Category Archives: Property

[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.

New Article: The Affordable Housing Crisis: Tiny Homes & Single-Family Zoning

New Article: Lauren Trambley, The Affordable Housing Crisis: Tiny Homes & Single-Family Zoning, 72 Hastings L.J.
919 (2021). Abstract below:

Although California was by no means an affordable state to reside in prior to 2008, Californians are still experiencing the reverberating effects of the collapse of the housing market in its present affordable housing crisis. As a result of the spike in home foreclosures following the 2008 collapse, the rental market remains “tight” with low vacancies, while housing development has only slowly increased. Combined with stagnant wages, rising housing costs, and growing demand, California has failed to address its shortage of not only housing, but affordable housing. Recent state action demonstrates the desire to increase housing density. But by focusing solely on density, the California legislature ignores the critical issue: affordability. While new housing development may help to reduce tight rental market conditions, it does not guarantee affordability and may in fact lead to further displacement of low-income residents. To address the issue of density as well as affordability, California must amend its single-family zoning laws to permit the construction of smaller housing units, such as tiny homes. Without the financial barriers of high construction costs, land value, down payments, and mortgages, tiny homes address both issues of density and affordability. While tiny homes may not solve the affordable housing crisis outright, they may help to alleviate the ever- increasing demands in the rental market and remove the staggering barriers that those seeking to become homebuyers face when looking to exit the rental market. With nearly two-thirds of renters declaring that they will never be able to achieve the American Dream, it is time for California to reimagine the American Dream—in terms of square footage.

New Article: Exclusionary Zoning’s Confused Defenders

New Article: David Schleicher, Exclusionary Zoning’s Confused Defenders, forthcoming Wisc. L. Rev. Abstract below:

In both economic and legal scholarship, a broad consensus has formed that zoning and other land use laws and regulations in our richest and most productive regions have become too strict. Land use laws, in both suburbs and downtowns, have made it too hard to build housing in the areas with the most demand, leading to high prices and excluding many possible migrants. The lack of housing growth in our richest regions has created huge economic losses, as workers cannot move to the regions where they would earn the highest wages. Local land use regulations that limit housing growth also contribute substantially to economic inequality, racial and economic segregation, homelessness, and greenhouse gas emissions.

But scholars abhore consensus, no matter how much empirical evidence piles up in favor of it. In the last few years, several legal scholars have written articles challenging the scholarly consensus in favor of zoning reform.

This Article reviews their arguments and finds that the consensus …. has little to fear.

Some of their criticisms are recycled versions of old theories, failing to consider huge changes in land use policy since the 1980s. These arguments also put a bizarrely heavy normative weight on the expectations of property owners about the built form of their neighborhoods, without providing a clear justification for doing so. Others display an undeclared but intense conservatism, viewing changes in development patterns as a cause for fear rather than as opportunities for growth and reform. The critics each uncritically embrace the regulatory authority of local governments, while minimizing the demonstrated harms this power can have on economic growth, the environment, and racial and economic equality. These critics fail to see that local regulation is fundamentally different from national-level regulation due to its capacity to not only regulate behavior but also who can enter and reside in jurisdictions and places.

The Article concludes by assessing what effect a post-pandemic increase in working-from-home (WFH), due to technologies like Zoom and Slack, would have on the case for land use reform. It argues that, if it does increase substantially, the form WFH takes will have a big effect on which cities gain and lose (i.e. whether it is fully remote, hybrid or something else). However, unless things change extremely radically, zoning in rich cities and regions will remain a very substantial economic problem. Further, a world with more WFH would make zoning reform more pressing in one particular way. WFH may give the highest income workers even more of an opportunity to isolate themselves in low tax, high service quality jurisdictions, and to use land use regulations to ensure that no one else can rely on their property tax base to pay for local services.

New Article: Catch-22? Applicability of the Takings Clause to Removal of Homeless Persons’ Property from Public Areas

New Article: Tim Donaldson, Catch-22? Applicability of the Takings Clause to Removal of Homeless Persons’ Property from Public Areas, 55 Gonzaga L. Rev. 439 (2020).

New Article: The Perils Of Land Use Deregulation

EuclidNew Article: Richard Schragger, The Perils Of Land Use Deregulation, forthcoming Penn. L. Rev. Abstract below:

Land use regulation and zoning have long been core functions of local governments. Critics of local land use practices, however, assert that local regulations are too restrictive and that “exclusionary zoning” ordinances increase housing costs, reduce mobility, entrench racial segregation, prevent the poor from accessing jobs and services, and reduce economic productivity. Spurred in large part by an affordable housing crisis in popular metropolitan areas, the YIMBY (“yes-in-my-backyard”) movement has urged state and even federal action to override local land use regulations that raise barriers to the construction of market-rate housing. The conventional wisdom is that local governments cannot be trusted with land use policymaking and that striking down local regulatory barriers is necessary to address a whole range of ills.

This Article challenges that conventional wisdom. It does not contest the chief harms of exclusionary zoning, which have been recognized since the inception of Euclidean zoning in the 1920s. Instead, the Article argues that for those who share the goal of creating more equitable metropolitan regions, the rush to preempt local land use regulations and adopt market-favoring state-wide reforms is a mistake. The history of centralized intervention in local land use suggests that preemptive state laws will more likely injure lower-income persons than help them. Indeed, states generally prevent local governments from adopting affordable housing policies. So too, deregulating the housing market can lead to higher costs and less control over development and displacement, often to the detriment of lower-income and minority communities. Though the “market” solution to housing affordability assumes that economic growth lifts all boats, the gains of growth tend to run to skilled labor and the already prosperous. Finally, the logic of land use preemption undermines cities’ other efforts to address economic inequality. Advocates for redistributive social welfare policies favor expanding city power, not limiting it. That is because urban-based economic justice efforts are regularly blocked by hostile state legislatures. Local land use exclusion can have pernicious effects. But preemptive state laws that further reduce or eliminate city power are not an answer.

Editor’s Note: Though this abstract reads as primarily about property law, it is a very interesting article about everything from affordable housing to labor law and progressive change. I highly recommend it. [I also have to note that I reach an opposite conclusion on state/local when it comes to housing supply in my own forthcoming paper, which relies heavily on Schragger’s work above. My views are more in line with this op-ed (thanks to Susan Bennett for the heads up!), which I retweeted yesterday, but though our conclusions are different, I think Schragger’s article is definitely worth checking out.]

New Opinion: How Lower-Income Americans Get Cheated on Property Taxes

How Lower-Income Americans Get Cheated on Property Taxes, N.Y. Times (Apr. 3, 2021).

The Editorial Board of the New York Times wrote an opinion piece on how many “homeowners are paying a total of billions of dollars more because of inequalities in assessing property values.”

New Article: Remixing Resources

Lee Anne Fennell, Remixing Resource, 38 Yale J. Reg. 589 (2021). Abstract below:

This Essay argues for an approach to resource access that connects rather than separates questions of efficiency and distribution. It proceeds from the premise that putting together the most valuable combinations of resources—including human capital—is of central and increasing normative importance. Structuring law to facilitate these combinations should be a primary task for property scholars working in the law and economics tradition. Doing so requires engaging with the processes through which complementary resources produce value in a modern society, recognizing how property doctrines work to put together and keep together complementary resource sets, and confronting the ways in which material inequality and unremediated injustice stand in the way of realizing valuable complementarities. Because a complementarity-based vision of property holds the potential to promote efficiency and distributive goals simultaneously, it illuminates how an integrative approach might offer policy-relevant traction toward both objectives.

Interesting new tool: The Zoning Atlas (Connecticut Zoning Map/Database)

Interesting new tool: DesegregateCT.org, The Zoning Atlashttps://www.desegregatect.org/atlas (Connecticut Zoning Map/Database). Could be of use for students looking at exclusionary zoning, among other things.

[Self-promotion] New Articles on Zoning/Housing/Vouchers

I have two new articles that I just post to SSRN: Ezra Rosser, The Euclid Proviso, Washington Law Review (forthcoming 2021) and Ezra Rosser, Shelter, Mobility, and the Voucher Program, Brigham-Kanner Property Rights Journal (forthcoming 2021). The abstracts are below but by way of introduction, the first one is a follow up to two earlier articles, one that the critiqued progressive property scholars for not paying enough attention to race and subordination in the acquisition and distribution of property (Ezra Rosser, The Ambition and Transformative Potential of Progressive Property, 101 Calif. L. Rev. 107 (2013)), and another that faulted conservative property scholars for a bias in favor of the status quo and argued that property should be less stable (Ezra Rosser, Destabilizing Property, 48 Conn. L. Rev. 397 (2015)). My newest, The Euclid Proviso, argues that in light of the undersupply of housing we need to move away from traditional zoning. The article has enough in it to offend people on the left and on the right. The second article focuses on vouchers and on the relationship between location and opportunity. Although it too might offend a few people in that it ends up prioritizing people over place, it is both shorter and less biting than the first one.

The Euclid Proviso‘s abstract is 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, which 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.

The abstract for Shelter, Mobility, and the Voucher Program is below:

This brief article reviews Eva Rosen’s The Voucher Promise: “Section 8” and the Fate of an American Neighborhood (2021) and draws on the work of Raj Chetty and others to explore the relationship between location and opportunity. As The Voucher Promise highlights, the voucher program is sold as a way of both providing necessary public housing assistance and encouraging poor people to move to high-income areas. Ultimately, this article argues that the voucher program should be recognized as a success and (massively) expanded even if it does not meet the secondary mobility goal because of the tremendous importance of providing housing subsidies to struggling families.