Category Archives: Property

New Article: “Small Suburbs, Large Lots: How the Scale of Land-Use Regulation Affects Housing Affordability, Equity, and the Climate”

New Article: Eric Biber, Giulia Gualco-Nelson, Nicholas Marantz & Moira O’Neill, Small Suburbs, Large Lots: How the Scale of Land-Use Regulation Affects Housing Affordability, Equity, and the Climate, 2022 Utah L. Rev. 1 (2022). Abstract below:

Housing costs in major coastal metropolitan areas nationwide have skyrocketed, impacting people, the economy, and the environment. Landuse regulation, controlled primarily at the local level, plays a major role in determining housing production. In response to this mounting housing crisis, scholars, policymakers, and commentators are debating whether greater state involvement in local land-use decision-making is the best path forward.

We argue here that there are good reasons to believe that continuing on the current path—with local control of land-use regulation as it is— will lead to persistent underproduction of housing. The benefits of housing production are primarily regional, including improved job markets, increased socioeconomic mobility, and reduced greenhouse gas emissions. But the costs associated with producing more housing are often local, felt at the neighborhood level. Local governments whose voters are impacted by the local negative impacts of housing and will usually have less incentive to consider those regional, and national, benefits and approve housing. Recent political science, planning, economics, and legal research shows that smaller local jurisdictions tend to produce less housing, and when political institutions decentralize control over housing to the sublocal (e.g., neighborhood) scale, less housing is approved.

A central theory in academic research in land-use regulation and local government law has been the idea that competition among highly fragmented local governments can produce more efficient outcomes in public services and land-use regulation, even if there may be significant inequities across local jurisdictions in outcomes. Our analysis shows that this theory no longer accurately describes how fragmented local governance affects economic efficiency. Indeed, our analysis makes clear that fragmented local governance is both inequitable and inefficient, at least in the context of land-use regulation. Our analysis also raises questions about local government law scholarship contending that increased local governmental power can effectively address the dysfunctions of metropolitan areas in the United States.

We present a range of policy proposals to address the problems we identify. First, greater state intervention in local land-use regulation is necessary. While a greater state role need not (and probably should not) entirely displace local control, it is essential to ensure that the larger-scale benefits of housing are appropriately considered. Second, we note that the highly fragmented local land-use regulatory system imposes challenges for housing production, in part, because variation among local regulatory practices creates barriers to entry for new housing across jurisdictions. Accordingly, we advocate for a state role to increase the standardization of local land-use regulatory tools as a key step to help advance greater housing production, even where local control is maintained.

New Report: “Zoning for Equity: Identifying Planning and Zoning Barriers to Affordable Housing”

Zoning_for_Equity_Cover_3_30_March2022_FINALNew Report: Sam Griffen et a., Zoning for Equity: Identifying Planning and Zoning Barriers to Affordable Housing (Open Communities Alliance, 2022).

New Book Review of Hanoch Dagan, A Liberal Theory of Property (2021)

Dagan-Ezra Rosser, Book Review, 72 University of Toronto Law Journal 245 (2022) (reviewing Hanoch Dagan, A Liberal Theory of Property (2021)). The irony of this book review is that much of Dagan’s book involves the rights of non-owners but the University of Toronto Law Journal does not allow me to post the review to SSRN where it would be freely available. But it does provide 25 free redeemable “tokens” so others can read the electronic version of the article. Given that this is a book review of a property theory book, 25 such tokens very likely will more than cover the needs of the small group of people who might be interested. You can access the article at this link: https://www.utpjournals.press/eprint/CER924HEMWUKVKEZAGYY/full. But if anyone has trouble, just email me and I will make sure you are able to read the review. More importantly, for property/poverty people or just property people with a taste for more theoretical work, Dagan’s book is a worthwhile read.

New Article: “Addressing Challenges to Affordable Housing in Land Use Law: Recognizing Affordable Housing as a Right”

New Article: Note, Addressing Challenges to Affordable Housing in Land Use Law: Recognizing Affordable Housing as a Right, 135 Harv. L. Rev. 1104 (2022).

New Article: “The Takings Are Coming: How Federal Courts Can Protect Regulatory Efforts to Address California’s Housing Crisis”

New Article: Randall Winston, The Takings Are Coming: How Federal Courts Can Protect Regulatory Efforts to Address California’s Housing Crisis, 47 Ecology L.Q. 625 (2020). Abstract below:

In 2018, California Governor Gavin Newson called for building 3.5 million new homes by 2025, a historically unprecedented rate of construction intended to address the state’s severe and worsening housing crisis. Spiraling unaffordability, insufficient housing, and destructive urban sprawl have exacerbated environmental and socioeconomic disparities in California, enabled by restrictive local government regulations that make it difficult to build housing in the dense, job-rich areas where it is needed most. Taking aggressive action to alleviate this crisis is crucial. As state and local governments seek to do so, courts play a critical role in evaluating the legitimacy of land use laws intended to facilitate more affordable housing construction. For decades, state courts have been the first to evaluate such laws when subject to legal challenges, including determining whether a government
regulation has gone too far by taking private property without just compensation under the Fifth Amendment’s Takings Clause.

But a recent Supreme Court decision upends this precedent. In Knick v. Township of Scott, the Court issued an opinion that allows property owners to go directly to federal court if they believe a regulation amounts to an unconstitutional taking. This includes challenging regulations that are central to California’s efforts to build more affordable housing, such as rent control ordinances, inclusionary zoning laws, and measures designed to limit sprawl. Because federal courts unfamiliar with state law will likely mistakenly evaluate takings claims and view property owners more sympathetically than state courts, Knick threatens to undermine these regulations. This Note explores why safeguarding rent control, inclusionary housing, and growth control measures is crucial to addressing California’s housing crisis. In doing so, it evaluates the implications of the Knick decision for relevant Takings Clause jurisprudence and argues that a threatened reevaluation of takings claims can be avoided if federal courts look to California housing law as a guide.

New Article: “Overparticipation: Designing Effective Land Use Public Processes”

New Article: Anika Singh Lemar, Overparticipation: Designing Effective Land Use Public Processes, 90 Fordham L. Rev. 1083 (2021). Abstract below:

There are more opportunities for public participation in the planning and zoning process today than there were in the decades immediately after states adopted the first zoning enabling acts. As a result, today, public participation, dominated by nearby residents, drives most land use planning and zoning decisions. Enhanced public participation rights are often seen as an unqualified good, but there is a long history of public participation and community control cementing racial segregation, entrenching exclusion, and preventing the development of affordable housing in cities and suburbs alike. Integrating community engagement into an effective administrative process requires addressing the various ways in which existing public participation processes have failed to serve their purported goals. This Article critically examines how public participation operates in land use planning and approvals. It then proposes a new model, drawing lessons from other administrative processes, in an effort to balance public input, legal standards, and expertise.

Note: This might seem a bit removed from “poverty law” but I think it has a lot of relevance when it comes to both racial segregation and affordable housing.

New Article: Systemic Racism and the Dispossession of Indigenous Wealth in the United States

New Article: Matthew L. M. Fletcher, Systemic Racism and the Dispossession of Indigenous Wealth in the United States, SSRN. Abstract below:

This paper was presented as part of the Federal Reserve Bank’s event, “Racism and the Economy: Focus on the Wealth Divide.”

In relation to the Indigenous people and nations within (and without) its borders, the United States’ national policy was geared toward efficiently and completely dispossessing Indian people and tribes of their lands and resources. For the most part, that national policy prevailed, although the efforts were far from efficient and far from complete. This section surveys the dispossession of Indigenous peoples and nations of their wealth. Structural racism played a critically important role in the dispossession of Indigenous peoples of their wealth throughout the 19th and 20th centuries.

New Article: Criminalizing Property Rights: How Crime-Free Housing Ordinances Violate the Fifth Amendment

New Article: Laura Flint, Criminalizing Property Rights: How Crime-Free Housing Ordinances Violate the Fifth Amendment, 70 Emory L. J. 1369 (2021). Abstract Below:

Crime-free housing ordinances allow municipalities to force private landlords to evict tenants who have committed crimes or allowed a guest who has committed a crime into their home, regardless of the tenant’s knowledge. These ordinances have proliferated throughout the country since the turn of the century and pose interesting questions about landlord and tenant rights under the Constitution. This Comment explores a new strategy for landlords and tenants attempting to confront these ordinances—challenging them under the Fifth Amendment. The Supreme Court has recognized two types of takings that are due just compensation under the Fifth Amendment: possessory and regulatory takings. This Comment argues that compulsory evictions, as mandated by crime-free housing ordinances, qualify as possessory and regulatory takings for tenants, but not for landlords. While the landlord’s property rights have only been circumscribed because he or she has to find a new tenant and has lost the revenue from the original tenant, the tenant loses all of his or her property rights in the tenant’s leasehold estate after eviction under a crime-free housing ordinance. Additionally, government actors may engage in physical invasions to effectuate the eviction and “total taking” of the property. The taking is for the public purpose of reducing and preventing crimes, and the tenant is owed just compensation under the Takings Clause. Compulsory evictions under crime-free housing ordinances are unconstitutional without just compensation under the Fifth Amendment.

[Self-promotion] New Article: The Euclid Proviso

Ethel Lawrence HomesNew Article: Ezra Rosser, The Euclid Proviso, 96 Wash. L. Rev. 811 (2021). Abstract below:

 This Article argues that the Euclid Proviso, which allows regional concerns to trump local zoning when required by the general welfare, should play a larger role in zoning’s second century. Traditional zoning operates to severely limit the construction of additional housing. This locks in the advantages of homeowners but at tremendous cost, primarily in the form of unaffordable housing, to those who would like to join the community. State preemption of local zoning defies traditional categorization; it is at once both radically destabilizing and market responsive. But, given the ways in which zoning is a foundational part of the racial and economic status quo, it is time for scholars and policymakers to move away from traditional zoning and towards more permissive regional or state approaches to housing development.

New Book: White Space, Black Hood: Opportunity Hoarding and Segregation in the Age of Inequality

9780807000298New Book: Sheryll Cashin, White Space, Black Hood: Opportunity Hoarding and Segregation in the Age of Inequality (2021). About the book:

Shows how government created “ghettos” and affluent white space and entrenched a system of American residential caste that is the linchpin of US inequality—and issues a call for abolition.

The iconic Black hood, like slavery and Jim Crow, is a peculiar American institution animated by the ideology of white supremacy. Politicians and people of all colors propagated “ghetto” myths to justify racist policies that concentrated poverty in the hood and created high-opportunity white spaces. In White Space, Black Hood, Sheryll Cashin traces the history of anti-Black residential caste—boundary maintenance, opportunity hoarding, and stereotype-driven surveillance—and unpacks its current legacy so we can begin the work to dismantle the structures and policies that undermine Black lives.

Drawing on nearly 2 decades of research in cities including Baltimore, St. Louis, Chicago, New York, and Cleveland, Cashin traces the processes of residential caste as it relates to housing, policing, schools, and transportation. She contends that geography is now central to American caste. Poverty-free havens and poverty-dense hoods would not exist if the state had not designed, constructed, and maintained this physical racial order.

Cashin calls for abolition of these state-sanctioned processes. The ultimate goal is to change the lens through which society sees residents of poor Black neighborhoods from presumed thug to presumed citizen, and to transform the relationship of the state with these neighborhoods from punitive to caring. She calls for investment in a new infrastructure of opportunity in poor Black neighborhoods, including richly resourced schools and neighborhood centers, public transit, Peacemaker Fellowships, universal basic incomes, housing choice vouchers for residents, and mandatory inclusive housing elsewhere.

Deeply researched and sharply written, White Space, Black Hood is a call to action for repairing what white supremacy still breaks.

Editor’s Note: I just finished reading the book and found it a worthwhile read for a number of reasons. It does a good job bringing together various strands of work exemplified by The Color of Law, Dream Hoarders, and the Ferguson Report. Indeed, Cashin’s work connecting property law with over-criminalization is probably the biggest contribution for academic readers, though I also appreciated the tone of Cashin’s writing throughout. At times indignant, upset, and hopeful, the book makes a powerful case (similar to one Alexander Polikoff made years ago) that policymakers should focus on helping African Americans trapped in poor areas–that those communities should be prioritized–given both their unique history of subjugation and the role those spaces play in the country’s ideas about race and class.