Friday, July 16, 2010

Hester & Wright on the Shifting Scope of Railroad Easements

Jeffrey Hester (William J. Tucker & Assocs.) and Danaya C. Wright (Florida) have posted Pipes, Wires, and Bicycles: Rails-to-Trails, Utility Licenses, and the Shifting Scope of Railroad Easements from the Nineteenth to the Twenty-First Centuries, published in Vol. 27, Ecology Law Quarterly.  The abstract:

This article responds to a series of class action suits filed against railroads, telecommunication companies, and the federal government claiming that once railroads abandon their corridors, all property rights shift to adjacent landowners. This article reviews the state law on this matter and offers a theory of how courts should handle these cases. After discussing the history of nineteenth-century railroad land acquisition practices, it analyzes the scope of the easement limited for railroad purposes, then discusses the role of abandonment in affecting the rights of third party users of these corridors as well as successor trail owners. The article concludes with a theory of railroad easements that interprets the railroad's powers based on the public participation that helped create and establish these corridors and the tenuous claims of adjacent landowners.

Matt Festa

July 16, 2010 in Federal Government, History, Property Rights, Scholarship, Servitudes, Transportation | Permalink | Comments (0) | TrackBack (0)

Thursday, July 15, 2010

64.5 Million Vacant Homes...

One of the tricky things facing many U.S. jurisdictions is the number of houses and apartments sitting empty.  Among other things, these can increase crime and other safety hazards.

Plus, from the private side of things, its a huge drain on future housing demand. 

That's why if you attend a typical Planning Commission meeting, you won't find many development plans or large subdivision plats on the agenda.  There just isn't enough demand with all of the currently empty housing supply in the U.S. (an amount that some like the Realtor association estimate at over 3 million).

Well, if you thought that we here in the U.S. were in a sticky wicket of sorts, then check out these new estimates of empty housing in China:  over 64 million units (note: access to the article requires a free registration to that site).

If this number is even remotely accurate (and it uses a very interesting metric to establish the estimate), then what we've seen to date in the worldwide housing crisis has been nothing more than an appetizer of problems.

--Chad Emerson, Faulkner U.

July 15, 2010 | Permalink | Comments (1) | TrackBack (0)

Wednesday, July 14, 2010

Chen on Property Law & Property Rights in China

Albert H.Y. Chen (Hong Kong) has posted The Law of Property and the Evolving System of Property Rights in China.  The abstract:

The enactment of the Law of Property (LP) 2007 in China has been hailed as a milestone in the development of contemporary Chinese law. This chapter attempts to understand some of the key concepts and provisions in the LP in the context of the evolving Chinese law relating to property rights, the changing economic system, and from the perspective of comparative law. It suggests that the conceptual framework employed by the LP has largely been borrowed from the continental European, particularly the German, legal tradition, although there are also vestiges of legal ideas transplanted from the former Soviet Union. This chapter also demonstrates that the three main types of "yongyi wuquan" (Nutzungsrechte in German) provided for in the LP are to varying degrees private property rights, and "collective ownership" in respect of rural land also contains elements of private property.

Matt Festa

July 14, 2010 in Comparative Land Use, Property Rights, Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

Haar and Wolf on Planning and Law

Charles M. Haar (Harvard) and Michael Allan Wolf (Florida) have posted Planning and Law: Shaping the Legal Environment of Land Development and Preservation, published in Environmental Law Reporter, Vol. 40, No. 4, pp. 10419-10431, 2010.  The abstract: 

It has been more than a century since the City Beautiful movement captured the imagination and attention of public officials throughout America. Today, many states and localities continue to wrestle with the need for, and legal and social significance of, comprehensive planning. In most of the country, zoning preceded planning, a fact that is often evident when one studies current land use patterns. In the last few decades, planning law has reached a new level of sophistication, as courts, commentators, and public officials have explored the ways in which environmental protection and land use controls intersect, at times in a complementary fashion and at other times in conflict. To be successful in this new legal milieu, the modern land use attorney needs to have a healthy respect for planners and planning theory, keeping in mind the needs and desires of their clients and the ways in which poor planning and zoning decisions and the footprint of the modern public-private partnership often have a lasting, negative effect on the unbuilt environment within and beyond our artificial political boundaries. This Article is excerpted from Charles M. Haar & Michael Allan Wolf, Land Use Planning and the Environment: A Casebook (Envtl. L. Inst. 2010).
Matt Festa

July 14, 2010 in Books, Environmental Law, Local Government, Planning, Scholarship, Teaching, Zoning | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 13, 2010

Leinberger (vs. Kotkin): Walking--Not Just for Cities Anymore

On The New Republic's excellent "The Avenue" blog, Christopher Leinberger (author of The Option of Urbanism) discusses a recent Brookings debate with Joel Kotkin (author of The Next Hundred Million: America in 2050).  From Walking--Not Just for Cities Anymore, Leinberger notes:

I just had a debate with Joel Kotkin, whom many consider to be an apologist for sprawl. Surprisingly, there is a convergence between his view of the next generation of real estate and infrastructure development and mine: a constellation of pedestrian-friendly urban development spread throughout metropolitan areas, redeveloping parts of the central city and transforming the inner, and some outer, suburbs. There are certainly differences between the two of us: I happen to see significant pent-up demand for walkable urban development and massive over-building of fringe car-oriented suburban housing and commercial development.

In fact, I see compelling evidence that the collapse of fringe drivable suburban markets was the catalyst for the Great Recession, and the lack of walkable urban development due to inadequate infrastructure and zoning is a major reason for the recovery’s sluggishness. Joel feels the demand for walkable urban development is a fraction of the future growth in households. I think rail transit, biking and walking infrastructure are crucial to make this walkable urban future happen; Joel thinks bus rapid transit is as far as we have to go in the transit world… making cars more technologically efficient is his main answer.

I have been hoping that Leinberger will prove correct about his belief in the untapped market demand for walkable urbanism, which has not persuaded Kotkin and other critics.  Leinberger concludes:

We need move away from 20th century concepts that confuse the conversation. If I am right, 70 to 80 percent of new development should be in walkable urban places, and my research leads me to think the majority of that development will be in the suburbs.

Matt Festa

July 13, 2010 in Density, Development, Downtown, Exurbs, Financial Crisis, Local Government, Mortgage Crisis, New Urbanism, New York, Pedestrian, Planning, Sprawl, Urbanism, Zoning | Permalink | Comments (0) | TrackBack (0)

Hudson on The Public and Wildlife Trust Doctrines and the Lucas Remand

Blake Hudson (Stetson) has posted The Public and Wildlife Trust Doctrines and the Untold Story of the Lucas Remand, published in Columbia Journal of Environmental Law, Vol. 34, No. 1, 2009 .  The abstract:

Government attempts to protect ecosystems on private lands are often thwarted by Fifth Amendment takings claims demanding that “just compensation” be paid to the property owner. In the case of Lucas v. South Carolina Coastal Council, the U.S. Supreme Court found that a state statute could survive a takings claim if the state could prove on remand that “background principles of property law” applied to the subject property. Scholarly works since Lucas have argued that “background principles” includes the public and wildlife trust doctrines. However, on remand, the state failed to assert either doctrine in defense of the statute. Though authors have focused on this aspect of the case, no author has before, to my knowledge, discussed the oral arguments presented on remand to the South Carolina Supreme Court. These arguments were neither transcribed in court documents, nor detailed in the final court order. Strikingly, during the oral argument the court actually invited the state to assert the public trust doctrine, but the state was unprepared. This invitation by the court lends important support to the argument that the doctrines may be asserted to protect environmental regulations from takings claims under the circumstances presented in Lucas. This article details the history of the two doctrines, discussing the similarities between them and demonstrating their broad application to a greater number of resources than those protected in the seminal cases. The article next analyzes the Lucas remand, focusing on the court’s invitation to the state to assert the public trust doctrine. Finally, the article discusses how the U.S. Supreme Court could have decided the case without remand, by applying the doctrines directly – the nature of the doctrines would have allowed the Court to uphold the state law without violating the Constitution.

Matt Festa

July 13, 2010 in Beaches, Caselaw, Coastal Regulation, Constitutional Law, Environmental Law, Judicial Review, Property Rights, Scholarship, Supreme Court, Takings | Permalink | Comments (0) | TrackBack (0)

John Echeverria Announces Upcoming Takings Conference

13th Annual Takings Conference

July 13, 2010
The 13th annual edition of the Conference on Litigating Regulatory Takings Challenges to Land Use and Environmental Regulations will be held at U.C. Berkeley School of Law in Berkeley, California on November 5, 2010. The conference speakers include a wide range of distinguished scholars and practitioners from around the country.
Featured topics will include the Stop the Beach Renourishment decision, future prospects for the judicial takings concept, takings problems raised by sea level rise and other consequences of climate change, controversial new decisions applying an expansive interpretation of the Penn Central analysis, the state of eminent domain law five years after Kelo, the intersection of breach of contract and takings claims against the government, takings litigation arising from regulation of water, and takings claims based on the federal rails to trails program.
Conference sponsors include Vermont Law School, U.C. Berkeley School of Law, Georgetown University Law Center, California Attorney General Edmund G. Brown Jr, the California League of Cities, and the Planning & Law Division of the American Planning Association.
The full conference brochure is available at:

For registration, go to

For additional conference information, please contact Jane D'Antonio at Vermont Law School at
For more information, contact John Echeverria at
Vermont Law School
164 Chelsea Street, PO Box 96
South Royalton, Vermont   05068
Jamie Baker Roskie

July 13, 2010 in Conferences, Takings | Permalink | Comments (0) | TrackBack (0)

Monday, July 12, 2010

Land Use and Community Health...

The Robert Wood Johnson Foundation and the University of Wisconsin recently released information related to county health rankings.

This guest column in Daytona Beach News-Journal shares some interesting thoughts about that information and focuses on how land use policies can negatively affect community health:

Neighborhoods that have high levels of poverty often have more fast food, liquor, gun and tobacco stores than grocery stores that sell fresh fruits and vegetables. These neighborhoods also tend to lack parks or green space but have railyards or industrial parks, air or soil pollution, segregated housing, unsafe streets and crime. These conditions put neighbors at risk for homicide, asthma, substance abuse, heart disease, high blood pressure and mental stress, among others


Additionally, several of our cities have invested in Community Redevelopment Areas to try to improve neighborhood living conditions that combine mixed use, public transportation, affordable housing, open and green space and removal of blight. The city of Daytona Beach has also utilized Hope VI Revitalization funding from HUD to improve housing. All of these efforts to improve our community make me proud to be here. Little did all of us know that these efforts would also improve the health of our community.

The only thing I really disagree with is the last sentence above. "Little did all of us know" is really not true. Many people from across the professional spectrum have been noting for nearly 20 years that the Euclidean practice of separating almost all uses, including even compatible and complementary ones, was on the fast track toward unsustainability.

Hopefully, as more people realize this, the necessary amendments to our nation's land use codes can be made to turn back the sprawling tide of single-use development that has caused so many problems--including the health related ones that this article focuses on.

--Chad Emerson, Faulkner U.

July 12, 2010 | Permalink | Comments (0) | TrackBack (0)

Lehavi on the Global Law of the Land

Amnon Lehavi (Interdisciplinary Center Herzliyah - Radzyner School of Law) has posted The Global Law of the Land, University of Colorado Law Revew, vol. 81, p. 425 (2010).  The abstract:

Are we witnessing the gradual universality of national land laws, which have traditionally been considered to be the paradigm of legal idiosyncrasy, by virtue of their reflecting place-specific society, culture, and politics? This Article offers an innovative analysis of the conflicting forces at work in this legal field, basing itself on an historical, comparative, and theoretical study of the structures and strictures of domestic land laws and of current cross-border phenomena that dramatically affect national land systems. 

The central thesis of this Article is that, irrespective of our basic normative viewpoint regarding the opening up of domestic land laws to the forces of "globalization," we must come to terms with the particularly difficult institutional and jurisprudential constraints that are involved in undermining the local basis of land laws. Thus, in order to systematically succeed in intensifying cross-border land law rules, global and national actors need to construct more comprehensive supra-national institutions, prevent normative over-fragmentation within each legal system, and pay close attention to local-specific interplays between law, politics, economics, and culture.

Matt Festa

July 12, 2010 in Comparative Land Use, Development, Finance, Globalism, History, Property, Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, July 11, 2010

Saxer on the Fluid Nature of Property Rights in Water

Shelley Ross Saxer (Pepperdine) has posted The Fluid Nature of Property Rights in Water, forthcoming in Duke Environmental Law & Policy Forum (2010).  The abstract:

In this article, Professor Saxer discusses how the understanding of private and public rights in water influences the efficient allocation of this essential resource. Property rights to surface water, ground water, and rain water are explored and evaluated using the traditional comparison to the land-based “bundle of rights” metaphor. However, Professor Saxer concludes that this metaphor is inappropriate when applied to a resource such as water, which is constantly changing in form, quantity, and location and is difficult to exclusively possess. Rather, she argues that water rights should be viewed as a communal resource subject to state ownership under the public trust doctrine, with private rights allocated through government contracts granting revocable licenses to use.

Matt Festa

July 11, 2010 in Property Rights, Property Theory, Scholarship, Water | Permalink | Comments (0) | TrackBack (0)