March 18, 2011
Oliner, Nichols, & Mulhall on Commercial and Residential Land Prices across the U.S.
Stephen D. Oliner (Federal Reserve Board--Research & Statistics), Joseph Nichols (Federal Reserve Board) and Michael R. Mulhall have posted Commercial and Residential Land Prices Across the United States. The abstract:
We use a national dataset of land sales to construct land price indexes for 23 MSAs in the United States and for the aggregate of those MSAs. We construct the price indexes by estimating hedonic regressions with a large sample of land transactions dating back to the mid-1990s. The regressions feature a flexible method of controlling for spatial price patterns within an MSA. The resulting price indexes show a dramatic increase in both commercial and residential land prices over several years prior to their peak in 2006-07 and a steep descent since then. These fluctuations in land prices are considerably larger than those in well-known indexes of commercial real estate and house prices. Because those existing indexes price a bundle of land and structures, this comparison implies that land prices have been more volatile than structures prices over this period.
The Short Leg of the Stool
A three-legged stool is often used as a metaphor for sustainability. Although the legs are described in a variety of ways, they are generally some derivation of: environmental friendliness, economic vitality, and social responsibility. For the last several months, I've been researching the social responsibility aspect, which in America seems to be milled from the short end of the stick. While there are no doubt initiatives to enhance social responsibility (particularly in the private sector), even those initiatives are often driven by balancing the environment and economy.
We've all seen and read about interesting environmentally friendly architecture. Yesterday, I read about an example of socially responsible architecture by the firm of Leddy Maytum Stacy and their design for the Ed Roberts Campus in Berkeley, CA. Metropolis Magazine's write-up of the design, discusses social justice and spacial equality. While it mentions the environmental aspects of the building, the architects seemed to spend a large amount of time on ensuring that it is socially responsible. Or as William Leddy states in the article "Everyone deserves to experience a thoughtfully made place."
Reprodcued with permission from Leddy Maytum Stacy Architects
March 17, 2011
Echeverria on Public Takings of Private Contracts
John D. Echeverria (Vermont) has posted Public Takings of Private Contracts, forthcoming in the Ecology Law Quarterly (2011). The abstract:
This article, part of a larger project analyzing how far public and private contracting arrangements can go in constraining democratic decision-making, examines whether the United States should be liable under the Takings Clause of the Fifth Amendment when its actions have the effect of destroying or impairing private contract rights. In the Omnia Commercial case, decided 90 years ago, the Supreme Court ruled that private contract interests represent “property” within the meaning of the Takings Clause, and that the issue of whether such property has been “taken” should be resolved by assessing whether the government has “appropriated” the contract interest (resulting in a taking), or merely “frustrated” it (not resulting in a taking). While Omnia Commercial reflects a sound intuition that private contract interests deserve special treatment under the Takings Clause, the appropriation versus frustration standard has no principled foundation and is irreconcilable with modern takings standards. In place of the Omnia Commercial standard, this article suggests that the Court should adopt a two-part analysis. First, rather than treating all private contract interests as a form of “property,” the Court should only treat the direct contractual commitments between the parties as property; as a result, only when the government inserts itself into the parties’ contractual relations, by taking over the contract benefits of one of the parties, or by transferring the benefits to some new party, has the government impinged on “property” in a fashion that can potentially support a taking claim. Second, the Court should rule that a government action impinging on contract-based property does not result in a taking when the action imposes no net economic loss on the contracting parties, considered together as a single unit; this approach would require the parties to allocate between themselves the burden, if any, a government action has imposed on either one of them. On the other hand, the Court should rule that, when government interference with contract-based property does produce a net loss to the contracting parties, considered as a unit, a finding of a taking generally will be warranted under a traditional appropriation analysis.
Bright on Occupation Rents and TLATA
Susan Bright (Oxford) has posted Occupation Rents and TLATA: From Property to Welfare?, Conveyancer, Vol. 73, No. 378, 2011. The abstract:
This article considers what changes have been made in relation to occupation rents following the enactment of the Trusts of Land and Appointment of Trustees Act 1996 (TLATA).
The article analyzes an important UK land law with broader implications. More from the intro:
The two particular questions focussed on are "liability", that is, the circumstances in which a co-owner can be required to pay an occupation rent (or "compensation" as it is called under TLATA) to a non-occupying co-owner, and "quantum", that is how the amount of this rent should be assessed. The issues commonly arise in the residential context, when a property initially bought as a shared home is occupied by only one of the co-owners following relationship breakdown, but can equally occur in a commercial context, for example, as part of the dissolution of a business partnership run from co-owned premises.
Osofsky on Diagonal Federalism and Climate Change
Hari M. Osofsky (Minnesota) has posted Diagonal Federalism and Climate Change: Implications for the Obama Administration, Alabama Law Review, vol. 62 (2011). The abstract:
The Obama Administration’s efforts on climate change continue to face daunting challenges domestically and internationally. This Article makes a novel contribution by exploring how the Obama Administration can meet these challenges more effectively though systematically addressing the multiscalar character of climate change in the areas where it has greater regulatory control. Mitigating and adapting to climate change pose complex choices at individual, community, local, state, national, and international levels. The Article argues that these choices lead to many diagonal regulatory interactions: that is, dynamics among a wide range of public and private actors which simultaneously cut across levels of government (vertical) and involve multiple actors at each level of government that it includes (horizontal).
After assessing the Obama Administration’s progress on climate change and energy issues, this Article develops a theory of diagonal federalism to explore how the Obama Administration might engage in more effective crosscutting regulatory approaches. It proposes a taxonomy for under-standing how these diagonal interactions vary across multiple dimensions over time. Specifically, the taxonomy includes four dimensions: (1) scale (large v. small); (2) axis (vertical v. horizontal); (3) hierarchy (top-down v. bottom-up); and (4) cooperativeness (cooperation v. conflict). The Article then applies this taxonomy to the case example of the Obama Administration’s efforts at reducing motor vehicle greenhouse gas emissions to demonstrate how it can be used as a tool in policy-making.
The Article argues that existing diagonal efforts to regulate what cars we drive tend to be predominantly large-scale, vertical, and top-down, in line with their direct impact on automobile companies. In contrast, approaches targeting how we drive those cars, which affect those companies less directly and are grounded in land use planning, are more likely to be small-scale, horizontal, and bottom-up. This divergence creates an opportunity for normative reflection. The Article argues that the Obama Administration should consider whether these skews are appropriate by taking into account the benefits and limitations of such skews in particular contexts. It then proposes ways in which the Administration could create more balance in the dimensions and argues for the value of that balance. Specifically, the Obama Administration could explore additional opportunities for (1) greater smaller-scale governmental involvement in technology-oriented financial incentives programs; (2) federal-level, top-down, vertical initiatives connecting federal approaches to highways, railroads, and gas prices with smaller-scale efforts to have people drive less in their communities; and (3) litigation, which often has a rescaling effect, by interested individuals, non-govermental organizations, corporations, and government.
Happy St. Patrick's Day 2011
[This is a reprise of last year's St. Pat's post, plus a picture from 2011--MJF]
Now it's time to try and make a land use-related post about St. Patrick's Day. First of all, the legend of St. Patrick has it that he drove the snakes out of Ireland. If that isn't an awesome land use regulatory feat, then nothing is!
St. Patrick is credited with bringing Christianity to Ireland, and the Church played a major part in land control over the centuries. Later on in Irish history, the Catholic-Protestant struggle had a great deal to do with English land ownership and the relationship of the Irish people to the land. Even until recent years, the symbol of St. Patrick has been part of the controversy over the IRA and Northern Ireland.
St. Patrick's Day has spread throughout the Irish diaspora worldwide. In the U.S., St. Patrick's Day has, of course, served as a semi-official Irish-American holiday. Irish immigrants moved throughout the country, but are particularly known for rising to political power in the cities. Anti-Irish/Catholic prejudice loomed over the Gilded Age ("no Irish need apply") and the Progressive Era (multifamily housing (the "pig in the parlor") associated with immigrants). Irish Catholic churches played a major role in urban affairs and continue to have a presence in First Amendment and RLUIPA issues. After attaining some political power in urban political systems such as Tammany Hall, Irish-Americans have played a central role in city governance for over a century. My undergrad alma mater, Notre Dame, served as a source of pride for Irish-Americans for its competitiveness in that land-use struggle known as football, and later in academics. When John F. Kennedy was elected President, it seemed to many Americans of Irish extraction that they had finally become accepted into the American Dream.
In the last few decades, St. Patrick's Day has continued to influence American land use issues. Major celebrations take place in many U.S. cities, and places like Chicago, most famously, and Savannah dye their rivers green for the occasion. [ancillary question: is being "green" a good thing, in this sense?] In some American cities the St. Patrick's Day parade has become one of the most important political events of the year, which has led in turn to protracted litigation over the question of who gets to decide who marches in privately-organized yet publicly-sanctioned St. Patrick's Day parades. The U.S. Supreme Court weighed in on the matter in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995). Justice Souter's opinion for a unanimous Court upheld the First Amendment associational rights of the parade organizers to exclude an Irish-American GLBT group (would the case come out the same way today?).
St. Patrick's Day has a lot of cultural significance and a little bit of land-use significance too. So hoist a green beer and celebrate. [And in 2011, Jim and I are hoping that the luck of the Irish works all the way to Houston for the Final Four!]
March 17, 2011 in Chicago, Comparative Land Use, Constitutional Law, Downtown, First Amendment, History, Houston, Humorous, Local Government, New York, Politics, Supreme Court, Urbanism | Permalink | Comments (0) | TrackBack
March 16, 2011
Rehearing--and panel discussion--on Texas Open Beaches Act
Late last week, the Texas Supreme Court granted a rehearing in Severance v. Patterson, the case decided last November holding that the Texas Open Beaches Act does not establish a public easement for dry-sand beach access without proof of dedication, prescription, or custom, and that public access easements do not "roll" inward with the vegetation line after major avulsive events such as hurricanes. Hard to say what this portends, but it can't be good news for the plaintiff-appellant. After the decision, lots of amicus briefs, particularly from local governments, started pouring on the motion for rehearing. Here's a link from the Supreme Court of Texas Blog.
I blogged about the decision in a post which includes a multitude of links to the opinions; to the Texas Supreme Court's webpage for the case (great for finding the amici on the motion for rehearing); to the statute and constitutional amendment; and to various briefs including (full disclosure) my amicus and that of Surfrider Foundation. Oral arugment on the rehearing (not very often granted, as I understand it) is set for April 19.
In the meantime, let's do what we lawyers do best, and talk about it! The Texas Wesleyan School of Law in Fort Worth is hosting a Severance v. Patterson Panel Discussion next Friday, March 25, at 11:30. It will be co-sponsored by the student chapters of the Federalist Society and the Environmental Law Society, and will feature Pacific Legal Foundation attorney David Breemer, lead counsel for the plaintiff; Ellis Pickett, Chairman of the Upper Texas Chapter of the Surfrider Foundation and amicus curiae for defendants; and yours truly. The event will be moderated by Texas Wesleyan land use scholar Prof. Timothy Mulvaney. If you can be in DFW next week to join us, please do!
Fried on Nozick's Theory of Property Rights
Barbara H. Fried (Stanford) has posted Does Nozick Have a Theory of Property Rights? The abstract:
In the almost forty years since Anarchy, State and Utopia has appeared, Nozick's libertarian theory of property rights, laid out in Part II of the book, has been subject to innumerable internalist critiques. In this paper, I argue that the Nozick of Parts I, II and III, read together, holds at least three mutually inconsistent theories of property rights: utilitarian; libertarian; and anything goes, provided that citizens have some unspecified level of choice among legal regimes. If any of the three predominates, it is not libertarianism but utilitarianism.
Nozick is hardly alone in this regard. Nozick's inconstancy to libertarian principles is symptomatic of the problems deontologists of all stripes encounter in translating abstract articulations of rights theory into concrete rules. His de facto solution is typical as well: When the going gets tough, rights theorists tend to turn utilitarian.
March 15, 2011
White on Trust, Expert Advice, and Realtor Responsibility
Brent T. White (Arizona) has posted Trust, Expert Advice, and Realtor Responsibility, forthcoming in the Real Estate Law Journal. The abstract:
Real estate agents benefit from the trust associated with portraying themselves as real estate experts, yet are generally not legally responsible for the advice that they give. This lack of legal responsibility is at odds with psychological propensity of individuals to trust perceived experts. It also creates a genuine moral hazard, fueled the housing market bubble and contributed to the suffering of homeowners whose real estate agents encouraged them to buy as the market began to burst. In response to this problem, this article proposes a new regulatory regime requiring real estate agents to choose between two paths: (1) accept legal liability when they negligently, recklessly or intentionally make inaccurate or misleading pronouncements about a home’s value or investment potential; or (2) embrace their role as “salespersons” and refrain from offering advice or opinions about the real estate market to their customers.
Salkin on Backyard Chickens
I must admit that whenever I see an announcement of a new article by Prof. Patricia Salkin (Albany), I make sure to do a thorough check of the blog archives because she is so prolific (putting the rest of us to shame) that I don't want to accidentally double-post. But this one seems pretty unique, and because we are on record for posting about urban chickens, the local food movement, and agricultural urbanism, it's great to see this timely article Feeding the Locavores, One Chicken at a Time: Regulating Backyard Chickens, published in Zoning and Planning Law Report, Vol. 34, No. 3, p. 1, March 2011. The abstract:
As the local and regional food shed movement and the urban agriculture movement continue to grow, uses once considered only found on the rural farm are now finding their ways into urban and suburban communities. As a result, municipalities across the country are now facing the challenge of regulating the keeping of chickens in residential districts. From nuisance law to zoning regulations addressing the number of hens that may be kept on parcels, whether roosters are allowed, the size and location of coops and other issues, this article reviews the rapidly developing trends in this area of land use law.
It's a really interesting concept and one that we will be hearing much more about in the near future. I have friends in town who live next to a would-be urban chicken spot (so I hear both pro and con about it), and it's an innovative approach to modern land use, and it needs regulatory attention.
Dyal-Chand on Useless Property
Rashmi Dyal-Chand (Northeastern) has posted Useless Property. The abstract:
In his exposition of an economic theory of property rights, Harold Demsetz reinforced a foundational assumption in property law: that private ownership is the best way to harness resources for wealth-building purposes. Implicit in Demsetz’s model is the largely undefined belief that private ownership will incentivize appropriate use of the property because such use produces higher exchange value. This Article identifies a blind spot in Demsetz’s theory that has largely escaped attention in property law and theory. While fully acknowledging the powerful connection between use and exchange value delineated by Demsetz, it argues that, in disparate markets for new or emerging forms of property, the grant of property rights produces the opposite result from his prediction. As a consequence of failures in or deteriorations of use, a fundamental disconnect occurs in the process of developing exchange value. Rather than creating individual and systemic wealth, property ownership in these settings produces rent-seeking and systemic instability.
Because use appears to derive inevitably from ownership, property law does little to incentivize use. To correct this omission, this Article provides a framework for incentivizing use by owners of emergent property. It provides both a more detailed definition of use and a spectrum of interventions for this purpose. This normative framework sheds new lights on recent debates about commodification of such things as human organs and cultural property. It also provides insights on property’s role as a stabilizer of markets that are prone to bubbles and crashes. A greater sensitivity to use can guide appropriate policy choices in each of these difficult areas of market malfunction.
By undertaking a theoretical analysis of use’s potential as a facilitator of stable market exchange, this Article provides a framework for analyzing and solving instability at the core of many markets for emergent property. The concept of use has been under-theorized and underappreciated for its prescriptive potential. This Article begins the work of correcting that omission in property scholarship by giving use the more instrumental place it deserves in the owner’s bundle of rights.
Nolon on the Practically Grounded Conference on teaching land use
[This is a guest post from Prof. John Nolon about a very exciting upcoming conference--MJF]
Practically Grounded – Embracing Skill and Values Teaching in Land Use, Environmental, and Sustainable Development Law Classes
In its late February article, entitled “As They Ponder Reforms, Law Deans Find Schools Remarkably Resistant to Change,” the Chronicle of Higher Education reported that law faculty use the “lecture-based model because it is cost-effective and convenient,” quoting Erwin Chemerinsky, Dean of University of California’s Irvine School of Law. In the same article, Dean Richard Matasar of New York Law School bluntly states, "[w]e're all old dogs trying to learn some new tricks, and all of us old dogs have got tenure and we're not going any place.”
Patty Salkin of Albany Law School and I conducted a teaching survey in the land use law area and found remarkable evidence showing change in teaching skills in recent years. We suggest that the practical, emotionally-charged, interdisciplinary, and grounded nature of land use, as well as environmental and sustainable development law, make courses on these subjects ideal both for teaching skills and values and for integrating podium and clinical methods of instruction. (See Practically Grounded: Convergence of Land Use Pedagogy and Best Practices, Journal of Legal Education, Vol. 60, Number 3, February, 2011, at p. 519.) Our survey shows that the trend toward teaching practice skills in traditional doctrinal courses is underway, at least in the land use classroom.
Deans and professors are focused on this issue in part because the American Bar Association is planning to add “student learning outcomes” to the process of accrediting law schools. Drafting new rules for schools to follow has been delegated to the ABA’s Student Learning Outcomes Subcommittee. This six-member group is charged with the controversial task of determining the rules that schools must follow to determine and measure the skills that law students should have upon graduation. For further information on these accreditation issues see The National Law Journal of Feb 22, 2011.
Pace and Albany Law Schools are sponsoring a conference on this topic. On May 5th, nearly a dozen land use and environmental law professors from law schools across the country will present their skills and values teaching models. Additionally, our resident experts will facilitate extensive discussions regarding best practices for teaching practice skills to students in upper division courses. High on the list of discussion topics are the time practice teaching takes, class size issues, and the concern over lost doctrinal coverage. Please click here for conference information if you are interested in attending.
March 14, 2011
Rule on Airspace in a Green Economy
Troy A. Rule (Missouri) has posted Airspace in a Green Economy. The abstract:
The recent surge of interest in renewable energy and sustainable land use has made the airspace above land more valuable than ever before. However, a growing number of policies aimed at promoting sustainability disregard landowners‘ airspace rights in ways that can cause airspace to be underutilized. This article analyzes several land use conflicts emerging in the context of renewable energy development by framing them as disputes over airspace. The article suggests that incorporating options or liability rules into laws regulating airspace is a useful way to promote wind and solar energy while still respecting landowners‘ existing airspace rights. If properly tailored, such policies can facilitate renewable energy development without compromising landowners‘ incentives and capacity make optimal use of the space above their land. The article also introduces a new abstract model to argue that policymakers should weigh the likely impacts on both rival and non-rival airspace uses when deciding whether to modify airspace restrictions to encourage sustainability.
Troy was on a very good land use panel at ALPS with some of our blog friends, and we might be fortunate enough to hear more from him later this year (hint, hint).
Building Codes & the Quake
The news seems to get worse from Japan as the Death Toll Estimate Soars. But it's still true that things could have been even worse if it had not been for Japan's careful land and development planning. As James Glanz and Norimitsu Onishi reported in the New York Times, Japan's Strict Building Codes Saved Lives. From the article:
Hidden inside the skeletons of high-rise towers, extra steel bracing, giant rubber pads and embedded hydraulic shock absorbers make modern Japanese buildings among the sturdiest in the world during a major earthquake. . . .
Unlike Haiti, where shoddy construction vastly increased the death toll last year, or China, where failure to follow construction codes worsened the death toll in the devastating 2008 Sichuan earthquake, Japan enforces some of the world’s most stringent building codes. Japanese buildings tend to be much stiffer and stouter than similar structures in earthquake-prone areas in California as well, said Mr. Moehle, the Berkeley engineer: Japan’s building code allows for roughly half as much sway back and forth at the top of a high rise during a major quake.
So it's sad to contemplate but still probably true that the destruction and loss of life could have been much worse if not for the regulations. Of course, these building codes have made development much more expensive; but the article goes on to note an interest twist in how this has played in the marketplace:
New apartment and office developments in Japan flaunt their seismic resistance as a marketing technique, a fact that has accelerated the use of the latest technologies, said Ronald O. Hamburger, a structural engineer in the civil engineering society and Simpson Gumpertz & Heger, a San Francisco engineering firm.
“You can increase the rents by providing a sort of warranty — ‘If you locate here you’ll be safe,’ ” Mr. Hamburger said.
In the meantime, it's a terrible disaster and we wish the best to the rescue and recovery efforts. Thanks to James McKechnie for the pointer.
Aerotropolis, the next Manhattan?
As a nice (or sad) comparison to Cleveland's EcoVillage, Salon.com has posted an except from John Kasarda and Greg Lindsay's new book entitled "Aerotropolis, The Way We'll Live Next." The authors' forecast of thriving cities to come revolves around . . . airports (the largest source of GHG emissions for many universities). This might be taking transit-oriented development a bit too far.
Thanks to Stetson Law School student Ashley Donnell for pointing this out.
If you are interested, Metropolis also did a story about it last month.