Saturday, October 30, 2010
Robert C. Ellickson (Yale) has posted The Inevitable Trend Toward Universally Recognized Signals of Property Claims: An Essay for Carol Rose, forthcoming in the William & Mary Bill of Rights Journal, Vol. 19, March 2011. The essay was prepared for the 2010 Brigham-Kanner Property Rights Conference honoring Professor Rose. The abstract:
Carol Rose has identified the study of the communication of property claims as her central scholarly project. In this tribute to her distinguished career, I discuss whether a method of communicating a property claim - for example, the building of a fence around cultivated land - tends to be universal or to vary from one interpretative community to another. On account of increasing urbanization and long-distance travel, a property claimant in a given cultural setting must anticipate that some passersby will be total strangers. I contend that this reality prompts claimants to favor furnishing nonverbal visual cues, such as fences, that people of all backgrounds should be able to recognize.
In last term’s Stop the Beach Renourishment Inc. v. Florida DEP, the Supreme Court for the first time squarely confronted the question of whether a judicial action could ever be considered an unconstitutional taking of private property. The Court unanimously rejected the judicial takings claim, but the justices issued a highly fragmented set of opinions. No justice was able to command a majority on any of the major conceptual issues presented by the judicial takings question. As a result, the Court dramatically raised the profile of judicial takings question, but left all of the major issues open.
In this article, I argue that the judicial takings issues are even more complicated than the Court’s fractured opinions suggest. In particular, I argue that three factual distinctions among types of cases that largely were ignored in Stop the Beach can lead to dramatically different outcomes in matters of judicial takings standards, procedures, and remedies. I analyze each of the substantive and procedural issues raised by judicial takings in light of these factual distinctions. Along the way, I argue that judicial takings does not require a unique standard different from the Court’s existing takings standards, and that judicial takings (and regulatory takings more broadly) should apply to government actions that mandate transfers of private property to public ownership, but not to government actions that mandate transfers of property between private persons.
Friday, October 29, 2010
Here's The New York Times version of a story that I know is getting lots of play. Usually I'm one to give judges the benefit of the doubt but, in this case, my first reaction is, "Seriously?!"
The suit that Justice Wooten allowed to proceed claims that in April 2009, Juliet Breitman and Jacob Kohn, who were both 4, were racing their bicycles, under the supervision of their mothers, Dana Breitman and Rachel Kohn, on the sidewalk of a building on East 52nd Street. At some point in the race, they struck an 87-year-old woman named Claire Menagh, who was walking in front of the building and, according to the complaint, was “seriously and severely injured,” suffering a hip fracture that required surgery. She died three months later.
Her estate sued the children and their mothers, claiming they had acted negligently during the accident. In a response, Juliet’s lawyer, James P. Tyrie, argued that the girl was not “engaged in an adult activity” at the time of the accident — “She was riding her bicycle with training wheels under the supervision of her mother” — and was too young to be held liable for negligence...
[The child's lawyer] had also argued that Juliet should not be held liable because her mother was present; Justice Wooten disagreed.
“A parent’s presence alone does not give a reasonable child carte blanche to engage in risky behavior such as running across a street,” the judge wrote. He added that any “reasonably prudent child,” who presumably has been told to look both ways before crossing a street, should know that dashing out without looking is dangerous, with or without a parent there. The crucial factor is whether the parent encourages the risky behavior; if so, the child should not be held accountable.
"Reasonably prudent child"? I realize the judge is just quoting the standard here, but I can't believe a court ever that a "prudent" child could ever exist? Obviously those judges never spent any time around small children. Children this age require constant supervision due to their particular lack of prudence.
Okay, you may be asking, but what does this have to do with land use? Well, my impulse to blog this came from some of the reader comments to the Times story, to the effect that the child shouldn't have been riding on the sidewalk but on the street or a trail. Other commenters, rightly, point out that it's certainly not safe to encourage small children to ride their bikes on the street.
Also, although I know bicycle advocates say that cyclists are actually safer riding in the street than on a sidewalk, even some avid cyclists I know sometimes feel safer on the sidewalk.
The Wisconsin Department of Transportation has the following suggestions for cyclists:
Only small children learning to ride should use sidewalks for regular riding. They should have adult supervision even on sidewalks or in the family driveway. [Emphasis added - at least someone has some sanity about kids on bikes with training wheels.]
All other bicyclists should learn to ride on streets or marked bicycle lanes, except in rare circumstances, such as when a wide sidewalk is part of a designated bicycle route.
Studies have shown that the sidewalk is considerably less safe for bicyclists than the street. The bicyclist is never required to ride on paths or sidewalks. Local jurisdictions can pass ordinances allowing bicycling on sidewalks if they have unusual circumstances where the sidewalk is safer for certain bicyclists.
So, food for thought for parents and cyclists alike.
Ironically, while I'm promoting cycling safety with this post, I am blowing out my carbon footprint on a flight from Atlanta to San Francisco. (Gotta love inflight wi-fi!) I'm spending the weekend at The Mindful Lawyer conference in Berkeley. Should be pretty groovy!
Jamie Baker Roskie
PS Here's an article from the San Francisco Chronicle's website about the Mindful Lawyer conference.
Thursday, October 28, 2010
I've previously blogged about the National Building Museum's exhibition Designing Tomorrow: America's World Fairs of the 1930s. Now I've learned that the project has an official blog: the Designing Tomorrow Blog.
Looks like a great way to learn more about the exhibition . . . at least until you get to DC to see it (such as during ALPS in March!). So far there is a series of introductory posts to outline the exhibition, and an interview with Bob Rydell (Montana), which promises to be the first of a series of conversations. I look forward to learning more about this fascinating exhibition.
Stanford has created the Luke Cole Professorship in Environmental Law and Directorship of the Environmental Law Clinic. Deborah Sivas, who has been director of Stanford's environmental clinic since 1997, is the first Cole Professor.
From the story on Stanford's website:
In a Reunion Homecoming ceremony filled with emotion, friends and family dedicated a new Law School professorship to the late Luke Cole, a noted environmental activist who died in a car accident in Uganda this summer at age 46...
Being named the first holder of the Luke Cole chair is especially meaningful for me," said Sivas. "Luke was a contemporary and a colleague whose advocacy on behalf of underserved communities was truly pathbreaking and whose vision of environmental and social justice continues to be so inspiring to all of us who knew him."
"I think Luke would be pleased to know that a gift in his memory will help train and prepare a new generation of lawyers to carry the flame of environmental justice that he lit and kept burning for so many years," Sivas added.
While I never knew Luke Cole, I have read and admired his work since we started an environmental justice caseload three years ago. I also know Deb Sivas through meetings of the environmental clinicians, and I think she does tremendous work. It's nice to see her receive an endowed chair, and the stability this professorship brings should also be good for her clinic.
Jamie Baker Roskie
Jessica Owley (Buffalo) has posted Changing Property in a Changing World: A Call for the End of Perpetual Conservation Easements, forthcoming in the Stanford Environmental Law Journal. The abstract:
Increasing environmental problems, including those associated with climate change, highlight the need for land conservation. Dissatisfaction with public methods of environmental protection has spurred conservationists to pursue private options. One of the most common private land conservation tools is the conservation easement. At first blush, this relatively new servitude appears to provide a creative method for achieving widespread conservation. Instead, however, conservation easements often fail to accommodate the reality of our current environmental problems. These perpetual (often private) agreements lack flexibility, making them inappropriate tools for environmental protection in the context of climate change and our evolving understanding of conservation biology.
This article addresses concerns with the widespread use of conservation easements, advocating for improved conservation easements and better decision making as to when to use conservation easements. A first step in rethinking our approach to the use of conservation easements is to shift from perpetual conservation easements to renewable term conservation easements. Although perpetuity is one of the defining aspects of most conservation easements, it is neither realistic nor desired. In their current static form, conservation easements are not receptive to change in ecology or society. Where conservation easements are of a limited duration, their economic, societal, and conservation value can be more readily assessed and considered when making land-use decisions. Additionally, many conservation easements are already beset with durability concerns. Instead of forcing a cumbersome and unrealistic perpetuity requirement on conservation easements, we should use agreements with a revisitation date. By shifting the initial assumption that these agreements will not be perpetual, we can create responsive agreements and make better decisions regarding when conservation easements are appropriate.
Daniel B. Kelly (Notre Dame) has posted Acquiring Land Through Eminent Domain: Justifications, Limitations, and Alternatives, from the RESEARCH HANDBOOK ON THE ECONOMIC ANALYSIS OF PROPERTY LAW, Edward Elgar Publishing, 2010. The abstract:
The primary functional justifications for eminent domain involve bargaining problems, including the holdout problem, the bilateral monopoly problem and other transaction costs, as well as the existence of externalities. The holdout problem is particularly noteworthy, and this chapter analyzes three types of holdouts, depending on whether the failure in bargaining is the result of strategic behavior among owners, the presence of a large number of owners or a single owner who is unwilling to sell because of a highly idiosyncratic valuation.
Although eminent domain solves any potential bargaining problems by transferring land directly from existing owners to the government, eminent domain has limitations as well. The primary limitations are the difficulty of valuing parcels, the potential for secondary rent seeking and the existence of administrative costs. Valuing parcels is especially problematic because, in the absence of perfect information, the government may underestimate the valuations of existing owners or overestimate the valuations of future owners. In either case, eminent domain may increase the likelihood of an undesirable transfer, i.e., a transfer in which the existing owners value the land more than the future owners, even if public officials are acting to maximize social welfare rather than advance their own, or other private, interests.
Because of these limitations, scholars have proposed various alternatives for acquiring land, three of which I discuss below: (i) secret purchases; (ii) land assembly districts; and (iii) auction mechanisms. Comparing eminent domain with each of these alternatives is necessary to determine whether, or under what circumstances, it is desirable for the government to invoke eminent domain, a determination that ultimately depends on a number of important, yet relatively unexplored, empirical questions.
Tuesday, October 26, 2010
The Detroit Free Press recently ran an interesting article discussing how auto-centric development could be a big problem as our population ages and becomes increasingly less able to operate autos. If that happens, then there may be quite a few people without the ability to access places for their daily/weekly needs.
Chad Emerson, Faulkner U.
That suburban layout has been popular for decades, but aging Michiganders might find that the same sprawl will make them homebound once they can no longer drive, experts say.
"Southeast Michigan is auto-dependent. It's in our DNA," said Robin Boyle, chairman of Wayne State University's Department of Urban Studies and Planning. "People are aging in place in this model of the suburban home that's dependent on the Buick leaving the house every morning." But older adults may face "a whole list of reasons why you won't be able to move that Buick," Boyle said.
And that means reshaping the way cities and villages and counties think about their communities.
Zoning might need to be reconsidered, as developers move toward more mixed-use developments where senior citizens can live within walking distance or be in the same complexes where they shop and do errands, or even build "granny flats," so elderly relatives can move onto their properties.
South Texas College of Law will be hosting a screening and discussion of the documentary film Crude Justice, produced by the Alliance for Justice, on Wednesday, Oct. 27 at 4:00 (rm. 314, with refreshments!). The film chronicles the plight of victims of the Deepwater Horizon spill, with particular focus on the legal justice aspects of the issue. After the film is shown, Professors Olga Moya, Fran Ortiz, and I will comment. and hopefully start an interesting discussion. The event is sponsored by the Islamic Legal Society, the Environmental Law Society, and the Public Interest Law Society. Here's the blurb for the film:
Shot on location in Louisiana, this film explores the damage done by this unimaginable environmental calamity to the lives and livelihoods of the people who depend on the waters of the Gulf of Mexico for their income, their food, and the continuation of their culture. Titled Crude Justice, the 17-minute documentary looks at the difficulties ordinary people face in finding fair compensation and a secure future for their families in the face of corporate domination of the courts, statutes favoring big business, judges with ties to the oil and gas industries, and the uncertainties that accompany an incident where the long-term effects may not be known for years. Crude Justice tells the story of damaged lives, but also of the fighting spirit and resilience of people who understand that what's threatened is not just justice for the victims of the spill, but the integrity of the American judicial system itself.
Go ahead and view the provocative short documentary Crude Justice, and if you are able, join us for the discussion in Houston.
Bryant Walker Smith (NYU) has posted Water as a Public Good: The Status of Water Under the General Agreement on Tariffs and Trade, Cardozo Journal of International and Comparative Law, Vol. 17 at 291 (2009). The abstract:
Is water a "product" subject to the World Trade Organization (WTO)’s General Agreement on Tariffs and Trade (GATT)? I argue that it is not, because the established, widespread, and consistent assertion by states of public ownership over their water resources through both municipal and international law (the "public-ownership consensus") precludes any reading of GATT that would fundamentally alter the unique status of those resources. My reasoning therefore differs from that of others who have addressed this issue in that I first examine the broader legal context in which the WTO exists and then consider how that context compels an interpretation of "product" that excludes water resources.
From John Bonine re: University of Oregon's annual Public Interest Environmental Law Conference:
Turning the Tides:
Creating a Green and Clean Future
29th Annual PIELC: March 3-6, 2011
The 2011 PIELC Co-Directors are currently planning an outstanding conference. Last year's conference was a huge success and we are looking forward to making this year's conference even better!
We are currently arranging keynote speakers, and panel suggestions are open for submission.
2011 PIELC Co-Directors
Panel suggestions can be submitted here.
Jamie Baker Roskie
Monday, October 25, 2010
That's how one friend described the new documentary called "The Parking Lot Movie". I've been watching it this afternoon for free over at the PBS website and I tend to agree.
If you are looking for a somewhat alternative view of how Americans move about the land that they've developed, then click here to see the full movie.
--Chad Emerson, Faulkner U.
Sunday, October 24, 2010
Patricia Salkin (Albany) is obviously trying to make the rest of us feel unproductive. She has posted her latest article, No Protectable Property Interest in Making Land Use Decisions and Other Ethics in Land Use Issues 2009-2010, from The Urban Lawyer, Vol. 42, p. 649, 2010. The abstract:
This annual review of reported decisions and opinions focused on ethical considerations in land use planning and decisionmaking, continues to highlight the hotly litigated issues surrounding conflicts of interest of various players in the land use game.
Another great read for land use practitioners and scholars alike. In addition, of course, to the essential Law of the Land Blog.
Shelley Ross Saxer (Pepperdine) has posted Planning Gain, Exactions, and Impact Fees: A Comparative Study of Planning Law in England, Wales and the United States, from The Urban Lawyer, Vol. 32, No. 1, 2000. The abstract:
Land development projects often involve external costs within the host community. For example, new retail space might generate more traffic, requiring improvements to roads. A new residential development might require new roads altogether as well as enhancements to police and fire services, schools, libraries and even sewers. Historically, these external costs fell on the community. However, increasingly, in both the United States and in England and Wales private land developers, rather than public agencies, are bearing these externalities. This article explores the issues that arise when governments shift the burden of these externalities back on the developer and compares the processes by which the United States and England and Wales have attempted to accomplish this shift in externalities. U.S. jurisdictions use exactions, impact fees and linkage fees to transfer the burden of adverse development impacts to the developer. England and Wales use the concept of planning gain to extract planning conditions or planning obligations from developers before granting development rights. Because of the high level of government involvement in this process of accounting for development externalities, public and private abuse is a concern in the U.S. and in England and Wales.
Part II of this Article identifies the different impacts that occur during land development, including the impacts on municipalities, their citizens, competing developers, competing communities and the environment. Part III compares how development rights are obtained in the U.S. with the approaches used in England and Wales to obtain planning permission and discusses how the respective countries compel developers to internalize the external costs of development. Part IV concludes by proposing the developers and local government use bargaining tools, such as the U.S. development agreements and the section 106 agreements in England and Wales, to distribute development burdens. Further, private and public abuses should be controlled by the market and the requirements that the government act for the benefit of the public, rather than be constrained by existing judicial, legislative and constitutional complexities.
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