Roderick M. Hills

Bio: Roderick M. Hills is an academic researcher. The author has contributed to research in topics: Constitution & Doctrine. The author has an hindex of 1, co-authored 2 publications receiving 3 citations.

Against Mushy Balancing Tests in Blight Condemnation Jurisprudence

Abstract: Professor Somin has written an incisive critique of the New York Court of Appeals’ decisions in Kaur and Goldstein, the gist of which is that the Court did not do enough to stop “highly abusive blight condemnations.” There are, however, two difficulties with the critique. First, as a matter of legalistic interpretation of the New York Constitution, the critique is not very persuasive. Second, as a matter of policy, Professor Somin’s proposal is unlikely to be adopted by any judge influenced by the same political process that lead to the condemnations that Professor Somin attacks.

Saving Mount Laurel

Abstract: Introduction I. The Need for Mount Laurel. Municipal Collective Action Problems II. The Problem with Mount Laurel. Informational Burdens of the Unit-Based Approach III. A Solution to Mount Laurels Problems? Focus on Zoning Restrictions A. The Proposal: A Presumptive Ceiling on Zoning Restrictiveness B. Comparing Mount Laurels Fair Shares to a Ceiling on Zoning Restrictiveness C. Implementing a Ceiling on Zoning Restrictiveness Through Filtering Credits This is about getting Trenton the hell out of the business of telling people how many units they're supposed to have--some arbitrary, ridiculous formula that nobody could ever explain. (1) --New Jersey Governor Chris Christie, on his efforts to dismantle the Mount Laurel doctrine INTRODUCTION Mount Laurel is in trouble--again. But has there ever been a time when this statement has not been true? The Mount Laurel doctrine seems perennially hovering on the brink of extinction. It was surrounded by controversy when it was finally made effective with a "builder's remedy" in 1983, (2) and it barely survived its transition to statutory implementation in the form of the New Jersey Fair Housing Act in 1985. Both Governors James McGreevey, a Democrat, and Chris Christie, a Republican, made open war on it. (3) Governor Christie has gone so far as to attempt to abolish by executive order the Council on Affordable Housing (COAH), Mount Laurels statutorily created guardian. (4) COAH itself has attempted to weaken the doctrine with a "growth share" definition of the "fair share" obligation that the New Jersey appellate division has ruled illegally weak. (5) Yet Mount Laurel stubbornly draws breath, albeit on life support: Despite the important constituencies in New Jersey that would like to pull the plug, there are other constituencies that stop the euthanizing of the doctrine. The State Assembly, controlled by Democrats with leadership from New Jersey's impoverished cities, has refused to let Governor Christie gut the doctrine with his own version of "growth share," (6) and the New Jersey state courts doggedly resist Governor Christie's efforts to dismantle COAH or municipalities' "fair share" obligation. (7) It is an oddity when a legal doctrine cannot settle down to a comfortable middle age after thirty years of turmoil. One might impatiently say about Mount Laurel what Oscar Wilde's Lady Bracknell said about Algernon's fictional friend Bunbury in The Importance of Being Earnest. "It is high time that [Mount Laurel] made up [its] mind whether [it] is going to live or to die. This shilly-shallying with the question is absurd." (8) Why cannot Mount Laurel make up its mind whether it is going to live or die? The dilemma arises from Mount Laurels serving a genuine need in a clumsy way. On one hand, as I explain in Part I, the doctrine helps New Jersey's 566 municipalities and townships overcome collective action problems that otherwise might excessively impede an adequate supply of housing. (9) On the other hand, the specific design of the doctrine--in particular, the assignment of specific numbers of housing units to particular municipalities--undermines the doctrine's effectiveness as a device for overcoming these collective action problems. As I suggest in Part II, this "unit-based" rule--that is, a rule that assigns housing units to particular jurisdictions--places extraordinary informational burdens on judges and bureaucrats, because such a rule forces public officials to do the job of siting housing, a task usually reserved for housing markets rather than law. (10) Because the data and siting criteria are so controversial, unit-based doctrines invite maximum homeowner resistance, as each suburban and rural jurisdiction vies with each other to skew the contestable formulae in their own favor. Inner-ring suburbs, for instance, will want to emphasize "buildable land," as a factor for siting affordable housing, while rural townships will want to encourage infill and redevelopment. …

Building Coalitions Out of Thin Air: Transferable Development Rights and “Constituency Effects” in Land Use Law

Abstract: Transferable Development Rights (TDRs) were supposed to be a solution to the intractable problems of land use, a bit of institutional design magic that married the interests of development and preservation at no cost to taxpayers and with no legal risk. Under a TDR program, development is limited or barred on properties targeted for preservation or other regulatory goals, but owners of those lots are allowed sell their unused development rights to other property owners. In theory, this allows the same amount of development to occur while preserving favored uses without tax subsidies or constitutional challenges. Reviewing their use over the last forty years, this Article shows that the traditional justifications for TDRs do not work. In practice, TDRs are not necessary to avoid takings litigation, are not costless to taxpayers, and do not balance the interests of preservation and development, but instead serve as yet another growth control in metropolitan areas where such controls have caused housing crises and major harms to the national economy. Assessed as a technocratic tool for solving problems in land use, TDRs are a failure. But this Article shows that there is a case for TDRs not as a technocratic but rather as a political tool. By giving valuable development rights to some popular or otherwise politically influential owners of regulated property, a city can build a coalition for re-zonings that might otherwise be politically impossible. The effect of TDRs on politics can be positive to the extent that TDRs strengthen constituencies or land use goals that local politics systematically undercounts, as we show through an analysis of New York City’s Special District Transfer TDR program. In particular, TDRs could help break Not In My Back Yard opposition to new development by building a competing pro-growth coalition. More generally, using TDRs as an example, the Article shows how land use law is the creator as well as creature of local politics. Existing property law helps cement anti-development coalitions, but savvy leaders could use moments in power to create stable pro-growth coalitions by enacting new laws that help mobilize new pro-growth constituencies. Understanding these “constituency effects” of land use law allows policymakers to redesign entitlements like TDRs to produce a healthier land use policies.

Let There Be Blight: Blight Condemnations in New York after Goldstein and Kaur

Abstract: The New York Court of Appeals’ two recent blight condemnation decisions are the most widely publicized and controversial property rights rulings since the Supreme Court decided Kelo v. City of New London. In Kaur v. New York State Urban Development Corp., and Goldstein v. New York State Urban Development Corp., the Court of Appeals set new lows in allowing extremely dubious “blight” condemnations. This Article argues that the New York Court of Appeals erred badly, by allowing highly abusive blight condemnations and defining pretextual takings so narrowly as to essentially read the concept out of existence.Part I briefly describes the background of the two cases. Goldstein arose as a result of an effort by influential developer Bruce Ratner to acquire land in Brooklyn for his Atlantic Yards development project, which includes a stadium for the New Jersey Nets basketball franchise and mostly market rate and high-income housing. Kaur resulted from Columbia University’s attempts to expand into the Manhattanville neighborhood of West Harlem. When some of the landowners refused to sell, Ratner and the University successfully lobbied the government to declare the land they sought to be blighted and use eminent domain to transfer it to them.Part II addresses the issue of blight condemnation. Goldstein and Kaur both applied an extraordinarily broad definition of “blight” that included any area where there is “economic underdevelopment” or “stagnation.” In addition, the court opened the door for future abuses in three other, more novel, respects. First, it chose to uphold the condemnations despite evidence suggesting that the studies the government relied on to prove the presence of “blight” were deliberately rigged to produce a predetermined result. Second, it dismissed as unimportant the fact that the firm which conducted the blight studies had previously been on the payroll of the private parties that stood to benefit from the blight condemnations. Finally, the court refused to give any weight to extensive evidence indicating that Ratner and Columbia had themselves created or allowed to develop most of the “blight” used to justify the condemnations. The court’s approach opens the door to future abusive condemnations and violates the text and original meaning of the New York State Constitution.Part III discusses Goldstein and Kaur’s treatment of the federal constitutional standard for “pretextual” takings. In Kelo and earlier decisions, federal courts made clear that “pretextual” takings remain unconstitutional despite the Supreme Court’s otherwise highly deferential posture on “public use.” Unfortunately, the Supreme Court has been extremely unclear as to what constitutes a pretextual taking. As a result, courts have taken widely differing approaches to the issue. Nevertheless, Kaur and Goldstein are outliers in this area, deferring to the government more than almost any other court that has addressed the question since Kelo. They virtually read the concept of pretext out of existence.

Is the government exhausting its powers? An empirical examination of eminent domain exercises in New York City pre‐ and post‐ Kelo

Abstract: A controversial U.S. Supreme Court decision in Kelo v. City of New London (2005) which did not limit the use of state's eminent domain powers, led to an unprecedented legislative reaction by almost all 50 states. Of all, New York State stands out as one of the single states not to respond with a legislative amendment. In this study, I ask whether the state's predation was greater in the years following these legal and political developments, in light of the freedom which was granted to local politicians by both the Supreme Court and the state's legislators. The article hypothesizes that contrary to common perceptions, judicial decisions impact local government actions even when no limits on the use of powers are being posed. I use rigorous statistics and scrupulously defined data to expand scholarly understanding of the aftermath of the judicial decision in Kelo. The main finding is that the decision has in fact affected political behavior, but in the opposite direction than commonly expected: politicians in New York City acted consistently with public opinion, which was hostile too Kelo, not by changing the law, but by changing their practice. Studying all known taking exercises in New York City between 1991 and 2019, the paper finds no increase in the number of development projects involving condemnations after 2005. In fact, the probability of a taking for economic development or urban renewal dropped by 90%. The use of eminent domain for such projects declined even when both state and federal courts refrain from interposing any actual limit on its use. The paper lends qualified support to an alternative assertion that takings decisions by government officials are largely shaped by planning and political needs and that officials are sensitive to revealed public preferences even when there is no constitutional or legal impediment on their exercise of power.