Thursday, July 31, 2014
We are delighted to welcome two exciting new voices, Georgia State University College of Law professors John Travis Marshall and Ryan Max Rowberry, to Land Use Prof Blog for the month of August. Both have tremendous experience in land use law and some great projects I know they will tell us more about over the coming month. As always, feel free to comment on their blog posts or contact them directly.
About August's guest bloggers:
John Travis Marshall, assistant professor of law, is interested in the challenges associated with
the growth and contraction of urban areas. In particular, Marshall studies private, nonprofit and government interventions to promote long-term urban recovery from crises and disasters.
Marshall joined Georgia State Law from Yale Law School, where he was a clinical lecturer in law and the Ludwig Community Development Fellow. From 2007 to 2011, he was a Rockefeller Foundation Fellow with the New Orleans Redevelopment Authority. In that role, Marshall advised NORA on post-Hurricane Katrina implementation of the Authority’s urban revitalization efforts, including land acquisition, development, and disposition programs.
Prior to his work in New Orleans, Marshall was a partner with Holland & Knight LLP, specializing in land use and zoning matters as well as real estate litigation. Following law school, he served as a law clerk to U.S. Magistrate Judge Elizabeth Jenkins, U.S. District Court for the Middle District of Florida.
Marshall earned a B.A. from the University of Notre Dame, an M.A. from the University of Texas at Austin, and a J.D. from the University of Florida College of Law. He teaches Environmental Law and Land Use Law.
Ryan Rowberry is an Assistant Professor and Associate Director for the Center for the Comparative Study of Metropolitan Growth. He teaches Property Law, Natural Resources Law, Environmental Law, and Anglo-American Legal History. Professor Rowberry’s research concentrates on cultural heritage, historic preservation, and natural resources law. He also examines issues related to the medieval Common Law judiciary. Most recently, Professor Rowberry co-authored Historic Preservation Law in a Nutshell with Professor Sara Bronin. This groundbreaking book provides the first in-depth summary of historic preservation law within its local, state, tribal, federal, and international contexts.
Professor Rowberry graduated from Harvard Law School, where he was an Islamic Legal Studies Fellow, a Cravath International Fellow, and received the Irving Oberman Award in Legal History. Following graduation, he practiced environmental and natural resources law at Hogan Lovells in Washington, DC. Immediately prior to joining the College of Law, Professor Rowberry was a United States Supreme Court Fellow, during which he collaborated with foreign judges and academics on judicial independence and rule-of-law matters.
Before attending law school, Professor Rowberry worked as a historian and an educator. He transcribed and collated all extant medieval manuscripts for three of Chaucer’s Canterbury Tales. He also taught 7th grade at a charter school and lectured in English and History at Peking University in Beijing, China. He holds a B.A. in English from Brigham Young University and was selected as a Rhodes Scholar. At Oxford University he earned a M.Sc. in Comparative Education Policy and a M.St. in Medieval British History.
Welcome John and Ryan!
This month the ABA published what I believe to be the first-ever treatise on RLUIPA. Here is the blurb for Litigating Religious Land Use Cases:
This book discusses how to litigate such a religious land use case on behalf of a religious entity pursuant to the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) and the First Amendment. While the First Amendment dates to the founding days of the United States, RLUIPA is a much more recent federal law that can serve as an effective tool in protecting the property interests of religious organizations.
Stephen R. Miller
Wednesday, July 30, 2014
The Harvard Food Law Society and the Harvard Food Law and Policy Clinic have just published the Harvard Food Law and Policy Career Guide. There are a number of land use angles in the newly emerging area of food law. Burgeoning land use lawyers may well find some new career ideas in this guide.
Stephen R. Miller
The last few weeks have seen a barrage of criticism regarding San Francisco’s land use rules; among the critiques was a Washington Post op-ed quoting luminaries like Enrico Moretti, descrying the land use rules for restricting housing starts in the city. Having lived in the city for 11 years, and having practiced as a land use lawyer representing most of the major developers in the city for five of those years, I can tell you categorically that the city needs more housing, and also categorically that the critics are crazy if they think the answer to San Francisco’s housing problems is more housing starts. Let me explain.
San Francisco, as a jurisdiction, is 7 miles square, and it was built out years ago. Any effort to change that fundamental infrastructure, which already provides for one of the most densely settled cities in the country, would be foolish. San Francisco can contribute to the regional housing stock growth needed, but it will not be able to meet the region’s needs or even provide the lion’s share of new housing stock. The suburbs will have to do that. A cursory look at the region's fair share housing allocation makes this clear.
Moreoever, San Francisco is one of the great cities of the world. You do not want to ruin that. For a brief history lesson, google “Justin Herman” and “Western Addition II.” See City For Sale for a history of the city’s racist and classist redevelopment practices of the Sixties and Seventies, and the ugly scourge the city's first wave of high-rise housing left on the central parts of the city. It's not all about dwelling units; how it's done matters, too. See the 5 D's and the one P of city design (it seems there is a new "D" every year now; maybe there are six or seven D's by now).
Dont' get me wrong: I am not against highrises in the city where appropriate. They make perfect sense along the BART transit corridor. Build high in the sky around all the BART stops. By the way, most of the western part of the city is sandy soil subject to liquefaction in earthquakes; you will never build high there. Same with the Marina. That leaves SOMA, much of which is presently already entitled for new residential units. (See Rincon Hill with multiple entitlements for high-rise residential not yet built.) So...where are all these housing starts in San Francisco going to come from?
The skyrocketing rental rates are contained, primarily, to several neighborhoods that are hyper-fashionable. If San Francisco really wanted to assist the rental market, it would facilitate making some of its down-and-out neighborhoods along its southern border more accessible to the Google throngs, and it would make those neighborhoods more accessible to downtown. The market price of real estate in San Francisco is governed by two things: how fast can you get to Silicon Valley and how fast can you get downtown. The southern neighborhoods of the city all have fast access to 280. Most are under-built given their access to 280 and also their closeness to BART. Oh, these neighborhoods also happen to be the most diverse in the city, too. Is it a problem to lose that diversity? Something to consider for the housing starts boosters.
One certain problem in the city’s rental market is rent control. Let me illustrate by using myself as an example. For nine years, I lived in the first-floor of a three story rent-stabilized apartment that was absurdly cheap by the time I left for the outer, outer East Bay suburb of Idaho. (That’s a joke.) I went to an Ivy League. The guy on the second floor, who, when I left, had lived in a rent-stabilized apartment for 15 years, had gone to Harvard. The guy on the third floor, who, when I left, had lived in a rent-stabilized apartment for 23 years, had gone to Princeton. All of us had very good jobs, and all of us had ridiculously below-market rents. No doubt, I loved the cheap rent, but the idea that rent control is helping the poor in the city is problematic. It helps the rich just as much, maybe more. In addition, landlords also incorporate the loss from rent control over the average stay—3 or 4 years—into the up-front price of the rent. What's a better option? Transferable housing vouchers for the poor (e.g., Section 8, which the Republicans are slowly strangling nationally, but maybe the city could create something similar locally for those, say, below x% of area median income).
Which leads to my final point, which is the same as my first: San Francisco is a tiny part of the Bay Area. The city is just 1 million people in an area of over 7 million people. The biggest problem, though, is that outside of San Francisco, and a very few other locations, the rest of the Bay Area housing stock is bleh. I mean really bleh, as in more bleh than the strip-mall Ohio town where I grew up. Most Bay Area suburbs are really, really boring. (Sorry, Antioch.)
That is why there has been a concerted effort to build a plan to create nice neighborhood development throughout the region that would emulate the kinds of urban experiences available in San Francisco. Required by SB375, that plan was called One Bay Area, and it was sued by the Sierra Club, another environmental justice group, developers, and an “anti-sustainability” group. If you want to solve the problem of San Francisco rents, you will never be able to solve it by tearing down San Francisco and building it back up again as high rises. Instead, you will need to build more San Francisco-style development in the adjacent suburban communities. The problem is, absolutely everyone—environmentalists, property rights advocates, real estate developers—hate that idea but for different reasons. That, my friends, is why San Francisco, an iconic city in the midst of boring suburbs, is stuck with the problem it has.
Now, I am not against a good rail against the San Francisco land use regime. If you want to really put it to task, let me give you some examples of the rust gunking up the system that could use assistance that has nothing to do with housing starts:
1. Building permit issuance in most cities is considered ministerial. In San Francisco, building permit issuance is considered discretionary. The end result is that projects are subject to far more review, and can be more easily stopped, in San Francisco, than in any other major city in the country.
2. The city has adopted environmental review procedures under the California Environmental Quality Act that are byzantine and defy the purpose of the act. Particularly arbitrary are the city’s rules governing categorical exemptions, which are supposed to make small projects easy to permit but, in San Francisco, require a written evaluation and can even require reports. Nowhere else in California does this. This is time-consuming, tedious, and yields almost no substantial benefit in the quality of life of the city. Large developers consider it a cost of doing business; the onus of the regulation falls on small property owners who want to do simple things like build a room on the back of their homes or add on a deck.
3. The Planning Code is gunked up with several provisions that were intended to stymie development in the Seventies and make no sense. The most obvious is the “eliminate no sunshine on parks” rule. Any sensible investigation of how this is implemented would be troublesome.
4. District elections have encouraged territorial thinking on the Board of Supervisors. The city needs a new way; a mixed system of some district elections and some city-wide elections could be a way forward.
I come back to one thing when I hear people lament the prices of San Francisco: people love San Francisco like nowhere else in America. People don’t love Phoenix or Houston, for all the housing starts they offer. San Francisco is also undergoing a colossal change. Although San Francisco has long been a well-off city, it has not had the kind of wealth of Los Angeles or New York since the Gold Rush days. San Francisco now has that wealth in spades. That wealth is what is changing the city. But if you can get away from the madding crowd of the Google bus queue, there are still excellent Singapore-style dumplings to be found in the Richmond and, for those whose ego can take the hit, some great places to live just over the border in South San Francisco or, dare I even mention it, Sunnyvale.
Stephen R. Miller
Tuesday, July 29, 2014
Today the White House released its report entitled The Cost of Delaying Action to Stem Climate Change. Here are the two takeaway paragraphs:
Based on a leading aggregate damage estimate in the climate economics literature, a delay that results in warming of 3° Celsius above preindustrial levels, instead of 2°, could increase economic damages by approximately 0.9 percent of global output. To put this percentage in perspective, 0.9 percent of estimated 2014 U.S. Gross Domestic Product (GDP) is approximately $150 billion. The incremental cost of an additional degree of warming beyond 3° Celsius would be even greater. Moreover, these costs are not one-time, but are rather incurred year after year because of the permanent damage caused by increased climate change resulting from the delay.
An analysis of research on the cost of dela for hitting a specified climate target (typically, a given concentration of greenhouse gases) suggests that net mitigation costs increase, on average, by approximately 40 percent for each decade of delay. These costs are higher for more aggressive climate goals: each year of delay means more CO2 emissions, so it becomes increasingly difficult, or even infeasible, to hit a climate target that is likely to yield only moderate temperature increases.
Stephen R. Miller
Monday, July 28, 2014
The good folks in Missoula shared their position advertisement with me so I can it share with you all.
Best place to live and teach in the U.S.: The University of Montana School of Law anticipates hiring a full-time, tenure-track professor beginning in the 2015-2016 academic year to teach in the area of property and related courses. We are committed to integrating theory with practice, making substantial practice experience in the areas to be taught particularly valuable.
Tenure Track Faculty/Property Law Position
Title: Assistant Professor
Position Type: Academic
Closing Date: Screening begins 9/12/2014; applications accepted until further notice or the position is filled
Schedule: Full time academic year position (10 month contract) beginning fall semester 2015
Entry Rate: $72,000-$76,000
Benefits: Medical Insurance/Mandatory Retirement/Professional Development/Partial Tuition Waiver/Wellness
Primary Duties: Primary duties include teaching, scholarship and service, as set forth in the University of Montana School of Law Faculty Handbook. UM Law faculty may also be asked to assist with clinical course supervision.
Specific duties include: Teaching a required Property Law course to ~83 students, along with related elective courses such as intellectual property; advising students with questions about the practice and study of property law; interacting with state, tribal, and federal constituencies; producing scholarship and other written creative achievement; and engaging in professional service, including participation on law school and university committees.
- Juris Doctorate degree from an ABA accredited law school
- a superior academic background
- substantial relevant practical experience in property law
- potential for effective teaching
- potential for scholarship
- the ability to work collegially with students, staff, faculty, and external constituencies of the law school
- creativity, resourcefulness, fairness, compassion, and initiative
Application review will begin September 12, 2014, and continue until the position is filled.
Apply online only at http://umjobs.silkroad.com
IMPORTANT: Please do not send applications directly to the University of Montana School of Law. Applications sent directly to the School of Law will not be considered or forwarded to Human Resource Services. Only applications submitted through the UM online applicant system will be considered. No exceptions. For a full position description, list of materials & instructions to apply, visit https://umjobs.silkroad.com/
ADA/EOE/AA/Veteran's Preference Employer
Two magisterial structures in Cincinnati--the ornate Music Hall and Union Terminal--are the subject of a proposed sales tax to raise money needed to preserve the buildings. The Cincinnati Enquirer ran a series of op-eds today on the issue, which provide a nice collection of opinions on the merits of using arts, historic preservation, and sports as an economic development catalyst.
Stephen R. Miller
Friday, July 25, 2014
Yesterday, a Colorado district (trial) court found that the city of Longmont's ban on hydraulic fracturing and the storage and disposal of hydraulic fracturing waste in the city was invalid. The court held that the local government's ordinance was preempted by the Colorado Oil and Gas Conservation Act. (Order here.) The order will surely be appealed.
Stephen R. Miller
The editors of Land Use Prof Blog are delighted to announce that we have lined up a great group of scholars to guest blog for us this fall. Jessie, Matt, Jim and I will continue to blog away, as usual, but there will also be a good deal of new voices and new ideas on the blog in the coming months. New bloggers will be announced at the beginning of each month.
We are excited by these additions, and hope you will enjoy and engage with our guests over the coming months. Our first guest bloggers of the fall will begin August 1 and, if we fulfill our larger goal, we will have 5-10 guest bloggers throuhgout the fall.
As always, we welcome comments on the blog and, in particular, ideas for making the blog a better service to the academy and the larger land use law community.
Stephen R. Miller
Thursday, July 24, 2014
Wednesday, July 23, 2014
2015 AALS Panel Call For Papers: The Law of Resilient Cities: State and Local Adaptation to Climate Change
I'm guessing blog readers are probably tired of my posts over the past year about Idaho's Resilient Cities symposium; rest assured, this post has nothing to do with the event I advised last year in Idaho!
This is an entirely new resilient cities CFP for an event to be held at the 2015 AALS conference. From Alice Kaswan:
Michelle Wilde Anderson (Chair of the AALS State and Local Government Section) and Alice Kaswan (Chair of the Environmental Law Section) are seeking proposals for speakers on our sections’ joint panel on “The Law of Resilient Cities: State and Local Adaptation to Climate Change” at the January 2015 AALS meeting in Washington, D.C. The panel session is scheduled for Saturday morning, January 3, 2015, at 10:30.
We have anchored the panel with two confirmed speakers: Vicki Arroyo of the Georgetown Law Center and Tony Arnold of the University of Louisville. We are soliciting proposals for the last two speaking slots. We know that many section members have tremendous insight and expertise in this area and look forward to hearing your ideas.
Here is a more detailed description of the panel:
The Law of Resilient Cities: State and Local Adaptation to Climate Change: As wild storms, flooding rivers, rising seas, droughts, heat, and fire jeopardize our communities, how should the legal academy respond? Last year, at the 2014 AALS meeting, speakers from the environmental law section field trip spoke from the trenches about the challenges facing New York and New York City’s monumental effort to plan and build a more resilient city that can withstand the changes to be wrought by climate change. This year, we bring together scholars and clinicians of state and local government law and of environmental law to take the next step: to share perspectives on how governmental institutions at every level can evolve to create effective and equitable responses to the profound challenges posed by climate change adaptation.
Stephen R. Miller
Karen Trapenberg Frick (Berkeley - Planning) has a really interesting article I just came across in the Summer, 2013 edition of the Journal of the American Planning Association entitled The Actions of Discontent: Tea Party and Property Rights Activists Pushing Back Against Regional Planning. Here is the abstract:
The Tea Party’s effects on local and regional planning efforts, given the movement’s fierce support of property rights and equally fierce opposition to sustainability goals in regional planning efforts, have received little study. I wanted to understand how Tea Party and fellow property rights advocates became involved in regional planning efforts in the San Francisco Bay Area and Atlanta, GA, and how planners perceived and dealt with their objections and tactics. Interactions between the two groups were marked by philosophical differences over the role of government and the necessity and value of regional planning. However, these actors were also deeply divided on plan content and the authenticity of the public outreach process. Tea Party and property rights activists were not the only ones with substantive and procedural concerns about regional planning efforts; tactical coalitions of unexpected allies emerged, aligning on plan viability, finance methods and funding, project costs, impacts, and process. My research shows that common ground can be negotiated between opposing groups on matters of content and process. The concerns of the various stakeholders involved parallel questions often addressed by scholarly planning research, providing evidence of continuing challenges and fl aws in planning.
Takeaway for practice: The planning community should not dismiss the opposition of Tea Party and property rights advocates; these activists could catalyze new coalitions of opponents if planners do not attend to the substantive and procedural concerns of participants.
Cite: Karen Trapenberg Frick (2013) The Actions of Discontent: Tea Party and Property Rights Activists Pushing Back Against Regional Planning, Journal of the American Planning Association, 79:3, 190-200, DOI: 10.1080/01944363.2013.885312.
(Note: The full text of this article is currently available online without fee for those without a subscription.)
Stephen R. Miller
Tuesday, July 22, 2014
In addition to this blog, I also write an occasional column for the Idaho Statesman. I recently wrote about some work of my Economic Development Clinic for a state agency that I thought I'd share in this forum. Here is the op-ed, also reproduced below:
Idaho's rural cities are used to having their backs against the wall. Many have already witnessed the civic death-spiral of shrinking populations and shrinking opportunities that send people packing. There is often a tipping point in a rural community, when the townspeople either rally and push on together, or pack up and head for the cities. That tipping point could be when a school closes, a big employer closes, or in many towns, when the daily needs of life can be purchased without an hour's trip to the nearest big-box store.
Over the last decade, a small but growing number of communities across the Great Plains and Mountain West no longer served by a market are taking matters into their own hand. When the chain store or general store leaves, residents are banding together and starting community-owned stores.
Last year, my Economic Development Clinic assisted several rural Idaho communities in researching some of most successful of these community entrepreneurs. The stories we heard from across the country told of years of hard work setting up such stores. But we also heard that the hard work brought these communities together in a way that might save them in the end.
What is a community-owned store? Simply put, it is a for-profit corporation where the shareholders are all members of the local community.
By most accounts, the first community-owned store was Little Muddy Dry Goods, of Plentywood, Mont. The star of the community-owned store movement, though, is the Powell Merc in Powell, Wyo.
When a national chain store closed right at the heart of the 5,000-person town's commercial strip just over a decade ago, the community wondered what the future would bring. Not content to see the town die, a group of volunteers banded together, met once a week for nearly a year, created a business plan in that time, and began selling 1,000 shares of the store at $500 a share to community members. About two years later, in 2002, the Powell Merc opened its doors. It has stayed open since. It filled a major hole in the city's commercial strip, provided a place to shop for daily needs, and proved a source of local pride.
Of course, the store's shareholders have not seen as lucrative a return on their investment as the stock of some high-flying tech company might have provided. Shareholders were told upfront not to expect dividends and that their investment was in the community. In those terms, shareholders of the Powell Merc seem to have gotten something better than a share of Apple could have provided: the town's survival and the maintenance of a rural way of life.
Starting a community-owned store is tough. The Community Store in rural Saranac Lake, N.Y., took five years to go from business plan to grand opening. The manager there told us "you need a group with tenacity" to make a store work. But a growing number of communities - places such as Ely, Nev., and Quimper, Wash., and other small towns across Wyoming - are giving it a try.
It might just work here, too. For the small Idaho town on the tipping point of survival, a community- owned store could be just the thing to keep the town livable, and keep the community together.
Stephen R. Miller
Monday, July 21, 2014
Thomas Friedman had an op-ed in Sunday's NYT about the sharing economy. Relevant to this blog was one of the closing paragraphs in the op-ed, which read:
How fast [the growth of the sharing economy] happens will depend, in part, on regulators and tax collectors in different cities — not all of whom like people turning their spare bedrooms into hotels or their kitchens into pop-up restaurants. The sharing economy can complement the existing one, and make the pie bigger. But the bigger the Ubers and Airbnbs get, the more incumbents will resist them. This will be a struggle between the 20th-century economy and the 21st’s.
Friedman is right; the future of the sharing economy is, in many ways, governed by how local governments respond to the changes. It is not, however, entirely a division between the 20th and 21st centuries; rather, the kinds of issues cities are forced to balance in regulating the sharing economy go back to very pragmatic--some might even say 19th century--public health and safety concerns.
For instance, in some fashionable neighborhoods, so many people are subletting on Airbnb that critics argue rents now incorporate the potential for illegal subletting into the cost of the rent. Even if such critics are not accurate, the hyper-renting on Airbnb and similar platforms does have substantial effects on particular apartment buildings and on the character of certain neighborhoods.
Similarly, taxi drivers have not only been subject to regulations to protect their industry; rather, regulations on taxis ensure safety and much more. For instance, taxis often must maintain environmental standards for their vehicles that are specific for fleet vehicles. Sharing economy upstarts, like Uber and Lyft, are not subject to those fleet standards.
And so, I would argue it is not accurate to say that the regulatory hurdle the sharing economy faces is the 20th century against the 21st. Instead, I would say that the issue the sharing economy faces is how to provide 21st century flexibility within the parameters of public health and safety we came to expect in our urban spaces in the late 19th century.
This change will come, but it will come in fits and starts, and primarily through experimentation in governmental regulation. Interestingly, that regulation may come to rely, as Friedman writes elsewhere in the piece, on the perception of "trust" that a sharing economy vendor maintains through rankings and ratings. If it were to come to that, such a change would alter the very idea of regulation and radically decentralize it. Would it be regulation any more? Where would liability flow in a regulatory state of private opinion? These are big questions, ones I am just beginning to grapple with in a new article, and ones where I think the local government and land use legal academy could offer real assistance to local governments in the coming years.
Stephen R. Miller
Friday, July 18, 2014
Thursday, July 17, 2014
The federal government will expand its efforts to help states and local governments prepare for natural disasters and climate change, under a series of actions announced by the White House July 16.
The measures include awarding utilities in eight states a total of $236 million to improve rural electrical grids; providing drought assistance to parched communities in the West; and expanding disaster relief to include projects that would help minimize damage from future events.
President Barack Obama announced the actions as he met for the fourth and final time with a 26-member task force of state, tribal and local officials studying resilience.
Stephen R. Miller
Wednesday, July 16, 2014
Study Space VIII Theme: Phoenix Cities: Urban Recovery and Resilience in the Wake of Conflict, Crisis, and Disaster
The Center for the Comparative Study for Metropolitan Growth at the Georgia State University College of Law is again offering a unique opportunity for travel and learning in June 2015. The eighth iteration of Study Space—a weeklong intensive workshop in which scholars, government and private sector professionals develop solutions to legal, social and policy challenges in urban areas—will take place in Warsaw, Poland at the University of Warsaw’s Foundation Centre of Disputes and Conflicts Resolution at the Faculty of Law.
Study Space Poland will feature the incredible reconstruction of Warsaw, Poland in the post-war era. The program will provide historical and political context to the reconstruction of the city, and use the past as a guide to understanding today’s planning goals from a socio-economic perspective.
Study Space Poland will feature a number of lectures and site visits. For example, participants will visit the Old Town and learn about how paintings by Canaletto aided in the reconstruction of the city to its near original form. Tours outside the Old City will demonstrate to participants how areas were redesigned during reconstruction to accommodate the growing city’s needs. Whereas lectures about housing issues and squatters and reprivitization will demonstrate the challenges of reconstruction.
Participants are sure to leave the experience with a new perspective on creating resilient cities informed by the past and present while looking towards the future.
This program is open to professionals and scholars around the world. Space is limited so early application is encouraged.
Please feel free to share this announcement with your colleagues or others who may be interested.
Want more info? Contact Karen Johnston at email@example.com or 404-413-9175.
Wednesday, July 9, 2014
Last spring, the Idaho Law Review hosted a symposium on urban resiliency for which I was the faculty advisor. The accompanying symposium edition is soon to be released.
I also wrote an introductory essay to the symposium edition, which is available here. This symposium introduction essay reviews and highlights articles in the edition by Andrea McArdle, John Travis Marshall, Ryan Max Rowberry, Kellen Zale, Melissa M. Berry, Palma Joy Strand, Jeffrey B. Litwak, Christopher K. Odinet, and Craig Anthony (Tony) Arnold. The essay also reviews presentations made at the symposium by Jonathan Rosenbloom, Keith Hirokawa, Tom Bergin, and Tom Wuerzer.
The essay might be of interest to those looking for a starter on urban resiliency and, in particular, for a reference to a number of excellent articles that would prove fruitful for exploration. Several of the full length articles from the symposium edition are already on SSRN (see here and here), and I'm sure the remainder will be available on SSRN soon.
Stephen R. Miller
Saturday, July 5, 2014
There are two nice articles out this week on land use in San Francisco.
The first is in the New Yorker and called "California Screaming." (A subscription is required to view the entire article.) It's a good look at the city's land use issues in light of the tech explosion there. Those who have practiced land use law in the city (like me) will recognize a number of familiar names in the article.
The New Republic also has a nice article, "San Francisco Mapped Every Brothel, Opium Den, and Gambling Parlor During a Moral Panic in the 1880s," on an extraordinary effort by San Francisco to map vice in the city's booming nineteenth century Chinatown, and not exactly for the best of reasons. See example map below:
It is a fascinating tale of the troubling uses of social mapping, which in the hands of other groups like Hull House, was equally a tool for progressive social change.
Hat tip to Lee Dillion for the latter link.
Stephen R. Miller
Thursday, July 3, 2014
In the late Nineties, I was fresh out of college and without a penny to my name. I moved to New York City and found an apartment on 16th Street in an area that now passes as Chelsea, but was then a (relatively) low-rent no-man's land with no real anchors to the neighborhood save for two: the Barney's outlet on 17th, and Union Square Cafe. The latter was so close to me its neon sign could be seen from my front stoop.
In today's NYT, Danny Meyer, who started Union Square Cafe in that interstitial neighborhood some 30 years ago and who will lose his lease due to soaring rents, has a nice op-ed about the importance of the neighborhood restaurant and what, if any, solace the real estate world should have for the character-defining uses of a high-rent neighborhood.
Now, let's be honest: the Union Square Cafe is not your ordinary neighborhood restaurant. One of my roommates in the Nineties, a recent Harvard grad, filled in for a friend at the coat check counter, made $250 in tips, and had a conversation with Charlie Rose. Your Harvard-grad-as-coat-checker-who-chats-up-celebrities restaurant is one of those only-in-Manhattan (or maybe LA) neighborhood restaurants. And my nostalgia for the restaurant is primarily aspirational: it was the restaurant I walked by every day on the way home; beyond its doors was a mystery to me, merely the restaurant I'd eat at some day when times were more flush. Of course, now that I have the money to make Union Square Cafe my neighborhood restaurant, I live in Idaho and the real estate market is having the cafe for dinner. I think the emotion here really isn't nostalgia so much as what my Japanese poetry teacher called "mono no aware."
But the idea of neighborhoods, and what place they have in our cities, and what the law should (or shouldn't) do to try to make neighborhood life better, remains one of my overarching concerns. And so, I was taken by Meyer's suggestion, about halfway through his op-ed, that New York City adopt a model "like London's Rent Assessment Panel, a government committee that resolves rent disputes and is credited with helping prevent rapid erosion of the city’s neighborhood fabric."
I had never heard of the London Rent Assessment Panel, and so I looked it up. From what I can glean, the London Rent Assessment Panel only arbitrates residential rent disputes. From a Guardian article on the panels:
I arrive at the London Rent Assessment Panel near Goodge Street for a 9:30am hearing. The building is shiny and new-looking, with light created by the glass-walled offices and hearing rooms. On the wall of the waiting room is an old ward boundary map of the area around the City of London, a reminder that many more people used to live in central London until the end of the 19th century. One of five Rent Assessment Panels in England, the quasi-judicial body aims to settle disputes between private landlords and tenants in London. The hearing room itself is intimate setting with two panellists and the involved parties sitting at tables.
* * *
A recent report for Rightmove said that 30% of renters in London and the south east were paying more than 50% of their take-home pay on rent. In practice this means that renting is becoming increasingly unaffordable, and changes to housing benefit coming in next year are likely to make this work. Despite often being blamed for the decline of private renting in the 1980s, we're seeing a clamouring for rent controls again.
The tenants and landlords will receive a decision notice within 28 days. The hearings are over by lunchtime, which means the committee can carry out their visits in the afternoon, and decide what the rent should be.
Here is more on the courts from their own webpage. It doesn't sound to me like the London Rent Assessment Panels explicitly address what Meyer is proposing, which I believe, is essentially a public law-based arbitration of private rents on certain types of commercial uses in neighborhoods with the goal of making sure that a neighborhood retains a mix of uses and local-serving character. Another approach cities have tried, to some varying success, is to limit the number of businesses in a particular use category in a neighborhood commercial strip. And in San Francisco, some have proposed the city should offer a tax break to landlords that sign 10 year leases or longer to legacy businesses. But Meyer's suggestion is something more: kind of an anti-Icarus effect for real estate prices for certain types of neighborhood uses: rent that is never too high, never too low. It's interesting as a proposal, and might work. But for commercial spaces, it would seem to need more nuance. For instance, what if the "neighborhood restaurant" gets a huge break on rent in a year when rents are high, but then goes on to make tons of money and could have afforded the higher rent? That wouldn't be fair to the landlord, but could potentially be ameliorated through something like percentage rent added to a base rent. In any regard, I find the idea of a commercial rent assessment panel for neighborhood uses intriguing, but I think it would quickly become complicated because the rent panel would be trying to assess market risk for both the landlord and the tenant over a time-frame--10 or 15 years--that is longer than most real estate cycles.
For cities like New York and San Francisco, the question becomes at what price nostalgia or character should be purchased through policy or the intervention of law. It is a hard balance to strike. I'd like to believe I'll make it back to Union Square Cafe some day, but it seems the days are numbered. In places like Manhattan, perhaps equally numbered are the days of places between places, the interstitial streets between neighborhoods booming and busting, where Union Square Cafe flourished, and a block down, I began my life in the big city. I have a nostalgia for those places in between where opportunity begins anew, maybe because it was in those neighborhoods that I got my start, and I sense viscerally it is those places in between others need to get their start, as well. I hope they are not gone for good, in New York, or San Francisco, or any city.
Stephen R. Miller