Wednesday, June 30, 2010

Toohey & Toohey on Therapeutic Jurisprudence in Community Titles Disputes

Lisa C. Toohey (Queensland) and Daniel J. Toohey (New South Wales) have posted Achieving Quality Outcomes in Community Titles Disputes: A Therapeutic Jurisprudence Approach.  The abstract:

Community title schemes are an increasingly popular form of housing in Queensland and throughout Australia in general. Community title housing (typically apartment buildings and townhouses) involve medium to high-density living, which in turn tend to produce a higher incidence of neighbourhood disputes than lower density living options. However, a second reason for the prevalence of the disputes is the varied nature of interests in a community title scheme. Within the single scheme, there may be owner occupiers (either residential or commercial or both), tenants (again, residential, commercial or both), members of the body corporate committee, and property managers. Each of these types of stakeholders has different interests and perceptions of how a scheme ought to operate, with the potential for serious disputes to result.

Recognising the potentially harmful effects of community title disputes and the need for accessible dispute resolution options, the Office of the Commissioner for Body Corporate and Community Management (OBCCM) was established to provide specialist dispute resolution procedures. The OBCCM offers conciliation and adjudication, with avenues of appeal available to the newly-established Queensland Civil and Administrative Tribunal. 

The OBCCM’s self-identified objective in relation to this service is to offer “a quality dispute resolution service which is timely and responsive.” In practice, the dispute resolution services are a hybrid of inquisitorial and adversarial approaches, focussing on the legal aspects of the dispute. 

This paper combines academic and practitioner perspectives to explore the possibility of a therapeutic approach to body corporate and community title disputes. The paper firstly provides an overview of the dispute resolution context of community title disputes and the role of the OBCCM. It then considers the effect of current OBCCM practices on participant wellbeing, and questions whether the introduction of a therapeutic approach might not only improve outcomes in discrete cases, but in fact have the potential to enhance or restore community living within troubled schemes. Finally, the paper comments on the type of legal and dispute system changes that might be required to facilitate such an approach.

Matt Festa

June 30, 2010 in Comparative Land Use, Housing, Scholarship | Permalink | Comments (0) | TrackBack (0)

Hauser on the Case for Allowing Mortgage Modifications in Bankruptcy

Susan E. Hauser (North Carolina Central) has posted Cutting the Gordian Knot: The Case for Allowing Modifications of Home Mortgages in Bankruptcy, Journal of Business & Technology Law, Vol. 5, p. 207, 2010.  The abstract:

More than 5 million mortgages have gone into foreclosure since 2007, and an additional 8 to 13 million foreclosures are projected to follow before the current foreclosure crisis abates. Voluntary loan modification programs have failed to ameliorate the crisis, in large part because mortgage lending abuses and declining home values have left many borrowers stranded in "under-water" mortgages.

This article endorses a targeted amendment to section 1322(b)(2) of the Bankruptcy Code that would allow bankruptcy judges to oversee the modification of residential mortgages written to borrowers during years when mortgage-lending abuses were most rampant. Part I of this Article examines existing Bankruptcy Code provisions that allow the modification of other types of loans and then traces the history of the existing statutory and case law that currently prevents borrowers from modifying the terms of most residential mortgages in bankruptcy. Part II describes legislation presently pending in Congress and explains why allowing home mortgages to be modified in chapter 13 bankruptcy offers an efficient and fair solution that not only allows borrowers to remain in their homes, but also benefits lenders and taxpayers. Part III considers and distinguishes the counterarguments offered by the mortgage banking industry. 

My conclusion is that allowing mortgages to be modified in chapter 13 plans offers distinct advantages to all parties. Accordingly, a time-limited amendment to section 1322(b)(2) would provide a simple and elegant mechanism for reducing the pain that the home mortgage crisis is causing to borrowers, communities, creditors, and the national economy. 
Matt Festa

June 30, 2010 in Federal Government, Housing, Mortgage Crisis, Mortgages, Real Estate Transactions, Scholarship | Permalink | Comments (0) | TrackBack (0)

Very Real Problems...

I really (no pun intended) enjoy the "Really?" series over at the Lasner on Real Estate blog as it really (again, no pun really intended) outlines the continuing lack of reality in the land development world.

In particular, these two entries:  "Really?  Embattled landlords get a break" and "Really? Condos converting back to rentals" really represent the very real problems that land development continues to face.

--Chad Emerson, Faulkner U.

June 30, 2010 | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 29, 2010

Russian "Spies" Sought American Dream

You may have heard the news about the 10 Russian agents who were arrested recently after years of deep cover living in the U.S., and apparently with little in the way of actual intelligence to show for it.  Playing my favorite game, "what can't Prof. Festa turn into a land use story," I found a property angle: apparently a couple of the agents had adopted the norm of home ownership as the American Dream--or, as they seem to have told their handlers, they thought that owning their home in New Jersey was necessary to enhance their cover as Real Americans.  From the BBC News, Russian "Spies" were no James Bonds:

In one case, the major issue for the couple concerned - "Richard and Cynthia Murphy", known as the "New Jersey Conspirators", was why they could not buy the house they were living in.

They pointed out correctly to "Moscow Centre" that the US was a society "that values home ownership" and that when in Rome "do as the Romans do".

It was a neat argument, but Moscow suspected that they were taking advantage. They hotly protested that they had not "deviated" from their mission.

Were they merely shrewd observers of the American culture of ownership; did they drink the kool-aid themselves; or is the home ownership desire truly universal?

Matt Festa

June 29, 2010 in Comparative Land Use, Housing | Permalink | Comments (1) | TrackBack (0)

Johnson on Le Corbusier and Law School Architecture

Eric Johnson has a post at Prawfsblawg called Le Corbusier and Certain Pro Se Litigants, with some thoughts on Le Corbusier's architecture including a nice (and grim!) photo of a Le Corbusier apartment complex in France.  Johnson ultimately jumps off to the question of which law schools have the best architecture, but first he has some interesting thoughts on Le Corbusier:

Recently, I've been taking a peek at the writings of Le Corbusier. He's one of history's most celebrated architects, and he has had a profound influence on the modern cityscape. He has designed buildings such as the Saddam Hussein Gymnasium in Iraq. These are buildings that don't exactly exude warmth. Basically, Le Corbusier is the creative genius behind the concrete box.

What's that? You're not a fan? Well, you should know that Le Corbusier provided lengthy philosophical justification for his concrete-box style of building. Here is how he begins his argument in the book Toward a New Architecture:

The Engineer's Aesthetic, and Architecture, are two things that march together and follow one from the other: the one being now at its full height, the other in an unhappy state of retrogression. The Engineer, inspired by the law of Economy and governed by mathematical calculation, puts us in accord with universal law. He achieves harmony. The Architect, by his arrangement of forms, realizes an order which is a pure creation of his spirit ... he determines the various movements of our heart and our understanding; it is then that we experience the sense of beauty. . . .

I'd quote more, but you've got a flavor for it: It sounds like a brief from one of those pro se litigants who is suing the president. If you've clerked, you definitely know what I'm talking about. In a word: CRAZY.

. . . .

Governments, universities (law school's included), and public housing authorities in the United States got hit especially hard by the brutalist architecture hysteria in the 1950s, 60s, and 70s. People think lawyers are clever persuaders. But what about architects? How did they persuade people to actually erect such monstrosities? Gerry Spence, eat your heart out.

Le Corbusier as crazy pro se litigant . . . who actually won many of his cases!  Hilarious.  Read the whole post

Matt Festa

June 29, 2010 in Architecture, Density, Humorous, Planning | Permalink | Comments (0) | TrackBack (0)

Monday, June 28, 2010

Anderson on the Offside Goals Rule in Practice

Ross G. Anderson (University of Glasgow) has posted The Offside Goals Rule in Practice.  I must admit that the paper title caught my eye primarly because we've been watching a lot of World Cup soccer around here [for evidence, see this local news video from Rice Soccer Camp with my daughter giving her pre-game analysis of the U.S.-Algeria game (and showing off some footwork) from last week!]. 

But it turns out that Anderson's paper is actually about property law--Scottish property law to be exact.  The abstract:

The author discusses the rule which penalises purchaser's of property who have private knowledge of the rights of a prior purchaser. In particular, he focusses on the practical implications of the rule for transactional lawyers.

From skimming the paper it looks like the "offside goals rule" is somewhat analagous to the American concept of race-notice recording of land conveyances.  But I like the soccer metaphor. 

Matt Festa

June 28, 2010 in Comparative Land Use, Contracts, Property, Real Estate Transactions, Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, June 27, 2010

SmartCode Zoning Restrictions Upheld...

For starters (and full disclosure), I do a great deal of writing, research, and consulting on the SmartCode and transect-based zoning.  That said, facts are facts so I don't mind reporting that the SmartCode recently withstood an interesting legal challenge.

What makes it interesting is that some people I've heard comment of the SmartCode have made claims that the SmartCode allows unfettered density.  The gist is that the code is pro-density. 

That's actually not the case at all.  Instead, the SmartCode is only pro-density in the more urban settings where greater density is appropriate to the scale of development.

Which leads to this recent lawsuit in Gulfport, Mississippi which involved a landowner trying to get more density than the SmartCode allowed--just the opposite of the aforementioned assumptions.

Read more here:

Three Gulfport residents prevailed in a zoning dispute Friday, when Circuit Judge Lisa Dodson ruled against a high-density development in their single-family neighborhood. Dodson said the information presented to the city did not support the City Council’s decision in August to rezone the property for up to 60 units on 4.3 acres.

Under SmartCode regulations West Gulfport residents helped develop, only five units per acre were allowed before the zoning change.

--Chad Emerson, Faulkner U.

June 27, 2010 | Permalink | Comments (0) | TrackBack (0)

Saturday, June 26, 2010

The Governator Promotes Denser Development...

California's Governor continues his push toward more compact land use development according to this recent Sacramento Bee column.  Here's a key excerpt:

Gov. Arnold Schwarzenegger has denounced the November ballot measure and vowed to defeat it at the polls. His administration's new report contends that California must cope with its ever-rising population by shifting to denser, transit-oriented development patterns and says that doing so will dramatically lower the cost of living in the state, citing both AB 32 and Senate Bill 375, another new law aimed at implementing higher-density development patterns.
"Vision California is an unprecedented effort to explore the role of land use and transportation investments in meeting the environmental, fiscal and public health challenges facing California over the coming decades," the document declares, adding, "By clearly expressing the consequences of different scenarios, Vision California can inform the policy and programmatic decisions that will drive California's infrastructure investments."

The idea of living more densely is one way to reduce, among other things, the need for extensive (and expensive) government services like road maintenance and energy costs related to running police, fire, and other vehicle fleets.  For a state like California that's on the cusp of budget disaster (if not past it), reducing expenditures is mission:critical.

This should be an interesting ballot battle in Sunny CA later this year...

--Chad Emerson, Faulkner U.

June 26, 2010 | Permalink | Comments (0) | TrackBack (0)

Friday, June 25, 2010

Salkin on Cooperative Federalism and Climate Change

Patricia Salkin (Albany) has posted Cooperative Federalism and Climate Change: New Meaning to 'Think Globally--Act Locally,' Environmental Law Reporter, Vol. 40, 2010.  The abstract:

This Article briefly discusses examples of the limited involvement and recognition states have carved out for local governments in state-level climate action plans. The main focus of the Article follows with an examination of the high level of largely uncoordinated activity taking place at the local government level, including innovative strategies worthy of replication throughout the country. The Article concludes with recommendations for cooperative approaches to be introduced at the federal and state levels to harness the power and opportunities of acting locally to address significant global challenges.

Matt Festa

June 25, 2010 in Climate, Environmentalism, Globalism, Green Building, Local Government, Scholarship, State Government | Permalink | Comments (0) | TrackBack (0)

Gonzales-Pagan on Takings, the Public Trust, and Reclamation of Submerged Lands

Omar Gonzalez-Pagan (J.D. Candidate, Pennsylvania) has posted The Lucas Exemption: How Takings Can Prevent the Erosion of the Public Trust Due to the Reclamation of Submerged Lands, Real Estate Law Journal, Vol. 38, Winter 2009.  The abstract:

Two fundamental principles of property law - the public trust doctrine and the takings clause of the Fifth Amendment = are coming to a clash due to climate change. While it has long been accepted that states possess title to most tidal lands and waters below the mean high-tide line through the public trust doctrine, the public trust has, in essence, been eroded through the reclamation of submerged lands.

This paper argues that the reclamation of submerged lands erodes the public trust. Moreover, it posits that the takings clause is an adequate remedy to restore the public trust without resorting to compensation. Such argument is based on the premise that “takings” of reclaimed submerged lands falls under one of the exceptions established by the Supreme Court in Lucas v. South Carolina Coastal Council - that of background principles of property and common law. 

The paper focuses on the Supreme Court of Puerto Rico case of San Geronimo Caribe Project, Inc. v. Puerto Rico as an example of how takings could have avoided the erosion of the public trust through the reclamation of submerged lands.

Matt Festa

June 25, 2010 in Caselaw, Climate, Coastal Regulation, Constitutional Law, Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Thursday, June 24, 2010

NY Court of Appeals decides Columbia U. Eminent Domain case

The New York Court of Appeals today handed down its decision in Kaur v. New York State Urban Development Corp., the challenge to the government's use of eminent domain in conjunction with a Columbia University development project.  To almost no one's surprise, the NY high court reversed the Appellate Division'sruling that the taking was unconstitutional.  Especially since the Goldstien case (i.e., Atlantic Yards) came out last fall, solidifying the New York approach of Kelo-style deference to governmental assertions of economic development as consonant with the Public Use Clause.  

And just yesterday I was blogging about how the incidence of economic development takings might be down due in part to the Kelo backlash!  But this is New York, of course--one of just a handful of states that has not even passed any sort of anti-Kelo measure at all.  I just read the Kaur decision; I expected the standard Kelo-style deference to legislative and executive officials to determine what things are in the public benefit (although I thought the Court rather passively accepted the argument that Columbia = education (nonprofit!) and education = good = constitutionally sufficient public benefit).  But I was still a little surprised at the extent to which the Court seems to bend over backwards to disclaim any competence at all to evaluate the sufficiency of a "blight" determination by the government (which also gets to decide to use eminent domain).  That's the rational basis test taken to its logical extreme.  

Keith Hirokawa (Albany) and Patricia Salkin (Albany) recently posted their article Can Urban University Expansion and Sustainable Development Co-Exist? A Case Study in Progress on Columbia UniversityFordham Urban Law Journal, Vol. 37 (2010).   Their article provides a great overview of the background of the project and many of the land use issues involved.  Ilya Somin has a good early analysis of the decision here, with some further analysis of the blight issue in the case.  I do hope that the Columbia project succeeds in enhancing the neighborhood with walkable mixed-use and economically successful community development, where other high-profile comprehensive economic development takings have failed.   

Matt Festa

June 24, 2010 in Caselaw, Constitutional Law, Economic Development, Eminent Domain, Judicial Review, New York, Property Rights, Redevelopment, State Government, Takings | Permalink | Comments (0) | TrackBack (0)

Kermit Lind on Cleveland Housing Code Enforcement

From Kermit Lind of Cleveland State:

Major news on the municipal code enforcement front was made yesterday with the publication of Friday’s decisions by Judge Raymond L. Pianka, of the Housing Division of Cleveland Municipal Court. A total of $12 million in fines was levied on two related South Carolina commercial homeowners cited in 2008 for major violations of Cleveland’s building and housing codes.

The Court issued the following statement on its web site:

“In these two cases, the Court imposed fines on the Defendants for extended and extensive violations of the City’s codes. The Court analyzed in depth the aggravating and mitigating factors and found no basis, at this time, for mitigation of the fines. Defendants are related, out-of-state, for-profit corporations in the business of buying and selling real estate. The Court discussed at length the impact that neglected properties have on the city and the harm caused by investors who neglect properties and shift the costs of nuisance abatement to the City’s taxpayers. Among
the factors the Court found aggravating were Defendants’ ongoing failures to correct violations and their “offer” to the City of a sum insufficient to cover even the outstanding demolition costs and unpaid taxes on the properties. The Court imposed total fines of $11,948,000 on Interstate Investment Group and $1,059,000 on Paramount Land Holdings, LLC.”

The Court’s decision sends a message to those presuming that compliance with local building and housing ordinances that protect the public health, safety and welfare is not required of those who own housing for business purposes. In Cleveland, banks and bulk purchasers of bank real estate owned (REO) properties have claimed in legal proceedings that municipal laws do not apply to them when it conflicts with their business interests in holding title to real property.

The Court also scolded City Prosecutors for weak prosecution in the sentencing phase of these cases. It calculated the small costs to chronically lawless investor-owners of violating in rejecting the prosecution’s proposed sentences. Judge Pianka’s judgment also stated the Court’s now familiar policy of sentencing for compliance over punishment. That policy mitigates fines where the guilty homeowners abate or pay the costs of abating nuisance conditions.

With the new Cuyahoga County Land Reutilization Corporation now in operation as an advanced capacity land bank, some banks and other absentee commercial owners of residential properties, including Fannie Mae, are looking to it for help in disposing of unmarketable houses.

The Court’s web site is

Jamie Baker Roskie

June 24, 2010 in Caselaw, Housing, Local Government, Nuisance | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 23, 2010

Florida says Homeownership is Overrated (WSJ)

Richard Florida, one of the leading public intellectuals on the future of cities and the originator of the "Creative Class" concept, had an interesting article in the Wall Street Journal last week: Homeownership is Overrated: Today's economy requires a more mobile workforce.  After acknowledging the important role that homeownership has played in cultural conceptions of the "American Dream" for the last several generations, Florida critiques the norm:

Owning a home may actually be a drawback given the economic flexibility required to power long-lasting recovery. My colleagues and I tracked homeownership levels across U.S. cities and regions to see how they correlate to other measurable demographic and economic factors. As we expected, the rates of homeownership are greatest where housing prices are lowest. But cities with high levels of homeownership—in the range of 75%, like Detroit, St. Louis and Pittsburgh—had on average considerably lower levels of economic activity and much lower wages and incomes. Far too many people in economically distressed communities are trapped in homes they can't sell, unable to move on to new centers of opportunity.

Now I think there are two different questions here that Florida doesn't distinguish: (1) whether homeownership is good for individual homeowners; and (2) whether it is good for society at large.  But Florida makes some excellent points.  He goes on to make a policy prescription that I think is long overdue, particularly from the left:

First and foremost, the Obama administration should end its ongoing measures to prop up the housing market. The massive federal subsidies for homeownership, which totaled some $230 billion in 2009 according to the Congressional Budget Office, should be phased out, and the tax deduction for mortgage interest eliminated.


The next critical step is to encourage the transition to more and better rental housing. Multifamily housing is one of the few profitable bright spots in a ravaged housing industry. There are thousands upon thousands of unsold condos and foreclosed homes that can and should become rentals.

Florida concludes with a much-needed questioning of the cultural assumption that property ownership is the sine qua non of the "American Dream":

A "home of one's own" has been the emblem of prosperity and stability for a very long time. The idea is rich with psychological and cultural significance, but we have come to an economic juncture where we must re-examine even our most cherished beliefs. We can begin by updating our definition of the American Dream.

Matt Festa

June 23, 2010 in Development, Federal Government, Financial Crisis, Housing, Mortgage Crisis, Real Estate Transactions | Permalink | Comments (4) | TrackBack (0)

Chimpanzee Gangs Kill for Land

Now here at the Land Use Prof Blog, we have assembled a team of bloggers with different areas of specialty, but all of whom I think share the idea that land use is a fundamentally interdisciplinary subject: it involves many fields within law, and many disciplines and professions across the human landscape, and transcends national systems as well.  But until today, I never thought that land use involved inter-species issues.  But I was wrong.   Check out Chimpanzee Gangs Kill for Land.

Chimp-on-chimp attacks in the wild are very common, especially among small packs of males on patrol. Now research suggests the motive for these crimes is to gain territory. . . . 

"The take-home is clear and simple," said researcher John Mitani of the University of Michigan. "Chimpanzees kill each other. They kill their neighbors. Up until now, we have not known why. Our observations indicate that they do so to expand their territories at the expense of their victims."

So maybe the impulse to control the use of land transcends humanity.  Do the chimpanzees signal our "primal" innate desire to own land and regulate it?  Who knows; read it for fun.  

Matt Festa

June 23, 2010 in Humorous | Permalink | Comments (0) | TrackBack (0)

NYT on the Housing Market Slowdown

Speaking of New York Times features on the real estate market and mortgage crisis, they had this one last week: Housing Market Slows as Buyers Get Picky.  

Before the recession, people simply looked for a house to buy. Later they got squeamish just thinking about buying. Now they are on a quest for perfection at the perfect price. . . . 

It is a reversal of roles from the boom, when competing buyers were sometimes reduced to writing heartfelt letters saying how much they loved the house and how they promised to eternally worship the memory of the previous owners. These days, it is the buyers who are coldly seeking the absolute best deal while the sellers are left in emotional turmoil.

“We see buyers who must have learned their moves from the World Wrestling Federation,” said Glenn Kelman, chief executive of the online broker Redfin. “They think the final smack-down occurs at the inspection, where the seller will be reluctant to refuse any demand because the alternative is putting the house back on the market as damaged goods.”

Everyone expected the housing market to suffer at least a temporary hangover after the government’s $8,000 tax credit expired, but not necessarily this much. Preliminary data from around the country indicates that the housing market began swooning last month immediately after the credit was no longer available. In some places, sales dropped more than 20 percent from May 2009, when the worst of the financial crisis had subsided. 

Bad news for the housing and construction industries, and a possible signal of a double-dip recession.  I think that last part about the $8000 tax credit is telling.  Once again, the market for housing was artificially propped up by a policy decision to promote home ownership.

Matt Festa

June 23, 2010 in Financial Crisis, Housing, Mortgage Crisis, Mortgages, Real Estate Transactions | Permalink | Comments (1) | TrackBack (0)

Livable Communities Act

Courtesy of the Houston Tomorrow newsletter, here is a report on the proposed Livable Communities Act.  Senate Bill Connects Transportation, Land Use Planning: Livable Communities Act.  Quoting the D.C. Streetsblog:

The Livable Communities Act would provide about $4 billion in competitive grants to coordinate housing, transportation, and economic development policy with an eye toward promoting sustainable development. About $400 million would be slated for planning with the remainder funding implementation. The bill would also create a new office within the Department of Housing and Urban Development to guide and administer the programs. If passed, it would strengthen the Obama administration’s multi-agency Sustainable Communities Initiative.

Sounds great in its intent, though short on specifics, as most proposed legislation is.  Senator Dodd opines:

Senator Dodd described the bill at the hearing, stressing that “integrated transportation and land use planning can help address a host of challenges: high foreclosure rates, climate change and oil dependency, deteriorating infrastructure, traffic congestion, and the loss of farmland. “

I have a couple of questions, though.  First, to the extent that this bill can be construed to represent the Obama administration's commitment to rethinking urban development and land use, and promoting transit oriented development and sustainable communities, how does it square with the other administration policies that seem determined to continue promoting single-family home ownership in suburban sprawl? 

Second, I'm not persuaded by this last exchange on performance measures:

Senator Warner supports the bill, but would like to see the Livable Communities Act have performance measures in place. He asked, “Is it just squishy livability? Is there a way that we can define this with metrics?”

He was assured by responses saying that many of its results can be measured, such as “the volume of reduced greenhouse gases, acres of preserved open space and rises in property values,” the article reports.

I'm skeptical of "performance measures" and "metrics" generally.  More substantively, I think that the point of legislation such as this--agree or disagree with it on the merits--should be to promote qualitatively different community development (which is a quintessentially local issue) and not to be wrapped up in larger transnational issues like global warming.  Really, should the "metric" for whether a "Livable Communites" grant is successful be its infinitesimal contribution to reducing the Globe's carbon footprint?  There are better ways to fight climate change.  I for one would rather promote "squishy livability" than to try to shoehorn some "metric" for carbon reduction into the analysis of whether we should subsidize certain forms of development.  If the legislation promotes good development, then that is the primary outcome that should be measured. 

Matt Festa


June 23, 2010 in Clean Energy, Climate, Environmental Law, Environmentalism, Federal Government, Property, Scholarship | Permalink | Comments (0) | TrackBack (0)

"No New Houses, For You!"

One of the iconic characters created by the much-missed Seinfeld series was the Soup Nazi and his signature "No Soup for You!" rants at George and Elaine.

Well, the housing market just suffered its own version of that rant today as new home sales tanked over 30%.  This is a really bad number.  Bad enough to provoke talk about a double dip recession all over the web.

Read more from the Calculated Risk blog here.

All of this new housing carnage has a slight silver lining though as it leads me back to the premise that, these days--more than ever--municipalities have the leverage over developers to amend their land use regulations into more sustainable approaches.  In the past, developers might have threatened to go build in the next town down the road if anything but the most minimal moves toward sustainable development regs were put in place.

Now where is that developer (if they're even still in business) going to threaten to go?  The answer is nowhere because they cannot get the capital to build in the first place.

If cities are serious about reforming their land use codes to embrace sustainable regulations, now is the time to do so as the influence of sprawl-friendly developers is lower than ever.

--Chad Emerson, Faulkner U. 

June 23, 2010 | Permalink | Comments (1) | TrackBack (0)

Institute for Justice on Kelo at Five Years

The Institute for Justice has published a white paper commenting on the fifth anniversary of the Kelo decision: Five Years After Kelo: The Sweeping Backlash Against One of the Supreme Court’s Most-Despised Decisions.  The IJ, you may remember, was lead counsel for the homeowner plaintiffs in the case.  The paper, of course, expresses IJ's continued opposition to the SCOTUS ruling, but nonetheless seems to strike a cautiously optimistic note regarding eminent domain in the wake of the Kelo backlash.  From the intro:

Less than one week after the decision was handed down, the Institute for Justice launched a national campaign called “Hands Off My Home.”  IJ was determined to focus the outrage over Kelo and turn it into meaningful reform.   In the five years since the decision, there has been an unprecedented backlash against the Kelo ruling in terms of public opinion, citizen activism, legislative changes, state court decisions, and lessons learned from the New London case . . .

There is another paragraph in the conclusion that I find very interesting.  Back when Pfizer moved out of its New London facility, I suggested on the New York Times "Room for Debate" Blog that the failure of the New London plan, and the Kelo backlash generally, might work to discourage planners and local governments from pursuing economic development takings (I called the Pfizer/New London debacle "Exhibit A" in the case against eminent domain for comprehensive redevelopment).  Ilya Somin, who was involved in the case, and has done the definitive research on the problems and loopholes of the post-Kelo state "reform" legislation, agreed that the backlash was significant but thought I might have been too optimistic about the deterrent effect of the backlash.  I agreed that I was in fact expressing an optimistic viewpoint--if I had had to bet money, I probably would have gone with Somin's more realistic prediction.  And I still have absolutely no empirical data at hand regarding the rate of economic development takings since Kelo.  But the IJ's report seems to indicate that there has been at least a slowdown in litigation on the issue:

The results of the Kelo backlash have been striking.  The Institute for Justice used to get continual requests for assistance in fighting eminent domain for private gain.  Now, we receive far fewer.  Of those, many are defeated by activism in the court of public opinion before they ever reach a court of law.  Eminent domain abuse used to be a nationwide epidemic with more than 10,000 instances reported in just one five-year period alone, an epidemic that affected property owners in most states.[20]  Now, it is largely a problem confined to certain reform-resistant states, like New York, that refuse to change their laws or listen to their own citizens.  The Institute is focusing its efforts in litigation and advocacy in those states.

It was exactly that "court of public opinion" effect that I had in mind.  Now of course, a slowdown in litigation requests to IJ doesn't necessarily mean there is less eminent domain out there.  And there are two obvious counterarguments: (1) there are fewer requests to IJ because Kelo essentially declared economic development takings to be legal and constitutional, so there may be fewer disputes over such takings when they happen; (2) in the recession, planners and local governments are less eager for purely economic reasons to do New London-style redevelopment projects.  And just because there might be less interest-group litigation doesn't mean that the issue has faded as a serious legal and policy matter.

Still, it's an interesting take on the political and policy effects of the Kelo backlash five years after the opinion.  Thanks to Brian Erskine for the pointer.

UPDATE: Ilya Somin has his thoughts on Kelo's fifth here

Matt Festa

June 23, 2010 in Caselaw, Economic Development, Eminent Domain, Financial Crisis, Judicial Review, Local Government, Property Rights, Property Theory, Redevelopment, Scholarship, Takings | Permalink | Comments (3) | TrackBack (0)

Scarberry's Reply to Levitin on Bankruptcy Modification of Home Mortgages

Mark S. Scarberry (Pepperdine) has posted a Reply to Adam Levitin's Response to Scarberry's Symposium Article (which was itself a "Critique"Levitin's work)--ok, I think I have that straight.  At any rate, it's a very interesting and important debate.  Scarberry's Reply is Mortgage Wars Episode V - The Empiricist Strikes Back (or Out): A Reply to Professor Levitin’s Response, and is published at Pepperdine Law Review, Vol. 37, p. 1277, 2010.  The abstract:

Professor Adam Levitin has responded to my recent symposium article critiquing proposed congressional legislation that would allow modification (including strip down) of home mortgages in Chapter 13 bankruptcy. A portion of my Critique criticized his empirical studies concerning the likely effect of the proposed legislation on mortgage interest rates and availability, and also criticized the arguments he has made in support of the proposed legislation. The Critique did note, however, that the insight involved in conceiving of such empirical studies was impressive.

Surprisingly, Professor Levitin’s Response fails to deal with the substantial case authority discussed in my Critique. He treats the Critique’s case authority on a critical question as if it consisted only of one relatively recent Ninth Circuit case and supposed dicta from an “old” Second Circuit case. But the Critique in fact relies on about twenty cases that deal with the question; the only supposedly contrary case authority he discusses in his Response turns out to be one of the cases cited in my Critique and not to be contrary at all. The case authority shows that the main defense put forward in his Response - that the mortgage modifications that would be permitted under the proposed legislation are similar to those permitted before the Supreme Court’s 1993 Nobelman decision and similar to those currently permitted where the collateral is not the debtor’s principal residence - is simply untenable.

It is also surprising that the entire weight of his defense of the empirical studies rests (A) on a very likely mistaken view of the law - that the law permits Chapter 13 debtors to use a novel, flawed approach in modifying secured claims under current law - and (B) on two remarkably bold and implausible assertions regarding how the market data he collected supposedly should have reflected the risk that debtors might use that novel, flawed approach, even though his data was collected before anyone had suggested that debtors might even try to do so. In addition, one of Professor Levitin’s assertions, if accepted, would fatally undermine
the design of a key part of his empirical studies.

The article notes in conclusion that law professors and others who have taken divergent positions on the wisdom of the congressional proposals might yet be able to agree on a common-sense middle ground; there is no need to consider those who disagree with us as having been seduced by the Dark Side.

The citation for my Critique is Mark S. Scarberry, A Critique of Congressional Proposals to Permit Modification of Home Mortgages in Chapter 13 Bankruptcy, 37 Pepp. L. Rev. 635 (2010). The Critique is available at The citation for Professor Levitin’s Response to the Critique is Adam J. Levitin, Back to the Future with Chapter 13: A Response to Professor Scarberry, 37 Pepp. L. Rev. 1261 (2010). His Response is available at The citation for this Reply is Mark S. Scarberry, Mortgage Wars Episode V - The Empiricist Strikes Back (or Out): A Reply to Professor Levitin’s Response, 37 Pepp. L. Rev. 1277 (2010). 

I appreciate Prof. Scarberry including the citations to the other articles in the debate in his abstract--saves me a lot of work!  More importantly, this dialogue addresses one of the key issues in the mortgage crisis.  

Matt Festa

June 23, 2010 in Federal Government, Financial Crisis, Housing, Mortgage Crisis, Mortgages, Real Estate Transactions, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 22, 2010

Speaking of Powerpoint presentations...

...many of the presentations from the 2010 New Partners for Smart Growth conference have now been posted on-line. 

A wide variety of them include information that land use types who focus on sustainability issues would likely find interesting.

Here's a link to the presentations page.

--Chad Emerson, Faulkner U.

June 22, 2010 | Permalink | Comments (0) | TrackBack (0)