooperative share. Most courts avoid the question by ruling solely on the possessory action without addressing the resident’s ownership interest. Frequently, a cooperative corporation’s bylaws give the cooperative the right to terminate the cooperative resident’s membership with a vote of the cooperative Board of Directors or the cooperative’s members. Cooperatives argue that this membership vote terminates the cooperative resident’s proprietary lease with the cooperative as well as the resident’s ownership of the cooperative share. I argue that the membership termination only terminates the resident’s proprietary lease and, thus only affects the resident’s possessory rights, not the resident’s ownership rights. This Article posits that a housing cooperative is ownership of personal property, not solely, or even primarily, a landlord-tenant relationship. I also argue that when a cooperative resident’s membership is terminated, that the cooperative and the court must bifurcate the decision on possessory rights to the unit from the ownership right to the share.
Part I of the Article introduces the reader to housing cooperatives, their prevalence as an American form of residential housing, and their history. Part II details housing cooperative corporations, their formation, corporate documents and the creation and termination of the housing cooperative membership. Part III evaluates the conflict in the federal and state courts and legislatures about the legal structure of a housing cooperative. Part IV argues that a housing cooperative membership creates ownership of personal property, not solely possession of rental property. Part V presents the rationale behind court decisions holding housing cooperatives as rental property. Part VI argues that housing cooperatives are not ownership of real property. Part VII concludes with the argument that housing cooperative membership creates an ownership interest in the cooperative share, the dispossession of which should be bifurcated from the housing cooperative’s action for possession of the housing cooperative unit.
Thursday, January 22, 2015
Attorney General Eric H. Holder Jr. on Friday barred local and state police from using federal law to seize cash, cars and other property without evidence that a crime occurred. Holder’s action represents the most sweeping check on police power to confiscate personal property since the seizures began three decades ago as part of the war on drugs.
Since 2008, thousands of local and state police agencies have made more than 55,000 seizures of cash and property worth $3 billion under a civil asset forfeiture program at the Justice Department called Equitable Sharing. [...] The program allowed police departments and drug task forces to keep up to 80 percent of the proceeds of the adopted seizures, with the rest going to federal agencies.
The program won’t end civil asset forfeiture abuses entirely, but it will stop local police agencies from circumventing state laws aimed at reining them in. Many states, for example, have imposed stricter evidentiary standards police have to meet before they’re allowed to seize assets without a conviction.
Daniel Lyons (Boston College) has posted Federalism and the Rise of Renewable Energy: Preserving State and Local Voices in the Green Energy Revolution (Case Western Law Review) on SSRN. Here's the abstract:
The rise of renewable energy has disrupted the traditional regulatory structure governing electricity. Unlike traditional fossil fuel power plants, wind and solar facilities are geographically constrained: they exist where the wind blows and the sun shines. Large-scale renewable energy is more likely to flow interstate, from resource-rich prairie and Southwestern states to energy-hungry population centers elsewhere. The difficulties of coordinating interstate electricity policies have led some to call for greater preemption of the states’ traditional duties as chief regulators of the electricity industry. But while preemption would eliminate some state-level roadblocks to interstate cooperation, it would sacrifice many of the benefits of local knowledge and experimentation in a diverse and innovative new marketplace.
This paper examines the benefits of a cooperative federalism approach to electricity regulation. The challenges facing renewable energy are regional in scope, and there is value in preserving state and local voices in policymaking decisions. It examines three aspects of the renewable energy debate — siting generation facilities, building transmission lines, and adopting demand-side renewable energy standards — and, for each, explores governance structures that would promote greater regional cooperation without sacrificing the benefits of decentralized government.
Wednesday, January 21, 2015
Jennifer Wriggins (Maine) has posted Flood Money: The Challenge of U.S. Flood Insurance Reform in a Warming World (Penn State Law Review) on SSRN. Here's the abstract:
Congress’ reforms of the National Flood Insurance Program (NFIP) in 2014 continued its misguided approach to flood insurance policy, ignoring the increased risks of floods posed by climate change and giving generous subsidies to flood-prone properties. The Article analyzes the recent reforms against a backdrop of the NFIP’s history, impacts, and structure, and makes recommendations for steps Congress should take when it revisits the program in 2017. The NFIP has encouraged retention of older flood-prone properties and building in flood-prone areas, which makes little sense given the risks we face. The NFIP, deeply in debt to the Treasury Department, rests in part on an approach to flood risk where risks are pooled but the price individuals pay for flood insurance often is not based on actual flood risk. This solidaristic approach to flood risk, where government subsidizes hundreds of thousands of flood insurance policies, is not based on need or any other credible policy principle. Further, the justifications for continuing the subsidies are weak when compared to other contexts where the federal government has been involved in solidaristic approaches to insurance such as the Affordable Care Act, unemployment insurance, and promoting insurance in urban areas. Congress should gradually remove flood insurance subsidies, fund accurate maps, and allow rates to be based on risk. Because flood insurance is mandatory for mortgageholders in floodprone areas, and risk-based rates may be overly harsh for low-income homeowners, a limited means-tested program should be passed which would allow these homeowners to receive insurance at reduced rates.
Tuesday, January 20, 2015
This is a screenshot from the Prawfsblawg website. The top post in the above picture is an advertisement, written by Westlaw. The bottom post is actual content. There’s no noticable differences in font style, color, or size of the type. The only real tip-off that they're different is the tagline on the top post. That tagline, however, fudges the nature of the post (by tossing in the name of some law professor who has lent their name to West's content it looks like a real blog post). I scrolled over this post a couple of times last week and did not internalize that it's an ad.
This is ethically dubious. It's also not a great strategy for running a blog. When advertisers start writing your posts for you, readers should stop trusting you as an source of honest scholarly inquiry.
Monday, January 19, 2015
In a recent article by Claudio Saunt summarizes the story of dispossession and asks why it doesn't feature more heavily in modern accounts of U.S. history:
There are many reasons to favour a more inclusive history of the United States that places the dispossession of native peoples at its centre. Such a history erases the artificial distinctions that earlier generations drew to discount the presence of native peoples, does not privilege the rise of the nation-state, and better reflects the makeup of today’s US population, which will soon be majority non-white. Its themes also resonate with 21st century concerns, including state-sponsored social engineering, large-scale population displacement, environmental degradation, and global capitalism.
Carol Rose (Arizona) has posted Surprising Commons (BYU Law Review) on SSRN. Here's the abstract:
“Tragedies of the commons” due to overuse and underinvestment have long been known to affect open access resources. Yet decimation of open access commons often catches everyone by surprise. Why the surprise? Among other reasons, overuse may occur in very small increments, or may be an accidental byproduct of seemingly unrelated technology; more generally, a resource’s common status undermines investment in learning about it. Open access to intellectual achievements does not destroy physical resources, but may undermine creative effort — but, in a happy surprise, may instead enhance creativity. An interesting surprise is that the drive to privatize creative achievements has generated a counter-movement to defend open access to these achievements. Scholars following Elinor Ostrom study common resources that are not left in open access but rather limited and managed; here surprises also show a mixture of attractive and unattractive features both in physical and intellectual domains, but they also generate lessons for such modern day developments as crowdsourcing and citizen science.
Friday, January 16, 2015
A recent article in Slate makes some very important points about gentrification. First, the kind of gentrification where rich white people push out poor black families is "exceedingly rare." And, second, when neighborhood change does occur, it's often good for people of color. The rub:
The socio-economic status of most neighborhoods is strikingly stable over time. When the ethnic compositions of low-income black neighborhoods do change, it’s typically because Latinos and other immigrants move into a neighborhood—and such in-migration is probably more beneficial than harmful. As for displacement—the most objectionable feature of gentrification—there’s actually very little evidence it happens. In fact, so-called gentrifying neighborhoods appear to experience less displacement than nongentrifying neighborhoods.
Vox makes a list:
Myth #4: Homelessness is typically related to mental illness. Serious mental illnesses are more prevalent among the homeless: about one in four sheltered homeless people suffered from a severe mental illness in 2010, compared to 5 percent of US adults, according to the Substance Abuse and Mental Health Services Administration (SAMHSA). But city officials cited lack of affordable housing, unemployment, and poverty as the top three causes of homelessness in a 2014 survey from the US Conference of Mayors.
Myth #5: Most homeless people are addicted to drugs and alcohol. Roughly one-third of sheltered homeless adults had chronic substance use issues in 2010, according to the SAMHSA.
Wednesday, January 14, 2015
Kriston Capps hates hates hates the practice of saving spots after a winter's snow, and she details one neighborhood's attempt to stop it:
This winter, Boston's South End neighborhood embarks on a bold experiment in social engineering. With the mayor's blessing, The Boston Globe reports, the neighborhood has banned the popular practice of "dibs."
But now, South End, which may have learned of the practice from the fearsome vigilance of South Boston residents, is turning a page. "We Don't Do 'Dibs' Here," read posters hanging in South End now, sounding as much like an advisory notice to South End residents as to hapless visitors who may be trying to find parking there.
It's hard to imagine that any neighborhood association can succeed (in this case, the South End Forum) where even mayor fears to tread. Former Mayor Thomas M. Menino accepted the practice of space-saving, although his administration limited it to 48 hours from the end of a snow emergency. Which is weird, when you think about it: a city official acknowledging that, for two days after a snowstorm, citizens will key one another's cars over parking spots.
Tuesday, January 13, 2015
CALL FOR PROPOSALS – DEADLINE IS JANUARY 23, 2015
3rd Annual Local Government Law Works-In-Progress Conference
Denver Law will host the 3rd Annual Local Government Law Works-In-Progress Conference March 12-14, 2015. The conference will provide an opportunity for local government law scholars to present early works-in-progress and receive feedback from colleagues. This year’s conference will dovetail with Denver Law’s Rocky Mountain Land Use Institute’s 24th Annual Land Use Conference. We anticipate several overlapping events, including a reception on the evening of Thursday, March 12, and a panel on Hot Topics in Local Government Law on Friday, March 13.
Request for Proposals
Please submit an abstract of approximately 250 words on the topic of Local Government Law to the link below.
All works at any stage are welcome. Proposals are due by January 23, 2015. Be sure to include contact information and a current CV. Those selected to present will be contacted by January 30, 2015.
Conference Registration and Hotel Information:
The deadline for registering is March 4, 2015. There is no registration fee. A block of rooms has been reserved at the Holiday Inn – Cherry Creek at the rate of $99.00 plus tax per night. Please reserve your room by February 19, 2015, to get this rate. The information for the hotel and the link to reserve a room is below.
Holiday Inn Denver – Cherry Creek
455 South Colorado Blvd.
Denver, CO 80246
Please direct any inquiries to Patience Crowder at firstname.lastname@example.org or Tom Romero at email@example.com.
Charlene Geary (Independent) has posted The Effects of Land Use Policies on Modular Home Construction: A Comparative Case Study of Three Counties in Massachusetts on SSRN. Here's the abstract:
The primary objective of this comparative case study is to identify the law and policy barriers to modular home construction in Massachusetts with a particular focus on restrictive covenants and municipal land use policies.
This is a comparative case study of 3 counties in Massachusetts including Dukes County, Nantucket County, and Barnstable County. The three counties in the study were chosen on the basis that they share the same population range of 10,000- 20,000, and the similar cost of construction for new homes ranging $200,000-$600,000 from 2007-2009. A Registry of Deeds search was also conducted from 2003-2013 to identify any restrictive covenants that prohibit on the mode of construction during this timeframe.
The main findings in the study conclude there are no law and policy barriers to modular home construction in the three counties in the case study. Modular homes must be built to the same standard as site-built homes according to the Massachusetts State Building Code, which is the only building code in Massachusetts. The study also concluded there is a lack of awareness of modular homes being a viable building option, which leads to the discrimination of modular homes. Creating an awareness that modular homes have evolved into an equally comparable product in relation to site-built homes is the key element to the future success of modular home construction.
The research also concludes that restrictive covenants are not a barrier to modular home construction in the three counties in Massachusetts. The Registry of Deeds search did not identify any restrictive covenants that prohibit on the mode of construction from 2003-2013. The continuation of this study in other counties in Massachusetts, other New England states, and into the southern part of the country will bring the modular home industry closer to an answer in rectifying the restrictive covenant dilemma that currently exists in the south.
Monday, January 12, 2015
The New York Times details the struggles of PBSC Urban Solutions, a company that (used to) operate bike share programs and build bike share bikes:
“That bike, nobody can argue with his bike,” said Josh Squire, the chief executive of CycleHop, a bike-share operator that does not use the Bixi technology.
The Montreal company also developed free-standing docking stations with solar panels for power and Wi-Fi to transfer payment and operations data. The stations, which can be lifted onto the back of a truck, could be easily removed for road repairs, construction projects or unfriendly Montreal winters.
But the city’s dream of self-financing proved elusive. While money was flowing in from foreign buyers, it was immediately going out again to keep Montreal’s bikes rolling. Users could buy passes of various durations at rates that had been set unrealistically low, while operating costs were higher than anticipated. That left the company struggling to pay its suppliers.
The video below is from an earlier Times article about the problems that have popped up in New York's bike share program:
Rachelle Alterman (Israel Institute of Technology) has posted The U.S. Regulatory Takings Debate Through an International Lens (The Urban Lawyer) on SSRN. Here's the abstract:
In every country where land use regulations and development controls operate (the vast majority of countries today), they change the economic value of real property. The question addressed here focuses on the downwards effect — what Americans call “regulatory takings.” Do landowners have a right to claim compensation or some other remedies from the planning authorities? This topic addresses an inherent raw nerve of planning law and practice, bearing deep economic, social and ethical implications. However, not in every country does the issue generate the same intensity of legal and public debate as it does in the United States.
This article draws on the findings of comparative research encompassing thirteen countries around the world. Readers of this Festschrift, who are acquainted with American takings law, will be able to view it from this new perspective. A comparative perspective can help to create a sense of scale and proportionality that conventional domestic legal analysis cannot offer.
Friday, January 9, 2015
Will Baude does some digging on raisin price regulations:
The raisin regulations require raisin producers to reserve a portion of their crop to be sold by the government; the government determines both the portion and the price, which it sometimes sets to be basically zero. The Hornes argued that these regulations are a taking of the raisins, and that they are therefore entitled to a determination about whether the government’s chosen compensation is “just compensation” within the meaning of the Takings Clause.
Normally, when the government takes your property away from you, as opposed to regulating it, that’s a taking. I take it that if the government told me to set aside part of my land and forced me to get rid of it for a government-determined price, that would be a taking. But the Ninth Circuit concluded that wasn’t true of the raisins for two reasons — first, because they were personal property rather than real property, and second because they did not lost all of their rights in the raisins, since they “retain the right to the proceeds of their sale.” (The kind of taking I’m talking about here is called in the cases a “per se taking,” as opposed to a regulatory taking, which sometimes, but rarely, arises when property is subject to burdensome regulations.)
Amnon Lehavi (ICH - Radzyner) has poted Land Law in the Age of Globalization and Land Grabbing (Book Chapter) on SSRN. Here's the abstract:
Is land becoming a global commodity? Who are the actors shaping such a cross-border market for real estate and who remains excluded from participating in it? Which types of interrelations do local and supranational legal systems have in ordering property rights and other legal interests in what is otherwise considered the quintessential location-fixed asset? How are law, economics, politics, and culture likely to interact in the context of land in an age of increasing globalization?
This chapter underscores the tension between the conceptual oddity and practical significance of cross-border effects of land law, and shows how the scope and nature of such extraterritorial implications have changed significantly over the past few decades in view of certain political, economic, and social processes. This turn of events constantly puts pressure on national legal systems that had traditionally viewed this field as literally embodying the law of the land. At the same time, current market trends toward globalization are far from resulting in clear-cut convergence among legal systems or in a shift of the mainstay of legal ordering to the supranational realm. This chapter analyzes the inherent dilemmas and challenges that land law faces in adequately addressing the changing landscape of real estate in the age of globalization.
Thursday, January 8, 2015
New Yorkers are known to disagree about a lot of things. Who’s got the best pizza? What’s the fastest subway route? Yankees or Mets? But all 8.5 million New Yorkers are likely to agree on one thing: Penn Station sucks.
There is nothing joyful about Penn Station. It is windowless, airless, and crowded. Some 650,000 people suffer through Penn Station on a their daily commute—more traffic than all three of the New York area’s major airport hubs combined.
[...] Though Penn Station is a drab, low-ceilinged rat maze of a station, it used to be the opposite. It was vast, light-filled, and gorgeous. It was the fourth-largest building in the world when it was finished.