Saturday, November 6, 2010

Call for articles: Zoning and Planning Law Handbook

Prof. Salkin writes with the following announcement, with an opportunity to have articles published in 2010 included in the Zoning and Planning Law Handbook:

Prof. Patricia Salkin of Albany Law School, editor of the annual Zoning and Planning Law Handbook (Thomson West) invites land use law faculty to submit their law review articles published in calendar year 2010 for consideration for inclusion in the 2011 Handbook.  The Handbook consists of about 18 previously published law review articles that would be of significant interest to land use practitioners.  It is basically a "best of the law reviews for practitioners."  In the past, sections of the Handbook have focused on: regulatory takings, eminent domain, housing, First Amendment issues (signs, adult uses and RLUIPA), climate change, agricultural issues/open space, historic preservation, fees and exactions, and miscellaneous other topics.  
You may email pdfs of your 2010 land use articles to her at or you can mail reprints to: Prof. Patricia Salkin, Albany Law School, 80 New Scotland Avenue, Albany, NY 12208.  All submissions must be received by December 1, 2010 for consideration. 

A great opportunity to get a second audience for an article that you've published this year.  A lot of really good land use scholarship has come out this year, and I encourage you to consider sending your 2010 articles to Prof. Salkin.  

Matt Festa

November 6, 2010 in Books, Planning, Scholarship, Zoning | Permalink | Comments (0) | TrackBack (0)

Saunders on Common Pool Resources as Cultural Property

Pammela Quinn Saunders (Drexel) has posted A Sea Change Off the Coast of Maine: Common Pool Resources as Cultural Property, forthcoming in the Emory Law Journal.  The abstract:

The power of small groups to manage common pool resources has been the focus of groundbreaking and award-winning research by social scientists. While this research suggests that collective or communal ownership of common pool resources may be optimal in certain circumstances, the law review literature has not yet explored in any breadth or depth how this research could or should be incorporated into existing property law regimes in the United States. 

Thus, while group- and community-level rights have sometimes been conceived in property law terms, these accounts have not focused on whether and how to recognize some type of collective or communal property right in groups that are already sustainably managing resources. The idea that such a movement might occur, and what form it should take, is ripe for consideration and evaluation.

In this article, I use an initiative currently being advanced by a community of Maine lobstermen to create and illustrate a model that might be broadly used for the recognition of group-level property rights in communities, or other groups, that are the de facto stewards of common pool resources. Describing both when and how such a community-level right might be recognized and what its substantive contours should be, the article draws not only from the recent social science research that recognizes the benefits of small group management of common pool resources, but also from the growing field of cultural property rights, in which group-level rights have already been embraced in both domestic and international law.

Matt Festa

November 6, 2010 in Comparative Land Use, Property, Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, November 5, 2010

Decision on Open Beaches Act / Rolling Easement case (Severance v. Patterson)

The Texas Supreme Court issued its opinion today in Severance v. Patterson, a case that the Fifth Circuit certified on questions of interpreting state property law and the Texas Open Beaches Act (provisions which last year became part of the Texas Constitution).  The plaintiff owned beachfront property that ended up forward of the vegetation line after the damage wrought by Hurricane Rita in 2005.  The state informed her that her houses were now on the public easement and that the houses could be subject to a removal order.  The plaintiff claimed both a Fifth Amendment taking and, unusually, a Fourth Amendment unreasonable seizure.  The Fifth Circuit held the takings claim unripe but certified three questions to the Texas Supreme Court:

1.  Does Texas recognize a “rolling” public beachfront access easement, i.e., an easement in favor of the public that allows access to and use of the beaches on the Gulf of Mexico, the boundary of which easement migrates solely according to naturally caused changes in the location of the vegetation line, without proof of prescription, dedication or customary rights in the property so occupied? 

2.  If Texas recognizes such an easement, is it derived from common law doctrines or from a construction of the [Open Beaches Act]?

3.  To what extent, if any, would a landowner be entitled to receive compensation (other than the amount already offered for removal of the houses) under Texas’s law or Constitution for the limitations on use of her property effected by the landward migration of a rolling easement onto property on which no public easement has been found by dedication, prescription, or custom?

The Court held (6-2) that the Act does not establish a rolling easement, at least to the extent that the state asserted--essentially siding with the plaintiff:

On this issue of first impression, we hold that Texas does not recognize a “rolling” easement on Galveston’s West Beach.  Easements for public use of private dry beach property do change along with gradual and imperceptible changes to the coastal landscape.  But, avulsive events such as storms and hurricanes that drastically alter pre-existing littoral boundaries do not have the effect of allowing a public use easement to migrate onto previously unencumbered property.  This holding shall not be applied to use the avulsion doctrine to upset the long-standing boundary between public and private ownership at the mean high tide line.  That result would be unworkable, leaving ownership boundaries to mere guesswork.  The division between public and private ownership remains at the mean high tide line in the wake of naturally occurring changes, even when boundaries seem to change suddenly. The State, as always, may act within a valid exercise of police power to impose reasonable regulations on coastal property or prove the existence of an easement for public use, consistent with the Texas Constitution and real property law.

Full disclosure: I submitted an amicus brief in the case.  My position is that the rolling easement question can only be reached with respect to properties where the state has first established that the public has a beach access easement through the traditional common law doctrines of (1) dedication, (2) prescription, or (3) custom.  In other words, the statute does not establish a statewide beach access easement; it only purports to prescribe rules for easements otherwise established.  Keep in mind that the public trust doctrine that many of us learn about (e.g. the Matthews case from NJ) does not apply here, as the Court noted, devoting much of its opinion to tracing the historical lineage of title to Texas coastal lands.  I'm as much for public beach access as anyone, but regardless of whether the easement rolls inward with the vegetation line, the state still has to establish that there is an easement in the first place.  

Now the case heads back to the Fifth Circuit, and we are left with a very significant ruling interpreting the Open Beaches Act.  Many will criticize the opinion, which could make it much more difficult, practically and/or financially, for the state to establish public beach easements.  The opinion also seems to leave undecided where to draw the line between merely "gradual" changes in the high tide line and more "dramatic" changes due to avulsion.  It will be seen as a big win for the Pacific Legal Foundation, which represented the plaintiff, and by other libertarian and property rights advocates.  The opinion cites Stop the Beach as well as a host of other famous land use cases, and will be of interest to those working on coastal land use and property rights generally.

Here are some links:

The majority opinion (Wainwright, J.)

The dissent (Medina, J.)

The video of the oral argument (courtesy of St. Mary's Law School)

The Texas Supreme Court's web page for the case with links to all briefs.

The Fifth Circuit's opinion

The Texas Open Beaches Act

Land Use Prof Blog analysis

My amicus curiae brief

The Houston Chronicle's initial writeup

Texas Lawyer article Battle for the Beach

The Pacific Legal Foundation press release (David Breemer, counsel for plaintiff)

The Surfrider Foundation (amicus brief written with assistance from one of my students)

[UPDATED from original post at 11:00 pm]

Matt Festa

November 5, 2010 in Beaches, Caselaw, Coastal Regulation, Constitutional Law, Environmental Law, Inverse Condemnation, Judicial Review, Property Rights, State Government, Texas | Permalink | Comments (0) | TrackBack (0)

Chris Leinberger on The Next Real Estate Boom...

What if there were a new economic engine for the United States that would put our people back to work without putting the government deeper in debt? What if that economic engine also improved our international competitiveness, reduced greenhouse gases, and made the American people healthier?
At a minimum, it would sound a lot better than any of the current offers on the table: stimulus from the liberals, austerity from the conservatives, and the president’s less-than-convincing plan for a little stimulus, a little austerity, and a little bit of a clean-energy economy.

The potential for just such an economic renaissance is a lot more plausible than many would imagine. At the heart of this opportunity are the underappreciated implications of a massive demographic convergence. In short, the two largest demographic groups in the country, the baby boomers and their children—together comprising half the population—want homes and commercial space in neighborhoods that do not exist in anywhere near sufficient quantity. Fixing this market failure, unleashing this latent demand, and using it to put America back to work could be accomplished without resorting to debt-building stimulus or layoff-inducing austerity.

Read the entire article here.

Among other land use topics, Leinberger has done an excellent job researching how the limited number of real estate financing models drove much of the indistinguishable development during the last generation or so.  When I use one of his essays in my Land Planning and Development course, it is always very well-received.
--Chad Emerson, Faulkner U.


November 5, 2010 | Permalink | Comments (0) | TrackBack (0)

Thursday, November 4, 2010

National Preservation Conference in Austin . . . and Buffalo

We mentioned that last week the National Trust for Historic Preservation had its annual meeting in the Weird City, Austin TX.  There are reports from the conference available on the Trust's website.  There is a video available of the opening plenary session, featuring National Trust President Stephanie Meeks, Laura Bush, and New Yorker architecture critic Paul Goldberger.  

Now the HP community can look forward to next year's National Preservation Conference in Buffalo!  If you're skeptical, check out this video, which correctly points out that Buffalo is a gem for architecture, late 19th/early 20th C. city planning and design, and a great site for discussing contemporary preservation issues with respect to older cities.  The video has gotten some local attention and has allegedly "gone viral" in Buffalo.

Matt Festa

November 4, 2010 in Architecture, Conferences, Economic Development, Historic Preservation, History, Lectures, New York, Texas | Permalink | Comments (0) | TrackBack (0)

Shoup on Graduated Density Zoning

Prof. Donald Shoup (Urban Planning, UCLA) contributed a comment to our recent post on Daniel Kelly's eminent domain paper.  In case you missed it, I wanted to be sure you had the chance to get the link to Prof. Shoup's important paper Graduated Density Zoning, from the Journal of Planning Education and Research (2008).  The abstract:

The difficulty of assembling sites large enough to redevelop at higher density can impede regeneration in city centers and accelerate suburban sprawl onto large sites already in single ownership. One promising new planning strategy to encourage voluntary land assembly is graduated density zoning, which allows higher density on larger sites. This strategy can increase the incentive for owners to cooperate in a land assembly that creates higher land values.  Graduated density zoning will not eliminatethe incentive to hold out, but it can create a new fear of being left out.  Holdouts who are left with sites that cannot be combined with enough contiguous properties to trigger higher density lose a valuable economic opportunity.This article examines the difficulty of assembling land for infill development, and explains graduated density zoning as away to encourage voluntary land assembly.  Finally, it presents the results of graduated density zoning in practice.

Graduated density zoning is a compelling idea.  You may also be familiar with Shoup's influential work on parking, including his book The High Cost of Free Parking (APA, 2005), and very recent articles quoting him in the New York Times (Tyler Cowen, Free Parking Comes at a Price, Aug. 2010) and Slate (Tom Vanderbilt, Time Expired: The End of the Parking Meter, Oct. 2010).

Matt Festa

November 4, 2010 in Density, Downtown, Eminent Domain, Local Government, Parking, Pedestrian, Planning, Scholarship, Smart Growth, Takings, Zoning | Permalink | Comments (0) | TrackBack (0)

Arnold on The Evolution of Property Law, Culture, and Ecology in Coastal Lands

Craig Anthony (Tony) Arnold (Louisville) has posted Legal Castles in the Sand: The Evolution of Property Law, Culture, and Ecology in Coastal Lands, forthcoming in Syracuse Law Review, Vol. 61, No. 2 (2010-11).  The abstract:

U.S. society frequently turns to property law to mediate the various social and ecological dynamics of complex and evolving environments like coastal areas, which are places of transition subject to both natural and human changes. Furthermore, U.S. society frequently turns to constitutional takings doctrines to mediate the dynamics of property law. However, property law and takings cases can be maladaptive to the evolutionary dynamics of coastal lands when they fail to contemplate the ecological and social conditions and dynamics of the objects of property rights and takings claims. In particular, legal abstractions, such as the metaphor of property as a “bundle of rights,” disconnect property and takings law from its context and real-world functions. 

An example of three maladaptive responses to coastal land management can be found in the three opinions of the U.S. Supreme Court in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection. In the case, all eight participating Justices agreed that the Florida Supreme Court’s validation of the State of Florida’s establishment of a boundary-fixing “erosion control line” was not a radical departure from Florida precedent on coastal land ownership rights. However, the Court split 4-4 over whether the Takings Clause of the U.S. Constitution creates a potential claim of a “judicial taking,” producing three different opinions about judicial takings and the relationships of federal courts to state judicial changes in property law. In each of the three opinions in Stop the Beach Renourishment, the Justices have built “legal castles in the sand”: artificial constructs that will not stand up to the inevitability of change. Each opinion is poorly suited for mediating property issues in coastal lands because it is built on a legal-centric abstraction mismatched to the complex realities of coastal land use. 

This article argues that courts should shape property doctrines and decide takings cases with regard for the concrete context in which those doctrines and cases arise, particularly ecological and socio-cultural dynamics. A strong theory of judicial takings, just like many sweeping and aggressive protections of private property autonomy and power, is likely to over-protect private property. However, a weak theory of judicial takings, just like many sweeping and aggressive protections of government or public authority and power, is likely to under-protect private property. In both cases, serious harms to both ecological health and integrity and socio-cultural health and integrity are likely, even if the specific harms vary. The issue is not resistance to change versus unconstrained and rapid change. Instead, the issue is about identifying and facilitating change that is right for and adaptive to the particular evolving context in which the tensions over property interests, land uses, and legal institutions arise. In particular, the object-regarding and context-considering concept of property as a “web of interests” is likely to be more adaptive to change within complex and interconnected ecological and social systems, particularly in sensitive environments like coastal lands, than property concepts that rely on legal-centric abstractions.

Matt Festa

November 4, 2010 in Beaches, Caselaw, Coastal Regulation, Constitutional Law, Environmental Law, History, Judicial Review, Land Trust, Property Rights, Property Theory, Scholarship, Takings | Permalink | Comments (1) | TrackBack (0)

ABA Environment Section Hosts Teleconference on Critical Habitat

The announcement:

Is 2010 a Critical Year for Critical Habitat?
New Developments from the 9th Circuit

Wednesday, November 17, 2010
1:00 p.m. – 2:30 p.m. Eastern Time / 12:00 p.m. – 1:30 p.m. Central Time
11:00 a.m. – 12:30 p.m. Mountain Time / 10:00 a.m. – 11:30 a.m. Pacific Time

Program Overview:
    This year the 9th Circuit has issued several important opinions addressing critical habitat issues under the Endangered Species Act, ranging from designation to adverse modification. Whether and how critical habitat gets designated and protected from adverse modification are the essence of its value to endangered species recovery, and can also be quite important to land-owners.
    Three Endangered Species Act experts, each from a different sector, will provide you with the opportunity to get caught up with these developments as well as to delve a bit more deeply into their potential consequences. First, Professor Daniel Rohlf, who has a significant body of scholarly work on the ESA, will present a summary of the new cases and discuss their relevance in light of the history of critical habitat protection. We will then hear from John Buse, the Legal Director for the Center for Biological Diversity, who will share his perspective on the cases and how they might impact his organization's efforts to secure greater protection for listed species. Finally, Rafe Petersen, a partner at Holland & Knight whose practice focuses on environmental litigation and counseling clients on compliance and enforcement matters, will discuss the impact these critical habitat issues have on industrial and development interests.
    Educational Objectives:
•    Get caught up on the status of critical habitat protection under the ESA
•    Delve deeper into designation and adverse modification issues
•    Learn about the practical implications of the recent case-law

    Kalyani Robbins, University of Akron School of Law, Akron, OH

    John Buse, Legal Director, Center for Biological Diversity, Chicago, IL
    Rafe Petersen, Holland & Knight, Washington, DC
    Daniel Rohlf, Professor of Law, Lewis and Clark Law School, Portland, OR

Register here.

Jamie Baker Roskie

November 4, 2010 in Conferences, Environmental Law, Federal Government | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 3, 2010

Rose on Ostrom and the Impact of Governing the Commons

Speaking of Carol Rose, she has posted a new article called Ostrom and the Lawyers: The Impact of Governing the Commons on the American Legal Academy, forthcoming in International Journal of the Commons.  The abstract:

American legal academics began to cite Elinor Ostrom’s Governing the Commons (GC) shortly after its 1990 publication, with citations peaking in the mid 2000s and with signs of a new peak in 2010 in the wake of Ostrom’s Nobel Prize in Economics. The legal scholars most interested in GC have worked in three areas: general property theory, environmental and natural resource law, and since the mid 1990s, intellectual property. In all those areas legal scholars have found GC and its many examples a strong source of support for the proposition that people can cooperate to overcome common pool resource issues, managing resources through informal norms rather than either individual property or coercive government. Legal academics have also been at least mildly critical of GC as well, however. A number have tried to balance the attractive features of GC’s governance model-stability and sustainability-with more standard legal models favoring toward open markets, fluid change and egalitarianism.

Matt Festa

November 3, 2010 in Books, Environmental Law, Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

"The Global Evolution of a New South City"

The University of Georgia press has published Charlotte, NC: The Global Evolution of a New South City:

The rapid evolution of Charlotte, North Carolina, from “regional backwater” to globally ascendant city provides stark contrasts of then and now. Once a regional manufacturing and textile center, Charlotte stands today as one of the nation’s premier banking and financial cores with interests reaching broadly into global markets. Once defined by its biracial and bicultural character, Charlotte is now an emerging immigrant gateway drawing newcomers from Latin America and across the globe. Once derided for its sleepy, nine-to-five “uptown,” Charlotte’s center city has been wholly transformed by residential gentrification, corporate headquarters construction, and amenity-based redevelopment. And yet, despite its rapid transformation, Charlotte remains distinctively southern—globalizing, not yet global.

The book is accompanied by an exhibit at the Museum of the New South in Charlotte.

Jamie Baker Roskie

November 3, 2010 in Development, Globalism, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, November 1, 2010

Hirokawa on Property as Capture and Care

Keith H. Hirokawa (Albany) has posted Property as Capture and Care.  The abstract:

This article describes property law as a constant negotiation between capture and care. On the one side, the rule of capture enables a possessory right through effort and intent, chiefly individualistic elements of a scheme that allows for the privatization of natural resources. However, capture tells only part of the property story, and this article brings to light non-capture aims in property that may be justified by the principle of care.

To explain care in this context, this article borrows from ecofeminism, an approach to environmental politics and ethics that “makes a central place for values of care, love, friendship, trust, and appropriate reciprocity – values that presuppose that our relationships with others are central to our understanding of who we are.” The article concludes that property law cannot be understood only through the individualistic aims of capture, and that a perspective of care provides property with a more comprehensive justification of the balance between private and public in a system that allocates common goods to private control.

Matt Festa

November 1, 2010 in Environmental Law, Property, Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, October 31, 2010

Happy Halloween: Top 10 Haunted Homes in U.S.

From the Zillow Blog comes this entry: Top 10 Haunted Homes in U.S.  Here's the list:

1. Winchester House, San Jose CA

2. Lizzie Borden House (you know, the girl with the axe who gave her parents 40/41 whacks), Fall River MA.

3. LaLaurie Mansion, New Orleans LA

4. The White House, Washington DC

5. Franklin Castle, Cleveland OH

6. Sprague Mansion, Cranston RI

7. Chambers Mansion, San Fransisco CA

8. Mytrles Plantation, St. Francisville LA

9. Stranahan House, Ft. Lauderdale FL

10. Whaley House, San Diego CA

Go and read the blog post for the interesting stories behind each haunted house.  The post explains why it left the Amityville Horror house off the list, but that's not my beef, of course: where is the house from Stambovsky v. Ackley?  That's the property law casebook staple, where after a real estate transaction, the buyer learned that the house was reputedly possessed by a poltergeist.  The NY Appellate Division (1991) held that for purposes of rescinding the contract, the house was haunted as a matter of law.  And it's beyond dispute that Property casebooks have terrified generations of law students!

Happy Halloween everyone, and watch out for the Dead Hand.  

Matt Festa 

October 31, 2010 in California, Caselaw, Housing, Humorous, New York, Real Estate Transactions, Teaching | Permalink | Comments (0) | TrackBack (0)