Law Commons^™

California Supreme Court Unanimously Upholds Inclusionary Zoning As Land Use Regulation And Not An Exaction, Tim Iglesias

Tim Iglesias

Local governments, housing advocates, and people who need affordable housing won a solid victory in the California Supreme Court's unanimous opinion in California Bldg. Indus. Ass'n v. City of San Jose. In a complex 64-page opinion that is clearly drafted and rigorously argued, the court held that inclusionary zoning is a constitutionally permissible strategy to produce affordable housing and to promote economic integration that is subject to rational basis review and not heightened scrutiny.

This article outlines the factual and legal background of the case and discusses the court's reasoning in reaching its decision, including the court's refusal to find …

Yes To Infill, No To Nuisance, Michael Lewyn

Michael E Lewyn

This article argues against the use of private nuisance suits to exclude apartments from residential neighborhoods, based on the public interest in affordable housing and walkable infill development.

Smart Growth-Oriented Density And Parking Regulations, Michael Lewyn

Michael E Lewyn

Many articles have been written about pro-sprawl land use regulation, such as minimum parking requirements. This speech, by contrast, focuses on the frequency of land use regulation designed to increase walkability- in particular, minimum density requirements and maximum parking requirements. I conclude that the first type of regulation is quite rare and usually very lenient. The second type of regulation is more frequent; however, the impact of maximum parking requirements is not yet clear.

Against The Neighborhood Veto, Michael Lewyn

Michael E Lewyn

American zoning often gives neighborhoods elective veto power over nearby real estate development. This “neighborhood veto” sometimes artificially reduces housing supply and urban density, thus making housing more expensive and making American cities more dependent on automobiles. This article criticizes the common arguments that neighborhood activists use to restrict development.

No Parking Anytime: The Legality And Wisdom Of Maximum Parking And Minimum Density Requirements, Michael Lewyn, Judd Schechtman

Michael E Lewyn

This article focuses on two aspects of smart growth policy that have thus far received little attention: maximum parking and minimum density requirements. To ascertain the frequency of such regulations, we examine the zoning regulations of twenty-four mid-sized cities, defined as those with populations between 500,000 and one million residents. The article concludes that the first type of regulation is somewhat common, but is usually restricted to certain types of land uses or sections of a city. Minimum density requirements, by contrast, are quite rare and quite lenient. Because these types of regulations have received little scholarly attention and are …

American Dreams, American Realities, Michael Lewyn

Michael E Lewyn

Review of Zoned In The USA, by Sonia Hirt.

The (Somewhat) False Hope Of Comprehensive Planning, Michael Lewyn

Michael E Lewyn

Some commentators equate municipal comprehensive plans with "smart" growth (that is, development that considers the needs of nondrivers as well as the needs of automobiles). However, comprehensive planning. although desirable, is neither necessary nor sufficient for smart growth. Plans are not necessary because zoning reforms can achieve the same smart growth objectives as plans, and are not sufficient because many comprehensive plans support sprawl rather than smart growth.

How Should The Law Treat Roommate Relationships? A Tale Of Two Cases, Tim Iglesias

Tim Iglesias

The law of roommates is an important but underdeveloped area of landlord-tenant law. Two recent cases, Fair Hous. Council v. Roommate.com, 666 F.3d 1216 (9th Cir. 2012) and Mercury Cas. Co. v. Chu, 229 CA4th 1432 (2014), offer contrasting approaches. This article explores the issues, reviews the cases and favors the Mercury court's approach.

The Promises And Pitfalls Of Micro-Housing, Tim Iglesias

Tim Iglesias

This is a primer on the new and growing phenomenon of micro-housing. It defines micro-housing, discusses policy arguments and outlines regulatory issues.

Amicus Brief On Behalf Of The Leo T. Mccarthy Center For Public Service And The Common Good And 44 Housing Scholars To California Supreme Court In California Building Industry Association V. City Of San Jose (S212072), Tim Iglesias, David Rusk, Jan Breidenbach, Nico Calavita, Steven Menendian, John A. Powell, Ofurhe Arnica Igbinedion, Samir Gambhir, Eli Moore

john a. powell

The briefs of other parties in the litigation emphasized inclusionary zoning’s goal of increasing the supply of affordable housing. This brief focuses on inclusionary zoning’s goal of promoting social inclusion and integration by locating affordable housing in the right location. The brief explains how economic and racial segregation deny equality of opportunity to low and moderate income families because segregation limits their potential for economic and social mobility by restricting access to the primary means of mobility, e.g. employment and education. Drawing from a wide array of empirical and other studies the brief demonstrates how inclusionary zoning is an effective …

Inclusionary Eminent Domain, Gerald S. Dickinson

Gerald S. Dickinson

This article proposes a paradigm shift in takings law, namely “inclusionary eminent domain.” This new normative concept – paradoxical in nature – rethinks eminent domain as an inclusionary land assembly framework that is equipped with multiple tools to help guide municipalities, private developers and communities construct or preserve affordable housing developments. Analogous to inclusionary zoning, inclusionary eminent domain helps us think about how to fix the “exclusionary eminent domain” phenomenon of displacing low-income families by assembling and negotiating the use of land – prior to, during or after condemnation proceedings – to accommodate affordable housing where condemnation threatens to decrease …

Defining “Family” For Zoning: Contemporary Policy Challenges, Legal Limits And Options, Tim Iglesias

Tim Iglesias

Single family zones are ubiquitous, diversely-defined and both popular and controversial. Much of the controversy stems from who is excluded from living in these zones by the definition of “family.” After reviewing single family zones, policy rationales for them, and the basic types of definitions of family, this article surveys contemporary policy challenges and legal limits to definitions of “family.” Recognizing localities’ diverse contexts, the article articulates how localities can reassess their definitions and identifies relevant considerations.

Suburban Sprawl: Weaker But Still Alive, Michael Lewyn

Michael E Lewyn

Review of The End of the Suburbs, by Leigh Gallagher.

How Real Is Gentrification?, Michael Lewyn

Michael E Lewyn

Some commentators argue that gentrification is turning many cities into a playground for the rich. This article rejects that view, pointing out that even relatively affluent cities are still poorer than the average suburb.

Chapter 19: Rent Control, Robert M. Bloom, Marshall F. Newman

Robert M. Bloom

No abstract provided.

The Puzzling Persistence Of Horizontal Privity, Michael Lewyn

Michael E Lewyn

A discussion of the horizontal privity doctrine. Under this doctrine, restrictive covenants are binding upon future grantees only if the original parties to the covenant share some property interest outside the covenant- for example, if they are grantor and grantee of the same land, or if they are landlord and tenant. Although the doctrine has been often criticized by scholars, no recent court has rejected the privity requirement.

The False Hope Of Comprehensive Planning, Michael Lewyn

Michael E Lewyn

Some commentators on sprawl and smart growth speak of municipal comprehensive plans and sprawl as polar opposites: but in fact, a comprehensive plan can be used to further auto-oriented sprawl just as easily as it can be used to encourage more pedestrian-friendly development. This speech uses parts of Jacksonville, Florida's plan as examples of pro-sprawl planning.

A Home With Dignity: Domestic Violence And Property Rights, Margaret Johnson

Margaret E Johnson

This Article argues that the legal system should do more to address intimate partner violence and each party’s need for a home for several reasons. First, domestic violence is a leading cause of homelessness and family homelessness. Second, the struggle over rights to a shared home can increase the violence to which the woman is subjected. And third, a woman who decides that continuing to share a home with the person who abused her receives little or no system support, despite the evidence that this decision could most effectively reduce the violence. The legal system’s current failings result from its …

Judicial Adjudication In Housing Rights In Brazil And Colombia: A Comparative Perspective, Vanice L. Valle

Vanice L. Valle

Cooperative constitutionalism is the watchword in the 21st. century, and the creation of a judicial network is an important tool to improve human rights protection. This paper intends to contribute in that field, reporting the constitutional framework and the main decisions held by the Brazilian and the Colombian Constitutional Courts in protecting housing rights. The comparison is justified by the historical proximity in the juridical transition in both countries – 1988 in Brazil and 1991 in Colombia –; and also by the clear inspiration that Colombia took in the Brazilian Constitution at the time of their Constituent Assembly. As the …

Why Leave It To The Liberals? Conservative Views On Smart Growth, Michael E. Lewyn

Michael E Lewyn

Part of panel discussion on "Why Leave It To The Liberals? Conservative Views on Smart Growth"

Does Fair Housing Law Apply To “Shared Living Situations”? Or, The Trouble With Roommates, Tim Iglesias

Tim Iglesias

In 2012, the Ninth Circuit held that to avoid a constitutional conflict with the right to freedom of association neither the federal Fair Housing Act nor California’s Fair Employment and Housing Act apply to persons seeking roommates or to other shared living situations. This article criticizes the opinion as poorly reasoned and overly broad and then offers a more targeted legislative solution to the problem.

This is an abbreviated version of the article that appeared in the JOURNAL OF AFFORDABLE HOUSING AND COMMUNITY DEVELOPMENT LAW (Spring 2014).

Framing Inclusionary Zoning: Exploring The Legality Of Local Inclusionary Zoning And Its Potential To Meet Affordable Housing Needs, Tim Iglesias

Tim Iglesias

Whether local inclusionary zoning (IZ) ordinances can make significant contributions towards meeting affordable housing needs depends in large part on its legality. Courts have not developed a consistent jurisprudence regarding IZ ordinances. The legality of IZ ordinances depends upon how they are framed by the governments who enact them, the opponents who challenge them, and the courts that decide the cases. After a brief introduction, this article explores why framing is possible and likely in judicial review of IZ as well as why it matters. Next, the article analyzes the case law to demonstrate how framing has operated to affect …

Home Is Where The Art Is: The Impact That Housing Laws And Gentrification Policies Have Had On The Availability And Affordability Of Artist Live/Work Spaces, Mary T. O'Sullivan

Mary T O'Sullivan

Artists have long been praised as creative innovators, respected and admired for their unique perspectives and ability to portray life in a new light. Federal and State Governments have long recognized the cultural value that art and artists provide, and thus, legislatures have passed protective housing laws that provide artists with affordable live/work spaces. Today, though artists have often been portrayed as “starving,” studies on urban policy/planning have shown that where artists live, money and capital growth will follow. Artists are pioneers of gentrification. Thus, urban planners and many communities have sought to provide incentives that promote artist relocation in …

Eminently Reasonable, David J. Reiss

David J Reiss

Local governments across the country are considering an innovative use of eminent domain. They propose to condemn underwater mortgages (those that exceed the fair-market value of the home) in their communities and restructure them so that home­owners can afford their payments and so that the new mortgage is for less than the fair market value of the property. If this proposal is implemented, the local government will pay the owner of mortgages of "underwater" homes the fair market value for the mortgages. The local government will then restructure each mortgage by reducing the principal amount owed to be in line …

From Trespasser To Homeowner: The Case Against Adverse Possession In The Post-Crash World, Kristine S. Cherek

Kristine S Cherek

Since the financial crisis began in September of 2008, there have been approximately 3.7 million completed foreclosures in the United States, and approximately 1.4 million additional homes are currently in some stage of the foreclosure process. In the midst of this post-housing crash world, the centuries-old doctrine of adverse possession is gaining new attention. This Article examines the doctrine of adverse possession as it may be used, and as it is currently being used, with respect to residential properties that stand vacant as a result of foreclosure actions. As adverse possession is currently construed in a majority of states, a …

Wall Street Rules Applied To Remic Classification, David J. Reiss, Bradley T. Borden

David J Reiss

Investors in mortgage-backed securities, built on the shoulders of the tax-advantaged Real Estate Mortgage Investment Conduit (“REMIC”), may be facing extraordinary tax losses because of how bankers and lawyers structured these securities. This calamity is compounded by the fact that those professional advisors should have known that the REMICs they created were flawed from the start. If these losses are realized, those professionals will face suits for damages so large that they could put them out of business.

Adr’S Place In Foreclosure: Remedying The Flaws Of A Securitized Housing Market, Lydia Nussbaum

Lydia R. Nussbaum

Millions of Americans lost their homes during the foreclosure crisis, an unprecedented disaster still plaguing local and national economies. A primary factor contributing to the crisis has been the failure of conventional foreclosure procedures to account for the new realities of securitization and the secondary mortgage market, which transformed the traditional borrower-lender relationship. To compensate for the shortcomings of conventional foreclosure procedures and stem the tide of residential foreclosure, state and local governments turned to ADR processes for a solution. Some foreclosure ADR programs, however, have greater potential to avoid unnecessary foreclosures than others. This article comprehensively examines the key …

Adr's Place In Foreclosure: Remedying The Flaws Of A Securitized Housing Market, Lydia Nussbaum

Lydia R. Nussbaum

Millions of Americans lost their homes during the foreclosure crisis, an unprecedented disaster still plaguing local and national economies. A primary factor contributing to the crisis has been the failure of conventional foreclosure procedures to account for the new realities of securitization and the secondary mortgage market, which transformed the traditional borrower-lender relationship. To compensate for the shortcomings of conventional foreclosure procedures and stem the tide of residential foreclosure, state and local governments turned to ADR processes for a solution. Some foreclosure ADR programs, however, have greater potential to avoid unnecessary foreclosures than others. This article comprehensively examines the key …

Opening Doors: Preventing Youth Homelessness Through Housing And Education Collaboration, Courtney L. Anderson

Courtney L Anderson

This article will contribute to the general literature on homelessness by recommending that permanent supportive housing units for homeless children, youth and families provide education services in order to prevent and end homelessness among families, youth and children. I will explain how the legal framework for such housing requires a broad interpretation of the McKinney-Vento Homeless Assistance Act, and assert that federal programs provide a foundation for the creation of such housing. Identifying and educating homeless youth is particularly challenging as the majority of homeless youth live on the streets or in the homes of others, suffer from serious mental …

Exclusionary Zoning Enforcement, Passé Or Alive And Kicking?, Tim Iglesias

Tim Iglesias

This article reviews several recent state cases challenging zoning actions as exclusionary. It identifies patterns in the cases and finds that under certain circumstances courts will limit local governments’ exclusionary actions.