Land Use Prof Blog

Rule on Airspace and the Takings Clause

Troy A. Rule has a very interesting article up: Airspace and the Takings Clause, forthcoming in the Washington University Law Review.  The abstract:

This Article argues that the U.S. Supreme Court’s takings jurisprudence fails to account for instances when public entities restrict private airspace solely to keep it open for their own use. Many landowners rely on open space above adjacent land to preserve scenic views for their properties, to provide sunlight access for their rooftop solar panels, or to serve other uses that require no physical invasion of the neighboring space. Private citizens typically must purchase easements or covenants to prevent their neighbors from erecting trees or buildings that would interfere with these non-physical airspace uses. In contrast, public entities can often secure their non-physical uses of neighboring airspace without having to compensate neighbors by simply imposing height restrictions or other regulations on the space. The Supreme Court’s existing regulatory takings rules, which focus heavily on whether a challenged government action involves physical invasion of the claimant’s property or destroys all economically beneficial use of the property, fail to protect private landowners against these uncompensated takings of negative airspace easements. In recent years, regulations aimed at keeping private airspace open for specific government uses have threatened wind energy developments throughout the country and have even halted major construction projects near the Las Vegas Strip. This Article highlights several situations in which governments can impose height restrictions or other regulations as a way to effectively take negative airspace easements for their own benefit. The Article describes why current regulatory takings rules fail to adequately protect citizens against these situations and advocates a new rule capable of filling this gap in takings law. The new rule would clarify the Supreme Court’s takings jurisprudence as it relates to airspace and would promote more fair and efficient allocations of airspace rights between governments and private citizens.

Troy, our excellent guest blogger, has written before about sun, wind, and air, so this article is coming from one of the emerging experts in property rights above the dirt. 

Matt Festa

Long on Property Rights, Property Privileges, and the Physical Consequences of Word Choice

Jerrold A. Long (Idaho), who just posted an article last week, has another one up: Waiting for Hohfeld: Property Rights, Property Privileges, and the Physical Consequences of Word Choice.  The abstract:

An important part of our institutional and cultural history is our understanding of a system of property interests. The most common trajectory of land-use regulation (or the lack thereof) appears consistent with a property meta-narrative that informs multiple academic disciplines and levels of human interaction. This meta-narrative suggests that all land-use decisions begin with an assumption about the nature and extent of property rights held by potentially affected landowners, and that the ultimate end of any land-use regime is to “protect” those assumed property rights from unwarranted or unjustified intrusion by government. Because the law is a distinct linguistic environment in which word choices, and definitions, have significant consequences, the rhetorical landscape of a property dispute plays a significant role in determining the dispute’s ultimate outcome. In most land-use disputes, all participants make one important concession, or assertion, before the discussion begins. The often unchallenged assertion is the claim that the discussion is about property rights. Once a particular property interest is characterized as a “right,” the community’s political capacity to regulate that property diminishes substantially. Consequently, our decisions to characterize as “rights” those settings, circumstances and relationships that are better and more accurately understood as “privileges” changes our focus from the community to the individual, and necessarily weakens the political justification for, and community understanding of, most resource- or community-protective ordinances. This article considers contemporary property jurisprudence, theory, and conflict in a Hohfeldian context to demonstrate how our default rhetorical landscape leads to real and unnecessary negative social and environmental effects.

Matt Festa

Smith on Property as the Law of Things

Henry E. Smith (Harvard) has posted what looks to be a very important property theory piece, Property as the Law of Things, forthcoming in the Harvard Law Review.  The abstract:

The New Private Law takes seriously the need for baselines in general and the traditional ones furnished by the law in particular. One such baseline is the “things” of property. The bundle of rights picture popularized by the Legal Realists downplayed things and promoted the expectation that features of property are detachable and tailorable without limit. The bundle picture captures too much to be a theory. By contrast, the information cost, or architectural, theory proposed here captures how the features of property work together to achieve property’s purposes. Drawing on Herbert Simon’s notions of nearly decomposable systems and modularity, the article shows how property employs a thing-based exclusion-governance architecture to manage complexity of the interactions between legal actors. Modular property first breaks this system of interactions into components, and this begins with defining the modular things of property. Property then specifies the interface between the modular components of property through governance strategies that make more direct reference to uses and purposes, as in the law of nuisance, covenants, and zoning. In contrast to the bundle of rights picture, the modular theory captures how a great number of features of property – ranging from in-rem-ness, the right to exclude, and the residual claim, through alienability, persistence, and compatibility, and beyond to deep aspects like recursiveness, scalability, and resilience – follow from the modular architecture. The Article then shows how the information cost theory helps explain some puzzling phenomena such as the pedis possessio in mining law, fencing in and fencing out, the unit rule in eminent domain, and the intersection of state action and the enforcement of covenants. The Article concludes with some implications of property as a law of modular things for the architecture of private law.

Matt Festa

The Greatest Grid: New Exhibit at the Museum of the City of New York

While visiting New York City recently for the Association of American Geographers' annual meeting, I took in a great exhibit at the Museum of the City of New York entitled The Greatest Grid: The Master Plan of Manhattan 1811-2011.  The exhibit coincides with the 200th anniversary of the adoption of the famous street grid for the island of Manhattan.  It is a fascinating exploration of one of the most significant urban planning endeavors in American history.  You can see an overview of the exhibit here, and the New York Times Review of the exhibit here.  My thoughts on the exhibit, with pictures, are below:

The major goal of the grid system was to enable the construction of cheap housing in a growing city.  In 1811, most of the settlement in Manhattan was limited to the island's southern tip.  North of that the land was broken up into large, irregularly shaped estates, such as this one:

 

The plan's architects believed that breaking up large parcels of land into smaller, more regularized and accessible parcels would encourage the development of smaller, mass-produced, and, hence, cheaper, housing. 

Judged on these terms, the plan worked brilliantly.  The exhibit illustrates this with a fascinating discussion of the estate of Clement Clarke Moore, known as the author of “Twas the Night before Christmas."  Mr. Moore was the owner of a very large estate on Manhattan's west side called Chelsea (now a fashionable neighborhood of the same name).  Moore initially opposed the division of his estate into small rectangular parcels, but he eventually accepted the inevitability of the grid and began subdividing and selling off small lots for housing, just as the authors of the grid plan anticipated.  Moore's subdivision map for Chelea is below, and property nerds will note that Moore included restrictive covenants on all the lots, as indicated by the barely-readable text on the lower right-hand side prohibiting "nuisances of any kind" and the like: 

 

As this map shows, the grid system encouraged (although it did not mandate) lots about 100 feet deep (1/2 block in length) and 20 feet wide for a regular dwelling.  This way every unit would have access to sunlight from one side.  Larger facilities would have wider lots at the same depth, and seminaries occupied an entire block.  Similarly, the grid encourages a pattern in which buildings within a block are connected to each other to create a uniform street wall with a single vista leading out to the horizon.

In this way, although the grid was not aimed at affecting design, it had a powerful aesthetic impact, effectively encouraging a uniformity of design much as the later 1916 zoning resolution did.  

Although the grid system provided a windfall for landowners like Moore, many landowners were very hostile to the grid scheme, seeing it as part of a land grab.  The surveyors who came north to lay down markers for future intersections were often met with jeers or worse, and landowners were known to sabotage the markers.  Eventually, the city began to use huge, heavy markers that were imbedded deeply into the ground so they could not easily be uprooted by angry landowners.

It's not hard to see why many landowners opposed the grid system.  Manhattan was very hilly terrain, but the roads were laid out at a low, flat grade.  As a result, many homes, especially those located at new intersections, were left lurching on a precipice, as here:

As you can see, although Manhattanites and the rest of us have accepted the grid as a matter of course, perhaps as an inevitable product of modernity, it was a massive disruption of daily life (and property rights) at the time and required some pretty heavy-handed government intervention to accomplish.  I'll have more thoughts on the exhibit later.

Ken Stahl

Byrne on the Contemporary Role of Preservation Law in Urban Development

J. Peter Byrne (Georgetown) has posted Historic Preservation and its Cultured Despisers: Reflections on the Contemporary Role of Preservation Law in Urban Development, George Mason Law Review, Vol. 19 (2012).  The abstract:

The past years have seen widely noticed critiques of historic preservation by “one of our leading urban economists,” Edward Glaeser, and by star architect Rem Koolhaas. Glaeser, an academic economist specializing in urban development, admits that preservation has value. But he argues in his invigorating book, Triumph of the City, and in a contemporaneous article, Preservation Follies, that historic preservation restricts too much development, raises prices, and undermines the vitality of the cities. Koolhaas is a Pritzker Prize-winning architect and oracular theorist of the relation between architecture and culture. In his New York exhibit, Cronocaos, he argued that preservation lacks an organizing theory, imposes inauthentic consumer-friendly glosses on older structures, and inhibits architectural creativity. Although these critiques are as different as the cultural spaces inhabited by their authors (although both are professors at Harvard), both seemed to strike nerves, suggesting an underlying unease about how large a role preservation has come to play in urban development. This article assesses these critiques as part of an ongoing effort to make sense of historic preservation law.

This article proceeds as follows: First, it presents Glaeser’s critique in detail, placing it within the context of his larger argument about what makes cities attractive and dynamic. Grappling with the strengths and weaknesses of Glaeser’s critique leads to a discussion of how preservation regulation actually works and clarification of some of the benefits it confers. Second, this Article will attempt to specify Koolhaas’s critique, connecting it to similar complaints about preservation by more linear thinkers. Weighing objections to the coherence or authenticity of preservation leads to further discussion of the role that preservation plays in the larger culture. This article concludes with a call for future research.

Matt Festa