Land Use Prof Blog

An “impact fee” for foreclosures?

   Communities across the nation are wincing at the boom in foreclosures.  In my state of Florida, about two percent of all households encountered some form of foreclosure last year.  The problem hits hardest in low-income areas, of course, where many buyers took on high-interest, high-principal loans that they have been unable to pay back.  In some neighborhoods, there appears to a house in foreclosure on almost every block.  Vandalism and other “spillover” effects may then plague the neighborhood.  A recent study by three Fannie Mae economists in The Journal of Real Estate Finance and Economics (here’s an abstract and links) used data to create a theoretical model that shows negative spillover effects on housing prices up to 10 block away, and as high as 8.7 percent.

    While some cities are trying to recoup losses with lawsuits (Cleveland has sued banks, alleging a public nuisance – see my post for Jan. 17), a prospective, long-term approach to the problem might be to compel future lenders to pay an “impact fee” for each loan that goes into foreclosure, to compensate for losses to the community.    

  Such a fee might encourage lenders to pay closer attention to avoiding making risky loans.  It could also mean fewer loans to the low-income citizens for whom it has always been American policy to try to encourage and foster homeownership. 

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A suburb forges ahead with its housing ban plan …

  Competition encourages localities to use land use laws to foster social goals and to push away undesirable uses … and people.  In the Dallas suburb of Farmers Branch, the city is persistent in efforts to make it both illegal and impossible for immigrants in the United States unlawfully to live in the city.  After a federal judge barred an earlier ordinance in part because it used standards different from those of federal immigration law, the city has revised its ordinance, which would require potential rental tenants to get rental licenses from the city.  The city would then try to confirm the tenant’s status;  anyone shown to be in the United States unlawfully would be barred from renting in the city.

   Which would be the surest outcome of such an ordinance:  The encouragement of Latino residents to rent in neighboring towns, a black market in the rental market, or a bottleneck in the government approval process?  All three?

Unchain my dog?

   If you walk around a suburban neighborhood or pass through a public park on a lovely Saturday afternoon, you recognize that Americans have become a nation of people who eschew being outside simply for the pleasure of it.  Unless we are mowing the grass or heading someplace with a latte, Americans seem to enjoy their yards or parks far less than previous generations, who were less distracted by computers, cable TV, and long drives to work or shopping. 

    Accordingly, it’s no surprise that politeness in handling one’s front yard often succumbs to the lure of “technology.”  A growing number of local governments are considering regulations on the use of an electronic fence as the sole restraint on dogs.  Such fences allow Fido to run unchained in the yard, but can surprise pedestrians who don’t know that the angry dog charging towards them will stop (probably) or that the canine that they are walking on a leash might be set upon by an unrestrained house dog.

   How about a land use law that, at a minimum, requires an electronic fence owner to place clear notices of the fence, if they persist in leaving Spot unconfined?  But then again, that would require the Americans to spend some time in their yards ….   

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Panhandlers and a struggling downtown …

  I noticed yesterday on the window of a downtown restaurant at an MLK Day parade in St. Petersburg, Fla., a reprint of a flyer from the Nashville Downtown Partnership, encouraging people to say “no” to panhandlers. Is this simply being mean-spirited? Perhaps, but retailers know that panhandlers discourage people from patronizing some downtown spots, especially when there are so many suburban options. This is reminder that urban revitalization plans must not be ignorant of the social problems that continue to hinder downtown development. Addressing the problems of crime, drugs, pollution, and panhandling can’t be ignored. They need to be recognized and addressed, especially in those places, such as downtown Nashville and central St. Petersburg, where downtown retailers need all the help that they can get. The flyer also suggests giving bottled water of a gift certificate instead of cash …

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The lending nuisance?

    So, foreclosed homes are a blight upon your city, encouraging crime and arson, battering your already stressed community, and causing a further drop in limited tax revenues.  What’s a poor city to do?  In the case of Cleveland, the city has decided to sue a number of large investment banks, asserting that their actions in securitizing “subprime” loans constituted a “public nuisance,” which is a tort that could lead to a huge financial damage award to the city.  A nuisance is the use of land that causes a significant invasion of another’s use or enjoyment of their land, in a manner that is unreasonable under the circumstances.  If the nuisance affects a public interest or public land, it can constitute a public nuisance.  The concept of nuisance is notoriously slippery, and has in the past been uses to stop land uses such as strip clubs and polluting factories.  But is seems rather novel to use it against a bank. In fact, the city has not sued small Cleveland lenders, but rather those big out-of-town banks, such as Bank of America and Deutsche Bank, that securitized the loans.  Here’s a skeptical and insightful column from yesterday’s Plain Dealer.

When there’s no home in Seattle …

  The dilemma of homeless people living in public spaces is one of the most gut-wrenching in all of land use law.  On one hand, the argument, “Where are the homeless supposed to live, if not in public parks?” has no easy answer, especially when shelters for the homeless are not built, are not run well, or are more dangerous than living on the street.  On the other hand, a hard-headed argument that facilitating people living in public spaces simply encourages anti-social behavior has merit, and everyone knows that sleeping in the park is not a good long-term solution, from anyone’s perspective.

   Seattle is experiencing one of the nation’s most vocal debates over homeless people in public places.  With a mild (albeit wet) winter, Seattle, like most big west coast cities, holds more than its share of homeless people, as well as a vigorous homeless activist movement, and an affluent and public-spirited population.  Two stories over the past week show two sides of the ongoing dilemma.  First, an editorial in the Post-Intelligencer asserted that once-controversial city housing projects have been successful, and have saved the city money, in large part by decreasing the cost of public-funded health care for homeless people.  Second, the city announced that, under a new plan, it would no longer clear homeless encampments without notice, but would only do so after giving homeless campers 48 hours notice.  This change would seem more humane … and then again, it may encourage camps simply to move from spot to spot.

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Democracy and the making of land use law …

   If the presidential election season doesn’t completely make one cynical about the workings of democratic elections, one can consider the significant role of “democracy” in the making of land use law.  For the most part, courts have applauded laws that require public approval of zoning changes (despite the obvious tendency that this gives to NIMBY and to ignore property “rights”) and courts often construe laws so as to maximize democratic participation.

   An example of this tendency was handed down this week by a California appellate court.  The Third District Court of Appeal held that a state law requiring a public hearing in front of a legislative body that is considering a zoning amendment must be noticed only AFTER the recommendation of the planning commission.  Accordingly, the Court held unlawful Sierra’s County’s practice of giving notice of the hearing before the planning commission made its recommendation.  The statute did not explicitly require such timing; rather, the interpretation “furthers the state’s policy and Legislature’s intent that the public be involved in the planning process and are ‘afforded the opportunity to respond to clearly defined alternative objectives, polices, and actions.’”  (Id. at 10, citing Cal. Gov Code sec. 65033.)  By requiring this timing, interested citizens have more time to prepare their responses to the planning commission’s recommendations.  (The case is Envtl. Defense Project of Sierra County v. County of Sierra, No. C055448 (Cal. Ct. App. 3d Dist., Jan. 9, 2008)). 

  Let’s hope that the public in Sierra County (population about 3600) takes advantage of this right and pays better attention to important public issues than the general American electorate shows in some of our presidential contests …

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The new power of religion over land use …

    Most of land use law is determined by local authorities, of course.  But the federal government, which has taken over large areas of environmental and employment law (which used to be reserved mostly to the states), is playing a more active role in shaping land use.  At the law professor conference in New York last week, one of the most interesting talks was given by Prof. Patricia Salkin (also a blogger) on the power of the Religious Land Use and Institutionalized Persons Act.  (Here's a DOJ website, then one of a private organization that challenges land use laws, and a previous post of mine about the act.)  By empowering a religious group to challenge in federal court a local land use law decision, and by granting to the group an amorphous set of rights, the statute offer a temptation for projects that bear only a tenuous relation to religion to try to avoid land use regulation.  And by providing for attorneys fees to winning challengers -- fees that have to be paid by local governments -- the act places upon localities a pressure to settle even marginally colorable cases, in order to avid the risk of a huge fee award.  It's unfortunate that the burdens of the federal law fall largely on localities.  (Is this an unfounded mandate of sorts?)  Will we soon see local governments seeking out RLUIPA insurance?

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The past and future in New York …

     Before I get to a more serious land use comment, please indulge a little architectural criticism from a complete amateur, just back from New York. 
    As styles of commercial buildings continue to change radically from one generation to the next, we can assess whether certain "in" styles survive the test of time.  In my opinion, two landmarks of '50s and '60s -- generally considered banal times for commercial architecture -- have held up superbly.  The Lever House (1952) on Park Avenue, which was the first great glass box, still looks elegant, in large part because of its humane size and detail.  Meanwhile, the dramatic atrium garden of the Ford Foundation (1967) still plays off well against the rugged rusted metal of the interior (and helped by the fact that building sparkles like new).      
   By contrast, two east midtown skyscrapers of the 1980s that were acclaimed for breaking the model of the "box" -- the Sony (nee AT&T) and Altria (once Philip Morris) Buildings -- now seem uninspired.  The Chippendale top of the former seems silly, and the appliqué stone panels on both facades have become streaked and downright ugly. (Can a 25-year-old building be cleaned?) Without a sense of detail, the faux "historicism" of the 1980s now looks tacky. 
    Today's trend is a return to glass, but in odd shapes that today look intriguing.  But will the whimsical twists and turns of the Conde Nast (see photo) and Bank of America Buildings (plus Ernst & Young and Reuters) around Times Square still look as exciting a generation from now?

    Now back to something more within my bailiwick.  New York is often admired for retaining its own distinctive culture, resistant to the homogenization of America -- a homogenization against which land use law sometimes tries to act.  But generic America continues to make inroads, even in New York.  I had to stop by quite a few promising looking "delis" in midtown Manhattan before finding one that could make me an "egg cream" (seltzer, chocolate syrup, and milk) instead of a generic hot chocolate.  And the free-standing pretzel stand in claustrophobic Penn Station is … an "Auntie Annie's"!  If New York can't nurture distinct local businesses (and yes, I concede that the situation is probably less generic in the outer boroughs), how can it elsewhere in America? 

Remembering a founder of urbanism ...

  New York's Urban Center (at Madison and 51st), run by the Municipal Arts League, is showing an exhibit about the late critic and activist Jane Jacobs.  Although some of her strong opinions have since been questioned by urbanists, the current show makes clear how radical Jacobs was and how important her ideas were -- in the anti-urban 1950s and 1960s -- in creating new conceptions of what makes a vibrant city.  Eschewing the automobile, Jacobs called for mixed uses and a jumble of designs (an unorthodox idea in the hyper-"planning" era) and for a high concentration of people (also radical in an era in which the overcrowded tenements of 1910 Manhattan were still a memory).  In both her writings (the exhibit includes some hilarious criticism from Robert Moses and Lewis Mumford) and her activism in preserving New York neighborhoods from highway and redevelopment plans, Jacobs did much to create the ideals that we now consider the bedrock of modern urbanism.         

The future of the great metropolis …

   The New Year's celebration inevitably brings to mind New York City, where I'm heading this week.  So I'll finish the week with some thoughts about America's largest city.  Today the Times published some thoughts by New Yorkers about what city life may be like 100 years from now.  In comparison to the ambitious predictions of 100 years ago (prognosticators in 1908 tended to predict huge land use changes, such as flying trains, but missed smaller changes, such as the development of the computer!), today's predictions are modest, and include much trepidation.  The director of the Skyscraper Museum, for example, predicted a future (unless the city is under water) of more high-tech glass buildings, bigger streetscape advertisements, and a treasuring of New York's old buildings, which were saved in the late 20th century.  So land use law be still be in the front of New Yorkers' minds?  Good. 

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