May 13, 2025 Gregory M. Stein
Community Land Trusts (CLTs) form a small but important part of the affordable housing mosaic. Preserving Affordable Homeownership: Municipal Partnerships with Community Land Trusts, a Policy Focus Report of the Lincoln Institute for Land Policy, describes the many ways in which state and local governments can assist CLTs and help maintain the affordability of housing units indefinitely. Co-authored by John Emmeus Davis, an experienced city planner, and Kristin King-Reis, a lawyer whose clients include CLTs and other non-profits, the Report offers a comprehensive and readable guide to how CLTs operate and how state and local governments can increase the likelihood they will succeed.
The Report begins with a history of CLTs and ends by offering a series of policy recommendations. These sections bracket a set of chapters examining various facets of the relationship between CLTs and government bodies.
While there is considerable variety among CLTs, a typical structure involves land that is owned by a non-profit CLT, on which it builds homes. Individual units are then ground leased to moderate-income buyers, who own the structures but lease the land.
“Later, if homeowners decide to move, they must resell their subsidized homes for a formula-driven price that other income-qualified homebuyers can afford. By maintaining ownership of the land and capping the resale price of a home across multiple resales, a CLT can usually keep homes affordable for many years without the need for additional infusions of public capital.” (P. 16.)
Thus, what distinguishes CLTs from most other affordable-housing programs is that the unit remains reasonably priced to successive owners over a prolonged period of time. This structure does not provide a subsidy solely to the initial owner, who would then retain the value of any appreciation upon resale at the market price. The CLT oversees the project over time, ensuring that the homes remain affordable and that the units are well maintained, and assisting those owners who suffer financial reverses.
The middle chapters focus on a range of issues that can arise between CLTs and government bodies. Chapter 2, for example, emphasizes the ways in which municipalities increasingly offer support to CLTs and provides a “menu of municipal largesse.” (P. 26.) Governments might, for instance, offer funding for staffing or provide this staffing themselves, at least for the first several years. Alternatively, governments might purchase the land and then donate it to the CLT.
Chapter 4 describes the different methods by which affordable homes that last can be subsidized. Some CLT homes, for instance, are low- or zero-equity co-ops. Here, not only does the CLT own the land, but the building itself is owned by a cooperative corporation that has the ability to secure mortgage financing on the entire project.
Under this cooperative structure, the subsidy can apply to part of the building and not just the land, homeowners can buy in with a smaller downpayment, and lower-income families can have access to homeownership. “As a result, homeownership can be made accessible to households whose income is much lower than that of people who have the wherewithal to purchase a house or condominium.” (P. 42.)
Chapter 4 is of particular interest to readers who are lawyers because it also discusses other types of regulatory support that government bodies can provide. These include regulatory concessions and bonuses, such as density bonuses, reduced impact fees, parking waivers, and expedited permitting. Here, the government is providing a subsidy in-kind rather than, or in addition to, direct financial support.
Chapter 6 turns the focus to local tax issues. In particular, it argues that CLTs should benefit from the fact that local real estate taxes should be set on the basis of an appraised value reflecting the fact that homeowners do not have fee title to the land underlying their houses.
Even without providing extra benefits to owners in CLT projects, then, local government can impose taxes that reflect the true—lower—value of these homes. Actual results, though, turn out to be uneven, in part due to resistance from property assessors in some locations.
Chapter 7 emphasizes the types of CLT-specific legislation that states can adopt to support the development and viability of CLT projects.
The Report’s final chapter, appropriately, lists and describes recommendations for preserving partnerships between CLTs and municipalities. Most significantly, this concluding section argues that states should invest in ongoing stewardship of these long-lasting projects and not just initial development.
In addition, this prescriptive conclusion argues in favor of grant funding rather than loans. And it recommends that these projects should be sustainable ones that recognize how climate change is affecting all types of real estate development, even if this is more costly in the short run.
One topic the authors might have devoted more attention to is the fact that CLTs limit the ability of their residents to build wealth via increasing home equity. For many Americans, their most valuable asset is their home, which appreciates over time even as the owner gradually pays off the home mortgage loan. By capping profits, the CLT accomplishes one goal, that of maintaining the unit’s affordability over time, while undercutting another, that of helping homeowners accrue wealth in the form of home equity.
This places CLT owners at a disadvantage in expanding their net worth as compared to other residents. In short, whatever subsidies are provided by governments or donors are shared by consecutive owners rather than retained by the initial owner. There is no correct answer to this question of course, but merely a choice that must be made between two important but inconsistent policy goals.
This Report serves as a useful introduction to CLTs for those who may not be familiar with what they do and how they operate. It traces the history of these projects and notes the ways in which they have evolved over the past few decades. It stresses the importance of partnerships with state and local governments and the different types of support these governments can provide.
The Report is also presented in an extremely user-friendly format, with sidebars, illustrations, graphs, and tables, as well as photographs illustrating how some of the text’s examples actually look. It is a beneficial contribution to the literature, a good introduction for newcomers to the subject, and a strong advocacy piece for increased public-private partnerships that can support the construction and ongoing maintenance of one type of affordable housing.
Apr 21, 2025 Sara Bronin
As extreme weather and natural hazards increase, policymakers must do a better job of ensuring that people live out of harm’s way, and build in a manner compatible with our changing planet. Land use laws, which in the United States are primarily the province of local governments, could help achieve more rational outcomes. Local zoning laws, in particular, have the potential to ensure that future development avoids risk-prone areas, because zoning dictates much of what gets built in this country. Yet as Professor Jonathan Rosenbloom points out in his latest article, Sacrifice Zones, few local governments have harnessed zoning’s powers to protect people and their places.
Rosenbloom contends that local governments have neglected zoning instead of changing and updating their codes as conditions change. I would probably go a little farther than Rosenbloom. When they have amended zoning rules, local governments often made the problem worse by permitting more development in areas prone to floods, wildfires, or extreme temperatures. Overall, poor land use planning, epitomized and reinforced by ill-conceived zoning rules, has accelerated disaster impacts and myriad losses of life, livelihoods, homes, neighborhoods, cultural resources, and communities.
What can be done to curb these losses? Rosenbloom points to the potential benefits of zoning laws that designate high-risk areas to be “sacrifice zones,” and then regulate those areas to eliminate or thwart new development, to facilitate relocation to safer areas, or to enable nature to regenerate.
To explain how this might be possible, Rosenbloom begins his article with a primer on several key flexibility devices already available to local officials exercising zoning authority. He first cites the ways in which an individual property owner can petition for a variance offering relief from strict compliance with the zoning code, or for a conditional use permit providing special permission to build after the satisfaction of certain conditions.
Rosenbloom explains that these property-specific flexibility devices cannot address climate issues at scale. Instead, he argues for more systemic solutions that modify zoning districts or that reclassify larger tracts of land. As one example, he points out that localities can create “overlay” zones tailored to geographic conditions or certain development goals. Overlays that require managing stormwater, planting trees, or establishing open-space areas could help address some of the policy goals Rosenbloom identifies in the article.
He also proposes that local governments set up systems to allow owners of property in sacrifice zones to transfer (i.e., sell) development rights to owners of property in safer areas. This strategy has been used in New York City to soften the blow of historic preservation regulations (and was sanctioned by the Supreme Court in the 1978 Penn Central case we all read in 1L Property Law).
Rosenbloom distills his suggested approach to sacrifice zones into a fairly simple set of rules based on whether people already live there. If an area is uninhabited, he suggests a moratorium, or at least limitations on new development. If an area is inhabited, then he suggests not only development limitations but also strategies to facilitate relocation.
He contends that even some of the more controversial proposals could avoid Takings Clause claims. And he urges localities executing such strategies work for justice for marginalized groups. On this last point, Rosenbloom explains that the term “sacrifice zones” originated in the 1970s, but more recently the term was adapted by environmental justice scholar Robert Bullard to refer to polluted areas inhabited by minority and poor people, who have been sacrificed along with the land. Rosenbloom is careful to explain he’s using the term differently in this piece.
As he suggests different approaches, Rosenbloom evaluates them too. I couldn’t help but think that in writing this article, he must have drawn from his experience building the Sustainable Development Code, a digital assemblage of the best strategies local governments are deploying to enhance their resilience and equity. (Full disclosure, I served on the advisory board of that project from 2018-2022.) The Sustainable Development Code grades the assembled strategies as “good,” “better,” and “best.”
Sacrifice Zones features what Rosenbloom considers to be the “best” strategies, but he would acknowledge that we still have a long way to go to fully understand the scope of the climate crisis and the scale of necessary solutions.
I would be remiss if I did not point out a project that is trying to fill some of those knowledge gaps: the National Zoning Atlas, which has made publicly available the regulatory characteristics of zoning on land where over 130 million Americans live. (Much of our progress happened since Sacrifice Zones was published.) The Atlas’s findings reinforce Rosenbloom’s observations that zoning in far too many places jeopardizes people and the places they call home.
Plenty of people will object to the ideas Rosenbloom presents. Few communities will raise their hands and ask to be zoned out of existence. Elected officials will balk at the prospect of telling people they must “sacrifice” anything. And planners will be wary of pushing sacrifice zones lest they suffer professional and emotional consequences from their community’s ire.
But Sacrifice Zones reminds us that change is inevitable, and that abstract discussions about policy must be grounded in, and taken more seriously after, each weather-related catastrophe. The article should be required reading for anyone working to understand some of the legal options we’ll have to choose from, sooner or later.
Mar 20, 2025 Shelley Ross Saxer
Jessica L. Asbridge,
Fines, Forfeitures, and Federalism, 111
Va. L. Rev. __ (forthcoming, 2025), available at
SSRN (Feb. 29, 2024).
Government has abused its authority with respect to discretionary fines and forfeitures that serve as a significant source of revenue for federal, state, and local governments and have a disproportionate impact on poor and disadvantaged communities. Similarly, local government abuses have occurred in land use regulation when the government seeks to obtain private property in exchange for granting a permit by requiring either a physical or monetary exaction. Professor Jessica Asbridge’s new article, Fines, Forfeitures, and Federalism, brings together these two seemingly unrelated areas of potential government abuse—exactions and discretionary fines and forfeitures.
The exactions doctrine allows the government to condition its approval of a permit it could otherwise deny so long as there is “nexus” and “rough proportionality” between the property the government demands in exchange for the permit and the adverse effects caused by the applicant’s project proposal. This higher level of scrutiny applied to exactions protects property developers against abusive government officials acting to extort as much revenue as possible to devote to community infrastructure. Professor Asbridge’s work suggests that heightened scrutiny is appropriate for both exactions requiring payments to the government in land use regulation in exchange for permission to develop and discretionary fines and forfeitures for state and local code violations.
The U.S. Supreme Court expanded the applicability of the Eighth Amendment to the states when it held in Timbs v. Indiana that the Excessive Fines Clause is incorporated into the Due Process Clause of the Fourteenth Amendment. This constitutional provision is now available to allow the impoverished and disadvantaged to challenge fines and forfeitures imposed by state or local governments that are “grossly disproportional” to the offense. And, the Court has supported heightened scrutiny of exactions due to concerns about the government’s misuse of power through extortionate demands for property and coercion in the land permitting processing. It has rejected federalism arguments that a deferential standard is more appropriate.
Professor Asbridge points out that discretionary fines and forfeitures present similar concerns of government overreach as exactions because they often generate millions of dollars in revenue that directly funds state and local governments. She argues that courts thus should apply heightened scrutiny to these fines and forfeitures as well, despite any federalism principles indicated.
Asbridge employs an illustrative, but alarming, decision involving $28,500 in fines and interest for uncut grass to explain two of the key questions that remain after Timbs. First, does the Excessive Fines Clause apply to civil fines that are not part of a criminal proceeding? Second, what level of scrutiny should a court apply when a fine is below the statutory maximum?
In Ficken v. City of Dunedin, James Ficken violated a city ordinance by allowing his grass to exceed ten inches—he failed to mow his lawn. Granted, these violations continued intermittently between 2015 and 2018 when the city board ultimately imposed a $500-per-day fine for the period from July to August 20, 2018, with a grand total of $28,500 in fines plus interest.
When Ficken was unable to pay the fine, the board began foreclosure proceedings against his home to satisfy the debt. He challenged the fine in federal district court as violating the Excessive Fines Clause, which the court rejected and the Eleventh Circuit affirmed. When writing this Jot, I became concerned about poor Mr. Ficken and wondered whether he actually ended up losing his house for failing to mow his lawn. If you are interested, here is a link to an article from April 19, 2024 that tells us he settled with the city and is still in his home. I guess you can fight city hall after all.
Professor Jessica Asbridge’s excellent article encourages us to fight for the impoverished and vulnerable against local government abuse in code enforcement, just as we currently fight against local government abuse of land developers in land-use permitting. We should be willing to protect property based upon the neutral application of constitutional principles at all levels of economic status using heightened scrutiny whenever there is a greater potential for government abuse because of discretionary decisionmaking. Here’s to the Takings Clause for discretionary exactions and impact fees and the Excessive Fines Clause for discretionary fines and forfeitures!
Cite as: Shelley Ross Saxer,
Penalties, Payments, and Power, JOTWELL
(March 20, 2025) (reviewing Jessica L. Asbridge,
Fines, Forfeitures, and Federalism, 111
Va. L. Rev. __ (forthcoming, 2025), available at SSRN (Feb. 29, 2024)),
https://property.jotwell.com/penalties-payments-and-power/.
Feb 18, 2025 Andrea Boyack
Ezra Rosser,
Progress and the Taking of Indigenous Land, 85
Ohio St. L.J. __ (forthcoming, 2024), available at
BePress (Jan. 1, 2024).
Property is both “freedom” and “theft.” Takings jurisprudence in the United States evokes both these paradigms, sometimes justifying and sometimes condemning the exercise of eminent domain. For example, in the now-infamous 2005 case of Kelo v. City of New London, a divided Supreme Court barely upheld a government taking of a home to promote economic development. Twenty years prior, a unanimous Supreme Court easily upheld a government taking of Hawai’ian land for economic purposes in Hawaii Housing Authority v. Midkiff. Interestingly, although widespread public outrage in response to the taking of Suzette Kelo’s “little pink house” has raged since 2005, the taking upheld in Midkiff continues to be shrugged off as economically justified. Why the difference?
Professor Ezra Rosser’s forthcoming article, Progress and the Taking of Indigenous Land, reframes the United States Supreme Court 1984 holding in Midkiff to better explore the property tensions in takings law by placing the case in its broader context. Although the Courts opinion speaks in terms of market competition, the taking at issue pertained to land (‘āina) held by and for the benefit of native Hawai’ians. Rosser’s reconsideration of Midkiff importantly re-situates the case—and takings law in general—within the long and troubling history of indigenous property dispossession in the United States.
Rosser cuts through Midkiff’s rhetoric and exposes its reality. The Midkiff opinion, authored by Justice O’Connor (who, ironically, later authored the strongly worded dissent in Kelo), characterized the contested Hawai’ian eminent domain plan as an attempt to rectify market inefficiencies caused by a housing “oligopoly.” The Hawai’ian Land Reform Act compelled landowners to convey title to their tenants, and Justice O’Connor framed this law as a justifiable way to increase homeownership in the state.
The Midkiff opinion avoided focusing on or even discussing the identity of the plaintiff and the context in which it held title. The case was brought by the Bishop Trust—the largest and most important non-governmental landowner in Hawai’i that was disproportionately impacted by the takings scheme at issue.
The Bishop Trust, a non-profit foundation that had been entrusted with title to royal lands for the benefit of native Hawai’ians, had been created and given property in order to preserve native ownership of Hawai’ian ‘āina. And the Bishop Trust used revenues from renting the land to fund a school for native Hawai’ian children. The Midkiff taking, therefore, did more than break up large land holdings, it sanctioned native homeland deprivation in Hawai’i.
Rosser’s thesis is that the history and fate of the Bishop Trust provide a twentieth century example of how indigenous people’s property rights continue to be “routinely sacrificed to accomplish progressive property goals” (P. 7). The treatment of Trust lands mirrors other instances in which native lands have been “taken and transformed into the raw material necessary for creation of public space and democratization of land holdings” (P. 7). The truth behind Midkiff is thus a recent version of a familiar story.
In the 1823 United States Supreme Court decision, Johnson v. M’Intosh, Justice Marshall held that “Indians” had no legal right to own land because they were “fierce savages.” Marshall explained that allowing indigenous people to remain on their homelands would impede progress and development of the country. Marshall’s refusal to recognize “Indian occupancy” as ownership lay the groundwork for multiple subsequent instances of legally blessed government seizure of native lands and resources without compensation or consent.
Rosser points out that taking property from indigenous peoples is so normalized that the “Court is comfortable saying the quiet part out loud: the nation’s progress and development depend on limiting Indian rights.” (P. 50). Versions of this same willingness to dispossess indigenous populations of property rights continue today—for example, in disputes regarding water rights to the Colorado River, use of native lands for solar energy projects, and the construction of oil pipelines.
Our legal system continues to generally ignore and diminish indigenous claims to land. Rosser observes that insufficient contextualization of the Midkiff decision obscures its part in this continuing pattern of colonialization. As in other cases of indigenous dispossession, the forced indigenous ownership transfers in Midkiff tended to primarily benefit wealthy entrepreneurial interests.
Rosser explains that the eminent domain program upheld in Midkiff “worked as it was designed to work, disproportionately taking residential leasehold property from the Bishop Estate—and from the Native Hawaiian children who were the beneficiaries of the trust—and turning it over to the relatively wealthy tenants living on leased land.” (P. 30).
For the past four decades, the Supreme Court’s contemporaneous “framing of the case as an anti-oligarchy case has largely claimed the day,” says Rosser (P. 57). But it is essential to finally pull back the curtain and recognize the substance behind the Midkiff spin.
The injury to indigenous peoples caused by loss of their homeland goes beyond economic loss. Most native cultures and identities deeply connect with their natural environment.
For Hawai’ians, ‘āina is an emotional and sacred concept, essential to well-being and identity. Even the western legal tradition recognizes that real property is unique and should generally be protected by “property remedies” (e.g., specific performance and injunctions).
If there can be no liberty without property, the United States cannot claim to be the land of the free while continuing to ignore native people’s rights to their land.
Jan 22, 2025 Yael Lifshitz
Professor Shoemaker, in her article, Re-Placing Property, shines a light on a surprisingly understudied, yet immensely important point. She explores that the law of real property encompasses both situations when land is held for its use value and when it is held for the wealth it represents as a form of investment. Through this work, Professor Shoemaker elegantly and thoughtfully reminds us of this fundamental truth, which likely rings true with every property scholar and student.
Picture a typical family house. The house can be held by a family that uses it daily. The kids’ growth chart is etched in the kitchen pantry and the backyard holds the memories of many birthday parties. The same house; however, can also be held by an investment company, a corporation that holds it for the sake of profit. Same house. Same law of real property. Vastly different purposes.
The idea of land as land dominates our legal imaginations and our everyday use of the language. When we say “house” we picture a family holding it for its use value. Likewise, when we think of farmland, we imagine hardworking farmers caring for the crops and livestock.
But the reality of land ownership in the US is different: profit-making portfolios of various kinds, from pension funds to real estate investment trusts (REITs) hold a significant share of the rural lands in the US. Control over rural land is concentrated in the hands of billionaires and foreign investors. As for family homes, according to some estimates, by 2030, forty percent of single-family homes in the US will be owned by institutional investors.
The key contribution of Professor Shoemaker’s article is in drawing attention to the fact that land as land, and land as wealth are not the same, in either economic or social terms. Yet “property” as a category, as the conceptual tool that allows us to govern resources in a distributed manner, applies to both. By applying the same set of doctrinal rules to both, despite their vast differences, we are missing an important aspect of land as land. We are missing the significance of cultivated lands, a street you grew up on, or sacred spots. In short, we are missing the importance of the places we live in and love.
Professor Shoemaker underscores the significance of people-place relationships, which are both pragmatically and normatively significant. A place is specific and unique. An investment, on the other hand, is merely a place-holder for fungible monetary interests.
She underscores, first, as a descriptive matter, the ways in which property law respects and reinforces the people-place connection. A notable (historical) example of the people-place connection is Homesteading, which was deliberately place-sensitive, demanding both physical residency and material improvements as conditions for establishing ownership.
Another (contemporary) example is the rules that mitigate the harshness of residential foreclosure. These rules embody an understanding that one’s home is a unique and specific place, which deserves an additional layer of protection during times of financial hardship.
Property law also sometimes deliberately ignores the people-place connection. Consider for instance how ownership is not dependent on physical possession or owner-residency. You could hold a fee simple to a house or a piece of land without ever setting a foot there. “Absentee ownership”, as Shoemaker calls it, also facilitates the prevalent practices of housing investment and build-to-rent developments. Absentee ownership is a prominent example of how property choses to de-couple place and people.
Importantly, the people-place-property relationship is one of mutual influences. Our connection to places has, in the past, shaped our property law and concepts, and it continues to do so today. At the same time, property shapes our attachment and connections with places.
Second, the people-place relationship has normative significance as well. Whether to value and prioritize place (or not) is a choice we make.
Consider build-to-rent housing (which is made possible due to absentee ownership). The worry is that large institutional investors can use their power and increasing hold over the housing market to dramatically drive-up rents while neglecting the physical upkeep of the houses and reducing related services. The result will be especially detrimental to those of lesser means. This, in turn, will also impact housing prices beyond the rental market, impacting homeownership rates and affordability more broadly. This kind of complete disembodiment from place, treating land just as wealth, can be risky.
Place-attachment and recognizing land as land for its use value, can have positive impacts on people, including forming and strengthening identities, building and harnessing local-based knowledge, and managing resources in a responsible way. Although we could also have too much of a good thing. Overprotecting existing attachments to specific places can, for instance, limit the ability of new entrants to gain a foothold.
Ultimately, it seems to be a matter of finding (or constantly searching for) the right balance. Professor Shoemaker urges us to “think more carefully about this spectrum of attachment-related values,”; to better evaluate our choices in this regard and the instances in which place-related claims are invoked either as a sward or as a shield. (P. 854.)
Professor Shoemaker’s thoughtful framework offers a different way of understanding the threads that tie property together. The focus on place is a helpful lens through which property can be both described and evaluated. In an era when so many of our challenges are property related – from housing inequalities to resource governance in the context of climate – such a lens is a welcome addition to scholars and policymakers’ toolkit.
Dec 3, 2024 Shelby D. Green
In Churching NIMBYs: Creating Affordable Housing on Church Property, Professor Patrick E. Reidy, describes how churches around the nation are seeking “theologically and morally sound uses for their underutilized property,” in particular, by building affordable housing to meet the material needs of the un- or poorly-housed.
Religious institutions are huge urban landowners. For instance, across Cook County, Illinois (home of Chicago), the Roman Catholic Archdiocese owns a staggering 5,500 acres; 880 within the city. Two-thirds of these acres are situated in areas zoned exclusively for single-family homes. Historically, the church was not in the business of constructing housing or using its property to provide permanent housing. Consequently, much of this land is used as places for people to park their cars.
Alas, carrying out this spiritual mission for churches to use their property holdings to advance theological and moral missions may be impeded by temporal land use regulations. Professor Reidy strives ably to make the case for some sort of religious dispensation for use of church land for the construction of affordable, multifamily homes in zones that otherwise prohibit such use. He appeals not to an almighty, but to the earthly system of laws, in particular the First Amendment and the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §§ 2000cc, et seq.
He admits that “religious liberty” is a novel response to exclusionary zoning but makes a solid case for it.
The advantages offered by these laws is that they place on the municipality the burden of justifying land use decisions and regulations under a heightened level of judicial scrutiny. Freedom of religion under the First Amendment, as a fundamental right, is subject to the law’s highest protection.
RLUIPA adds to this protection in the land use context by invalidating decisions and regulations that impose a “substantial burden” on religious exercise, unless there is a compelling governmental interest and the regulation is the least restrictive means of furthering that interest. Professor Reidy believes that not only can these laws check official governmental acts, but they may also deflate the air of NIMBY neighbors whose views often animate the stance of the decision-making politicians.
Professor Reidy claims that building affordable housing is a form of religious exercise, not unlike running day care centers and operating homeless shelters, which many churches do. While it goes beyond worship and ritual, the definition of religious exercise under RLUIPA is broad and fluid, to include ancillary activities, whether or not compelled by, or central to, a system of religious belief, including the use, building, or conversion of real property for religious exercise.
Even as repurposing existing structures or constructing new affordable housing might be seen as a religious exercise, whether enforcing a single-family zoning ordinance against the church imposes a substantial burden on that exercise is a more complicated issue. It may be if the construction of affordable homes is honestly driven by its religious mission and to accomplish this end, the church would have to acquire property elsewhere or engage in a land swap at a loss. In determining substantial burden, courts have focused on the significance of the activity to the institution and the material cost imposed by the regulation or decision.
Finding a substantial burden does not end the inquiry since the government act might yet be upheld if there is an underlying compelling governmental interest. Whether density limits, ostensibly supported by the usual host of evils attributed to multi-unit dwellings, meets the test is difficult to predict. This is largely because, under Ambler Realty, land use regulations are reviewed under a rational basis test, except where apparently racially exclusionary. See e.g., Mhany Mgmt., Inc. v. Cnty. of Nassau, 819 F.3d 581 (2d Cir. 2016) (finding zoning had been motivated, at least in part, by discriminatory animus).
Professor Reidy is not asking for a categorical “religious liberty” exception, but instead seeks indulgences for actions based on sincerely held religious beliefs to do societal good. But, in granting this permission, the planners would have a duty to ensure that no religious strings are attached to the affordable housing. As landlords, the church would be subject to the same rules that apply to non-religious entities, including anti-discrimination provisions that protect a host of personal characteristics.
On a larger theoretical plane, if religious institutions can obtain exemptions to build housing wherever they own land, why not also exempt secular institutions that believe that housing is a human right? The right to housing is embraced by the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights.
Sadly, in this country, it is only the taking of property by the government that is protected by the Fifth and Fourteenth Amendments as a negative right. The closest we came to recognizing housing as an affirmative right, was a pronouncement by the New Jersey Supreme Court in South Burlington County NAACP v. Mt. Laurel, 336 A.2d 713, 724 (N.J. 1975), that “every such municipality must, by its land use regulations, presumptively make realistically possible an appropriate variety and choice of housing.”
As Professor Reidy’s article suggests, the main obstacle to making housing affordable and accessible is the century-old system of community design that requires large lots, that is costly and that rigidly separates, not just housing types, but people, based on race and income.
More and more state governments are acting to remove some of the land use power from local governments and many have specified housing mandates. This article helps us to see how we can use existing federal laws to open up private land for private development of housing.
Nov 6, 2024 Sarah Schindler
In recent years, some states have attempted to address the U.S. housing crisis by pulling certain aspects of zoning control that affect housing supply away from local governments. In a few states, this preemption focuses on eliminating or limiting single-family zoning, while in others it more narrowly eliminates limits on accessory dwelling units (“ADUs”). State preemption has shown some promise (and also faced some legal challenges). Some land use scholars have questioned whether changing zoning laws is enough to address housing supply and affordability because much single family housing in the U.S. is within neighborhoods that are governed by covenants, conditions, and restrictions (“CC&Rs”). Those CC&Rs often mirror or go further than the local zoning code when it comes to restrictions on density, height, and residential use.
Ken Stahl’s new article addresses this concern head-on using examples from California which has both preempted local zoning and begun to limit or override certain CC&Rs. Stahl considers whether property owners have a viable claim under the Fifth Amendment Takings Clause when the state overrides CC&Rs so that owners can no longer rely on or enforce these restrictive covenants.
Stahl begins by describing older and more recent CC&R override legislation in California. The older laws include those that require homeowners associations to allow “small day care centers, group homes, [and] senior and employee housing.” The newer round of legislation prohibits homeowners associations (“HOAs”) from unreasonably restricting the construction of ADUs, and allows owners to construct housing that is 100% affordable on their land even if there are CC&Rs that restrict residential property use. He explains that these newer laws are different because they focus directly on housing density, which is often at the heart of exclusionary concerns expressed by HOAs and their members.
In the next part of the Article, Stahl considers the constitutionality of these CC&R overrides, focusing on whether they would withstand a takings analysis under Penn Central. He considers each of the three elements of the test, finding that the reasonable expectations prong would likely offer the most support to a neighbor challenging a state override of a CC&R as a taking: neighbors who live in communities with CC&Rs that limit housing density likely have a reasonable expectation that multifamily housing will not be permitted in their single-family communities. As he explains, “even if the wisdom of segregating uses is highly dubious, the fact that it has been enshrined in law for the last century works powerfully in its favor on the question of reasonable expectations.” (P. 618.)
On balance, though, Stahl determines that the homeowners would be likely to lose their takings claim. As we know, plaintiffs often lose under a Penn Central analysis, a factor of which can be that people’s investment backed expectations are already influenced by anticipating their property will be subject to land use regulation even before the regulation at issue is imposed. Further, Stahl suggests there has long been uncertainty about the enforceability of certain CC&Rs and it is reasonable to assume that as our public policies change, a state’s view about the enforceability of specific restrictive covenants might change. Here, Stahl notes that one of the justifications for CC&R overrides in California that limit housing density is because of the housing affordability and availability crisis in that state. Considering all of the above, Stahl asserts that even aggressive legislative overrides of CC&Rs are likely to withstand judicial scrutiny.
Stahl also briefly addresses whether the Contract Clause of the U.S. Constitution, which prevents the government from impairing contractual obligations, could be used to invalidate these overrides. Here, he notes that although the few decisions that have addressed CC&R overrides focus on the Contract Clause, the analysis is misplaced because he views CC&Rs as property rights rather than contracts. Thus, he believes courts should look at CC&R overrides as a potential deprivation of property rights which could violate the Takings Clause, rather than as a potential interference with contracts. Regardless though, Stahl suggests that even if they were considered under the Contract Clause, they would stand up, given that the analysis “strongly favors the government as long as the government can articulate a legitimate public policy interest and a reasonable connection between that interest and the means employed.” (P. 629.) For example, he points out that in one case, a court examined a legislative override of a CC&R that prohibited family day care centers. The court there found that the statute was appropriate even though it worked a significant impairment.
He concludes by noting that, even if the current types of legislative CC&R overrides withstand judicial scrutiny, we might expect to see more aggressive overrides that focus on more than just 100% affordable housing developments. Legislation that seeks to override density restrictions in CC&Rs in favor of constructing more market-rate housing might face political and legal opposition. But, Stahl notes, the real fight will be over loosening existing zoning restrictions; “[o]nce that debate is over, liberalizing CCRs is something of an afterthought.” (P. 632.)
Oct 3, 2024 Ezra Rosser
Elizabeth Elia,
Embrace the Suck: Why States and Localities Should Use Property Rights to Fix Broken Housing Voucher Programs, 28
Lewis & Clark L. Rev. __ (forthcoming 2025), available at
SSRN (June 17, 2024).
Embrace the Suck: Why States and Localities Should Use Property Rights to Fix Broken Housing Voucher Programs is a wonderful academic contribution that moves fluidly from high theory to more grounded, practical questions. By combining detailed discussion of how housing vouchers work in practice with insights gleaned from more progressive property scholarship, Professor Elizabeth Elia’s article succeeds in speaking across the practical/theoretical divide.
Those whose work focuses on subsidized housing should read the article. And, it also should interest those who focus on broader theory because it stands as an example of how theory can open up the range of policy alternatives.
The problem the article seeks to address is the inability of one-third of voucher recipients to place their vouchers—i.e. to find a landlord willing to rent to them through the program—within the limited time they have to find such a placement.
As Professor Elia highlights, landlords in the poorest areas often welcome voucher holders because of the stability associated with vouchers and the possibility of up-charging for their units. In other areas, landlords often discriminate against voucher holders. It can be hard for voucher holders to place their vouchers for a variety of reasons, including because landlords do not want to comply with the voucher program’s requirements, such as a housing inspection, or for other reasons.
In response to these hardships, an increasing number of states and localities are passing laws banning source of income discrimination (SOID). Such legislation requires landlords treat voucher holders who are able to afford a unit with the voucher the same as other perspective tenants. The heart of Professor Elia’s article is her coverage of the nature of SOID laws, their limited reach, and the success landlords have had challenging these laws.
The article abounds in details which housing scholars will relish. Most SOID laws are packaged in terms of human rights. Landlord backlash to SOID laws are leading states to pass legislation prohibiting such protections and courts have created loopholes that allow landlords to discriminate without running afoul of SOID laws. Professor Elia’s coverage of empirical studies looking at voucher discrimination, even in jurisdictions with SOID laws, makes it clear that such legislation is hardly a panacea.
The article transitions at the end to an exploration of how vouchers might be enhanced so that they would be more attractive to landlords and, as a result, would be easier for tenants to place. Drawing upon some broad ideas and themes advanced by progressive property scholars, Professor Elia argues that state and local governments should provide landlords renting out units to voucher holders with additional rights as a way to incentivize their participation in the program.
As the article highlights, through programs that tie subsidy level to rental rates within a small area or by decreasing program costs, the Department of Housing and Urban Development (HUD) is already making efforts to increase the value of vouchers. Professor Elia’s contribution is to highlight ways that states and localities might piggyback on such efforts by associating additional property rights—including tax and permitting advantages—with vouchers.
By moving from what is (an acknowledgement that SOID laws are helpful but will not solve the placement problem) to what if (suppose local governments added property rights to the rights already provided by federal housing vouchers), Professor Elia shows how progressive property theory can broaden the range of possible policy solutions. Even with all the limitations and challenges involved in the current housing voucher subsidy regime, local governments can open up more of the market and more of the city to voucher holders by thinking of vouchers as a property right that can be tweaked.
Whether you are a property person, a poverty law person, or just someone looking for a well-written and somewhat optimistic approach to a longstanding policy problem, Professor Elia’s article is worth reading.
Sep 6, 2024 Serena Williams
When considering what qualifications a tenant should have to be eligible to lease a unit, landlords often consider tenant screening reports that give an account of a tenant’s income, credit history, criminal background, and past eviction history. After reading Professor N. A. Pappoe’s article, The Scarlet Letter “E”: How Tenancy Screening Policies Exacerbate Housing Inequity for Evicted Black Women, we may all want to reconsider the use of tenant screening reports that contain information on these aspects of a tenant’s background.
Pappoe argues that the use of these reports by landlords has a disproportionate impact on Black women, preventing them from obtaining rental housing, both public and private. She suggests that the Fair Housing Act should be interpreted to find that landlords using these screening reports are liable for the disparate impact the policies and practices have on Black women and she proposes legislative fixes to address the issue.
Landlords often hire tenant screening companies to compile background reports on prospective tenants. The reports are used to make a decision whether to offer a lease to a tenant or to decline the tenant the housing opportunity. The reports may include the criminal background, credit history, and eviction history of that prospective tenant.
One issue that Pappoe outlines is the accuracy and thoroughness of these eviction history reports. For example, screening agencies may not differentiate between case outcomes in eviction proceedings. Cases may be settled, or they may be dismissed for a lack of good cause to evict a tenant or for an agreement that allows the tenant to remain and to continue to pay rent. Unfortunately, the eviction filing will remain part of the tenant’s record. A screening company will then report the eviction filing to the landlord, but it will not report that the parties settled or even that the tenant won the case. The report will make no distinction between an eviction filing and an eviction order, leaving the tenant to bear the “scarlet E,” a mark that will affect the ability of the tenant to secure affordable housing in the future.
Pappoe argues that Black women impacted by this tenant screening process should be allowed to bring a claim of housing discrimination under the Fair Housing Act (FHA). The FHA allows for two categories of housing discrimination claims: disparate treatment (intentional discrimination) and disparate impact. Disparate impact cases involve facially neutral policies and practices that have a discriminatory effect on a protected class. Black women impacted by tenant screening reports should be able to bring FHA claims under the disparate impact theory. Black women, because of their race and gender, are a protected class under the FHA that is disproportionately impacted by the practices of landlords in relying on the reports and by the screening companies in compiling the reports.
Whether tenant screening companies can be held liable under the FHA is debatable. On one hand, the companies may be found to not engage in the “sale or rental” of housing as required under Section 3604 of the Fair Housing Act. On the other hand, a broad interpretation of the “otherwise make unavailable” language of Section 3604 could bring tenant screening companies within the FHA. Pappoe notes that no court has yet ruled on whether tenant screening companies can be held liable under the FHA.
To bring a disparate impact case under the FHA, a plaintiff must meet a 3-part test. The plaintiff must first establish a prima facie case by showing a neutral policy or practice that has a disproportionate impact on persons in a protected class. The burden then shifts to the defendant to prove that the defendant has a substantial, legitimate nondiscriminatory interest in the practice. If the defendant meets that burden, the plaintiff can then show that the defendant’s interests could be met by a less discriminatory means.
In arguing that blanket tenant screening policies and practices have a disparate impact on Black women in violation of the FHA, Pappoe presents evidence that Black women are more likely than any other group to face eviction and to be evicted. They are more likely to be refused a lease when a landlord bases a decision on a tenant screening report. Thus, the blanket tenant screening policies disparately impact Black women. She goes on to assert that if a housing provider can establish that a blanket tenant screen policy is necessary to achieve a legitimate non-discriminatory interest, there is a less discriminatory alternative – landlords can use individualized assessments of a tenant’s eviction history. Landlords and other housing providers can consider the facts surrounding the eviction filing or judgement, including whether any errors or inaccuracies are in the report.
Throughout the article, Pappoe relates the problems with tenant eviction screening reports to the use of criminal records in employment and housing matters. She continues this comparison when offering legislative proposals to the negative impact of tenant screening reports, including the sealing and expungement of eviction records and “banning the box.” Sealing records would prevent courts from releasing information about evictions under certain circumstances. “Banning the box” would prohibit landlords from inquiring about an eviction filing that did not result in a judgment for the landlord or that was filed a number of years ago. Such proposals could reduce barriers to rental housing, particularly for Black women who are disproportionately impacted by the current use of tenant screening reports.
In the classic novel The Scarlet Letter, the protagonist is publicly humiliated by being forced to wear the scarlet letter “A.” The letter was meant to be a symbol of shame. Professor Pappoe’s use of “the scarlet letter” is a reminder of the humiliation imposed on prospective tenants who may have an eviction filing on their record that may prevent them from accessing housing opportunities, a problem that disproportionately impacts Black women. Her proposals, including the use of the Fair Housing Act to fight the discrimination, begin to remove that “scarlet E” and replace it with the address of a leased unit.
Cite as: Serena Williams,
Removing the Scarlet Letter, JOTWELL
(September 6, 2024) (reviewing Yvette N. A. Pappoe,
The Scarlet Letter “E”: How Tenancy Screening Policies Exacerbate Housing Inequity for Evicted Black Women, 103
B.U. L. Rev. 269 (2023)),
https://property.jotwell.com/removing-the-scarlet-letter/.
Aug 5, 2024 Carol Necole Brown
Noah M. Kazis,
The Radical Fair Housing Act, 111
Va. L. Rev. __ (forthcoming, 2025), available at
SSRN (February 27, 2024).
Is geography fate, as Ralph Ellison proclaimed; is geography our destiny; does it determine our life’s course? I tend to think so because my own personal life story has been incredibly, indelibly, positively impacted by geography. Perhaps this is why I was drawn to share Noah M. Kazis’ forthcoming article, The Radical Fair Housing Act. In his article, Professor Kazis describes the radical features and nature of the Fair Housing Act (FHA) that call into question whether housing markets should be restructured in pursuit of housing equality rather than conceding that housing equality may only be pursued within existing structures.
While some take the view that housing discrimination and segregation continue to persist, that an adequate stock of affordable housing continues to elude most communities, and that this evidences the failures of the FHA, Kazis’ approach is different, fresh, and yes, even hopeful. He has chosen to focus on the FHA’s strengths and its “structural ambitions” that make the FHA’s approach to discrimination “broader, more searching, and already more structural” than Title VII’s anti-discrimination approach. (P. 16.) This is not to say that Kazis ignores the FHA’s weaknesses; rather, he chooses to focus on the FHA’s “radical ambitions” because only by recognizing the distinctive nature of the FHA’s structure and approach to housing discrimination, can the FHA’s breadth and strength be fully appreciated and built upon.
Professor Kazis frames most of his discussion of the FHA, uncovering its radical structure and place within the most important civil rights legislation, by comparison with Title VII and its ban on employment discrimination. This analytical framework and baseline works well and makes obvious sense. A 5-4 majority of the United States Supreme Court in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, treated Title VII as an important piece of civil rights legislation that provides a framework for understanding the FHA. And, of course, the lower federal courts have also treated Title VII has the standard for anti-discrimination law, as Kazis notes.
Professor Kazis adeptly compares and contrasts the FHA’s distinct structure with that of Title VII as he makes the case to his reader that the FHA’s structural breadth and concept of the complexities of discrimination indeed exceeds that of Title VII. His structural analysis of the FHA occurs in five parts: [1] geographic allocation of opportunity; [2] economic organization of opportunity; [3] political organization of opportunity; [4] alternative opportunities; and [5] restructuring opportunity. Within these five areas, Kazis’ focus is on illuminating the vast potential of the FHA. Geographically, he describes the narrow way in which Title VII considers geography relative to the FHA. According to Kazis, Title VII never considers whether employers have created a fair allocation of employment opportunities through their geographic organization, in contrast to the FHA which routinely pays attention to the organization of housing markets and whether this organization creates or reinforces housing inequality. Discriminatory redlining, which is prohibited under the FHA, is an example of the FHA addressing harms that can arise when lenders do not open branches in minority neighborhoods and otherwise do not extend mortgage credit in minority neighborhoods, which affects access to housing.
Kazis also discusses how Title VII addresses economic opportunities more narrowly than the FHA. While Title VII does not address discrimination in the built environment; the FHA can help change the built environment. As an example, Kazis makes the case that generally, Title VII does not question the design of equipment in the workplace which might have a discriminatory impact against woman if, for instance, the equipment is designed for a typical male body-type. The FHA, in regulating the conditions that are necessary for equal access to housing, can help modify the built environment to change the range of housing options that are available, for example by “incentivizing” inclusionary zoning.
Kazis spends less time on political organization of opportunities likely because there has not been as much judicial activity in this area as in the geographic and economic spheres of his article. Kazis discusses the potential that the FHA’s breadth might be great enough “to question the very structure of local democracy” in the case in which a locality’s structure or incorporation itself is discriminatory. While Kazis acknowledges that this type of litigation may be on the very edges of FHA liability, this type of “structure of government” claim is clearly outside of the type of claim that would be cognizable under Title VII. (P. 32.)
Alternative opportunities for housing, in the context of the FHA, determine whether a plaintiff has incurred an injury. Kazis uses the example of a rezoning denial to illustrate his point. In a market beset by a housing shortage, denial of permission to construct affordable housing can create disparate impacts on protected classes of individuals. In contrast, in a market where there is a glut of affordable homes, it would be significantly harder to prove disparate impact. In contrast, in Title VII adjudications, job availability locally is irrelevant to the Title VII analysis which asks simply whether, at the “firm-level,” there has been employment discrimination.
Finally, as it pertains to restructuring, Kazis describes the distinction between Title VII and the FHA as follows. Under Title VII the job structure and the jobseeker’s qualifications are treated as fixed. In contrast, the FHA restructures both the opportunities that are available for renters and buyers and it can also restructure the nature of the qualifications of the renters and buyers by, for instance, protecting their ability to secure the prerequisites for housing (i.e. homeowners’ insurance) on a non-discriminatory basis.
After establishing this rich foundation, Professor Kazis takes a deep dive into the statute itself, explaining the structure of the text of the FHA—who is covered, what conduct is covered, its purpose, and legislative history. He concludes by helping the careful reader appreciate the contemporary significance of understanding the FHA’s radical ambition and building upon it. From affirmatively furthering fair housing to online platforms, Kazis makes the argument that the FHA has been a stronger vehicle for anti-discrimination litigation than other civil rights statutes.
Professor Kazis’ article highlights the FHA’s potential and looks for the good. He attempts to shape his reader’s understanding of the FHA as a statute that seeks to change the entire character of the domestic housing market. I appreciate his ambition and the expanded understanding of the FHA that Professor Kazis offers.
