Wednesday, April 25, 2012
As a person whose academic focus is on the regulation of private lands, I suffer from something of an existential dilemma. I grew up in Idaho, now live and teach in Idaho, and understand myself as a westerner. But to the extent that the western United States possesses any unique, defining characteristic that might distinguish it – or its people – from other regions of the country, it must be the public lands. I believe that the land shapes us as individuals as much as we shape the land. And so as westerners, we are shaped by the National Forests, National Parks, and BLM lands that make up the public lands more so than any other lands.
But is that still the case? Are westerners still defined – if we ever were – based on our placement in a public-lands landscape?
A few years ago I noticed, quite after the fact, that the Targhee National Forest had substantially revised its travel plan, reducing historic access to roads and trails. And it appeared that no one had complained. But just a decade earlier when the Targhee started closing old roads to protect Grizzly habitat, Teton County banned federal vehicles from its roads, Helen Chenoweth showed up with her posse to hold Congressional hearings, and a bomb showed up at the front door of the local Forest office. More recently, while using land ownership maps to place private land-use regulation in our public lands context, one of my students asked what all of the green on the map represented. Those are the National Forests, I said. Oh, he said, so what is the yellow? That’s the Bureau of Land Management.
He grew up in Idaho, where 22% of all land is managed by the BLM, and 62% in total managed by the federal government. He did not seem aware of that fact.
People define themselves through conflict, at least in the decision that there is something worth fighting about. So by investigating those conflicts we are investigating emerging cultural values. In considering contemporary western conflicts, we should ask whether the nature of those conflicts suggests that “western values” might have changed.
From a simple cartographic perspective, the West remains distinguishable from the rest of the country based on the substantial amounts of federal lands found there. But it is possible that the era has ended in which the West defines itself primarily – culturally, socially, and cartographically – by the presence of those public lands. Obviously, we can and should still care about those public spaces, but the West is now much more similar to the rest of the country, where the primary land-related concern for most residents is the use and regulation of their homes and towns. Comprehensive plans make the front page; forest plans do not. New subdivisions matter more than new timber harvests. And whether my street is plowed regularly is more significant than whether I can still drive on that old logging road. Local cultures and economies, and social conflicts, in this post-public-lands West originate in the same private lands uses and disputes that arise anywhere in the United States, and increasingly, anywhere in the world. The primary landscape in which western human-land relationships are realized is now more likely to be a private landscape than a public one—development, change, and conflict in the West’s private lands now describe, define, and determine the West’s personality more than the public lands that are increasingly foreign to the region’s residents.
So why does this matter? Wallace Stegner claimed that the West is the native home of hope, and that its true potential lies in finally creating a society to match the scenery. You can’t be a westerner without believing the first part. And perhaps you can’t be a westerner without disbelieving the second. That’s why a recognizing a post-public-lands West matters. Because we have to get past that disbelief, and it’s on our private lands where our homes, towns, relationships, and societies are built.
-- Jerry Long
Harmon v. Kimmel will have to go down in history as actor Mark Harmon's headslap administered to talk show host Jimmy Kimmel last week on TV. Because Harmon v. Kimmel will not turn out to be the most interesting property case to be heard in the U.S. Supreme Court's next Term. The Court declined to grant the plaintiff's petition for certiorari this week, thus letting stand the Second Circuit's 3-0 affirmance of the district court's dismissal of the constitutional challenge to New York City's well-established rent control ordinance. Here's a New York Times article on the Court's denial of cert yesterday.
Ordinarily this would not be big news--the Court only grants 1% of cert petitions--but this case was generating some buzz, particularly in libertarian circles; and when the Court requested NYC to file a response brief hopes were raised. The Reason Foundation Reason Foundation produced a video about the case, for just one example. It was also the subject of a George Will syndicated column in February. The Cato Institute's Trevor Burns reacts to the cert denial here, and R.S. Radford, who authored an amicus brief for the Pacific Legal Foundation, has a statement as well.
At first glance, I had thought that while the plaintiffs had compelling facts (owners of a building where half the units were rent-controlled with a wide disparity between the units' rent), and while many if not most economists agree that rent control is generally counterproductive, I thought that the constitutional issue had been settled by the Court back in 1992 in Yee v. City of Escondido. But Ilya Somin noted a potential distinction in his commentary on the case last month:
By contrast [to Yee], as Root describes, the New York City rent control law does not allow Harmon and other landlords to evict their tenants even if they do wish to use the property for something other than rental housing. Effectively, therefore, this is a government-imposed permanent physical occupation of property.
But that argument failed to carry the day, so it looks like rent control isn't going anywhere in NYC. Public officials expressed their approval:
Gov. Andrew M. Cuomo told reporters on Monday that the court’s order was “good news for the state of New York” because “rent regulations are very important to the tenants.”
Christine C. Quinn, the City Council speaker, said she welcomed the decision. “Now,” she said in a statement, “the city’s rent regulation system can proceed unfettered, as we continue to ensure affordable housing is available to New Yorkers.”
By sheer coincidence, this news came out the night before I was going to teach the section on Affordable Housing to my Property class. Because it was the final class session of the semester, the case didn't generate as much discussion as it otherwise might have, but at least it reinforced my mantra that property and land use issues are hip, current--nay, ripped from the headlines--and very important in society today.
As usual, SCOTUSblog has the best set of links for the case to all the lower court opinions, the parties' briefs, and the amici. I'll have more to say about one of them in a follow-up post.
Monday, April 23, 2012
The New York Times, through its partnership with the nonprofit news organization Texas Tribune, published today a story on the powerful state law tools that support NIMBYism in the siting of affordable housing. Texas Tribune along with the San Antonio Express-News studied public records to learn the extent of the problem:
The examination of data from the Texas Department of Housing and Community Affairs, which administers the biggest federal housing subsidy program in the state, found that of $9.7 billion in tax credits awarded from 1990 to 2011, more than three-quarters subsidized the construction of apartments in neighborhoods mostly made up of poor blacks and Hispanics. Few units built with support from the Low-Income Housing Tax Credit program, which gives federal incentives to private developers to build or rehabilitate low-cost apartments, were in areas that are predominantly white.
The examination found that:
¶Of the 193,000 tax-credit units subsidized statewide, 78 percent are in census tracts where more than half of all residents are minorities. By comparison, only 59 percent of all rented apartments are in the same areas, according to census data.
¶Roughly 31 percent of the units across the state are in neighborhoods with high concentrations of minority residents — 90 percent or more — which is about twice the rate for all rental housing.
¶Eighty percent of the low-income apartments, but only 64 percent of all rented units, are in poor census tracts where residents earned less than the state median household income, $49,646.
In search of a relaxing diversion after another hard day mulling the intricacies of land use and real property law, I sat down last night with my wife to enjoy a quirky, Oscar-nominated film called "The Descendants." You can imagine my surprise and indignation when a key plot point hinged on the rule against perpetuities! Although the intricacies of the rule were irrelevant, my enjoyment of the film was greatly diminished as I found myself attempting to mentally sort out how the rule would apply in this situation and whether the movie had gotten the rule right rather than paying attention to the poignant tale that was unfolding.
Fortunately for you, I am not going to spend this post saying whether the movie got the rule against perpetuities right because, frankly, that would just reveal my ignorance about the rule. Rather, the movie's treatment of the rule against perpetuities communicated an interesting and somewhat disturbing message about dead hand control in property law.
To summarize ever so briefly, the protagonist Matt King is a real estate lawyer in Hawaii who, along with innumerable cousins similarly garbed in garish Hawaiian shirts, has inherited an interest in 25,000 acres of pristine Hawaii land from a native Hawaiian ancestor. The land is held in a trust administered by our hero, who tells us at the outset that because of the rule against perpetuities, the trust is set to expire in seven years (thus beginning my confusion, as I had thought trusts were exempt from the rule). The entire local community is greatly interested in the fate of the land, which now rests in the hands of Mr. King along with several other weighty personal matters which will be resolved in the following 2 hours. SPOILER ALERT AHEAD:
Most of the cousins wish to sell the land now to a real estate developer before the trust expires. Our hero seems set to agree with them, but then dramatically changes his mind in the movie's conclusion, asserting that he and the family have an obligation to their ancestors, their descendants, and to the Hawaiian people at large to maintain the land in its pristine state. When his cousins question him about how he's going to get around the RAP problem, he says that he's got seven more years to figure that out. They seem convinced.
So what's the message for property lawyers? The movie interprets the RAP as a heartless legal formality that operates to remove land from its sentimental roots and convert it into a market commodity that can be exploited by rapacious real estate developers (it is no coincidence that the nearest thing the movie has to a villain is a real estate broker). This is, to say the least, an interpretation of the RAP that property profs will find novel. I have always understood the purpose of the RAP to be the prevention of a landed aristocracy: no longer can a landowner ensure that the source of his or her wealth stay in the family for all time. The dramatic conclusion of "The Descendants," by contrast, asks us to cheer for the protagonist as he attempts to perpetuate his family's landed aristocracy into perpetuity. The movie accomplishes this through a clever trick: we do not see the protagonist as an aristocrat, but as someone whose wealth and privilege is a burden because he is so conscious of the monumental social impact of his great fortune. And it's easy to look good when your adversary is a developer. The movie practically makes one nostalgic for the days when society was ruled by a patrician class with an acute sense of social responsibility. After Citizens United, we still have the patrician class, but without the social responsibility.
In short, I could not enjoy the movie.
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