Wednesday, September 28, 2016

White House releases Housing Development Toolkit but fails to offer any new solutions to the housing crisis of major American cities

Earlier this week, the Obama administration released a white paper entitled, "Housing Development Toolkit."  The paper has a, well, scathing review of the effects of local housing policy in major American cities.  True enough.  The report's analysis won't be much of a surprise to land use practitioners, but it is worth a look for its effort to frame the existing problem and offer solutions.  In my opinion, while the report is a good read, many of the solutions offered in the report have already been tried for decades to little effect.  Something more bold will be needed to address the housing issues in larger American cities.  Here is the executive summary with a list of proposed options at the bottom (further explored in pages 14 to 19 of the report):


Over the past three decades, local barriers to housing development have intensified, particularly in the high-growth metropolitan areas increasingly fueling the national economy. The accumulation of such barriers – including zoning, other land use regulations, and lengthy development approval processes – has reduced the ability of many housing markets to respond to growing demand. The growing severity of undersupplied housing markets is jeopardizing housing affordability for working families, increasing income inequality by reducing less-skilled workers’ access to high-wage labor markets, and stifling GDP growth by driving labor migration away from the most productive regions. By modernizing their approaches to housing development regulation, states and localities can restrain unchecked housing cost growth, protect homeowners, and strengthen their economies.

Locally-constructed barriers to new housing development include beneficial environmental protections, but also laws plainly designed to exclude multifamily or affordable housing. Local policies acting as barriers to housing supply include land use restrictions that make developable land much more costly than it is inherently, zoning restrictions, off-street parking requirements, arbitrary or antiquated preservation regulations, residential conversion restrictions, and unnecessarily slow permitting processes. The accumulation of these barriers has reduced the ability of many housing markets to respond to growing demand.

Accumulated barriers to housing development can result in significant costs to households, local economies, and the environment.

Housing production has not been able to keep up with demand in many localities, impacting construction and other related jobs, limiting the requisite growth in population needed to sustain economic growth, and limiting potential tax revenue gains.

Barriers to housing development are exacerbating the housing affordability crisis, particularly in regions with high job growth and few rental vacancies.

Significant barriers to new housing development can cause working families to be pushed out of the job markets with the best opportunities for them, or prevent them from moving to regions with higher-paying jobs and stronger career tracks. Excessive barriers to housing development result in increasing drag on national economic growth and exacerbate income inequality.

When new housing development is limited region-wide, and particularly precluded in neighborhoods with political capital to implement even stricter local barriers, the new housing that does get built tends to be disproportionally concentrated in low-income communities of color, causing displacement and concerns of gentrification in those neighborhoods. Rising rents region-wide can exacerbate that displacement.

The long commutes that result from workers seeking out affordable housing far from job centers place a drain on their families, their physical and mental well-being, and negatively impact the environment through increased gas emissions.

When rental and production costs go up, the cost of each unit of housing with public assistance increases, putting a strain on already-insufficient public resources for affordable housing, and causing existing programs to serve fewer households.

Modernized housing regulation comes with significant benefits.

Housing regulation that allows supply to respond elastically to demand helps cities protect homeowners and home values while maintaining housing affordability.

Regions are better able to compete in the modern economy when their housing development is allowed to meet local needs.

Smart housing regulation optimizes transportation system use, reduces commute times, and increases use of public transit, biking and walking.

Modern approaches to zoning can also reduce economic and racial segregation, as recent research shows that strict land use regulations drive income segregation of wealthy residents.

Cities and states across the country are interested in revising their often 1970s-era zoning codes and housing permitting processes, and increasingly recognize that updating local land use policies could lead to more new housing construction, better leveraging of limited financial resources, and increased connectivity between housing to transportation, jobs and amenities.

This toolkit highlights actions that states and local jurisdictions have taken to promote healthy, responsive, affordable, high-opportunity housing markets, including:

Establishing by-right development

Taxing vacant land or donate it to non-profit developers

Streamlining or shortening permitting processes and timelines

Eliminate off-street parking requirements

Allowing accessory dwelling units

Establishing density bonuses

Enacting high-density and multifamily zoning

Employing inclusionary zoning

Establishing development tax or value capture incentives

Using property tax abatements






September 28, 2016 | Permalink | Comments (0)

Friday, September 9, 2016

Sharing Economy Friday, Post 3: TUESDAY: FREE ABA Professor's Corner webinar with Miller and Jefferson-Jones on sharing economy

This Tuesday, I am doing a webinar with Jamila Jefferson-Jones (UMKC) on hot topics on regulating short-term rentals.  It is free and sponsored by the ABA Real Property Trusts and Estates Section.  Thanks to Chris Odinet (Southern) for the invite.

Professors' Corner
Emerging Legal Issues in the Sharing Economy:
Regulating Short-Term Rentals

Tuesday, September 13, 2016
12:30-1:30 pm ET (11:30 am CT, 10:30 am MT, 9:30 am PT)


  • Jamila Jefferson-Jones, Associate Professor, University of Missouri-Kansas City School of  Law
  • Stephen R. Miller, Associate Professor, University of Idaho College of Law


  • Christopher Odinet, Horatio C. Thompson Endowed Assistant Professor, Southern University Law Center

Like network transportation companies and employment matching sites, sharing economy short-term rental (STR) companies are rapidly restructuring the American experience. That these sharing economy STR companies — which are typified by entities such as Airbnb and VBRO — have such impact and market share at a time during which much of their business model remains, at best under-regulated and at worst illegal, makes it one of the most important emerging areas in American law.

Our panelists will discuss recent cases and emerging issues that examine the tension inherent in regulating sharing economy STRs as cities and states grapple with issues such as: whether STRs cause gentrification and escalation of rents in highly-coveted neighborhoods; whether or how these companies should be subject to the payment of transient occupancy taxes, as well as impact fees and exactions associated with STRs; day limits on STR market use; use definitions that define STRs; licensing and permitting; forced information sharing; the application of anti-discrimination laws; takings and inverse condemnation litigation; rent control and subletting provisions in leases, as well as other litigation that will certainly arise and develop in the near future. Professors Miller and Jefferson-Jones are the authors of The State & Local Government Sharing Economy Manual:Strategies for Regulating and Managing On-Demand Services, an ABA publication forthcoming in 2017.

Professors' Corner is a monthly teleconference featuring law professors discussing recent cases or issues of interest to real estate practitioners and scholars.

September 9, 2016 | Permalink | Comments (0)

Sharing Economy Friday, Post 2: Jamila Jefferson-Jones on Airbnb's anti-discrimination policy

Yesterday, Airbnb offered a new anti-discrimination policy. NPR, NYT, WSJ.

Jamila Jefferson-Jones (UMKC), who has written about the subject (see here), commented at The Guardian and New York Times and offered some nice insights.

September 9, 2016 | Permalink | Comments (0)

Sharing Economy Friday, Post 1: Donald Kochan on what it means to "share" property

Donald Kochan (Chapman) has a new article on the sharing economy, "I Share, Therefore It's Mine," now available on SSRN.  Here is the abstract:

Uniquely interconnecting lessons from law, psychology, and economics, this Article aims to provide a more enriched understanding of what it means to “share” property in the sharing economy. It explains that there is an “ownership prerequisite” to sharing of property, drawing in part from the findings of research in the psychology of child development to show when and why children start to share. They do so only after developing what psychologists call “ownership understanding.” What the psychological research reveals then is that the property system is well-suited to create recognizable and enforceable ownership norms that include the rights to acquire and retain ownership of property (parting with it only on terms defined by the owner), thereby also providing necessary economic incentives to share. Along the way, this article bridges the psychology research with Hohfeld’s description of the nature of rights, explaining the corresponding rights characterizations appropriate to describe each step in a child’s development of ownership understanding.

When we have a well-developed ownership regime—with a high reliability of enforcing ownership norms—we create the confidence in ownership that “ownership understanding” reveals is necessary for individuals to feel secure in sharing. So too does the development of the right to exclude and the corresponding right to include in property law track the underlying psychology to create the prerequisites in law to effect what might be called a “legal ownership understanding” that feeds the sharing economy, with sharing being simply an exercise of the right to include. The Article concludes with an ownership-sensitive definition of sharing that should prove useful to courts, regulators, and scholars alike, while remaining largely agnostic on the scope of desirable regulation of the sharing economy.

September 9, 2016 | Permalink | Comments (0)

TODAY: Free RLUIPA update webinar from ABA State & Local Gov Section

From Jessica Bacher, Chair of the Chair, Land Use Committee, ABA Section of State and Local Government Law:

Please join us today for our September Committee online meeting. The meeting will begin with a short discussion of committee business -- offering opportunities for all of our members to participate in CLE programs, book projects, speaking opportunities and periodical publications -- followed by a substantive program that you will not want to miss.

Today's FREE Webinar Sponsored by the Land Use Committee is scheduled for 2:00 pm EST, and will feature as our speaker Daniel P. Dalton, Esq., of Dalton & Tomich PLC, presenting a RLUIPA Update.

Joining us from a computer? Simply click<<>>.

Joining us from a mobile device? Download the Zoom app and then click<<>>.

Joining us by phone? Call either

+1 415 762 9988 (US Toll) or +1 646 568 7788 (US Toll)

and enter Meeting ID: 631 761 7137

Please also save-the-date for our upcoming online meetings:

     *   October 14, 2016--featuring Wendie Kellington on Drones

     *   December 9, 2016--featuring Jess Phelps on National Historic Landmarks

     *   January 13, 2017--featuring Robert Thomas on Regulatory Takings: Emerging Issues

     *   March 10, 2017--featuring Alexander Judd on Telecomm Law

     *   May 12, 2017--featuring Andy Gowder on Exactions & Impact Fees

     *   June 9, 2017--Speaker TBD

     *   July 14, 2017--Speaker TBD

September 9, 2016 | Permalink | Comments (0)

Monday, September 5, 2016

Zoning's Next Century, Part 3: Why the Quiet Revolution Failed, A Series by John R. Nolon

Zoning’s Next Century

Why the Quiet Revolution Failed

John R. Nolon, Distinguished Professor

Elisabeth Haub School of Law, Pace University


New York’s historical failure to wrest land use control from local governments demonstrates why they remain in charge of land use planning and regulation. This may explain, as well, why federal and state efforts to assist localities and guide their policies succeed, while top down mandates so often fail.   This post is taken from forthcoming article on the evolution of land use law in New York and is based on the author’s own experience.[1]

My personal journey with New York’s land use law began over 25 years ago as we searched for strategies to achieve what was then a new concept: sustainable development. In 1993, I founded the Land Use Law Center for Sustainable Development at Pace University School of Law, now called the Elisabeth Haub School of Law. At the request of President Clinton’s Council on Sustainable Development, we began our analysis by assembling an Advisory Committee on Sustainable Development in the Hudson River Valley…. The Council asked us to project current land use trends 50 years forward, to determine whether they were sustainable and, if not, to identify the key obstacles to sustainability and the most effective strategies to remove those obstacles….

            We did several studies, including one on what we called pacelization – the rate at which large parcels of land were being subdivided into smaller parcels for development. Projecting the current rate  forward revealed that the amount of open land in the region would decline from 60% then to around 30% in the year 2045, that there would be a 400% increase in what transportation planners call vehicle hours of delay, and that for every one percent of population added we would urbanize seven percent more land.  [This trend was clearly not sustainable.] …

            The President’s Council had asked us to identify the most formidable obstacle to the sustainable development of the Hudson River Valley and the best strategy to remove that obstacle.  To answer this question, we had to review the history of these matters in New York.  The state’s story involves a tug of war regarding localism, regionalism, and state control of land use decisions.  Every New York governor since the Great Depression has made some statement about the importance of having cogent state policies on land use to guide local decisions with little effect….       

            We reflected on the national experience as well.  Environmental and land use study commissions, courts, and commentators long bemoaned the parochial effect of local land use decisions and their tendency to exclude affordable housing and to shift environmental and economic impacts to nearby communities.  These concerns gave rise to what became known as the “quiet revolution in land use control” which was advocated by a 1971 report of the U.S. Council on Environmental Quality.  The “revolution” envisioned state legislative efforts to adopt growth management legislation, establish regional land use planning agencies, and tether local decisions to state-adopted land use principles or plans. In 1968, the Douglas Commission, appointed by President Johnson, issued its Report on Urban Problems, Building the American City.  The Commission recommended that each state create a state agency for land use planning and prepare state and regional land use plans. [Our search for effective state and local planning in other states was not fruitful.] For a time, New York led the nation in this direction….

            The success of the Adirondack Park Agency [with its regional control of land use planning] and the hortatory language of the Douglas Commission and the Council on Environmental Quality led state planners in New York to think more ambitiously.  In early 1970s, the New York legislature was presented with the Statewide Comprehensive Planning Act, which provided for the creation of state, regional, county, and local plans – all cross certified and consistent.  At the time, this was the nation’s most far-reaching attempt to guide and constrain local land use decision-making.  The perceived threat to local control was clear, and the political reaction was predictable, swift, and definitive.  The bill was withdrawn and the New York Office of Planning Coordination – the agency that proposed it – was voted out of existence by the state legislature….

            Strong regionalism has not prevailed in New York for the same reason it has not prevailed in most states. Former Speaker of the House Thomas P. O’Neill Jr., once quipped that “all politics is local.”  All reform efforts aimed at constraining local control must overcome this political reality.  The danger in advocating top-down, statewide land use solutions is that it identifies local control as the problem to be solved, rather than the base on which to build an intermunicipal process, responsive to regional and state needs.  The challenge for advocates of a regional approach to land use planning and control is to identify effective regional processes that respect the critical role that local governments play in land use decision-making.  To be politically palpable, these solutions must be perceived not as methods of imposing a state or regional body’s will on local governments but as means of communicating effectively about regional and local needs, balancing those interests, and arriving at mutually beneficial decisions over time…..

            This was our experience by the time the President’s Council asked us its provocative question: What is the best strategy for removing the most formidable obstacle to the sustainable development of the Hudson River Valley?  The 250 representatives of various groups interested in land development and conservation who testified at our final hearing on the matter kept reminding us of the political reality of land use: local leaders are the gatekeepers of the system.  In the continuing absence of national or state-mandated solutions, attention should be paid, they said, to strengthening the system at its foundation. 

            Our response to the Council was that, if such significant control was to remain with local governments and if the local decision-making system is driven primarily by local leaders, most of whom are volunteers with little experience in the field, then we would recommend an aggressive program to train these critical participants in the development of plans and regulations for the future of the Hudson River Valley. [This program has demonstrated considerable success in fostering sustainable land use plans and regulations and, even, generating several intermunicipal land use councils. These few successes fall short of creating effective regional or state control.]

            That said, this experiment in New York does suggest a strategic path.  If local power is so resilient, then perhaps embracing local governments and urging them to collaborate with a national, state, and regional strategy that is designed to honor their concerns and is based on their participation would be a quicker route to more a comprehensive, less cacophonous approach to land use control. As Thomas Jefferson said: “I know of no safe depository of the ultimate power of society but the people themselves, and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education.”

[1] Zoning’s Centennial (1916-2016) – The Evolution of Land Use Law in New York, forthcoming New York Zoning Law and Practice Report (Sept/Oct 2016).

Previous posts in the Zoning's Next Century are listed below:

Part 1:  An Agenda for the Next Century

Part 2:  Foundations from the 17th Century

September 5, 2016 | Permalink | Comments (0)