Category Archives: Legal

How long zoning disputes can take in court, Haymarket and Itasca edition

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I have been following the efforts of Haymarket Center to open an addiction treatment facility in the suburbs of Wheaton and then in Itasca. Haymarket filed a lawsuit in federal court and the case is ongoing. Here is where it stands now:

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Nearly six years after Haymarket Center announced a plan to open an addiction treatment facility in Itasca, the nonprofit remains locked in a legal fight with the DuPage County town.

Itasca trustees unanimously voted in November 2021 to reject Haymarket’s request to convert a former Holiday Inn into a 240-bed facility for patients with substance use and mental health disorders. In response, Haymarket filed a federal lawsuit against the village in January 2022, arguing that Itasca officials violated antidiscrimination laws.

In the latest twist, a federal judge has ruled the U.S. Department of Justice cannot join Haymarket’s lawsuit against Itasca…

According to the court docket, the two sides continue to depose witnesses and experts and exchange documents. The next court hearing is in July.

Sometimes zoning issues can be resolved fairly quickly. A change is proposed, decisions are made quickly at the municipal level, and matters are concluded.

But this case shows what can happen if the process goes to court. The article says the lawsuit was filed in early 2022. The next hearing is in July 2025. We are three and a half years in and it is not clear when it all might end in court (or be resolved otherwise).

This has consequences for both parties. They have to pay lawyers. The process takes twists and turns. The company and municipality have to keep an eye on everything. They have to commit money and time to an ongoing process with no clear end date.

Is it worth it? I would guess both sides are convinced of their own cause. Is this more of an issue of how courts operate that this amount of time can go by?

Rents set by algorithm and how housing prices are set

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New tools allow landlords to set rental prices and this has led to lawsuits:

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Instead of getting together with your rivals and agreeing not to compete on price, you can all independently rely on a third party to set your prices for you. Property owners feed RealPage’s “property management software” their data, including unit prices and vacancy rates, and the algorithm—which also knows what competitors are charging—spits out a rent recommendation. If enough landlords use it, the result could look the same as a traditional price-fixing cartel: lockstep price increases instead of price competition, no secret handshake or clandestine meeting needed…

According to the lawsuits, RealPage’s clients act more like collaborators than competitors. Landlords hand over highly confidential information to RealPage, and many of them recruit their rivals to use the service. “Those kinds of behaviors raise a big red flag,” Maurice Stucke, a law professor at the University of Tennessee and a former antitrust attorney at the Department of Justice, told me. When companies are operating in a highly competitive market, he said, they typically go to great lengths to protect any sensitive information that could give their rivals an edge.

The lawsuits also argue that RealPage pressures landlords to comply with its pricing suggestions—something that would make no sense if the company were merely being paid to offer individualized advice. In an interview with ProPublica, Jeffrey Roper, who helped develop one of RealPage’s main software tools, acknowledged that one of the greatest threats to a landlord’s profits is when nearby properties set prices too low. “If you have idiots undervaluing, it costs the whole system,” he said. RealPage thus makes it hard for customers to override its recommendations, according to the lawsuits, allegedly even requiring a written justification and explicit approval from RealPage staff. Former employees have said that failure to comply with the company’s recommendations could result in clients being kicked off the service. “This, to me, is the biggest giveaway,” Lee Hepner, an antitrust lawyer at the American Economic Liberties Project, an anti-monopoly organization, told me. “Enforced compliance is the hallmark feature of any cartel.”

The company disputes this description, claiming that it simply offers “bespoke pricing recommendations” and lacks “any power” to set prices. “RealPage customers make their own pricing decisions, and acceptance rates of RealPage’s pricing recommendations have been greatly exaggerated,” the company says.

It will be interesting to see how the courts decide in this area.

I would be curious to hear how this process differs from the way housing prices are determined. The “correct price” does not just emerge. There are a set of actors – such as realtors, appraisers, and websites – that contribute. There are local histories that inform current and future prices. The housing market follows particular patterns and I recommend reading sociologist Elizabeth Korver-Glenn’s 2021 book Race Brokers: Housing Markets and Segregation in 21st Century Urban America on this topic.

Is the primary difference that there is not a centralized tech source for housing prices? (But maybe there is – how much has Zillow and its Zestimate changed the game?) Or are the new actors viewed with more suspicion than others (tech sector versus realtors)? Or are we in a particular social moment where high costs of housing prompt more questions and thoughts about alternative?

How about a speed range rather than a speed limit?

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It is rare to find drivers on major roads that will only go as fast as the speed limit. If anything, the speed limit seems like an anchor at the bottom end of possible speeds so that people do not just drive at whatever speed they want. If the speed limit is 45, few will go only 42 or 44 but the speed limit might keep them from going 75 because that is far away from 45. Future technology might change this: if cars have speed limiters, where will the line be set?

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One way to address this is to have no speed limit. Only a few places do this.

Why not try a speed range? Imagine Chicago highways that have a speed limit of 50-70. Some people might feel more comfortable at the lower end, some at the higher end.

Is the real issue that drivers will not follow any limit unless there is enforcement? Technology could lead to automatically fining drivers (speed cameras, GPS, toll devices, etc.). Or, is it about current conditions (less traffic can lead to higher speeds, more congestion slows speeds)? Some roadways now have variable speeds where digital signs change the speed limits for the given conditions.

All this to say, a speed limit seems more like a number that most American drivers treat as a recommendation and not an imperative. This has big implications for the driving experience, how Americans regard driving, and safety.

Big box stores in Michigan can have their property taxes assessed on their value as an empty building

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Having a vacant big box store in a community can be a big problem. But, what if the store if in business and generating revenue and it is being assessed for property tax purposes at a value closer to its value as an empty property? Such is the case in Michigan:

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The dark store theory was born, in part, out of the 2008 recession.

Big box stores closed. The massive buildings that housed them had few other obvious uses and, in some cases, restrictions on selling the buildings to competitors put in place by the companies themselves reduced the pool of potential buyers. They often sold for far less than they’d cost to build.

Michigan law allows assessors to determine the value of a property in three ways: based on replacement cost minus depreciation, based on the income a property generates and based on the sales of similar properties.

Retailers began to argue that sales of empty stores were the best indicator of what their properties were worth. The Michigan Tax Tribunal generally agreed…

Of the 110 cases brought before the tribunal by Walmart and its subsidiaries since 2018, 93 have resulted in lower taxable values, often millions of dollars lower. All but one was a negotiated settlement. Eleven of the 110 cases are ongoing.

Two factors may be at play here. Retailers and businesses want tax breaks. They want to pay fewer taxes and boost their profits. If communities are willing to offer tax breaks like this (or others), why not ask for them and utilize them?

On the other side, communities want to bring in businesses and jobs. These retailers still provide some work for local residents and they are still generating some tax revenue. Even if they do not pay in taxes what they might, would a community be willing for a big box store to move to a nearby community and the money go elsewhere? Some development or even bad development might be preferable to no development or an empty building.

The news story quoted above details how this may change in Michigan due to a court case. If these large corporations do have to pay more in property taxes, will they change their operations at all? And how might communities make use of the extra revenue to improve local lives?

Fights between suburban neighbors turn more rancorous, according to lawyers

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According to some sources, legal fights between suburban neighbors are now worse:

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Neighbors have long bickered over fences, hedges and property borders. But lawyers involved in such tangles say the pandemic, which kept many people and their neighbors at home—and on one another’s nerves—far more, turned suburban sparring especially toxic. The rancor, they say, hasn’t eased up. Allegations of late have touched on topics including flying dirt, flowerpot placement and stray balls bouncing into a yard…

The leading reasons for flaps between neighbors are trees, fences, parking and noise, “probably in that order,” said Emily Doskow, a lawyer and mediator who edited the book “Neighbor Law.” “Everyone knows that having problems with your neighbors is one of the worst quality-of-life killers ever.”

The New York Peace Institute, a nonprofit that helps people resolve conflicts, got more calls during the pandemic about neighbor disputes, said Jessica Lopez, a program manager who coordinates mediations. Two years later, the caseload hasn’t slowed, she said, adding, “It’s a new normal.”

In a country where protecting single-family homes is vital, suburbanites prize single-family homes, and homeownership is an ongoing ideal plus suburbanites often relate through “moral minimalism,” perhaps this trend is not too surprising.

At the same time, as a sociologist, there are multiple questions I ask after reading this:

  1. Is there a way to get data on this? Are the number of neighbor disputes up in the courts or in lawsuits? Not all disputes go to court; would qualitative data in communities also reveal this?
  2. What exactly was the role of COVID-19 in this? One answer could be that more people spent time at home. Another could be that COVID-19 racheted up tension and disrupted regular social interactions. A third could be that rising property values and demand for property in some places pushed people to see their property differently.
  3. How many communities have alternative options for mediating disputes like these rather than going to court? Are there implementable models that suburbs could offer?

Why might suburban leaders head up legal challenge to IL law ending cash bail?

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A lawsuit led by suburban officials challenges a new Illinois law in court:

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When more than half of Illinois’ state’s attorneys go to court in Kankakee County next month in a last-ditch effort to block the controversial SAFE-T Act, the proceedings will have a distinctly suburban flavor.

The offices of McHenry County State’s Attorney Patrick Kenneally and Will County State’s Attorney James Glasgow have been chosen to serve as lead counsel in a lawsuit they and 61 of their peers have filed seeking to have the massive criminal justice reform bill ruled unconstitutional…

The state’s attorneys argue that violates several parts of the state constitution, including the Separation of Powers Clause by stripping judges of their full authority to detain defendants, set monetary bail and revoke bail. They also argue that a portion of the Act that gives police discretion to release defendants without bail on low-level offenses unlawfully takes that authority away from the courts…

The state’s attorneys argue that violates several parts of the state constitution, including the Separation of Powers Clause by stripping judges of their full authority to detain defendants, set monetary bail and revoke bail. They also argue that a portion of the Act that gives police discretion to release defendants without bail on low-level offenses unlawfully takes that authority away from the courts.

Suburban counties are not the only ones party to this lawsuit, but is it meaningful that they are leading the effort? A few general patterns scholars might point to:

  1. The image and ideology of suburbs suggests they are safe places relatively free of crime.
  2. Where does crime happen? It is viewed as a problem of cities and urban centers.
  3. The first two points are connected to long-term suburban patterns of exclusion by race/ethnicity and social class. Who commits crime? Not the typical suburbanite.
  4. Suburbs have a long history of fear of crime. And they act regularly in their suburban communities regarding crime, ranging from creating gated communities to supporting police efforts to choices about development and amenities.
  5. A suburban fear of crime is linked to particular political patterns and activity, including Nixon and the Republican Party’s “Southern strategy” to then-President Trump’s 2020 claim that the suburbs are under threat.

Put these factors together and suburban leadership on this issue may be no surprise.

The difficulty in removing racial covenants from deeds

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Many properties in the United States had racial covenants written into their deeds where it was stated that the property could not be sold to people of particular racial and ethnic groups. Removing those statements on deeds today can be a difficult task:

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Cisneros, who is white, said she wanted the covenant removed immediately and went to the county recorder’s office. What she thought would be a simple process actually was cumbersome, expensive and time-consuming. She took time off work and had to get access to a private subscription service typically available only to title companies and real estate lawyers. There were forms to fill out that required her to know how property records work. She also had to pay for every document she filed…

In the end, Cisneros learned that the offensive language couldn’t be removed. That is often the case in other cities if officials there believe that it’s wrong to erase a covenant from the public record. Instead, the county agreed to attach a piece of paper to Cisneros’ covenant disavowing the language…

Sullivan knew the only way to rid the language from the record was to lobby elected officials. She teamed up with a neighbor, and together they convinced Illinois Democratic state Rep. Daniel Didech to sponsor a bill. The lawmaker found an ally in Democratic state Sen. Adriane Johnson. The bill allows property owners and homeowners associations to remove the offensive and unlawful language from covenants for no more than $10 through their recorder of deeds office and in 30 days or less, Johnson said. Illinois Gov. J.B. Pritzker, a Democrat, signed the bill into law in July. It takes effect in January 2022…

Illinois becomes the latest state to enact a law to remove or amend racially restrictive covenants from property records. Maryland passed a law in 2020 that allows property owners to go to court and have the covenants removed for free. And in September, California Gov. Gavin Newsom, a Democrat, signed a bill that streamlines the process to remove the language. Several other states, including Connecticut and Virginia, have similar laws.

I could see how many Americans today would want to strike the racial covenant from their current property but their ability to do so depends on local laws. Righting past wrongs is no quick task, even when later actions have nullified the effects of the earlier language in these deeds.

And there could be a lot of racial covenants out there:

It’s impossible to know exactly how many racially restrictive covenants remain on the books throughout the U.S., though Winling and others who study the issue estimate there are millions. The more than 3,000 counties throughout the U.S. maintain land records, and each has a different way of recording and searching for them. Some counties, such as San Diego County and Hennepin County, which includes Minneapolis, have digitized their records, making it easier to find the outlawed covenants. But in most counties, property records are still paper documents that sit in file cabinets and on shelves. In Cook County, Illinois, for instance, finding one deed with a covenant means poring through ledgers in the windowless basement room of the county recorder’s office in downtown Chicago. It’s a painstaking process that can take hours to yield one result.

The deeds and the potential racial covenants contained therein highlight how land and property is acquired, obtained, and passed along in the United States. There is much to consider there: how was the land acquired and from whom? Who does it benefit now and in the future?

“Halfheartedly” air a first episode at 1:30 AM on FXX to keep the TV rights

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An overview of a potential blockbuster Amazon TV show includes this paragraph about how the television rights continued:

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At the time of Judkins’s pitch, the screen rights to The Wheel of Time were just coming out of a byzantine and uniquely Hollywood maze—the books had been optioned by two former tech guys, who in turn licensed the rights to Universal, which developed the series as a feature and then shelved it. Then the tech guys enlisted two new producers, Mike Weber and Ted Field. In time, they noticed an obscure provision in the contract, as Weber recalled. It turned out, he said, that “if you aired an episode of television, the rights will vest in perpetuity.” As in, any episode of television at all. And so one mysterious night in 2015—just before the rights to the books were scheduled to return to Jordan’s widow—an episode aired on FXX at 1:30 a.m., halfheartedly adapting the first book’s prologue and starring, for some reason, Billy Zane. The show, such as it was, aired only once and was never seen again. “That’s not the prettiest way to do it,” Weber admitted. “But it cleaned up the rights.” (McDougal Rigney, who released an unhappy statement about this gambit at the time, has since come back into the fold as a consulting producer.)

This is one way to hold on to the rights. It sounds like it all was legal via an “obscure provision.” It would be interesting to hear more about why the provision was in the contract (was it considered a deterrent since it required a television episode to be made?), what was in the 1:30 AM episode, and how all the involved actors responded.

And if The Wheel of Time becomes a megahit in the vein of Game of Thrones, this will look like a necessary and genius move.

The difficulties of defining religion, COVID-19 religious exemptions edition

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With people seeking religious exemptions to COVID-19 vaccine mandates, the question of how to define religion arises.

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Exemption requests are testing the boundaries of the federal Civil Rights Act of 1964, which requires employers to provide reasonable accommodations for employees who object to work requirements based on religious beliefs that are “sincerely held.”

To the benefit of objectors like Holmes, the provision defines “religion” broadly. The Equal Employment Opportunity Commission has specified that religious objections do not have to be recognized by an organized religion and can be beliefs that are new, uncommon or “seem illogical or unreasonable to others.”

They cannot, however, be based only on social or political beliefs. That means employers must try to distinguish between primarily political objections from people who may happen to be religious and objections that are actually religious at their core.

For many skeptics, resistance tends to be based not on formal teachings from an established faith leader but an ad hoc blend of online conspiracies and misinformation, conservative media and conversations with like-minded friends and family members.

This would not be a surprise to sociologists of religion and others who analyze religion in the United States. On the one hand, American religiosity has formal patterns. There are established religious traditions, denominations, and congregations. Christianity has been a dominant religious form and so its beliefs and practices are widespread. The First Amendment rights to free exercise of religion and no state religion have provided room for religious groups to develop and grow.

On the other hand, for at least a few decades, American religion has been marked by a willingness by many to decide what their own religion will be comprised of. This ranges from people who attend a congregation but do not necessarily agree with important doctrines or practices to those who create a highly individualized faith that draws on multiple traditions. From the “Sheilaism” of the 1980s discussed in Habits of the Heart to those today who would say they are spiritual but not religious,

This then means that a definition of religion is difficult. Is it as simply as saying that someone “would know religion when they see it?” If the law needs precision in order to make decisions, this definition and its interpretation will be very important to deciding who has a viable religious exemption and who does not.

What would happen if the Supreme Court addresses inclusionary zoning?

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A legal case involving zoning in Marin County, California may make it to the Supreme Court.

Back in May, authorities in Marin entered into a new voluntary compliance agreement with the U.S. Department of Housing and Urban Development to build new low-income housing outside areas where black or brown residents make up the majority. This is now the county’s second big push since 2010 to satisfy the government’s demand that it work on desegregating its affordable housing.

Fair housing is a challenge for Marin, an enclave of million-dollar bungalows across the Golden Gate Bridge from San Francisco. According to a nonprofit project called Race Counts, it has the highest racial disparities of any county in California. That’s in part because Marin County doesn’t want to build any housing. Homeowners here are at the forefront of NIMBY efforts to stop plans for new construction, whether they’re local, regional, or statewide.

The county’s iron grip on its land is the backdrop for a case that may soon appear before the U.S. Supreme Court. Back in 2000, two Marin County property owners, Dartmond and Esther Cherk, looked to split their undeveloped land into two single-family-zoned lots. As developers, they were liable to preserve some part of the property for affordable housing or pay into a low-income housing production fund. The fee was nearly $40,000; the Cherks sued.

The Marin County case may test the constitutionality of inclusionary zoning, a tool that local jurisdictions rely on to expand the supply of affordable housing, especially in tight housing markets. The court has expressed an interest in the case, which the justices may wind up using as a wedge to reshape property rights. It’s possible the inclusionary zoning ordinances—and local regulations more broadly construed—will not stand under the court’s scrutiny.

I’m on the record suggesting the Supreme Court would approve inclusionary zoning. While this piece suggests conservatives on the court might be spoiling to affirm property rights, the courts more broadly have helped develop plans to promote more affordable housing (think the Gautreaux case in Chicago or the Mount Laurel decision in New Jersey). Earlier decisions did not eviscerate property rights but they did suggest that the responsibility for housing was wider than a single community and its zoning. Additionally, having developers pay a fee into an affordable housing fund or provide some units of affordable housing as part of the larger project is common practice across American communities.

Beyond just the actions of Marin County and its own housing supply and population composition, the bigger issue is this: if a community or township or county restricts development and/or housing, it puts a bigger burden on other municipalities in the same metropolitan region to provide housing. And if many municipalities refuse certain kinds of development, more affordable housing ends up in a limited number of places that are (1) not necessarily located near jobs and (2) relatively lower-class. Housing is an issue best tackled by a whole metropolitan area (as are other issues including mass transit and transportation). More dispersed outcomes would likely lead to better outcomes across the region with the biggest loss being the communities that cannot easily remain as exclusive as they would like.