Land Use Prof Blog

Carlson on Priceless Property

Kirsten Matoy Carlson (Wayne State) has posted Priceless Property, forthcoming in the Georgia State University Law Review.  The abstract:

In 2011, the poorest Indians in the United States refused to accept over $1 billion dollars from the United States government. They reiterated their long held belief that money – even $1.3 billion dollars – could not compensate them for the taking of their beloved Black Hills. A closer look at the formation of the Sioux claim to the Black Hills helps us to understand why the Sioux Nation has repeatedly rejected over $1 billion dollars in compensation for land taken by the United States over 100 years ago. This article seeks to understand why the Sioux view the Black Hills as priceless by studying the formation of the Black Hills claim. It constructs a new, richer approach to understanding dispute formation by combining narrative analysis with the sociolegal framework for explaining dispute formation. The article argues that narratives enrich the naming, claiming, and blaming stages of dispute creation and illustrates the usefulness of this new approach through a case study of the Black Hills claim. It uses the autobiographical work of an ordinary Sioux woman to provide a narrative lens to the creation of the Sioux claim to the Black Hills. American Indian Stories by Zitkala-Sa presents a narrative of Sioux life around the time of the claims emergence. By contextualizing and humanizing the claim, my analysis provides insights into why the Sioux claim to the Black Hills emerged into a legal dispute and helps to explain why the Black Hills remain priceless property to the Sioux Nation today.

This article employs more of a law-and-humanities approach focusing on social and historical context and personal stories, which I think makes it an interesting read.

Matt Festa

A Post-Public-Lands West?

As a person whose academic focus is on the regulation of private lands, I suffer from something of an existential dilemma. I grew up in Idaho, now live and teach in Idaho, and understand myself as a westerner. But to the extent that the western United States possesses any unique, defining characteristic that might distinguish it – or its people – from other regions of the country, it must be the public lands. I believe that the land shapes us as individuals as much as we shape the land. And so as westerners, we are shaped by the National Forests, National Parks, and BLM lands that make up the public lands more so than any other lands.

But is that still the case? Are westerners still defined – if we ever were  – based on our placement in a public-lands landscape?

A few years ago I noticed, quite after the fact, that the Targhee National Forest had substantially revised its travel plan, reducing historic access to roads and trails. And it appeared that no one had complained. But just a decade earlier when the Targhee started closing old roads to protect Grizzly habitat, Teton County banned federal vehicles from its roads, Helen Chenoweth showed up with her posse to hold Congressional hearings, and a bomb showed up at the front door of the local Forest office. More recently, while using land ownership maps to place private land-use regulation in our public lands context, one of my students asked what all of the green on the map represented. Those are the National Forests, I said. Oh, he said, so what is the yellow? That’s the Bureau of Land Management.

He grew up in Idaho, where 22% of all land is managed by the BLM, and 62% in total managed by the federal government. He did not seem aware of that fact.

People define themselves through conflict, at least in the decision that there is something worth fighting about. So by investigating those conflicts we are investigating emerging cultural values. In considering contemporary western conflicts, we should ask whether the nature of those conflicts suggests that “western values” might have changed.

From a simple cartographic perspective, the West remains distinguishable from the rest of the country based on the substantial amounts of federal lands found there. But it is possible that the era has ended in which the West defines itself primarily – culturally, socially, and cartographically – by the presence of those public lands. Obviously, we can and should still care about those public spaces, but the West is now much more similar to the rest of the country, where the primary land-related concern for most residents is the use and regulation of their homes and towns. Comprehensive plans make the front page; forest plans do not. New subdivisions matter more than new timber harvests. And whether my street is plowed regularly is more significant than whether I can still drive on that old logging road. Local cultures and economies, and social conflicts, in this post-public-lands West originate in the same private lands uses and disputes that arise anywhere in the United States, and increasingly, anywhere in the world. The primary landscape in which western human-land relationships are realized is now more likely to be a private landscape than a public one—development, change, and conflict in the West’s private lands now describe, define, and determine the West’s personality more than the public lands that are increasingly foreign to the region’s residents.

So why does this matter? Wallace Stegner claimed that the West is the native home of hope, and that its true potential lies in finally creating a society to match the scenery. You can’t be a westerner without believing the first part. And perhaps you can’t be a westerner without disbelieving the second. That’s why a recognizing a post-public-lands West matters. Because we have to get past that disbelief, and it’s on our private lands where our homes, towns, relationships, and societies are built.

-- Jerry Long

Supreme Court declines to hear NYC Rent Control Case

Harmon v. Kimmel will have to go down in history as actor Mark Harmon's headslap administered to talk show host Jimmy Kimmel last week on TV.  Because Harmon v. Kimmel will not turn out to be the most interesting property case to be heard in the U.S. Supreme Court's next Term.  The Court declined to grant the plaintiff's petition for certiorari this week, thus letting stand the Second Circuit's 3-0 affirmance of the district court's dismissal of the constitutional challenge to New York City's well-established rent control ordinance.  Here's a New York Times article on the Court's denial of cert yesterday.

Ordinarily this would not be big news--the Court only grants 1% of cert petitions--but this case was generating some buzz, particularly in libertarian circles; and when the Court requested NYC to file a response brief hopes were raised.  The Reason Foundation Reason Foundation produced a video about the case, for just one example.  It was also the subject of a George Will syndicated column in February.  The Cato Institute's Trevor Burns reacts to the cert denial here, and R.S. Radford, who authored an amicus brief for the Pacific Legal Foundation, has a statement as well.

At first glance, I had thought that while the plaintiffs had compelling facts (owners of a building where half the units were rent-controlled with a wide disparity between the units' rent), and while many if not most economists agree that rent control is generally counterproductive, I thought that the constitutional issue had been settled by the Court back in 1992 in Yee v. City of Escondido.  But Ilya Somin noted a potential distinction in his commentary on the case last month:

By contrast [to Yee], as Root describes, the New York City rent control law does not allow Harmon and other landlords to evict their tenants even if they do wish to use the property for something other than rental housing. Effectively, therefore, this is a government-imposed permanent physical occupation of property.

But that argument failed to carry the day, so it looks like rent control isn't going anywhere in NYC.  Public officials expressed their approval:

Gov. Andrew M. Cuomo told reporters on Monday that the court’s order was “good news for the state of New York” because “rent regulations are very important to the tenants.”

Christine C. Quinn, the City Council speaker, said she welcomed the decision. “Now,” she said in a statement, “the city’s rent regulation system can proceed unfettered, as we continue to ensure affordable housing is available to New Yorkers.”

By sheer coincidence, this news came out the night before I was going to teach the section on Affordable Housing to my Property class.  Because it was the final class session of the semester, the case didn't generate as much discussion as it otherwise might have, but at least it reinforced my mantra that property and land use issues are hip, current--nay, ripped from the headlines--and very important in society today.

As usual, SCOTUSblog has the best set of links for the case to all the lower court opinions, the parties' briefs, and the amici.  I'll have more to say about one of them in a follow-up post.

Matt Festa

NYT Story on Siting of Affordable Housing in Texas

The New York Times, through its partnership with the nonprofit news organization Texas Tribune, published today a story on the powerful state law tools that support NIMBYism in the siting of affordable housing. Texas Tribune along with the San Antonio Express-News studied public records to learn the extent of the problem:

The examination of data from the Texas Department of Housing and Community Affairs, which administers the biggest federal housing subsidy program in the state, found that of $9.7 billion in tax credits awarded from 1990 to 2011, more than three-quarters subsidized the construction of apartments in neighborhoods mostly made up of poor blacks and Hispanics. Few units built with support from the Low-Income Housing Tax Credit program, which gives federal incentives to private developers to build or rehabilitate low-cost apartments, were in areas that are predominantly white.

The examination found that:

¶Of the 193,000 tax-credit units subsidized statewide, 78 percent are in census tracts where more than half of all residents are minorities. By comparison, only 59 percent of all rented apartments are in the same areas, according to census data.

¶Roughly 31 percent of the units across the state are in neighborhoods with high concentrations of minority residents — 90 percent or more — which is about twice the rate for all rental housing.

¶Eighty percent of the low-income apartments, but only 64 percent of all rented units, are in poor census tracts where residents earned less than the state median household income, $49,646.

Jim K.

"The Descendants" and the Rule Against Perpetuities: Hooray for Aristocracy

In search of a relaxing diversion after another hard day mulling the intricacies of land use and real property law, I sat down last night with my wife to enjoy a quirky, Oscar-nominated film called "The Descendants."  You can imagine my surprise and indignation when a key plot point hinged on the rule against perpetuities!  Although the intricacies of the rule were irrelevant, my enjoyment of the film was greatly diminished as I found myself attempting to mentally sort out how the rule would apply in this situation and whether the movie had gotten the rule right rather than paying attention to the poignant tale that was unfolding. 

Fortunately for you, I am not going to spend this post saying whether the movie got the rule against perpetuities right because, frankly, that would just reveal my ignorance about the rule.  Rather, the movie's treatment of the rule against perpetuities communicated an interesting and somewhat disturbing message about dead hand control in property law.    

To summarize ever so briefly, the protagonist Matt King is a real estate lawyer in Hawaii who, along with innumerable cousins similarly garbed in garish Hawaiian shirts, has inherited an interest in 25,000 acres of pristine Hawaii land from a native Hawaiian ancestor.  The land is held in a trust administered by our hero, who tells us at the outset that because of the rule against perpetuities, the trust is set to expire in seven years (thus beginning my confusion, as I had thought trusts were exempt from the rule).  The entire local community is greatly interested in the fate of the land, which now rests in the hands of Mr. King along with several other weighty personal matters which will be resolved in the following 2 hours.  SPOILER ALERT AHEAD: 

Most of the cousins wish to sell the land now to a real estate developer before the trust expires.  Our hero seems set to agree with them, but then dramatically changes his mind in the movie's conclusion, asserting that he and the family have an obligation to their ancestors, their descendants, and to the Hawaiian people at large to maintain the land in its pristine state.  When his cousins question him about how he's going to get around the RAP problem, he says that he's got seven more years to figure that out.  They seem convinced. 

So what's the message for property lawyers?  The movie interprets the RAP as a heartless legal formality that operates to remove land from its sentimental roots and convert it into a market commodity that can be exploited by rapacious real estate developers (it is no coincidence that the nearest thing the movie has to a villain is a real estate broker).   This is, to say the least, an interpretation of the RAP that property profs will find novel.  I have always understood the purpose of the RAP to be the prevention of a landed aristocracy: no longer can a landowner ensure that the source of his or her wealth stay in the family for all time.  The dramatic conclusion of "The Descendants," by contrast, asks us to cheer for the protagonist as he attempts to perpetuate his family's landed aristocracy into perpetuity.  The movie accomplishes this through a clever trick: we do not see the protagonist as an aristocrat, but as someone whose wealth and privilege is a burden because he is so conscious of the monumental social impact of his great fortune.  And it's easy to look good when your adversary is a developer.  The movie practically makes one nostalgic for the days when society was ruled by a patrician class with an acute sense of social responsibility.  After Citizens United, we still have the patrician class, but without the social responsibility. 

In short, I could not enjoy the movie.

Ken Stahl

Forefront: New Online Planning Magazine (and more on Redevelopment)

Next American City, a planning website with a primarily "New Urbanist" bent, recently launched a new online magazine called "Forefront," which will publish long-form articles on planning issues.  The first edition of Forefront features an interesting piece by Josh Stephens, editor of California Planning & Development Report, on the end of redevelopment in California.  For those interested, this very blog also devoted some attention to the demise of redevelopment in posts here, here, here and here.

Ken Stahl 

In the shadow of the law?

Every year, I reserve five spots (out of twenty five) in my Land Use Law course for students from the University of Idaho’s program in Bioregional Planning and Community Design. While they sometimes struggle with the more distinctly ‘legal’ elements of the course, they bring different perspectives that greatly enhance our overall experience. And regularly the best student work in the course comes from students with no other legal training. Of course, some of the planning students struggle more than others. Yesterday, after talking for about thirty minutes about a particular student’s struggles, the student asked: “why do you even allow planning students in your class?”

The answer I gave reflects what I find to be simultaneously the most beautiful and exasperating element of land use law: for the most part, land use law is interpreted, implemented, and enforced by non-lawyers. And even better, or worse, many of those non-lawyers are citizen volunteers with no formal legal training in either planning or law.

I am still trying to figure out what this means about how I should teach a course in land use law in a law school. If nothing else, I suppose it might mean that my course allocation formula requires reconsideration. Maybe I should only allow three planning students, two law students, and twenty citizens with nothing else to do on a Wednesday evening.

Ok, that’s perhaps a bit too cynical, and maybe a bit mean and hypocritical, particularly since I am also one of those citizen volunteers (and we had to change our meetings to Thursday because we all did have something else to do on Wednesdays).
But my year on our city’s Board of Adjustment has only further solidified my feeling that in the mundane, day-to-day applications of land-use law on the ground, legal knowledge or understanding is largely irrelevant. It is not so much that my local board, for example, operates in the shadow of the law, but rather it seems to operate independent of, and sometimes directly in contradiction with, the law’s requirements. For example, when a variance is granted to allow an oversized garage because: (a) the lot itself is oversized and the legally allowed garage would thus seem relatively small (the parcel’s “unique circumstance”), and (b) without the garage, the landowner would have to park his oversized pickup on the street (the “undue hardship”), it’s reasonable to ask whether our standard variance requirements mean anything.

Of course, the law -- even a variance ordinance -- does mean something. And most local boards and commissions make good faith efforts to implement the law as written. That they might struggle occasionally does not suggest that we should change how we teach our courses in the law school. But maybe it does suggest that we should participate in more land use “courses” outside of the law school. I know most law professors are already involved in community-service activities outside of their academic obligations. And maybe it simply youth (I hope) and naivete that makes me dare suggest that we owe any additional efforts in community service. But this is my plea that we -- as both students and teachers of land use law -- volunteer specifically for what can admittedly be the most frustrating of experiences: service on planning and zoning commissions, boards of adjustment, or other citizen land use boards or commissions.

Land use law does more than any other area of law to shape our day-to-day experiences. And that law is implemented more by untrained volunteers without access to our expertise, than it is by our carefully-groomed proteges. Maybe that's a good thing, and maybe there is reason not to trust academics with these tasks. My own city council didn't even want me on the planning and zoning commission (something about not being sufficiently pro-business). And I’ve been on the wrong side of a number of 5-1 votes. But eventually, if nothing else, we’ll all begin to understand how variance law should work in our town. And I'll probably learn more in the process that the "students."

-- Jerry Long

The UGA Land Use Clinic and Food Carts

Today was the very last class for the UGA Land Use Clinic, and my last class as managing attorney. (If this is news to you, you might want to read this previous post for background.)  It's a bittersweet day for me, but now I want to take the opportunity to brag on my students a bit.

I've had a fantastic group of students this semester. (My students are always great, but this group is particularly great.)  They've worked really hard and taken up a lot of the slack as I've been distracted by my upcoming move and several other challenges, including my husband recently breaking his shoulder. 

Several of the students have worked on a Food Cart/Truck project with UGA College of Environment & Design students.  It's been a two year effort involving a "Mobile Food Vending Study" as well as a Food Cart Festival and, just this week, a presentation to a committee of the Athens-Clarke County Commission on proposed changes to the local Food Cart ordinance to allow for a few more spaces for food carts and food trucks in downtown Athens. 

Per Ken Stahl's recent post, food trucks are a controversial local land use issue.  Here there has already been lots of push back from local restaurants.  However, it's interesting to note that a local restaurant - Farm 255 - has provided much of the impetus for food carts in Athens, as a "Farm Cart" is an integral part of their business model.  My students tell me the reality is there's very little data on the impact of food trucks on restaurants, but that doesn't do much to sooth the fears of the restaurant owners.  I may not be around to see the ultimate impact of this project, but I'm very proud of the work the law and the design students have done.

Jamie Baker Roskie

Gillespie on Judicialization of Urban Land Disputes in Vietnam

John Gillespie (Monash University) has posted Exploring the Limits of the Judicialization of Urban Land Disputes in Vietnam, Law and Society Review, Volume 45, No. 2, pp. 241-275, 2011.  The abstract:

Economic and legal reforms have triggered waves of conflict over property rights and access to urban land in Vietnam. In this article I develop four epistemic case studies to explore the main precepts and practices that courts must negotiate to extend their authority over land disputes. Courts face a dilemma: Do they apply state laws that disregard community regulatory practices and risk losing social relevance, or apply community notions of situational justice that undermine rule formalism? I conclude that reforms designed to increase rule formalism in the courts may have the unintended consequence of reducing the capacity for judges to find lasting solutions to land disputes.

Matt Festa

Ziff on The Great Onyx Cave Cases

This looks like a fascinating legal history/land use story.  Bruce Ziff (Alberta) has posted The Great Onyx Cave Cases--A Micro-History.  The abstract:

Controversies surrounding property rights to the Great Onyx Cave in Kentucky have given rise to two legendary decisions with enduring legal importance. The first of these, Edwards v. Sims (1929), is a leading authority on the extent of ownership rights below the surface of land. The second, Edwards v. Lee's Administrator (1936), concerns the appropriate measure of damages for trespass. Stripped to essentials, the facts that led to these two important rulings are quite straightforward: E discovered a cave beneath his surface, which he developed into a thriving tourist attraction. However, it turns out that approximately one-third of the cave passes below, well below, the surface of land owned by L, who had no ready means of access to the cave. Should title to the cave as a whole belong to the party who owns the mouth and who has taken possession? If not, how might one assess damages for trespass where E has benefited financially by the acts of trespass, but L has no practical use for his portion of the cave?

Of course, life is rarely as simple as that suggested by these sparse facts, and if one delves into the background of these famous cases -- a story that has been neglected over the years -- additional insights emerge. As it turns out, this dispute is one episode in a tempestuous time, the so-called 'cave wars' period, in which confrontations and lawsuits over cave rights and tourism in the region were commonplace. Moreover, the fight over Great Onyx Cave arose amid a campaign to acquire the caves in the region for a national park. As the clouds of the Depression formed, the park project must have held out hope for the local landowners. In addition, one member of the Kentucky Court of Appeals, Marvel Mills Logan, played a significant and somewhat unconventional role in the Great Onyx Cave litigation and the events surrounding it. His place in the story is examined in detail.

Matt Festa

Do we need a distinct rural land-use law?

I just returned from a short commute down to our other research and teaching laboratory in the southeastern part of our state (with Stephen Miller and the students from our Boise-based Economic Development Clinic). Of course, given Idaho’s geography, that commute is over 1,200 miles roundtrip and requires heading in the wrong direction for the first 90 miles before detouring through Montana. But I was able to stop for a bike race in Missoula on Saturday, and then ski with my brother in Wyoming on Sunday, so it turned into a somewhat normal traveling weekend in this part of the world.

As I traveled home and watched the growing tapestry of insect remains develop on my windshield, I gradually realized that it represented something of a land-use-law Rorschach test. While I prefer my insects alive (I studied biology and have two young boys), the growing number of dead insects continually improved my mood. I ultimately realized that those dead insects represented two things to me. First, that spring has finally arrived. And second, that I had just traveled to someplace worth traveling to.

What does this have to do with land use law? Stephen’s clinic students have been working with the Teton County, Idaho planning department and county commissioners on a number of land-use issues, including how the county might deal with the hundreds of paper subdivisions that are scattered across the county’s rural areas (and, not insignificantly, they’ve also addressed how to deal with ‘dogs at large’). As I listened to their conversations, I thought about how most of our land-use law developed in urban and suburban areas. And I thought about how our land-use law might be ill-equipped to deal with rural land-use issues.

Other academic disciplines argue that rural places are different in some fundamental way, even if they struggle to describe it. Rural Sociology and Rural Geography are distinct academic sub-disciplines with their own theories, methodologies, and understandings of how people interact with each other and their lands and landscapes. And Planning departments often draw boundaries between rural and urban planning.

But what about the law and the legal tools we use to implement those plans and understandings? In Idaho, at least, we treat counties and municipalities equally. They have the same land-use authority, developed in the same statutory regime, and are treated equally by court decisions interpreting those statutes. They use the same tools. But they often deal with different issues in different social, cultural and ecological landscapes. Why does it make sense to use the same legal tools to address all of the complex tapestry of issues we encounter across our diverse urban, suburban, and rural landscapes?

So why is the insect-splattered windshield a land-use Rorschach test? Because I think our reactions to it might say something about how we think about place. Is it just an annoyance that requires cleaning? Or is it something else? And what does that decision say about how we think about land? I know I shouldn’t generalize my personal experiences, but to me the insects represent emptiness, distance, and place in a particular way. More than anything, they represent something that is not urban. And those things -- and the social and cultural structures they engender – require a different approach to land-use regulation.

--Jerry Long

Southern California's New Regional Plan

My last post discussed some of the backlash against Southern California's new regional plan, which emphasizes high-density transit-oriented development.  California Planning & Development Report now provides some of the details of the plan, including:

• a total cost of $524 billion over 20 years
• $6.7 billion in funding for biking and walking
• $246 billion on public transportation
• 80 plus percent of all jobs and housing within a half mile of rail stations or bus stops by 2035
• 68% of all new development would be apartment or condos.

Ken Stahl

Happy Dyngus Day!

I hope you all have had a happy holiday--not Passover or Easter, which were celebrated this weekend-- but rather today's holiday: Dyngus Day!  Readers know that we like to do the occasional holiday land-use post, so here goes. 

Dyngus Day is an east-central European tradition, primarily from Poland, that is celebrated on Easter Monday.  It appears to come from a pre-Christian veneration of the pagan gods of water (Dingus) and earth (Smigus).  It's linked to the spring themes of rebirth, renewal, and even "spring cleaning."  Apparently the tradition is that on Dyngus Day the young men get to pursue the young women whom they wish to court with buckets of water and willow branches.  Today, both sexes can participate and there seems to be much use of squirt guns and water balloons. 

What's the land use angle?  Well, first, the whole seasonal/earth/water/renewal theme resonates with the land.  But the next chapter of the Dyngus Day story is how it flourished in America from the height of 19th Century Polish immigration to today, and that story involves the same local government and politics issues that are familiar to land use observers.  Dyngus Day first became a big deal in northern U.S. cities with large Polish-American immigrant populations.  The sources I've read haven't quite come out and said so, but my impression is that the original American Dyngus Day celebrations probably had the intention of serving as the Polish-American equivalent of an ethnic pride/civic engagement day along the likes of what St. Patrick's Day was for the Irish and Columbus Day for the Italians.  Dyngus Day traditionally involved a mix of festival and politics, such as when RFK gave an important campaign speech at the West Side Democratic Club's Dyngus Day affair in South Bend, Indiana.  So Dyngus Day is part of the great American history of urban politics and local government.

In the last couple of decades there seems to have been something of a Dyngus Day revival.  Buffalo is leading the way on the Dyngus front.  It claims to have the world's largest Dyngus Day festival.  There are also significant Dyngus events in Cleveland, Pittsburgh, South Bend, Milwaukee, and other cities.  Of course these community events require the involvement of planners, street closures, and permits.  The Buffalo Dyngus Parade is a centerpiece, and everyone knows that civic parades have land use implications.  They even have a facebook page.  Mostly, it's just a good time, an important community event, and a good example of local public-private cooperation.

I studied a lot of Polish history as an undergraduate, and I have my own fond memories of one Easter Monday striking out away from campus into South Bend (once one of the world's largest Polish-speaking cities), seeing the parade, and ending up down at the American Legion's Dyngus Day party, with good kielbasa, pierogies, and music.  Remember, Everybody's Polish on Dyngus Day!

Matt Festa

Katz on Formal Private Property Rights and State Power

Larissa M. Katz (Queen's University) has an important new piece up: 'Governing Through Owners': How and Why Formal Private Property Rights Enhance State Power, forthcoming in the Pennsylvania Law Review (2012).  The abstract:

A system of formal private property rights is a network of offices through which states can allocate responsibility to individuals on a mass scale for a wide variety of tasks, including some of the state’s core governance functions. A system of property rights do not straightforwardly constrain the state; in some contexts, they enhance state power, too. Because many of the state’s core governance functions are territorially defined (such as the maintenance of peace and order within the territory, defense of the territory from external threats, and the provision of infrastructure), this phenomenon appears most clearly in the case of private property rights in land. A network of landowners is a useful (and sometimes crucial) tool that enables a state to govern locally in the farthest reaches of its territory, even when it lacks the capacity or will to use other more formal tools for governance, such as governing by bureaucracy or licence. Thus, it is useful to think of the state’s power to define property rights in a manner that includes the obligation to carry out core state governance functions as itself a mode of governance. I call this “governing through owners.”

This model of state-owner relations emerges from two important conceptual starting points: first, the nature of ownership as an office through which the state assigns burdens; and second, what I call the “survival conditions” of a territorially defined state, namely, the establishment of basic governmental functions throughout its territory.

Looks like a must-read.

Matt Festa

California's War on Suburbia?

In this Wall Street Journal opinion piece, transportation planner Wendell Cox claims that state and regional planners are driving people out of the state of California with their plans for high-density, transit-oriented development, which he calls a "war" on the single-family home.  According to Cox, requiring a change from a primarily single-family suburban to a multi-family urban settlement pattern will make "the state's famously unaffordable housing .. even more unaffordable."

I am at a loss to understand how multi-family housing is going to be more expensive than single-family housing.  Cox's claim rests on economic data drawn from William Fischel and others showing that land use regulations in California, such as urban growth boundaries, development moratoria, and so on, generally drive up the cost of housing.  This is true, but only because most of these regulations either restrict the overall supply of housing (development moratoria) or force developers to internalize the costs of new growth (exactions). Urban growth boundaries, by contrast, will not necessarily increase housing prices as long as growth is permitted at sufficient densities within the UGB to offset the loss of housing outside the UGB. Yet, Cox places the blame squarely on increasing density! 

Furthermore, it is ironic that Cox sees salvation in reverting to the single-family lifestyle, when of course all of the cost-increasing restrictions he now decries, such as moratoria and exactions, have been called into service in order to subsidize single-family homeowners and exclude affordable, multi-family housing. 

Ken Stahl

Wiseman on Castles, Tenements, and the Private Governance Divide

Hannah J. Wiseman (Florida State), another of our fabulous former guest-bloggers, has posted Castles, Tenements, and the Private Governance Divide.  The abstract:

The revered status of American home ownership has deep and seemingly impenetrable roots. In our modern mythology/reality, the castles that shelter and nurture our pursuit of the good life are under siege. A narrative common to both popular media accounts and a burgeoning property literature warns that private homeowners’ associations hold dominion over millions of Americans, dictating what they may do with their property and foreclosing when they cannot pay association fees or fines In response to this threat, legislatures, courts, and academics are fighting to stave off these intrusions by constraining servitudes. In focusing on the harms to property owners, these critics have unjustifiably omitted a large and growing segment of the population: renters. Nearly every American rents living space at one stage of life, and rentals are expanding as the real estate market continues on its uncertain trajectory. Tenants have no less lofty life goals than do homeowners, yet they, too, are governed by private rules for property use that severely constrain their freedom and allow termination of their property interest through eviction or sale. The rules in rental communities, moreover, serve fundamentally the same purpose as those set by homeowners association controlling neighbors’ uses to increase property value. The key difference between the two types of communities, beyond simple physical layout, lies in tradition: a woman’s home is her castle, but her apartment is her rickety tenement. Even this distinction is vanishing, however, as private communities with now-familiar, “intrusive” rules continue their decades-old proliferation, objections notwithstanding. If, then, private governance of property is fundamentally problematic, it is no less problematic for renters. But if, as seems more likely, we are generally willing to accept certain private rules in communities as a reasonable response to the interests of both owners and tenants, critics of private governance must explain why traditional notions of property should prevail over a modern approach to property consumers’ demands.

Very timely.  With the future of American housing patterns in flux, it's really important to discuss the intersection of private-public as well as renting-owning.  Hannah has written on related ideas before, and I look forward to reading this piece too.

Matt Festa

A car, or a smart phone (for my 16th birthday)?

Two interesting news items crossed the desk this week.

In the first, the U.S. Census reported that population growth in the country’s outer suburbs declined dramatically in 2010 and 2011 compared to the previous decade. And in the second, we learn that people in their late teens and twenties apparently would prefer a smart phone to a car, and that the percentage of young people obtaining a driver’s license has decreased consistently since 1983.

Taken together, these stories hint that our cultural taste for the automobile – and automobile commuting and its associated sprawl – might be waning a bit. But I can’t get over thinking that the news – at least the second piece of news – means something quite different.

Communities of place – cities, towns, etc. – exist because civil society and its economic, social, and cultural relationships have generally required physical proximity. That need for physical proximity has declined, of course, as the telegraph, telephone, internet, and whatever’s next allow us to live farther and farther apart. And it was that capacity to create virtual communities that facilitated much of the growth in outer suburbs and exurbia over the last few decades. If we don’t need to be together physically, we don’t need cities.

From this perspective, the fact that young people prefer a smart phone to a car suggests something different than that we might be entering a car-free future. It might suggest that the physical component of our culture is increasingly less important, reducing further the need for us to gather in specific communities of place. This might be problematic. Is there an emerging generation that will drive less, rely on the car less, and thus reduce our tendency to sprawl and consume more and more land per person? Or will that emerging generation not need cities? Will virtual communities, and the “cities” of Facebook, allow us to sprawl even more? So while we might drive less, at some level, we might also live farther and farther apart, consuming more land and more resources in the process.

Jerry Long

Mulvaney's Hectic Week in Takings

In the past week there have been two major state court takings decisions--both involving beachfront property--and a U.S. Supreme Court cert grant in a takings case from the Federal Circuit.  Our erstwhile guest blogger Prof. Tim Mulvaney has a terrific analysis over on the Environmental Prof Blog: A Hectic Week on the Takings Front.  From the post:

For Takings Clause enthusiasts, the past week has proven a busy one.  Two state court decisions out of Texas and New Jersey, coupled with a grant of certiorari at the U.S. Supreme Court, threaten to constrain governmental decision-making at the complex intersection of land and water.

Tim's post discusses the Texas Supreme Court's final decision in Severance v. Patterson; the New Jersey case of Harvey Cedars v. Karan; and the SCOTUS cert grant in Arkansas Game & Fish Comm'n v. U.S.  Exciting times in the takings world.  Read Tim's whole post for a good analysis. 

Matt Festa

Food Trucks, Land Use, and the Free Rider Problem

The food truck wars continue. In this piece on Slate, Matt Yglesias talks about several cities' and states' efforts to ban or regulate food trucks in a way that prevents them from competing with existing restaurants.  He cites what he considers a particularly egregious example: a San Francisco ordinance that permits any existing business to comment on an application for a new vending license and directs the city to "consider" whether the new vendor will operate within 300 feet of an existing vendor in deciding whether to grant the license.  Yglesias concludes: "a basic rule of thumb seems to suggest itself: The fact that business owners would prefer not to face competition is not a valid regulatory purpose."

This proposition would surely come as a surprise to most land use folks, who generally accept as a matter of course that land use regulations are, at their core, anti-competitive.  From large-lot single-family residential zoning that inflates the cost of housing for the benefit of existing homeowners to anti-big-box store laws that are designed to protect quaint mom-and-pop businesses, zoning represents pure economic protectionism.  Indeed, the San Francisco ordinance Yglesias mentions is pretty familiar: many zoning laws give neighbors the right to file a protest to a proposed land use change in their neighborhood, which can result in requiring the city to enact the zoning change by a supermajority vote or possibly even block the zoning change (I address the legality of these neighborhood zoning provisions in my article Neighborhood Empowerment and the Future of the City.)

Zoning laws are generally allowed to be anti-competitive because they are thought to be means of combatting free-rider problems.  Economists like William Fischel and Bruce Hamilton have argued, for example, that a preponderance of expensive homes on large lots tends to correlate with higher-quality schools.  But in the absence of large-lot zoning, people would have strategic incentives to build smaller, less expensive homes in the area just to have access to the better schools.  Of course, if too many folks did the same, the very thing that attracted people to the area (the good schools) will be lost as the area becomes congested with smaller homes and more schoolchildren.

Food trucks, it would seem, present an even stronger free-rider problem.  Foot traffic is drawn to an area because of the existing shops, restaurants, etc, and the foot traffic in turn generates a demand for more shops, restaurants, etc.  Rents and property values go up, as do property taxes, and many high-traffic areas use special assessments or business improvement districts to provide collective sanitation or security services for the area (again overcoming a free-rider problem, as I explain in my Neighborhood Empowerment piece).  When a food truck swoops into a high-traffic area, it pays no rent, no property taxes, and no assessments for that privilege, and its lower operating costs enable it to siphon some of that foot-traffic away from existing fixed eateries, thus free-riding on the efforts of those eateries to bring in the foot traffic in the first place.  Think of it this way: if the food trucks are sufficiently successful to bankrupt the existing fixed eateries, leaving lots of vacant storefronts in their wake, people will stop coming to the area altogether, and the food trucks will move elsewhere. In other words, the food trucks depend on the existence of fixed eateries to fuel their business.  But while fixed eateries pay taxes and fees for the ability to do business in a particular place, food trucks do not.  So it should not be a surprise that existing businesses are unhappy.

The solution that suggests itself to me is fairly obvious: since business improvement districts are mechanisms for overcoming free-rider problems, than food trucks should be forced to pay assessments to the business improvement district or special assessment district in those areas where they operate.  Legally and conceptually, though, this is difficult to accomplish because special assessments are, as a matter of hornbook law, supposed to be keyed to the benefits that accrue to real property.  Because food trucks are not real property, it is difficult to apply the special assessment to them.  But wouldn't it be possible for municipalities to use their home rule powers to impose some sort of free-rider fee on food trucks?   I would hope that cities and states will consider this alternative rather than simply banning food trucks altogether.

For more on food trucks, see my colleague Ernesto Hernandez-Lopez's piece, LA’s Taco Truck War: How Law Cooks Food Culture Contests.

Ken Stahl 

Kelly on Calavita and Mallach on Global Inclusionary Housing

Our own James J. Kelly (Notre Dame) has posted a review essay on Calavita & Mallach eds., Inclusionary Housing in International Perspective: Affordable Housing, Social Inclusion, and Land Value Recapture.  Jim's review essay, Inclusionary Housing on a Global Basis, appears in his own Journal of Affordable Housing and Community Development Law, Vol. 20, p. 261, Spring/Summer 2011. The abstract:

This is a book review of Inclusionary Housing in International Perspective: Affordable Housing, Social Inclusion, and Land Value Recapture (2010, Nico Calavita and Alan Mallach, eds.). The book offers a comparative look at land-use based approaches to the creation of affordable housing in a broad range of developed countries. A little less than a sixth of the book is dedicated to the U.S., with special attention given to the development on inclusionary programs in California and New Jersey. The editors then devote a chapter each to Canada, England, Ireland, France, Spain and Italy. The penultimate chapter looks at inclusionary practices in a variety of other countries including India, Israel, Colombia and South Africa. The review welcomes this addition to the study of affordable housing programs across the developed world.

A link to the Lincoln Land Institute publication is at Jim's earlier blog post on the book. 

Matt Festa