Tuesday, November 4, 2014

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 [1920] 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) [2006] 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 [1979] 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.

November 4, 2014 in Comparative Land Use, Constitutional Law, Development, Eminent Domain, Local Government, Planning, Property, Property Rights, Takings, Zoning | Permalink | Comments (0)

Friday, April 18, 2014

Alexander on Property's Ends

Greg Alexander (Cornell) has posted Property's Ends: The Publicness of Private Law Values, 99 Iowa L. Rev. 1257 (2014).  Here's the abstract:

Property theorists commonly suppose that property has as its ends certain private values, such as individual autonomy and personal security. This Article contends that property’s real end is human flourishing, that is, living a life that is as fulfilling as possible. Human flourishing, although property’s ultimate end, is neither monistic or simple. Rather, it is inclusive and comprises multiple values. Those values, the content of human flourishing, derives, at least in part, from an understanding of the sorts of beings we are ― social and political.  A consequence of this conception of the human condition is that the values of which human flourishing is constitutive ― property’s ends― are public as well as private. Further, the public and private values that serve as property’s ends are mutually dependent for their realization. Hence, any account of property that assigns it solely to the private sphere, categorically removed from public values, is incoherent.

Jim K.

April 18, 2014 in Constitutional Law, Property, Property Rights, Property Theory, Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Monday, March 24, 2014

Festa on Property and Republicanism in the Northwest Ordinance

Our own Matt Festa (South Texas) has posted his new article, Property and Republicanism in the Northwest Ordinance, 45 Ariz. St. L. J. 409 (2014).  Here's the abstract:

Property rights were central to the political ideology of the founding era. The Northwest Ordinance of 1787 shows how the concept of property was part of both the liberal and the republican narratives of the revolutionary and constitutional eras. Conventional wisdom holds that property rights were key to the liberal argument, but that they must yield to the common good in the civic republican view. This Article shows that property was a key concept to both the liberal and republican ideologies at the founding by analyzing a critically important, but relatively neglected, founding document: the Northwest Ordinance.

The Northwest Ordinance -- one of the four most important American founding documents -- established governance in the unorganized territories of the new nation, and provided the blueprint for admitting new states to the union. A close reading of the Ordinance shows that it is fundamentally concerned with property rights, but is also thoroughly republican in character. It provides numerous rules about property ownership, in terms of inheritance, transactions, and political participation. It contains individual-rights precursors to the Constitution’s property clauses, including direct historical links to the Contracts Clause and the Takings Clause. It also envisions the role of property in an expanding republic. The property rights provisions in the Northwest Ordinance reflect a concern for not only individual liberty, but also for the promotion of the common good, through a virtuous society of individual property owners. The Northwest Ordinance shows that both the liberal and the republican narrative of the founding era rely on a fundamental consideration for individual property rights.

Jim K.

March 24, 2014 in Constitutional Law, Property Rights, Property Theory, Takings | Permalink | Comments (0) | TrackBack (0)

Thursday, January 23, 2014

Is a Right-of-Way an Easement?

Turning old railroad lines into parks and bike paths seems like a great idea. When it results in things like NYC's Highline Park who can complain, but not everyone is happy about these rail to trail projects. In fact, it is the subject of a case currently pending before the Supreme Court. (This is not a case under the Rails-to-Trails Act but implicated perhaps thousands of miles of trails that came from rails).

Marvin Brandt is upset about the bike trail built by the Forest Service on an abandoned railway through his land. Brandt argues that the when the railroad abandoned the government-issued right-of-way, the feds did not have the right to create a new right-of-way in the form of the trail.

The tricky issue here is determining what exactly a railroad right-of-way is. When I hear the term ROW, I envision an easement. But as we all know there are some things out there that sound like easements but aren’t actually easements. The government argues here that these railroad ROWs were not easements in the traditional sense. However, nor were they fee simple strips of land given to the railroad. Instead they are some third category of property law that no one can quite figure out how to define. A surface defeasible fee subject to a reverter perhaps? Let’s break it down.

If it’s an easement: The federal government gives the railroad an easement through public land. The common law rules of easements apply. This means that when the railroad abandons the track in the 1980s (or whenever it was), the easement is extinguished and full unencumbered fee simple title goes back to the underlying landowner. This particular parcel is no longer federal land because the Forest Service swapped it with the Brandt family. Traditional run of the mill easement law tells us that the Brandt family (owner of the servient estate) should have this land with no dominant easement holder left around to bug them (or ride bikes through their property). This is what Brandt’s attorney argues. Not argued, but hinted at by Justice Sotomayor is that the easement holder was really the US and it temporarily transferred its easement rights to the railroad. Now that the railroad is done, it can keep using the easement for similar (transportation) uses through the Forest Service bike trail.

If it was a patent (i.e., fee simple absolute): The federal government gave the railroad a strip of land and the railroad owned that strip (or spaghetti noodle as the court seemed to like envisioning it). This would mean that the railroad owns the land for any purpose and once it stops using the railroad tracks for trains, it could use them for something else or it could sell them to the underlying landowner (or lose ownership via adverse possession if it stands by and does nothing while the forest service or underlying landowner makes use of the land). No one actually argues that the railroad had an unrestricted fee simple though. Instead, it might be that they had a type of defeasible fee (starting to give you flashbacks of your 1L property class yet?). That’s right, the railroad had a fee interest subject to the possibility of reverter. That is, the federal government had a reversionary interest and would get the land back if the railroad stopped using it for railroad purposes.

Now of course, it is not as simple as just reading over the grant to the railroad and figuring out what it said. Instead, we have several wrinkles. For example, there is an 1922 Act (postdating the grant to the railroad) explaining that when the railroad stops using the land for railroad purposes and it reverts to the feds, the feds should first use the land for roads and streets, then consider giving to municipalities, and if that doesn’t pan out give the land to neighboring landowners. There is a more recent statute adjusting that order of priority, but these statutes sure make it sound like the US had a reversionary interest. Of course, Justice Scalia pointed out that he doesn’t care very much about how a subsequent Congress interpreted the railroad’s property right. He is only interest in looking at the 1875 Act enabling grants of ROWs the railroad to try and figure out the property right.

There are some cases muddying the water including a 1942 case interpreting the 1875 Act, concluding that the railroad in question there had not gotten subsurface rights and instead had gotten something akin to an easement.  

There is also the tricky part of the land conveyance to the Brandts. The Forest Service swapped some land with Brandt’s father back in 1976. While the land conveyance noted the railroad’s ROW, it did not mention any reversionary interest. Leading the Brandts (quite reasonably) to believe that the ROW was just a standard run of the mill easement. Can an underlying federal law be in trouble where the forest service neglected to mention it in a land conveyance? Perhaps Brandt’s property lawyer should have researched more and tried to determine what was really going on…

The oral argument in this case is fun for land geeks, especially those of us who teach or study property and/or federal lands. The Court seemed particularly interested in figuring out how much lands the feds own and how much has been converted to other uses -- and what the implications of allowing such reversions would be. Several justices pushed the parties to try and explain how many acres or how many landowners were at stake. No one dared to put forth an estimate. I actually laughed out loud when the justices were shocked that the federal government didn’t keep good track of its land holdings and dispersals. They are so cute sometimes.

 

January 23, 2014 in Caselaw, Constitutional Law, Federal Government, Property, Servitudes, Supreme Court, Takings | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 13, 2013

Dagan on Justifications for Undercompensation in Eminent Domain

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. 

Jim K.

November 13, 2013 in Comparative Land Use, Constitutional Law, Property, Property Rights, Property Theory, Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Sunday, September 8, 2013

Fennell on Lee's Eminent Domain as Just Undercompensation

Lee Fennell (Chicago) critiques and enhances Brian Lee's Columbia Law review article entitled Just Undercompensation: The Idiosyncratic Premium in Eminent Domain, blogged about here earlier this summer.  In her concise on-line response, Just Enough, 133 Colum. L. Rev. Sidebar 109 (2013) (pdf here), Fennell moves through the positive and normative aspects of the tripartite analysis of how Fair Market Value (FMV) purportedly fails to fully compensate property owners whose interests are liquidated through eminent domain proceedings.  As she lays it out in her intro:

Like other scholars, I have previously observed that the FMV measure of compensation leaves an increment of value uncompensated:

The uncompensated increment is made up of three distinct components: (1) the increment by which the property owner’s subjective value exceeds fair market value; (2) the chance of reaping a surplus from trade (that is, of obtaining an amount larger than one’s own true subjective valuation); and (3) the autonomy of choosing for oneself when to sell.

Lee argues that appropriate amounts of both subjective value and the chance of gains from trade are included in FMV, leaving only interference with autonomy categorically uncompensated in a manner that would implicate fairness concerns. This Part focuses only on the positive question of what does and does not get included in FMV, leaving the normative questions to the next Part. Part I.A considers subjective value and Part I.B turns to the last two components of the “uncompensated increment.”

Even after demonstrating, contra Lee, that existing owners' subjective attachments are not necessarily baked in to market valuations, she helps out by showing that a prevalence of rooted homeowners together with zoning-induced supply contraints might support the kind of extended sellers' market that diminishes the difference between market prices and the reservation prices of most homeowners. 

Jim  K.

 

September 8, 2013 in Constitutional Law, Eminent Domain, Judicial Review, Property, Property Rights, Property Theory, Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 4, 2013

Singer's Keynote on Property, Poverty and Immigration in a Free and Democratic Society

I hope many of you attended the AALS Workshop on Property, Poverty and Immigration this past summer in San Diego.  For those of us who couldn't (or did, but just weren't taking copious notes), the keynote speaker, Joseph William Singer (Harvard), has posted his talk entitled Titles of Nobility: Property, Poverty, and Immigration in a Free and Democratic Society.  Here's the abstract:

Both property and immigration are premised on exclusion yet both human rights and democratic norms require us to treat every human being with equal concern and respect. While neither sovereigns nor owners can have completely open borders, they have obligations to respect the human dignity of "the stranger." Biblical sources link the stranger with the poor and develop a version of the Golden Rule that requires both to be accorded "love." The related secular principle of equal concern and respect means that poverty is, in principle, incompatible with the norms of a free and democratic society. That principle is embodied in the constitutional prohibition on titles of nobility which mandates treating every human being as of equal value and importance. While the nobility clauses do not mandate particular policies, they do outlaw treatment that places some as occupying a lower status than others.This has consequences for both immigration and property law, as well as laws and policies designed to alleviate and prevent poverty.

Jim K.

September 4, 2013 in Affordable Housing, Constitutional Law, Property, Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

Saturday, August 31, 2013

Echeverria's Take on Koontz

John Echeverria (Vermont) has just this week posted Koontz:  The Very Worst Takings Decision Ever?.  In it, he takes on both of the U.S. Supreme Court's holdings in its most recent land use decision and spells out how they will inhibit development planning discussions at the local level.  Here's the abstract:

This article argues that Koontz v. St. Johns River Water Management District, the most widely discussed of the Supreme Court’s takings trilogy in the 2012-13 term, represents a major, unprincipled break from prior law and casts an unfortunate pall of confusion and uncertainty over takings doctrine, partly reversing the Court’s recent, successful effort to make takings doctrine more coherent and predictable. The Court ruled that the relatively heightened standard of judicial review established by the Supreme Court for so-called “development exactions” in Nollan v. California Coastal Commission and Dolan v. City of Tigard applies both (1) when the government denies a development permit after the developer rejects a government demand for an exaction as a condition of project approval, and (2) when a permit condition requires a developer to pay or expend money to mitigate project impacts. In so ruling, the Court rejected the position that claims challenging such government orders should be evaluated under either the Court’s relatively forgiving regulatory takings analysis or deferential due process analysis.  Justice Elena Kagan wrote a dissent for herself and three other justices, arguing that the case did not involve an actual demand triggering Nollan and Dolan and that the standards established by those cases do not apply to permit conditions requiring the expenditure of money. This article contends that the Koontz decision is one of the worst decisions, if the not the worst decision, in the pantheon of Supreme Court takings cases. In doctrinal terms, the majority opinion flagrantly contradicts or ignores established precedent, fails to acknowledge its departure from prior law, and does not attempt to offer any new, coherent justifications for its novel holdings. As a practical matter, the decision creates a perverse, wasteful incentive for local officials to decline to work cooperatively with developers in designing projects that make business sense and protect the interests of the community.  Finally, the decision injects new uncertainty into takings law, setting the stage for future debates over the legitimacy and appropriate scope of intrusive judicial review of local land use decision-making, including whether local governments retain the authority to reject development proposals based on unacceptable project impacts without triggering stringent judicial review. 

Jim K.

August 31, 2013 in Community Economic Development, Constitutional Law, Environmental Law, Impact Fees, Planning, Property, Property Rights, Property Theory, Scholarship, Takings, Zoning | Permalink | Comments (0) | TrackBack (0)

Friday, August 23, 2013

Iglesias on the Legality of Local Inclusionary Zoning Ordinances

Tim Iglesias (USF) has recently published Framing Inclusionary Zoning: Exploring the Legality of Local Inclusionary Zoning and its Potential to Meet Affordable Housing Needs, 36 No. 4 Zoning and Planning Law Report 1 (2013).  The Report is a West publication, so even if you cannot find the piece on SSRN or bepress, it is available here at Westlaw (login required). Apart from clicking on the link, you can copy the citation above into the Find By Citation box on the Westlaw sidebar.

Tim's briefly examines how opponents and supporters have attempted to frame various kinds of inclusionary zoning ordinances as land use regulation, exactions, rent control or something distinct from all three.  His review of leading cases on the validity of local inclusionary zoning measures looks at each of the three frames in turn, with the latter two involving state preemption as well as constitutional issues. 

I don't plan on returning to the Land Use Planning course for a few semesters, but I recommend this piece as supplemental reading for students trying to get their heads around the legal vulnerability of inclusionary zoning ordinances, particularly in the wake of Koontz.

Jim K.

August 23, 2013 in Affordable Housing, Constitutional Law, Inclusionary Zoning, Local Government, Scholarship, Smart Growth | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 9, 2013

Professor's Corner on Koontz

This month's ABA Real Property "Professors' Corner" teleconference will focus on Koontz, the end-of-Term exactions that is one of the most significant Supreme Court property-rights cases in recent years.  (Jessie Owley has discussed it here, and Tim Mulvaney and others have weighed in around the net).  This Professor's Corner session should be a good one with several leading scholars participating.  Here's the announcement:

Professors’ Corner:  Wednesday, July 10, 2013:  Koontz v. St. John’s River Water Management District:  A Significant Victory for Property Rights?

Professors’ Corner is a monthly free teleconference sponsored by the ABA Real Property, Trust and Estate Law Section's Legal Education and Uniform Laws Group. Each month’s call features a panel of law professors who discuss recent cases or issues of interest to real estate practitioners and scholars.   Members of the AALS Property Section are invited to participate in the call (as well as to join and become involved in the ABA Real Property, Trust and Estate Law Section).

Wednesday, July 10, 2013

12:30 p.m. Eastern time (11:30 a.m. Central, 9:30 a.m. Pacific). Call is ONE HOUR in length.

Call-in number: 866-646-6488

Passcode: 5577419753

This program will feature a roundtable discussion breaking down the Supreme Court’s important June 25 decision in Koontz v. St. John’s River Water Management District. If “monetary exactions” have always seemed a little untamed to you, you’re not alone. The 5-4 decision in Koontz leaves a lot of room for analysis, and this month’s panel is prepared to guide you through it by parsing the decision and the dissent.  Our distinguished panel will include Professor Jonathan H. Adler, who is the Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation at Case Western Reserve University School of Law; John D. Echeverria, Professor of Law at Vermont Law School; and David L. Callies, who is the Benjamin A. Kudo Professor of Law at the University of Hawai’i. 

For those that haven’t already seen it, here’s a link to the opinion:

http://www.supremecourt.gov/opinions/12pdf/11-1447_4e46.pdf

Please join us Wednesday for this great program!

Matt Festa

July 9, 2013 in Caselaw, Conferences, Conservation Easements, Constitutional Law, Environmental Law, Federal Government, Property Rights, Scholarship, Supreme Court, Sustainability, Takings, Wetlands | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 19, 2013

Lee on Eminent Domain's Just Undercompensation

Brian Lee (Brooklyn) has posted Just Undercompensation: The Idiosyncratic Premium in Eminent Domain, 113 Colum. L. Rev. 593 (2013).  Lee presents an interesting challenge to recent scholarship recognizing "confiscation of the uncompensated increment" to use Lee Fennell's terminology.  The article does not reject above-market compensation altogether but instead criticizes premium approaches for redistributing wealth to the already well-off.  Here's the abstract:

When the government exercises its power of eminent domain to take private property, the Fifth Amendment to the U.S. Constitution requires that the property's owners receive "just compensation," which the Supreme Court has defined as equal to the property’s fair market value. Today, a well-established consensus exists on three basic propositions about this fair market value standard. First, the standard systematically undercompensates owners of taken property, because market prices do not reflect owners' personal valuations of particular pieces of property. Second, this undercompensation is unfair to those owners. And third, an appropriate way to rectify this problem is to add fixed-percentage bonuses to the amount of compensation paid. Several states have recently enacted laws requiring such bonuses, and prominent academics have endorsed their adoption. This Article, however, argues that all three of these widely accepted propositions are false. First, examining the economics of market-price formation reveals that fair market value includes compensation for more subjective value than previously recognized. Second, much of what market value leaves uncompensated should not, in fairness, receive compensation. Third, although justice may require paying compensation above fair market value in certain situations, this Article argues that the solution favored by academics and recent state legislation is itself unjust, undermining the civic and moral equality of rich and poor property owners by relatively overcompensating the rich while undercompensating the poor for losses which have equal value to rich and poor alike. The Article concludes by showing how an alternative approach can avoid these fairness problems.

Jim K.

June 19, 2013 in Constitutional Law, Eminent Domain, Property, Property Rights, Property Theory, Redevelopment, Scholarship | Permalink | Comments (0) | TrackBack (0)

Saturday, May 18, 2013

Stern on State Legislative Checks and Judicial Takings

Here's another recently-posted paper from Stephanie Stern (Chicago-Kent): Protecting Property Through Politics: State Legislative Checks and Judicial Takings, forthcoming in the Minnesota Law Review.  The abstract:

In the 2010 Supreme Court case Stop the Beach Renourishment v. Florida Department of Environmental Protection, a plurality of the Court launched judicial takings in political and scholarly debate and laid the groundwork for expanding the Fifth Amendment to encompass court decisions. This Article explores a neglected institution in the debate over judicial takings — state legislatures. In the comparatively rare instances when state courts overreach, state legislatures can revise state court decisions and restore private property rights. Through case studies of state legislative checks of judicial activism, I examine the comparative institutional advantages, and the potential gaps, of situating primary responsibility for state court revision in state legislatures. In view of takings federalism and the costs of judicial takings, I contend that the existing balance of state legislative checks and state court restraint works well enough to police against state court property activism.

Matt Festa

May 18, 2013 in Caselaw, Constitutional Law, Eminent Domain, Judicial Review, Politics, Property Rights, Property Theory, Scholarship, State Government, Supreme Court, Takings | Permalink | Comments (0) | TrackBack (0)

Thursday, April 18, 2013

Rose on the History of Racially Restrictive Covenants

Carol Rose (Yale & Arizona) has posted Property Law and the Rise, Life, and Demise of Racially Restrictive Covenants, which is available in the 2013 edition of Powell on Real Property.  Here's the abstract:

This article was given as the 6th Annual Wolf Family Lecture on the American Law of Real Property, University of Florida Levin College of Law (2013). It draws on property law discussions in Richard R.W. Brooks and Carol M. Rose, Saving the Neighborhood: Racially Restrictive Covenants, Law, and Social Norms (Harvard Univ. Press 2013). The article outlines the ways in which constitutional law and property law engaged in a dialog about white-only racial covenants from their early twentieth-century origins to the middle of the twentieth century and beyond. After a shaky beginning, both constitutional law and property law became relatively permissive about racial covenants by the 1920s. But proponents of racial covenants had to work around property law doctrines — including seemingly arcane doctrines like the Rule Against Perpetuities, disfavor to restraints on alienation, "horizontal privity," and "touch and concern." Moreover, property law weaknesses gave leverage to civil rights opponents of covenants, long before Shelley v. Kraemer (1948), the major constitutional case that made these covenants unenforceable in courts. Even after Shelley's constitutional decision, property law continued to be a contested area for racial covenants, with echoes even today.

Jim K.

April 18, 2013 in Constitutional Law, Property, Race, Scholarship, Servitudes, Supreme Court | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 13, 2013

Wahi on Land Acquisition, Development, and the Constitution in India

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.  

Matt Festa

March 13, 2013 in Comparative Land Use, Constitutional Law, Property Rights, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, March 7, 2013

Sawers on History, Fourth Amendment Searches, and the Right to Exclude

Brian Sawers (Maryland) has posted Keeping Up with the Joneses: Making Sure Your History Is Just as Wrong as Everyone Else's, forthcoming in Michigan Law Review First Impressions, Vol. 111, p. 21 (2013).  The abstract:

Both the majority and concurring opinions in United States v. Jones are wrong about the state of the law in 1791. Landowners in America had no right to exclude others from unfenced land. Whether a Fourth Amendment search requires a trespass or the violation of a reasonable expectation of privacy, government can explore open land without a search warrant.

In the United States, landowners did not have a right of action against people who entered open land without permission. No eighteenth-century case shows a remedy for mere entry. Vermont and Pennsylvania constitutionally guaranteed a right to hunt on open land. In several other states, statutes regulating hunting implied a public right to hunt on (and, by implication, enter) unfenced land.

Matt Festa

March 7, 2013 in Caselaw, Constitutional Law, Crime, History, Property Rights, Scholarship, Supreme Court | Permalink | Comments (0) | TrackBack (0)

Owen on Taking Groundwater

Dave Owen (Maine) has posted Taking Groundwater.  The abstract:

In February, 2012, in a case called Edwards Aquifer Authority v. Day, the Texas Supreme Court held that landowners hold property rights to the groundwater beneath their land, and that a regulatory restriction on groundwater use could constitute a taking of private property. The decision provoked strong reactions, both positive and negative, throughout the world of water law, for it signaled the possibility of severe restrictions on governmental ability to regulate groundwater use.

This Article considers the deeper issue that confronted the Texas Supreme Court, and that has confronted other courts across the country: how should the Takings Clause of the Fifth Amendment, and parallel clauses of state constitutions, apply to groundwater use regulation? Initially, this Article explains why this issue is exceedingly and increasingly important. It then reviews all of the groundwater/takings decisions from federal and state courts in the United States. Finally, the Article considers the implications of foundational property theories for the application of takings doctrine to groundwater use.

The analysis supports two key conclusions. First, it undermines arguments against treating water rights as “constitutional property” — that is, property protected by federal and state takings clauses. Proponents of those arguments generally assert that treating water rights as property has uneven support from prior caselaw and that such treatment will be prevent sensible governance. A review of groundwater caselaw demonstrates that the former assertion runs counter to the weight of authority, and that the fears underlying the latter argument are overstated. Second, and more importantly, the analysis undermines arguments for granting groundwater use rights heightened protection against regulatory takings. Recently, litigants and commentators skeptical of government regulatory authority have widely advanced those arguments. But they find no support in past groundwater/takings caselaw, and no property theory justifies adopting such an approach.

An important issue, and a reminder that state supreme courts continue to play a crucial role in shaping modern property law.

Matt Festa

March 7, 2013 in Caselaw, Constitutional Law, Environmental Law, Property, Property Rights, Scholarship, State Government, Sustainability, Takings, Texas, Water | Permalink | Comments (0) | TrackBack (0)

Friday, February 22, 2013

Eagle on Economic Impact in Regulatory Takings Law

Steven J. Eagle (George Mason) has posted "Economic Impact" in Regualtory Takings Law, forthcoming in the West-Northwest Journal of Environmental Law & Policy.  The abstract:

In Penn Central Transportation Co. v. City of New York the Supreme Court stated that the existence of a regulatory taking would be determined through “essentially ad hoc, factual inquiries,” and that one of three factors of “particular significance” was the economic impact of the regulation on the claimant. This article examines the conceptual problem whereby the Fifth Amendment requires compensation for the taking of property and not a fraction of its owner’s worth. The fact that economic impact of stringent regulations is greater when parcels are smaller has led to a complex “parcel as a whole” test that conflates impact with another Penn Central test, owner’s expectations. Furthermore, application of the impact test to parcels held as investment property might vitiate the temporary taking. The Federal Circuit’s recent abandonment of its prior “return on equity” approach is emblematic of this problem. 

Measuring the economic impact upon owners also is complex where government condemns part of an owner’s parcel, leading to difficulties in computing severance damages. Broad assertions that “offsetting benefits” conferred upon property owners by government actions reduce the impact of regulations also requires clarification. 

The article concludes that unresolved issues and complexities in adjudicating the “economic impact of the regulation on the claimant” test provide an additional reason why the conceptually incoherent Penn Central doctrine must be replaced.

Matt Festa

February 22, 2013 in Caselaw, Constitutional Law, Eminent Domain, Property Rights, Scholarship, Supreme Court, Takings | Permalink | Comments (0) | TrackBack (0)

Thursday, February 21, 2013

Ngov on Selling Land and Religion

Eang L. Ngov (Barry) has posted Selling Land and ReligionKansas Law Review, Vol. 61, No. 1, 2012 .  The abstract:

Thousands of religious monuments have been donated to cities and towns. Under Pleasant Grove City v. Summum, local, state, and federal governments now have greater freedom to accept religious monuments, symbols, and objects donated to them for permanent display in public spaces without violating the Free Speech Clause. Now that governments may embrace religious monuments and symbols as their own speech, the obvious question arises whether governments violate the Establishment Clause by permanently displaying a religiously significant object. 

Fearing an Establishment Clause violation, some governmental bodies have privatized religious objects and the land beneath them by selling or transferring the objects and land to private parties. Some transactions have included restrictive covenants that require the buyer to maintain the religious object or reversionary clauses that allow the government to reclaim the land. Others have sold or transferred the religious object without soliciting bids from other buyers. 

This article provides an in-depth analysis of five cases in which governmental bodies resorted to privatizing public land to avoid violating the Establishment Clause. Drawing from Establishment Clause jurisprudence involving religious displays, this article utilizes the Lemon and Endorsement tests as analytical tools for resolving the constitutionality of land dispositions involving religious displays.

This article considers the purported secular government purposes for selling or transferring land to private parties. The government has sought to justify these land dispositions as a means to provide memorials that honor veterans or promote civic-mindedness, to preserve the religious object in order to avoid showing disrespect to religion, and to avoid violating the Establishment Clause. I argue that these purported government purposes are secondary to a religious interest because there are other alternatives to achieve the government’s purposes.

I also examine the effects of these land dispositions on the reasonable observer. The Herculean efforts exerted by the government to save the religious monument send a message of government endorsement of religion. Restrictive covenants that require the private owner to maintain the religious monument and reversionary clauses that allow the government to reclaim the monument and underlying land perpetuate state action and excessively entangle the government.

I conclude that the best measure to avoid the Establishment Clause is to simply remove the religious object. Removing the religious object will protect the dilution of sacred religious symbols through their secularization and will provide greater inclusiveness in public spaces for religious minorities and nonbelievers.

An original and helpful analysis of an issue that I think has been relatively neglected over the last couple of years, particularly since the Summum case came out-- the interplay between private land use rights and the religion clauses always tends to highlight some of the salient fault lines in many communities.

Matt Festa

February 21, 2013 in Constitutional Law, First Amendment, Politics, Property Rights, RLUIPA, Scholarship, Supreme Court | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 20, 2013

Serkin on The State's Constitutional Obligations to Property Owners

Christopher Serkin (Brooklyn) has posted Affirmative Constitutional Commitments: The State's Obligations to Property OwnersBrigham-Kanner Property Rights Conference Journal, Forthcoming. The abstract:

This Essay, prepared for the 2012 Brigham-Kanner Property Rights Conference, argues that social obligation theories in property generate previously unrecognized obligations on the State. Leading property scholars, like Hanoch Dagan, Greg Alexander, and Eduardo Peñalver, have argued that the institution of property contains affirmative duties to the community as well as negative rights. This Essay argues that those affirmative duties are two-way streets, and that moral bases for social obligations also generate reciprocal obligations on the State to protect property owners. The social obligation theories rely upon a dynamic not static vision of property rights. The community’s needs change, the conditions of ownership change, and the appropriate allocation of benefits and burdens within a society changes over time. Therefore, a legal obligation that is justified and permissible at the time it is enacted because it is consistent with moral obligations may become impermissible over time, even if the content of the legal obligation does not change. At the extreme, the State’s failure to respond to certain kinds of changes in the world can lead to a regulatory taking.

An interesting and important take on some of the implications of progressive property theory.  Especially interesting is Serkin's appreciation for the changing social notions of property over time, and how that challenges static notions of property rights and obligations.

Matt Festa

February 20, 2013 in Conferences, Constitutional Law, Federal Government, History, Property, Property Rights, Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 12, 2013

Dispute over Yard Sign Destroys Fairfax HOA

A Virginia Homeowner's Assocation appears to have gone bankrupt due to litigation over its attempts to enforce its rules against a four-inch violation by a couple's Obama yard sign during the 2008 election.  After four years, skyrocketing assessments, and hundreds of thousands of dollars in legal fees, the bankrupt HOA is considering selling off the central common area.  From the Washington Post, Feud over sign could force Fairfax's Olde Belhaven to sell square.

Such HOA disputes are as suburban as cul-de-sacs and two-car garages, but few metastasize into legal battles that spend years in the courts, break legal ground and bankrupt the HOA.

Most damaging of all, though, was a move probably unprecedented in area neighborhood feuds: The common area that is the literal and metaphoric heart of Olde Belhaven was put up for sale last year to settle its debts. It appeared that “the square,” as some called the neighborhood, would no longer have a square.

“It destroyed our community,” Maria Farran said.

The litigation ranged from a challenge to the HOA's power to fine the owners, and a retaliation claim.  It made some new law:

In 2010, a county judge sided with the Farrans on the fining issue. The case set a Virginia precedent that HOAs cannot claim powers, such as fining, that are not specifically laid out in their covenants. 

 You can read the whole article for a great description of the legal issues and the story.  As HOAs trend toward more extensive sets of rules, and as not everyone buys in, you can probably finds examples of similar (if not quite so expensive) conflicts in communities around the country.  And one thing that's common to both public and private regulation: when individual property rights clash with collective restrictions regarding people's homes, passions run high--even (especially?) when the stakes are as low as four inches on a political yard sign.

Thanks to Helen Jenkins for the pointer.

Matt Festa

February 12, 2013 in Common Interest Communities, Constitutional Law, First Amendment, Homeowners Associations, Politics, Property Rights, State Government, Subdivision Regulations, Suburbs | Permalink | Comments (0) | TrackBack (0)