Law Commons^™

The Intentional Community: Toward Inclusion And Climate-Cognizance, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

In adapting communities to new levels of fairness, we must resist the notion that building equitable and accessible communities is antagonistic to building climate-cognizant communities. This paper will raise some of the core points in this endeavor and will offer suggestions for finding harmony between the two ends through creating communities with intention.

In Part I, I offer some details on what climate change, if unheeded, portends most in our daily lives. In Part II, I tell tales of two cities to frame the larger discussion. In Part III, I highlight some social, political, and economic history that produced a …

Pandemics And Housing Insecurity: A Blueprint For Land Use Law Reform, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

COVID-19, racial inequity, housing insecurity, and climate change have come together to create widespread, large-scale crises. This Article introduces these four pandemics and describes in detail what local governments are doing to combat one of them: housing insecurity. It reviews recent progress with traditional inclusionary zoning requirements, discusses the move toward greater density in single-family zoning, lists strategies being used to remediate distressed housing, and notes the importance of affordable housing as a necessary strategy for preventing lower-income household displacement caused by gentrification. The reciprocal impacts of these four pandemics are clear; local land use leaders should examine how mitigating …

The Road To Affordable Housing: How To Replace Highways With Homes In New York City, Chad Hughes

Pace Law Review

Urban highways cause significant air, water, and soil pollution that disproportionately harm low-income and nonwhite residents. Many urban highways are reaching the end of their useful life and would be extremely expensive to repair or replace. Cities around the world have removed urban highways to improve environmental outcomes and to avoid wasteful spending.

While these teardowns have improved local and regional environmental quality and local traffic congestion, they have also led to increased land values near the retired rights of way. Without anti-displacement efforts, there is a risk that the very people who have been most harmed by urban highways …

Equitable, Affordable And Climate-Cognizant Housing Construction, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

The almost universal sentiment by a growing body of physical and social scientists is that climate change--with its floods, drought, heat, and cold-- portend losses of life, communities, property, and the rhythms of living. Some are more vulnerable to these impacts than others: individuals and the poor, who through official government policy and self-interest in the housing markets, have been relegated to live in poorly-constructed and poorly-placed structures--in the wake of ocean surges; in the path of strong winds; near hazardous and noxious facilities; stranded in urban heat islands. Failing to heed climate change omens will lead to a world …

Non-Debt And Non-Bank Financing For Home Purchase: Promises And Risks, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

This Article explores the phenomenon of the NDNBs in home purchase and finance that has gained a growing presence in the mortgage marketplace since the 2008 crisis. Part II offers a deeper discussion of the risk-prone practices leading to the 2008 housing crisis and the regulatory and industry responses for recovery. Parts III and IV describe the emerging new models of home purchase. Part IV explores some of the apparent and hidden risks in these transactions. Part VI concludes with suggestions for assessing and managing risks and for reforms.

Adaptive Rezoning For Social Equity, Affordability And Resilience, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

In this Article, I will show how the legacies of the institutional barriers to housing still persist to deprive many of the predicates for economic thriving and personal flourishing and how existing zoning philosophy cannot be justified by the need to protect health and safety. Righting the inequities of the past and of the present will require dismantling some of the institutions, apparently legitimate and well-meaning, but operating devilishly to create and perpetuate hardship and exclusion. This will require laying bare the institutions to reveal their ignoble essence. We need a radical overhaul of the historic zoning regime from one …

Landlord-Tenant Revolution Redux: New York’S “Rad” Landlord-Tenant Law Revisions, Shelby D. Green, Samuel R. Middleton, Britney L. Frates

Elisabeth Haub School of Law Faculty Publications

In June 2019, New York adopted the Housing Stability and Tenant Protection Act of 2019 (HSTPA), 2019 N.Y Laws ch. 36, amending various sections of the existing substantive and procedural laws regulating landlord-tenant relations. Calling the HSTPA “rad” suggests two things: from the perspective of housing advocates and tenants, it is “awesome” but for property owners and investors, it is concernedly “radical.”

Both meanings are apt because of the sweeping changes the HSTPA makes to the traditional landlord-tenant dynamic--from tenancy creation to perpetual rent controls to post-judgment relief, creating what might be described as a “statutory lease.” Both sides of …

Testing Fannie Mae's And Freddie Mac's Post-Crisis Self-Preservation Policies Under The Fair Housing Act, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

Beginning in the 1930s, the federal government adopted programs and policies toward safe and decent housing for all. The initiatives included the creation of the Federal Housing Administration that, among other things, spurred mortgage lending by guaranteeing mortgage loans to low- and moderate-income borrowers. The creation of the secondary mortgage market by Fannie Mae and Freddie Mac (“GSEs”) helped provide more liquidity for loan originators. However, somewhere along the way, these GSEs lost their way, as they pursued profitability without regard to risk and heedlessly bought mortgages without considering quality.

The overabundance of poor quality mortgages led to the housing …

The Passage Of The Fair Housing Act Of 1968: Stories To Be Told, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

The enactment of the Fair Housing Act of 1968 ("FHA") is a story filled with intrigue - coercion, duplicity, and back-room deals. In The Secret History of the Fair Housing Act, Professor Jonathan Zasloff provides a riveting account of the maneuvers by the various protagonists in that story. Review of Jonathan Zasloff’s The Secret History of the Fair Housing Act, 53 Hary. J. on Legis. 247 (2016), http://property.jotwell.com/the-passage-of-the-fair-housing-act-of-1968-stories-to-be-told/.

Zoning’S Centennial: A Complete Account Of The Evolution Of Zoning Into A Robust System Of Land Use Law—1916-2016 (Part Iii), John R. Nolon

Elisabeth Haub School of Law Faculty Publications

In land use, there are two things that Americans dislike: one is sprawl, the other is density. This catch-22 can be resolved by mitigating those aspects of urban living associated with density: congestion, bulky buildings, sameness, design incongruities, unsafe streets, inefficiency, and the sense that neighborhoods are not livable and pleasant. These characteristics of density cut against sustainability. They define places that people want to leave as soon as they can. To reduce vehicle miles travelled and carbon emissions, as well as to prevent sprawl, we must create places of enduring value, located next to transit in walkable and sustainable …

Mers Remains Afloat In A Sea Of Foreclosures, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

Despite the simple premise of the MERS System, opponents--or those simply trying to invalidate or forestall enforcement of their mortgages--have leveled various challenges to MERS's practices and even its basic business model. Taking an aerial view of the challenges, it is possible to discern a certain pattern as one challenge seemed to morph into the next (often following rejection of the earlier one in the courts). Some borrowers have asserted that MERS lacked legal standing to foreclose because it was a mere nominee and not the owner of the note. Even if MERS's legal standing was upheld, borrowers pointed to …

Affirmatively Furthering Fair Housing: The Search For Solutions That Are Just Right, John R. Nolon, Tiffany Zezula

Elisabeth Haub School of Law Faculty Publications

A federal False Claims Act action against Westchester County, New York launched a unique effort to explore whether zoning, subsidies, and advocacy could significantly Increase the percentage of minorities living in largely white communities. A Voluntary Cooperation Agreement entered into by Marin County, California raises a similar question. This article describes the legal background of the lawsuit brought against Westchester County, the Settlement Agreement that arose from it, and the attempt by Westchester County to carry out its obligations to affirmatively further fair housing. It traces the evolution of exclusionary zoning law in New York State courts, contrasts it to …

Imagining A Right To Housing, Lying In The Interstices, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

This article explores whether the philosophical and constitutional predicates for the recognition of a right to housing exist in some form in our nation’s jurisprudence and political order. Part II traces the evolution of the concept of “rights” from that embraced by the country’s founders to the present, how such a right to housing would fit within the dialogue of property rights, the notion of ownership, and the interest in liberty. Part III discusses the historical role of the court in protecting housing. Part IV discusses the notion of protecting rights to housing under existing equal protection and due process …

Re-Appraising The Appraisers: Expanding Liability To Buyers And Borrowers In The Story Of The 2008 Financing Industry Crisis, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

On the surface, suing in negligence seems the most promising avenue for recovery against appraisers, because liability depends on an examination of defendant's conduct alone and does not require an examination or defendant's mental state to show intent or agreement. But historically insuperable hurdles have operated to prevent recovery under this seemingly simple cause of action. One hurdle is lack of privity. The appraiser's legal relationship is with the hiring party--the lender--to assess the risks of the loan transaction and not with the purchaser, who may rely on the appraisal in making the decision to purchase. Because of the lack …

No Dwelling Left Behind: Expanding New York’S Uniform Housing Statutes To Single And Two-Family Dwellings, Daniel R. Shortt

Pace Law Review

No abstract provided.

Exclusionary Housing Vs. Fair Housing: The Need For State Legislation, John R. Nolon, Jessica A. Bacher

Elisabeth Haub School of Law Faculty Publications

On September 23rd, Westchester County settled a lawsuit with U.S. Department of Housing and Urban Development and the Anti-Discrimination Center of Metro New York under which it agreed to develop and carry out an implementation plan to construct 750 affordable housing units in Westchester communities with low percentages of African American and Hispanic households. Under this agreement, the County will provide over $50 million to create housing in these communities; if needed, the County agreed to withhold benefits from the communities or to bring litigation against them if the 750 units are not constructed. The County will be supervised by …

Local Inclusionary Housing Programs: Meeting Housing Needs, John R. Nolon, Jessica A. Bacher

Elisabeth Haub School of Law Faculty Publications

This article explores the expansive legal authority that local governments in many states have to meet housing needs directly by providing for the production of new affordable homes. There is not a great deal of scholarship on the subject as we approach it. The emphasis in the academic literature in the field of affordable housing is on top-down, systemic, or theoretical solutions: urging reforms in federal and state finance programs, imploring courts to penalize localities that engage in exclusionary zoning, describing in detail a variety of inclusionary zoning techniques, or explaining relevant theories or the economics of the issue of …

Affordable Housing In The New York Courts: A Case For Legislative Action, John R. Nolon, Jessica A. Bacher

Elisabeth Haub School of Law Faculty Publications

This article reviews the position of the New York courts on the obligation of local governments to zone for affordable housing and concludes that it is time for legislative action at the state level. Although municipalities are beginning to adopt inclusionary zoning ordinances, most are doing little to eliminate barriers to housing or stimulate needed production. Additional encouragement, guidance, and resources are needed to create an adequate supply of affordable housing. After a review of the affordable housing cases, this article reviews what other state legislatures have done in recent years, and proposes the adoption of a Local Housing Planning …

Affordable Housing: A Case For State Legislative Action, John R. Nolon, Jessica A. Bacher

Elisabeth Haub School of Law Faculty Publications

Efforts by municipalities to promote affordable housing have proven to be insufficient as evidenced by the skyrocketing real estate prices in the New York metropolitan area. Historically, New York courts have struggled with the affordable housing issue, often issuing inconsistent decisions on what types of local laws are unconstitutionally exclusionary. By utilizing other states’ initiatives as a guide, New York can create a comprehensive affordable housing bill that will effectively provide for affordable housing and relieve some of the pressures on the judiciary caused by past ambiguous legislation.

Local Housing Efforts: The Maturation Of Laws Promoting Affordability, John R. Nolon, Jessica A. Bacher

Elisabeth Haub School of Law Faculty Publications

A shortage of workforce housing, especially in the New York metropolitan area where real estate prices are rapidly increasing, has long been a critical land use issue. Since amendments to New York state law that explicitly stated municipalities’ implied power to incentivize affordable housing, municipalities have begun to create innovative laws to promote affordable housing. This review describes some of the basic concepts behind the affordable housing movement, and the considerations of local legislatures in defining, and providing for affordable housing.

The Search For A National Land Use Policy: For The Cities' Sake, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

This article offers a survey of federal legislation and statements of policy that have shaped and directed land use and related phenomena, including the location of population, economic growth, and the character of urban development. Part I of this article provides a historical development of land use policies and laws, as well as presents academic and scientific theories supporting a national land use policy. Part II of this article describes patterns of urban and suburban growth and their consequences, such as the decline of the viability of cities and the loss of agricultural land. Part III discusses the government's spending …

The Public Housing Tenancy: Variation On The Common Law That Give Security Of Tenure And Control, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

This Article explores the character of the public housing tenancy, comparing it with the common law tenancy under private lease law and evaluating the degree to which private lease law will protect the interests of low-income families if current proposals to abolish existing in-kind housing programs are adopted. Part II of this Article traces the history of federally funded housing programs and describes the various strategies employed. Part III discusses the recent changes in modern private lease law and recounts the basic rights and obligations of the landlord and tenant, which define and govern the rights of low-income families under …

Toward A Housing Imperative And Other Reflections On Balanced Growth And Development, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

In a series of recent cases, the New York courts have commented on the legislative acts of the state and local governments which have restricted or expanded the access to housing for limited income households or minorities. From these holdings, we can glimpse the outlines of a housing imperative: an emerging right running generally to low and moderate income households and minorities not to be excluded from living in any given community. As important, there also emerges the understanding that our legislators are empowered to act decisively to solve New York's much-lamented housing problem.

Shattering The Myth Of Municipal Impotence: The Authority Of Local Government To Create Affordable Housing, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

In the absence of any guidance from the legislature, local officials, in confronting the problem of affordable housing, look to the courts to define the extent of their responsibility and power. While not providing specific direction, the New York Court of Appeals has clearly outlawed zoning designed to exclude affordable housing. The judiciary has voiced doubts, however, that municipal governments can, through zoning alone, require the development of affordable housing. The view that municipalities lack such power is erroneous. Zoning alone is competent to induce such development. Furthermore, local governments have considerable additional power to induce the creation of such …

Expanding Traditional Land Use Authority Through Environmental Legislation: The Regulation Of Affordable Housing, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

This article is devoted to an examination of local land use regulation in the context of the use of SEQRA and its mandate, to mitigate environmental impacts to require the provision of affordable housing in high cost housing markets. As such, it looks at one contemporary manifestation of the growth of police power authority to meet new land use challenges.

Reexamining Federal Housing Programs In A Time Of Fiscal Austerity: The Trend Toward Block Grants And Housing Allowances, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

This article begins with an examination of the evolution of the federal government's predominant role in collecting and spending revenues for social programs, including housing. It traces the growth of federal spending, and the evolution of federally assisted programs for housing. It continues with an analysis of the trend toward block grants and housing allowances, and concludes by commenting on this trend's effect on the future of housing programs for households with limited incomes.