Land Use Prof Blog

Brinig & Garnett on Accessory Dwelling Unit Reforms and Local Parochialism

Margaret F. Brinig (Notre Dame) and Nicole Stelle Garnett (Notre Dame) have posted A Room of One's Own? Accessory Dwelling Unit Reforms and Local Parochialism, forthcoming in The Urban Lawyer (2013).  The abstract:

Over the past decade, a number of state and local governments have amended land use regulations to permit the accessory dwelling units (“ADUs”) on single-family lots. Measured by raw numbers of reforms, the campaign to secure legal reforms permitting ADUs appears to be a tremendous success. The question remains, however, whether these reforms overcome the well-documented land-use parochialism that has, for decades, represented a primary obstacle to increasing the supply of affordable housing. In order to understand more about their actual effects, this Article examines ADU reforms in a context which ought to predict a minimal level of local parochialism. In 2002, California enacted state-wide legislation mandating that local governments either amend their zoning laws to permit ADUs in single-family zones or accept the imposition of a state-dictated regulatory regime. We carefully examined the zoning law of all California cities with populations over 50,000 people (150 total cities) to determine how local governments actually implemented ADU reforms “on the ground” after the state legislation was enacted. Our analysis suggests that the seeming success story masks hidden local regulatory barriers. Local governments have responded to local political pressures by delaying the enactment of ADU legislation (and, in a few cases, simply refusing to do so despite the state mandate), imposing burdensome procedural requirements that are contrary to the spirit, if not the letter, of the state-law requirement that ADUs be permitted “as of right,” requiring multiple off-street parking spaces, and imposing substantive and procedural design requirements. Taken together, these details likely dramatically suppress the value of ADUs as a means of increasing affordable housing.

This looks really interesting.  Here in Houston we have a significant number of ADUs--so-called "granny flats" because--stop me if you've heard this before--Houston has no zoning to make it illegal, as this article shows it has been in single-family residentail neighborhoods around the country.  These ADUs provide an important supply of affordable "inside-the-Loop" (i.e. central city area) housing. 

Matt Festa

How to Manage Smart Decline: Should We Demolish Vacant Buildings?

 

I stumbled across a recent artcle in Applied Geography that I think may be of interest to our readers. I got even more excited when I realized the piece was from colleagues in SUNY Buffalo's Geography Department. Amy Frazier, Sharmistha Bagchi-Sen, and Jason Knight examine the effect of demolition on land-use patterns and changes in human-environment interactions.

While many cities are worried about smart growth and we land use profs spend a lot of time thinking about it, shrinking cities like Buffalo face another challenge: smart decline. The authors (and others) have convinced me that maintaining pro-growth policies in a shrinking city is ill-advised. Instead of thinking we're going to suddenly grow Buffalo, let's think about how we can grow smaller gracefully. Smart decline policies include things like land banks, urban farming, and green infrastructures.

Frazier et al. look at the smart decline policy of demolition. Earlier studies (as well as conventional wisdom) suggest that vacant buildings attract criminal activities (the broken window effect). This study examined a five-year demolition program in Buffalo to assess whether demolitions of vacant buildings actually lead to reduced crime. Their results are fascinating and like all of the best projects point out areas where more research is needed. The big take aways seem to be that there may be some local reductions in crime, but that likely means that the criminal activity is pushed elsewhere. This can have unanticipated impacts on surrounding areas, transportation needs, housing values etc. Such policies need to examine the way that demolitions will shift land uses and impact human-environment interactions. To do so in a successful way will necessarily include regional approaches.

Amy E. Frazier, Sharmistha Bagchi-Sen, & Jason Knight, The Spatio-temporal Impacts of Demolition Land Use Policy and Crime in a Shrinking City 41 Applied Geography 55 (2013)

ABSTRACT: Land use change, in the form of urbanization, is one of the most significant forms of global change, and most cities are experiencing a rapid increase in population and infrastructure growth. However, a subset of cities is experiencing a decline in population, which often manifests in the abandonment of residential structures. These vacant and abandoned structures pose a land use challenge to urban planners, and a key question has been how to manage these properties. Often times land use management of these structures takes the form of demolition, but the elimination of infrastructures and can have unknown and sometimes unintended effects on the human-environment interactions in urban areas. This paper examines the association between demolitions and crime, a human-environment interaction that is fostered by vacant and abandoned properties, through a comparative statistical analysis. A cluster analysis is performed to identify high and low hot spots of demolition and crime activity, specifically assault, drug arrests, and prostitution, over a 5-year period. Results show that there is an association between the area targeted for significant demolition activity and the migration of spatial patterns of certain crimes. The direction of crime movement toward the edges of the city limits and in the direction of the first ring suburbs highlights the importance of regional planning when implementing land use policies for smart decline in shrinking cities.

Jessie Owley

Happy Dyngus Day 2013

Happy Dyngus Day!  As everyone surely knows, the Monday after Easter is celbrated as Dyngus Day in Poland and in some U.S. cities with Polish-American cultural history.  At the Land Use Prof Blog we like to feature holdiays that have historical and cultural roots that also involve local politics, community events and neighborhood effects--and therefore, land-use tie-ins.  So here's a link to last year's post on Dyngus Day and land use.  

So today's the day to get a pussywillow branch to chase around that special someone--no April Foolin', even if CNN's Anderson Cooper thinks it's funny and stupid. If I lived in Buffalo or South Bend (e.g.), I'd drop everything today and get down to the Dyngus Day celebrations!

Matt Festa

Widener on Citizen 'Visioning' in Town Comprehensive Planning

Michael N. Widener (Phoenix) has posted Moderating Citizen 'Visioning' in Town Comprehensive Planning: Deliberative Dialog Processes, forthcoming in the Wayne Law Review.  The abstract:

This article describes opportunities in Comprehensive Plan (aka General Plan or Master Plan) initial adoption or subsequent amendment processes where stakeholders provide inputs on behalf of a diverse citizens community. The moderation process described here involves the City of Scottsdale, Arizona, currently engaged in developing its 2014 Plan which seeks to extend the city’s planning vision through 2045. Part II of this article provides a brief primer of a General Plan’s role in municipal police power exercise. Parts III and IV describe the history of the Scottsdale experience in amending its General Plan with citizen aid and rebellion. Part V delivers some observations about a citizen input method into planning matters that is subject to popular critique. Part VI summarizes the purpose of citizen inputs into a comprehensive plan, and how professional moderation of the stakeholders' inputs may appropriately channel public contributions to a municipality's land use vision without distortion or corruption of the process.

Matt Festa

Furman Center report on Housing & Superstorm Sandy

The NYU Furman Center has issued a timely report called Sandy's Effects on Housing in New York City.  From the announcement by Vicki Been and Ingrid Gould Ellen:

We are pleased to share with you our latest fact brief: Sandy's Effects on Housing in New York City (PDF) Our report is the first independent, comprehensive analysis of the Superstorm's impact on housing in New York City.

 

The study revealed some surprising insights into the impacts of the Superstorm Sandy. It found that low-income renters were disproportionately impacted by the storm's surge; over half of the victims were renters, 61 percent of whom make less than $60,000 per year, instead of middle-class homeowners. It also exposed the age of the housing stock affected by the surge; 82% of the properties hit by Sandy were built before 1980, before the latest flood maps and building standards were established.

 

The report also summarizes newly available information about the characteristics of properties in the area in New York City flooded by Sandy's storm surge, as well as demographic characteristics of households that have registered to receive assistance from FEMA. The study was released in partnership with Enterprise Community Partners, who provided a similar analysis on Long Island and New Jersey.

 

The press release (PDF) and report (PDF) are now available online.

 

Lots of interesting maps and data in this report, which should be of interest to anyone researching law, land, housing, and disaster planning

 

Matt Festa

Nolon on Shifting Paradigms in Environmental and Land Use Law and Sustainable Development

John R. Nolon (Pace) has posted Shifting Paradigms Transform Environmental and Land Use Law: The Emergence of the Law of Sustainable Development, forthcoming in the Pace Environmental Law Review (2013).  The abstract:

We began these two decades reacting to the market’s interest in developing greenfields and coastal property and end it wondering how to prepare more urbanized places for a growing population of smaller households who seek the amenities of urban living and some protection from the storms ahead. This essay discusses this and nine other fundamental paradigm shifts in environmental and economic conditions that are reshaping the law and changing the way state and local governments control land use and order human settlements.

Prof. Nolon has spearheaded the scholarly movement toward framing land use as an area of law that incorporates local government mechanisms and the imperatives of environmental regulation, which he has led into a broader conception of sustainability. This essay provides a great overview of how our communities depend on land use law.

Matt Festa

Plummer on The Effects of Property Tax Protests on Assessment Uniformity of Residential Properties

Elizabeth Plummer (Texas Christian) has posted The Effects of Property Tax Protests on the Assessment Uniformity of Residential Properties, forthcoming in Real Estate Economics.  The abstract:

This study examines whether the appeals process improves assessment uniformity for residential properties. The sample includes all single family residential properties in Harris County, Texas, for 2006-2008. I use a hedonic pricing model and Heckman’s two stage approach to explain the assessed values of all properties before and after the appeals adjustments. Full sample results suggest that the appeals process increased assessment uniformity and that the value adjustments were appropriate in amount. I also present results across properties of different values (low, medium, high). The first stage probit model provides evidence on the factors that affect the likelihood that an owner will protest.

I'm personally excited to see this study of real estate value effects in my own backyard, here in The Unzoned City.  

Matt Festa

Missouri Law Conference on Promoting Sustainable Energy through Tax Policy

The University of Missouri School of Law is hosting a Symposium on February 22, 2013, called Promoting Sustainable Energy through Tax Policy.  Sponsored by the Journal of Environmental and Sustainability Law and the Missouri Tax Law Society, the event will be introduced by Mizzou profs Michelle Arnopol Cecil and our own guest blogger Troy Rule, and features panels with Alexandra Klass (Minnesota), Steve Gaw (The Wind Coalition), Felix Mormann (Miami), Roberta Mann (Oregon), Robert Peroni (Texas), with a keynote by David Weisbach (Chicago).  Here's the info and link:

Renewable energy and sustainable development are valuable means of combatting climate change and of reducing the nation’s reliance on foreign energy sources. Recognizing the importance of sustainable energy, state and federal policymakers have employed aggressive tax incentive programs to stimulate unprecedented growth in wind energy, solar energy, biomass, green building, and related industries in recent years. Unfortunately, shortfalls in many state budgets and growing concerns about the national debt are now creating pressure for governments to extinguish these tax programs — a move that could bring progress in the nation’s fledgling sustainable energy sector to a grinding halt.

This year’s Journal of Environmental and Sustainability Law symposium is being sponsored jointly with the University of Missouri Tax Law Society. The symposium explores questions about the long-term role of tax policy as a tool for promoting renewable energy and sustainability in the United States.

Cost and Registration

The symposium is free and open to the public.
Registration is suggested by Friday, February 15.

To register, please contact:
Journal of Environmental and Sustainability Law
University of Missouri School of Law
12E Hulston Hall
Columbia, MO 65211
[email protected]

More Information on 2013 JESL Symposium

Matt Festa

Conservation Land = Tax Exempt?

When it comes to conservation easements, there are a lot of tax issues that arise. Yesterday, I referred to charitable tax deductions associated with donated conservation easements. Many conservation easements also result in reduced property taxes for landowners. This varies by state law and only occurs where the conservation easement reduces the property value. Generally, however, lands encumbered with conservation easements are still taxed. In fact, the fact that the land stays on the tax rolls has been touted as a benefit of conservation easements (when compared to government acquisition of the land). That is, tax revenue generated by the land may be reduced, but the landowner is still contributing to local services. A new case from a New Mexico Appeals Court holds that for some conserved property, no property taxes will be owed.

The court held that property owned by a conservation organization, subject to a conservation easement prohibiting all construction, for the purpose of open space conservation constitutes a “charitable use” that is exempt from property taxes under the New Mexico Constitution. The state Constitution provides that “all property used for educational or charitable purposes [among various other uses]… shall be exempt from taxation.”

The local government argued that it conservation should not be considered a charitable “use” because the “land that is idle, unimproved and not in actual use” and there “is no direct and immediate charitable use, and for which the claimed environmental benefit—even if construed to be a charitable purpose—is, at best, remote and consequential.” The court disagreed, explaining that “conservation benefits the public … through maintaining the Property for the public’s benefit in its natural, pristine state without any particular human activities or construction.” The court emphasized that not all conserved parcels would meet the charitable use criteria and a case-by-case analysis will be necessary. This will likely be a hard standard to meet for most conservation easements and it is not clear how important the identity of the underlying landowner was.

Jessica Owley

Land Use in "Promised Land"

Living in Pennsylvania (as I now do) I feel compelled to see the new Matt Damon movie "Promised Land," which opened in local theaters yesterday.  The movie is about fracking, and the trailers look very intriguing.  (I saw the trailer while seeing Tom Cruise's new movie "Jack Reacher" which, while most notable for multiple visceral fight sceens and car chases, also has a land use angle - SPOILER ALERT the villians are developers trying to get an advantage in a development project in downtown Pittsburgh.)

Today I was searching for a review of Promised Land and I stumbled across this article on NPR.org, which had an interesting critique of a scene where local citizens vote on whether fracking would happen in their town.

The film remains in the realm of fiction as the town debates an upcoming vote on whether drilling and fracking should be allowed. In the real world, there's almost never a vote.

"In Pennsylvania, where this film was made, municipalities have very little authority over what happens," says Kate Sinding, senior attorney and deputy director of the Natural Resources Defense Council. "They certainly don't get an up-and-down vote."

Still, I think this movie is a "don't miss" for land use afficianados, and I plan to see it soon.

Jamie Baker Roskie

Sale of Frank Lloyd Wright House Assures Preservation

Here's a story out of Arizona, where apparently a historic Frank Lloyd Wright house was under dispute.   From the New York Times story by Fernanda Santos and Michael Kimmelman:

The conservancy and other organizations petitioned the city in June to consider giving the house landmark status, after they learned of the former owners’ plans to split the lot to build the new homes. Three local government bodies approved the landmark designation, but the Council, which has the final say, postponed its vote twice, in part to give the parties more time to strike some type of compromise. There was also uncertainty over how some of its members would vote, given the homeowners’ lack of consent for the landmark process.

“If ever there was a case to balance private property rights versus the public good, to save something historically important to the cultural legacy of the city, this was it,” Larry Woodin, the president of the conservancy, said in an interview. 

Seems like a good result here, while communities across the nation continue to struggle with how to strike that balance.

Matt Festa

Tyson on Localism, Annexation, and New Regionalism

Christopher J. Tyson (LSU) has posted Localism and Involuntary Annexation: Reconsidering
Approaches to New Regionalism, published in the Tulane Law Review, Vol. 87 (2012).  The abstract:

"Involuntary" annexation - the ability of cities to expand their territory unilaterally by extending their boundaries - is one of the most controversial devices in land use law. It is under attack in virtually every state where it exists. Involuntary annexation is a direct threat to "localism," the belief in small,
autonomous units of government as the optimum forum for expressing democratic freedom, fostering community, and organizing local government. Localism has been justifiably faulted with spurring metropolitan fragmentation and the attendant challenges it creates for regional governance. This critique is at the center of "New Regionalism," a movement of scholars and policy makers focused on promoting regional governance structures that respect the cultural draw of localism while correcting for its deficiencies. New Regionalism emphasizes bottom-up, voluntary governance structures and dismisses approaches like involuntary annexation as politically infeasible. Both types of approaches face considerable political challenges, but there are arguably more examples of well-functioning involuntary annexation regimes than there are successful models of New Regionalism. While involuntary annexation has been critical to the success of metropolitan regions in Texas and North Carolina, many regard it as a violation of the liberty and freedom that comes with property rights. Property rights are rooted in instinctive and culturally reinforced notions of personal identity and the inviolability of ownership. Localism extends this logic to municipal identity. The hostility toward involuntary annexation, therefore, can be understood as a response to the taking of a person's perceived right to express individual identity, group identity, status, and ownership through municipal identity. This notion of municipal identity as property threatens to undermine both existing involuntary annexation regimes as well as future New Regionalist proposals. While New Regionalism has well-reasoned justifications for focusing on more-voluntary, bottom-up governance structures, involuntary annexation remains a potent tool for facilitating regional governance and is worthy of defense and preservation.

Matt Festa

The Quiet Revolution Symposium Issue--John Marshall Law Review

Last year we blogged about the then-upcoming Kratovil Conference on the 40th Anniversary of The Quiet Revolution in Land Use Control, the seminal 1971 book by Fred Bosselman and David Callies.  The conference was hosted by the Center for Real Estate Law and Practice at The John Marshall Law School in Chicago, and the Symposium Issue has just come out in the John Marshall Law Review.  The Conference blurb:

In 1971, the President's Council on Environmental Quality published The Quiet Revolution in Land Use Control. The book described in detail the innovative land use laws in nine states which returned the control of land use to a state or regional level, largely at the expense of local zoning.  This constituted the "quiet revolution."  The Kratovil Quiet Revolution Conference [brought] together national scholars and experts in land use to analyze the lasting impact of The Quiet Revolution in several jurisdictions around the country and examine the future of land use policy.

We've posted some of the individual articles as they came out on SSRN, but just last week I received the hard copy symposium issue in the mail.  As you can see from the program, this excellent issue includes a foreword by Celeste Hammond, center director, and pieces by leading land use experts Bosselman, Callies, Patricia Salkin, Daniel Mandelker, Edward J. Sullivan, Nancy Stroud, and John S. Banta. 

The whole issue is worth getting a hold of if you haven't already.  But wait, there's more!  Prof. Hammond notes in her cover letter that the entire conference is now available to watch on video!  Here's a link to the conference page with videos on the Center's website.  Check it out if you couldn't be there and are looking for a great excuse for end-of-semester procrastination!

Matt Festa

Election Day and Land Use: The Future of Houston Transit

It's Election Day, and we all know what's the most important thing on the ballot: local land use issues.  Through the initiative and referendum process, as well as in races for local government office, land use ballot issues often have an importance to our communities far beyond the relative amount of publicity they receive . . . especially in a presidential election year. 

In Houston, voters are going to the polls today to answer a number of local government ballot questions, including amendments to the City Charter, a number of bond issues for parks and schools, and perhaps most importantly, a referendum that is colloquially referred to as "METRO."

In the late 1970s, Houston joined about 15 other local government bodies (including the County, the school district, and a number of smaller suburban municipalities) to create the METRO transit authority.  METRO was responsible for regional buses and transit, and in the early 2000s it built the first Houston light rail line.  METRO has ambitious plans to expand the light rail into a regional transit system, but it has always been controversial.  METRO is supposed to be funded by a sales tax, but since its inception, the City has always diverted one-quarter of those revenues toward road improvements.  So the ballot question is whether we should *continue* diverting that portion of the transit tax for another decade.

We discussed it in land use class yesterday.  Here are some competing op-eds: METRO Board member Dwight Jefferson says that "Yes" on the METRO referendum will expand bus system, continue road building and reduce debt.  In opposition, Houston Tomorrow president David Crossley says More light rail for Houston? If you’re pro-transit, vote "No" on METRO ballot issue.  Mayor Annise Parker (D) and most politicians are in favor of the measure.  As you can see in Crossley's op-ed and at the opposition website http://supporthoustontransit.org/2012/, the smart growth/pro-transit crowd is passionately opposed.

So--depending on who you ask--the future of transit in the nation's fourth-largest city is on the line; or, its capability to deal with critical mobility issues. 

The unfortunate thing is that very few people even understand the ballot language, let alone the stakes.  Here is the language of the ballot question that is referred to as the "METRO ballot" issue:

THE CONTINUED DEDICATION OF UP TO 25% OF METRO'S SALES AND USE TAX REVENUES FOR STREET IMPROVEMENTS AND RELATED PROJECTS FOR THE PERIOD OCTOBER 1, 2014 THROUGH DECEMBER 31, 2025 AS AUTHORIZED BY LAW AND WITH NO INCREASE IN THE CURRENT RATE OF METRO'S SALES AND USE TAX.
□ FOR
□ AGAINST

Last year I wrote a screed complaining about ballot language for state constitutional referenda.  Ken Stahl penned a typically thoughtful response with a partial defense of the initiative process for land use issues (and of course he has the leading recent scholarly piece on Ballot Box Zoning).  But this METRO referendum language seems to me to be a perfect example of how screwy the process is.  Basically, if you are in favor of more transit generally and light rail expansion in particular, you are supposed to vote "NO" on the ballot referendum that everyone is referring to as "METRO."  If you want that tax revenue to contiue to be diverted away from transit and toward roads, then you are supposed to vote "Yes on METRO."

We discussed this in Land Use class yesterday and it confirmed to me how confusing this is.  My students are way above the average voter in land-use sophistication, but they still had a hard time figuring this out.  I suspect that most voters, motivated into the booth primarily by their choice for the presidential election, will only have the vaguest idea that if you are pro-transit you are supposed to vote "no" on "METRO."  That's counterintuitive, and I'm afraid that whatever the result is, it won't be a very good democratic indicator.  And that's just for the people who vote on it; the proposal is one of the last items on the ginormous sample ballot that I photographed above.  Many people will vote "straight party ticket" (that's an option in Texas) and walk out of the booth, without even seeing the referendum questions.

So we'll have to see how this land use question is resolved by the people, and, after that, what actually happens to the transit system and whether the political predicitons on either side come to fruition.  In the meantime, remember that while the national horse race gets all the attention, there are critically important land use issues being decided in communities across America tonight. 

Matt Festa

UPDATE: "METRO" passed by a large margin: 79-21.  The presidential vote in Houston was a statistical tie.  All of the other ballot referenda (mostly to approve debt for capital projects) passed as well.  I honestly have no idea whether the METRO vote represents anything at all with respect to public opinion on the future of transit.

Hirokawa & Rosenbloom on Land Use Planning in a Climate Change Context

Keith H. Hirokawa (Albany) and Jonathan D. Rosenbloom (Drake) have posted Land Use Planning in a Climate Change Context, forthcoming in RESEARCH HANDBOOK ON CLIMATE ADAPTATION LAW, Jonathan Verschuuren, ed., 2013.  The abstract:

Although local governance is an experiment in adaptation (and often lauded for being so), climate change is distinct from traditional challenges to local governance. Nonetheless, many local governments are directing agencies to utilize existing and traditional local government tools to adapt to climate change. Local governments, for example, are adopting regulatory rules that require consideration of potential climate impacts in public-sector decisions with the goal of improving local adaptive capacity. Throughout these efforts, it is becoming clear that one of the most effective adaptation tools used by local governments is the power to plan communities. Through land use planning, local governments can increase resiliency to major climate shifts and ensure that our communities are equipped with built-in mechanisms to face and mitigate such changes. This essay identifies some of the most innovative planning tools available to local governments that illustrate the potential to plan for community resiliency. The essay begins by identifying some of the severe impacts local governments will experience from climate change. This part recognizes that not all local governments will experience climate change impacts the same, and that climate change adaptation is contextual. Part II provides an overview and inventory of traditional local governance tools, paying particular attention to zoning and nuisance laws. Part III looks more closely at specific structural tools that form the basic foundation for a wide variety of land use planning adaptation approaches and goals. The final part expands on the structural tools and explores specific mechanisms that can help local governments achieve adaptation goals and avoid catastrophic unpreparedness through proper land use planning in the climate change arena.

This piece, by two productive scholars who are also friends of this blog (Jonathan served as a guest blogger as well), should serve as a terrific introduction to the intersection of land use and climate change.  The volume looks like good reading for students, scholars, and practitioners.

Matt Festa

ABA Professor's Corner on Eminent Domain for Mortgage Modifications

This month's installment of the ABA Section on Real Property's "Professor's Corner"--a free monthly teleconference featuring scholars' takes on important new property cases and issues--will feature a really hot topic, the proposal for municipal governments to take property by eminent domain to combat the mortgage/foreclosure crisis.  The info, via David Reiss (who also recently posted a related public comment):

 FREE Professors’ Corner teleconference, sponsored by the ABA Real Property, Trust and Estate Law Section and its Legal Education and Uniform Laws Group.

The program is Wednesday, October 10, at 12:30 pm EDT; 11:30 am CDT; 10:30 am MDT; 9:30 am PDT.

Call-in number: 866-646-6488
Participant Passcode: 5577419753

This month’s topic is Can/Should Municipalities Use Eminent Domain to Take Mortgages to Facilitate Mortgage Modifications? This conference call will be moderated by Professor James Geoffrey Durham, University of Dayton School of Law. Professor Steven J. Eagle, Professor of Law, George Mason University School of Law, is one of the nation’s leading scholars on eminent domain and regulatory takings. Professor Eagle will discuss whether it is possible for local governments to use eminent domain to acquire notes secured by mortgages in order to resell them to a private party which will then modify them, both under the 5th Amendment to the U.S. Constitution and also under state constitution taking clauses as they have been limited by amendments and statutes seeking to define what is a public use. Professor Robert C. Hockett, Professor of Law, Cornell Law School, is the scholar who in June proposed that municipalities could use eminent domain to acquire mortgages, in order to facilitate mortgage modifications to benefit underwater homeowners, in his article: It Takes a Village: Municipal Condemnation Proceedings and Public/Private Partnerships for Mortgage Loan Modification, Value Preservation, and Local Economic Recovery (download paper). Professor Hockett will discuss his proposal, which has received widespread attention. Professor Dale A. Whitman, James E. Campbell Missouri Endowed Professor Emeritus of Law, University of Missouri, Columbia, School of Law, is one of the premier experts on American property law and one of the nation’s foremost mortgage law scholars. Professor Whitman will discuss the impact that implementation of Professor Hockett’s proposal might have on the mortgage markets.

Check out the free telecast on this very interesting and current issue.

Matt Festa

Reiss on the Use of Eminent Domain to Restructure Mortgages

David J. Reiss (Brooklyn) has posted Comment on the Use of Eminent Domain to Restructure Performing Loans, which was submitted to the Federal Housing Finance Agency (No. 2012–N–11) (2012).  The abstract:

There has been a lot of fear-mongering by financial industry trade groups over the widespread use of eminent domain to restructure residential mortgages. While there may be legitimate business reasons to oppose its use, its inconsistency with Takings jurisprudence should not be one of them. To date, the federal government’s responses to the current crisis in the housing markets have been at cross purposes, half-hearted and self-defeating. So it is not surprising that local governments are attempting to fashion solutions to the problem with the tools at their disposal. Courts should, and likely will, give these democratically-implemented and constitutionally-sound solutions a wide berth as the ship of state tries to right itself after being swamped by a tidal wave of mortgage defaults.

A concise and thoughtful public comment on what is emerging as a hot, hot issue.

Matt Festa

Osofsky on Suburban Climate Change Efforts

Hari M. Osofsky (Minnesota) has posted Suburban Climate Change Efforts: Possibilities for Small and Nimble Cities Participating in State, Regional, National, and International Networks, forthcoming in the Cornell Journal of Law & Public Policy.  The abstract:

This Article provides a novel analysis of the capacity of suburbs to play a constructive role in addressing climate change. Small suburban cities represent the majority of metropolitan populations and emissions; encouraging their mitigation efforts, in addition to those of large center cities, is critical. In contrast to the conventional critique of suburbs as an undifferentiated group of sprawling emitters, the Article analyzes pathways for different types of small, nimble, suburban governments to learn from other localities and find cost-effective approaches to reducing emissions. It intertwines scholarship on (1) cities, suburbs, and climate change, (2) the complex demography of suburbs, (3) the role of climate change networks in transnational governance, and (4) more inclusive multi-level climate change governance to describe the limits of the current discourse on suburbs and climate change and to propose a new model for encouraging more suburban action. Using the Twin Cities metropolitan region as an initial case example, the Article considers what steps different types of leader suburbs are taking and how they are participating in voluntary multi-level climate change and sustainability networks. It argues that, especially in the absence of top-down mandates requiring cities to mitigate their emissions, these voluntary networks play an important role in fostering local action and connecting that action to international climate change treaties. It proposes that these networks could have a greater impact, however, through strategies that reflect the differences among types of suburban cities and foster more cross-network interaction.

Matt Festa

Ellickson on the Law and Economics of Street Layouts

Robert C. Ellickson (Yale) has posted The Law and Economics of Street Layouts: How a Grid Pattern Benefits a Downtown, forthcoming in the Alabama Law Review from its lecture series on boundaries.  The abstract:

People congregate in cities to improve their prospects for social and economic interactions. As Jane Jacobs recognized, the layout of streets in a city’s central business district can significantly affect individuals’ ability to obtain the agglomeration benefits that they seek. The costs and benefits of alternative street designs are capitalized into the value of abutting lots. A planner of a street layout, as a rule of thumb, should seek to maximize the market value of the private lots within the layout. By this criterion, the street grid characteristic of the downtowns of most U.S. cities is largely successful. Although a grid layout has aesthetic shortcomings, it helps those who frequent a downtown to orient themselves and move about. A grid also is conducive to the creation of rectangular lots, which are ideal for siting structures and minimizing disputes between abutting landowners. Major changes in street layouts, such as those accomplished by Baron Haussmann in Paris and Robert Moses in New York City, are unusual and typically occur in bursts. Surprisingly, the aftermath of a disaster that has destroyed much of a city is not a propitious occasion for the revamping of street locations.

Highly recommended, with lots of interesting planning-type details in addition to the larger importance to land use theories and approaches.

Matt Festa

Martinez on Cognitive Reconstruction of Local Government Authority

John Martinez (Utah) has posted From Pyramids to Stories: Cognitive Reconstruction of Local Government Authority.  The abstract:

This article describes a cognitive science approach to law, uses it to critically evaluate conventional "pyramid" legal analysis of local government authority, and suggests stories as alternative models for defining such authority. The article suggests that stories better reveal what is at stake in regard to local government authority and thus helps us to arrive at better solutions. The article illustrates the storytelling analytical approach in three situations: a local government's condemnation of private property for resale to a private developer, the delegation of land use control authority to neighborhood groups, and local government attempts to zone out nontraditional families.

The paper offers an alternative approach to classic local government questions about land use.  Interesting ideas to ponder while some of us are here at the Local Government Law Workshop in Milwaukee. 

Matt Festa