Tucson Land Use Law Blog

Tucson Land Use Law Blog

Insight & commentary on local land use and real estate issues

The Future of the Pecan Groves

Posted in Uncategorized

The Arizona Daily Star reports that Farmers Investment Co., which owns nearly 7,000 acres stretching nearly fourteen miles from Pima Mine Road to Continental Road in the Sahuarita and Green Valley area is looking to how to plan for the long-term use of this giant expanse.  The Sahuarita Planning and Zoning Commission will weigh in tonight on Farmers Investment Co.’s plans to develop the pecan farm into a master-planned community with a proposed 1,900 acres set aside for homes, 1,100 acres for businesses, and another 2,400 acres for planned mixed-use projects.

Drones – Smugglers & Drunken Larks

Posted in Drone Law

Seems drones are in the news more than ever.  A recent U.S. drone strike killed two suspected al Qaeda militants in Yemen this week, which is the first attack since U.S.-backed President Abed Rabbo Mansour Hadi said he was resigning, leaving Yemen in a state of political chaos.  Meanwhile, here in the United States, a drunken federal employee crashed his “quadcopter” onto the White House’s grounds, evading the White House radar system, which is designed to catch much bigger threats.

This incident highlights the increasing issues surrounding drone use in the United States, which include privacy, safety, land use and more.  While commercial drone users continue to wait for the Federal Aviation Administration to issue guidance regarding commercial use of drones in the United States, drug smugglers certainly are not waiting for such guidance.  A drone used by a drug smuggler from Mexico recently crash-landed just south of the U.S. border city of San Ysidro, California, in a failed drug delivery this week, Tijuana Municipal Police said.  Here is a fun video talking about it.  Drug Smuggling Drone

Federal Aviation Administration Settles Case with Raphael Pirker

Posted in Drone Law

Raphael Pirker, a videographer who was fined $10,000 by the Federal Aviation Administration (“FAA”) in 2011 for for illegally operating the his five-pound drone for commercial purposes and operating it in a “wreckless manner,” just settled with the FAA for $1,100.  Pirker’s original case was dismissed by an Administrative Law Judge (“ALJ”) with the National Transportation Safety Board (“NTSB”) last March.  The ALJ ruled this past March that Mr. Pirker’s plastic-foam drone was a model aircraft and was not subject to FAA rules for manned aircraft, which directly cast doubt on the FAA’s authority to regulate drones.  However, the full NTSB board in November overturned the ALJ’s decision on appeal by the FAA, ruling that drones are aircraft and subject to aviation laws, affirming the FAA’s regulatory power over the devices.

In settling the first FAA drone enforcement case, Pirker issued a lengthy statement stating: “We are pleased that the case ignited an important international conversation about the civilian use of drones, the appropriate level of governmental regulation concerning this new technology, and even spurred the regulators to open new paths to the approval of certain commercial drone operations. The decision to settle the case was not an easy one, but the length of time that would be needed to pursue further proceedings and appeals, and the FAA’s new reliance on a statute that post-dates Raphael’s flight, have diminished the utility of the case to assist the commercial drone industry in its regulatory struggle.”

Meanwhile, five separate bills are currently before the Virginia General Assembly that would restrict the use of drones in Virginia, including two that would let localities prohibit even hobbyists from flying small unmanned aircraft.  As reported by Craig Zirpolo of Capital News Service, the Association for Unmanned Vehicle Systems International, a nonprofit advocacy group with more than 7,000 members, worries that outright bans on the use of drones by individuals could stifle the personal liberties of pilots. The group also fears that such bans could prevent businesses from flying model aircraft if the FAA opens the door to commercial use of drones.  Virginia already restricts the use of drones by government and law enforcement agencies. In 2013, the General Assembly passed a two-year moratorium regulating government drones, making Virginia the first state to do so.

Now that the drawn out legal battle over the FAA’s regulatory power over drones has settled, we are forced to wait for the FAA to issue its long-awaited rules governing the commercial use of drones, which the FAA is required to complete in September 2015.  Don’t hold your breath that it will meet this congressional mandate.

Drones – The Looming Battle of Preemption

Posted in Uncategorized

The long-standing issue of federal preemption in the immigration context has found a new corollary in the battle over how states, counties, and municipalities are dealing with the rise in drone use.  As drone use continues to increase, states and municipalities are trying to determine whether their broad police powers are sufficient to regulate drones, and how such regulations might be affected by the regulatory authority of the federal Federal Aviation Administration (“FAA”).  The FAA, which is part of the Department of Transportation, is responsible for the safety of civil aviation, and drone use has fallen under its regulatory authority.  With the proliferation of recreational drone use and the likelihood that commercial drone use will only expand, does the FAA’s regulatory authority preempt local regulation?  This question is unsettled and will inevitably be dealt with in the years to come.

Around twenty states have already adopted laws regulating the use of drones.  According to the National Conference of State Legislatures, in 2014, 35 states considered UAS or drone-related bills and resolutions, and 10 states enacted new laws.  Much of the new legislation is focused on privacy issues, especially as it relates to law enforcement’s use of drones.  How the FAA intends to deal with the myriad of new state and local regulations remains to be seen.  The FAA has the broad regulatory mandate to regulate drone operations.  Indeed, the FAA is supposed to issue a regulatory framework for drone use by September 2015, but will likely miss this deadline due to the technical and regulatory obstacles that must be resolved before any such regulatory framework can be implemented nationwide.  Some have commented that the FAA faces so many hurdles that it is unclear whether drones can be integrated into civilian airspace.  One of the primary concerns is safety.  According to a Washington Post article from this summer, “drones rely on GPS signals to navigate and are controlled by pilots or operators on the ground via a two-way radio transmission link. But those links are not completely reliable, and it is common for operators to lose control of a drone for seconds or minutes at a time.  With no pilot in the cockpit, drones also lack the technology to see and avoid other aircraft, raising the risk of a midair collision. The inspector general called that problem the ‘most pressing technical challenge to integration.'”

Until the FAA acts, there is no question that state and local governments will continue to use their broad police powers to control drone use.  Until the FAA finally puts in place a regulatory framework, undoubtedly, questions about whether federal law will trump local regulations will persist.  Unfortunately, drone manufacturers, operators, and commercial entities seeking to employ drones will continue to lack unified guidance on what they can and cannot do.  The patchwork of state, county, and local regulations will persist until the FAA provides the necessary regulatory framework to allow drone use to expand.

Drones & Real Estate Agents

Posted in Real Estate

On July 12, 2014, Douglas Trudeau, a Realtor with Tierra Antigua Realty in Tucson, petitioned the Federal Aviation Administration (“FAA”) for an exemption from certain federal regulations to allow him to operate his PHANTOM 2 Vision + quad copter unmanned aircraft system (UAS) or “drone” to conduct aerial videography and cinematography “to enhance academic community awareness for those individuals and companies unfamiliar with the geographical layout of the metro Tucson area and augment real estate listing videos.”

On January 5, 2015, the Federal Aviation Administration (“FAA”) issued a 26-page “Grant of Exemption” to Mr. Trudeau.  Mr. Trudeau’s Grant of Exemption is the first commercial real estate photography regulatory exemption for a UAS.  The FAA’s Grant of Exemption was broken into four different sections of discussion: (1) the UAS; (2) the UAS Pilot in Command (“PIC”); (3) the UAS operating parameters; and (4) Public Interest.

Regarding the UAS, Trudeau represented that he would only operate his UAS in reasonably safe environments that are strictly controlled, are away from power lines, elevated lights, airports and actively populated areas and that he will conduct extensive preflight inspections and protocols, during which safety carries primary importance.  The FAA found that adherence to his proposed operating documents and the conditions and limitations describing the requirements for maintenance, inspection, and record keeping, were sufficient to ensure that safety would not be adversely affected.

Concerning the PIC issues, Trudeau asserted that while private pilots are limited to non-commercial operations, he can achieve an equivalent level of safety as achieved by current regulations because his UAS does not carry any pilots or passengers.  In his petition, Trudeau asserted that regarding operational training, he has flown numerous practice flights in remote areas as a hobbyist simulating flights for future commercial use to gain familiarization with the characteristics of his UAS’ performance under different temperature weather conditions.  Trudeau further stated that he practices computerized simulated flights to maintain adequate skills and response reflex time.  The FAA found that prior to operations the PIC must, at a minimum, hold a private pilot certificate, a third class airman medical certificate, and completed the minimum flight hour and currency requirements as stated in the conditions and limitations of the Grant of Exemption.

The third area that the FAA considered was the UAS operating parameters.  Trudeau provided numerous operating parameters that he would follow such as: operating his UAS below 300 feet and within a radius distance of 1000 feet from the controller to both aid in direct line of sight visual observation and operating the UAS for only 3-7 minutes per flight.  The FAA in its Grant of Exemption went into great detail as to each of the numerous operating parameters that Trudeau must meet to operate his UAS.

Finally, the FAA considered the public interest.  Trudeau, in his petition, asserted that aerial videography for geographical awareness and for real estate marketing has been around for along time through manned fixed wing aircraft and helicopters, but for small business owners, its expense has been cost prohibitive.  Granting this exemption to him would allow him to provide this service at a much lower cost.  Further, he argued that his small UAS will pose no threat to the public given its small size and lack of combustible fuel when compared to larger manned aircraft. Trudeau also states that the operation of his UAS will minimize ecological damage and promote economic growth by providing information to companies looking to relocate or build in the Tucson metro area.  The FAA ruled that the Grant of Exemption is in the public interest.  The enhanced safety and reduced environmental impact achieved using a UAS with the specifications described by Mr. Trudeau and carrying no passengers or crew, rather than a manned aircraft of significantly greater proportions, carrying crew in addition to flammable fuel, gave the FAA good cause to find that the UAS operation enabled by the exemption is in the public interest.

Trudeau’s petition only received five comments after it was published in the Federal Register.  Four trade organizations and one individual submitted comments.  Three trade organizations voiced concern: (1) The Air Line Pilots International (ALPA); (2) the National Agricultural Aviation Association (NAAA), and (3) the United States Hang Gliding & Paragliding Association (USHPA).  Each group expressed its particular concerns about the proposed commercial use.

The Grant of Exemption went on to list thirty-three conditions that Trudeau must meet to operate his UAS for commercial use.  His exemption allows him to fly his UAS to enhance real estate listing videos.  Mr. Trudeau will have to obtain a Certificate of Waiver or Authorization (“COA”) that ensures the airspace for his proposed operation will be safe, and that he has taken proper steps to see and avoid other aircraft.  In addition, his COA must mandate flight rules and timely reporting of any accident or incidents.

Trudeau’s exemption is clearly the start of what is likely to be many, many petitions to the FAA for commercial use of drones.  How the unquestionable increase in commercial drone use will be met by local governments remains to be seen.  Indeed, half of the state governments in the U.S. have already formally considered legislative action to address drone operations.  Around ten states have already enacted legislation regarding drones use.  Because the FAA claims that it regulates all airspace, issues of federal preemption coming up against state “police powers” are likely to arise as well.  This is an exciting new area of law with many, many issues to be considered.

Fueling a New Bubble

Posted in Real Estate

So, Fannie Mae and Freddie Mac, the beleaguered government sponsored agencies, which were seized by the US government during the financial crisis, recently announced programs to back loans to low and moderate income borrowers who would only be required to put down three percent, a two percent reduction in what Fannie and Freddie have required.  Fannie Mae argues that the primary barriers to homeownership for first time home buyers is saving money for down payments and closing costs, and it wants to change that.

Fannie Mae and Freddie Mac certainly had their role in the last housing market run-up and the attendant crash, such that the taxpayers were forced to pump over $187 billion to prop them up (all of which has been paid back and more).  Not surprisingly, they are  targets of much criticism after announcing these new plans to broaden home ownership, which many feel will lead to another housing bubble.

Freddie Mac’s program is called “Home Possible Advantage”, and will be open to anyone who meets certain requirements, but first-time home buyers must participate in a home ownership education and counseling program. All participants will have to pay for private mortgage insurance.  Homeowners with Freddie Mac mortgages could also refinance under the program, but would not be able to take any cash out as part of the process.

Fannie Mae’s program will be available to anyone who has not owned a primary residence for the past three years. Private mortgage insurance will be required, and at least one borrower must complete an acceptable pre-purchase home buyer education and counseling program.  Borrowers with Fannie Mae mortgages will be able to refinance and can take out up to $2,000 to cover closing costs, but will not be allowed to remove equity from their home.  Fannie Mae will also require that at least one of the borrowers is a first-time home buyer.  Fannie Mae will also allow for the down payment to paid by a gift from someone else.

While both programs require mortgage insurance, unlike and FHA loan, the borrower can drop the insurance without having to re-finance, as the mortgage insurance will drop off as soon as the borrower can prove the value of the property has risen below 80% loan to value.  The loans would be allowed only for fixed-rate mortgages on single-family homes that would be the borrower’s primary residence and would require full documentation of the ability to repay the mortgage.

With more substantial safeguards in place for these loans, this may prove a boon to a sluggard housing recovery.  Either way though, Freddie and Fannie will continue to be ceaseless targets of criticism, as they have been for years.  We shall see how these programs play out.

Foreclosure Wave 2.0

Posted in Foreclosure Topics

A recent article by Jann Swanson of the Mortgage News Daily reports on a troubling “tetrad of housing landmines” that could usher in a new wave of foreclosure activity.  Pulling from a from Octavio Nuiry’s Housing Landmines: Are Mortgage Flare Ups Coming Soon?, Swanson reports that while foreclosure activity is waning nationwide, a new wave of foreclosures is forming on the horizon.  The “tetrad” consists of: (1) defaults in loan modifications done under the Home Affordable Modification Program (HAMP); (2) Home Equity Line (HELOC) interest rate resets, and the huge backlog of remaining underwater borrowers and non-performing loans.

The first leg of the tetrad is the likelihood of mass defaults under HAMP.  Sheila Bair, the former Chairwoman of the FDIC has commented that “HAMP was a program designed to look good in a press release, not to fix the housing market. I don’t think helping home owners was ever a priority for them [the Obama Administration].”  Bair believed that the HAMP program was too rigid in its qualification requirements, claiming that the HAMP program was destine to fail because it was voluntary and that the banks would scuttle it.  While the Obama administration promised that HAMP would help 9 million borrowers, by the end of July 2014, only 1.4 million borrowers had received a HAMP loan modification, and for those that did, 350,000 have since defaulted.  Most damning of the inefficacy of HAMP is a comment Neil M. Barofsky, the former special inspector general of Troubled Asset Relief Program, received from former Treasury Secretary Tim Geithner.  Barofsky said that Geithner told him that AMP was not designed to help distressed borrowers, but was implemented to help the banks ride out the foreclosure crisis.  Geithner is reported as saying, “We estimate that they [the banks] can handle ten million foreclosures, over time.  This program will help foam the runway for them.”  HAMP indeed foamed the runway and stretched out the foreclosure process to allow banks time to recover.  TARP originally earmarked $75 billion for HAMP modifications, but by July 2014, only $4 billion had actually been spent.  Since its start, HAMP has rejected 5.5 million homeowners, and those that are actually in the program are about to see a nasty interest rate reset.  Between 2014 and 2021, nearly 90 percent of the HAMP modifications will see a rate reset, including 300,000 in 2015.  Sadly, as a government SIGTARP report states, “he longer a homeowner remains in HAMP, the more likely he or she is to re-default out of the program. Re-defaults of the oldest HAMP modifications are at a 46 percent re-default rate, a rate that continues to increase as the modifications age.”

The second leg of the tetrad is are the home equity lines of credit that are set to adjust soon.  Nuiry, reports that as of December 2013, some 16 million U.S. consumers held $474 billion in HELOC debt that is still outstanding.  Steve Chaouki, head of financial services at TransUnion has said that “Up to $79 billion of those HELOC balances could be at elevated risk of default in the next few years,” as consumers are forced to start paying both principal and interest on these HELOC loans.  TransUnion estimates that 15% of the the $79 billion at risk of default could play out in the next year.  What is more troubling is that over half of the $79 billion in troubled HELOC loans carry balances over $100,000.  The Office of the Comptroller of the Currency estimates that approximately $30 billion in HELOCs will resent in2014. Reset balances will rise to $52 billion in 2015, $62 billion in 2016 and $68 billion in 2017.  Brace yourselves for another default wave.

The third and fourth elements of “tetrad of housing landmines” are the fact that we still have over 1 million underwater borrowers and the continuation of non-performing loans nationwide.  Nuiry’s report is a pretty hard-hitting indictment of HAMP and the banks, something very unexpected coming from RealtyTrac, which is a cheerleader for the mortgage industry.  It remains to be seen just how the banks and our leaders will prepare for a festering new breed of foreclosure activity on the horizon.

Loosening the Belt on Mortgage Underwriting?

Posted in Real Estate

David Dayen of the liberal New Republic recently reported on a speech by Mel Watts, the chairman of the Federal Housing Finance Agency (FHFA), which has served as the conservator for Fannie Mae and Freddie Mac since the financial crisis.  Dayen argues that Watt “signaled to mortgage bankers that they can loosen their underwriting standards, and that Fannie and Freddie will purchase the loans anyway, without much recourse if they turn sour.”  While the reasons for the financial crisis are many, it cannot be argued that loose lending did not play a major role.  Well, on January 10, 2014, the Consumer Financial Protection Bureau’s Ability-To-Repay Rule went into effect, which has caused some tightening in the lending world.

Under the new Ability-to-Repay Rule, mortgage lenders must look at customers’ income, assets, savings, and debt, and weigh those against the monthly payments over the long term not just a teaser or introductory rate period. As long as they check the numbers and the numbers check out, lenders can offer any mortgage they reasonably believe a consumer can afford.  Certain types of mortgages are more likely to become a debt trap for the borrower so the new rule lays out basic guidelines that lenders can follow.  Loans within these guidelines are called “Qualified Mortgages,” and they give lenders greater certainty that they are meeting the Ability-to-Repay requirement. The Ability-to-Repay Rule does not require lenders to offer any specific type of mortgage.  Lenders can offer any mortgage they believe a consumer has the ability to repay, as long as they have documentation to back up their assessment.  So, not all loans will be Qualified Mortgages.  The Consumer Financial Protection Bureau estimates that roughly 92 percent of mortgages in the current marketplace meet the Qualified Mortgage requirements. Dayen argues that the Ability-To-Repay Rule has “created a much safer housing market.”  Click on the graph below to compare delinquency rates on loans originated between 20112 and 2014 and 2005-2008 vintages.  It seems hard to argue with this claim.

Delinquency Rate Graph

Dayen, in much more pointed terms argues that:

the mortgage industry has engaged in an insidious tactic: tightening lending well beyond required standards, and then claiming the GSEs make it impossible for them to do business. For example, Fannie and Freddie require a minimum 680 credit score to purchase most loans, but lenders are setting their targets at 740. They are rejecting eligible borrowers (which, after all, make lenders money) so they can profit much more from a regulation-free zone down the line.

Let’s call this what it is: a shakedown. You can see this clearly from the opening session of the Mortgage Bankers Association conference, where the trade group’s leadership sounded more like mob dons. “If they’re going to regulate us, they must work to better understand the unintended consequences on consumers,” said MBA Chairman Bill Cosgrove. “Enforcement should be the exception to the rule, not the rule itself,” added President David Stevens. Concluded Cosgrove, “Today’s lenders are paying many times over for mistakes that may have been out of their control… It’s time for the penalty phase to end.” Nice mortgage market you’ve got there; shame if something happened to it.

Sadly, Watt, the FHFA chairman, has paid attention to these howls of protest, and has scrambled to “open the credit box,” to use the industry term. In Monday’s speech, he announced additional changes to the representations and warranties language. Generally speaking, the GSEs limit buybacks to the first three years. But they can demand buybacks later in certain prescribed cases of fraud, data inaccuracies or misrepresentation. However, Watt announced that his agency would establish “a minimum number of loans that must be identified with misrepresentations or data inaccuracies” to trigger the buybacks. In other words, lenders can now pass the GSEs a certain number of fraudulent loans, as long as they stay below the threshold.

He concludes with this thought:

Fixing the housing market requires putting people in the financial position to carry a mortgage, not slashing lending standards. It’s as if government’s best and brightest threw up their hands, deciding they had to return to bubble economics as the only way to produce growth. This has the lending industry, which profits handsomely from bubbles on the way up, licking their chops, especially if they can sell off the loans to the taxpayer and let them deal with the consequences.  Given what we know about how lenders shuttled borrowers with weak credit into loans they couldn’t afford, the prospect of a rerun should be frightening enough for any policymaker to reject. But the industry played Mel Watt and other officials like a fiddle, and we’ll all be singing the blues in the aftermath.

I leave it to the reader to decide if they agree with Dayen’s conclusion, but for all the books I was reading during the financial crisis detailing the tactics of the likes of New Century, Ameriquest, Countrywide, and the major banks, it is hard to argue with some tightening in the lending world.  Yes, it will keep some people out of the housing market, but maybe that is exactly how it should have been in the first place.  Maybe we should learn from Ed Clark, a plainspoken, polite and prudent Canadian bank CEO with a few simple rules: “We should never do things for our customers and clients that we don’t actually understand. If you wouldn’t put your mother-in-law in this, don’t put our clients in it.”  Simple advice – just not followed south of the Canadian border.

Student Loan Debt is Crushing the Housing Market

Posted in Uncategorized

Debt Image

Here are some sobering figures from John Burns Real Estate Consulting on how the meteoric rise in student loan debt is having a very appreciable effect on the housing market.

  • Student debt has ballooned from $241 billion to $1.1 trillion in just 11 years.
  • 29 million of the 86 million people aged 20–39 have some student debt.
  • Those 29 million individuals translate to 16.8 million households.
  • Of the 16.8 million households, 5.9 million (or 35%) pay more than $250 per month in student loans, which inhibits at least $44,000 per year in mortgage capability for each of them.
  • About 8% of the 20–39 age cohort usually buys a home each year, which would be 1.35 million transactions per year.

John Burns Real Estate Consulting estimates that student debt will cost the housing industry approximately $83 billion in sales in 2014.  What is particularly troubling is that households that pay $750 or more for college loan debt each month are priced out of the housing market entirely.  This is consistent with what is seen in mortgage application approvals.  Anthony Hsieh, the chief executive of LoanDepot.com has stated: “Between the approved universe and the denied universe, the [borrower’s] credit is the same. The fundamental difference is a few hundred dollars in student loan debt that pushed the debt-to-income above the approved threshold.”

This trend does not seem likely to abate either.  With college debt increasing by about 6% every year, there is every reason to believe this trend will continue, and probably worsen, John Burns Real Estate Consulting reports.  For this year alone, the John Burns Real Estate Consulting report estimates that heavy college debt will reduce real estate sales by 8% for this year.

Increasingly, the chances of younger generations living better than their parents (at least materially speaking) is no longer very promising.

Progressive Housing Policy – Laying the Blame for the Housing Bubble on “Affirmative Credit”

Posted in Uncategorized

A recent article by Michael Booth in the admittedly conservative online magazine American Thinker posits that the much of the blame for the housing crisis can be traced to the Democrat’s “affirmative credit” policies.  Booth argues that the naming of Michael Raines as the CEO of Fannie Mae turned Fannie Mae into a Democratic “campaign machine,” and helped reshape Fannie Mae by lowering credit standards and allowing for no documentation loans and “liar loans.”  There is simply no simple way to explain the housing crisis.  While Booth’s argument attempts to lay the blame on “progressive” housing policies, clearly, there was much more at play.  Securitization, huckster mortgage lending, low interest rates, greed, fear, wanting more than you should have all played a role in this, and trying to pin it on the lenders, bankers, Barney Frank, Countrywide, undeserving homeonwers does not help explain the complexity.

What is clear is that the pendulum swing in lending has been severe.  Home ownership is at the lowest point it has been in forty years.  Rob Couch, a commissioner for the Bipartisan Policy Center’s housing commission argues that “all the laws set up to protect low-income, moderate-income and first-time buyers are protecting them out of a chance to buy a home. And consider the difference it makes on the community to have homeowners, to take chances on people on the margins and have them grow into responsibility.”  So many of the laws that have been implemented since the crash have impacted mortgage lending to the point that many lenders just cannot make any money making loans to these groups.  All of these vacillations in lending standards seems to argue for a more localized lending process through banks where individuals can make decisions based on knowing people, their needs, the strengths and weaknesses.  Securitization certainly created great incentives for lenders and banks and played a huge role in the crash.  A return to local lending decisions based on practical guidelines would help create a stable housing market.

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