Sunday, November 30, 2014
For my last guest post this month, I want to return to my primary area of research to date: American Indian land tenure. As I’ve written about here already, one of my primary interests is in thinking broadly about the many varied factors that influence landowners’ decision-making about how they use their lands. Our essential land tenure institutions are foundational in this sense and directly impact land use decision-making before anything like zoning or other direct regulation of land use even has a chance to take effect. Nowhere is the influence of the design of foundational property rights more apparent than in the land tenure relationships in the modern American Indian reservation, where significant swaths of Indian-owned lands are currently not used by Indian landowners themselves but instead sit idle or are leased to non-Indian users. In fact, I have a hard time imagining a property system better designed to discourage Indian prosperity on Indian land than the top-down system of property imposed on indigenous people in this country today.
In this post, I want to give at least an overview of some of what I think are the most important and influential aspects of American Indian land tenure and then talk just a bit about why I think further scholarly engagement in this arena would be incredibly valuable in a range of settings.
I. The Indian Land Tenure Challenge
To start, I appreciate that there is a wide spectrum of knowledge regarding the nuances of modern American Indian land tenure. For some of us, it’s just a mystery how land is owned and held within reservation boundaries. For others, the system is so complex that once we start to study it at all, conversations and work regarding indigenous land rights devolve into a level of generality that isn’t as productive as it could be. Thus, a significant part of my current research agenda is trying to do the deep work required to develop a really rigorous understanding of the modern property rights framework within this very complex reservation setting. This post won’t be able to do all of this work justice. Nonetheless, here is a brief overview.
Two of the biggest and most widely recognized challenges for Indian landowners are the federal trust status on many Indian-owned lands and the fractionation (or extreme co-ownership) conditions within many of those same properties.
Many, but not all, Indian-owned lands within federal Indian reservations are held in a special trust status over which the federal government acts as trustee for the benefit of the individual or tribal landowner. This trust status’s history is complex, but the important point for this purpose is that the trust status has been extended indefinitely and, to many eyes, appears to be perpetual.
This federal trust status certainly has some legal advantages—as evidenced, for example, by ongoing efforts by many Indian tribes to have additional lands taken into trust. The primary benefits include cementing a stronger case for exclusive federal/tribal (as opposed to state) jurisdiction over the space and also clarifying that state property taxes may not be imposed on that trust land. (The property tax issue is not quite that black and white. Many tribes still make special payments in lieu of taxes to state and local government in exchange for services and to help eliminate conflicts over fee-to-trust conversions.)
The trust status, however, also has significant disadvantages for Indian landowners. It is restrictive and extremely bureaucratic. The federal government exercises significant land management control, and most Indian-owned trust lands cannot be sold, mortgaged, leased, or otherwise developed or used without a formal approval from the Department of Interior after a cumbersome process of appraisals, oversight, and multi-level review. This trust system very dramatically increases the transaction costs for any land use and is often inefficient and even demoralizing for Indian landowners (not to mention extremely expensive for the federal government to maintain).
The second problem, fractionation, is closely related to the trust status issues. Fractionation refers to the fact that many individually owned Indian trust lands (often called allotments) are now jointly owned by many, many co-owners—sometimes as many as several hundred or more. Fractionation makes any kind of coordinated decision-making among all of these co-owners practically difficult and, as an individual co-owner’s interest size diminishes, reduces the likelihood that the co-owners will so cooperate. This then increases co-owners’ reliance on the federal government’s ongoing trust management role over these lands. All of these tiny interests, in turn, overwhelm the federal trust system, as evidenced by the recent Cobell class action litigation which uncovered the federal government’s gross inability even to account accurately for all of these small interests.
The federal government has explicitly acknowledged that this fractionation problem is a direct consequence of its own failed federal policies on Indian lands. For example, historic prohibitions on will writing for Indian landowners and the modern alienation restraints on Indian trust land have all exacerbated fractionation. Implementing any kind of solution to consolidate these small interests has been exceedingly difficult. This is true both because of the general idea that it’s much harder to reassemble property than it is to disassemble it and because of a host of other political, legal, economic, and even moral issues. Possible solutions do exist, and part of the Cobell settlement funds are currently going to fund a limited buy-back program that will purchase some individual small interests from willing sellers and re-consolidate them in tribal ownership. However, the general trend has been that any such effort at a solution moves so slowly and addresses such a small proportion of the problem that new tiers of fractionation outpace any improvements, with exponentially more small interests continually being created through further subdivision of already small interests over new generations of heirs.
While these two issues—the federal trust status and the fractionated ownership patterns—are complex enough, I don’t think they give a complete picture of all of the issues going on in American Indian land tenure. For example, in a piece called No Sticks in My Bundle: Rethinking the American Indian Land Tenure Problem that I’m currently wrapping up edits on for the Kansas Law Review, I argue that a third significant problem for Indian land use is the gradual elimination over time of any informal use and possession right for co-owners of Indian trust land. Although co-owners in any non-Indian tenancy in common would have a default right to use and possess their own jointly owned land presumptively and informally and without any prior permission from their other co-owners, that is not the case in fractionated Indian lands. Modern federal regulations have recently evolved to require Indian co-owners to get permission or a formal lease from co-owners before taking possession of their own land and also to pay those co-owners rent. I think preserving some route for direct owner’s use of jointly owned land is important and valuable, even in highly fractionated properties, and as noted, I am writing about this more here.
In addition, in another piece I’m currently writing and calling Emulsified Property, I am exploring the problem of uncertain and sometimes overlapping jurisdictional authorities within Indian Country as it relates to land use. This piece explores new dimensions of these property-related jurisdictional issues, but at a high level, the fact is that modern Indian reservation are uniquely plagued by a mind boggling array of unsettled, case-specific, or otherwise unresolved jurisdictional questions. Part of this stems from the fact that most reservations include not only Indian-owned trust lands but also fee lands, which might be owned by non-Indians, Indians of another tribe, tribal citizens, or the governing tribe itself. The state or local government is likely to assert jurisdiction at least over the non-Indian fee properties, but where that state and local jurisdiction ends, and when and if it overlaps with tribal or federal jurisdiction as well, turns on a complex balancing of multiple factors, depending on the type of jurisdiction being asserted. It continually shocks me (and my research assistants) how many unresolved questions there are in terms of who governs what in Indian Country. In my property law class, we often talk about the importance of certainty in property rules. So many of our social and economic institutions rely on having clearly established, easily communicated entitlements and responsibilities with respect to a given thing. In Indian law, there is often very, very little of that certainty.
This just scratches the surface of the American Indian land tenure paradigm, but it is already easy to see why land use is such a challenge in Indian Country. Despite significant reserved lands and natural resources, Indian people suffer some of the worst poverty in the United States.
II. Why It Matters
Now for my plug for why I think more of us should be engaging in this important work around Indian property and land use. Of course, immediately and most importantly, there is the compelling problem of justice and fairness for indigenous people, who suffer the consequences of these failed property systems most directly. The Harvard Project on American Indian Economic Development has found repeatedly that Indian people having the power and the liberty to make their own decisions with respect to their resources and their futures is the best and most effective solution to the persistent problems, including persistent poverty, in Indian Country. In many respects, it is the law that stands most in the way of this, and it will take legal minds to dismantle the current ineffective system. And legal minds who are uniquely interested in the transformative potential of property institutions are especially well suited to begin this task.
On another practical note, the problem of American Indian land tenure also matters economically for all of us. The federal government has acknowledged again and again that it using (wasting) incredible resources continuing to maintain this broken property system.
However, as land use legal scholars, there are other important reasons to work in this rich area. I believe a sustained and careful understanding of these unique Indian property institutions, and the evolution of these property relationships through various federal land reforms over time, can help us address property and land use challenges not only in Indian Country but in other venues as well. Other scholars have sometimes analogized to Indian land tenure issues for this kind of purpose, but that work has sometimes lacked a real detailed and deep understanding of how complex Indian land tenure issues actually are. However, with more careful analysis, there could be very fruitful comparative work. Let me give just two immediate examples, both of which I'm just beginning to work on.
First, the co-ownership institutions in Indian Country are unique, but the fractionation (or heir property) issues are not. Paying attention to the default co-ownership rules for individually owned Indian lands can help us learn about and address co-ownership challenges in other settings—such as the role of default co-tenancy rules in balancing flexible use arrangements with land preservation strategies for at-risk communities. It can also inform property theory and practice on how co-ownership institutions can best be designed to promote coowner cooperation and efficient use of resources more generally, how anticommons properties actually work, and what methods are most useful to re-aggregate overly fractionated property rights.
Second, I am also excited about how learning from indigenous land planning practices across multiple potential stakeholder jurisdictions within a given reservation (i.e., local municipalities and county governments, state governments, federal governments, and the tribe itself) may translate to inform other work on moving land use planning more generally to more regional, cross-jurisdictional models. Cooperation among multiple levels of government is a persistent challenge in efforts to plan more broadly on a regional, resource-based, or ecosystem level, and yet almost any natural resources or planning person would tell us that this is the kind of decision-making we must do. These kinds of jurisdictional conflicts are being addressed at the reservation level on an ongoing basis, and work on indigenous planning may teach us a lot about how we can plan across jurisdictional boundaries in wider settings. (This is not to suggest that there is a broad literature on indigenous planning or land use issues within reservation legal settings that already exists. There is not. However, for anyone looking to start to review the literature, I recently read an interesting dissertation on comprehensive planning on American Indian reservations and on the Oneida reservation in Wisconsin specifically by Dr. Rebecca Webster, a former law school classmate of mine, that provides a nice place to start and can be found here.) The challenges of planning within a reservation are different and, in some ways, arguably even more complex than the challenges of regional planning generally. Notably, within reservation boundaries, jurisdictional uncertainty may increase concerns about any decision that would jeopardize a future case for asserting jurisdiction, and there are long conflicted histories between neighboring sovereigns. Still, it is a comparison I hope to continue to explore.
This long post only barely skims the surface of all the rich and fascinating land use issues at play in American Indian land tenure. Please consider this an invitation to reach out any time for further discussions on this subject. I would love to continue to engage with more colleagues in this critical subject area and to build more critical learning connections across subject areas and disciplines.
Thanks again for the opportunity to discuss this and other issues here this month.
- Jessica A. Shoemaker
November 30, 2014 in Community Economic Development, Comparative Land Use, Comprehensive Plans, Economic Development, Federal Government, History, Local Government, Planning, Property, Property Rights, Property Theory, Race, State Government, Zoning | Permalink | Comments (0)
Tuesday, November 18, 2014
The municipal elections concluded in British Columbia on Saturday night. As I watched the results roll in for my region of Greater Victoria where we have 13 municipalities and a large unincorporated rural area I was unconsciously tallying what kind of leadership would be at the table over the next four years (this will be the first four year local government election cycle in B.C.) to champion the adoption and implementation of the new Regional Growth Strategy (RGS). The current regional plan, renamed for the current process as the Regional Sustainability Strategy, has been surprisingly successful over the past decade - over 90 percent of new development has occurred within the awkwardly named Regional Urban Containment and Servicing Area - due to a number of factors that include a relatively low rate of growth (just over 1 percent), a provincial agricultural land protection regime that limits development on farmland, rural areas that want to stay rural, urban areas that agree to densify to an extent, and available land within the urban containment boundary for a variety of new uses. Metro Vancouver's Livable Region Strategic Plan and new plan Metro Vancouver 2040: Shaping Our Future mirrors this success in a much faster growing region that is more significantly geographically constrained by oceans, mountains and the agricultural land reserve.
Part 25 of the Local Government Act, enables the local government growth management regime in B.C., the centrepiece of which are these RGS's. As I describe the purpose and effect of RGS I am sure you have heard if before: a regional board may adopt a RGS to guide decisions on growth, change and development. The purpose of a RGS is to “promote human settlement that is socially, economically, and environmentally healthy and make efficient use of public facilities and services, land and other resources” (section 849). A RGS must cover a twenty-year period and must include a comprehensive statement on the future of the region, including the economic, social, and environmental objectives of the governing board in relation to projected population requirements for housing, transportation, regional district services, parks and natural areas, and economic development. It is an agreement between the local governments (municipal and regional) in a region and should work towards a wish list of smart growth goals: avoiding urban sprawl, ensuring development takes place where adequate facilities exist, settlement patterns that minimize the use of the automobile and encourage walking, bicycling and public transit, protecting environmentally sensitive areas, etc. (s.849). Individual municipalities bring their comprehensive plans, called official community plans (OCP), into conformance with a RGS by including a regional context statement in the OCP stating how it will become consistent with the RGS over time (s.866). The bottom line is that these are voluntary plans that have a circuitous impact on local comprehensive plans, which means they are tenuously binding. [And I will not go into the courts' recent treatment of whether or not bylaws are consistent with local and regional plans in this post. I will save that for my next post on the Death of Community Plans].
However, interestingly last time I looked all RGS' in B.C. have urban growth boundaries. They may not be in the right place from a planning perspective, they may simply follow the lines of our provincial agricultural land protection zone, or they may mirror the jurisdictional boundary between private and Crown land, but it seems that the language of urban containment is alive and well in B.C. A line on the regional map that is adopted into each municipal official community plan is also the best type of policy to have in the RGS because it is clear and there is no discretion in its interpretation. Municipalities agree not to extend water or sewer service beyond that urban containment line except where needed to address public health or fire suppression needs.
In contrast, the relatively recent Ontario regime called "Places to Grow" involves provincially-imposed land use plans that were motivated by untenable increases in infrastructure, primarily road, costs in the Greater Toronto region around Lake Ontario. The foundation is the Places to Grow Act, 2005 that allows for the identification and designation of growth plan areas and the development of strategic growth plans. The Growth Plan for the Greater Golden Horseshoe 2006 establishes the modest goal of 40 percent of all residential development occurring annually within designated built up areas, and meeting intensification targets for density based on predicted growth rates for each municipality. Municipalities must achieve intensification and meet intensification targets through their official plans and other documents. The Minister of Public Infrastructure Renewal has established a built boundary for each municipality, and urban growth centres are identified to take much of the new growth.
The growth management regimes in B.C. and Ontario are an interesting long term study in different legal approaches. In B.C. each RGS is an awkward negotiation between urban and rural municipalities that is facilitated by a regional government. One could argue that such a structure would lead to agreement on the lowest common policies. However, whether unwittingly or not, several of the RGS have proven to be remarkably effective in relation to urban containment. In Ontario the provincial government controversially imposes intensification targets and built boundaries in very large regional plans (the Greater Golden Horseshoe is many hundreds of kilometres deep and wide). Although mandatory and imposed by the provincial government, which raises the ire of local councils, the growth management targets are modest. Perhaps I am spoiled with our 90 percent urban containment rate here in Greater Victoria, but in a North American context intensification of 40 percent is seen as a gold standard as evidenced by the American Planning Association awarding the Daniel Burnham Award for a Comprehensive Plan to the Growth Plan for the Greater Golden Horseshoe (apparently the first time the award has been presented to an organization outside the United States).
Tuesday, November 4, 2014
Thank you for the chance to guest post here on the Land Use Prof Blog. As Jessie mentioned, my current research agenda is focused primarily on the intersection of property law and federal Indian law. I’m actively exploring how the unique property frameworks that have been applied in a top-down fashion to American Indian lands over the years have disproportionately limited the abilities of Indian landowners and tribal governments to make flexible and efficient uses of their own resources and how this, in turn, is negatively impacting the health and vibrancy of many indigenous communities today. I’m really looking forward to sharing more of my work on these American Indian land tenure issues and how this all relates to the broader land use theme of this blog over the next month.
In the meantime, though, I’m also just this week participating in some real boots-to-the-ground land use planning work here in Nebraska that may also be of interest to this group (and that I would love comments and feedback on as we go). As Jessie also mentioned, in addition to my more traditional law professor responsibilities at Nebraska, I get to participate in some outreach-oriented work with an actively expanding university-wide effort here called the Rural Futures Institute ("RFI" or the “Institute”). This Institute, though new, has done some really interesting things in a short time (see, for example, recent grant awards and conference proceedings) and is working to be a local, state, regional, and even global leader “for increasing community capacity as well as the confidence of rural people to address their challenges and opportunities, resulting in resilient and sustainable rural futures.” You can read more about RFI’s official mission, vision, and core values here. In my own words, though, I see the Institute as charting new territory in really re-committing to the University’s original land grant purpose and working to create a two-way bridge between the resources of the University as a powerful teaching and research institution and the resources of rural communities, with their own invaluable local knowledge and expertise about both challenges in need of innovative solutions and opportunities that may be expanded and from which important learning can come. RFI focuses on being as community-driven as possible and defines community success broadly (i.e., not just economic indicators but also looking to other critical elements of community life, such as art, culture, health, education, and longterm security and sustainability).
My own view is that land use—and all the complex factors that influence how individual landowners make decisions about using their land and natural resources—is at the crux of a lot of the issues around how we create positive futures for rural landscapes and rural communities. This week I will be exploring that theme directly as I moderate a plenary panel at the Lower Platte River Summit, an event sponsored biannually by the Lower Platte River Corridor Alliance, on Thursday. The theme this year is “Urban Grown – Rural Resiliency.” I’m looking forward to talking to a variety of experts about balancing growth and sustainability along the Lower Platte, with its unique resource issues and mix of urban and rural places. The panel includes local landowners, a water quality and public health professor, a real estate developer, agricultural producers, and a National Park Service program director who helps communities develop recreational trails in places like the Lower Platte River Corridor. I'm also looking forward to the Summit's afternoon bus tour of real properties along the Corridor that raise interesting land use issues, including a farm with a unique set of conservation easements in place and a small town doing its best to bridge its historical traditions with modern development in light of some encroachment pressure from the Omaha metro.
I expect it will all be fantastic fodder for further work and thought, and I look forward to sharing some observations and reactions to the discussions around land use at the Summit this week. However, I also plan to tell you about one other project that I’ve been doing with RFI and that I’ll be using as a discussion tool and interactive exercise at the Summit: a land use simulation “game” we’ve developed called Plainsopoly. Plainsopoly is experienced truly as a game in which participants engage around a large game board image of a hypothetical landscape and roll dice to answer a series of real-world (but still hypothetical) land use visioning challenges. An interdisciplinary group of students and professors from across the University, including from law, natural resources, applied ecology, business, and agricultural economics, helped me develop this as a discussion tool last year, and we worked in conjunction with a group from Birmingham City University in the United Kingdom to adapt Professor Alister Scott's original idea for this kind of planning game (what they call RUFopoly for its focus on the Rural Urban Fringe (i.e., RUF) space in Europe). So far, I’ve only piloted Plainsopoly for the purpose it will be used again this Thursday: as a discussion facilitator at conference-type events. However, it has gotten very positive feedback for its potential to improve stakeholders’ engagement around land use issues, open civil dialogue, and speed participants’ learning around land use management challenges and opportunities. Like my colleagues in the UK, I'm interested in thinking further about whether this kind of tool may have future applications for conflict resolution, consensus building, or even real-world planning and policy development.
I’ll look forward to telling you more about the Summit and about this Plainsopoly exercise over the next week or so and then also to turning to the Indian land tenure issues later in the month.
- Jessica A. Shoemaker
Land Use in Canada - Where "Extensive and Restrictive Land Use Regulation is the Norm" by Deborah Curran
Greetings from Canada where most of the water flows north and there is no Canadian equivalent to the Fifth Amendment. Arguably the biggest difference in land use law between Canada and the U.S. is that we have no constitutionally protected property rights in Canada. Of suprise to many of you and, indeed, to many landowners in Canada, this approach to land use regulation allows provincial and local governments to restrict virtually all use of land without compensating the property rights holder for loss of land value as long as the regulation is in the public interest. As Justice Cromwell of the Supreme Court of Canada reasoned in Mariner Real Estate Ltd. v Nova Scotia (Attorney General), (1999) 177 D.L.R. (4th) 696, 178 N.S.R.(2d) 294 (NSCA) when he was a judge of the Nova Scotia Court of Appeal in a judgment that thoroughly canvassed this area of law (at paras. 41-42):
These U.S. and Australian constitutional cases concern constitutional limits on legislative power in relation to private property. As O'Connor, J. said in the Unites States Supreme Court case of Eastern Enterprises v Apfel 118 S. Ct. 2131 (U.S. Mass. 1998), the purpose of the U.S. constitutional provision (referred to as the "takings clause") is to prevent the government from "...forcing some people alone to bear public burdens which, in all fairness and justice, should be born by the public as a whole." Candian courts have no similar broad mandate to review and vary legislative judgments about the appropriate distribution of burdens and benefits flowing from environmental or other land use controls. In Canada, the courts' task is to determine whether the regulation in question entitles the respondents to compensation under the Expropriation Act, not to pass judgment on the way the Leiglature apportions the burdens flowing from land use regulation.
In this country, extensive and restrictive land use regulation is the norm. Such regulation has, almost without exception, been found not to consitute compensable expropriation.
However, the principle that a government or expropriating entity must pay compensation when expropriating an interest in property is alive and well in Canada. Its foundation rests in the royal perogative, powers bestowed on the Crown or government from the common law, and the common law principle that unless a statute explicitly provides, it is not to be construed as taking away property without just compensation (Attorney General v DeKeyser's Royal Hotel  A.C. 508 H.L.). As a common law principle for which the courts have set a high bar when testing whether regulatory behaviour equals regulatory or de facto expropriation. The claimant must prove that:
1. The legislation or government action must so restrict a landowner's enjoyment of property as to constitute confiscation an interest in property; and
2. That interest in property must be acquired by the Crown (government).
It is the second part of the test that is the hardest to meet. Courts have found that simply benefitting Crown land such as a park is not sufficient to prove acquisition by the Crown.
In many provinces this common law rule is codified in a modified form in provincial land use law. For example, sections 914 of the Local Government Act in British Columbia and 621 of the Alberta Municipal Government Act state that no compensation will be paid for changes in the value of land caused by specified decisions made under a land use bylaw or permitting function. It is only when regulation takes away virtually all incidents of private ownership that the regulation will be found to be improper. The precise wording in British Columbia under s.914 is:
(1) Compensation is not payable to any person for any reduction in the value of that person's interest in land, or for any loss or damages that result from
(a) the adoption of an official community plan or a bylaw under this Division [zoning and other development regulation] or the issue of a permit under Division 9 [development permit] of this part,
(2) Subsection (1) does not apply where the bylaw under this Division rstricts the use of land to a public use.
These regulatory or de facto expropriations are few and far between in Canada. Although we hear about successfully argued "takings" cases in the U.S. courts, in Canada a court has never found land use regulation by a local government to result in a regulatory expropriation for which compensation is owed. See Mariner Real Estate Ltd. v Nova Scotia (Attorney General) 1999 CanLII 7241 (NSCA) for an excellent discussion of this area of law, and Canadian Pacific Railway Co. v Vancouver (City)  1 SCR 227, 2006 SCC 5 for the most recent Supreme Court of Canada discussion in the municipal land use context. Courts have ruled that significantly curtailing development on land that is environmentally sensitive, freezing development, development moratoria, and requirements to plant a vegetated buffer adjacent to a watercourse to protect a drinking water source do not require compensation.
The cases where courts have awarded compensation for loss of an interest in property centre around federal or provincial regulation that essentially prohibits an otherwise existing lawful activity or prevents access to a property right. Several cases in British Columbia award compensation for mineral rights that the provincial government rendered inaccessible upon creating a provincial park [R v Tener [1985 1 SCR 533; Casamiro Resource Corp. v British Columbia (Attorney General), 1991 CanLII 211 (BCCA)]. The classic case is Manitoba Fisheries v The Queen  1 SCR 101 where the court found a de facto expropriation by the federal government when it enacted legislation that created a monopoly in favour of a Crown corporation dealing with a freshwater fishery that removed all economic viability, including the goodwill, of one business.
Before I seal your view of Canada as the quiet socialist neighbour to the north ("What? No constitutionally protected property rights?") I must add that in practice land use regulation by local governments works much the same in Canada as in most parts of the U.S. Zoning typically awards development potential or development rights, and once an application is submitted to a local government that zoning and other regulations vest. Few local governments attempt to curb growth in any comprehensive way. There is little coordination at a regional scale about where new development will occur, and most cities are challenged with revitalization of a formerly industrialized water front or downtown core that has to compete with the big box periphery. Proposals for a slight increase in residential density in existing neighbourhoods result in an eight hour public hearing, and there is, of course, no accounting for municipal bad taste in what was kind of development council believes is in the public interest. Although we have somehow resisted building freeways through most of our urban centres and do have a few somewhat successful provincial growth management or agricultural land protection law in place (more on that this month), the local politics of land use law often favours individual property rights.
If we conducted a poll I would be willing to wager that most Canadians and, in particular, municipal elected officials believe that compensation is owed if development "rights" are taken away by regulation. Most intersting is the fact that the Canadian law of regulatory expropriation has remained unchanged since land use regulation came into vogue yet it is popularly trumped by the law of eminent domain from the U.S. Perhaps telecommunications law has more impact on land use than land use regulation itself.
Tuesday, August 26, 2014
Funds for historic preservation programs, particularly those dealing with identifying, cataloguing, and managing historic resources, are typically slashed when the economy sputters. Right now is such a time. In my previous post, I discussed ARCHES--a free, online, user-friendly, open-source geospatial software system developed by the Getty Conservation Institute and the World Monuments Fund that is purpose-built to inventory and manage immovable heritage to internationally adopted standards. Anyone can downloand and customize ARCHES to suit their needs.
Today I want to discuss a powerful, innovative but cheap technological tool that can aid authorities in their quest to create and/or update their historic resources digital inventory: online crowdsourcing. Simply put, online crowdsourcing allows someone to obtain needed services and/or content by soliciting voluntary contributions from the online public community rather than hiring employees or paying suppliers. Online crowdsourcing has been an extremely effective tool for preserving cultural heritage in many countries. For instance, the National Library of Finland is using online crowdsourcing to index its scanned archives. Similarly, the University of Cape Town in South Africa is using online crowdsourcing to transcribe collections containing the Bushman’s language, stories, and way of life. The National Geographic Society is using online crowdsourcing to analyze millions of satellite images of Mongolia showing potential archaeological sites in the hopes of discovering the tombs of Genghis Khan and his descendants. And an English non-profit organization has utilized online crowdsourcing and online crowdfunding—funds donated by the interested public online—to provide both finances and labor for an expert-led excavation of a Bronze Age causeway composed of millions of timbers in the Cambridgeshire fens. And perhaps most relevant to experiences of local governments in the United States, the City of Los Angeles has created a website, MyHistoricLA.org, that allows citizens to map and submit information about places of cultural importance to them which may not be architecturally significant (and thus escape the purview of preservation officials).
Drawing on the crowdsourcing experience of others, local governments and cities in the United States could create an online portal attached to their own digital inventories, or create an appended website like MyHistoricLA. This portal or website could offer training modules to citizens on cultural heritage recording practices and afterwards ask them to collect and upload descriptive information, statistics, pictures, videos, and maps on historic resources in their neighborhoods. The information uploaded to this portal could be screened and vetted by authorities before permanently adding it to the digital repository, ensuring quality control. In this way, local governments and cities could gather and preserve vast amounts of data related to their cultural heritage in a short period of time and at minimal cost. Furthermore, such a strategy also fosters civic pride, a sense of community, and a deeper, more tangible connection to the city’s past, particularly for younger generations who are adept at using technology. It also offers peace of mind knowing that if and when a disaster occurs that as much cultural heritage as possible has been preserved for future generations.
Wednesday, November 13, 2013
Hanoch Dagan (Tel Aviv) has posted his anthology entry entitled Expropriatory Compensation, Distributive Justice and the Rule of Law in Rethinking Public Interest in Expropriation Law (Mostert & Verstaapen eds., forthcoming 2014). Here's the abstract:
This Essay examines the possible justification for providing less than full (fair market value) compensation for expropriation. One obvious justification applies in cases of public measures, where the burden is deliberately distributed progressively, namely, where redistribution is the desired goal of the public action or, at least, one of its primary objectives. Beside this relatively uncontroversial category, two other explanations are often raised: that partial compensation is justified by reference to the significance of the public interest, even if it is not redistributive, and that it can serve as a means for adjusting the amount of the compensation to the specific circumstances of the case. This Essay criticizes both justifications, arguing that the former is normatively impoverished while the latter affronts the rule of law. The notion of partial and differential compensation, however, can serve as a powerful tool for developing a nuanced expropriation doctrine that serves important property values, and also targets the potentially regressive effects of a uniform rule of full market value. The proposed doctrine draws careful, rule-based distinctions between types of injured property (fungible vs. constitutive) and types of benefited groups (local communities vs. the broader society).
One of the wonderful benefits of participating in the annual gatherings of the Association of Law, Property and Society is the opportunity to emgage with scholars from other countries. A 2011 panel focusing on his book Property: Values and Institutions (Oxford Univ. Press, 2011), which Dean Dagan participated in personally, was one of the best discussions of property theory that I've ever had the chance to hear.
Tuesday, August 13, 2013
Hanoch Dagan (Tel Aviv) has posted Property Theory, Essential Resources, and the Global Land Rush. The abstract:
Recent large scale transnational transfers of land threaten members of rural communities in the developing world who rely for food and shelter on access to land they lack formal title to. Contrary to some of the conventional wisdom, this Essay argues that liberal property theory provides important inroads for addressing this challenge. Properly interpreted, property requires an ongoing (albeit properly cautious) redefinition of existing property institutions as well as the design of new ones, in light of changing circumstances and in response to the liberal property values of personal independence, labor, personhood, aggregate welfare, community, and distributive justice. These property values imply that the new, transnational land market must accommodate a property institution for essential resources that secures the individual and collective rights of pre-existing users. Securing these rights does not require that we reject the logic of competitive markets. Quite the contrary. One promising path for realizing these rights is to strengthen competition through properly designed auctions that ensure the members of local communities choices between outright sale offers and equity investment in local cooperatives.
Looks like another must-read for property theorists!
Monday, July 15, 2013
Michael Burger (Roger Williams) has posted The Last, Last Frontier, a chapter in Environmental Law and Contrasting Ideas of Nature: A Constructivist Appproach (Keith Hirokawa ed., Cambridge University Press) 2013. The abstract:
Increased temperatures associated with global climate change are opening new Arctic territory to oil and gas exploration and clearing passage for new maritime shipping routes. These changes are provoking a diverse range of legal responses in the international arena, where nations are staking new territorial claims and seeking to revise understandings of the Law of the Sea, and in the domestic environmental and maritime laws of Arctic nations. While these events provide evidence of an international competition over natural resources, they also provide a case study in how environmental law and litigation construct and reify dominant ideas of nature. This book chapter examines the particular ways in which the storylines and tropes that constitute the "imaginary Arctic" factor into litigation surrounding Shell Oil's attempts to drill for oil and gas in the Beaufort and Chukchi seas. The Shell litigation is exemplary because it pits a number of well-established storylines against each other: the Arctic as classical frontier, the Arctic as spiritualized frontier, the Arctic as neutral space, the Arctic as homeland, and the Arctic as part of the developing world.
Tuesday, July 9, 2013
The next annual conference of the International Academic
Association on Planning, Law, and Property Rights will be hosted by the Center
for Urban and Regional Studies at the Technion University in Haifa, Israel,
from February 11 - 14, 2014.
Details and the call for papers can be found at: http://plpr2014.net.technion.ac.il/
Please don't hesitate to contact the chair of the host
committee, Rachelle Alterman (firstname.lastname@example.org),
if you have any questions.
I attended this conference in Portland, Oregon this past February and was impressed by the quality and quantity of law and planning faculty from around the world. I hope to attend again next year in Haifa, and highly recommend it to our readers.
Saturday, May 18, 2013
Mark Edwards (William Mitchell) has posted The Paradoxes of Restitution, forthcoming in the West Virginia Law Review. The abstract:
Restitution following mass dispossession is often considered both ideal and impossible. Why? This article identifies two previously unnamed paradoxes that undermine the possibility of restitution.
First, both dispossession and restitution depend on the social construction of rights-worthiness. Over time, people once considered unworthy of property rights ‘become’ worthy of them. However, time also corrodes the practicality and moral weight of restitution claims. By the time the dispossessed ‘become’ worthy of property rights, restitution claims are no longer practically or morally viable. This is the time-unworthiness paradox.
Second, restitution claims are undermined by the concept of collective responsibility. People are sometimes dispossessed because collective responsibility is unjustly imposed on them for wrongs committed by a few members of a group. But restitution may require the dispossession of innocent current occupiers of land – thus imposing a type of collective responsibility on them. Therefore, restitution can be seen as committing the very wrong it purports to right. This is the collective responsibility paradox.
Both paradoxes can be overcome, but only if we recognize the rights-worthiness of others before time fatally corrodes the viability of restitution. We must also draw a careful distinction between the imposition of collective rights-unworthiness, which results in the mass dispossession of others, and the voluntary acceptance of collective responsibility, which results in the restitution of others.
After developing these ideas, the article examines them in the context of a particularly difficult and intractable case of dispossession and restitution. It draws upon interviews with restitution claimants whose stories reveal the paradoxes of restitution.
Thursday, April 11, 2013
Greetings from George Washington Law School where the 2013 J.B. and Maurice C. Shapiro Conference is wrapping up. Entitled Laying the Foundation for a Sustainable Energy Future: Legal and Policy Challenges, there has been an impressive array of panelists from industry, governements, NGOs, and academia.
My co-athour Amy Morris (of Aspen Environmental Group) and I presented some of our work on the land use tradeoffs involved in renewable energy projects. We have been looking at these issues through the lens of solar projects in California, but the issues come up in many contexts. To give you some broad strokes of the project: In California, we see development of main types of projects--utility scale and distrbuted generation. The large utility-scale solar facilities in the California desert have been under heavy scrutiny and criticized for their potential impacts on environmental and cultural values. In an effort to avoid pristine desert ecosystems, agencies and environmental groups have been championed the use of distrubed lands. Such lands are not completely controversy-free either. As a threshold question, we have to figure out what lands should qualify as "distrurbed." In some cases, it may be that we are too quick to label something as disturbed. Generally though the big categories are brownfields, former landfills and mines, hardscapes (parking lots and rooftops), and marginal agricultural lands. I won't get into here, but trust me each of those categories has a host of issues surrounding its use.
I've been feeling a little out of my league as the land use lawyer in the midst of the energy experts but have learned a lot and have been impressed with GW's organization of the conference. I also really enjoy attending conferences in Washington DC where the audience is always filled with a great mix of people from agencies and nonprofits.
- Jessie Owley
Monday, March 25, 2013
Marc Poirier (Seton Hall) has posted Brazilian Regularization of Title in Light of Moradia, Compared to the United States’ Understandings of Homeownership and Homelessness, __ U. Miami Inter-Am. L. Rev. ___ (forthcoming). Here's the abstract:
This Essay considers the cultural resonances of regularization of title (regularização) for homeownership in the favelas of Rio de Janeiro. It compares those resonances to the cultural meaning of homeownership in the United States. Brazil’s approach is informed by an understanding of moradia, a right to dwell someplace, that is a far cry from its typical English translation as a right to housing. Brazil also draws on constitutional provisions and a long Latin American tradition concerning the social function of property, as well as a general theoretical understanding of the right to the city and of cidadania, a certain kind of citizenship. All of these frames construct homeownership as a gateway to interconnection and full participation in the life of the city. This is distinctly different from the individualistic cast of the prevailing understanding of homeownership in the United States, as personal success and the achievement of wealth, status, and a private castle.
The Essay also considers the standard United States construction of homelessness, which again tends to frame the issue in terms of individual responsibility or blame or of the role of institutional structures as they affect individuals, and typically fails to recognize the effect of having no property on relationships and interconnectedness and ultimately citizenship. The Essay advances five reason for the differences between Brazilian and United States understandings of homeownership. These include very different histories concerning the distribution of public lands; the absence in United States property jurisprudence of anything like the notion of a social function of property; the physical invisibility of informal communities in the United States; United States jurisprudence’s rejection of vague, aspirational human rights claims as law; and an insistence in United States jurisprudence on legal monism and an abstract, universalizing account of property ownership that valorizes one-size-fits-all law rather than case-by-case accounts of how land and dwellings are managed by various local communities.
Finally, the Essay observes a recent groundswell of United States scholarship that debunks “A own Blackacre” as an adequate account of the ownership of land and homes, insisting on a more race- and class-informed account as to both the history of homeownership and possible solutions for providing secure dwelling for the poor. The Essay recommends a convergence of studies of informal communities worldwide with a more nuanced, race- and class-informed understanding of homeownership.
Wednesday, March 13, 2013
Namita Wahi has posted Land Acquisition, Development, and the Constitution, Seminar Magazine, Feb. 2013. The abstract:
In this article,
I argue that the debates surrounding the adoption of a fundamental right to
property in the Constitution were centred around the somewhat paradoxical desire
to achieve a liberal democratic legal order which guaranteed the rights to
liberty, equality and property, while simultaneously embarking on a
transformation of the economic and social order considered imperative to prevent
a revolution. This transformation was pegged on a development strategy involving
a move from a feudal agrarian to a capital intensive industrial society. A major
component of this transformative agenda was land reform, involving zamindari
abolition abolition and redistribution of land among the peasants. Equally
important, however, was state planned industrial growth and encouragement of
growth of private industry.
The article goes on to assess the history of land acquisition laws in this country against this backdrop. In particular, it analyses the key features of the Land Acquisition Act, 1894, including the major problems with its implementation. It then analyses the proposed Land Acquisition Rehabilitation and Resettlement Bill, with a view to determining the extent to which the bill addresses the problems with the Land Acquisition Act, 1894. Finally, the article describes the special constitutional provisions for the Scheduled Areas as contained in the Fifth and Sixth Schedules and analyses to what extent the LARR bill is compliant with existing constitutional guarantees.
Saturday, November 17, 2012
Yesterday, Case Western Reserve University School of Law hosted a symposium called The Law and Policy of Hydraulic Fracturing: Addressing the Issues of the Natural Gas Boom. As Steve noted on Property Prof, Professor Thomas Merrill (Columbia) was slated to give the keynote. Case Western's Jonathan Adler was part of the event, and he posted an extensive commentary on Merrill's remarks over on the Volokh Conspiracy. Looks like it was a fascinating talk with lots of observations on how to deal with the potential environmental impacts of fracking, and a perhaps counterintuitive suggestion on the possible upside of the gas boom with respect to climate change. But here, I'll focus on some of Merrill's observations on why fracking developed in the U.S., because it may have a lot to do with property law and land use regulation. As Adler describes:
Why did fracking arise in the United States? Contrary to some analysts, Professor Merrill does not believe it is attributable to federally funded research and development. . . .
Professor Merrill also doubts industry structure has much to do with fracking’s rise either. . . .
A more likely factor is the way U.S. law treats subsurface rights. The U.S. is something of an outlier in that subsurface minerals are the property of the landowner, and not the government. This results in decentralized ownership and control over subsurface rights facilitates experimentation and innovation in figuring out how to exploit and manage subsurface resources.
Further decentralization, and experimentation, results from the federalist regulatory structure. Different states have different regulatory approaches than others, creating opportunities for further innovation and the opportunity for jurisdictions to learn from one another. The existence of a few jurisdictions that will allow a new technology to be tried provides a laboratory from which others may learn, whereas under a more centralized regulatory structure such innovation is unlikely to get off the ground.
The existence of a relatively open infrastructure network – a pipeline system that is subject to common-carrier rules – also plays a role in facilitating entry into the market. These factors have a common theme: decentralization. Taken together, Merrill suggests, they are the most likely source of fracking’s rise in the United States.
Looks like another fascinating event, with participation from a number of land use, environmental, and energy scholars on the subsequent panels. I look forward to the symposium isse in the Case Western Law Review.
November 17, 2012 in Clean Energy, Climate, Comparative Land Use, Conferences, Environmental Law, Environmentalism, Federal Government, Lectures, Oil & Gas, Property, Property Rights, Scholarship, Water | Permalink | Comments (2) | TrackBack (0)
Tuesday, October 30, 2012
J. Mark Ramseyer (Harvard) has posted The Fable of Land Reform: Expropriation and Redistribution in Occupied Japan. The abstract:
reform will not just reduce rural poverty, write development officials.
It can raise productivity. It can promote civic engagement. Scholars
routinely concur. Land reform may not always raise productivity and
civic engagement, but it can - and during 1947-50 in occupied Japan it
This account of the Japanese land reform program is a fable, a story officials and scholars tell because they wish it were true. It is not. The program did not hasten productivity growth. Instead, it probably retarded it. The areas with the most land transferred under the program did not experience the fastest rates of productivity growth. They experienced the slowest.
Land reform reduced agricultural growth rates by interfering with the allocation of credit. A tenancy contract is a lease, and a lease is a capital market transaction. By precluding the use of leases, land reform effectively increased the cost of capital, reduced the amount of credit, and reduced the accuracy with which investors could target that credit. Banks provide an obvious alternative source of credit -- and post-land-reform, the areas with the fastest growth rates were those areas with the best access to those banks.
The fable of land reform rests on a fictitious account of pre-war Japan. Scholars assume tenancy rates reflected poverty levels. They did not. Instead, they reflected levels of social capital. Leases were not most common in the poorest communities. Given their character as capital market transactions, they were most common in those communities where investors could turn to social networks to induce farmers to keep their word.
Thursday, August 23, 2012
“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.
Sunday, August 19, 2012
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.
Friday, August 17, 2012
Tessa Davis (Tulane) has posted Keeping the Welcome Mat Rolled-Up: Social Justice Theorists’ Failure to Embrace Adverse Possession as a Redistributive Tool, Journal of Transnational Law & Policy, Vol. 20, p. 73, 2010. The abstract:
J.A. Pye (Oxford) Ltd.and another v. Graham and another (Pye), a recent U.K. case, raised the question of whether adverse possession may violate a human right to own property. The case implicated the then recent bringing adverse possession into the human rights realm. Yet, a review of the case as it moved through the U.K. courts and the European Court of Human Rights reveals, however, that courts have not embraced a consideration of adverse possession as playing a role in substantive human rights or social justice concerns. This is due, in part, to the dearth of human rights and social justice scholarship on the doctrine. Though human rights and social justice theorists have failed to fully develop the doctrine, their theories lay the groundwork for utilizing adverse possession as a tool to fashion new property systems. Utilizing adverse possession as a social justice tool can help foster systems with widespread property distribution while actively recognizing and supporting human rights of both owners and those seeking ownership.
Just today I witnessed a spirited discussion of adverse possession law, so its good to see some writing on the theory.
Thursday, August 16, 2012
Foreign Policy recently has published its Special Report "Cities Issue." While the issue is themed on urban affairs generally, its articles coalesce around the amazing urban development taking place in China. From the website intro:
Our special issue dedicated to the cities of the future has its eye squarely toward China, because the cities of the future are increasingly going to be speaking Mandarin -- even more than you realize. It's no longer news that China has embarked on the largest mass urbanization in history, a monumental migration from country to city that will leave China with nearly a billion urbanites by 2025 and an astonishing 221 cities with populations over 1 million. But this isn't just about size: It's about global heft. And that's where the scale of China's transformation into a world leader is truly astonishing. In an exclusive index for FP, the McKinsey Global Institute has run the numbers to produce what we're calling The 75 Most Dynamic Cities of 2025 -- an extraordinary 29 of which are in China. Some are already global powers, from top-ranked Shanghai to manufacturing dynamo Shenzhen; others, from Fuzhou to Xiamen, were little more than provincial backwaters in the 20th century but look to be household names in the 21st, powering the global economy not just through their sheer size but also through their urban innovation and pulsing drive. Europe, meanwhile, will manage only three cities on the list by 2025; the United States finishes second to China -- a very distant second -- with 13. Still think that debate about Western decline is overblown?
There are a whole bunch of interesting articles at the website. Just one that I'll highlight is New Urbanism pioneer Peter Calthorpe's Weapons of Mass Urban Destruction: China's Cities are Making the Same Mistake America Made on the Path to Superpower Status. Again, there's a whole lot of interesting analysis at the FP Cities Issue website.
Sunday, August 12, 2012
Eduardo M. Penalver (Cornell) has posted The Costs of Regulation or the Consequences of Poverty? Progressive Lessons from De Soto, which is a chapter from the book Hernando de Soto and Property in a Market Economy, (D. Benjamin Barros ed.), Ashgate, 2010. Penalver's abstract:
Commentators have often characterized Hernando de Soto's advocacy of formalization of title for landless squatters as right-wing. And de Soto seems to understand himself as an advocate of individual property rights and free markets. But his analysis of informality and redistribution has a subtext with potentially progressive implications. Although de Soto sometimes reflexively attributes informality to overregulation, informality can always also be characterized as the consequence of being too poor to afford regulated goods. Indeed, for any particular regulation that puts the regulated good out of reach of the poor, we can either attribute this consequence to the cost of the regulation or to the consequences of a distribution of wealth that makes the regulated good unaffordable to those at the bottom. Thus, if the regulation is a good one, its effect on price, and therefore on informality, may argue in favor of keeping the regulation but redistributing purchasing power to blunt its pernicious impact on informality. What we need is a way of evaluating regulations that goes beyond merely observing their impact on the cost of goods and, indirectly, on the prevalence of informality. Specifically, we need to be able to evaluate four different possibilities: (1) regulation with redistribution to offset the impact of the regulation on the poor; (2) regulation without redistribution with its attendant increase in informality; (3) redistribution without regulation; and (4) no redistribution and no regulation. Choosing among these options is the domain of applied political theory. The choice is a far more complicated and demanding task than merely observing that regulation without redistribution increases informality.
All of the contributions to the 2010 Barros-edited volume on DeSoto are extremely interesting and thought-provoking. Penalver's essay, just now posted on SSRN, pushes us to consider the property theory beyond the traditional political characterizations of DeSoto's ideas.
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