Saturday, March 6, 2010
I spent the last couple of days at the inaugural meeting of the Association for Law, Property, and Society (ALPS). What a fantastic event. For a junior prof like me, ALPS was just perfect in terms of size and subject matter. There was a great diversity of papers presented in many fields related to property-- land use, real estate, environmental, IP, etc.-- with interesting people from around the world in attendance. A great opportunity to share ideas and meet other property scholars. Many thanks to Robin Paul Malloy and the ALPS board for organizing it.
And there is already a "Save the Date" for next year: March 4-5, 2011 at Georgetown University Law Center. Pencil it in.
Reason TV has a short video available on YouTube about the Atlantic Yards project. They focus on the famous Freddy's Bar as a healthy community institution that shouldn't be taken in the name of comprehensive development. Reason says that Atlantic Yards isn't a legitimate public use, but instead is eminent domain abuse. Check it out and decide for yourself. (Link posted w/ permission).
The legal case, at any rate, was kind of a slam dunk under NY law.
David Zetland (Berkeley--Agricultrual & Resource Economics) has posted Water Rights and Human Rights: The Poor Will not Need Our Charity if We Need Their Water. The abstract:
Each year, about 2.8 million people die due to problems with poor water supply, sanitation and hygiene. Over three-quarters of the dead are children. Some argue that a *human right* to clean water would improve this situation. This paper shows that human rights have not improved access to clean water and argues that it would be more productive to give people a *property right* to water. Because property rights - unlike human rights - are alienable, some portion of an individual's rights can be exchanged for access to clean water. Besides this basic equity outcome, property rights could enrich the poor, increase the efficient use of water, and improve water supply reliability in countries with poor governance.
Speaking of modular housing, as Jamie Roskie does below, Ann Burkhart (Minnesota) has posted Bringing Manufactured Housing into the Real Estate Finance System, forthcoming in the Pepperdine Law Review. The abstract:
Eight percent of the United States population - more than 23 million people - live in manufactured homes (also called mobile homes). In some years, more than 30% of the new homes sold have been manufactured. Moreover, manufactured housing is the most important form of unsubsidized affordable housing in this country. Up to two-thirds of the new affordable homes built each year have been manufactured. However, the manufactured housing industry currently is struggling to survive a meltdown in its sales and finance markets. A tremendous obstacle to the industry’s recovery is that most manufactured homes are characterized as personal property, though they have evolved tremendously from their earliest ancestor, the travel trailer. Today, only 1% of manufactured homes are moved after being sited on a lot. Recharacterizing manufactured homes as real property would reflect modern reality and would provide purchasers and owners with access to the mortgage market, which would increase credit availability and affordability and would provide manufactured home owners the same legal protections that owners of site-built homes enjoy.
Today is the 174th anniversary of the fall of The Alamo on March 6, 1836 during the Texas Revolution. As the story goes, the vastly outnumbered Texian forces under siege bought crucial time for the rest of the army by holding out for two weeks until succumbing to the Mexican army under General Antonio Lopez de Santa Anna. Cries of "Remember the Alamo" supposedly motivated the Texians at the decisive Battle of San Jacinto.
It would be hard to exaggerate the importance of The Alamo to the founding narrative and historical memory of Texas. Though it was once a Catholic mission, it is secular "sacred ground" to many Texans. I know people who proposed to their spouses at the Alamo. Yet the Alamo has also been seen as symbol of racial or ethnocentric overtones to the Texas Revolution. The importance of the Alamo-as-land has played out in several land use controversies over the last two centuries.
An excellent book that reviews the history of both The Alamo and its place in cultural memory is Randy Roberts & James S. Olson, A Line in the Sand: The Alamo in Blood and Memory (2002). The authors begin with the history of the Alamo itself and the battle, and then spend the remainder of the book talking about what happened to it both as a piece of land and as an icon. Apparently it fell into disrepair (blight?) for decades after Texas independence as the city of San Antonio grew up around it (those who imagine it from the John Wayne movie, way out in the open, are often startled when they finally visit it in busy downtown San Antonio). Then, in the late 19th and early 20th centuries, the Alamo became increasingly the subject of myth-making. This in turn inspired one of the early historic preservation efforts, through a private organization run by some of the most prominent women in Texas. There was a dispute over whether the preservation should be as a private or a public landmark. The book tells this interesting story plus relates a number of other controversies about the Alamo as a symbol of Anglo-American manifest destiny and as John Wayne's vision of the Alamo as a Cold War story.
The book's title invokes both the "line in the sand" supposedly drawn by Lt. Col. Travis when it became clear the Texians were doomed, and also as a metaphor for the cultural contests over the historical memory of the Alamo as symbol. But the "sand" itself remains a hugely popular tourist site and public space in San Antonio.
Thursday, March 4, 2010
I recently got a question about amending a local building code to allow for use of steel shipping containers as a building material. The local code discourages the use of "modular" materials, and the questioner wanted to know how to make a special allowance for containers (as a kind of ecological exemption). I consulted my (very) local architect about this and he and I came down on the same page about it - why not allow modular? There's some pretty cool modular stuff out there, far better than the stereotypical modular homes of old. Then he (okay, I'll admit it, he's my husband) sent me this interesting article from The Washington Post about modular mansions being built in Maryland. I'm a big fan of on-site, stick built homes, but if you can't tell the difference, why not go for something that's quicker and more environmentally friendly?
David J. Reiss (Brooklyn) has posted Fannie Mae and Freddie Mac: Creatures of Regulatory Privilege, published in FINANCIAL INSTITUTIONS AND MARKETS: CURRENT ISSUES IN FINANCIAL MARKETS, Robert R. Bliss, George G. Kaufman, eds., 2010. The abstract:
This book chapter addresses the appropriate role of Fannie Mae and Freddie Mac, the government-chartered, privately owned mortgage finance companies, in the United States housing finance sector. The federal government recently placed Fannie and Freddie in conservatorship. These two massive companies are profit-driven, but as government-sponsored enterprises they also have a government-mandated mission to provide liquidity and stability to the United States mortgage market and to achieve certain affordable housing goals. How the two companies should exit their conservatorship has implications that reach throughout the global financial markets and are of key importance to the future of American housing finance policy.
While the American taxpayer will be required to fund a bailout of the two companies that will be measured in the hundreds of billions of dollars, the current state of affairs presents an opportunity to reform the two companies and the manner in which the residential mortgage market is structured. Few scholars, however, have provided a framework in which to conceptualize the possibilities for reform.
This book chapter employs regulatory theory to construct such a framework. A critical insight of this body of literature is that regulatory privilege should be presumed to be inconsistent with a competitive market, unless proven otherwise. The federal government’s special treatment of Fannie and Freddie is an extraordinary regulatory privilege in terms of its absolute value, its impact on its competitors and its cost to the federal government. Regulatory theory thereby clarifies how Fannie and Freddie have relied upon their hybrid public/private structure to obtain and protect economic rents at the expense of taxpayers as well as Fannie and Freddie’s competitors.
Once analyzed in the context of regulatory theory, Fannie and Freddie’s future seems clear. They should be privatized so that they can compete on an even playing field with other financial institutions and their public functions should be assumed by pure government actors. While this is a radical solution and one that would have been considered politically naïve until the recent credit crisis, it is now a serious option that should garner additional attention once its rationale is set forth.
Sean Nolon (Vermont Law School) has posted The Lawyer as Process Advocate: Encouraging Collaborative Approaches to Controversial Development Decisions, Pace Environmental Law Review, Vol. 27, pp. 103-144, 2009. The abstract:
Significant land development decisions have the potential to tear at the civic fabric of a community and cause irreversible environmental, aesthetic and economic harm. Conversely, these decisions also have the potential to rebuild and repair civic capacity with minimal impact and delivering significant community benefits. While the underlying facts of a development proposal and the conditions of the community are certainly factors in these different outcomes, the other, often overlooked, factor separating these outcomes is the process used to conceive, deliberate and decide what is included in a development. Through this article, the author uses four case studies featuring collaborative decision-making to explore the impact that process has on how parties interact in significant development decisions and how attorneys can play an important role as advocates for sound processes. Among the many distinguishing features of those cases is the use of a process manager with a stake in the outcome instead of an outside neutral. After examining the structure of the required process and looking at the four collaborative case studies, the author examines and organizes almost four decades of dispute resolution practice and theory to provide a concise set of recommendations for lawyers seeking to create better processes. This guidance will also help protect against abuses of power when hiring a mediator is not practicable.
Wednesday, March 3, 2010
Wired Magazine is one of my not-so-guilty pleasures. A friend gave us a subscription awhile ago, and while it's not something I would ever buy for myself, I really enjoy reading it. Also, almost every issue has something that's somewhat land use related. For example, the February 22 issue has a suggestion to solve the deadly texting-while-driving problem - better public transit. Also, as I posted in January, they had an article dedicated to "superfast bullet trains." Is public transportation tech savvy? Apparently the folks at Wired think so.
Jamie Baker Roskie
What is your house worth?
Seems like a simple question that could have been answered within recent years by simply looking at the tax assessment. But, that's no longer the case for a variety of reasons.
One of which is the fact that the crashing residential real estate market still has not found a bottom in most communities. Meaning that, property values are falling quicker than jurisdictions can re-assess the property to a more accurate value.
Add in the fact that, on a basic revenue gathering level, it is actually against the jurisdiction's best interest to re-assess values right now since that will almost always result in reduced property tax receipts and you can see a real potential for incongruous results.
Which leads to this story from the New Orleans area that explains how today's rapidly changing (or, better stated, decreasing) home market is resulting in some strange disparities.
--Chad Emerson, Faulkner U.
Yesterday, the U.S. Supreme Court decided Mac's Shell Serv., Inc. v. Shell Oil Prods. Co., No. 08-240. Service station franchisees sued under the Petroleum Marketing Practices Act, 15 U.S.C. 2802, 2804, claiming a "constructive termination" of their franchises. From the Syllabus:
The Petroleum Marketing Practices Act (Act) limits the circumstances in which franchisors may "terminate" a service-station franchise or "fail to renew" a franchise relationship. 15 U. S. C. §§2802, 2804. Typically, the franchisor leases the service station to the franchisee and permits the franchisee to use the franchisor's trademark and purchase the franchisor's fuel for resale. §2801(1). As relevant here, service-station franchisees (dealers) filed suit under the Act, alleging that a petroleum franchisor and its assignee had constructively "terminate[d]" their franchises and constructively "fail[ed] to renew" their franchise relationships by substantially changing the rental terms that the dealers had enjoyed for years, increasing costs for many of them. The dealers asserted these claims even though they had not been compelled to abandon their franchises, and even though they had been offered and had accepted renewal agreements.
Justice Alito wrote the opinion for a unanimous Court, which held:
1. A franchisee cannot recover for constructive termination under the Act if the franchisor's allegedly wrongful conduct did not compel the franchisee to abandon its franchise. Pp. 6-15. . . .
2. A franchisee who signs and operates under a renewal agreement with a franchisor may not maintain a constructive nonrenewal claim under the Act.
The case turned more on contract and franchise law, but it also may be of interest to land users to the extent that it touches on real property leases and oil and gas law . . . plus service stations are often a big issue in zoning. Lots more info is available on this SCOTUS Wiki by Shira Liu of Stanford Law School.
Tuesday, March 2, 2010
Political junkies have their eyes on Texas today because of the gubernatorial primary battle between GOP stalwarts Gov. Rick Perry and Sen. Kay Bailey Hutchison. But March 2 has an even greater significance for Texans: it is Texas Independence Day.
On March 2, 1836, at Washington-on-the-Brazos, while Travis, Crockett, and Bowie were hunkered down at the Alamo, the "Delegates of the People of Texas" signed the Texas Declaration of Independence. It begins:
When a government has ceased to protect the lives, liberty and property of the people, from whom its legitimate powers are derived, and for the advancement of whose happiness it was instituted, and so far from being a guarantee for the enjoyment of those inestimable and inalienable rights, becomes an instrument in the hands of evil rulers for their oppression.
So property rights are in the first sentence of the founding document. Also, of course, we can think about a war of this type as sort of an ultimate contest over land use. At any rate, much of Texas's culture and some of its contemporary controversies stem from the 1836 conflict and its cultural memory--particularly with respect to land use and property rights. For better or worse, Texas is more influenced today by its own founding narrative than perhaps any other state.
I'm not from Texas, but (as they say) I got down here as quick as I could. It's a great place to study land use law because of its history, geography, economy, demographics, and culture. (And then there's Houston . . . .) I have a backlog of Texas-related items for the blog, so I might just do a little more Tex-blogging in the coming weeks.
Patricia Salkin (Albany) has posted Can You Hear Me Up There? Giving Voice to Local Communities Imperative for Achieving Sustainability, Environmental & Energy Law & Policy Journal, Vol. 4, p. 256, 2009. The abstract:
Sustainable development is an international challenge that demands attention at all levels of government. The calls to action to achieve sustainability have varied over the last few decades. For example, in the 1970s and 1980s attention was focused on the need for environmental review and growth management strategies. In the 1990s the rhetoric shifted to smart growth and livable communities, and today, the issue has been reframed as advocates view sustainability through the lens of global warming and climate change. Regardless of the nomenclature, however, the end game is the same. While the United States as a whole speaks through the federal government, the voices and actions of local governments are critical to achieving truly sustainable communities, especially in the climate change arena. Although a coordinated national policy on climate change should be developed, initiatives at the state and local government level, even standing alone, have the potential to dramatically contribute to the international effort to slow the pace of global warming. Through the local land use regulatory regime, state and local governments can empower communities to implement regulatory strategies and programs that will reduce the carbon footprint and both capture and utilize renewable energy to meet measurable goals in the quest for sustainability. This article reviews examples of state and local climate action strategies to demonstrate the critical role that particularly local governments play in slowing the global warming and mitigating the impacts of climate change.
Nicole Gelinas has an article at City Journal called Eminent Domain as Central Planning: wielding creative definitions of blight, New York runs roughshod over property rights and uproots viable neighborhoods. Not surprisingly, her story focuses on Atlantic Yards, but also mentions NYC eminent domain controversies in Harlem (Columbia U.) and Queens. Her take:
Eminent-domain abuse, dangerous though it is, is a symptom of a deeper problem: government officials’ belief that central planning is superior to free-market competition. That’s what New York has decided in each of its current eminent-domain cases. In Brooklyn, high-rise towers and an arena are better than a historic low-rise neighborhood; in Harlem, an elite university’s expansion project is better than continued private investment; and in Willets Point, Queens, almost anything is better than grubby body shops.
Thanks to Joel Rodriguez for the pointer.
Monday, March 1, 2010
As those of you who follow the blog regularly know, Will Cook and I are working on a Transferable Development Rights (TDR) implementation project in Beaufort, South Carolina. Our local liaison with the Lowcountry Council of Governments, Ginnie Kozak sent us the link to this article. Beaufort is a gem of a community, and its Northwest Quadrant made This Old House's list, Best Places to Buy an Old House. Read the article here.
Jamie Baker Roskie
Ngai Pindell and I have been lobbing this article back and forth, so I thought I'd go ahead and post it. A desirable in-fill community containing the "New American Home 2010" is going unfinished due to the construction financing crisis.
Record-setting bank closings, tighter regulations for real estate lending, and reappraisals that are less than the amount of outstanding construction loans have put builders nationwide out of business or on the brink of insolvency. “The only way to describe the [AD&C] market is horrible,” says David Ledford, NAHB senior vice president for housing finance and land development. “Even good projects can’t get money, and it’s hard to identify any patterns about the lending that is being done.”
Is this true everywhere? It certainly seems to be so in Georgia. Developers with their own money or with nontraditional partners are the only folks getting anything built nowadays. Do comment and tell us about the situation in your area.
Jamie Baker Roskie
Both the Colorado Department of Transportation and the city of Aurora are being sued in connection with Havana being widened in 2003 to only 7 feet from a Baskin-Robbins.--Chad Emerson, Faulkner U.
Aurora City Attorney Charlie Richardson said the claim against the city is puzzling.
"It is certainly the first time that someone has alleged that an injury is due to improper setback on a city street and state highway," Richardson said.
I recently wrote a book entitled "Project Future: The Inside Story Behind the Creation of Disney World". In addition to exploring how and why Disney selected Central Florida for its Disneyland East project, I also spend part of the book examining the unique legal structure that Disney used to manage the project.
You can find out more at the book's website www.ProjectFutureBook.com. As always, any and all feedback is appreciated.
--Chad Emerson, Faulkner U.
Sunday, February 28, 2010
Watching the big Olympic Gold Medal game today? While the eyes of North America will be on the hockey game, this Western Standard article compares the two contries in another area: Canada beats the U.S. (in protection of property rights, not hockey).
The article discusses the recently-released 2010 International Property Rights Index. The report is produced by the DC-based Property Rights Alliance (with support from the Institute for Liberty and Democracy and Hernando de Soto). According to the press release of the Canada-based Frontier Centre for Public Policy, the report compares compares countries around the world on ten factors in three subject areas:
- The legal and political environment (as it relates to judicial independence, rule of law, political stability and degree of corruption);
- Physical property rights (protection of physical property rights, ease of registration of property, and access to loans);
- Intellectual property rights (protection of intellectual property rights, patent protection, and copyright policy)
According to the report, Scandivian property rights rock. The top 5: Finland, Denmark, Sweden, Netherlands, and Norway-Switzerland-New Zealand (tie). Canada is tied with Germany and Ireland at #12, and the U.S. is at #15. I'm not familiar with the report so I can't comment on the rankings or any potential methodological issues. But to keep the focus on Canada for today, the Frontier Centre's press release includes this interesting commentary: