Friday, October 21, 2011
Perusing the latest issue of Tierra Grande, the magazine of the Texas A&M Real Estate Center, I came across this short article by Reid C. Wilson called All the Right Moves: Navigating the Land Use Maze. The "takeaway":
Land use regulations can be daunting. Landowners and developers must understand why land use regulation exists; appreciate the tough position of city staff members; do their own homework on specific regulations; and reserve adequate time for the process. Wilson is one of the leading real estate attorneys in Texas. This brief article is a good introduction to the process of navigating land use regulation, and might be a good read for students and professionals who want to start learning about it. Matt Festa
Land use regulations can be daunting. Landowners and developers must understand why land use regulation exists; appreciate the tough position of city staff members; do their own homework on specific regulations; and reserve adequate time for the process.
Wilson is one of the leading real estate attorneys in Texas. This brief article is a good introduction to the process of navigating land use regulation, and might be a good read for students and professionals who want to start learning about it.
This is Part III in an on-going series of posts. In Part I, I crudely summarized the central claims of the Statement of Progressive Property and (what is in my view) the most telling criticism of that statement. In later posts I’ll refer to this exchange as the Progressive Statement Debate. In Part II, I briefly examined the guiding principles of an actual municipal rebuilding plan, that of Tuscaloosa, Alabama. Tuscaloosa suffered catastrophic damage from an enormous tornado last spring, and they are now beginning to plan how they will rebuild. I noted that Tuscaloosa grounded its rebuilding plan on the common good of the community. I remarked that the basic principles articulated in Tuscaloosa’s plan seem remarkably like the theory of authority developed by the natural law philosopher John Finnis, who grounds authority not in a social compact, an original position, the command of a sovereign, or the state’s responsibility for some consequentialist calculus, but rather in the basic human good of community.
If Finnis and the City of Tuscaloosa are correct, and there is such as a thing as an objective human good that we call community, then several important principles follow. Community is not a collective good but rather a common good. It is a good that cannot be instantiated except by cooperation among some number of people larger than one, yet it cannot be reduced to a mere aggregation of individual interests. A community of people must perceive the value of their cooperative action in some reason for action that they all share in common, not as the collective sum of individual goods less individual burdens, but rather a value that is truly good for them all, the value of which is known to them all.
In other words, that people form communities for the purpose of pursuing common goals, which are not reducible to the greatest aggregate collective good (which must be achieved at the expense of some), is perhaps the best practical proof against consequentialism.
As a theoretical matter, consequentialism is untenable. That at least some human goods are incommensurable—cannot be compared to each other on the same scale—entails that it is nonsense to speak of “the greatest good” in any collective sense. (Very helpful explanations of the incommensurability thesis can be found in Joseph Raz, The Morality of Freedom, at 321-66, and John Finnis, Natural Law and Natural Rights, at 92-95, 112-15.) But one need not read jurisprudence in order to see that consequentialism fails to explain how communities operate (or at least how they operate well) in the real world, particularly in their planning and development of land. When land use planning and development is done well, the community benefits in common; everyone really is better off. When land use planning is treated as a consequentialist enterprise, a zero-sum game in which the rights and interests of some individuals must be sacrificed for a “greater” collective “good” (think Poletown and Kelo), things tend not to turn out very well.
One of the important implications of this observation is that authority for land use planning should be de-centralized. No single, central authority is capable of measuring the “greatest collective good” through any empirical measurements, because no such collective good exists. A community's truly common good is irreducibly complex. Thus, a truly common good must be pursued through the community’s plural, subsidiary institutions. Private institutions within the community should, for this reason, retain as much authority as possible. They have primary responsibility for promoting the common good, for standing as intermediaries between the government and their individual members, and for helping local officials perceive what can and should be accomplished in any development of land.
This is why, I think, successful development plans tend to involve multi-faceted decision-making. They tend to enjoy so-called buy-in not just from individual citizens but also from businesses, trade groups, churches and other religious assemblies, social clubs and charities, and all of the other subsidiary institutions through which the community pursues the good.
Antonio Azuela (UNAM) has published Property in the Post-post-revolution: Notes on the Crisis of the Constitutional Idea of Property in Contemporary Mexico, 89 Tex. L. Rev 1915 (2011). In it he raises a number of questions important to comparativists and property theorists alike through discussion of a series of recent Mexican land law controversies. Here is a summary from the Law Review website:
Professor Azuela responds to a critical lack of contemporary constitutional scholarship concerning property rights in Mexico. He argues that current problems affecting property rights in Mexico stem from a variety of social and political issues, including eminent domain and the tragedy of the commons. Given this variety, theoretical models are often lacking, so Professor Azuela proposes a research agenda that will address weaknesses, account for the constitutional and social-science dynamics of the debate.
Thursday, October 20, 2011
John G. Sprankling (Pacific McGeorge) has posted The Emergence of International Property Law, forthcoming in the North Carolina Law Review. The abstract:
Title to deep seabed minerals, ownership of cultural objects, transferable allowances to emit greenhouse gases, security interests in spacecraft, and rights of indigenous peoples in ancestral lands are all components of a new field: international property law.
Scholars have traditionally viewed property law solely as a national concern. Indeed, the conventional wisdom is that international property law does not exist. But if we ask how international law affects private property, we find a substantial body of international property law that governs the rights of individuals, businesses, and other non-state actors. Some components are well established, while others are still evolving.
This article first examines the antecedents of international property law. It then develops the thesis that this law stems from four main sources: regulation of the global commons; coordination of transboundary property rights; adoption of global policies to prevent specific harms; and protection of human rights. It concludes by analyzing the challenges that arise from the emergence of international property law.
Forty years ago, international environmental law emerged as a new field. Today we stand on the threshold of a similar era in international property law. This article argues that the time has come to recognize international property law as a discrete subject, and thereby promote its coherent evolution in future decades.
Tuesday, October 18, 2011
Five days after the April 27 tornado that devastated Tuscaloosa and other communities in Alabama, I had the great privilege of witnessing relief efforts in that region. It is cliche to say that words cannot begin to describe such disasters. But cliches often serve as profound expressions of respect, recognitions that to attempt to describe would be to belittle something that should not be made to appear any less monstrous than it really is. The enormity of the disaster was matched only by the grace and courage of those good people who were working tirelessly to bring relief to the afflicted. They were all working out of churches, reaching out to surrounding neighborhoods in active demonstrations of the very best virtues that communities can embody.
A colleague has placed into my hands Tuscaloosa's "Strategic Community Plan to Renew and Rebuild." Determined to produce new strengths from vulnerability, Tuscaloosa is using this unique opportunity, created by that terrible disaster, to remake its city. Typical of the sentiment expressed throughout the plan is this, from a citizen: "We have an opportunity to start from scratch. We should really try and rebuild in a fashion that allows the city to move forward and turn into something better than it was before."
The plan is very much in the big-ideas phase, and is almost entirely aspirational at this point. It would seem that this is the moment when the big ideas matter, when first principles matter. So I was struck by the following lines from chapter 1 of the plan.
A community is like an organism and all of the parts must work together in order to sustain the City's future. A plan works to align city programs, projects and government in a synergistic relationship. Specific community goals in a Plan allow local decision makers to align around a city-wide vision and ensure that all projects are supported by the greater community.
Based upon what I witnessed in April, I predict that the community will rally around the vision quite enthusastically.
These lines brought to mind John Finnis' remarks about the purpose of law, expressed in his great book, Natural Law and Natural Rights. Finnis grounded (legal and non-legal) authority in the basic human good of community. In order to promote the common good communities need to coordinate the actions of their constituent members. And this is true regardless of human failings; law is not merely about restraining Holmes' "bad man." Indeed, according to Finnis, the more excellent and complex the challenge that the community has set for itself, the more gifted the community's members, and the greater their commitment to the common good, the more legal coordination is required.
I will follow Tuscaloosa's efforts with great interest. The city has set for itself a monumental challenge.
Ilya Somin has answered my query about land use and federalism. I wondered in an earlier post why land use scholars seem to assume that the Commerce Clause generally covers attempts by the federal government to regulate land use. Somin explains that the Court's definition of commerce--production, distribution, and consumption of commodities--is broad enough to reach land use because land is a commodity. This much makes sense to me, at least where the proposed consumption of land is or substantially affects interstate commerce. An obvious example would seem to be federal regulation of cell tower siting.
Then Somin goes on to explain, "State and local land use regulations preempted by federal legislation in most cases also qualify as 'economic activity,' since they control the use and distribution of land." Does this mean that regulation is itself commerce if the activity regulated is commerce? This, I must admit, is new to me.
I still wonder about RLUIPA. Is a church, synagogue, or mosque engaged in commerce when it assembles in its facility for worship? Or is the Commerce Clause argument that local land use regulations regulate commerce (and are therefore themselves commercial) when they address, as they often do, non-religious aspects of the land use, such as how many cars may be permitted on the premises at once, or whether a church may modify a building that has been declared a historic landmark? If that's the rationale then RLUIPA seems on rather firm footing; local governments nearly always offer ostensibly non-religious reasons for burdening religious exercise. And if religion can be regulated in this way, any activity on land will be open to federal regulation.
But then isn't there some tension between the Commerce Clause predicate for RLUIPA's substantial burden provision and the rationale of the provision itself? The justification for RLUIPA, as I understand it, is that we worry that the neutral, non-religious (commercial) reason that the local government has proffered for the adverse decision is not the real, subjective reason for the adverse decision. In other words, we are concerned about pretext. We suspect that the local government ruled against the religious landowner because of the landowner's religious convictions.
Perhaps the argument is that even religion is commerce if it is performed on land because land is a commodity. But that would seem to make all religion commerce. In my admittedly inexpert opinion, that seems rather odd.
As I mentioned in the comments of my earlier post, I still think RLUIPA is on firm footing when applied to truly individualized assessments. In those cases, the enumerated power is found in Section 5 of Amendment 14.
Monday, October 17, 2011
Christopher Serkin (Brooklyn) has posted Public Entrenchment Through Private Law: Binding Local Governments, 78 University of Chicago Law Review 879 (2011). The abstract:
Anti-entrenchment rules prevent governments from passing unrepealable legislation and ensure that subsequent governments are free to revisit the policy choices of the past. However, governments — and local governments in particular — have become increasingly adept at using private law mechanisms like contracts and property conveyances to make binding precommitments into the future. Simultaneously, courts and state legislatures in recent years have reduced the availability of core de-entrenching tools, like eminent domain, that have traditionally allowed governments to recapture policymaking authority from the past. These changes threaten to shift democratic power intertemporally. This Article develops a typology of mechanisms for public entrenchment through private law and private rights, as well as core anti-entrenchment protections embedded in the law. It then develops a framework for evaluating entrenchment concerns, comparing the costs of decreased flexibility against the benefits of increased reliance. Viewed through this framework, some recent changes in the law appear particularly problematic, from restrictions on eminent domain, to the rise of development rights, and creative forms of municipal finance like selling assets instead of incurring debt.
The Saint Index, a recent survey of attitudes about development, provides some incredible insights about the politics of land use. I found it especially interesting that the study attempts to measure how the "Tea Party" movement views development. No word on how "Occupy Wall Street" feels though. The study is worth reading in full, but here are some findings that stood out to me:
- NIMBY opposition to development is "stronger than ever," despite the economic downturn. Respondents were exceptionally cynical about local government land use decisionmaking, and believe local governments have too close a relationship with developers. These findings are nothing really new, although it is nice to see them quantified. The benefits of new development are spread widely, whereas the costs are concentrated locally, so it makes sense that people have a generally negative view of development.
- Now this is interesting: those most likely to have actively opposed a real estate development self-identified as either liberals or members of the Tea Party movement. The most likely to have actively supported a real estate development are -- also, self-identified liberals and members of the Tea Party. This seemingly unusual finding may mean nothing more than that individuals who self identify as lying on the more extreme ends of the political spectrum are also more likely to be politically active. But it may also signify that land use politics defy traditional partisan lines.
- 24% of respondents gave "protecting the environment" as their reasons for opposing a project, while only 14% said "protecting the value of their homes." The study authors state that, according to their previous survey results, these numbers are "not an accurate gauge" of the importance of home values as a motive for opposition. In other words, NIMBYS are liars!
- Here's an interesting finding that the authors pay little attention to: the majority of respondents were favorably disposed (56 to 41) toward apartment buildings/condos. This is in contrast to extreme hostility toward landfills, casinos, quarries and powerplants. These findings suggest that, at least in a survey, respondents are less concerned about revenue than more tangible impacts.
- Here's a noodle-scratcher for you: Self-identifying "Tea Party" members were most likely to support a Wal-mart, but most likely to oppose a Target or K-mart!
- The vast majority of respondents favor a rail line going through their community if there is a rail stop in their community. A slight majority opposes such a rail line if it does not stop in their community.
- Self-identifying Tea Party members were far more likely than the average respondent to oppose apartment/condo development and to favor landfills, quarries, and powerplants.
Inhabit.com has a beautiful slide show and accompanying article about the world's first residential building incorporating a verticle forest.
The Bosco Verticale is a system that optimizes, recuperates, and produces energy. Covered in plant life, the building aids in balancing the microclimate and in filtering the dust particles contained in the urban environment (Milan is one of the most polluted cities in Europe). The diversity of the plants and their characteristics produce humidity, absorb CO2 and dust particles, producing oxygen and protect the building from radiation and acoustic pollution. This not only improves the quality of living spaces, but gives way to dramatic energy savings year round.
Each apartment in the building will have a balcony planted with trees that are able to respond to the city’s weather — shade will be provided within the summer, while also filtering city pollution; and in the winter the bare trees will allow sunlight to permeate through the spaces. Plant irrigation will be supported through the filtering and reuse of the greywater produced by the building. Additionally, Aeolian and photovoltaic energy systems will further promote the tower’s self-sufficiency.
It looks like something out of Tolkein - I highly recommend you take a look.
Jamie Baker Roskie
Richard Epstein (NYU) has written Littoral Rights under the Takings Doctrine: the Clash between the Ius Naturale and Stop the Beach Renourishment, 6 Duke J. Const. L & Pub. Policy 37 (2011). He begins with the point that, due to the self-contradictory nature of judicial takings in a unitary court system, "the doctrine of judicial takings can, in practice, only arise in a federalist system." He goes on to argue for an appropriate deployment of centralized, federal oversight of state courts in defense of age-old, decentralized ius naturale. He sees Stop the Beach as a missed opportunity to invalidate years of Florida precedent as well as the Preservation Act that occasioned the controversy. He concludes that application of the judicial takings doctrine "should be limited to those circumstances in which the decided cases make a radical break from well-established common law patterns that systematically work for the advantage of the state or some identifiable private faction."
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