Land Use Prof Blog

The Loneliest Battle: Fighting for Procedural Integrity in Land Use Decisions: A Case Study from Boise, Idaho

In addition to my work as a law professor, from time to time, I am asked to enter the fray in local land use decisions here in Boise.  Typically, this happens through the means of a request to a local neighborhood association to weigh in on a matter.  As a board member on a neighborhood association, I often assist in these land use issues.  Previously, I served about 20 months on Boise’s planning and zoning commission, as well, a post I left largely because of some of the issues I will discuss below.  In any case, I thought I would share some of what has been going on here in Boise, in large part because I have never encountered anything like it before, and it strikes me as an important case study in the importance of process in making land use decisions work.  As I note in the title, fighting for good process in land use decisions may be one of the “loneliest battles” anyone can undertake.  But as I’ll hope to illustrate below, where there is bad process, the whole planning apparatus can quickly devolve into a sham.  In Boise, what purportedly applies in outward facing principles—such as those announced in the comprehensive plan and other city documents—is vastly different from what happens in practice.  When stated law and practiced law diverge as greatly as they do in Boise, there is significant room for mischief to enter.  Justice Scalia once put this in stark relief:

Reasoned decisionmaking, in which the rule announced is the rule applied, promotes sound results, and unreasoned decisionmaking the opposite. The evil of a decision that applies a standard other than the one it enunciates spreads in both directions, preventing both consistent application of the law by subordinate agency personnel . . . , and effective review of the law by the courts.

Allentown Mack Sales & Serv., Inc. v. N.L.R.B., 522 U.S. 359, 375, 118 S. Ct. 818, 827, 139 L. Ed. 2d 797 (1998).  When I teach administrative law, I always linger over this passage by Scalia because, regardless of your political proclivities, he is right on this one:  where a decision diverges from its stated standards and, with subterfuge, works to implement another standard, there is an “evil” there that upends the entirety of the decisionmaking process.  In the land use context, I suggest that there is another problem:  where such divergence occurs, there can be a loss of faith in government, suspicions of corruption, and ultimately, either a resolve to “kick the bums out” or an apathetic retreat from institutions altogether.  But I get ahead of myself.  Here is what goes on.

Background on Boise’s Planning Process

On the surface, Boise’s planning process looks like almost any other Euclidean-based zoning code in the country.  There is a modestly progressive comprehensive plan that exclaims a desire to make Boise “the most livable city in America,” a land use map and zones that implement the plan (conformity requirement in Idaho, but nothing more), and the usual dose of discretionary entitlements such as conditional use permits and planned unit developments. 

But it is how the process is managed that the structural problems begin to seep in.  Here is the general gist.  Every project application that goes before the planning and zoning commission gets an “approve” recommendation from staff in the staff report.  The staff report is also problematic because, on a prefatory page, there is a summary paragraph that is referred to as the “Reason for the Decision.”  Then, on the second page of the file, there is a title called “Planning Division Project Report,” which is followed by a table of contents, which includes two important sections”  “Analysis/Findings,” and “Recommended Conditions of Approval.”  More on the interplay between the “Reason for the Decision” and the “Analysis/Findings” in a moment (though the administrative law junkies out there are likely to see problems emerging:  a reason for the decision that is separate from the findings…what?!). 

The staff report is delivered to the public and the planning and zoning commission at the same time, about 10 days before the hearing.  The commission never holds working groups, and because Idaho has strict ex parte laws, there is no communication between commissioners and the project sponsors or opponents.  The project description is strictly a one-time “on the record” proceeding.  Staff expressly tell the commission not to defer but instead to vote up or down.  Staff also strongly oppose the commission making any of their own conditions of approval.  Because Idaho has no environmental review and its state land use law does not otherwise dictate it, there is never a project alternative provided by the project applicants.  So, what happens is that the staff report essentially dictates the terms of the approval and the commission just votes yes or no.  Almost all of the time, the commission votes yes.  If there is no appeal on an approval, the project sponsor goes forward and builds and that is that.

Community involvement is elaborately stage-managed to be ineffective.  The application for almost any project goes live in a computer-based system about a month before the project is heard at the commission.  There is also very circumscribed notice; the city refuses to provide notice to anyone but for close neighbors and the immediate neighborhood association.  Project applicants must have a neighborhood meeting; however, they almost always come with the completed plan, tick off the meeting, and then proceed with their plan anyway or offer some very minor change.  There is hardly ever a real effort to engage the community prior to design.  In addition, the city takes the perspective that it does not have to respond to any of the community testimony or alternatives other than “objective facts” so long as their position is supported in the record.  It is unclear what the city considers to be an objective fact, but I have never seen the city believe that it has encountered one presented from the community.  Instead, any community opposition or proposed alternative is universally derided.  Presumably, an “objective fact” would be an alternative study conducted by an expert.  But again, consider the time frame:  because the city has sped up the discretionary permitting clock, there is not really time to even hire and conduct a alternative expert study.  As a result, the process stacks the deck against the community in input.  The courts have also conspired against meaningful process through an elaborate standing doctrine; as an example, the Idaho Supreme Court just recently held that one of the largest farmers in a fast-developing county, whose family had farmed in that county continuously since the late nineteenth century, did not have standing to challenge comprehensive plan updates.  (Case available here:  https://isc.idaho.gov/opinions/42756.pdf). 

When the commission votes to deny a discretionary permit, the city traditionally wrote up a brief, several sentence description of the oral hearing and then sent that as the “reason for the decision” to the project sponsor.  Developers’ attorneys had a field day with this.  Notably, Idaho law requires the commission to make the findings, and here the findings were written by the staff and never approved by the commission.  In large part because of my objection to this process, the staff now get the commission’s approval of the “reason for the decision,” but it remains a several sentence rambling description of what happened in the meeting.  Of course, developers attorneys continue to have a field day with this:  any student who has passed through an administrative law class knows that there are requirements for findings that are embedded in the legal standards that apply to quasi-judicial decisionmaking.  For some reason, Boise refuses to acknowledge this.  And so, whenever a project is denied, the developers’ attorneys, who appear to be the only ones in Boise who took administrative law, line up and make all the right arguments about the paucity of findings, a lack of substantial evidence and the arbitrary and capricious nature of the decisionmaking.  The city council, seeing a clear violation and attorneys fees coming out of general fund coffers, almost always back down and approve the project.

So, let us summarize.  A project sponsor wants a discretionary permit.  The staff write a staff report with a “reason for the decision” and “findings.”  The staff recommendation is always “approve.”  The commission, largely kept in the dark about the project and told to vote just yes or no, almost always votes yes.  When the commission votes no, the staff draft a legally insufficient “reason for the decision,” developers’ attorneys pounce, and the city council retreats fearing a loss and approves.  In short, one way or another, no matter what the comprehensive plan says, no matter what the community says—and note how law is used to isolate the community—every project is either approved, or because of sloppy process, ultimately gets approved after an initial denial.  In the words of Scalia, here we have the “evil of a decision that applies a standard other than the one it enunciates.”

Procedural Appeals of Land Use Decisions in Boise:  Does Anyone Understand What Is Going On?

I just filed my first appeal of a commission decision and it goes before the city council next week.  Obviously, my hope is that the city council will simply reverse the decision of the commission—in this case, a highly suburbanized school design for one of Boise’s urban neighborhoods—but I have also been somewhat shocked by how both the city, as well as a leading attorney hired by the school district, have displayed their knowledge of land use administrative procedure.  In both instances, it is so shockingly incorrect, I cannot decide if it is a purposeful misrepresentation of the law, or if really no one understands what they are supposed to be doing.

Tracking the applicable standards of land use appeals in Idaho is actually quite easy for a national audience.  Idaho’s land use planning enabling act incorporates the judicial review provisions from the Idaho Administrative Procedure Act, or “IDAPA.”  The most common of standards of review in quasi-judicial decisions are familiar to most land use lawyers:  lack of substantial evidence; arbitrary and capricious decisionmaking; and procedural error. 

Both the city’s memo in response to my appeal, and the school district’s attorney, seem to have no familiarity with these standards, much less what they stand for.  This is made even weirder by the fact that Idaho has largely “federalized” these standards:  state court opinions have largely adopted federal interpretations of how these standards operate within the context of federal administrative law and made them applicable to Idaho state law.  This makes sense for a small state without much litigation, but it seems to have largely confused the local bar.

Take, for instance, this sentence from the school district’s attorney:  “The appellants allege that the Commission’s decision was not supported by substantial evidence in the record making the Commission’s decision arbitrary.”  Is anyone else cringing?  In other words, the school district’s attorney conflates the two major standards of review into one.  Of course, that is completely incorrect, which is why “substantial evidence” and “arbitrary and caprious” review are two separate standards of review.  Things go downhill from there.

Similarly, the city’s memo in response to my own seems to lack basic understanding of the administrative process.  The city attorney gets hung up on a provision in the land use planning enabling act that requires a “reasoned statement” (I.C. § 67-6535 (2)).  True, that is what the planning act references; but the city attorney seems to have no idea of the standards to which such a statement will be held in court.  Moreover, the city attorney chastises my reference to the need for “findings” because that term is not used in the statutory section of the land use planning act requiring the reasoned statement.  Apparently they are unaware of the provisions governing judicial review to which that statement must ultimately be accountable.

Here, I think, is where the incorporation of the IDAPA standards has confused both the city and the school district attorney.  Because neither seem to have even a passing familiarity with the requirements of the substantial evidence standard or the arbitrary and capricious, or “reasonableness” requirement.  Of course, the substantial evidence test is there to ensure basic fact-finding, while the arbitrary and capricious test is there to ensure analytical reasoning comports with statutory requirements and basic requirements of reasonableness.

For the uninitiated, Idaho case law has largely imported the Universal Camera definition of “substantial evidence.”  Here is how the Idaho Supreme Court summarized it:

[i]n deciding whether the agency's findings of fact were reasonable, reviewing courts should not “read only one side of the case and, if they find any evidence there,” sustain the administrative action and ignore the record to the contrary. Universal Camera, supra, 340 U.S. at 481, 71 S.Ct. at 460; quoted in Local 1494, supra, 99 Idaho at 634, 586 P.2d at 1350. Certainly reviewing courts should not “displace the [agency's] choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.” [Citations omitted.] Nevertheless, reviewing courts should evaluate whether ‘'the evidence supporting that decision [under review] is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the [agency's] view.” Universal Camera, supra, 340 U.S. at 488, 71 S.Ct. at 464; quoted in Local 1494, supra, 99 Idaho at 634, 586 P.2d at 1350; accord, Local One, Amalgamated Lithographers v. National Labor Relations Board, 729 F.2d 172, 175 (2d Cir.1984).

Idaho State Ins. Fund v. Hunnicutt, 110 Idaho 257, 260–61, 715 P.2d 927, 930–31 (1985) [note:  because Idaho imports this IDAPA provision to local land use decision review, much of the case law references agencies but is also relevant to local governments in land use decisions].  What this basically means is that an agency essentially gets deference to its fact-finding but there must be some findings of fact that address the whole record including that which is “contrary” to the decision.  This requires findings.  Maybe the best known statement of this is the “basic facts”—what the project is—into “ultimate facts”—the project as compliant within the terms of the statutory findings--requirement of Saginaw Broadcasting, another federal case adopted by Idaho courts.  That is more than a rambling "reason for the decision."

Of course, this standard is where things get weird for the city.  The “reason for the decision” clearly doesn’t meet this standard,” but on the other hand, the findings in this particular report express equivocal analysis and, in fact, many reasons why the school district should not have been given the permit.  In other words, the “reason for the decision” is not findings as required for substantial evidence, but the findings actually illustrate that there was severe reservation by the planning department.

Another confusion both the city and the school district make is that, now, they want to point to other evidence in the record as support for the commission’s finding.  But the whole point of the findings requirement is that the commission has to clearly state what facts they relied upon in making the decision.  They don’t do that in this case and, bizarrely, the city does not believe it has to do so.

Another confusion is that the bargain for deference in the substantial evidence test is that the zoning board needs to address what is “contrary,” or in the words of Universal Camera, “detracts from” the holding.  This is a very modest requirement—Universal Camera calls for “more than a scintilla”—but it can’t be nothing.  Here, my memo points out numerous provisions of the comprehensive plan that clearly are violated by the project; however, the city and the school district claim that there is no need to address these contrary matters. 

The city and the school district also do not seem to realize that the “reasoned decision” requirement is based upon the reasonableness requirement of case law, both Idaho specific and federal law that has been brought into Idaho law.  This reasonableness requirement is stated in one way here: 

For “effective judicial review of the quasi-judicial actions of zoning boards, there must be ... adequate findings of fact and conclusions of law.” Workman Family P'ship v. City of Twin Falls, 104 Idaho 32, 36, 655 P.2d 926, 930 (1982). Conclusory statements are not sufficient; instead “[w]hat is needed for adequate judicial review is a clear statement of what, specifically, the decisionmaking body believes, after hearing and considering all of the evidence, to be the relevant and important facts upon which its decision is based.” Id. at 37, 655 P.2d at 931 (quoting S. of Sunnyside Neighborhood League v. Bd. of Comm'rs, 280 Or. 3, 21–22, 569 P.2d 1063, 1076–77 (1977)). . . .

Cowan v. Bd. of Comm'rs of Fremont Cty., 143 Idaho 501, 511, 148 P.3d 1247, 1257 (2006).  Another Idaho case states the reasonableness requirement as requiring the action to be supported by a rational basis with regard to the facts and circumstances presented with adequate determining principles.  “Where there is room for two opinions, action is not arbitrary or capricious when exercised honestly and upon due consideration, even though it may be believed that an erroneous conclusion has been reached.”  Enter., Inc. v. Nampa City, 96 Idaho 734, 739, 536 P.2d 729, 734 (1975).  Both the city and the school district do not seem to realize that this is a separate reasoning requirement, which requires the commission to articulate its decision.

The city and the school district also do not believe that they need to address any proposed alternatives provided by the community.  State Farm, anyone?

Perhaps even more remarkably, the city argues that a reliance on comprehensive plan policies is “subjective.”  However, it is a discretionary permit and the key question in a discretionary permit is almost always whether it complies with the comprehensive plan.  This is a fundamentally subjective analysis, but that is the analysis that is called for by the city’s permit.

Where Do We Go From Here?

What this initial foray into appeals in Boise has taught me is that there is either not a strong understanding of the basics of administrative law that undergird land use decisionmaking, or there is such a disconnect between the applicable standards as announced, and as practiced, that the land use law in Idaho is without any meaningful mooring as practiced.

I don’t know where this goes, and how much further I will pursue it, but I have found the experience troubling.  It evinces to me a department, and a planning culture, that fundamentally does not believe in—and does not even care to—understand the procedural rules by which the game is played.  The process, of course, is there to keep decisionmaking honest.  Scalia again:  “’Substantial evidence’ review exists precisely to ensure that [a government] achieves minimal compliance with this obligation, which is the foundation of all honest and legitimate adjudication.”  Allentown Mack Sales & Serv., Inc. v. N.L.R.B., 522 U.S. 359, 378–79, 118 S. Ct. 818, 829, 139 L. Ed. 2d 797 (1998).  My fear, in Boise, is that we are so far beyond honest and legitimate adjudication that even basic application of the rules won’t happen without sustained litigation to force it.  That saddens me, but it makes me wonder how common this is in other places.  These administrative law standards that apply to land use decisions are tricky and complicated.  How realistic is it to expect local governments out on the sagebrush steppe to comply with them?  But if they are too complicated for a remote place like this, what are the processes that keep honesty and legitimacy at the fore, and keep people believing in their local governments?  What keeps people from apathy in the decisionmaking process, and believing that the whole lot of them are against the people, or even worse—bought off and corrupt?  

What is there to build a sustainable future with if the law is not enforced as it is written?

June 13 - National Preservation Law Conference - Georgetown Law & National Trust for Historic Preservation

From Peter Byrne:

National Preservation Law Conference 

Conference Agenda
Tuesday, June 13. 2017

*Optional 2-hour stand-alone webinar, Preservation in a Nutshell (Peter Byrne; Sara Bronin; Ryan Rowberry)

8:25 a.m.—Welcome

Peter Byrne, Professor, Georgetown University Law Center

Paul Edmondson, General Counsel, National Trust for Historic Preservation

8:30 a.m.—Leveraging Historic Preservation in Real Estate Development

Tax Credits

• Economic Benefits of the National Historic Rehabilitation Tax Credit
• Recent IRS Guidance

New Tools

• Form-Based Codes as Historic Preservation Tool
• Using GIS as a Data Visualization Tool for Preservation Law
• Adaptive Reuse, Tax Credits, and Special Use Districts: Success Stories from Baltimore

Sara C. Bronin, University of Connecticut School of Law

Merrill Hoopengardner, National Trust Community Investment Corporation

Reina Murray, GIS Project Manager, National Trust for Historic Preservation

Ernst Valery, President, Ernst Valery Investment Corp.

10:00 a.m.—Preservation on the Federal Level

• National Trends
• ACHP Engagement Section 106 Litigation
• Advocacy Update
• Legislative Update

Will Cook, Associate General Counsel, National Trust for Historic Preservation

Javier Marques, General Counsel, Advisory Council on Historic Preservation

Betsy Merritt, Deputy General Counsel, National Trust for Historic Preservation

Hilary Tompkins, Hogan Lovells

11:00 a.m.—Break

11:15 a.m.—Preserving America’s Cities

• Historic Districts and Urban Economics
• Lessons from Foreign Cities
• Amendments to local preservation ordinance
• Damages award for illegal demolition of historic buildings

            Moderator:

David Lewis, Goulston & Storrs

Panelists:       

Chris Bowers, Miklos Law PLLC

Caroline Cheong, University of Central Florida

Omar Izfar, Former Houston City Attorney

Mark Silberman, Counsel, NYC Landmarks Preservation Commission

12: 15 p.m.—Lunch  

• The Baltimore Food Hub: Using Historic Preservation Tax Incentives to Support the Food Innovation Economy

China Boak Terrell, American Communities Trust

1:15 p.m.—National Monuments and Traditional Cultural Properties

• Antiquities Act, Bears Ears, Dakota Access Pipeline
• Using State and Federal Law to Protect Native Hawaiian Burials

Matt Adams, Dentons, LLP

Brian Turner, Public Lands Attorney, National Trust for Historic Preservation

Heidi McIntosh, Managing Attorney, Rocky Mountain Office, Earthjustice

Joel West Williams, Native American Rights Fund

2:15 p.m.—International Cultural Heritage

• International Criminal Court Prosecutions and Cultural Heritage
• Strategies in Preventing Illegal Looting

Leila Amineddoleh, Amineddoleh & Associates and Fordham University School of Law

Tess Davis, Antiquities Coalition and the University of Glasgow

Tom Kline, Cultural Heritage Partners, PLLC

3:15 p.m.—Break

3:30 p.m.—Managing Climate Change

• Climate Change Adaptation and Historic Resources
• How the National Park Service is Planning for Climate Change
• Threats to World Heritage Sites: Climate Change & the Paris Agreement and Road to the Conference of the Parties 22
• Confronting Sea Level Rise: Hazard Mitigation Planning & Implementation

Peter Byrne, Faculty Director, Georgetown Climate Center

Lisa Craig, Chief of Historic Preservation, City of Annapolis

Marcia Rockman, NPS Climate Change Planner

Jess Phelps, United States Department of Agriculture, Office of General Counsel, Natural Resource & Environment Division

Andrew Potts, Nixon Peabody, Former Executive Director, US/ICOMOS

4:45 p.m.—Conclusion

• Challenges and Opportunities for Historic Preservation

Tom Mayes, National Trust for Historic Preservation

5:15 p.m.—Reception

 

Download NTHP Georgetown Law Conference 2017

About the organizers:

Preservation Leadership Forum

The Preservation Leadership Forum of the National Trust for Historic Preservation is a network of preservation professionals. Forum is the single place where preservation leaders— professionals, students, volunteers, activists, experts—can keep up with what is happening in the preservation world, as well as share and network with one another. Member benefits include exclusive access or deep discounts on high-quality publications, regular communication pieces, conferences and trainings, events for networking or educational purposes, and grant opportunities for organizations. The Preservation Leadership Training (PLT) training series provides cutting-edge information and training for preservation leaders, covering topics such as law, real estate, technology and advocacy. Visit Forum.SavingPlaces.org for more information.

About Georgetown Law

Georgetown University Law Center is one of the world´s premier law schools. It is pre-eminent in several areas, including constitutional, international, tax and clinical law, and the faculty is among the largest in the nation. Drawing on its Jesuit heritage, it has a strong tradition of public service and is dedicated to the principle that law is but a means, justice is the end. Visit www.law.georgetown.edu for more information.

Georgetown Law CLE

Georgetown University Law Center Continuing Legal Education provides high-quality continuing legal education programs and materials to meet the ever-changing educational needs of the legal profession. Our speakers consist of experienced legal professionals who share in our commitment to deliver highly relevant, timely, and practical information. Our programs address the specific interests of practicing attorneys and help to develop their critical competencies, while also meeting the mandatory CLE requirements of state bars associations. Visit www.law.georgetown.edu/continuing-legal-education for more information.

"Act Locally, Reflect Globally" report from Sabin Center offers checklist for local govs on climate change

Susan Biniaz, former lead climate lawyer for the Department of State and now an adjunct at Columbia and Yale, has published ACT LOCALLY, REFLECT GLOBALLY: A CHECKLIST OF OPTIONS FOR U.S. CITIES AND STATES TO ENGAGE INTERNATIONALLY IN CLIMATE ACTION, in cooperation with the Sabin Center at Columbia.  It's a good list for cities looking for engagement.

Hillside homes, slip-slidin' away

The foothills around Boise are teeming with newly built mansions, and there seems to be an insatiable market for them.  The problem is:  while Boise has a foothills planning ordinance, it is riddled with loopholes and the city has been under significant pressure to streamline (read:  neuter) its development process.  It has essentially made the process a sham, which is why I left the planning and zoning commission here.

And since Idaho is a state without meaningful environmental review standards, that means that much of the development in the city goes on with no real oversight.

What could possibly go wrong?!  

Well, a lot, actually.  A project of mansions was approved in the middle of a well-known landslide area and, whattya know, the land slid.  Below is a vivid video of what can happen when cities fail to properly take into account environmental factors in their planning processes.

More about the story, and ensuing litigation (which would make for a nice teaching exercise, by the way) here.  Further, the city is now telling the homeowners that they must tear down these homes, at the owners' expense.    

 

 

OECD publishes major report on land use planning in member countries

Earlier this month, OECD published The Governance of Land Use:  Policy Analysis and Recommendations, which can be viewed freely on its website (and embedded below) or purchased here.  The document is a remarkable synthesis of international land use law and policy across many of the developed-world countries.  (Disclosure:  I served as a background expert on the report, but did not write any of it.)

A summary policy brief is also available here.

 

 

 

Somin et al.: Eminent Domain: A Comparative Perspective

 

Ilya Somin, Iljoong Kim, and Hojun Lee have published Eminent Domain:  A Comparative Perspective,  Here is the abstract:

The taking of private property for development projects has caused controversy in many nations, where it has often been used to benefit powerful interests at the expense of the general public. This edited collection is the first to use a common framework to analyze the law and economics of eminent domain around the world. The authors show that seemingly disparate nations face a common set of problems in seeking to regulate the condemnation of private property by the state. They include the tendency to forcibly displace the poor and politically weak for the benefit of those with greater influence, disputes over compensation, and resort to condemnation in cases where it destroys more economic value than it creates. With contributions from leading scholars in the fields of property law and economics, the book offers a comparative perspective and considers a wide range of possible solutions to these problems.

Here are screenshots of the table of contents:

 

 

Just published! 9th edition of Nolon, Salkin, Miller & Rosenbloom's Land Use & Sustainable Development Law now available

I am very pleased to announce the publication this week of the 9th edition of West's Land Use and Sustainable Development Law, a casebook that I was lucky enough to join this year along with John Nolon, Patricia Salkin, and Jonathan Rosenbloom.  This new edition continues to provide the basics of land use law; at the same time, the book also re-envisions content in light of the significant changes in practice that future land use lawyers must be prepared to navigate.

It was really a treat to work with this group in thinking through how to revise this edition.  As we worked through the material over the last year or so, we had a number of conversations about our respective approaches to teaching land use law that we plan to bring to the blog--and hopefully start a dialogue on--in the months to come.  

In the meantime, if you are teaching land use law in the fall, we hope you'll give this casebook consideration, and feel free to reach out to any of us personally if you'd like to discuss what it would mean to adopt the book and how it might work for your teaching style.

 

 

 

C.P. Cavafy's "The City"

Maybe you need a city-themed poem today.

 

"The City" | C. P. Cavafy

You said: “I’ll go to another country, go to another shore,
find another city better than this one.
Whatever I try to do is fated to turn out wrong
and my heart lies buried as though it were something dead.
How long can I let my mind moulder in this place?
Wherever I turn, wherever I happen to look,
I see the black ruins of my life, here,
where I’ve spent so many years, wasted them, destroyed them totally.”
 
You won’t find a new country, won’t find another shore.
This city will always pursue you. You will walk
the same streets, grow old in the same neighborhoods,
will turn gray in these same houses.
You will always end up in this city. Don’t hope for things elsewhere:
there is no ship for you, there is no road.
As you’ve wasted your life here, in this small corner,
you’ve destroyed it everywhere else in the world.

 

Hat tip: Anya Bernstein

Tim Iglesias: Two Competing Concepts of Residential Integration

Tim Iglesias (USF Law) has just published "Two Competing Concepts of Residential Integration" in Social Equity in a Time of Change: A Critical 21st Century Social Movement, edited by Richard Greggory Johnson III.  The abstract is available at SSRN and reproduced below:   

This book chapter identifies two popular--but competing--concepts of residential integration, demonstrates their distinct practical consequences, and calls for a frank conversation among social equity activists regarding which concept do we want to pursue. 

One concept, dubbed the “traditional integration model,” concerns the nature or quality of a community. It focuses on the complexion of a community as a geographical unit and the social relationships among members of different income groups or racial groups within it. This concept asks: Who lives there and how do they relate to each other? 
The second concept, “the individual access to the opportunity structure model,” focuses on how the physical location of a household relates to the opportunity structure of a community (e.g. good schools, good jobs, decent shopping, healthy neighborhoods). The primary focus of this model is maximizing the access of new residents to opportunities so that they can improve their lives. It does not inquire into the relationships among the members of the households who live in a community, but rather on the economic and social success of the individuals and families.

Perspectives on Abandoned Houses in a Time of Dystopia: Part 3: A Series by Kermit Lind

[This is the third in a series of essays by Kermit Lind, Clinical Professor of Law Emeritus, Cleveland-Marshall College of Law, Cleveland State University.]

Various observers see different things when they look at houses and buildings abandoned during the mortgage crisis. From different, sometimes competing, points of view, communities need a sustained collaboration of perspectives—local public officials from different departments and agencies, civic and public interest groups, community advocates--using all relevant data and strategic solutions to deal with new threats to residential neighborhoods. This blog post continues an on-going look at a few examples of what different people see in blighted dwellings.

The first blog post in this series is available here.  The second blog post is available here.

Modernization of obsolete code compliance policies and procedures is a critical need for dealing with the surge of abandoned housing. Financially able owners and parties legally responsible for housing conditions should not be able to escape their legal obligation to maintain the condition of their real property and to comply with court orders requiring compliance after conviction or judgment. Creditors with the legal means to control and maintain their collateral should ensure that the collateral’s condition does not destroy the value of neighboring houses or other lenders’ collateral.

Enforcement officers need to act strategically to obtain maximum compliance with the limited resources available. Focusing on repeat offenders with the highest volume of violations will lead to more benefit for neighborhoods than random or complaint-driven enforcement.

Effective role models are available—most notably, with a sustained collaboration between civic groups and public managers at the local community level, a coalition of the willing and determined.  A familiar model is the Vacant Abandoned Property Action Council in Cleveland, Ohio, started in 2005. Recently, a property blight abatement movement in Memphis TN was launched in 2016 with a Blight Elimination Charter fashioned by a coalition of city, county and community leaders.  The Charter coalition is now directing a strategic campaign to abate and prevent housing and neighborhood blight.  Public policy and law is being upgraded at both the local and state levels, a new regional land bank was started, a real property parcel-based “data hub” is being developed for both government and nonprofit use, and perhaps most important of all, the community is rallying to support the campaign.  The results are stimulating more private investment and focusing critical public resources on property blight recovery with nuisance abatement and neighborhood renewal. 

In these and other examples, senior and managerial staff of public safety, municipal law enforcement, community development and civic agencies joining to lead the reform needed to cope with local neighborhood housing disasters. When a determined coalition of policy and program managers communicate regularly across organizational boundaries and bureaucratic silos, they can avoid unintended conflicts with each other, coordinate policy advocacy, partner in program planning, and work strategically toward common objectives.

Sustainable neighborhood community development ultimately requires the coordinated engagement of well-organized and civically informed community residents collaborating with their local government agencies.  Good codes and government code enforcement for houses and neighborhoods are critical; but neighborhood sustainability also requires social justice, inclusion of diversity, neighborliness, and a commitment to the common good of the neighborhood now as well as for its future.  Yes, neighborhood sustainability ultimately depends upon codes of moral social conduct that require deference to the shared values of a community of property owners and residents.  It is only by standing together that neighbors and communities can withstand the dystopia that now threatens aging neighborhoods.

This is a revised and shorter version of the paper published in Probate & Property, Vol. 29, No. 2, (March/April 2015) (American Bar Association): pp. 1-9, and available here.

Perspectives on Abandoned Houses in a Time of Dystopia: Part 2: A Series by Kermit Lind

[This is the second in a series of essays by Kermit Lind, Clinical Professor of Law Emeritus, Cleveland-Marshall College of Law, Cleveland State University.]

Various observers see different things when they look at houses and buildings abandoned during the mortgage crisis.  From different, sometimes competing, points of view, communities need a sustained collaboration of perspectives—local public officials from different departments and agencies, civic and public interest groups, community advocates--using all relevant data and strategic solutions to deal with new threats to residential neighborhoods.  This blog post continues an on-going look at a few examples of what different people see in blighted dwellings.

The first blog post in this series is available here.

Conflicting perspectives must be reconciled. Home owners, lenders, investors, speculators, creditors, debt collectors, neighbors, community advocates, local officials, state officials, federal officials, and public agencies are pursuing different, and often conflicting, objectives in relation to real property abandonment. Governments at various levels have different agendas, as do courts, prosecutors, and policing agencies, even those within the same jurisdiction.

Government-sponsored enterprises, global financial institutions, real estate investment trusts, and their servicing agents also do not share the same vision. Each businesss’s individual interests compete for profit with procedures that undermine the success of the business plans of the others.

The risks resulting from the asymmetrical battle between the perspectives of housing consumers and those of global financial, investment, and real estate businesses makes home ownership less possible and less attractive for young families than at any time during the last century.

Responsible maintenance of dwelling places is the legal and equitable obligation of those who own or control housing. It is also essential to the long-term viability of a housing finance industry that both consumers and investors can trust. Those harmed when property maintenance responsibilities are abandoned include the creditors and investors in neighboring dwellings whose paying debtors may default on their mortgage loans and maintenance when their home’s value plummets. Maintenance issues are omnipresent in the scenario of the concentration and spread of subprime loans, rapid defaults, rising foreclosures, low-value sheriff sales, and the dumping of bank “real estate owned” properties to speculators. Maintenance is abandoned early in the sequence, and the possession of dwellings is subsequently abandoned. The breakdown of maintenance begins a decline toward blight from which recovery is costlier than the value of the property.

Better housing and neighborhood environmental code compliance is essential for stopping rampant abandonment and dystopia. Unfortunately, the code compliance apparatus as currently constituted in most communities is not capable of dealing with abandoned, worthless housing. The various local government compliance and enforcement agencies exercising police power in cities operate in separate silos and often at cross-purposes.  Laws and law enforcement policies are obsolete in the context of new fangled housing marketing and financing.

Code compliance is also thwarted when each agency pursues its limited mission without regard to the residents who depend on effective law enforcement for a healthy, safe, and secure residency. There is insufficient coordination in public safety operations to constitute a reliable system able to ensure compliance with neighborhood housing, health, and safety laws, especially compliance by absentee owners and controlling lien holders.

The article will continue next week with Part 3 in this 3 part series.

This is a revised and shorter version of the paper published in Probate & Property, Vol. 29, No. 2, (March/April 2015) (American Bar Association): pp. 1-9, and available here.

Perspectives on Abandoned Houses in a Time of Dystopia: Part 1: A Series by Kermit Lind

[This is the first in a series of essays by Kermit Lind, Clinical Professor of Law Emeritus, Cleveland-Marshall College of Law, Cleveland State University.]

Various observers see different things when they look at houses and buildings abandoned during the mortgage crisis.  From different, sometimes competing, points of view, communities need a sustained collaboration of perspectives—local public officials from different departments and agencies, civic and public interest groups, community advocates--using all relevant data and strategic solutions to deal with new threats to residential neighborhoods.  Let’s look at a few examples of what different people see in blighted dwellings.

Home owners who abandon their homes are often financially broke, desperate, hounded by debt collectors, often naive or misinformed, and unable or unwilling to continue the responsibilities of home ownership. Worse yet, many cannot voluntarily divest their ownership by sale or donation because the title is encumbered with liens exceeding the current market value. Although creditors may get no financial benefit from asserting their rights, they can still hold empty houses hostage in the debtor’s name, speculating on an improbable solution; or they can sell the debt secured by a lien on the house at a discount.  But for home owners in distress, there is extreme stress and uncertainty seeing their home being lost.

Absentee owners and commercial housing investors, on the other hand, see their vacant houses as either productive or nonproductive commodities, if they look at them at all. Their interest is in profitable transactions. Paying for upkeep and property taxes on their investment is justified only by expectations of profit. Unprofitable and unmarketable houses are a liability and treated as waste. Corporate and trustee owners, along with their servicers, find little risk in ignoring their legal responsibilities for maintenance of residential properties owned or controlled by their lien rights. They may ignore local housing and environmental laws and law enforcement as part of their property investment plan.

Judges, sheriffs, bankruptcy trustees, and other officials who preside over legal transactions related to involuntary deed transfers, taxation, liens, and record registration see only documents that track transactions and claims affecting the legal title. Nothing damages ordinary houses more than foreclosures. This institutional fragmentation and myopia enables owners and creditors alike to neglect property maintenance with impunity and defer the resulting costs to hypothetical future owners.

Buyers, rehabbers, and speculators see an income prospect in abandoned houses. Blighted houses for sale “as is” are viewed as money-makers by various types of buyers.  Some are doing good work benefiting the community.  There are some, however, who ignore their legal maintenance responsibilities. Flipping defective houses for fast profit has become an industry propelled by textbooks, lectures, and get-rich-quick TV infomercials. These houses are sold to people who shop deals on the Internet and “invest” without a single glance at the actual property or the neighborhood. These buyers and sellers see dreams of potential easy profit.

Taxpayers and neighboring owners, ultimately, are forced to subsidize the home owners and businesses that abandon their legal obligation to keep their properties from harming other people and other’s property. The harm to health and safety impacts neighbors of empty abandoned dwellings—long-term harm without compensation. To get a sense of the public costs, consider that in October 2014, the city of Cleveland, Ohio, reported it had 12,000 abandoned buildings, 6,000 of them already condemned and waiting demolition. It anticipated needing $120 million to demolish its current inventory of abandoned houses in a city of fewer than 400,000 people. Its inner-ring suburbs also have a rising inventory of abandoned houses to dispose of. To pay for this problem, the county issued a $50 million bond for demolition.

The article will continue next week with Part 2 in this 3 part series.  

This is a revised and shorter version of the paper published in Probate & Property, Vol. 29, No. 2, (March/April 2015) (American Bar Association): pp. 1-9, and available here.