Land Use Prof Blog

Martin Luther King, Civil Rights, and Housing

Hope everyone had a good Martin Luther King Day yesterday.  An important part of Dr. King's legacy is his involement in advocating against de facto residential segregation and for fair and affordable housing as part of a broader conception of civil rights.  On this issue, King did more than make speeches-- he actually moved his family's home.  From the Chicago Encyclopedia:

King relied on his lieutenant James Bevel to energize the first phases of the campaign, but in January 1966 he captured national headlines when he moved his family into a dingy apartment in the West Side ghetto. It was not until June that King and his advisors, under pressure to produce results, settled on a focus for the Chicago movement. King himself participated in two dramatic marches into all-white neighborhoods during a two-month open-housing campaign during the summer of 1966. These fair-housing protests brought real estate, political, business, and religious leaders to the conference table for “summit” negotiations.

And the Chicago Tribune:

The marches led to an accord that year between the protesters and the Chicago Real Estate Board. The board agreed to end its opposition to open-housing laws in exchange for an end to the demonstrations. Before he left town, King said it was "a first step in a 1,000-mile journey."

A journey that still continues.

UPDATE: Steve Clowney at Property Prof links to an opinion piece on Dr. King's legacy and fair housing in New Jersey today.

Matt Festa

Webinar: Service and Learning in Times of Disaster

From Prof. J.P. "Sandy” Ogilvy (Catholic)

Webinar – Friday, February 17, 2012, 2:00 – 3:30 pm (EST)

Title: Service and Learning in Times of Disaster

Topic: Disasters, natural and man-made, can strike any community at any time. For the most part, law schools are unprepared to respond to disasters, although law schools have abundant resources that can be brought to bear as part of a disaster response effort. This webinar is part of an effort to help law schools prepare to become legal first responders in the event of a disaster in their communities or beyond. The interactive program will present models of disaster response forged from these disasters – New York Law School’s 9-11 Response, Loyola New Orleans’ Katrina Clinic, University of Miami’s Haitian TPS Project, and the University of Detroit Mercy’s Foreclosure Defense Clinic – and begin a dialogue that we hope will lead to the creation of a law school disaster relief network.

Who should attend: Law school deans and administrators Law school faculty, both clinical and doctrinal Potential law school partners, including Legal Services providers and Bar leaders What will you learn: The disaster response contributions made by law students, law schools, and law school clinics with the concomitant opportunities for professional skills training, responding to client and community needs, and opportunities for community collaborations How law schools and clinics can begin to develop formal plans for disaster response and develop the elements of such plans or “best practices,” including: networking among law schools, law clinics, legal services providers and social service relief organizations; training for anticipated legal needs; creating a legal first responder corps; connecting with communities and community organizations; and ideas for the creation of a law school disaster relief network.

Presenters: Stephen J. Ellmann, New York Law School Bill Quigley and Davida Finger, Loyola University New Orleans College of Law Joon Sung, University of Detroit Mercy School of Law JoNel Newman, University of Miami School of Law J.P. “Sandy” Ogilvy, Catholic University of America, Columbus School of Law

Participants will be able to ask questions of the presenters via email. To be a part of this Webinar, send an email to [email protected] to request registration information. There is no charge for participation, but space is limited, so reserve your space soon.

Jamie Baker Roskie

HUD’s Moving to Opportunity study provides long-term analysis of neighborhood effects on residents

On January 26, 1966, Dr. Martin Luther King, Jr. moved into a run-down section of Chicago’s West Side to bring attention to housing issues and segregation.  On this day that commemorates all his efforts, it seems appropriate to consider a recently released report by the U.S. Department of Housing and Urban Development (HUD), which analyzes what is likely the most detailed, long-term look at neighborhood effects on residents.  What follows here is a brief description of the report’s findings.

HUD’s Moving to Opportunity for Fair Housing study released its final report in November, 2011 (MTO).  MTO was a large, long-term study authorized in 1992 to determine whether living in a less economically and socially distressed neighborhood could improve well-being and long-term life chances.  It was the first random-assignment social science experiment designed to identify the causal effects of moving from a high-poverty to a low-poverty neighborhood.  From 1994 to 1998, the program enrolled 4,604 low-income households in Baltimore, Boston, Chicago, Los Angeles, and New York, and was limited to households with children that were living in public or government-subsidized, project-based housing in high-poverty areas.  Enrolled families were assigned randomly to one of three groups:  the experimental group, which received Section 8 rental assistances that could only be used in census tracts with poverty rates below 10 percent, and mobility counseling to assist in leasing a new unit; the Section 8 only group received regular Section 8 vouchers they could use anywhere and no special mobility counseling; and the control group, which received no certificates or vouchers, but remained eligible for project-based housing.  Forty-eight percent of the experimental group moved to a lower-poverty neighborhood; and sixty-three percent of the Section 8 only group moved to a non-project location. 

Long-term findings regarding mobility found that the experimental and Section 8 groups were more likely than the control group to:  live in lower-poverty neighborhoods; live in higher-quality homes; reside in slightly less racially segregated neighborhoods, though most remained in majority-minority neighborhoods; have more social ties with relatively more affluent people; and feel safer in their neighborhoods. 

Long-term findings regarding physical health found that adults in the experimental and Section 8 group had:  a lower prevalence of extreme obesity; a lower prevalence of diabetes; fewer self-reported physical limitation; and similar rates of hypertension and health-related risk. 

Long-term findings regarding mental health found that, compared with the control group, adults in the experimental or Section 8 group had:  lower levels of psychological distress; lower prevalence of depression or anxiety; and similar rates of most other mental health problems.  Mental health of children ages 10-20, however, varied by gender.  Female youth ages 10 – 20 in the experimental group, relative to the control group, had:  a lower prevalence of any lifetime mood disorder; fewer serious emotional or behavioral difficulties; fewer panic attacks in the past year; less psychological distress; lower prevalence of oppositional defiant disorder; and similar rates of other mental health problems.  When compared to the control group, male youth ages 10 – 20 in the experimental group: showed increased lifetime post-traumatic stress disorder; and prevalence of the disorder among male youth in the Section 8 group were 3 percentage points higher than in the control group.

With regard to economic self-sufficiency, compared with the control group, experimental and Section 8 group adults had:  similar employment levels and earnings; similar incomes; less food insufficiency; and somewhat higher use of food stamps in the experimental group.

In Strength to Love, King wrote, “The good neighbor looks beyond the external accidents and discerns those inner qualities that make all men human and, therefore, brothers.”  HUD’s study quantifies King’s moral assertion, making clear that good neighbors have significant, long-term effects on a number, though not all, key life factors.  The study’s results may well influence future policy choices for affordable and fair housing, and provide insights for what a new neighborhood can, and cannot do, for individuals.

Stephen Miller

Documentary “Urbanized” covers land use themes

Those of you looking for a little diversion, or perhaps a land use-related movie for class, might want to check out Gary Hustwit’s great new documentary film, Urbanized (2011), that touches on a number of urban design and land use issues.  It is available online as of this weekend and will be released on DVD February 14.  Those of you in big cities may still be able to catch it in theaters.

In a review in The New York Times, A. O. Scott wrote:

Those of us who live in cities — more than half the world’s population, according to many recent estimates — experience them mainly at eye and street level. Each urban environment has its own character and can therefore seem more like the result of natural processes than of complex human intentions. A city develops organically, through the complex interplay of economics, biology and countless local, individual decisions, but also by means of planning on the part of architects, engineers and politicians.

The mingling of design and happenstance is, to some extent, the deep subject of “Urbanized,” Gary Hustwit’s fascinating, idea-packed new documentary. In this remarkably concise film — which could easily have sprawled to 15 hours on public television — Mr. Hustwit and his crew survey both the challenges and promises facing some of the world’s important cities.

Maybe a good learning tool, and at the very least, a fun diversion!

Stephen Miller

Local Government Law Blog

More news from the AALS Section on State & Local Government: Christopher Tyson (LSU) has started a subject-matter blog!  Here's the link:

Local Government Law: the online home for scholars and practitioners of local government law

Looks like the editor lineup is Prof. Tyson, Paul Diller (Willamette), and our own recent guest-blogger Michael Lewyn (Touro).

Congrats, and welcome to this corner of the legal academic blogosphere!

Matt Festa

State & Local Government section--Cities in Recession program

From an email sent by Rick Su (Buffalo), the Chair of the AALS Section on State & Local Government Law, here is something that may be of interest to land users.  The Section is already planning for the 2013 AALS meeting in New Orleans:

The tentative title is Cities in Recession. The program will look into the many ways that cities have not only been affected by, but are also responding to, the current economic downturn. This should provide a timely lens for exploring a wide range of local government issues, from municipal finance to education to economic development. In addition, it offers an opportunity to look at both distressed and resilient cities. The planning for this panel is in its early stages; I eagerly welcome any comments or suggestions that you might have ([email protected]).

Matt Festa

Can land use form the basis for an “impact” transactional clinic?

This year I started the University of Idaho College of Law’s new Economic Development Clinic (the “Clinic”), which is a transactionally-focused clinic that draws from land use, administrative, state and local government, and environmental law.  As I was planning the Clinic, I came across Praveen Kosuri’s (UPenn) excellent article, "Impact" in 3D - Maximizing Impact through Transactional Clinics, 18 CLINICAL L. REV. 1 (2011).

In that article, I felt Kosuri made a number of great points that aligned with, and affirmed, nascent ideas I had about how to structure my Clinic, and provided what I saw as a new way forward for traditional community economic development (CED) clinics like the one I took in law school. 

Foremost, he noted that “impact” clinics have typically been structured as litigation-based clinics, with the idea of providing benefits to a group or class through litigating individual claims.  Kosuri makes a strong case that transactional clinics can have a broader impact, as well.  Kosuri says that his clinic takes on three types of transactional clients:  (i) “low to moderate income entrepreneurs from economically distressed communities”; (ii) “bigger projects with client representations that will have a substantial multiplier effect on impact simply if the entrepreneurs, who are engaged in community revitalizing efforts themselves, are successful in their endeavors”; and (iii) “double bottom-line businesses, those not focused solely on profit, but also on societal benefit.”  I find this approach invigorating in that it both focuses on individual clients, while also trying to use the knowledge gleaned from individual representation to help a larger group.  I think it is also potentially valuable because this is an approach that can have a real impact on a community in a way that is community building rather than adversarial.  While this does not displace the role of impact litigation, what a valuable experience it would be for students to recognize that they can have an “impact” through transactional lawyering as well as through litigation.  I think this is especially true because a number of lawyers who end up doing transactional work, as many land use lawyers essentially do, as well as many corporate lawyers, can find it difficult to find pro bono opportunities in the real world that have significance beyond individual clients.  Teaching students how to structure transactional work to have a broader impact seems a valuable long-term tool to give students who go on to become transactional lawyers.

Kosuri also notes that this kind of representation can be a supplement to what he calls traditional CED lawyering, such as representation of community groups and institutions.  By expanding the notion of CED, and potentially CED clinics, along the lines Kosuri discusses in his article, I believe there is a chance to breathe new life into the CED clinic practice.  Kosuri’s “impact” approach is one I hope to integrate into my Clinic as it grows through the years.

Stephen Miller

Jeff Foxworthy Puts a Conservation Easement on His Farm

Proving that he is, indeed, smarter than a fifth grader, comedian Jeff Foxworthy has placed a conservation easement on 1,000 acres of his farm in west Georgia.  From the article in the Atlanta Journal-Constitution:

“As someone who grew up in Atlanta and watched it explode, I thought, ‘Wouldn’t it be cool if this could be here forever and nobody could develop it? ‘ ” said Foxworthy in a phone interview today from the property, which is based in Harris County between LaGrange and Columbus, about 100 miles south of downtown Atlanta. “It’s my escape. It’s my farm. I can drive through the gate and not have to be Jeff Foxworthy. Just Jeff.”

The land, which Foxworthy purchased in 2003, was being eyed as a possible golf course, he said. It was originally part of Cason Callaway’s 40,000-acre Blue Springs Farm, which was established as an agricultural experiment in the 1940s to promote better farm practices. The easement allows Foxworthy to maintain private property rights and the ability to live on the land. He also receives a tax break.

Foxworthy has spent most of his comedic career helping folks decide whether or not they were rednecks.  It's good to see him putting his success to good use in the land conservation arena.

Jamie Baker Roskie

How Much Land Use in the Property Course?

Happy New Year everyone!  Now that the spring semester has begun, I know many of you are thinking: "how long until my summer break?"  Or, if not that, "how much land use should I cover in the 1L Property course?"  Since land use is my area of specialty and Property is a 6 credit course at Chapman, the answer for me is a lot.  But how much should you teach?  What aspects of land use are really essential in the property course?  By land use, I specifically mean government regulation of land, setting aside private land use controls like nuisance, servitudes, and HOAs. 

The basic conceptual difficulty with covering land use in 1L property is that property is, like the other 1L classes, a common-law course.  Bringing in land use regulation obviously takes you out of the common-law world, and requires some introduction to things like, you know, the government.  Such an introduction is probably useful, but one wonders how to incorporate it into a first-year class whose focus up to that point has been on how judges arrive at decisions in a world where we assume regulation is either non-existent or incompetent.  One of the reasons I like the common-law orientation of the first year is that students too readily assume upon entering law school that every problem can be solved simply by passing a command-and-control regulation -- so if someone is polluting, just ban pollution, and problem solved.  The common law does not permit such pat answers, and so students learn to engage in more complex problem solving (such as, how nuisance law can deal with the problem of pollution).

At the same time, private land use controls have serious limitations about which students should be aware -- nuisance law is indeterminate, ad hoc, and beset by collective action/transaction cost problems; covenants, servitudes and HOAs face similar problems and are also unable to deal with impacts outside the properties subject to the restrictions. I introduce land use, zoning specifically, in my property class to bring out the flaws in private land use controls and show how zoning, as it was originally envisioned, aspired to overcome these flaws by coercively submitting an entire community to a comprehensive set of clearly defined restrictions.  I use the canonical Euclid case and introduce Euclid's zoning map for the purpose of showing how, as the Court saw it, zoning was an evolutionary advance on the common law: instead of adjudicating land use disputes on a parcel-by-parcel basis as in nuisance law, or subdivision-by-subdivision as in servitude/HOA law, zoning enables the  comprehensive planning of an entire town.  I spend about twenty minutes in class just examining Euclid's zoning map to get a sense of what the village's plan was, and how Ambler's parcel fit in with that plan.  You can see the way the village was trying to channel industrial development around the Nickel Plate Railroad and preserve its single-family districts by using multi-family and other "intermediate" uses as buffer zones between industry and single-family residence.  This is designed to reinforce to students how we have left the world of the common-law and entered a new world in which each parcel is seen as part of a whole.   (By the way, here is a copy of Euclid's 1922 zoning map: Download 1922 Zoning Map.  In land use, I show this map as well as Euclid's current zoning map (Download Euclid Zoning Map) with which I like to compare the original, and the city of Irvine's zoning map, (Download Zoning-Map) which I see as kind of a post-modern answer to Euclid's zoning map.)

In doing this, though, I am deliberately setting my students up to be disillusioned (as if one semester of property hasn't already accomplished that.)  As I said before, the last thing I want is for students to think that regulation can solve all our problems, and that the common law is all just a waste of time, or a prelude to what's really important.  After one class period discussing Euclid, I spend a few classes showing that, in fact, regulation doesn't solve the problems of the common law.  I provide a very brief overview of things like variances, spot zoning, special uses, and nonconforming uses, all designed to show one thing: that zoning has left behind the lofty claim of comprehensive planning and instead returned to the very case-by-case adjudication that was supposed to be the common-law's fatal flaw!  And courts, in reviewing these modern zoning techniques, are not blindly deferential as Euclid was, but apply common-lawish reasoning to adjudicate these disputes.  In short, one cannot escape the common law method of adjudication even in a regulatory state.  I think it is extremely important for teachers of first-year courses to impress upon students that the common law is a foundation for their legal education that will continue to be important even when they "graduate" to learning about the administrative state.  For me, a brief excursion into zoning serves that purpose.

While on the subject, there is the small matter of takings (groan), which is a very challenging subject for both first-year students and, uh, everyone else.  Again, in teaching takings in Property, my focus is on reinforcing the lessons from the common law, and showing how the common law remains relevant in assessing the validity of regulation.  And indeed, it is the case that many hallmarks of common-law adjudication are present in takings jurisprudence, including the importance of expectations (see Penn Central), the debate between certainty and fairness (per se rules v. balancing tests), the significance of the right to exclude (physical occupations), the problem of transaction costs (U.S. v Causby, for example), and, ultimately, how we define that elusive term "property," which as I see it is the foundation of the entire course.  For the basic property course, I find brief discussion of chestnuts such as Loretto, Mahon, Penn Central, and Lucas sufficient to sketch these themes.  Loretto brings out the right to exclude issue, and I also use it to digress into a brief discussion of Causby and the transaction cost problem (why distinguish physical occupations from other types of equally serious non-possessory interferences?) Mahon and Penn Central bring out the importance of expectations and the basic merits and flaws of a balancing test, as well as a few other points, while Lucas shows the virtues and vices of a bright-line rule.  If I were confined to a shorter period of time, I would probably just do a short mini-lecture on Mahon to introduce Penn Central and curtail the discussion of Lucas significantly (students really struggle with "background principles of state law").

For me, the key thing in deciding how much land use to incorporate into the first year property class is to keep your eye on the ball, which is the common law of property and teaching students to appreciate the common-law method.  Every aspect of my discussion about land use is designed to reinforce something we learned about the common law and to highlight the continuing relevance of the common law in the regulatory state.

I hope this gives you some food for thought, and if anyone cares to comment on how you incorporate land use into the 1L property class, I welcome your contributions. 

Ken Stahl

Two decades of Kentlands: a New Urbanist classic comes of age

While in the DC area last week, I took the opportunity to make a pilgrimage to the Kentlands, one of the first—and largest—New Urbanist communities in the country.  Located west of Gaithersburg, Maryland, it is now 21 years since Kentlands first residents moved in.  To get there, one must first drive far into the Maryland suburbs, past the “Anywhere, USA” stretches of arterials, highways, wide lawns, and subdivision developments whose standard is, as Frank Lloyd Wright put it, “the man seated in his motor car . . . rather than the man standing on his legs or his limitations in a trap hitched to a horse.”  But out in the land of the automobile, a right turn takes you into a peculiar transformation, one that looks like Georgetown dropped into a leafy, lake-filled setting.  This is Kentlands, or, as the names of the lakes might lead you to believe, a place for inspiration, placidity, even nirvana.

The beautiful pictures of Kentlands are legion, and no doubt about it, Andres Duany and Elizabeth Plater-Zyberk (collectively, “DPZ”) brought a magic to this suburban location not typical in developments of this type.  The 8,000 residents here have something unique in the DC ‘burbs.  But for this audience, I wanted to report on a couple thoughts—and offer a couple pictures—that I thought might give this groups something to contemplate.

   

First, it was immediately evident to me the legacy of Clarence Perry’s neighborhood unit scheme on Kentlands.  DPZ have openly acknowledged their reliance on Perry’s neighborhood unit scheme (see their Smart Growth Manual section on neighborhoods), but it was interesting to see it play out in the suburbs.  As many of you know, Perry was highly influenced by the success of Forest Hills Gardens in New York City’s Queens’ borough, and wanted to find a way to establish a neighborhood that could preserve a walkable community in the age of the motor car.  His 1920s solution:  invert the traditional street-car suburb.  Late 19^th century neighborhoods had evolved around trolley stops—long strips of commerce around a stop—and then residential behind that.  Many of our cities have this legacy, such as Park Slope in Brooklyn, Noe Valley in San Francisco, Elmwood in Berkeley, and Boise’s Hyde Park, to name a few.  Perry thought that if “arterials,” as traffic engineers were calling the new big roads they wanted to "drive" through cities, were built along the trolley tracks, they would divide the neighborhoods.  Instead, Perry sought to move the traffic to the exterior of the neighborhood unit, place the commerce along those external arterials, and in the middle, place all the components of daily life within a walkable community.  That included schools, churches, and neighborhood-serving retail.  Perry imagined the neighborhood unit size around 5,000 – 10,000.  Kentlands fits this model to a tee.  It is surrounded by arterials, but once inside, the roads are narrow, serviced by street parking and rear-alley parking, all streets have sidewalks, there is an elementary and junior high school in the project, a church, and neighborhood-serving retail.  At its center, just like Perry also proposed, are amenities, such as common lawns, a tennis center.    If you want to see Perry’s model brought to life in the suburbs, Kentlands is a must to visit.

One tenant of Kentlands is supposed to be the neighborliness engendered by the design.  Notably, I did not see anyone walking or out on their porch, though perhaps one could chalk this up to a cool winter’s day.  I did notice that most of the shops in Kentlands traditional downtown center appeared to be mostly professional services, such as dentists, accountants, and such, which typically do not provide tremendous foot traffic.  I did not see an abundance of restaurants or retail (there were a few) in the "retail center."  No doubt this mix of stores was affected by the very Anywhere, USA big-box store complex immediately adjacent to this neighborhood retail center and the big-boxes attendant fields of parking lots and large-footprint stores.  I couldn’t help but wonder whether the closeness of this car-dependent retail didn’t, in some manner, affect how people used the rest of Kentlands.  If you are going to drive your car to the grocery store, then won't you also use it to drop off Timmy at school rather than walk him there?  It was unclear from my visit whether the big-boxes were part of the original Kentlands design, but it does affect the character of the division as it is experienced—and perhaps also how it is used by its residents—as it has evolved.

 

There was a nice mix of unit size and affordability throughout the development, though it did seem that the apartments lacked the character of the single-family unit portion, and also had especially large floorplates.

 

I was particularly interested in how DPZ dealt with cars, and in particular, their road design.  I must admit, this is a particular indulgence of mine, and I loved a recent report produced by Berkeley about legal issues that play out in street design (full disclosure:  I am on the advisory board of one of the groups that drafted this report, but did not participate in the research).  DPZ did a great job of keeping neighborhood streets small, creating great alleys for services, and as a result, the cars get tucked away and don’t dominate the development.  I’ve included some pictures of this here for those of you who may be interested.  Finding ways to accommodate this type of road-work is one of the great challenges of land use planning to my mind.

  

Finally, I found myself reflecting on who it was that would live in Kentlands.  After all, if the idea is to have a community that looks like Georgetown, why not just live in Georgetown?  It reminded me of a recent housing report from the Urban Land Institute that spoke of the future of development.  It noted that many Baby Boomers and Gen X’ers would like to live in urban areas, but either find it too expensive or don’t want to deal with the headaches.  The report indicates that there is a growing interest in urban-style communities on the urban fringe, largely because the cost is cheaper and developers can have large plots of land with which to work.  Is there any better description of Kentlands?  As much as Kentlands was in the vanguard of the 1990s, it may well be the future of what will be developed on a mass scale in the next decade.

Stephen Miller

Outka on the Energy-Land Use Nexus

Uma Outka (Kansas) has posted an essay called The Energy-Land Use Nexus, forthcoming in the Journal of Land Use & Environmental Law, 2012.  The abstract:

This Symposium Essay explores the contours of the “energy-land use nexus” – the rich set of interrelationships between land use and energy production and consumption. This underexplored nexus encapsulates barriers and opportunities as the trajectory of U.S. energy policy tilts away from fossil fuels. The Essay argues that the energy-land use nexus provides a useful frame for approaching policy to minimize points of conflict between energy goals on the one hand and land conservation on the other.

Matt Festa

New life for New Markets Tax Credits?

New Markets Tax Credits (“NMTCs”) are up for re-authorization this year.  While among the more complicated of development-based tax credit schemes, NMTCs basically boil down to this:  an investor receives a 39 percent federal tax break over 7 years (five percent for each of the first three years, and six percent for each of the remaining four years) for investing in a qualified low-income community, which is defined by census tracts.

The program has grown in popularity since its first authorization in 2000, as has its allocations, which total $29.5 billion since 2000.  The original NMTC legislation provided $15 billion in NMTCs from 2000 to 2007.  Most recently, Congress allocated $3.5 billion in NMTCs for each of the 2010 and 2011 fiscal years.  The bills currently before the House and Senate propose to allocate $5 billion in NMTCs for each of the next 5 years. 

One of the most interesting things about NMTCs is the wide variety of uses to which NMTCs can be put . . . at least on paper:  almost any real estate or small business loan subsidy or grant in a qualifying low-income community is eligible.  In reality, the majority of NMTCs thus far have been used for real estate projects in low-income areas.  (See 2010 GAO report, Figure 3).  The CDFI Fund recently issued regulations to try to spur use of NMTCs to assist small businesses.  NMTC loans to small businesses are inherently more risky, seeing as the entity receiving the tax credit wants to make certain the investment remains for the full seven years to receive the entirety of the tax credit. 

Other issues with NMTCs have been that they are simply extremely complicated transactions.  As a result, in researching NMTCs a couple months ago, one national lender told me that his institution wanted deals of at least $5 million in order to be able to make the transaction pencil out, while another national lender told me that number was $15 million in her organization.  That means that the transaction costs are probably too high with NMTCs to facilitate smaller projects; hopefully, this cycle can streamline some of that transactional weight, as the 2010 GAO report noted above recommended.

My investigation into NMTCs suggests that they have great promise, especially when states are willing to double up the value by providing NMTCs that apply to state taxes, such as Ohio.  In particular, I have been extremely impressed with the use of NMTCs in Cincinnati’s Over-the-Rhine neighborhood.  I grew up in Ohio and visited Over-the-Rhine while in Cincinnati in December.  I was impressed by the ability to make headway in a troubled area (you may recall the 2001 riots there) that continues to have its share of problems, but appears to also have signs of life once again, thanks in part to NMTC funding.  Check out the work of 3CDC and its related entities using NMTCs.

In thinking of the relative importance of NMTCs, I’d also note that the budget for Community Development Block Grants (“CBDGs”) was $5.6 billion in 2001.  In 2011, CBDG funding was just $3.3 billion, which is less than NMTCs.  NMTCs appear to have bi-partisan support (see list of bill sponsors at House/Senate links above), and appear to be on the rise.  Of course, it will be a challenge to get anything passed this election year, even with bi-partisan support, but I believe re-authorization of NMTCs will be an important issue to watch this year, especially for those who work in low-income communities.

Stephen Miller

CFP: Wetlands Policy Conference at Buffalo

Via Jessica Owley, news of an interesting upcoming conference at Buffalo:

Save The Date and Call for Papers
Beyond Jurisdiction:
Wetlands Policy for the Next Generation
26-27 April 2012 at SUNY Buffalo Law School
Buffalo, New York

Beyond Jurisdiction: Wetlands Policy for the Next Generation will bring together academics from law and other fields to join advocates in an exploration of the future of wetlands law and policy from a variety of perspectives (normative, empirical, instrumental, etc.). As is true of many areas of law and social policy, the world of wetlands is inherently political and value-laden—the law is often be a poor means of accomplishing contested social objectives in this area. A debate sparked by U.S. Supreme Court decisions and related federal actions have focused wetlands scholarship and advocacy during the past decade on exploring the parameters of which “waters of the United States” fall under federal jurisdictional. Such concentration has detracted from scholarship and study of many other important issues related to wetlands policy, such as mitigation, the Tulloch rule, nationwide permits, local and state policy developments, international treaty obligations, and other matters. This conference is designed to broaden the focus of exploration and include voices of scholars, activists, scientists, media professionals, and others.

We welcome many voices to this discussion, and invite submissions on any related topic of legal, policy, or additional matters related to wetlands and other jurisdictional waters, including:

· Mitigation
· Tulloch/discharge issues
· Ecosystem services
· State and local governance
· Enforcement
· Permit processes (including nationwide and regional permits)
· Administration of the Clean Water Act
· International and transnational protections

Accepted papers will be published either in a special journal issue or as a chapter in an academic press book. You are invited to submit a paper abstract or presentation proposal of no more than 400 words by Monday, 13 February 2012 to http://baldycenter.info/cgi-bin/applications/rfp.cgi <http://baldycenter.info/cgi-bin/applications/rfp.cgi> .

For more information, contact Kim Diana Connolly at [email protected] or 716-645-2092

Matt Festa

Field trip!

As  a newbie to the AALS conference, I was relieved to learn that no permission slip was required to attend the Environmental Law Committee and Natural Resources Law Committee Field Trip, which was held today at the Smithsonian’s Natural History Museum.  It was a wonderful time, and I met a number of great scholars I hope to get to know better over the years.

For those that weren’t able to attend, I thought I’d share a couple ideas that I found useful and fun, which are, I admit, idiosyncratically chosen from among the idea-packed day:

 --A panel of academics who had spent time in the administration spoke about the role of academics in relation to governance.  A number of insights were mentioned.  One idea a panelist mentioned that  I liked went to the heart of making scholarship useful, and recommended that writing the law review article was just the first step.  After that, she suggested writing a shorter version for a lay audience, and then trying to place an op-ed.  Perhaps this “three-fer” strategy is one we could all try as a path to both prominence and relevance.

 --A great panel about urban parks introduced a new idea to me, which is that of “redfields.”  Redfields were defined as those properties that might have been overleveraged and are now underperforming, especially in our urban areas, and where there is no perceived foreseeable chance of redevelopment.  Think of that strung out strip mall or abandoned factory you walk or drive by.  The concept is to turn “redfields to greenfields,” re-purposing these areas as parks, and in turn, using parks as a means of driving economic development of the area.  Those interested in the idea can learn more here. I thought this was a novel idea and one worth a closer look.  (And speaking of taking a closer look in urban parks, have you seen the amazing photography of MacArthur genius grant recipient Walter Kitundu, who does amazing photos of birds in urban parks?  Check it out.)

--For the techie, a speaker from the Smithsonian noted that the museum now has an app you can download that will let you identify tree species from leaves.  It’s called Leafsnap.  Maybe you should download it for that next hiking trip.

 That’s all from AALS today.  More tomorrow.

 Stephen Miller

City Journal's take on the California Redevlopment decision

I've been enjoying the outstanding posts on last week's landmark California Supreme Court ruling by Ken Stahl (here and here) and guest-blogger Stephen Miller (here and here) (I smell a great panel or symposium topic in the making).  Just now I came a cross an early analysis by Stephen Greenhut at City Journal, the always-interesting center-right urban affairs journal.  Greenhut has a strongly positive take on the decision in Crony Capitalism Rebuked California’s supreme court strikes a blow for property rights and fiscal sanity:

On December 29, the California Supreme Court handed down what the state’s urban redevelopment agencies (RDAs) and their supporters called a “worst of all worlds” ruling—first upholding a law that eliminates the agencies, then striking down a second law that would have allowed them to buy their way back into power. This was great news for critics who had spent years calling attention to the ways modern urban-renewal projects distorted city land-use decisions, abused eminent-domain policies, and diverted about 12 percent of the state budget from traditional public services to subsidies for developers, who would build tax-producing shopping centers and other projects sought by city bureaucrats. As of now, the agencies are history, though the redevelopment industry is working to craft new legislation that would resurrect them in some limited form.

Matt Festa

Saying No to Wal-Mart Downtown

Apparently Athens, Georgia isn't the only Georgia community facing controversy over a downtown Wal-Mart (see my previous posts here and here).  The City of Sandy Springs, in metro Atlanta, just placed a moratorium on big box development in its downtown in light of rumors that Wal-Mart wants to place a store there. As Chad Emerson blogged last year, Wal-Mart has been eyeing the urban market for awhile.  It seems now they're getting some pushback.

Jamie Baker Roskie

Alternatives to carbon offset funds for those too much up in the air?

I like to imagine myself as someone who lives light on the land.  I buy organic fruits and vegetables from the weekly farmer’s market.  I took public transportation to work for the past fourteen years (in New York and San Francisco), and now bike to work daily along Boise’s beautiful greenbelt.  I’ve written multiple articles about how to build buildings and cities more efficiently.  But I’m all-too-increasingly aware that living light on the land doesn’t do much for my overall carbon footprint, in large part because of all the time I spend up in the air.

Air travel, you see, is where my green tendencies go awry, and send any calculation of my carbon footprint sinking into the red.  It’s a new year’s resolution of mine to try to figure out what to do about it (short of, you know, not taking a honeymoon in Turkey and not going to my friend’s wedding in England).  I went over to the Carbon Fund to see what it would cost me to off-set my trip to the AALS conference in Washington, D.C. I took today (will I see you there?).  It tells me that for just $7.40 each way, I can settle with the planet for my cross-country trip.  I can assuage my guilt for last year’s trip to England for $19.38 each way, and last year's trip to Turkey melts for just $24.29 each way.  Is it really so easy?  I’m sure one of you out there has thought through this.  What can we do about air travel carbon emissions—and still keep on our explorer hats—other than throw money to the carbon offset funds?  Other than, of course, use the restroom before boarding the plane, as one airline recently requested its passengers do. 

Stephen Miller

Redevelopment, once more

Thanks for the welcome, Ken!  I appreciated your comments below on California redevelopment, and perhaps more importantly, California local government finance generally.  Reading your post below I began to feel that perhaps I have grown cynical on California too early. Have I simply bought into the ol’ yarn about Prop 13 being the “third rail” of California politics, snuggled into a mid-life call for realpolitik, believing all-the-while that the local government financing system was just . . . too . . . broken to do anything about it?  I like your optimism, and do hope that California might actually try to take a stab at the bigger issues.  Maybe California voters will even get a proposition to vote on! 

I also thought your idea of trying to either sever TIF from a blight determination or otherwise tighten up the blight findings made sense.  I remember when I was first looking through the blight determination statutory provisions some years ago and coming across the one about “construction that is vulnerable to serious damage from seismic or geologic hazards.” (Cal. Health & Safety Code § 33031(a)(1).)  I always thought was as good a description as I ever found to describe every building standing in that State.  Snarkiness aside, it does seem some integrity could be brought back to the blight determination process.  But you also point out the difficulty of creating an adequate standard.  Would we prefer something more quantitative ?  Or should we just rap the knuckles of judges that interpret qualitative standards too broadly (or, at least, too broadly for us)?  Tough choice.

No matter, what’s brewing now is a multi-billion-dollar game of chicken that makes my head hurt just thinking about it, but the next few months of wrangling will be oh-so-fun to watch.   

Stephen Miller

The Future of Redevelopment in California

I want to be the second to welcome (Matt was first) our new guest-blogger, Stephen Miller. I appreciate Stephen's recent post on the future of redevelopment in California, following my initial post on the subject. I would like to pick up where Stephen left off, highlighting some areas where we agree and disagree.

I take Stephen's main point to be that given the fiscal environment in California (bad), cities desperately need redevelopment, specifically TIF, in order to finance just about any significant development. I agree with that premise, and I'll even add to it. The state of California is notorious for sticking cities with unfunded mandates, the most recent and significant of which is the landmark climate change legislation, SB 375. This legislation requires cities to take steps to address climate change, but doesn't give them any money to do this. And, of course, after Proposition 13, cities don't have any money lying around for this purpose either. Redevelopment seems nicely tailored for SB 375  (as the excellent CP&DR argues) because (a) TIF is one of the few sources of money cities do (or did) have and (b) eminent domain is thought to be an effective tool for "infill development" that can combat sprawl, reduce vehicle miles travelled and, thus, abate climate change.  The second point is debatable and I've seen evidence both ways, so I'll leave it for now and focus on the first, which is really the gist of Stephen's post.

In my view, the fact that TIF is one of the few sources of revenue California cities have to address unfunded mandates and/or undertake significant development projects is an indictment of California's present system of municipal finance, not a justification for TIF. It is true that TIF allows cities to assume debt to finance redevelopment, but any type of bonded indebtedness would do the same. What makes TIF different are the following: (1) it is the only type of debt California cities can incur without voter authorization; (2) it directs the incremental tax revenue to the redevelopment district, thus depriving other local governments of their share; and (3) it needs only a flimsy "blight" justification to be used. I elaborated on these latter two points in my previous post. This combination of factors, coupled with Prop 13, practically assures that TIF will be abused.  Surely this cannot be the best way to finance needed development in California.

Redevelopment agencies have gotten away with this because TIF rests on two fictions, both of which should be seriously questioned.   The first is that a city should not have to share the incremental tax revenue with other jurisdictions because that revenue is all attributable to the redevelopment itself having increasing local property values.  This fiction has obviously been proven false by the recent real estate downturn.  If redevelopment projects account for all the incremental increase in property values in a given area, can we also blame those projects when property values collapse?  The reality is that while improvements are certainly capitalized to some degree in local property values, other factors also affect changes in property value.  Thus, when we authorize local governments to use TIF, we are really making a policy decision that local governments should be able to funnel money away from schools, highways, affordable housing, etc and toward redevelopment, that redevelopment is a bigger priority than these other things.  California is contemplating a lot of hard choices right now, including releasing scores of inmates from prisons, deeper cuts to public schools, and laying off cops and firefighters.  TIF should not be immune from that discussion.

Ths second fiction is this "blight" idea.  The focus on blight is a throwback to the era of urban renewal, when it was thought, at least initially, that redevelopment was such a radical tool that it could only be used when a neighborhood was so economically depressed that it could not be saved by conventional means. Blight quickly evolved into rationalization that was used to justify the condemnation of viable but poor areas ("stable, low-rent neighborhoods" in Herbert Gans's formulation,) to turn them into something deemed more desirable (convention centers, stadiums, highways, etc.) Although the failures of urban renewal caused it to be repackaged as "redevelopment," little has really changed. Blight is still a vague, manipulable, and arguably culturally biased standard. States like it, and courts like it, because it gives the appearance that redevelopment actually has some limitations (This may explain some of the outrage over the Kelo decision, which refused to place any substantive limitations on the use of eminent domain). But blight isn't a real limitation. 

Even if blight were a meaningful limitation on TIF, it's not the right limitation.  If TIF's best use is either to finance development that could not be financed by other means or to implement unfunded mandates like SB 375, then those should be the criteria for its use, not blight.  Of course, with any standard there is the danger of it being manipulated.  I can just imagine Robert Moses justifying Lincoln Center as "infill development."  Hopefully the legislature will think through these issues when it considers whether to revive redevelopment. 

Ken Stahl

The party’s over, but the hangover goes on for California’s redevelopment agencies . . . and the state’s development industry

The California Supreme Court slipped in an earthquake-of-a-decision just before the new year, effectively ending redevelopment and tax increment financing (TIF) in the state that invented it.  The case, California Redevelopment Association v. Matosantos, upheld the State Legislature’s power to eliminate redevelopment agencies.  The case also struck down a proposed money-sharing arrangement that would have permitted redevelopment agencies to pay-their-way back into existence.  Ironically, it was a proposition floated by redevelopment agencies and passed by voters to keep the State from raiding redevelopment coffers that nixed the latter deal.  Ken Stahl had a great post on this blog a couple days ago that lays out the details. 

I wanted to weigh in with some new year’s prognostication based on my experience in private practice in California.  My bet:  redevelopment returns in 2012, but with strings attached.  Here's why. 

Much of the coverage of this case has focused on the public side—in particular, noting that this was really a fight about money, and the byzantine cost-sharing arrangements between the State and its local governments that have arisen since Prop 13.  That is certainly true.  But let’s not forget the beauty of TIF:  it lets local governments obtain money today to pay for infrastructure improvements necessary to spur private development tomorrow.  Without TIF, especially in a post-Prop 13 world where local government funding mechanisms have been systematically hamstrung, it’s hard to imagine how California's local governments will be able to finance any—and I mean any—medium- or large-scale infrastructure projects.  The effect:  it’s hard to imagine how any—and I mean any—medium- or large-scale private development projects goes forward in California without TIF.  The loss of redevelopment agencies then, isn't just bad news for cities; it could mean substantial uncertainty, and potentially some very hard times, for the development industry in California. 

For instance, back in February, 2011, San Francisco’s Planning Director, John Rahaim, noted that without TIF, “the significant infrastructure needs of [San Francisco’s] large-scale projects could remain unmet and the ability to move forward with development in these areas would be questionable for the foreseeable future.”  Rahaim wasn’t just talking about any old project, he was talking about every single major project going on in San Francisco:  Treasure Island, the new Transbay Terminal, the massive UCSF project at Mission Bay and Lennar’s massive 500-acre, 12,000 home Hunter’s Point project, to name a few.  Rahaim gave the example of Treasure Island:  “without the proposed seismic stabilization of Treasure Island,” which was to be paid for with TIF, “meaningful development there is not possible.”  Rahaim’s warnings ring true for every city in the State.

Jeopardizing so much development would be a long-term disaster, and one I don’t believe the State, or any of its local governments, want to see come to pass in this economy.  That’s why I don’t believe redevelopment is dead in California, at least not for the long-term.  It's not just the governments that care; it's the development industry that cares, too.  Keep in mind that the be-header of redevelopment, Governor Jerry Brown, was once one of the most sophisticated users of redevelopment, and he surely understands its importance in California’s development economy.  As mayor of Oakland, Brown more than doubled the land mass of redevelopment areas in the city to lure developers; today, over half of the city’s land mass is in a redevelopment zone as a result of Brown’s efforts (well, it was until last week).

It is perhaps because the Governor understands redevelopment so well, that he is willing to take it on, be-head it for now, if only to put it back together again when the Legislature is in session, in a form that requires more revenue sharing, and more money for the State’s embattled school districts.

It will be interesting, too, to see if any other states decide to take on their redevelopment agencies in these cash-strapped times.  As Richard Briffault’s excellent article, The Most Powerful Tool:  Tax Increment Financing and the Political Economy of Local Government, 77 U. Chi. L. Rev. 65 (2010), notes, TIF began in California in 1952.  In 1970, there were just 26 TIF districts in California.  By the early 1990s, 56 percent of cities in the United States with population over 100,000 had used TIF; today, every state but Arizona authorizes TIF.  Surely other governors are watching how the redevelopment battle will unfold in California, and what it might mean for finances in their own states.

Stephen Miller