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.
Jul 2, 2024 P. T. Babie
In a previous JOT, I wrote that private property is deeply ingrained not only in our liberal world, but also in our DNA. In Innate Property: The Danger of Incongruency Between Law and the Biological and Behavioral Roots of Property and Possessiveness, Aaron Schwabach provides important evidence of the latter fact, arguing that one finds those biological-behavioral origins in the “innate urge to exclude.” (P. 190.)
While the right to exclude is always found in law, this must be distinguished from our “proprietary instinct: The[]…innate urge to say ‘this thing is mine, and no one can use it unless I let them.’” (P. 191.) Schwabach calls this, simply, “innate property.” (P. 190.)
Schwabach deploys innate property to make sense of disagreements over property, especially those concerning limitations placed upon the exercise of the power conferred by property which “are almost always poorly received by…property owners.” (P. 191.) Schwabach argues that such disputes arise as a product of greater or lesser congruence between innate property and the formal system of property. At one end of a “continuum of congruence” exists greater correspondence between innate urge and law. The disagreement that arises when there is relatively more congruence involves the actual allocation of goods and resources. In contrast, when there is less congruence, the disagreement that arises tends to concern the underlying legal regime that produces unequal allocations.
Real and personal property exhibit the greatest congruence. With real property, the meaning of exclusion is obvious to both the person and to the law. For example, one can erect a fence around land, either notionally or with an actual fence, and create a barrier to those wishing to enter the land. Similarly, with personal property, the boundaries are almost as clear—one requires permission to use the things of another.
Yet, notwithstanding substantial congruence, our innate urge “exists independently from, and even in the absence of, any rights arising from the law” or, at the very least “the behavior patterns formed and socially reinforced over thousands of years have either supplemented or supplanted that instinct.” (Pp. 192, 195.) In the case of real property, a succinct statement summarises our attitude: that which “I occupy and use is mine, and my family’s.” (P. 194.) Similarly, with personal property, consider items in a shopping cart prior to purchase. Legally, they are still the property of the supermarket; however, those who place items in the shopping cart with the intent to purchase view the items as their own. We find, then, in the case of both chattels and of land, that disagreements arise over the allocation of those resources rather than the legal regime producing that distribution.
Intellectual property—principally encompassing control of the right to make copies of a work or mark, or to manufacture or make use of one’s invention—displays a clear, and uniquely human, behavioral source: “the expression of an idea belongs, in some way, to the person expressing it.” (P. 196.) That would be unproblematic until “most people live in a world of owned content”, as we do. (P. 196.)
Those who own content in such a world tend to establish their own use rules which bear only minimal correspondence to existing copyright law. Inequity in protection that arises as a consequence of limited correspondence is “exacerbated by the fact that the tellers of stories based on proprietary characters are disproportionately likely to be women, nonbinary, trans, genderqueer, or otherwise disempowered by traditional structures of intellectual property ownership.” (P. 197.)
Unlike the case of chattels and land, where differences are economic, “the inequalities in the distribution of intellectual property…are fundamentally legal: that is, they result from law’s recognition of certain forms of intellectual property to the exclusion of others.” (P. 198.)
Limited recognition of property in person and reputation amplifies inequity; liberal law accords less ownership in our own bodies than it does to chattels, land, or ideas. There may, of course, be good reasons for prohibiting ownership in our own body: “It prevents the poor from being transformed into reservoirs of spare parts for the rich by the inequities of an untrammeled market-based economy in conditions of high economic inequality.”
More often, though, “the general reluctance to recognize the body as property leads to absurd and tragic results in some cases, when patients whose genomes have made them valuable to medical researchers are unable to profit from the results of that research.” (P. 200.) Further examples include: when, as in Dobbs v. Jackson Women’s Health Organization, the law “den[ies] basic bodily autonomy to [women]”; or when the refusal to provide proprietary protection to reputation means that “[o]nly the famous…are protected.” (P. 202.)
What Schwabach reveals in this penetrating piece we might also call the behavioral trap: try as we might, the formal law of property can never fully escape the innate urge to exclude. And this analysis carries deep significance for law reform. If we seek the modification of private property—either: (1) to reinforce its justification and so public acceptance, or (2) to implement a more egalitarian allocation of power over goods and resources, if not of goods and resources themselves, we need to know how people will react to such changes.
If people push back against the formal content and structure of property, reform will be difficult, if not impossible, to sustain. We need to know why people might push back before we can embark on a project of reform.
Schwabach shows us that people push back against reform because they act from within a behavioral trap set by innate property. People push back, simply, because lawmakers fail to understand and account for the continuum of congruence.
As Schwabach writes “behavior…shapes property law” and, as such, “[w]hile economic injustice and maldistribution of…wealth…are severe problems causing widespread suffering, they come about not from a failure of law to incorporate its behavioral roots, but from the hierarchical nature of human societies and the natural human tendency to abuse power for self-enrichment.” This can result, especially where there is limited congruence, in law “representing [only] the interest[s] that those at the top of the pyramid have in controlling the bodies and selves of those less powerful.” (P. 203.)
Cite as: P. T. Babie,
Innate Property—A Behavioral Trap, JOTWELL
(July 2, 2024) (reviewing Aaron Schwabach,
Innate Property: The Danger of Incongruency Between Law and the Biological and Behavioral Roots of Property and Possessiveness, 2022
Cardozo L. Rev. De-Novo 190),
https://property.jotwell.com/innate-property-a-behavioral-trap/.
Jun 4, 2024 Shelley Ross Saxer
In her important new article, Soil Governance and Private Property, Professor Sarah Fox’s creative writing style captures the importance of soil by referencing the romantic aspects of trees and their connection to people, other trees, and a multitude of living beings including animals, birds, insects, worms, bacteria, and other microorganisms. Professor Fox suggests that local governments approach land-use planning with a goal of balancing soil health and private property ownership in a way that reflects the myriad of interconnections involved in managing and promoting soil health as a common resource.
Her selection of the story of trees to explain the connections between private property uses and environmental impacts on soil is brilliant, compelling, and makes a significant contribution to property, land use, and environmental law. Soil is an important natural resource that has received very little attention in legal scholarship. Legal frameworks have failed to address soil health at all levels of government, perhaps because “we take it for granted” or because it is not as exciting as other natural resources. In her article, Professor Fox identifies avenues of inquiry worthy of intellectual exploration with the goal of shifting the law to recognize soil as a common resource and protect soil health in the face of impacts such as erosion, biodiversity loss, and declining agricultural productivity.
Professor Fox proposes an alternative to viewing soil as private land. She asks that we view soil as a common resource that intersects and impacts individual private parcels. Should the law treat soil as both a resource and property in order to account for the interconnections that can protect soil health? Professor Fox challenges legal scholars, political actors, and lawyers to: [1] wrestle with the impacts of private actions on soil health and, [2] explore the use of government incentives and controls to preserve soil by managing coordination across property lines to avoid a “Tragedy of the Commons.”
The existing status of soil management and the diverse legal frameworks contribute to the soil health crisis in the United States. The fragmented legal governance system from the federal laws of CERCLA, RCRA, CWA, SMCRA, NEPA, and EIS, to state and local government regulations, mainly focuses on controlling the soil health of individual parcels of land. While we have agricultural statutes and agencies protecting soil resources at the federal level, these statutes and regulations do not mandate specific private actions to protect soil and instead offer only information-gathering programs. State and local governments heavily regulate soil management on individual land parcels, but do not take into consideration the interconnections among and between the parcels.
Zoning law, however, does seek to regulate the relationship between individual parcels and the community as a whole through comprehensive planning. This system of local regulation may prove to be effective in zoning for soil health at the local level. In addition, the Standard State Soil Conservation Districts Law (SWCD) authorizes states to create local soil conservation districts to address soil erosion. While these local and state regulatory frameworks acknowledge the relationship between private land use and soil health, they are underutilized. Local land use authorities are perhaps the best poised to take the lead in advancing soil governance to protect and manage soil as a common resource. State and local governments could experiment with different frameworks to tailor soil governance to local conditions. However, state and federal governments must also be actively involved in funding, information sharing, and guidance to help local governments attain their governance potential.
Soil is valuable to human existence through the many benefits it provides such as biomass, water filtering, biological habitats, vegetation growth, and capturing carbon. Its connection with real property ownership, and specifically with private ownership, complicates soil governance, as “[t]here is no dividing line between soil as a resource and soil as property.” (P. 34). Similar to air and water resources, soil impacts extend beyond private ownership boundaries and need to be managed, especially because agricultural uses and the cumulative impacts from smaller individual uses affect the broader ecosystem. Professor Fox’s article engages a fascinating topic and one that has mostly escaped notice over the years.
May 6, 2024 Gregory M. Stein
Many of America’s large coastal cities are prospering. Large, industrial rust-belt cities have struggled in recent decades, but some have begun to recover, making up for lost factories and shrinking populations with high-tech jobs that attract younger workers. But what about small to midsize industrial cities – places like Youngstown, Dayton, Trenton, and Harrisburg?
In their new report, Greening America’s Smaller Legacy Cities, Joseph Schilling, Catherine Tumber, and Gabi Velasco make the case that an equitable and sustainable low-carbon future is essential for smaller and midsize legacy cities to thrive. The path to this type of “green regeneration,” they suggest, requires a focus on three areas: (1) climate resilience; (2) environmental justice and equity; and (3) green economic development.
Cities are big polluters. Small (30,000-75,000 people) and midsize (up to 300,000 people) legacy cities lack the resources to address the pollution challenge and often have more pressing priorities to worry about. These cities tend to be older, and, while they are often more walkable and less dependent on automobiles, they frequently contain contaminated industrial property and typically lack the staff to focus on environmental issues.
Fortunately, government and philanthropic funding is available for smaller legacy cities that wish to tackle their environmental problems. These locales also have legal mechanisms at their disposal, particularly the ability to use land use policy productively.
When the authors turn their focus to legal levers, they observe, “Comprehensive land use planning, development processes, and zoning codes provide the policy foundation for smaller legacy cities to address the intersections of climate resilience, environmental justice and equity, and green economic development.” (P. 23.)
More specifically, the legal tools that cities can employ include climate action plans, climate equity plans, local resilience plans, green development codes, and equity zoning, each of which the authors explain and examine. These legacy cities can also increase their emphasis on transit-oriented development.
Many of these older cities retain the basic infrastructure that successful green cities need. Some have well-established transit systems. Many have older buildings that are still structurally sound, though often in need of significant rehabilitation. Small parks are also prevalent in these older cities. However, they need to fend off other urban problems that older cities face, such as the presence of heat islands in neighborhoods that formerly were redlined.
One concern that the increasing use of these methods may raise is that cities will gentrify, forcing out incumbent residents who can no longer afford to remain in their old neighborhoods. Given how challenged some of these smaller legacy cities are, however, the authors view this as only a modest concern, citing Buffalo’s success as an example.
Midway through their report, the authors address the question of how to begin the process of greening a smaller legacy city. In order to obtain access to outside funding, these jurisdictions will need to hire grant writers and sustainability coordinators to help increase their access. Unlike larger legacy cities, these smaller counterparts may not possess the necessary skills within their existing staffs.
In addition, these communities will need to determine what their baseline is so they can harness their existing strengths. These smaller cities need to engage the community in ways that ensure equity. They must encourage the development of new small businesses. And they can look to sister cities that have progressed further along with the greening process.
Moreover, given that these smaller cities lack the resources of larger communities, “[l]ocal governments cannot always directly access policy levers at the right scale for mitigating and adapting to climate change, so smaller legacy cities must take advantage of strategic collaborations and practical opportunities to prepare for historic transitions.” (P. 54.) They must customize their approach, working with local partners on initiatives that meet local needs. In short, they are too small and under-resourced to “go it alone” and must collaborate with funders and other partners.
Allies, such as the federal government and state governments, can help. The authors use two brief case studies from New York and Massachusetts as illustrations of successful collaborations of this type.
In sum, “Smaller legacy cities can be innovators in green regeneration, drawing on their regional land and water assets, surplus infrastructure, culture, and history.” (P. 64.) But for smaller cities to accomplish these goals, they must pursue “a new generation of policies and resources that respond to their socioeconomic and capacity constraints and that center equity and justice alongside economic development and sustainability.” (P. 64.)
Unlike traditional law review articles, the report is laid out in a visually appealing fashion, complete with color photos, maps, charts, graphs, tables, and sidebars. The report also makes frequent use of examples from smaller legacy cities that have succeeded in accomplishing some of these goals.
This report provides a useful analysis of a problem that has not received as much attention as it merits, given the more frequent focus by academics and the media on larger cities. But these less populous cities can have an enormous impact on the greening of America, as demonstrated by the growing success some of them have achieved.
While these smaller legacy cities can take some lessons from larger communities, other experiences are not as readily transferrable. Smaller cities can become leaders in the greening movement, attracting industry, aiding their residents, improving the local quality of life, and enhancing equity among their citizens.
Apr 2, 2024 Shelby D. Green
Chief Justice John Marshall’s opinion in Johnson v. M’Intosh is often taken as the source of some foundational principles in property law. Indeed, it is often the first case, alternating with the fox and hunter, appearing in many textbooks.
The essential points of the case are that discovery is a basis for acquiring property and that Indian tribes held only the right of occupancy of their lands, which could be extinguished at any time at the leisure of the federal government, but in no case did they hold the power to alienate any interest. Professor Sheila Simon, in Johnson v. M’Intosh: 200 Years of Racism that Runs with the Land, offers some compelling reasons why we should not celebrate either the case or Marshall.
The ruling purported to validate, on principled grounds, the wholesale taking of native lands by Europeans who landed on what was described as uninhabited lands, terra nullius (at least not inhabited or dominated in the European sense). Some teachers find value in Marshall’s rationales (political rules overrule natural law, security of title is paramount), while others castigate the ruling as dishonest and driven fundamentally by racism toward Native Americans—described by Marshall as “savage,” heathen, and in need of the supervision and benevolence of Christian Europeans.
Prof. Simon convincingly calls into question the precedential value of the case. After physically locating the parcels at issue in the case, a place which happened to be near her law school, she shows that even as there was some geographical overlap in the parcels claimed between Johnson (the earlier grantee from the native tribes) and M’Intosh (the later grantee from the federal government), there was in truth no case or controversy as would give the court jurisdiction.
In fact, the whole case was contrived. Johnson failed in achieving confirmation of title from state legislatures. With the intervention of the Trade & Non-Intercourse Act in 1790, which prohibited the purchase of native lands by private parties, Johnson sought a ruling from the courts—theoretically based on the recognition of the Natives as owners and on the first in time, first in right principle. Johnson selected the venue for the case, and the defendant, and even tried to select the trial judge.
The property dispute in the concocted ejectment action was entirely fictional—the original parties to the suit being denominated as “Thomas Troublesome” and “Simon Peaceable.” The case was submitted on agreed facts and the trial court rendered judgment without any reasoning. Alas, the decision was stunning because of Marshall’s crafting of the rules and creative selection of facts to void Johnson’s title and affirm the political hegemony of the federal government over the Natives.
Prof. Simon challenges Marshall’s reliance on international law, since he did not cite any rules or principles, but referenced only the practice of English conquerors to assimilate the conquered at the time.
Then, she explains how Marshall’s discussion of why the Natives could not be regarded as inhabitants in possession of the land, rested on incomplete facts about what they did on the land. He saw them only as nomadic hunters and gatherers, that the land remained in a state of nature, open to discovery by enlightened Europeans. But there was much evidence at the time that revealed the Natives were much like the Europeans in using the land—for living and for farming.
Even as the opinion was a broad ruling, affecting parties other than those in the litigation, Prof. Simon points out that no one spoke for the Natives. However, her treatment of this issue may reveal a degree of naivete. She seems to believe that if the Natives had somehow intervened or there had been amicus briefs supporting their interests, giving the Court the opportunity to hear the truth about them, the outcome would have been different. Given the evident biases toward them and the willingness to adopt the narratives from a one-sided record, it is highly doubtful that Marshall would have ruled differently and declared the Natives to be owners of their land. It was just too late and too much was at stake for the government.
Prof. Simon gets it right when she says the value of the land was weighed differently for Europeans than for Natives; the Court being animated by different cultural attitudes about dealing in and with land. The Natives had lost their first rights to the land because they had not used it up. The imbalance served to justify centuries of further deprivations of land and culture, the most infamous being the Trail of Tears—the forced removal of the Cherokee from their native eastern lands to culturally foreign environs in the west.
So, what does Prof. Simon want us to see from this contrived and counterfeit litigation that has proven so woeful for an independent people? She thinks our senses should be heightened, our antenna raised to false propositions. This seems the most we can imagine.
Even as she states that former President Obama joined the International Convention of Rights of Indigenous Peoples in 2010, there is little hope of any measures to rethink the propositions from Johnson v. M’Intosh. But, as law teachers, we may have a duty to expose the case for what it was and to reveal the consequences of flawed and disingenuous litigation.
Mar 6, 2024 Andrea Boyack
John Infranca’s recent article, Singling Out Single-Family Zoning, recounts and critiques the foundational legal arguments underlying the advent and dominance of single-family zoning. His insightful framing of this historical perspective is especially valuable in the context of today’s debates about the impacts and future of single-family zoning.
A century ago, localities, land use professionals, and lawyers innovated zoning systems that created protected enclaves for single-family detached homes, isolating these residences from multifamily residential, commercial, and industrial uses. In the 1920s, courts considered and ultimately upheld such land use schemes in opinions that include the seminal 1926 Supreme Court decision of Village of Euclid v. Ambler Realty. Once U.S. courts generally accepted that single-family zoning was a valid exercise of a municipality’s police power, this type of zoning proliferated throughout the country, becoming the unique and defining feature of American land use. But the ubiquity of single-family zoning in the United States obscures its legally questionable foundation.
In the early 20th century, the amorphous, yet compelling, ethos of the “American Dream” was harnessed to expand municipal police power and limit private property rights. Political consensus on the value of promoting homeownership led to laws and programs spurring suburban development. Government policies–from federal mortgage insurance to local land use planning–worked together to create what were purportedly ideal “family” communities, but they resulted in neighborhoods of detached homes populated mostly by upper/middle-class, white families.
Long-justified as a way to promote “public health, safety, and morals,” single-family districting exacerbates residential segregation by race and class, contributes to sprawl and environmental harms, cements American car-dependency, and drives up housing prices. How the government’s police power evolved from a legislative tool to ensure public health, safety, and welfare into the legislative power to create these exclusive neighborhoods is a compelling, cautionary tale.
Using the police power to exclude non-conforming structures (and people) from a neighborhood was a dramatic departure from prior land use applications focused on public health and safety. Infranca traces the innovation of exclusionary zoning generally and of single-family residential zoning specifically, subtly moving from a foundational power to proscribe nuisances to the virtually limitless power to prescribe aesthetics and exclusion.
For example, limiting the size and location of buildings on lots may have originally been grounded in concerns regarding fire because smaller, separated structures reduced the risk of destructive conflagration. These early land use regulations effectively limited multifamily homes, however, and within just a few years, zoning’s implicit hostility to multifamily housing became explicit. Legislatures and courts cast apartment houses as the villain in residential community development. Apartment buildings were “parasites” consuming suburban green space, cutting off light and air, and depressing property values. Excluding “incompatible uses” meant keeping commercial, multifamily, and even two- or three-family homes away from single-family neighborhoods. One early zoning advocate proclaimed that this novel, broad use of police power was “more drastic than any other form of regulation” this country had ever known (P. 686).
Even if creating single-family-only neighborhoods benefitted their residents (which is debatable–see, e.g., Gregory Shill, Should Law Subsidize Driving), these benefits did not accrue to citizens living outside these neighborhoods. Infranca explains that early defenders of single-family zoning attempted to argue to the contrary, that there were broad public benefits from single-family zoning.
By framing homeownership in a single-family neighborhood as an aspirational ideal and by asserting that all citizens benefit from “spacious lawns and plenty of shrubs and trees” (P. 691), advocates claimed that privately owned single-family neighborhoods benefit the public.
The disparate treatment of residents in certain neighborhoods was also explained away by characterizing single-family districting as an economical reflection of existing development patterns. Finally, clustering multifamily homes (for poorer households) in more commercial areas, away from richer households’ detached homes, was framed as an efficient way to provide public services (transportation and other amenities).
Infranca rips the public benefit veneer off of these hollow justifications, concluding that they “have not stood the test of time” and that “[s]ingle-family districts continue to confer whatever benefits they provide only upon a small subset of the population” (P. 722). Although homeowners and their local municipalities may wish to exclude multi-family housing from neighborhoods as a way to prop up their property values, single family districts create more public harms than public good. They “exacerbate racial and economic segregation and perpetuate wealth disparities” (P. 661) and are among the ways that the law penalizes renting relative to homeownership. In short, single-family zoning does not promote the public welfare and is therefore an unjustified use of the police power.
Historically, however, courts refused to look too closely at the asserted public benefits from single-family zoning when it was included as part of a “comprehensive” land use plan. Infranca explains that courts have generally deferred to land use planning decisions based on the presumption that a comprehensive land use plan carefully and fairly balances various public needs and interests.
The judicial presumption of and deference to zoning comprehensiveness likely “played the most important role in efforts to establish the validity of single-family districts” (P. 696). Judicial deference was based on the idea that since “a comprehensive system of districting is essential to the health and general welfare,” then it must be true that “every specific regulation that is an essential part of such comprehensive system is justified under the police power” (P. 696).
Infranca unravels this house-of-cards reasoning. He queries whether a comprehensive approach truly is essential to health and welfare and whether the benefit of a comprehensive approach generally is sufficient to justify every component thereof. Founded on this logical fallacy, a court using comprehensiveness to justify single-family districting “assumes quite a bit” (P. 697).
Ironically, the appeal to comprehensiveness to justify zoning decisions not only masks complete deference to legislators, but also has been used to justify upholding zoning schemes that were not, in fact, even based on comprehensive planning. Presuming that zoning is always the product of a scientific process and is therefore immune from judicial oversight ignores not only the lack of data-driven decision-making in many instances, but also the fact that in many ways, zoning is more of an art (driven by vision) than a science (driven by data).
Infranca builds on his exploration of single-family zoning’s historical foundations to suggest three strategies to de-legitimize single-family zoning. First, because zoning’s presumptive validity is rooted in its comprehensiveness, its lack of dynamism and poor balance of various community needs could undercut its legitimacy. Second, single-family neighborhoods’ lack of accessibility–both in terms of infrastructure and affordability–can demonstrate the absence of a public benefit from this mode of zoning. Finally, Euclidian zoning implicitly presumes regional coordination as prerequisite for its police power legitimacy, suggesting that local zoning power is constrained.
The hundred years of solitude that has walled off single-family neighborhoods in the United States is starting to crack. An increased emphasis on adverse impacts of single-family zoning (and exclusive zoning in general) has already led several states and municipalities to jettison this “American obsession” (P. 666).
But our common law precedent-based legal system looks backwards to move forwards. Exploring and critiquing yesterday’s assumptions that established single-family zoning as a legitimate use of police power can provide the key to reconsidering its validity for tomorrow.
Feb 1, 2024 Yael Lifshitz
In When Nature’s Rights Go Wrong, Professors Mauricio Guim and Michael Livermore offer much needed analytical clarity to a significant, yet still understudied, field: rights of nature. After centuries of adopting a predominantly human-centric perspective, a more biocentric outlook is now coming to the fore.
Much like property rights, nature’s rights award control over clusters of natural resources. However, unlike traditional property rights, in the case of nature’s rights—as the name suggests—the right holders are non-human. What’s more, they tend to attach to a broader and more general natural entity, such as an ecosystem or a class of species, rather than a more crisply defined right-holder.
This carries profound implications for nature’s rights function and ability to achieve their environmental or climate-related goals. Analyzing nature’s rights is therefore especially important at present, as mounting evidence suggests our current legal mechanisms are insufficient to tackle the climate crisis.
The significance for property scholars is two-fold: first, Guim and Livermore underscore important conceptual difficulties that arise with regards to nature’s rights. The same challenges may arise with regards to property rights. After all, both utilize a similar mechanism – awarding right holders with control over chunks of natural resources. Property scholars should therefore pay close attention to the rights of nature discourse.
Second, this analysis also enhances the property-climate connection and builds further on the growing understanding that the two fields can and must work together to benefit from mutual synergies.
Guim and Livermore make three key arguments, which are conceptual, empirical and normative. First, the conceptual analysis shines a light on the challenges associated with defining the holders of nature’s rights. These holders of rights of nature will often be complex aggregates, like ecosystems, landscapes or species.
Defining these aggregates (in a way that is sufficiently clear to work with as a legal right holder), in short, is difficult. Nature is, by its nature, continuous and interconnected. Any attempt to slice it into bright-lined packages, is bound to run into analytical difficulties. In essence this is a problem for any attempt to draw a bright-line distinction through a continuous variable or resource.
The same is true for property rights. In fact, property rights have been doing just that for centuries: think of a property right one could have in a meadow, a river, or a wooded area. All of these likewise impose crisp lines on what is otherwise a continuous and interconnected resource. What is novel with regards to rights of nature is that the right holder is non-human. What’s more, the right holder could (and often is) also the subject of the right as well.
Put differently, there is a fundamental definitional challenge: how to draw crisp lines around messy clusters. Property rights constantly face this challenge when it comes to defining the “thing” at the heart of property, the subject matter of the right.
Nature’s rights, however, face a double definitional challenge – both with regards to defining the subject matter of the right and with regards to defining the right holder. This double definitional standard complicates things significantly. Adding to the complexity, beyond the physical and biological interconnectedness, there are also moral, social, political and economic considerations intertwined.
There is a further conceptual challenge: how can we offer an analytically coherent framework for evaluating the tradeoffs involved in defining and enforcing rights of nature? The basic problem, as Guim and Livermore underscore, is that making comparisons across entities adds another layer of complexity to the (already complex) analysis of rights.
Why? Because one of the dominant ways of analyzing the policy tradeoffs in the US (whether it be protecting rights or enacting legislation) involves comparing social welfare functions. That kind of analysis, which is inherently human-based, doesn’t work when trying to evaluate the welfare of non-human entities such as species, ecosystems and landscapes. Without a coherent and consistent framework for evaluating the tradeoffs involved, argue Guim and Livermore, decision-makers don’t have solid criteria through which they can resolve disputes that arise with regards to the rights.
The second contribution of the article is empirical. Using the experience gained with nature’s rights in Ecuador as a case study, Guim and Livermore show that in the few cases where rights of nature have been applied, the results have been analytically inconsistent.
The third and final contribution of the article is normative. To achieve the potential of nature’s rights, Guim and Livermore propose to tweak the way nature’s rights are framed: rather than defining the right-holder as an amorphous, fuzzy entity such an ecosystem, to instead award rights to people and organizations who seek to advance a healthy relationship with the environment. First, because doing so will mitigate the conceptual complexities that currently exist in the definition of nature’s rights. Second, because a comparative constitutional analysis suggests that awarding rights to people who seek to promote broader policy goals is more likely to achieve the desired results. This suggestion will likely be of interest to trust law scholars, who may find echoes of the relationship between a trustee and a beneficiary in this context.
Rights in nature, and all its glorious resources and species, have a significant role to play in the protection of the environment and in achieving our climate goals. Guim and Livermoe’s thoughtful piece invites both scholars and policymakers to rethink the ways in which rights in and of nature can be crafted and utilized, to better achieve these crucial goals.
