October 7, 2011
New Land Use Casebook
I just got a review copy of Stewart Sterk and Eduwardo Penalver's casebook, Land Use Regulation. I don't normally use a casebook in my clinical class - instead, I use an assortment of resources including excerpts from casebooks, legal writing texts, and other sources - so normally review copies go straight onto my office bookshelf for reference purposes. However, this particular book is intriquingly short, so I paged through it at lunchtime. It seems like it has an interesting approach to the material, and in light of Ken Stahl's post yesterday it seemed timely to post it. Here's part of the author's description of their "intensely practical focus:"
Although our book is not short on theory, we emphasize questions and problems that land use lawyers have to face on a regular basis – not just before appellate courts, but before zoning boards, planning commissions, and other administrative bodies. In fact one entire chapter of the book is devoted to three extensive development problems that force students to confront the issues central to land use practice. The problems provide an excellent vehicle for classroom role-playing.
Jamie Baker Roskie
Well, as long as the lawns are well-kept
An oasis apparently surrounded by inhospitable, ungenial, sullen, captious apartment dwellers:
The amendatory ordinance of 1942 made no change in the zoning of any of this territory, except only as to the half block [that] includes plaintiffs’ property, [which] was by the amendatory ordinance changed from an apartment use to that of a single-family residence use. … [The city’s] expert witness… testified that this area, except only the portion thereof affected by the amendatory ordinance, is ‘essentially an apartment area.’ It is also undisputed that this rezoned half block, considered as a block under the provisions of the rezoning ordinance, in which plaintiffs' property is located, is an exceptionally fine residential block, and that the homes thereon are luxurious and attractive residences, with spacious, beautiful, well-kept lawns. It is defendant's contention that the restrictions imposed upon this block by the amendatory zoning ordinance of 1942 are a valid exercise of the police power of the city in an attempt to preserve this block as an oasis of gracious family living in a locality of unique natural beauty.
Trust Co. of Chicago v. City of Chicago, 96 N.E.2d 499, 502 (Ill. 1951)
2012 Conference Proposals
It's hard to believe, but we're already in the thick of the season of calls for participation for next year's academic conferences. Here's a few conferences that I recommend, with links to their registration pages:
Law and Society Association: June 5-8, 2012, Honolulu, Hawaii. CFP deadline: Dec. 6, 2011.
Association for the Study of Law, Culture, and Humanities (ASLCH): March 15-17, 2012, Texas Wesleyan, Fort Worth, Texas. CFP Deadline: Oct. 15, 2011.
Association for Law, Property, & Society (ALPS): March 2-3, 2012, Georgetown Law, DC. Registration deadline: Jan. 20 (early bird Nov. 15, 2011).
Southeastern Association of Law Schools (SEALS): July 29-Aug. 4, 2012, Amelia Island Ritz-Carlton, Florida. CFP deadline: Oct. 31, 2011.
Northeast Regional Scholarship and Teaching Development Workshop: Feb. 3-4, 2012, Albany Law School, New York. Registration deadline: Nov. 15, 2012.
I've been to each of these gigs in the past, and they've been tremendously helpful to me as a scholar and teacher. It's also been my personal experience that these conferences in particular tend to be accessible and hospitable for junior scholars--including junior faculty, grad students, VAPs/fellows, and practitioners. These conferences (ALPS excepted) are not land-use-specific, but there are usually more than enough property/land use/environmental folks as well as interesting interdisciplinary panels. There's nothing as helpful as the chance to present your work, share ideas, and meet others in the field.
Schutz on Community Approaches to Rural Land Stewardship
Anthony B. Schutz (Nebraska) has posted Toward a More Multi-Functional Rural Landscape: Community Approaches to Rural Land Stewardship, forthcoming in the Fordham Environmental Law Journal. The abstract:
This Article how farms and ranches can adapt to meet consumer demand for outdoor activities like hunting, wildlife viewing, hiking, or simply enjoying the solace of spending time in rural places. These places hold breathtaking landscapes, but they are often privately owned, relatively inaccessible to the general public, and have not been managed to produce the ecosystem services that support these activities, despite strong evidence of consumer demand. Historically, farms and ranches have been managed for a single dominant use, undertaken wholly upon an individual’s landholdings. Entering the emerging market for nature-based experiences requires that farms and ranches adapt from fragmented single-use businesses to multi-functional enterprises that cooperatively operate at larger spatial scales.
This Article explains how lawyers can help farmers and ranchers make such a move. It uses existing private law and Ostrom's principles of collective action to illustrate how these communities should be designed. It also offers some preliminary thoughts on possible areas for legal reform that would facilitate the development of these enterprises.
It also explores the relationships these enterprises have with the emerging local-food movement. As with traditional producers, the multi-functionality these institutions bring to individual farmers can be used as a diversification strategy for local-food producers. The income from these activities, in turn, helps stem the environmental consequences of using land for food production. In addition, the communities that may emerge within the foodshed and those that may emerge to support nature-based entrepreneurship are complimentary. Each may foster, and profit from, the sort of communitarian thinking that is necessary to the other, resulting in a more multi-functional and sustainable rural landscape.
October 6, 2011
In Memoriam: Derrick A. Bell 1930-2011
Derrick Bell (NYU), the 20th century's preeminent legal scholar on race and the law, died yesterday in New York at the age of 80. Here is a link to an obituary at Jurist describing his struggle for increased diversity within the legal academy.
It's great to be back at Hogwarts
I've been spending too much time among the muggles (non-land use profs) and it's nice to be back here at Hogwarts. Many thanks to Matt, Jamie and Jim for welcoming me here, and my best wishes to Chad as he begins a new adventure.
In one of my last guest posts, I asked how people start the land use course. My sense is that many land use profs (and several of the leading casebooks) begin with a discussion of planning. This is logical, since zoning ordinances are supposed to be consistent with a comprehensive plan. However, to paraphrase Justice Holmes, the life of land use has not been logic, it has been politics. And as a matter of political reality, the zoning has always come first, and planning has been the ugly stepchild that lagged behind. This is not to say that planning is irrelevant (especially in states like California where planning is required) but that it is something of an aspiration that is not always realized in practice. Indeed, courts and legislatures seem to recognize this, and they often look to find an appropriate balance between permitting politics to infuse the land use decisionmaking process and requiring some apolitical mechanism to ensure adequate consideration of those things that are unlikely to be taken seriously by the local political process (affordable housing, anyone?). For example, although California has some pretty serious planning requirements, including an affordable housing element, it breaks from the Standard Planning Act in permitting the elected city council to enact the general plan, rather than requiring the plan to be enacted by the appointed planning commission, as the Act originally required. This is seemingly designed to permit that sort of balance between politics and planning expertise. In practice, of course, the politics tends to dominate. More on that in a future post.
So how to convey all this to students on the first day of class? I begin with a hypothetical mixed-use residential/commercial project, and ask students what questions or concerns they might have about the project if it was proposed to be sited in their town. They pretty quickly get to issues like traffic, noise, and infrastuctural burdens, and with some prodding they also figure out that there may be tax implications (added tax burden to finance needed infrastructure and services as well as a major potential gain in property and sales tax revenue), impacts on local property values, school overcrowding, possible degradation of environmental resources, need for low-income housing for low-wage workers at the new development, even vote dilution concerns. This is a useful exercise to get students thinking about how complex even a single land use approval can be, and how many factors ideally need to be considered. Then, once I have a pretty complete list on the board, I reveal that there is no Santa Claus -- it is a fantasy to think that all of these factors actually will be fairly considered in the land use process. I give the students a reading from Mike Davis's City of Quartz, which paints a pretty sordid picture of local land use politics as a series of pitched battles between affluent developers and affluent homeowners (a theme I pick on here.) I then ask students: in an environment where decisions are made by elected local officials beholden to these two groups, which among these many factors are likely to be predominant, and which are likely to be ignored? They catch on pretty quickly that taxes, property values, and schools are major issues while affordable housing and environmental concerns are either ignored or treated with active hostility. By showing students the variance between those concerns that in a utopian world should be considered by a rational land use system and those concerns that actually are considered in our political land use system, they begin to understand the tension between the political and the apolitical, and why courts and legislatures have seen the need to strike some balance between the two.
So, how do you start the land use class?
October 5, 2011
Outka & Feiock on Local Promise for Climate Mitigation
Uma Outka (Kansa) and Richard C. Feiock (Florida State--Public Administration) have posted Local Promise for Climate Mitigation: An Empirical Assessment. The abstract:
This interdisciplinary work contributes empirical grounding to the growing literature in law and public policy on local governments and climate mitigation. Much of the recent scholarship presents an optimistic view of the potential in local climate action. Here, we refine the optimism for local governments’ impact with new performance data that probes local progress and capacity for climate governance. Our analysis – based on a new study measuring policy choice, implementation, and influences – calls into question a number of assumptions undergirding this scholarship. At the same time, it provides direction and support for targeted investment and research.
Welcome Kenneth Stahl
I'm thrilled to announce that Prof. Kenneth Stahl will be joining us as a permanent Editor here at the Land Use Prof Blog.
Ken is on the faculty at Chapman University School of Law, out in the O.C., California. We're particularly glad to have him aboard after his most excellent guest-blogging stint with us in 2010. Ken teaches property, land use, and local government, and is the Director of Chapman's certificate program in Environmental, Land Use, and Real Estate Law. He has written some great articles including his piece on Local Growth Politics, and his most recent paper on Neighborhood Zoning. He frequently gives fascinating conference presentations, but he has also been known to play hooky to go and visit places like the National Building Museum.
It's a real honor to have Prof. Stahl on board, and we're all looking forward to his contributions. Thanks Ken!
Orszag on Renting our way to a Housing Recovery
Peter Orszag, former OMB director for the Obama Administration, has a piece in Bloomberg where he argues that the U.S. Can Rent Its Way Toward a Housing Recovery:
No matter what the government might try to do to break the housing-economy cycle, the deleveraging process will still be painful and take some time. But that’s not an argument against action; just because a headache can still hurt some even if you take aspirin doesn’t mean you should skip the aspirin. One thing the Obama administration could do now -- probably with Republican support -- would be to attack the oversupply of housing stock by allowing a tax write-off for investors who buy empty properties and rent them out.
Very interesting. If renting is the new owning, there might be something to this idea. I'm generally in favor of reducing rather than increasing tax incentives to promote real estate purchases, but if Orszag's proposal were narrowly tailored towards purchases specifically for rental housing, it might make some sense.
Racist Place Names
Slate has an interesting article on racist places names, a follow up to the controversy about the name of Texas Gov. Rick Perry's family hunting camp (a name I don't feel comfortable repeating here). I found this interesting because recently in Hall County, Georgia my husband and I traveled on Jim Crow Road. And this is not something that county officials have simply overlooked, because they proudly advertise the road as the location of a park and regional tennis center on this website. Now, whether the road is named after a person named Jim Crow, or after the pervasive and violent Southern system of racial segregation, to have a place name like this extant in 2011 seems tone deaf at best. Perhaps my perception is colored by the fact that we represent an African-American neighborhood in Gainesville/Hall County that was established under racial segregation in the 1930s and is still suffering separate, and unequal, treatment to this day. (My previous posts on this work are available here.)
Jamie Baker Roskie
Farewell Michael Lewyn
Sadly, it's time to say farewell and thank Michael Lewyn for his contributions over the past month. I've been reading his articles for the past few years, and it has been an honor to have him on board here at the Land Use Prof Blog.
Please continue to check out his work on SSRN; on Planetizen; and at his new position at Touro Law. It was great to have him on board, and we'll all certainly be engaging with his scholarship in the future.
Blumm & Doot on Oregon's Public Trust Doctrine
Michael C. Blumm (Lewis & Clark) and Erika Doot (Lewis & Clark) have posted Oregon’s Public Trust Doctrine: Public Rights in Waters, Wildlife, and Beaches, coming out in Environmental Law, Vol. 42, No. 1, 2012. The abstract:
Oregon’s public trust doctrine has been misunderstood. The doctrine has not been judicially interpreted in over thirty years but was the subject of an Oregon Attorney General’s opinion in 2005. That opinion interpreted the scope of the doctrine to be limited to the beds of tidelands and navigable-for-title waters and erected a separate “public use” doctrine protecting public rights in other waters, including recreational waters. However, since Oregon courts have never limited public rights in the state’s waters to those with publicly owned bedlands, the opinion should have recognized that the public trust doctrine provides broad public recreational rights in all waters. Indeed, since early statehood, Oregon courts and the legislature have recognized that water is publicly owned, and the Oregon Supreme Court has ruled consistently in favor of public rights in waterways, based on language in the Statehood Act that declared navigable waters to be public highways that would remain “forever free,” not monopolized by private owners. Moreover, in the early 20th century, the court explicitly ruled that the scope of public rights in publicly-owned waters could and should evolve over time.
This Article maintains that the Oregon public trust doctrine is grounded on public ownership of natural resources held in trust by the state in a sovereign capacity. The state has always claimed ownership of water and wildlife within the state, so the courts should recognize both as public trust resources. Although the state can authorize private rights in those resources, all private rights are subject to the state’s sovereign ownership – a public easement – requiring the state to maintain these resources as trustee for the public. Like the Statehood Act’s declaration of public ownership of waterways, courts should interpret the public trust doctrine to be implicit in other statutory declarations of public ownership of natural resources. Similarly, use rights in ocean beaches, claimed by the public under the doctrine of custom, are public trust resources, necessary to enable public use of the adjacent ocean waters. This Article suggests that public ancillary rights exist in other uplands where necessary to provide public access to, or preservation of, public trust water and wildlife resources.
Oregon’s public trust doctrine is not of mere academic interest. The doctrine imposes duties on the state as sovereign owner of water, wildlife, and ancillary uplands. In an era of widespread skepticism of government management, the venerable public trust doctrine seems an especially appropriate mechanism to give citizens an opportunity to gain review of government action and inaction threatening unsustainable development of natural resources that are central to the state’s identity, culture, and economy.
Maybe they've always been wrong
In the post just below this one, Adam MacLeod wrote:
And those few protections that the law once extended to property owners have all but disappeared. For example, the Supreme Court in Kelo re-wrote the Takings Clause to allow takings for a public purpose.
It may well be the case that the Kelo Court's interpretation of the Takings Clause is improper. But I want to clarify a minor point: there's nothing new about this. As early as 1954, the Court allowed governments to bulldoze neighborhoods to support redevelopment by private parties. See Berman v. Parker, 348 U.S. 26 (1954). And in 1984, the Court allowed most of Hawaii's land to be redistributed to individual homeowners, based on the "public purpose" this. See Hawaiian Housing Authority v. Midkiff, 467 U.S. 229 (1984).
I think you can credibly argue that the Court doesn't protect property enough. But the Court has felt this way for a long, long time.
October 4, 2011
Land Use at the Supreme Court, Part III
In two earlier posts I explored the dangers that inhere in government advocacy in land use cases. I have in mind in particular two cases that the Supreme Court will take up in this new term, Sackett v. EPA and PPL Montana LLC v. Montana. I left off in Part II with the observation that, when the government acts as both a party interested in, and the adjudicator of, property rights, there is reason to doubt that the private landowner will be afforded a reasonable opportunity to contest those issues on which the dispute turns. This doubt exposes a third danger in government advocacy. Government advocacy creates a risk that open questions will be viewed as closed questions, that contestable issues will never be subjected to the light of reason, and that our law of land use will become a muddle as a result.
In criminal prosecutions the government is of course always the advocate against the private-party accused. And criminal law has built up numerous safeguards to ensure that contestable questions, on which the fate of the accused hinge, are exposed to rigorous review. The most well-known are the high burden of proof, which the government bears for every element of the offense, and the constitutional protections that require the government to come by its evidence honestly.
There are no analogous protections in property law because property is not a fundamental right. And those few protections that the law once extended to property owners have all but disappeared. For example, the Supreme Court in Kelo re-wrote the Takings Clause to allow takings for a public purpose. And the doctrine of regulatory takings provides less and less protection for landowners every year. The longer that state and federal regulations of land use are on the books, the fewer the landowners who can claim to have had their property rights taken by those regulations. In legalese, there is a ratchet effect to the background principles of property law against which the regulatory takings doctrine operates. New regulations become old regulations, which set new expectations, which cause property rights to shrink.
Understand me well: I am not suggesting that property should be declared a fundamental right. I am merely suggesting that regulators should tread carefully in light of the facts that it is not a fundamental right, and that property owners therefore do not enjoy the procedural protections that are afforded to a criminal accused.
Criminal law also has strictly-enforced structural protections in place to protect the accused. Landowners receive no such protections. As federal and state agencies proliferate it becomes more difficult for landowners to know who the police and prosecutor are. (Recall that Mrs. Sackett claims to have received verbal permission from the U.S. Army Corps of Engineers.) When the policeman also turns out to both prosecutor and judge, it is impossible to segregate prosecutorial discretion from adjudicatory decision. That is bad for everyone involved.
Update: Michael Lewyn rightly takes me to task for my imprecise remarks about the Kelo decision; the Court crossed the line of principled adherence to the text of the Takings Clause long before Kelo. I should have put "public purpose" in scare quotes.
Hirokawa on Driving Local Governments to Watershed Governance
Keith Hirokawa (Albany) has posted Driving Local Governments to Watershed Governance. The abstract:
This article examines two recent developments in watershed protection. First, the growth of ecosystem services research has reframed the manner in which value accrues in natural resources. At the intersection of economics and ecology, the study of ecosystem services has supported the attribution of economic value to ecosystem processes. Second, local governments are participating quite intentionally in watershed management by identifying with particular watersheds, particular watershed features, and particular watershed functions, in ways that other entities lack the institutional capacity to do. These developments are important for watershed protection in ways not previously seen: even if they leave political boundaries intact, when local governments protect watershed functionality, they are acting to preserve natural capital, and natural capital is geographically situated in ways that defy the sanctity of political boundaries.
This article addresses the importance of driving local governments to watershed planning and management by introducing the perspective of ecosystem and watershed services. Part II of this article discusses the complexity of functional watersheds and identifies watershed features that can be categorized in ecosystem services terms as the provisioning, regulating, cultural, and supporting services. By discussing watershed services, this part identifies the valuable ecosystem services in watersheds and the objectives of watershed investments. Part II furthermore explores the nature of watershed planning in the context of existing regulatory, property, and sovereignty ownership schemes for the purpose of identifying the level at which local governments are held to account for watershed investments. This part explores the notion that local governments are so grounded relative to watersheds that the task of identifying and satisfying local needs and parochial perspectives – often thought to impede sound environmental planning – should be considered a primary driver in a collaborative and developing process. Part III of this article discusses the manner in which the ecosystem services perspective illuminates particular local governance needs.
There must be something in the water in Albany, because Keith is maintaining a frenetic pace in posting interesting new articles.
Congrats and blog farewell to Chad Emerson
I've been on travel the past couple of weeks, which gave me an excuse to put off doing something I haven't wanted to do: to tell you all that Chad Emerson will be leaving the Land Use Prof Blog. The good news is that Chad has accepted a really exciting land use job. He will be the permanent Director of the Department of Development for Montgomery, Alabama.
You may recall that Chad has spent most of this year moonlighting as interim director of planning & development for the City, after Ken Groves passed away. Not surprisingly, the City made Chad a permanent offer, and somehow persuaded him away from his teaching post at Faulkner.
One of the things that has awed me about Chad as a teacher and scholar is his ability to understand and communicate about development to an incredible level of expertise and detail, such as the project design work he does with his students in his Land Planning and Development seminar. So he'll be the perfect person to lead Montgomery toward a bright land use future. (You can follow his department on Facebook!) I suspect he'll stay plugged in to the academy too, and will be able to share a lot of insights with us from the Real World.
We're very grateful for the work that Chad has put into this blog since 2009, when we picked up the torch from blog founder Paul Boudreaux. Chad will be missed, but please congratulate him on his new gig. And at least we have his Faulkner colleage Adam MacLeod on board for the month!
UPDATE: See Chad's characteristically gracious note in the comments. I know that we'll all be very interested to continue hearing about Montgomery and all of Chad's work towards better land use in American society.
Owley on the Enforceability of Exacted Conservation Easements
Jessica Owley (Buffalo), one of our excellent erstwhile guest bloggers, has posted The Enforceability of Exacted Conservation Easements, forthcoming in 36 Vermont Law Review (2011). The abstract:
The use of exacted conservation easements is widespread. Yet, the study of the implications of their use has been minimal. Conservation easements are nonpossessory interests in land restricting a landowner’s ability to use her land in an otherwise permissible way, with the goal of yielding a conservation benefit. Exacted conservation easements arise in permitting contexts where, in exchange for a government benefit, landowners either create conservation easements on their own property or arrange for conservation easements on other land.
To explore the concern associated with the enforceability of exacted conservation easements in a concrete way, this article examines exacted conservation easements in California, demonstrating that despite their frequent use in the state, their enforceability is uncertain. The three California statutes governing conservation easements limit the ability to exact conservation easements. California caselaw, although thin, indicates that courts may be willing to uphold exacted conservation easements even when they conflict with the state statutes. This examination of the California situation highlights California-specific concerns while providing a framework for examining exacted conservation easements in other states.
This article illustrates not only challenges of enforceability that arise with exacted conservation easements, but uncertainty in their fundamental validity and concerns about public accountability. This exploration illustrates that enforceability is not straightforward. This raises significant concerns about using exacted conservation easements to promote conservation goals, calling into question specifically the use of conservation easements as exactions.
October 4, 2011 in Conservation Easements, Environmental Law, Environmentalism, Local Government, Property Rights, Scholarship, Servitudes, State Government, Sustainability | Permalink | Comments (0) | TrackBack
October 3, 2011
Land Use at the Supreme Court, Part II
In an earlier post I commented on two land use cases on which the Supreme Court will hear arguments this term. I suggested that Sackett v. EPA and PPL Montana LLC v. Montana are connected by a common theme. Both cases demonstrate the dangers that attend government advocacy for or against private land use. The dangers are not merely for private landowners; this advocacy is dangerous for the government actors, as well. In this post I’ll consider two implications. In a later post, I’ll explore one more.
First, government advocacy threatens the appearance of impartiality of those charged with adjudicating disputes about land use. This danger is particularly acute when the same governmental entity is charged with investigating, prosecuting, and adjudicating the dispute, as in the Sackett case. But it also appears when state courts appear to adopt uncritically the state’s factual inferences, as in the Montana case. The law of course contains numerous provisions to protect the appearance of impartiality of judges, though it contains fewer provisions to protect administrative agencies, such as EPA. The appearance of impartiality has broad implications for the rule of law. Courts—and administrative agencies when acting in their adjudicatory capacities—are supposed to be impartial arbiters of factual inferences, rights, and remedies. If citizens have reason to lose their confidence in the impartiality of adjudicatory bodies then the rule of law suffers.
Second Government advocacy threatens the security of property. Unlike PPL Montana, the Sacketts do not have significant financial resources with which to contest the claims of government “experts.” (In our age of legislative and regulatory science, these cases almost always boil down to a battle between experts.) But there is a more fundamental problem. If the government is both the litigant against and the adjudicator of property rights then what recourse do most landowners have? The Sacketts have the Pacific Legal Foundation on their side. PPL Montana was savvy enough to discover a federal question that interested the Supreme Court. Most landowners in similar positions will not be so fortunate. Their property rights are secure only as long as the government does not imagine better uses (or non-uses) for their lands than they are making. This is a problem not merely for landowners who come into the cross hairs of government regulators. Is it a problem for all of us; property is the foundational institution undergirding all economic activity.
None of this is to suggest that the Supreme Court should rule in favor of the private parties in these cases. Nor is it to suggest that governments should not regulate land, or that governments should never litigate land use issues. I do not know enough about the disputes to comment on the merits. If the Sacketts’ land is located on a wetland then they must comply with applicable federal law. If the State of Montana in fact owns the riverbeds then the power company might lawfully be charged rent for its occupancy. But these are contested questions. Have the private parties been afforded a reasonable opportunity to make the contest? There is plenty of reason to doubt.
Michael Lewis: California and Bust
Michael Lewis, the author of popular financial nonfiction books such as Liar's Poker, Moneyball, and The Big Short, has published an interesting Vanity Fair article on the looming municipal debt crisis called California and Bust. The intro:
The smart money says the U.S. economy will splinter, with some states thriving, some states not, and all eyes are on California as the nightmare scenario. After a hair-raising visit with former governor Arnold Schwarzenegger, who explains why the Golden State has cratered, Michael Lewis goes where the buck literally stops—the local level, where the likes of San Jose mayor Chuck Reed and Vallejo ﬁre chief Paige Meyer are trying to avert even worse catastrophes and rethink what it means to be a society.
While the piece isn't directly about land use, most of us know that land use is fundamentally intertwined with local government finance. The muni debt crisis flows from the real estate bubble, and future land use and development will be driven by the fiscal health of local governments. Also, just about anything by Michael Lewis is worth a read . . . no one else can spin a yarn about the financial world quite like him.
Somin on Blight Condemnations in New York after Goldstein and Kaur
Ilya Somin (George Mason) has posted Let there be Blight: Blight Condemnations in New York after Goldstein and Kaur, part of a February 2011 symposium “Taking New York: The Opportunities, Challenges, and Dangers posed by the Use of Eminent Domain in New York”, and published at 38 Fordham Urban Law Journal 1193 (2011). The abstract:
The New York Court of Appeals’ two recent blight condemnation decisions are the most widely publicized and controversial property rights rulings since the Supreme Court decided Kelo v. City of New London. In Kaur v. New York State Urban Development Corp., and Goldstein v. New York State Urban Development Corp., the Court of Appeals set new lows in allowing extremely dubious “blight” condemnations. This Article argues that the New York Court of Appeals erred badly, by allowing highly abusive blight condemnations and defining pretextual takings so narrowly as to essentially read the concept out of existence.
Part I briefly describes the background of the two cases. Goldstein arose as a result of an effort by influential developer Bruce Ratner to acquire land in Brooklyn for his Atlantic Yards development project, which includes a stadium for the New Jersey Nets basketball franchise and mostly market rate and high-income housing. Kaur resulted from Columbia University’s attempts to expand into the Manhattanville neighborhood of West Harlem. When some of the landowners refused to sell, Ratner and the University successfully lobbied the government to declare the land they sought to be blighted and use eminent domain to transfer it to them.
Part II addresses the issue of blight condemnation. Goldstein and Kaur both applied an extraordinarily broad definition of “blight” that included any area where there is “economic underdevelopment” or “stagnation.” In addition, the court opened the door for future abuses in three other, more novel, respects. First, it chose to uphold the condemnations despite evidence suggesting that the studies the government relied on to prove the presence of “blight” were deliberately rigged to produce a predetermined result. Second, it dismissed as unimportant the fact that the firm which conducted the blight studies had previously been on the payroll of the private parties that stood to benefit from the blight condemnations. Finally, the court refused to give any weight to extensive evidence indicating that Ratner and Columbia had themselves created or allowed to develop most of the “blight” used to justify the condemnations. The court’s approach opens the door to future abusive condemnations and violates the text and original meaning of the New York State Constitution.
Part III discusses Goldstein and Kaur’s treatment of the federal constitutional standard for “pretextual” takings. In Kelo and earlier decisions, federal courts made clear that “pretextual” takings remain unconstitutional despite the Supreme Court’s otherwise highly deferential posture on “public use.” Unfortunately, the Supreme Court has been extremely unclear as to what constitutes a pretextual taking. As a result, courts have taken widely differing approaches to the issue. Nevertheless, Kaur and Goldstein are outliers in this area, deferring to the government more than almost any other court that has addressed the question since Kelo. They virtually read the concept of pretext out of existence.
Looks like another insightful piece on this still-controversial subject.
October 3, 2011 in Caselaw, Conferences, Constitutional Law, Development, Eminent Domain, New York, Property Rights, Redevelopment, Scholarship, State Government, Takings | Permalink | Comments (0) | TrackBack