PropertyProf Blog

Infranca on Exclusionary Zoning

John Infranca (Suffolk) has posted Differentiating Exclusionary Tendencies (Florida Law Review) on SSRN. Here's the abstract:

Despite an academic consensus that easing land use regulations to increase the supply of housing can help lower housing prices, local opposition to new development remains prevalent. Onerous zoning regulations and resistance to new housing persist not only in wealthy suburbs, but also in lower-income urban neighborhoods. In addition to making housing more expensive, such policies increase residential segregation, exacerbate urban sprawl, and have detrimental environmental effects. If increasing supply tends to reduce costs, what explains this opposition, particularly during a period of rising housing costs?

One factor is concern about the localized costs of greater density and its effect on neighborhood character and livability. There is a perception that new development may, by changing the character and desirability of its immediate neighborhood, play some role in increasing housing prices and exacerbating gentrification and displacement in lower-income communities. Empirical evidence suggests this is not the case, but efforts to exclude new development and demands for greater local control over land use persist in lower-income urban neighborhoods. These tendencies mirror responses in wealthier communities.

This Article compares these exclusionary tendencies and asks whether there is a normative basis for differentiating them. It concludes that there is a modest case for distinct treatment, based on a combination of factors including the historical treatment of lower-income urban communities, the more fragile relationship between property and personhood in such neighborhoods, the structure of local government law, and the principle of subsidiarity. However, any preferential treatment must avoid undermining broader efforts towards reducing regulatory and procedural obstacles to denser development and increased housing supply. It should primarily address concerns about neighborhood character and the claims of long-term residents to a distinct stake in the neighborhood that entitles them to some degree of deference and perhaps some share of the increased property values generated by a zoning change. Rather than provide additional process or opportunities for public participation, legal responses should carefully circumscribe local authority in the realm of planning and grant individual residents a property entitlement they can freely transfer. This entitlement, granted to both owners and tenants, would allow residents to derive some benefit from new development while strengthening the voice of a more representative share of the local population.

Verstraete on Property and Use Control

Mark Verstraete (Fellow-NYU) has posted Inseparable Uses (North Carolina Law Review) on SSRN. Here's the abstract:

There is widespread debate over the rights of control that people retain over their personal information. This Article offers several insights that provide clarity to the terms and stakes of this debate. First, it lays out a new normative foundation for the importance of control in data protection regimes, as well as for determining the limits of control that people should retain over their personal data after it is transferred. The central claim is that personal data—as well as other unique cases that this Article identifies—retains a connection to the person even after they no longer control it. The Article analyses of the philosophical concept of separability, which provides conceptual clarity for parsing when and to what degree legal mechanisms should provide control for people over information that describes them. While separable uses do not raise normatively relevant issues of control, when firms use personal data inseparably, they risk violating basic deontological maxims—such as refraining from using a person as a means to an end—which undermine human dignity. As a result, policymakers should craft legal rules that allow individuals to control inseparable uses of their personal data.

However, this Article transcends previous accounts of separability that fail to recognize that separability often turns principally on how the potential thing is used, not on some fundamental feature of the thing. This Article offers a new model of separability that fully accounts for the normative significance of use. This innovative account of separability yields practical benefits by casting new light on an array of puzzles from information law and property law. In information law, separability provides normative grounding for use-restrictions of personal data that do not fall prey to the traps of purpose limitations. Separability also provides important insights into property theory and debates over alienability. For instance, it casts new light on the debate over the alienability of rights of publicity as well as determining the boundaries of “moral rights” in copyright, which provide artists with legal mechanisms of control over their creative works that persist after these works are sold. And finally, separability resolves several challenges in the debate over deep fakes by more clearly delineating the interests that people have in uses of their image.

 

Bronin on Rezoning

Sara C. Bronin (Connecticut) has posted Comprehensive Rezonings (BYU Law Review) on SSRN. Here's the abstract:

Of all powers given to local governments, the power to zone is one of the most significant. Zoning dictates everything that gets built in a locality — and thus effectively dictates all of the key activities that take place within it. Nationwide, most zoning codes were adopted in the first half of the twentieth century. Many, including the zoning codes of New York City and Chicago, were significantly revised in the 1960s. While these codes have been revised piecemeal, just a few American cities have undergone a comprehensive revision: replacing the old code with a completely new one.

A comprehensive rezoning can allow a city to remake itself by casting off outdated requirements and codifying community priorities such as equity, sustainability, and vibrancy. Comprehensive revisions have the most promise in cities where growth is stagnant or where the economy is depressed. In those places, a zoning overhaul can signal a fresh start to attract new development and provide opportunities for creative place-making.

Given the struggling state of many American cities, it is surprising that so few have thrown off the shackles of their outdated zoning codes. And given the promise of comprehensive rezonings, it is surprising that not a single law review article deals squarely with the topic. This Article provides the first law review treatment of this critically important issue.

Delving deeply into recent zoning reforms of Hartford, Connecticut, this Article seeks to illustrate the power of zoning as a critical legal tool for urban revitalization. Part II provides the context for comprehensive rezonings, identifying why they may be desirable, which communities have adopted them, and what procedural and substantive issues may arise. Part III then covers four central goals that many cities share: economic growth, environmental sustainability, access and mobility, and food security. Part III also describes how Hartford used its zoning code to directly advance these goals. (In the process of rezoning, Hartford has been recognized with awards and national attention for several key decisions — including virtually eliminating parking minimums citywide.) Finally, Part IV describes some lessons learned during the rezoning process. This Article aims to encourage academics to delve further into this area of law — and to encourage policymakers to usher in new rules that promote equity, sustainability, and vibrancy.