Saturday, November 14, 2009
There have been a few good articles out lately about solar rights. I have been meaning to post them. Here are the abstracts:
Sara Bronin (Connecticut) has a pair of articles relevant to the topic. The first is Solar Rights, Boston University Law Review, Vol. 89, p. 1217, 2009
The rights to access and to harness the rays of the sun - solar rights - are extremely valuable. These rights can determine whether and how an individual can take advantage of the sun’s light, warmth, or energy, and they can have significant economic consequences. Accordingly, for at least two thousand years, people have attempted to assign solar rights in a fair and efficient manner. In the United States, attempts to assign solar rights have fallen short. A quarter century ago, numerous American legal scholars debated this deficiency. They agreed that this country lacked a coherent legal framework for the treatment of solar rights, especially given the emergence of solar collector technology that could transform solar energy into thermal, chemical, or electrical energy. These scholars proposed several legal regimes that they believed would clarify solar rights and facilitate increased solar collector use. Very little has changed since this debate about solar rights began. Although some jurisdictions have experimented with scholars’ suggestions, reforms have not been comprehensive, and solar rights are guaranteed in very few places. At least in part because of the muddled legal regime, and despite numerous technological advances that have reduced the cost of solar collectors, only one percent of our nation’s energy currently comes from the sun. In this context, this Article aims to reinvigorate and refocus the scholarly debate about solar rights. The Article first explains why solar rights are valuable to both individuals and to the country as a whole. It then analyzes three methods by which solar rights can be allocated: express agreements between property owners, governmental permit systems or zoning ordinances, and court assignments that result from litigation. Although this Article analyzes the concerns of both solar rights seekers and possible burdened parties with respect to current law; it does not fully address the possible solution to the problem of solar rights. Instead, this Article sets the stage for a second piece, 'Modern Lights,' simultaneously being published in the University of Colorado Law Review.
Bronin's companion piece is Modern Lights, University of Colorado Law Review, Vol. 80, p. 101, 2009. The abstract:
This Article functions as a companion to a piece, Solar Rights, recently published in the Boston University Law Review. In that piece, the author analyzed the absence of a coherent legal framework for the treatment of solar rights - the rights to access and harness the rays of the sun. The growing popularity of, and need for, solar collector technology and other solar uses calls for reform.
Answering the call for reform in Solar Rights, this Article proposes a framework within which a solar rights regime might be developed. First, as a baseline, any regime must recognize the natural characteristics of sunlight. Sunlight travels in beams, often across multiple legal parcels, meaning that while a solar right benefits one parcel, it also likely burdens others. Any solar rights regime must weigh the relative value of various property interests and reject frameworks that attempt to implement absolutist approaches. In addition, solar rights must address topographic, latitudinal, and other location-specific conditions. In other words, the rules for solar rights should be flexible, drawing from water law to combine strategies of exclusion and governance to manage sunlight, a fugitive resource like water.
Second, in addition to accommodating the natural characteristics of sunlight, solar rights must clarify both the identity of the holder of the initial entitlement and the nature of the entitlement itself. In recognition of the public benefits of protecting solar access, solar rights should initially be assigned to the party who can put the solar right to the highest socially beneficial use: the solar collector owner, rather than the potential obstructer. Along with the assignment of the initial entitlement, and in recognition of the relativity of solar rights, we must embrace liability rules (as opposed to property rules), which compensate burdened landowners.
A solar rights regime that both recognizes the natural characteristics of sunlight and adequately articulates the nature of the initial entitlement may be difficult to formulate. This Article suggests that instead of creating new legal forms that may further complicate an already complicated task, we rely on existing property forms within the numerous clausus. It advocates a regime that draws from principles in water law, sets the initial entitlement so as to produce socially beneficial results, and adequately compensates burdened landowners. Although much work remains to refine and implement a functional solar rights regime, this Article aims to restart a discussion that has remained 'in the shadows' for too long.
Troy Rule (Missouri) has a piece called Shadows on the Cathedral: Solar Access Laws in a Different Light coming out in the University of Illinois Law Review, Vol. 2010, 2010. The abstract:
Unprecedented growth in rooftop solar energy development is drawing increased attention to the issue of solar access. To operate effectively, solar panels require un-shaded access to the sun’s rays during peak sunlight hours. Some landowners are reluctant to invest in rooftop solar panels because they fear that a neighbor will erect a structure or grow a tree on nearby property that shades their panels. Existing statutory approaches to protecting solar access for such landowners vary widely across jurisdictions, and some approaches flatly ignore the airspace rights of neighbors. Which rule regime for solar access protection best promotes the efficient allocation of scarce airspace, within the constraints of existing law? This Article applies Calabresi and Melamed’s “Cathedral” framework of property rules and liability rules to compare and analyze existing solar access laws and to evaluate a model solar access statute recently drafted under funding from the US Department of Energy. Surprisingly, the Article concludes that a statute implementing the Cathedral model’s seldom-used “Rule Four” is best suited for addressing solar access conflicts.
Prof. Rule also has a related piece about wind rights, in A Downwind View of the Cathedral: Using Rule Four to Allocate Wind Rights, San Diego Law Review, Vol. 46, p. 207, 2009.
Friday, November 13, 2009
Thanks to Chris Leinberger, author of the The Option of Urbanism: Investing in a New American Dream, we know what the rather uninspired, industrial age 19 standard product types are that institutional investors put their money in . . . .
However, what would be the 19 urban development types for the creatives that fuel the knowledge economy? Here’s one look at it, based on a list initially produced by renowned urbanist Andres Duany
Suffice it to say that most of the types theorized here involve lots 'n' lots of mixed use. I'm a big fan of both Leinberger and Duany for their analysis of land use models and insights. Interesting stuff.
The Ninth Circuit has issued its opinion in National Parks & Conservation Ass'n. v. Bureau of Land Mgmt., No. 05-56814. The Association challenged the exchange of private lands, including parcels surrounding a mine site, owned by the Bureau of Land Management under the Federal Land and Policy Management Act. The district court granted summary judgment to the plaintiffs. The Court of Appeals affirmed in part and reversed in part. The Court affirmed the holding that the Bureau should have considered the probable use for a landfill as part of the "highest and best use" analysis, and that the range of alternatives that the Bureau considered was too narrow. The Court reversed to the extent that the Bureau's record was not the "final action" of the agency and the record in the environmental impact statement was sufficient.
The plaintiff, National Parks & Conservation Association, considers the Ninth Circuit ruling to be a victory: see their press release.
Today, the U.S. 9th Circuit Court of Appeals upheld a previous court decision overturning the land exchange necessary for the development of what would be the world's largest garbage dump on the boundary of Joshua Tree National Park. If you are interested in these issues read the opinion. Matt Festa
Today, the U.S. 9th Circuit Court of Appeals upheld a previous court decision overturning the land exchange necessary for the development of what would be the world's largest garbage dump on the boundary of Joshua Tree National Park.
If you are interested in these issues read the opinion.
From Las Vegas -
CityCenter is due to open soon. MSNBC has the following description:
SoHo with slot machines
And another mixed use development, Tivoli, is renewing construction work after taking time off during the (hopefully) worst of the recession. While the residential real estate market in Las Vegas has a long way to go toward recovery, this commercial, mixed use construction is a promising sign.
Thursday, November 12, 2009
The other day I discussed some possible ramifications of the Pfizer pullout from New London. Today, the New York times published a forum on the topic at the Room for Debate opinion blog: A Turning Point for Eminent Domain?
When Pfizer announced on Monday that it was closing its global research and development headquarters in New London, Conn., the news reverberated far beyond the struggling seaport city. The project, part of an urban renewal effort, was the basis for a much-debated 2005 Supreme Court decision upholding government’s eminent domain rights to take private property for public use.
But the New London redevelopment never got off the ground, even after the local and state governments spent more than $80 million to buy and demolish private property to pave the way. Now comes the blow from Pfizer: how will its withdrawal affect future eminent domain battles in redevelopment projects? What are the lessons learned for urban planners and local governments?
Prof. Finkelman agrees that the New London redevelopment plan was ill-conceived but defends economic development takings generally:
The cautionary tale in New London is that governments trying to stimulate economic development should be smarter and negotiate harder with private industry, not that cities or states should be handcuffed from using law and eminent domain for the vital public purpose of economic development.
Paul Bass says that Clarence Thomas was right, and that "It's a mistake for urban liberals to stand against the little guy." One of the reasons that Kelo got such an amazing backlash from across the political spectrum (including many urban liberals) is that the property-rights cause was asserted not by a wealthy landowner but by a so-called "little guy" group of homeowners.
Dana Berliner says "No Surprises Here":
Risky real estate deals are, well, risky. That means they often fail. And if a private company made a risky deal that failed, we wouldn’t even be discussing it. But when government uses eminent domain to remove people from their homes, while spending tens of millions of public dollars on a failed risky deal, that’s a travesty.
I wrote about how the Pfizer move may not change anything legally, but it undercuts the political rationale of economic development takings. The Kelo Court was persuaded in part by the comprehensive nature of the New London redevelopment plan; that plan's ultimate failure gives eminent domain opponents an efficiency argument in addition to the property rights/fairness critique.
All the contributions are posted at Room for Debate. It was very cool to be asked to join in the discussion, and I'm glad that the New York Times noticed the Land Use Blog!
UPDATE: Ilya Somin (George Mason) has joined the discussion at the NYT. He criticizes the outcome in Kelo and argues for a return to greater judicial scrutiny of takings under the Public Use Clause. But it's not all bad news:
The impact of Kelo has not been entirely negative. Public awareness of eminent domain abuse has increased, and 43 states have enacted reform laws as a result. Unfortunately, the majority of the new laws only pretend to ban Kelo-style condemnations while actually allowing them to continue under other names. There is still a pressing need for stronger judicial protection of constitutional property rights.
I agree. I do think the overall political impact of Kelo might even outweigh the legal loopholes that exist in the reform laws regarding eminent domain.
UPDATE 2: Thomas Merrill (Yale) has also joined in. Prof. Merrill notes that both the economy and the eminent domain litigation itself played a role in the failure of the redevelopment. He says the answer is to localize eminent domain:
I do not believe that this sad episode means we should overturn Kelo and ask federal judges to arbitrate questions about when eminent domain should be used. The solution is not to nationalize eminent domain, but to localize it. If a proposed project is one that will have primarily local benefits — like economic development — then local citizens should decide whether to pursue it, not some state redevelopment agency or the governor’s office.
Why not consider devoting different streets to different kinds of transportation? And surely cities need more green space and some are actually getting it. Inspired by the High-Line Park, by DC's Rock Creek Park, and Toronto's extensive ravine system, I have been noodling about the possibility of creating linear green belts or what I like to think of as sliver parks through cities. . . .
So I was more than pleasantly surprised to see The New York Times' Nicolai Ouroussoff highlighting just such an approach coming out of a nine-month design competition for the Bronx's "faded" Grand Concourse.
Meanwhile, Joel Kotkin of New Geography and Forbes continues to pour empirical water on Florida's creative class thesis in Numbers Don't Support Migration Exodus to "Cool" Citites:
For the past decade a large coterie of pundits, prognosticators and their media camp followers have insisted that growth in America would be concentrated in places hip and cool, largely the bluish regions of the country.
Since the onset of the recession, which has hit many once-thriving Sun Belt hot spots, this chorus has grown bolder. The Wall Street Journal, for example, recently identified the "Next Youth-Magnet Cities" as drawn from the old "hip and cool" collection of yore: Seattle, Portland, Washington, New York and Austin, Texas.
It's not just the young who will flock to the blue meccas, but money and business as well, according to the narrative. The future, the Atlantic assured its readers, did not belong to the rubes in the suburbs or Sun Belt, but to high-density, high-end places like New York, San Francisco and Boston.
This narrative, which has not changed much over the past decade, is misleading and largely misstated. Net migration, both before and after the Great Recession, according to analysis by the Praxis Strategy Group, has continued to be strongest to the predominately red states of the South and Intermountain West.
An interesting and important debate about the core issues of land use planning.
At Capitol Hill’s Sole Repair, campaign workers were ecstatic over the success of Proposition 1, the city of Seattle affordable-housing levy that looked to be headed to easy victory with 63 percent of the vote. . . .
The seven-year, $145 million measure passed despite the ongoing economic crunch, making it the fifth affordable-housing levy in a row to be passed by Seattle voters.
Backyard cottages will be allowed in single-family zones throughout Seattle under an ordinance approved unanimously by the City Council Monday.
The council had considered allowing detached cottages citywide in 2006, but ended up just allowing them in Southeast Seattle. Mayor Greg Nickels has backed the proposal to allow the units elsewhere.
Opponents fear the move will effectively rezone the entire city and threaten neighborhoods of single-family homes, but supporters say it provides needed housing options in the city.
The cottages have height and area limits and must be no more that 800 square feet. This type of housing option can really add to the diversity and affordability of an otherwise exclusive neighborhood. We have plenty of so-called "granny flats" in the Unzoned City and it works out quite well--for example, a lot of Rice University students live in garage apartments in the surrounding affluent neighborhood.
Wednesday, November 11, 2009
John R. Nolon and Kristen M. Grzan (Pace) have posted Rising Tides--Changing Title: Walton County v. Stop the Beach Renourishment, published in the Real Estate Law Journal, 2009. The abstract:
This article first discusses the facts of the Walton County case and how the statute affects title to coastal parcels and then turns to an analysis of the fee simple absolute title to coastal properties in Florida, how deeds are drawn, and how title is insured under title company practices. This is followed by a further exploration of the regulatory taking issue and then the judicial taking claim. We then explore the tension that the judicial takings issue raises regarding the jurisdiction of federal and state courts. The article then takes a look at the property interests-the sticks in the bundle of sticks that constitute fee simple title-that are implicated in regulatory takings cases, followed by a conclusion.
Ben Barros has posted a link to the petitioner's reply brief in Stop the Beach Renourishment.
Mark Ireland (Hamline) has posted Bending Toward Justice: An Empirical Study of Foreclosures in One Neighborhood Three Years after Impact and a Proposed Framework for a Better Community. The abstract:
It has been at least three years since the initial wave of foreclosures impacted major cities across the country. This article is an empirical study of one neighborhood in Minneapolis, Minnesota. In addition to an analysis of lending patterns and loan characteristics, this study also analyzes the post-foreclosure impact. Once the foreclosure occurred, what happened to the property? This study finds that 83% of the properties were the subject of a 911 emergency phone call, most properties took over a year to sell from the date of foreclosure to the date of sale, and that the median loss for the lender related to the property was 49% of the redemption amount. The article puts these statistics into context, analyzing five major policy areas implicated by the statistics that highlight incorrect assumptions made about the foreclosure crisis. Finally, the article proposes a framework for a national conversation about race and poverty in order to move forward and target resources where they are most needed.
Patricia Salkin (Albany) has posted Providing for Alternate Members of Planning and Zoning Boards: Drafting Effective Local Laws, Planning and Environmental Law, American Planning Association, Vol. 61, No. 8, August 2009. The abstract:
It is not uncommon for members of planning and zoning boards to have conflicts of interest with respect to applicants and applications before the board. When these members disclose and recuse themselves from further involvement in pending matters, it can lead to problems including a lack of quorum for the conduct of business and to tie votes resulting in either inaction or in default approvals. A number of states specifically authorize, but do not require, the appointment of alternate members to these local land use boards. However, many of these statutes fail to provide necessary guidance as to how alternate members are to be selected and appointed, and what their responsibilities and powers are during their term of office. This article offers lawyers, municipal officials and other community leaders best practices with respect to the drafting of effective local laws for the appointment of alternative members of planning and zoning boards.
Jane Baron (Temple) has posted The Contested Committments of Property, forthcoming in the Hastings Law Journal. The abstract:
The means by which property organizes human behavior and social life is the subject of profound and heated debate. On one side, information theorists emphasize that property works in rem, using standardized signals to tell all the world to keep off things owned by others. On the other side, progressive theorists emphasize property’s capacity to promote human flourishing, respect for human dignity, Aristotelian virtue, or democratic governance. The divide between these two schools of thought represents the most vital dispute in a quarter-century of property scholarship, and it seems likely to preoccupy academics (and their students) for at least another generation.
This paper claims that debates between informational and progressive scholars, despite their prominence, are not adequately understood. Such debates currently center on whether the right to exclude is fundamental to property law. This issue plays out doctrinally in arguments over whether trespass is property’s paradigmatic rule, and metaphorically in arguments over whether exclusion rights, as opposed to human relationships, lie at property’s “core.”
By contrast, this paper suggests that academics’ singular focus on exclusion has obscured even deeper questions about property’s stability, its institutional mechanism for change, and its very status as a distinctive field of study. Rather than pursuing unproductive controversies over what lies at property’s “core” and “periphery,” this paper presents a different metaphorical contest as a more accurate account of the issues in modern property law. Information theorists employ the metaphor of property as a machine - a machine that, with minimal tinkering, has produced a good-enough social ordering and will generally continue to do so. This mechanical metaphor is inconsistent with progressive theorists’ view of property as a conversation. The progressives’ conversation metaphor expresses the view that we need to continually question whether the system is good enough, that we need to openly debate the quality of the human relationships that property produces, and that we must revise property rules that fail to fulfill our underlying value commitments. This metaphorical contest is important doctrinally because it reflects conflicting views about whether we can ever unreflectively trust property rules to express our values. “Machine” and “conversation” suggest very different visions of how much faith we should have in our existing system of property, of whether it is good enough, and of whether we can trust ourselves to improve it.
The website LiveScience just posted an article entitled "The Well-Being of 50 U.S. States." It's actually a survey called "the Gallup-Healthways Well-Being Index," which purports to show which states are the happiest. Some of the factors that contribute to happiness include personal behaviors, but a related article says part of the reason is that some states' populations are happier is because the states are wealthier and can provide better infrastructure to meet residents' needs.
So how do these rankings shake out? Utah, Hawaii, Wyoming and Colorado are the top 4. I'm a Colorado native and just returned from a trip there, so that ranking warms my heart. However, I think the view of the Rockies way outstrips the infrastructure in contributing to happiness. Maybe when I can ride the light rail all the way to the Denver airport (scheduled for 2014) I'll feel differently. As for my current home and the home states of my co-bloggers - Texas is 21st, Georgia is 23rd, South Carolina ranks 26, Alabama is 33rd, and Nevada is 38th. (I expected Nevada to have a higher ranking, given the rankings of other western states. Maybe Ngai Pindell has some ideas about why Nevada is relatively low?)
I'll be blogging more about current land use issues in Colorado in the coming weeks. I'm also planning to post some guest blogs by my students about their projects this semester.
Jamie Baker Roskie
In a move that will likely encourage other cities to follow its example, city leaders in Providence, Rhode Island, have decided to relocate a major highway from the heart of downtown to its outskirts. Providence is also the city which, two decades earlier, uncovered two rivers it had previously paved over--the Woonasquatucket and Moshassuck Rivers--repointing their convergence for aesthetic reasons. For a full report about the highway relocation, see Elizabeth Abbot, Removing a Barrier: Relocating an Interstate Allows a New England City to Reconnect, New York Times (Nov. 11, 2009). Officials hope to entice Brown University and Johnson & Wales (the culinary college) to purchase parcels in the shadows of where the highway once stood. This area, also known as the Jewelry District, was originally connected to downtown Providence before the construction of the highway. Once built, the highway severed this connection. Following demolition of the old highway, Providence will begin work on establishing a new street grid. In addition to reconnecting the area to downtown, the new street grid will connect the District to the waterfront. Providence envisons there a new city park complete with an amphitheater and sculpture garden. Local neighborhood groups are in the process of lobbying for a new transport hub, one that would include ferries. Although completing these projects will take time in light of Providence's deteriorating economy, it is hoped that improved land use--achieved using New Urbanist principles--will yield economic benefits in the years to come.
Will Cook, Charleston School of Law
...recently gave a speech that pretty much explains why municipalities should not expect increased land development anytime soon:
I am wary of the consensus view. For a good while now, I’ve suggested that we are more likely to see a more uneven recovery—not a “V”-shaped recovery but something more akin to a check mark, where the elongated arm of that check mark inclines at a slope that is less than desirable and might possibly be repressed by an occasional pause or several quarters of weak growth.
Why a check mark?
Several recent sources of strength are likely to wane as we head into next year. Cash-for-clunkers and the first-time-homebuyer tax credit have both shifted demand forward, increasing sales today at the expense of sales tomorrow. Neither of these programs can be repeated with any real hope of achieving anywhere near the same effect: The more demand you steal from the future, the less future demand there is for you to steal. The general tax cuts and government spending increases included in this year’s fiscal stimulus package won’t have their peak impact on the level of GDP until sometime in 2010, but their peak impact on the growth of GDP has come and gone; the fiscal stimulus continues to drive GDP upward, compared with what it would otherwise have been, but the increments to GDP are beginning to shrink. And, as we all know, the shot in the arm that our economy is receiving from inventory adjustments is, while welcome, inherently transitory.
The comment on the first-time homebuyer tax credit is especially informative. In fact, in my last Land Planning class, we spent most of the session discussing the phenomenon of "shifting demand forward".
The concept is simple...yet extremely dangerous in practice. In the context of land development, it goes like this:
1. If you convince someone to buy a house NOW with near total debt instead of LATER when they've saved up some equity to go along with that debt, you've basically cut their future earnings because they've now spent what they have yet to earn.
2. Granted, that's how credit works but we're not talking short-term revolving type credit here (the kind used to finance inventories for businesses). Instead, we're talking about long-term debt whose interest eats into future earnings at a consistent rate (and, in the case of ARMs and other loans whose initial interest rates subsequently increase, growing rate).
3. This creates a "perfect storm" against land development. All the demand that exists today for houses and other structures PLUS the demand that will exist years into the future, is now prematurely realized today.
Thus, most laws and regulations that facilitate this, are essentially Red Bull in nature. That is, they give a short term burst...followed by a hard, draining crash in demand.
If you are a municipality hoping to bide your time to see property tax and development fee revenues return, then the wait could be longer than you (and your budgeting process) thinks.
--Chad Emerson, Faulkner U.
A very happy Veterans Day to all, with thanks to those who have served. In honor of the day, here are a few desultory land use issues involving military veterans.
The idea of rewarding veterans for their service with grants of land is an ancient one. I suspect it goes back at least to ancient Rome, and probably before. Cincinnatus and all that. It makes a lot of sense, historically, where cash-poor governments asking for or requiring military service have traditionally had one major asset to distribute: sovereign domain over land. Part of this historical generosity is certainly due to gratitude for service, and part of it must also be the social concern over standing armies in peacetime.
After the Revolutionary War, the thirteen states and the Continental Congress had two major issues: (1) crippling debt from financing the war; and (2) a whole lot of land that was largely unsettled (by Anglo-Americans, that is) and unregulated--the territory from the Appalachian Proclamation of 1763 line to the Mississippi. The solution? First, get the states to cede their western claims to the national government. After the Virginia Cession in 1784, Congress set about making a plan for the western lands. The 1785 Land Ordinance and the 1787 Northwest Ordinance did not mention veterans specifically, but they were part of the larger federal program designed to distribute and regulate the western territories with the notion of state land grants to Revolutionary War veterans in mind. [I have a work in progress on the Northwest Ordinance and property rights]. For you property law fans, the ensuing government survey of the lands was part of what originated the political/geographic establishment of counties and townships across the western states.
So government policy has long favored helping veterans obtain land. Harold Hyman wrote a really interesting book tracing the effects of this policy preference in the wake of major wars in American Singularity: The 1787 Northwest Ordinance, the 1862 Homestead and Morrill Acts, and the 1944 G.I. Bill.
The Department of Veterans Affairs has a home loan guaranty program that allows qualified veterans to secure mortgage loans at favorable rates. This has been around for a while. Along with FHA loans, the VA loan program was instrumental in moving millions of veterans into single-family houses.
The entire story of post-WWII suburban development is in large part a story about how to give veterans--who survived both the War and the Depression--a piece of the American Dream (and also about what to do with and where to put the 8+ million men and women suddenly out of uniform and getting to work on the Baby Boom). The designers of Levittown(s) were mass-producing single-family suburban homes in large part because of the market imperative of housing returning veterans.
At the state level, many states have additional programs that supplement the VA's federal benefits to veterans with respect to land- or home-ownership. Texas, for example, has the Veterans Land Board, which is under the Texas General Land Office. The Veterans Land Board has a number of loan programs with favorable terms for qualified veterans. On November 3, 2009, Texas voters approved Proposition 6, a state constitutional amendment to allow the Veterans Land Board to issue general obligation bonds to finance these programs.
It's a credit to state and federal governments that we have these policies to reward those who have served. The legitimate critical questions we should ask are whether these are the right policies to express that gratitude to veterans. Like other government land use policies--such as Euclidean zoning, highway construction, tax breaks on mortgages--land programs for veterans have favored the single-family suburban lifestyle and have subsidized sprawl. As Chad Emerson has blogged here, these policies seem to be continued in the federal government's responses to the economic crisis. Can policy that favors veterans for their service be modified to mitigate today's land use problems?
Thanks again to all who have served.
Tuesday, November 10, 2009
Detroit has lost another key building in its skyline to the wrecking ball, along with another opportunity for adaptive re-use, as a result of demolition by neglect. ("Demolition by neglect" refers to the gradual deterioration of a building by a building owner who has failed to maintain it.) Now that chunks of the Lafayette Building--an Italian Renaissance, pre-Depression era, triangular brick and limestone building in the heart of downtown--have started falling down, the Detroit Economic Development Corporation says it's time for the building to go. Click here for a link to the article about the building that appeared originally in Detroit's Metro Times, which details the Development Corporation's position that "there was not a reason to keep it up." The city apparently has plans to put a park in the vacant footprint of the building to make it easier to sell, even though this tactic has not worked in the past in areas where other significant public buildings have been lost. In addition, New Urbanists might question the appropriateness (futility?) of putting a park where a major building once stood in a part of town where no one congregates.
Today's loss to Detroit's significant historic architectural fabric could arguably have been prevented by a demolition by neglect ordinance, a form of land use regulation that increasing numbers of municipalities have started to employ or consider. Demolition by neglect ordinances require building owners to maintain their buildings according to pre-established standards; failure to maintain can lead to fines or injunctive relief. Rather than shift the cost of the loss to the public as opposed to the owner (such as the owner of the Lafayette Building), demolition by neglect ordinances place the cost of the loss (social, aesthetic, safety, historic, or otherwise) on the shoulders of the underlying property owner, stripping away the owner's free rider status, and ameliorating the negative costs foisted upon adjacent land owners and the public because of a building owner's failure to maintain the building. Without such an ordinance, adjacent land owners and the public bear the cost of the loss, even though they receive no benefits associated with the building's ownership. Detroit favors the latter approach, a lesson on externalities.
An interesting historical note about the Lafayette Building's tenants: The building once housed Michigan's Supreme Court, the state tax tribunal, various railroad companies, and almost three dozen retailers close to street level.
Will Cook, Charleston School of Law
I have been remiss in not including the recent Supreme Court arguments on Salazar v Buono. The case was argued on October 7, 2009 and the Justices have not yet issued a ruling. I was reminded of the case today when I read a Comment by law student David Peet (Deed of Mistrust?: The Use of Land Transfers to Evade the Establishment Clause, 59 Am. U. L. Rev. 129 (2009)). Peet basically argues that the transfer of land in this case from public to private ownership improperly evades the application of the appropriate constitutional remedy. In Salazar, the Ninth Circuit affirmed an injuction preventing the government (under the Establishment Clause) from displaying a cross on public land in the Mohave National Preserve. Congress then sold the land under the cross to a private party, who will (likely) display the cross. In October, the Supreme Court heard oral arguments on the case. Land use folks will likely be interested in the Court's determination of the legality of the land transfer to a private party given the previous injunction issued against the government.
A number of commentators have reported on the case and its implications. SCOTUS blog provides a good background treatment here. The ACS blog also discusses the case and includes a more humorous take on the oral arguments by Stephen Colbert. The discussion during oral arguments focused primarily on the land transfer and procedural questions concerning standing and the effect of previous decisions.
This case will be watched for its implications for religious displays on public and private land. May an Establishment Clause violation be cured by transferring the underlying land to a private party? We'll soon see.
This is going to get some serious attention among eminent domain watchers. Pfizer just announced plans to close its R&D headquarters in New London, Connecticut. You will recall that Pfizer's facility was a major factor in the redevelopment plan at issue in Kelo v. City of New London. The Hartford Courant has the story and video:
Pfizer Inc. will shut down its global research and development headquarters in New London within two years, transplanting most of the 1,400 employees working there to its vast laboratory complex in Groton, the most dramatic fallout yet from the pharmaceutical giant's recent merger with Wyeth.
Now, the Pfizer facility was not on the same land as Susette Kelo's condemned home. But the announcement of Pfizer's plans was part and parcel of the overall redevelopment plan that the economic development corporation issued, which the U.S. Supreme Court found persuasive in justifying the "economic development" taking of property as within the meaning of the Public Use Clause. From Part I of Justice Stevens' majority opinion:
In January 1998, the State authorized a $5.35 million bond issue to support the NLDC's planning activities and a $10 million bond issue toward the creation of a Fort Trumbull State Park. In February, the pharmaceutical company Pfizer Inc. announced that it would build a $300 million research facility on a site immediately adjacent to Fort Trumbull; local planners hoped that Pfizer would draw new business to the area, thereby serving as a catalyst to the area's rejuvenation.
It looks as though the rejuvenation hasn't materialized, and now the would-be catalyst is packing up and leaving. The corporation's use of eminent domain in the Fort Trumbull area was intended to complement the jobs and taxes generated by Pfizer with a major redevelopment that was to include mixed-use projects, a marina, a waterfront conference center, and other good-sounding things. But apparently very little if any of that development has taken place. To be fair, the redevelopment was probably hindered by both the pending litigation and now by the economy. Either way, it looks like Pfizer (which makes Viagra among other pharmaceuticals) will not be taking advantage of the government's use of "e.d." in New London to fight "e.d." everywhere. [As Foghorn Leghorn would say, "that's a joke, son!"]
This news will probably become Exhibit A in any future fights against the use of eminent domain in redevelopment projects. Exhibit B will be Poletown, the Detroit neighborhood that was condemned for economic development purposes in 1981 at the behest of General Motors; at its peak the plant delivered about half of the promised 6,000 jobs and much of the former neighborhood land is unused. Some critics estimate that the Poletown effort cost $300 million. The Michigan Supreme Court reversed the Poletown holding on economic development takings just prior to Kelo in County of Wayne v. Hathcock, 471 Mich. 445 (2004).
1) This is one more nail in the coffin for economic development takings as a political issue. The post-Kelo backlash was as profound as it was surprising to those already familiar with the Berman and Midkiff precedents. With over forty states ostensibly renouncing the use of eminent domain for "economic development," the concept is anathema politically. The backlash--with support from across the political spectrum--seemed to have resonance mostly in arguments about property rights and/or equity. With the evident failure of New London's comprehensive redevelopment plan, opponents can add efficiency and effectiveness to their quivers.
2) That doesn't necessarily mean, however, that local governments won't be able to use eminent domain in redevelopment projects. Some states don't have anti-Kelo laws, as the Atlantic Yards controversy shows, and others have reforms that have wide "blight" loopholes or otherwise lack teeth, as Somin discusses in The Limits of Backlash: Assessing the Political Response to Kelo. While no one wants to say they are doing an "economic development taking" anymore, that doesn't mean that local governments won't be willing or able to justify condemnation as part of a project to revitalize an area.
3) The persuasiveness of comprehensive redevelopment plans to justify eminent domain may be challenged in the future. In takings litigation, courts are very deferential to legislative judgment and police powers, and the Kelo majority was obviously influenced by the comprehensive nature of the master plan. I don't see any big changes in judicial review as a result--it's a longstanding corollary of rational-basis review that the government doesn't have to have the best plan, it just has to be . . . rational. But the arguments will have more force in light of the New London story; perhaps more people will advocate for Justice Kennedy's concurring opinion argument for some sort of more "demanding" scrutiny.
4) Politicians and planners might be more cautious about hitching their redevelopment wagons to one big private entity. I'm as enticed as anyone by the idea of revitalizing a downtown/waterfront/etc. with a grand scheme that involves jobs, tax revenues, public-private partnerships, mixed-use development, walkable urbanism, transit, and the creation or enhancement of public space. But if the plan is based around promises from Pfizer, or GM, the incoming sports team, or any other single private entity or group, then the whole plan risks failure if the private actors decide to go elsewhere (even if it's because of litigation or the economy). When these plans fail to deliver, both the eminent domain power and the public fiscal resources are wasted.
UPDATE: Ilya Somin has some further analysis of the issue and of this post over at the Volokh Conspiracy. I think he is right: economic development takings will probably continue as long as the balance of power favors government actors (with the legal power) and private corporations (with the money) over individual property owners. I said above that politicans and planners "might" be more cautious, but I should have said that they should be more cautious; like Somin, I don't trust that they will do so. On the politics of the issue, I'd suggest that at least in the face of informed opposition, proponents of economic development takings ought to be more circumspect in the future.
Monday, November 9, 2009
I've been out of town for a few days, and have noticed a number of interesting articles recently published in the journals or posted on SSRN. Check them out!:
Richard K. Green (George Washington) & Susan M. Wachter (Penn--Wharton, Real Estate), The Housing Finance Revolution.
Keith H. Hirokawa (Albany), A Challenge to Sustainable Governments? Washington University Law Review, Volume 87, Number 1, 2009, 203.Daniel K.N. Johnson, Kristinia Lybecker, Nicole Gurley, Alex Stiller-Shuman, and Stephen Fischer (Colorado College, Economics & Business), The NWIMBY Effect (No Walmart in My Backyard): Big Box Stores and Residential Property Values.
Gideon Kanner, Do We Need to Impair or Strengthen Property Rights in Order to "Fulfill Their Unique Role"? A Response to Professor Dyal-Chand, University of Hawaii Law Review, Volume 31, Number 2, Summer 2009, 423.Alfred S. Konefsky (Buffalo), Simon Greenleaf, Boston Elites and the Social Meaning and Construction of the Charles River Bridge Case, forthcoming in TRANSFORMATIONS IN AMERICAN LAW: ESSAYS IN HONOR OF MORTON J. HOROWITZ, Vol. II, Daniel Hamilton & Alfred Brophy, eds., Harvard University Press.Andrey D. Pavlov (Simon Fraser, Finance) & Susan M. Wachter (Penn--Wharton, Real Estate), Subprime Lending and Real Estate Prices, Real Estate Economics, forthcoming.Christopher L. Peterson (Utah), Fannie Mae, Freddie Mac, and the Home Mortgage Foreclosure Crisis, forthcoming, Loyola University New Orleans Journal of Public Interest Law, Vol. 10, pp. 149-170, 2009.Timothy Zick (William & Mary), Property As/And Constitutional Settlement, Northwestern University Law Review, Vol. 104, 2010, forthcoming.
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