Legislative options to add more housing in California

A number of legislative options are on the table in California to encourage the construction of more housing and counter the actions of nearby residents:

Dozens of the solutions floating in the state Legislature aim to address that supply problem, including several that would streamline the process by which housing projects get approved (one, for example, would limit the circumstances in which a special permit could be required to build a granny flat). Others would not-so-subtly make it much harder for local residents and government agencies to block new projects, like by requiring a two-thirds vote for any local ordinance “that would curb, delay, or deter growth or development within a city.”

That latter bill epitomizes the frustration many young working people and families have as they try to attain what was once a milestone of adulthood—homeownership—that is now out of reach for even those making decent money. Some of those folks are YIMBYs, or supporters of a “Yes in My Backyard” agenda. “We know that our housing struggles are not the result of impersonal economic forces or lack of individual effort, but derive from bad policy and bad laws that have restricted housing growth for decades,” said YIMBY leader Brian Hanlon, co-founder of the California Renters Legal Advocacy and Education Fund, at an April Assembly committee hearing….

It’s unclear what the chances for each bill are. Though legislators seem eager to spur more housing construction quickly, some of their allies might not be. Many environmentalists, for example, want new projects to comply with CEQA, the state’s landmark environmental law that requires developers to study and possibly mitigate the environmental impact of whatever they build. And developers are never quick to embrace mandates that they include affordable units in their projects.

If the bills do pass, will any of them actually make a dent in what’s become a crippling problem all across the state? The Sacramento Bee’s Dan Walters recently wrote off the current proposals in the Legislature as “tepid, marginal approaches that would do little to close the gap.” Cuff admits many critics dismiss individual bills as a drop in the bucket. “But on the other hand, let’s put a drop in the bucket,” she says. “A drop is better than a drought.”

This is a long-term issue that may take decades to work out. The issue is complicated as it involves social class, race and ethnicity, understandings of local control, and property values.The article notes that some claim the legislative suggestions thus far are too small and I suspect a number of the bills would lead to lawsuits from communities and residents.

If I had to make a prediction (a near impossible task) based on what has happened in many suburbs throughout the United States, I would guess that the wealthier communities will find ways around these legislative actions. This could happen through the courts as they can better afford the time and money or there could be loopholes in the bills. Either way, the burden of the affordable or cheaper housing will likely fall on communities that are lower income and non-white.

Why Google’s plan to scan every book in the world was halted

Google had plans to scan every book but the project hit some legal bumps along the way and now the company has “a database containing 25-million books and nobody is allowed to read them”:

Google thought that creating a card catalog was protected by “fair use,” the same doctrine of copyright law that lets a scholar excerpt someone’s else’s work in order to talk about it. “A key part of the line between what’s fair use and what’s not is transformation,” Google’s lawyer, David Drummond, has said. “Yes, we’re making a copy when we digitize. But surely the ability to find something because a term appears in a book is not the same thing as reading the book. That’s why Google Books is a different product from the book itself.”…

It’s been estimated that about half the books published between 1923 and 1963 are actually in the public domain—it’s just that no one knows which half. Copyrights back then had to be renewed, and often the rightsholder wouldn’t bother filing the paperwork; if they did, the paperwork could be lost. The cost of figuring out who owns the rights to a given book can end up being greater than the market value of the book itself. “To have people go and research each one of these titles,” Sarnoff said to me, “It’s not just Sisyphean—it’s an impossible task economically.” Most out-of-print books are therefore locked up, if not by copyright then by inconvenience…

What became known as the Google Books Search Amended Settlement Agreement came to 165 pages and more than a dozen appendices. It took two and a half years to hammer out the details. Sarnoff described the negotiations as “four-dimensional chess” between the authors, publishers, libraries, and Google. “Everyone involved,” he said to me, “and I mean everyone—on all sides of this issue—thought that if we were going to get this through, this would be the single most important thing they did in their careers.” Ultimately the deal put Google on the hook for about $125 million, including a one-time $45 million payout to the copyright holders of books it had scanned—something like $60 per book—along with $15.5 million in legal fees to the publishers, $30 million to the authors, and $34.5 million toward creating the Registry….

This objection got the attention of the Justice Department, in particular the Antitrust division, who began investigating the settlement. In a statement filed with the court, the DOJ argued that the settlement would give Google a de facto monopoly on out-of-print books. That’s because for Google’s competitors to get the same rights to those books, they’d basically have to go through the exact same bizarre process: scan them en masse, get sued in a class action, and try to settle. “Even if there were reason to think history could repeat itself in this unlikely fashion,” the DOJ wrote, “it would scarcely be sound policy to encourage deliberate copyright violations and additional litigation.”

Out-of-print books with uncertain copyright status scuttle what could be one of the great treasure troves of information? This suggests we still have a ways to go until we have legal structures that can deal with the information-rich and easily accessible online realm. If a deal could eventually be worked out for books, what about older music, art, and other cultural works?

A related thought: having all those books available might indeed change the academic enterprise in several ways. First, we could easily access more sources of data. Second, we could potentially cite many more sources.

Chevy Chase woman files lawsuit after lawsuit against her neighbor’s teardown

Chevy Chase, Maryland has experienced a number of discussions over redevelopment including this one-woman “all-out war” against her neighbor’s teardown:

First, in 2009, she sued the town of Chevy Chase in an attempt to block its approval of the Schwartzes’ building permit — but that failed. Then she appealed — and was denied. “I would say Chevy Chase has spent upwards of $50,000 because of Deborah,” Hoffman said. “Not just in legal bills, but in all the staff costs in answering her letters and telephone calls.”Vollmer next filed a similar lawsuit against Montgomery County and lost again. Soon afterward, she watched in horror as the Schwartzes erected a handsome, stone-encrusted house at 7200 44th St. The house, which she excoriated for its size, offers evidence of the neighbors’ clashing lifestyles.

Vollmer drives a Prius. The Schwartzes have a Mercedes. Vollmer prizes rough-hewn back yards with lots of vegetation. The Schwartzes appreciate a more manicured aesthetic. “Some people may question my motives,” Vollmer said. “But what’s happening in this town, these developers, tearing down old homes. I’m standing up for my rights. .?.?. And then this whole thing just kind of evolved” from that.

The dispute’s next evolution occurred in court. Vollmer sued the Schwartzes in Montgomery County Circuit Court — not once, but twice — over arguments involving the shared driveway. She lost both…

“We have had to go to court more than 16 times because of her multiple lawsuits and her behavior,” Schwartz said. “We love our home and our neighborhood, and we can only hope that reason will prevail in the future.”

And there is more here including an arrest for destruction of property, another lawsuit over paving the shared driveway, and a second arrest. In the end, is Vollmer simply standing up for her property rights (and she apparently has the resources and legal training to do so) amidst the bullying of mansionizing new residents or is she a public nuisance against inevitable change and wasting taxpayer money?

One thing this article does not explain: how in the world was the new house approved with a shared driveway? The picture with the story suggests the teardown was built close to the lot line:

Given Vollmer’s behavior, it is not clear this would have solved the issue. But, having a shared driveway could lead to issues even if the new neighbors didn’t build a new large home. Perhaps this is why suburbanites need passive aggressive signs to fight each other rather than lawsuits…

How to get wealthier communities to accept affordable housing

This article discusses two tools to promote affordable housing in wealthier communities: regulations and lawsuits.

But Massachusetts has a work-around: A state statute, called 40B, allows developers to get around exclusionary zoning and build affordable housing in communities where only a small percentage of units are considered affordable. (A few other states have similar policies.) The statute, passed in 1969 and upheld by the state’s Supreme Judicial Court in 1973, has led to the construction of 1,300 developments throughout the state, containing a total of 34,000 units of affordable housing, according to Citizens’ Housing and Planning Association, or CHAPA.Projects built under 40B are almost always controversial: The statute was enacted in the first place because most communities outside of big cities didn’t permit multi-family housing, said Ann Verrilli, the director of research at CHAPA. Even with the statute, communities often spend millions of dollars in legal fees to try and stop the projects, Verrilli told me…

The experience of developers trying to build affordable housing in Massachusetts takes on added significance now, as housing advocates wait for a decision on a landmark case in front of the Supreme Court that concerns where low-income housing projects are placed. The case, Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, arose when a nonprofit housing group sued Texas, arguing that the state primarily distributed tax credits for low-income housing projects in minority-dominated areas. Inclusive Communities argued that doing so perpetuated segregation and violated the Fair Housing Act, which was passed in 1968 to prevent landlords, municipalities, banks and other housing providers from discriminating on the basis of race. The Supreme Court case centers on whether this discrimination has to be intentional in order to be illegal, or whether the Fair Housing Act also seeks to prevent policies that may not be intentionally discriminatory, but that have a “disparate impact” on minorities…

Many affordable housing units in the suburbs are a direct result of court cases, and even enforcement of those programs are lax. In 2009, Westchester County in New York signed a desegregation agreement and agreed to build and market hundreds of apartments for moderate-income minorities after a court found it had misled HUD by applying for funds that it said it would use to integrate housing, and then did the opposite. Four years later, the county had not complied with the provisions.

The shift from discriminatory race-based housing policies to economic ones in the 1960s and 1970s was an important one. I suggest reading David Freund’s Colored Property: State Policy and White Racial Politics in Suburban America. This is the logic still used today: better off residents argue that they worked hard to get to their higher quality of life and that others should have to do the same. But, since race/ethnicity and social class are inextricably linked, keeping out the lower classes through big lots, expensive properties, a lack of apartments, and other methods leads perpetuates residential segregation.

Two other relevant points from this article. First, affordable housing in the suburbs can be done well through good design and not high levels of concentration. Second, given the resistance to such projects as well as design guidelines that are helpful, still nowhere near enough affordable housing has been constructed. In one sense, the foot draggers of wealthy communities are winning because they have slowed down a process started by the courts in the late 1960s (the Gautreaux case) and 1970s (the Mount Laurel case). Plus, the wealthy can move easily if their properties are threatened.

Removing suburban strip clubs using zoning, eminent domain, and lawsuits

The typical suburb doesn’t welcome strip clubs but it can be difficult to remove them:

Kane County Board members voted — twice — to say that’s exactly what they don’t want. Those votes spawned a $16 million lawsuit by the pending new owners of the club. The outcome may determine the future of the strip club or any adult businesses in the county. As others have discovered, limiting an industry protected by the Constitution but rife with criminals, violence and deep pockets can be a long, costly road…

Neighboring DuPage County found Diamonds wasn’t its best friend when strip club owners became interested in an industrial area near the DuPage County Airport in 1999. Before the county even ruled on the zoning use, the would-be owners of the club, Palmetto Properties Inc., sued the county for creating unconstitutional restrictions…

After three years of research, the county crafted a legal defense for buffers by citing fears about strip clubs fueling crime and killing property values and development. The county also shrank the buffer between strip clubs and inaccessible sections of forest preserves, allowing Diamonds to open…

Having robust development has also limited where strip clubs can operate. Every commercial development and residential rooftop pushes areas for strip clubs farther out…

Neither did Bedford Park, a South suburban community of about 600 people, when it tried to block Diaz from opening a strip club within its borders. After more than six years in courtrooms, and about $400,000 in legal fees, the new Ocean Gentlemen’s Club opens this fall.

An interesting back and forth between businesses and suburban communities. A few quick thoughts:

1. If this was left to a referendum for voters, how many strip clubs would be approved? For those who approve of property rights (a topic that often comes up with teardowns), how many would also vote for strip clubs (and be consistent in their support of property owners)?

2. One note from the article on how to effectively word local regulations: “The court found the law did not infringe upon free speech because it did not ban adult expression, a key factor in successfully worded zoning laws restricting adult businesses across the country.” Thus, communities have to be very careful in order not to leave loopholes.

3. For clubs that already exist, it sounds like the most effective way to remove them is to find evidence of criminal or illegal activity.

When neighbors sue over a teardown McMansion

Can this end well? One Sioux Falls family sues their neighbors over the construction of a teardown McMansion and alleged violations of local ordinances:

In court documents, Pierce and Barbara McDowell charge that the new house is too close, too tall and negatively impacts use of their own property.

Not only does it block natural sunlight from reaching the McDowell house, the lawsuit charges, but the McDowells have been stopped from using their wood-burning fireplace because its chimney now is too close to the house being built by Joseph “Josh” Sapienza and Sarah Jones Sapienza…

The McDowells are asking for a permanent injunction to stop further construction at the Sapienza residence until it comes in compliance with the city’s 2013 Shape Places Zoning Ordinance and it is relocated so the McDowell house no longer violates the city’s Residential Code…

When completed, the Sapienza house at 1323 S. Second Ave., just south of the McDowell residence, will be a two-story single-family house containing almost 5,000 square feet. The permitted offset from property now is five feet, putting seven feet between the two houses…

The original house on the Sapienza property was multilevel with a total of 1,811 square feet on the main and upper levels. The lot measures 69 by 143 square feet. It had been built in the 1950s, and the Sioux Falls Board of Historic Preservation approved its removal from Second Avenue since it did not fit the neighborhood’s historic character. At a recent board meeting, however, two members referred to the new house as “a McMansion.”

To answer my own question, this cannot end well for all parties involved. The burden seems to be on the city to show that the proposed home did not violate any ordinances or guidelines. But, if it made it through the entire approval process even when neighbors had concerns, perhaps this won’t be difficult to demonstrate. Possible outcomes might include:

1. The neighbors are upset long-term feeling that the historic district is not protected or that the city doesn’t have a strong enough set of guidelines. Developing guidelines that will satisfy everyone can take quite a bit of time. Just look at Austin or Los Angeles.

2. The city feels like it can’t win in trying to balance competing interests. This is typically expressed as allowing collections of residents to have some control over their neighborhoods but also wanting individual homeowners to have some property rights (including pursuing teardowns). Such a lawsuit can take up time and money that could be better utilized elsewhere, particularly in an era of tight municipal budgets.

3. The property owners could have a tough time for years to come. If the lawsuit succeeds, how much do they have to change their home and at what cost? If the lawsuit fails, it is unlikely that the neighbors will suddenly like the home. I would be interested in reading a follow-up story in a few years to see if these owners are still living in the neighborhood.

At best, the disagreement between these neighbors will fade away and the city will have clearer guidelines that will help residents avoid such issues in the future. But, I would guess a more negative outcome is likely.

Uncertainty over who is liable for crashes of driverless cars

When an autonomous car gets into a crash, who is responsible? This question may just delay their mass market release:

“Automaker liability is likely to increase. Crashes are much more likely to be viewed as the fault of the car and the manufacturer,” Anderson said. “If you’re an automaker and you know you’re going to be sued [more frequently], you’re going to have reservations.… The legal liability test doesn’t take into account the long-run benefits.”

In other words, even though a technology is an overall boon to the greater good, its rare instances of failure—and subsequent lawsuits—won’t take that into account. That could slow the movement of driverless cars to the mass market if automakers are wary of legal battles…

As they grapple with what autonomous vehicles might mean for their industry, the legal frontier remains uncertain as well. One possible solution? A payout fund set up to compensate victims of driverless car accidents. That could be modeled similar to the Health and Human Services Department’s vaccine injury compensation fund, which takes a 75-cent tax from every purchased vaccine. The no-fault program helps those who have been hurt by vaccine-related incidents without exposing the medical community to legal battles and expensive damages payouts.

In the early stages, subsidies may be required to help driverless cars take hold in the market, according to Rand’s report on the technology’s adoption. Part of the money allotted for that could be set aside to help potential victims.

Sounds like there is still some work to do here and automakers are quite aware of these issues with recent events like the $1 billion settlement payout from Toyota. While it sounds like the technology is getting close, the legal and social issues might also prove difficult to nail down. But, the outstanding safety potential of driverless cars may force a quick resolution to the liability issue in order to save lives sooner.