August 25, 2012
Berkey & BenDor on A Comprehensive Solution to the Biofouling Problem for Endangered Species
Kathleen Oppenheimer Berkey (Pavese Law Firm) and Todd BenDor (Planning--North Carolina/MIT) have posted A Comprehensive Solution to the Biofouling Problem for the Endangered Florida Manatee and Other Species, Environmental Law, Vol. 42, No. 2, 2012. The abstract:
Biofouling is the undesirable accumulation of microorganisms, plants, algae, arthropods, or mollusks on a surface, such as a ship’s hull, when it is in contact with water for a period of time. Biofouling and its traditional remedies pose serious environmental consequences, including 1) the transportation of nonindigenous aquatic species that can outcompete native species for space and resources, thereby reducing biodiversity and threatening the viability of fisheries or aquaculture, 2) the harmful accumulation of zinc- or copper-based toxins, and 3) the increase in weight, decrease in flexibility and mobility, and topical damage of marine mammals hosting biofouling organisms. There are a number of existing legal mechanisms that address biofouling under international law. However, due to the complexity of biofouling, this Article posits that existing mechanisms are inadequate for comprehensively regulating the problem, leaving aquatic species susceptible to numerous negative effects from biofouling. To address these inadequacies, we recommend biofouling also be mitigated under the federal Endangered Species Act (ESA). First, we consider the Florida manatee (Trichechus manatus latirostris) as a case study species, and suggest that Florida’s Resource Conservation and Development (RC&D) areas develop a Safe Harbor umbrella agreement under section 10 of the ESA to create a new generation of ecological harbors that are safe from the dangers of biofouling. The agreement would include a Habitat Conservation Plan (HCP) that incorporates a combination of behavioral and infrastructural biofouling mitigation techniques to be applied regionally across estuary, freshwater, and saltwater ecosystems. Second, we suggest that both public and private owners of existing, proposed, and expanding marina developments be encouraged to voluntarily sign Safe Harbor Agreements under the RC&D areas’ umbrella agreement to avoid owners having to navigate the long and strenuous process of obtaining individual HCPs. The comprehensive biofouling management strategy proposed as a model here would require RC&D areas to carry out a range of biofouling best management practices that would protect species and the habitats on which they depend from the adverse effects of biofouling.
Philadelphia's New Zoning Code
The Philadelphia Inquirer has an article providing an overview of the city's new zoning code, which replaces its 1962 code. The new code allows high-rises to be built more easily in the city's central commercial district and along its waterfront as-of-right. (See map of new zoning districts.) It also "assumes the city's population will grow in the future, and it encourages higher density buildings to accommodate the newcomers." (Note: Philly's population has declined from slightly over 2 million in 1960 to slightly over 1.5 million today.)
According to the article:
Because the previous code was so outmoded, the Zoning Board of Adjustment had gotten in the habit of handing out variances almost at whim, even when a project deviated dramatically from the neighborhood context. The haphazard process invited abuse from powerful gatekeepers, most of them Council members. It often seemed you only needed to make a campaign contribution to obtain a variance in Philadelphia.
Developers advocated for a more predictable development process, which would enable the city to better compete for residents and jobs. The new code is approximately 200 pages shorter than its predecessor.
Two thoughts come to mind after reading this article. First, the discussion surrounding the new zoning code echoes the considerations raised in relation to tax reform, particularly the desire for simplicity and predictability and the concern that a code laden with amendments, overlays, and other complexities favors sophisticated actors. Second, as Philadelphia pushes greater density and potential population growth in Center City, what will become of outlying city neighborhoods, which have seen substantial population declines (and a significant number of vacant properties) in recent decades? In May the city launched a website mapping its inventory of 9,000 vacant properties, approximately one-quarter of the estimated 40,000 abandoned buildings in the city.
August 24, 2012
Man Fights to Keep Wife's Remains Buried in Front Yard
If you've been reading the work of some of our colleagues at Property Prof like Tanya Marsh and Al Brophy, you know that cemeteries, memorials, and burial rules can be important issues in law and historical memory. Here's a more quotidian case in point, from the Huffington Post: James Davis, Alabama Man, Fights To Keep Remains Of Wife Buried In Front Yard. From the article:
Davis said he was only abiding by Patsy Ruth Davis' wishes when he buried her outside their log home in 2009, yet the city sued to move the body elsewhere. A county judge ordered Davis to disinter his wife, but the ruling is on hold as the Alabama Civil Court of Appeals considers his challenge.
While state health officials say family burial plots aren't uncommon in Alabama, city officials worry about the precedent set by allowing a grave on a residential lot on one of the main streets through town. They say state law gives the city some control over where people bury their loved ones and have cited concerns about long-term care, appearance, property values and the complaints of some neighbors.
But even some of the objecting neighbors are still concerned with the individual property-rights aspect of this situation:
A strong libertarian streak runs through northeast Alabama, which has relatively few zoning laws to govern what people do with their property. Even a neighbor who got into a fight with Davis over the gravesite – Davis said he punched the man – isn't comfortable with limiting what a homeowner can do with his property.
"I don't think it's right, but it's not my place to tell him he can't do it," said George W. Westmoreland, 79, who served three tours of duty in Vietnam. "I laid my life on the line so he would have the right to do this. This is what freedom is about."
The article profits from the analysis of Samford law prof Joseph Snoe (invoking Mahon (which I just taught) and other important precedents):
A law professor who is familiar with the case said it's squarely at the intersection of personal rights and government's power to regulate private property. While disputes over graves in peoples' yards might be rare, lawsuits over the use of eminent domain actions and zoning restrictions are becoming more common as the U.S. population grows, said Joseph Snoe, who teaches property law at Samford University in suburban Birmingham.
While it's a quirky fact pattern, this sort of case is intensely personal, and goes to show the broad range of issues that can end up in disputes over land use law. Thanks to Troy Covington for the pointer.
Stern on Property's Constitution
James Y. Stern (Virginia) has posted Property's Constitution, forthcoming in the California Law Review. The abstract:
Long-standing disagreements over the meaning of property as a matter of legal theory present a
special problem in constitutional law. The Due Process and Takings Clauses set forth individual rights that can only be asserted if “property” is at stake. Yet the leading cases interpreting constitutional property doctrines have never managed to articulate a coherent general view of property and in some instances reach opposite conclusions about its meaning. Most notably, government benefits are considered “property” for purposes of due process but not takings doctrines, a conflict the cases acknowledge but do not attempt to explain.
This Article offers a way to bring order to the confused treatment of property in constitutional law. It shows how a single definition of property can be adopted for all of the major constitutional property doctrines without the calamitous results that many seem to fear. It begins by arguing that property is best understood as the right to have some measure of legal control over the way a particular item is used, control that comes at the expense of all other people. It then argues that legal rights are a kind of private property and that, while courts and commentators are correct that legal entitlements to government benefits — so-called “new property” — should receive constitutional protection, they mistakenly believe the property at issue is the good that a recipient has a right to receive, rather than the legal right to receive it. The Article proceeds to show that legal rights are the only kind of things whose existence government can altogether extinguish and therefore that ownership of legal rights is the only kind of property right government can terminate without conferring equivalent property rights on others. The Article further argues that while due process protection should be read to apply whenever a person is denied an asserted property right (a deprivation), takings protection should only come into play when property rights are transferred from one party to another (a taking). Combining these observations, the Article concludes that termination not only of “new property” rights but also of old-fashioned in personam legal rights should trigger due process but not takings protection. This analysis provides theoretical coherence to constitutional doctrine that has thus far been lacking and it sheds light on the essential characteristics of property rights as a general matter, helping theoreticians understand more clearly the core structures of property law.
Mandelker book on Free Speech Law for On Premise Signs
Daniel R. Mandelker (Washington University) has published a new book on the important topic of sign regulation under the First Amendment: Free Speech Law for On Premise Signs (2012). Professor Mandelker's short summary:
The handbook explains the free speech law that determines how sign ordinances for on premise signs should be drafted. It first discusses the general free speech principles that apply, and next the free speech law that applies to different types of signs and the regulations that apply to these signs, such as height and setback requirements and design review.
Free Speech Law for On Premise Signs is available for free download at the United States Sign Council website, and also at Professor Mandelker's excellent website Land Use Law (the website--a companion to the Mandelker et al. Casebook, has a great collection of statutes, cases, scholarship, photos, and other resources for land use students and practitioners).
One of my most interesting teaching experiences was having a nontraditional student who was semi-retired from the billboard business; his experiences of the interaction between free speech law and sign regulation were what inspired him to go to law school. Free Speech Law for On Premise Signs, which explains these sophisticated legal concepts in a readable and practical way, will be very valuable to any planner, policymaker, or lawyer whose work brings them into this area.
August 23, 2012
NYT on Vietnam Property Bubble
“I can say this is the same as the crisis in Thailand in 1997,” said Hua Ngoc Thuan, the vice chairman of the People’s Committee of Ho Chi Minh City, the city’s top executive body. “Property investors pushed the prices so high. They bought for speculation — not for use.”
The article describes a Vietnam that sounds similar in many ways to the US and other places: a real estate bubble fueled by overpromotion; a recession that has left land development projects uncompleted; a disproportionate impact on younger workers; hard times for certain sectors of the economy, while others are relatively unscathed. Of course with Vietnam having dived in to the global economy in the past generation, the American recession and the European debt crisis are also having effects in Vietnam. But it's still quite interesting that the trigger seems to be a real estate bubble.
August 22, 2012
Who Owns Land Created by a Volcanic Eruption?
During my just-completed trip to Hawaii, I spent some time in the wonderful Hawaii Volcanoes National Park. The volcanic eruptions in the park continue to add new land to Hawaii’s youngest and largest island. In fact, over 500 acres of new land have been added since 1983 alone.
This led me to wonder who owned this new land. It turns out that the US Geological Survey’s Hawaiian Volcano Observatory provided a helpful answer to this question a while back. The Hawaii Supreme Court, in the 1977 case State by Kobayashi v. Zimring, 566 P.2d 725, decided the issue. Granted this is not an issue of broad relevance, but I found their resolution of the question interesting.
In Zimring, the State of Hawaii sought to quiet title over 7.9 acres of new land added after a 1955 eruption extended the shoreline. This new land, which was termed a “lava extension,” was adjacent to land purchased by the Zimrings in 1960, after the eruption. The lava flowed over the purchased land and into the ocean, forming the new 7.9 acres of land. After purchasing the adjacent land the Zimrings entered onto the new land, bulldozing it and planting trees. The State even assessed the land and collected taxes from the Zimrings on it. Nonetheless, the court found in favor of the State of Hawaii and in doing so distinguished lava flows from the common law doctrine regarding accretion of land.
The court first reviewed the history of Hawaiian law regarding private property ownership, concluding that it made clear that “land in its original state is public land and if not awarded or granted, such land remains in the public domain.” It then considered whether there was a relevant doctrine from the common law or traditional Hawaiian usage that applied in the case. It concluded that there were too few similar lava flows over private land to have established a usage.
It then considered the common law, first declaring that “[n]o court sitting at common law has had occasion to deal with the question of lava extensions.” The court distinguished the common law regarding accretion, the gradual increase of land through the deposit of soil. Under the common law, owners of contiguous land take title to land formed by accretion. In contrast, the court declared, “in cases where there have been rapid, easily perceived and sometimes violent shifts of land (avulsion) incident to floods, storms or channel breakthroughs, preexisting legal boundaries are retained notwithstanding the fact that former riparian owners may have lost their access to the water.” Similarly, it noted that under California law if an accretion is caused by artificial means, the newly created land does not belong to the upland property owner. The court concluded that “[r]ather than allowing only a few of the many lava victims the windfall of lava extensions, this court believes that equity and sound public policy demand that such land inure to the benefit of all the people of Hawaii, in whose behalf the government acts as trustee.”
It can be expected that the Loihi Seamount, which is being formed by volcanoes southeast of the Big Island, will similarly fall under control of the state when and if it emerges some thousands of years into the future.
Greg Bankoff (History--University of Hull), Ewe Lubken (Rachel Carson Center, Munich), and Jordan Sand (History--Georgetown) have published Flammable Cities: Urban Conflagration and the Making of the Modern World (U. Wisconsin Press, 2012), an edited volume of essays on the role of fires in the history of urban development. The blurb:
In most cities today, fire has been reduced to a sporadic and isolated threat. But throughout history the constant risk of fire has left a deep and lasting imprint on almost every dimension of urban society. This volume, the first truly global study of urban conflagration, shows how fire has shaped cities throughout the modern world, from Europe to the imperial colonies, major trade entrepôts, and non-European capitals, right up to such present-day megacities as Lagos and Jakarta. Urban fire may hinder commerce or even spur it; it may break down or reinforce barriers of race, class, and ethnicity; it may serve as a pretext for state violence or provide an opportunity for displays of state benevolence. As this volume demonstrates, the many and varied attempts to master, marginalize, or manipulate fire can turn a natural and human hazard into a highly useful social and political tool.
Over at The Atlantic Cities, Emily Badger has a review called The Uncomfortable Politics Behind the History of Urban Fires. She notes how fires played a role in the contested theories and policies behind land use, property, and government:
In the United States, we’ve come to think of forest fires this way, as we spar over the rights of wealthy people to build their vacation homes in flammable places like Malibu. But the history of urban fires is similarly political, in large part because it reflects the story of how governments came to view and value property.
"Fire is, of course, this threat to human life, but conspicuously it’s about the destruction of property," Sand says. "Is it the obligation of the city fathers or [government] to prevent peoples' private property from being destroyed?"
Badger's review and the book have a lot of interesting observations.
Climate & Energy Law Symposium at USD
The University of San Diego School of Law will host the Fourth Annual Climate & Energy Law Symposium on Friday, Nov. 9, 2012. This year's title is Law in a Distributed Energy Future. Here is the symposium overview:
The University of San Diego School of Law's fourth annual Climate and Energy Law Symposium will examine emerging law and policy approaches to encourage and accommodate distributed energy solutions. Historically, electricity has been generated by large power plants located far from consumers and delivered via long transmission lines. While that model remains largely intact, a gradual shift is occurring toward more localized energy production.
The symposium will bring together legal and policy experts from across the country to address a variety of key issues including the latest developments in the rules that govern the electricity grid change to incorporate distributed generation, possibilities for generating energy at the neighborhood and community levels, the legal and policy innovations at the federal, state and local levels that are most needed to usher in a distributed energy future.
Keynote addresses will be given by Commissioner Carla Peterman of the California Energy Commission, and Ken Alex, senior policy advisor to California Governor Jerry Brown and director of the Office of Planning and Research. The program and registration info are at the website.
August 19, 2012
Stein on China's Housing Market: Heading Toward a US-Style Crash?
Gregory M. Stein (Tennessee), who has written a bunch on real estate and land use in contemporary China, has posted Is China's Housing Market Heading Toward a US-Style Crash?, Arizona Journal of International and Comparative Law, Vol. 29, No. 1, 2011 . The abstract:
This article aims to determine whether China is heading toward a U.S.-style market crash in its housing market. Rather than attempting to maintain any suspense, I will disclose here that my conclusion is, “Who knows?” China and the United States have dramatically different histories, cultures, governments, economies, and legal systems. Anyone who claims to have a definitive answer to this question is overly confident.
My more modest goals in this article are to examine the available evidence and see which way it seems to point. The article begins by listing and describing several different ways in which the American housing market failed. It then evaluates the consequences of these failures for the U.S. housing market. Next, the article demonstrates some of the key respects in which the Chinese market differs from the market in the United States. This central portion of the article emphasizes just how difficult it is to make predictions about what might happen in one nation’s housing market based on the experiences of another nation that differs in so many significant ways. Finally, the article provides a description of some of the worrisome similarities between the Chinese and American housing markets. To the extent the previous analysis may have comforted the reader into believing that the Chinese market is unlikely to experience a downturn anytime soon, this last discussion will create some apprehension by highlighting some of the ways in which China might, in fact, be heading down the same path as the United States.
Bauer on Age-Restricted Communities and Civil Rights Laws & Regulation
Mark D. Bauer (Stetson) has posted ‘Peter Pan’ as Public Policy: Should Fifty-Five-Plus Age-Restricted Communities Continue to Be Exempt from Civil Rights Laws and Substantive Federal Regulation? The abstract:
Although millions of Americans live in 55-plus age-restricted housing, little research has been done to determine whether these communities benefit their residents, or the nation as a whole. This is particularly ironic because these communities exist in contravention to anti-discrimination laws by virtue of a specific exemption granted to real estate developers by an Act of Congress. Ordinarily age discrimination is prohibited by the Fair Housing Act, Title VIII of the Civil Rights Act of 1968. Successful lobbying by special interest groups carved out an exemption for 55-plus housing.
The original exemption required developers to offer elders special services and facilities in these communities in return for the exemption. Over time, those requirements were eliminated and now the only requirement is that these communities exclude families and children.
While lifestyles focused on golf and tennis may be attractive to younger retirees, older Americans often find themselves in communities bereft of the services and facilities they need for basic life activities and safety. The very nature of these communities result in elders left with depreciating homes, and many are without the financial means to retrofit their 55-plus home or to move into a community better adapted for their needs. This Article explores a popular form of “senior housing” that is unsuitable for most older Americans.
August 19, 2012 in Community Design, Constitutional Law, Development, Federal Government, History, Homeowners Associations, Housing, HUD, Real Estate Transactions, Scholarship, Sun Belt | Permalink | Comments (0) | TrackBack