Land Use Prof Blog

100,000 Land Use Visits!

Hey, I just checked our stats and sometime earlier today, we had our 100,000th visitor at the Land Use Prof Blog! Also today, we reached 150,000 page views. Very cool!

Thanks to blog founder Paul Boudreaux; to all of our regular and guest bloggers; and most of all, thanks to everyone for reading!

We hope that you'll keep coming back and checking it out.

Matt Festa

Bevilacqua: In Massachusetts, the Other Shoe has Dropped

Earlier in the year, I blogged about a decision (Ibañez) by the Massachusetts Supreme Judicial Court finding as invalid a land title claimed by a foreclosing bank that could not show that it held the mortgage at the time of foreclosure.  Prior to that ruling, a stated practitioners' standard recognized as curative post-foreclosure assignments of mortgages.  The Bevilacqua v. Rodriquez case presented the Court (previously blogged about here) with similarly sloppy handling of the mortgage assignments but also a third-party purchaser (and redeveloper) of the property from the foreclosing bank.   

Earlier this month, the Mass. SJC again found that the foreclosing bank had no title to transfer and that the title claimant's more sympathetic position with regard to the botched securitization process did not create title.  The Court dismissed his "try title" action and suggested that his equitable rights to the (as yet unforeclosed) mortgage might support a possible reforeclosure--a less than reassuring directive if the purchaser has invested in the property more than the lien value of the mortgage.  

Adam Levitin (Georgetown) submitted a winning A.C. brief in the Bevilacqua case.  His Credit Slips blog post on the decision can be found here. Congrats!

Jim K. 

Halloween Land Use Rules

Just got back from trick-or-treating with Peter Pan and a human pineapple. As they sort through the loot, I'm reminded of the increasing trend towards regulating Halloween activity. Where I grew up there weren't any rules, just social norms that controlled things like how late kids could reasonably stay out ringing on doorbells (with law enforcement as a backstop for teenagers out too late or too unruly). But then a few years ago I moved to a town in Ohio, and was surprised to learn that the town promulgated "official trick-or-treat hours" . . . and I'm not 100% sure on this, but I think the official hours to trick-or-treat were the day before Halloween, because it fell on a Sunday, or something. To get even more land use-y, it was restricted to residential neighborhoods only (not sure why you'd want to do otherwise).

Just trolling around the web tonight, I came across this Yahoo article compiling Bay Area Halloween Laws and Regulations. A few examples:

- Sex offenders: stay home; no candy; no decorations, and expect a police visit.

- Curfew laws enforced-- 10 p.m. seems like the most common time for Halloween curfew.

- Parades: several communities have kids' parades, requiring street closures, permits, police.

- Street festivals: for the second year in a row, the Castro District celebration has been cancelled; therefore traffic, parking, etc. will not be disrupted.

- Public safety: last year there was gunfire at an Oakland festival; expect tighter restrictions on large gatherings.

One other thing I have observed the past couple of years: people driving their kids to the more pedestrian-friendly, slightly denser, but still single-family residential neighborhoods to trick-or-treat-- the "sweet spot" (if you will) of efficient foot travel and probability of treats at each house. It turns out that kids are intuitively rational candy-maximizers. Happy Halloween!

Matt Festa

Property Theory and Land Use, Part V

This is the final post in a multi-part series. Part I is here. Part II is here. Part III is here. Part IV is here.

*****

Imagine a state law that prohibited mortgagees from foreclosing on defaulting mortgagors if those mortgagors were women. This would strike many people as unjustly discriminatory but I suspect many people would have a difficult time articulating why. It doesn't make much sense to say that this law violates some right of the woman-mortgagor, since no sensible person would claim a right to be foreclosed upon. On the other hand, the law discriminates on the basis of sex in an arbitrary way.

Of course, property profs have a ready answer. If mortgagees cannot foreclose against female mortgagors then women have effectively been prohibited from conveying the right of foreclosure in the mortgage instrument, and this will drive up the cost women will pay for obtaining credit. The effect of the law is discriminatory against women. But this doesn't seem to get all the way at the problem, because the discrimination appears to be intentional.

This was the puzzle of common law coverture. Far from arguing that coverture violated their rights, many married women actually invoked coverture in order to avoid debts that they had voluntarily incurred. For this reason, as I argued in this article, I think coverture challenges the simplistic rights language of liberalism.

Here again, the common-goods approach provides a superior explanation. Coverture was unjust because, as the high court of Texas observed in 1851, it deemed the married woman, as a result of her marriage, “divested of her faculties as a rational being." As another court noted, coverture rested upon the assumption that "married women were incapable of managing their business dealings." By freeing the married woman to exercise sovereignty over her assets, laws abolishing coverture treated her as a fully reasonable and responsible moral agent, capable of exercising the “right of disposition, control, and management."

The history of coverture and its abolition teaches an important lesson about property. Owner sovereignty is not merely a matter of rights. Property owners exercise sovereignty over their assets by reasoning about ends and purposes and choosing among intelligible reasons for action. The core of property—the owner’s sovereignty over his or her assets—secures a zone of freedom within which the owner uses assets to create new projects, commitments, and states of being, which other people might not value. If a common-good theory of property is defensible (I have argued on this blog that it is) then property presupposes the capacity of human beings to make pre-moral choices of and among basic human goods, to create reasons for action by undetermined choices, and to make those choices in pursuit of genuine goods for the benefit not just of the property owner but also of those with whom the owner-sovereign is in community.

Owner sovereignty thus enables free choice (what some would call personal autonomy), which is a distinctly human achievement. Legal doctrines that fail to account for and respect the capacity for freedom, responsibility, and practical reasonableness in a class of persons are not merely unwise, but also are inconsistent with human dignity, and are for that reason unjust.

This suggests that there are principled limitations upon the state's regulation of land use. Owner sovereignty is not merely a matter of expedience, efficiency, or prudence. As a matter of principle property law must respect the core of owner sovereignty, which frees the property owner to choose. And on this view, the canonical police powers, which the state exercises for the health, safety, morals, and general welfare of its citizens, correspond to truly common goods. The police powers are not arbitrary. This entails that they must not be exercised in arbitrary ways. If the good of citizens is truly common then the state cannot justify its actions on the ground that a loss by a property owner is outweighed by the collective good of the greatest number. Rather, the state may act only to protect a truly intelligible end, which the action of some property owner threatens.

Adam MacLeod

Great Resource on New York City Zoning

For those of you, like me, who love New York City and are interested in its zoning code, I am enclosing a link to a fantastic interactive map that provides all sorts of detailed information about New York's zoning changes since 2002.  As critics have noted, the reason New York is doing all of this piecemeal rezoning is because it has not comprehensively revised its now-outdated zoning ordinance since 1961. 

On a related note, the Municipal Art Society recently hosted a panel discussion about New York City's zoning ordinance to coincide with the 50th anniversary of the existing law.  Official Land Use Prof Vicki Been of NYU moderated the discussion and, as this blog post recounts, had some very interesting insights.

Ken Stahl

Occupy Athens Creates Controversy

We're having our own mini-controversy here in Athens over the Occupy Wall Street-related protests.  The Occupy Athens protesters are stationed outside The Arch, known as the "front door" to the University.  It's the entrance to the historic north quadrangle, and the main entrance from downtown Athens.

As outlined in this article from the local paper, the UGA police chief has been warning the protesters not to block The Arch or the stops leading up to it.  I've passed this protest on foot and in my car several times, and while protesters have been standing on the steps and near the Arch, I've never had my way blocked, nor seen them block anyone else, but apparently there have been complaints.  Now a UGA law professor has weighed in to say that the University is violating the protestors' free speech rights.

There have been arrests and violence at Occupy protests all over the country, mostly notably in Oakland. I doubt very much we'll see anything that dramatic here - we tend to be polite and quiet here in Athens, even in our protesting.

Jamie Baker Roskie

UPDATE: Some interesting parallels between the situation in Athens and controversy over Occupy London's site on the steps of St. Paul's Cathedral - as reported in The New York Times.  The City of London Corporation is suing to have the encampment removed:

Last week, the corporation went to court to seek an order dismantling the St. Paul’s camp as a breach of the historic right of unimpeded access to the country’s “highways.” Though the St. Paul’s encampment is concentrated on the cathedral forecourt, a pedestrian area in normal times, a corporation executive, Michael Wellbank, overlooked the distinction. “Protest is an essential right in democracy, but a campaign on the highway is not,” he told reporters. “Encampment on a busy thoroughfare clearly impacts the rights of others.”

 

 

What Occupy Wall Street Owes to Zoning

From the Wall Street Journal's Developments blog: What Occupy Wall Street Owes to Zoning.

Occupy Wall Street’s monthlong protest has been helped by donors willing to supply food, temperate fall weather and support from organized labor and some elected officials. But a less-visible asset has proved a big boon for the protesters: New York City’s land-use policy.

The geographic center of the protest is lower Manhattan’s Zuccotti Park, a one-block collection of trees and benches that is owned by an office landlord, Brookfield Office Properties Inc. Private ownership actually makes the space more accessible than public parks, many of which close at night.

As discussed in a Journal article on Saturday, the city’s zoning code requires that many privately owned parks be open to the public at all times — one of the factors that made Zuccotti Park a hospitable venue for the protesters’s all-hours encampment.

Termed a “privately owned public space” — or POPS, in zoning parlance — these plazas stand at the intersection of capitalist instinct and public interest. The zoning code puts restrictions on the scale of towers that developers are allowed to build. In an attempt to add public space in Manhattan without buying new parkland, city government allowed developers to build bigger structures if they set aside a plaza that remains open to the public.

While many of these are tucked away in the backs of buildings or in lobbies, Zuccotti Park turns out to be one of the most accessible POPS in the city. Of course, there is an irony that the space in which Occupy Wall Street has found a continued home is owned by the city’s largest landlord for financial services firms — the very industry they are protesting.

Matt Festa

Lastowka on Penalver & Katyal's Property Outlaws

Greg Lastowka (Rutgers-Camden) has posted Property Outlaws, Rebel Mythologies, and Social Bandits, Cornell Journal of Law and Public Policy, Vol. 20, p. 377, 2010, reviewing Eduardo Peñalver and Sonia Katyal's book, Property Outlaws: How Squatters, Pirates, and Protesters Improve the Law of Ownership (Yale Univ. Press 2009).

Lastowka notes that he agrees with much of the authors' analysis, and highlights a few areas of disagreement: (1) he suggests that the popular image of outlaws in society is actually not all that bad; (2) there are a great many outlaws who are "bad" and don't offer any socially useful outcomes; (3) whenever redistributionist outlawry is necessary, that is the sign of a failed state, and therefore should not necessarily be celebrated; (4) while property disobedience can be heroic for the information value it communicates, it likewise should not be necessary unless there is a breakdown in functioning democratic society.

[Note that the above synopis is mine and not the author's, since the review essay didn't include an abstract].

Matt Festa

Takings Jurisprudence, NIMBYS, and Scalia's Hypothetical Highway

After slogging through the Mahon and Penn Central cases (booorrring), it's always a relief to start talking about Lucas v. South Carolina Coastal Council.  The reason is simple: Justice Scalia knows how to keep us entertained.  In particular, Scalia loves to get sassy in his footnotes.  I'm sure readers have their favorites, but one of mine is footnote 8 of the Lucas opinion, which in addition to being enjoyable, is also very illuminating.  I spend about 20 minutes of class time discussing this footnote and its implications for both takings law specifically and land use law more generally, including the intractable NIMBY problem. 

The basic holding of Lucas is that a state regulation that deprives property of all economic value (i.e., a "total wipeout") is a per se taking, subject to a few caveats and exceptions that I'm not going to get into here.  Footnote 8 takes on Justice Stevens's argument, in dissent, that the "total wipeout" rule is arbitrary because the landowner who suffers a 95% wipeout gets no compensation while the landowner who suffers a 100% wipeout gets 100% compensation.  Scalia's response: that result "is no more strange than the landowner whose premises are taken for a highway (who recovers in full) and the landowner whose property is reduced to 5% of its former value  by the highway (who recovers nothing).  Takings law is full of these 'all-or-nothing' situations."  To illustrate this hypothetical, I draw the following picture on the board:

 I then ask my students the question left unanswered by this hypo: why does Owner "A," whose land is taken for the highway, get full compensation, whereas Owner "B", whose land is substantially devalued by the siting of a highway adjacent to his home, get nothing? 

Continue reading

DC Planning Office Threatens to Limit Georgetown's Enrollment

There's a new skirmish in the on-going battle between D.C.'s private universities and the D.C. planning office over off-campus housing of undergraduates.  (Full disclosure - my former firm represented most of the major D.C. universities, including Georgetown, in land use matters.)  Periodically each university's Campus Plan comes up for review by the city government.  Georgetown's plan is currently under consideration, and according to this editorial in The The Washington Post:

A recommendation by the city’s office of planning would require the university to provide housing for 100 percent of its undergraduate students by 2016; failure to do so would force cuts in enrollment starting in 2015.

Town and gown relations in D.C. have always been fraught, as they are in many places. (For more, see this 2005 Note about litigation against both Georgetown and George Washington.)  D.C. has always had a particularly high concentration of universities, and many students live cheek-by-jowl in apartment buildings inhabited by working adults, families, and retirees, creating potential lifestyle conflicts.  Having both worked for the universities and lived in the George Washington University neighborhood, as well as being both a student and a neighbor to students here in Athens, I don't think the universities in D.C. do any worse job with neighborhood relations than schools anywhere else.  In D.C. it's simply a matter of scale and density. What's interesting here is that the city seems so comfortable attempting to control enrollment, something normally at the university's discretion.

Jamie Baker Roskie

CORRECTION - a previous version of this post had the headline "DC Planning Office Threatens to Limit Georgetown's Employment."  This is what comes of blogging while multi-tasking!

Kelo: Not Long for this World?

In recent remarks, Justice Scalia mentioned Kelo v. New London alongside Dred Scott v. Sanford and Roe v. Wade as decisions in which the Court made a mistake of "political judgment," underestimating the extent to which the decision would provoke a widespread public backlash.  I wonder what he would say about the role of Citizens United in sparking the Occupy Wall Street protests.  In any event, Scalia also predicted that Kelo would soon be overruled. 

Hat Tip: ABAJournal.Com

Ken Stahl

"The 19 Building Types That Caused the Recession"

Over at The Atlantic Cities website, I stumbled across this fun little piece,

Among his favorite examples of all the standard real-estate products built ad nauseum across the country over the last half-century, Christopher Leinberger likes to point to the Grocery Anchored Neighborhood Center. This creation is generally about 12 to 15 acres in size on a plot of land that’s 80 percent covered in asphalt. It’s located on the going-home side of a major four-to-eight lane arterial road, where it catches people when they’re most likely to be thinking about what to buy for dinner. . .

Leinberger, an urban land-use strategist and professor at the University of Michigan, includes the Grocery Anchored Neighborhood Center on his list of the 19 standard real estate product types dominant in post-war America. Also on the list: suburban detached starter homes, big-box anchored power centers, multi-tenant bulk warehousing and self-storage facilities. All of these products are designed for drivable suburban communities. They reflect almost exclusively what investors have been willing to finance for the last 50 years. And as construction picks back up following the recession, Leinberger says we'll need to get away from every single one of them.

It's a slightly fancier way to say we must get away from sprawl, but it's certainly food for thought.

And when you're done with that, check out Richard Florida's article "2011's Best Cities for Trick-or-Treating."

Jamie Baker Roskie

Property Theory and Land Use, Part IV

Part I of this series is here. Part II is here. Part III is here.

*****

If, as I discussed in Part II, land use planning and governance serves a truly common good, and not merely individual preferences or collective goods, then a number of important implications follow. In Part III I examined one of those implications, namely that land use planning should consist neither of centralized decision-making nor of purely individual owner sovereignty. Instead, it should involve multiple individuals and associations, both public and private, in collaborative exercises of authority over their respective spheres. Decisions about land use should not be zero-sum games, in which one person’s “good” is sacrificed for some greater “good.” Indeed, because basic human goods are incommensurable, it is nonsense to speak of goods in this way. Finally, I speculated that successful development plans tend to employ this multi-faceted approach.

Another important implication of the common-ness of goods is that the ends for which property sovereigns act—the goods that provide intelligible reasons for authoritative decisions about land use—are good for all and knowable by all. This does not mean that all property sovereigns must or even should choose the same ends. To the contrary, that property enables owner-sovereigns to pursue different goods is one of property’s great virtues. But it does mean that some ends are really good, and other ends are really not good, even evil. Placing a library next to a school promotes the good of knowledge. Placing an adult book store next to a school causes real harm, even if economists cannot measure on any scale the harm caused by the dirty bookstore against whatever good it might achieve.

If this is true then the government’s exercise of its police powers is at once grounded in, and limited by, universally-accessible reasons (what some old-fashioned folks used to call “natural law”). The state cannot simply assert that all of its ends are legitimate. Some ends are rational, and therefore have a plausible claim to legitimacy. Other ends are fully reasonable, and therefore clearly legitimate. Still other ends are simply not intelligible as legitimate reasons for state action.

I recognize that this is an unpopular notion today. But natural law isn’t just for natural lawyers anymore. Prominent liberal jurisprudential thinkers, such as Joseph Raz and Ronald Dworkin, have affirmed the intelligibility of certain basic goods. And the authors of the Progressive Statement began by affirming the incommensurability of certain basic values.

I’ll close this post by tentatively suggesting one state interest that is commonly asserted but is nevertheless not intelligible in itself as a justification for land use decisions. Many land use decisions, including many controversial land use decisions, are justified on the basis of the increased tax revenue that the municipality is convinced will result from the decision. This interest is often asserted as a ground for burdening or infringing the property rights of poor or middle-class property owners, especially in eminent domain actions. But increased tax revenue is not a reason for state action in and of itself; money has no intrinsic value. The tax revenue must be used for something good in order to become valuable. If it is assumed that the municipal government will use the tax revenue for good ends—better educational facilities, public parks and community centers—then the municipality’s real interest is in those more basic ends that (the city hopes )the tax revenue will help secure. But of course, the nexus between the land use decision and those more basic, distant ends is difficult to demonstrate.

Of course, one might observe that this is the very reason we should doubt the prudence of the land use decision in the first place.

Adam MacLeod

Georgia Trust Releases 2012 "Places in Peril"

Today the Georgia Trust for Historic Preservation released its 2012 "Places in Peril" list of historic properties under threat. (Historic preservation bufs will note this public relations gambit is not unique to Georgia.) As I expected, UGA's Rutherford Hall appears first on the list.  Rutherford is, as I previously blogged, slated for demolition.  However, several less imperiled, yet possibly more architecturally worthy buildings, such as the Randolph County Courthouse, are also listed.

Built in the 1880's, this masonry courthouse located on the town square of Cuthbert was built in the Dutch Romanesque Style, which is unusual for Georgia. With the construction of a new judicial center for Randolph County, the functions of the courthouse were relocated. The county is working with the architectural firm Lord Aeck & Sargent to redevelop the building as offices for many municipal functions including a welcome center, chamber of commerce, soil conservation lab and event space. The county is performing the restoration in phases, using prisoner labor. The courtroom benches have been restored as part of a rehabilitation program that trains prisoners to refinish furniture.

These lists of endangered properties must have value - I wonder how often a listing like this results in a property being saved.  I don't think there's much hope for Rutherford Hall, though. Despite significant opposition the University seems staunch in its plan to "retrofit" through demolition of the existing building.

Jamie Baker Roskie

Chan, Gedal, Been, & Haughwout on the Role of Neighborhood Characteristics in Mortgage Default

Sewin Chan (NYU Wagner), Michael Gedal (NYU Wagner), Vicki Been (NYU Law), and Andrew Haughwout (Federal Reserve Bank-New York) have posted The Role of Neighborhood Characteristics in Mortgage Default Risk: Evidence from New York City. The abstract:

Using a rich database of non-prime mortgages from New York City, we find that census tract level neighborhood characteristics are important predictors of default behavior, even after controlling for an extensive set of controls for loan and borrower characteristics. First, default rates increase with the rate of foreclosure notices and the number of lender-owned properties (REOs) in the tract. Second, default rates on home purchase mortgages are higher in census tracts with larger shares of black residents, regardless of the borrower’s own race. We explore possible explanations for this second finding and conclude that it likely reflects differential treatment of black neighborhoods by the mortgage industry in ways that are unobserved in our data.

Matt Festa

Property Theory and Land Use, Part IIIa

Public Discourse today is running an essay that I penned about the institution private property and the ways in which it promotes human flourishing. In that essay I explore the debate that I summarized here two weeks ago. Further, I respond to the authors of the Progressive Statement and point out some things that I believe they overlooked.

Adam MacLeod

Lawrence Summers on How to Stabilize the Housing Market

Lawrence Summers (former Treasury Secretary, Harvard President, and Obama advisor) has posted a Washington Post op-ed called How to Stabilize the Housing Market. From the article:

The central irony of a financial crisis is that while it is caused by too much confidence, borrowing and lending, and spending, it can be resolved only with more confidence, borrowing and lending, and spending. This is true, above all, of housing policies. Fannie Mae and Freddie Mac, government-sponsored enterprises (GSEs) whose purpose is to mitigate cyclicality in housing and that today dominate the mortgage market, have become a textbook case of disastrous and pro-cyclical policy.

Summers notes that the housing market is key to the economy, and makes several substantive recommendations, including:

First, and perhaps most fundamentally, credit standards for those seeking to buy homes are too high and too rigorous. The characteristics of the average successful applicant in 2004 would make that applicant among the most risky today. The pattern should be the opposite, given that the odds of a further 35 percent decline in house prices are much lower than they were at past bubble valuations.

Matt Festa

Seicshnaydre on Public Housing and Racial Segregation in Post-Katrina New Orleans

Stacy Seicshnaydre (Tulane) has posted How Government Housing Perpetuates Racial Segregation: Lessons from Post-Katrina New Orleans, 60 Cath. L. Rev. 661 (2011). In it, she explores how quantity-minded public housing advocacy and NIMBY-style public housing resistance has combined to perpetuate the racial segregation that federal law prohibits. Here's the abstract:

This Article contends that post-Katrina New Orleans exemplifies the exclusionary dynamic in which government-assisted housing operates throughout America and the fundamental failure of American housing policy at the federal, state, and local levels to prevent the racial segregation that inevitably results. Federal law has prohibited racial segregation in government-housing programs for decades, yet it has proven difficult to reverse entrenched patterns of segregation in these programs. Patterns of racial segregation have been particularly intractable in New Orleans, which, prior to Hurricane Katrina in 2005, boasted the second-highest level of poverty concentration in the nation and relatively high levels of poverty concentration in all of the major government-housing programs. Furthermore, low-income white residents in pre-Katrina New Orleans had greater access to middle-income neighborhoods throughout the metropolitan area of New Orleans than low-income black residents, who were overwhelmingly concentrated into high-poverty neighborhoods.

Hurricane Katrina, with its massive levee failures and neighborhood flooding, offered an opportunity for New Orleans to emerge as a more inclusive region; new government-assisted housing could have helped facilitate inclusion, while also responding to the regional-housing needs of the area. However, rental housing bans proliferated throughout the region, primarily in communities that had previously served as affordable suburban alternatives for lower- and middle-income whites in prior decades. These communities sought not only to prevent the development of new rental housing, but also to limit the repair of rental housing that preexisted the storm. At the same time, other communities in metropolitan New Orleans that were the least affordable, most homogeneous, and nationally recognized as desirable places to live were not targeted for government-assisted housing, and thus did not pass similar sweeping rental bans. Therefore, rather than using recovery efforts to reverse racially segregated housing patterns, the region took steps to exacerbate them.

This Article describes a perennial dynamic of two impulses pulling in opposite directions—the anywhere-ist and nowhere-ist impulses, which conspire to perpetuate segregation. The anywhere-ists are primarily focused on securing as much federally assisted housing as possible; the nowhere-ists are primarily focused on keeping it out of their communities. This dynamic has created a “path of least resistance,” whereby government-assisted housing continues to be provided in places where it already exists or in places that are already open and affordable.

Ultimately, federal intervention in the housing market must encompass more than providing a subsidy. It must open neighborhoods not already open, make affordable what is not already affordable, enable housing subsidies to act as gateways to educational and employment opportunity, and inform families historically excluded from housing markets about their choices. Any federal housing interventions that are not so designed will almost certainly exacerbate existing racial segregation and poverty concentration, as they have done for decades, and—as post-Katrina New Orleans illustrates—as they will continue to do, again and again and again.

Jim K.

Wilson on Navigating the Land Use Maze

Perusing the latest issue of Tierra Grande, the magazine of the Texas A&M Real Estate Center, I came across this short article by Reid C. Wilson called All the Right Moves: Navigating the Land Use Maze.  The "takeaway":

Land use regulations can be daunting. Landowners and developers must understand why land use regulation exists; appreciate the tough position of city staff members; do their own homework on specific regulations; and reserve adequate time for the process.

Wilson is one of the leading real estate attorneys in Texas.  This brief article is a good introduction to the process of navigating land use regulation, and might be a good read for students and professionals who want to start learning about it.

Matt Festa

Property Theory and Land Use, Part III

This is Part III in an on-going series of posts. In Part I, I crudely summarized the central claims of the Statement of Progressive Property and (what is in my view) the most telling criticism of that statement. In later posts I’ll refer to this exchange as the Progressive Statement Debate. In Part II, I briefly examined the guiding principles of an actual municipal rebuilding plan, that of Tuscaloosa, Alabama. Tuscaloosa suffered catastrophic damage from an enormous tornado last spring, and they are now beginning to plan how they will rebuild. I noted that Tuscaloosa grounded its rebuilding plan on the common good of the community. I remarked that the basic principles articulated in Tuscaloosa’s plan seem remarkably like the theory of authority developed by the natural law philosopher John Finnis, who grounds authority not in a social compact, an original position, the command of a sovereign, or the state’s responsibility for some consequentialist calculus, but rather in the basic human good of community.

*****

If Finnis and the City of Tuscaloosa are correct, and there is such as a thing as an objective human good that we call community, then several important principles follow. Community is not a collective good but rather a common good. It is a good that cannot be instantiated except by cooperation among some number of people larger than one, yet it cannot be reduced to a mere aggregation of individual interests. A community of people must perceive the value of their cooperative action in some reason for action that they all share in common, not as the collective sum of individual goods less individual burdens, but rather a value that is truly good for them all, the value of which is known to them all.

In other words, that people form communities for the purpose of pursuing common goals, which are not reducible to the greatest aggregate collective good (which must be achieved at the expense of some), is perhaps the best practical proof against consequentialism.

As a theoretical matter, consequentialism is untenable. That at least some human goods are incommensurable—cannot be compared to each other on the same scale—entails that it is nonsense to speak of “the greatest good” in any collective sense. (Very helpful explanations of the incommensurability thesis can be found in Joseph Raz, The Morality of Freedom, at 321-66, and John Finnis, Natural Law and Natural Rights, at 92-95, 112-15.) But one need not read jurisprudence in order to see that consequentialism fails to explain how communities operate (or at least how they operate well) in the real world, particularly in their planning and development of land. When land use planning and development is done well, the community benefits in common; everyone really is better off. When land use planning is treated as a consequentialist enterprise, a zero-sum game in which the rights and interests of some individuals must be sacrificed for a “greater” collective “good” (think Poletown and Kelo), things tend not to turn out very well.

One of the important implications of this observation is that authority for land use planning should be de-centralized. No single, central authority is capable of measuring the “greatest collective good” through any empirical measurements, because no such collective good exists. A community's truly common good is irreducibly complex. Thus, a truly common good must be pursued through the community’s plural, subsidiary institutions. Private institutions within the community should, for this reason, retain as much authority as possible. They have primary responsibility for promoting the common good, for standing as intermediaries between the government and their individual members, and for helping local officials perceive what can and should be accomplished in any development of land.

This is why, I think, successful development plans tend to involve multi-faceted decision-making. They tend to enjoy so-called buy-in not just from individual citizens but also from businesses, trade groups, churches and other religious assemblies, social clubs and charities, and all of the other subsidiary institutions through which the community pursues the good.

Adam MacLeod