Land Use Prof Blog

Infranca on a New Framework for Interpreting RLUIPA

John J. Infranca (Research Fellow, NYU Furman Center) has posted Institutional Free Exercise, Charitable Purposes, and Religious Land Use: A New Framework for Interpreting RLUIPA.  The abstract:

The Religious Land Use and Institutionalized Persons Act (RLUIPA) protects religious landowners from the imposition, through a land use regulation, of a substantial burden on religious exercise, absent a compelling interest. For purposes of RLUIPA, a religious landowner may be a person, or, as is more likely, an assembly or institution. This Article contends that courts and commentators have failed to consider the implications of the institutional identity of the vast majority of land use claimants under RLUIPA. As a result, courts frequently focus inappropriately on the substantial burden claims of individual adherents, rather than institutional claimants. The concept of institutional free exercise, as articulated in case law and legal scholarship, provides a framework for distinguishing between the religious exercise and substantial burdens of religious institutions and individual adherents and can aid in clarifying substantial burden doctrine. In addition, the treatment of religious and non-profit institutions in comparable land use contexts, particularly hardship claims under landmark laws, can help shape the evaluation of institutional substantial burden claims.

I propose that courts should distinguish between the substantial burden claims of “existing institutions,” those that have made use of a particular property for a period of time and seek to alter or expand their use, and “new institutions,” those seeking a parcel of land for their first location or seeking to obtain and use a new parcel of land. Existing institutions should receive protection akin to that provided by courts to existing uses under the “natural expansion doctrine.” Given their bonds with a specific location and community, certain land use restrictions will impose a substantial burden on their institutional religious exercise. In contrast, new institutions cannot claim the same degree of burden when denied the use of a particular parcel and their claims are adequately protected by other provisions of RLUIPA. Both new and existing institutions may have claims when the land use process itself, rather than the simple denial of a desired use, imposes a substantial burden, but those claims should be addressed through RLUIPA’s other provisions.

Matt Festa

Stein on the Modest Impact of Palazzolo

Gregory M. Stein (Tennessee) has posted The Modest Impact of Palazzolo v. Rhode Island, forthcoming in the Vermont Law Review.  The abstract:

Before 2001, state and federal courts did not agree on the extent to which a property owner’s regulatory takings claim should be weakened by the existence of legal restrictions on her use of the property at the time she acquired it. The Palazzolo Court addressed this doctrinal confusion but did not completely resolve it, offering six opinions that partially contradict each other. Some of this discord has persisted, with Palazzolo already cited in nearly five hundred judicial opinions, and not always consistently.

This Article examines the impact Palazzolo has had on state and lower federal courts. After reviewing the law before Palazzolo and the Supreme Court’s decision in that case, the Article offers suggestions as to how courts ought to interpret the contradictory opinions in Palazzolo. More specifically, cases arising at different points in the ripening process should be treated differently, and only a small subset of takings claims should benefit from Palazzolo’s relaxation of the notice rule.

Next the Article assesses the evidence, in an effort to determine whether courts interpreting Palazzolo have actually been following these suggestions. First, it examines the small number of claims in which an owner that probably would have lost before 2001 prevailed. It then compares these results with the far more numerous cases in which an owner that probably would have lost before 2001 still lost even after that decision.

The Article closes by offering a more generalized assessment of the effects of Palazzolo. It concludes that nearly all of the courts to cite Palazzolo have heeded its requirements, but only a few cases have turned out differently than they would have before 2001. The Court’s ripeness rules dictate that few landowners should benefit from the holding in Palazzolo, and only a small number actually do benefit. Lower courts understand Palazzolo, they have been applying it correctly, and they should continue to do what they have been doing.

Matt Festa

Mandelker on Housing Quotas for People with Disabilities

Daniel R. Mandelker (Washington U) has a new article called Housing Quotas for People with Disabilities: Legislating Exclusion, Urban Lawyer, Vol. 43, No. 4, p. 915, 2011.  The abstract:

The transfer of people with disabilities from state institutions to residential housing is one of the great migrations in recent history, but finding adequate housing is difficult. Laws that enact housing quotas make this task even harder. Quotas can require a minimum distance between group homes, limit the number of group homes that can be allowed in a community, or limit the number of apartments in multifamily projects. This article considers the legality of these quotas under the federal Fair Housing Act, and their constitutionality as an equal protection violation.

Part I describes the universe of housing models available for people with disabilities. Part II examines the problem of clustering that occurs when this housing locates in groups. Part III describes state statutes that require a minimum distance between group homes for people with disabilities, and federal housing subsidy legislation that contains quotas and preferences. It criticizes the dispersion strategy for housing that quotas implicitly require. Part IV considers the constitutionality of housing quotas under the equal protection clause of the federal constitution.

Part V considers the legality of quotas under the federal Fair Housing Act, which makes it a violation to “otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap." Part VI discusses more acceptable models for distributing housing opportunities.

An important issue with a valuable discussion from one of the leaders in our field.

Matt Festa

Mulvaney's take on PPL Montana

Prof. Tim Mulvaney has a thoughtful and original analysis of this week's Supreme Court decision in PPL Montana v. Montana, over at the Environmental Law Prof Blog.  From Tim's Post:

Taking a cue from the Stop the Beach plurality, PPL Montana had suggested that the Montana Supreme Court was the “operative force” behind a “land grab” of privately-owned riverbeds, such that the decision itself could be violative of the Takings Clause. Yet the U.S. Supreme Court ultimately did not address this assertion. Still, Justice Kennedy’s opinion in PPL Montana could be viewed as the continuation of a disturbing trend promoted by the Court in Stop the Beach: it represents an implicit, wide-ranging distrust of state courts and a disregard for the principle that property rights are generally determined with reference to state law.

So the Court neglected to use the opportunity to expand on the judicial takings theory espoused in Stop the Beach, and seems to potentially add confusion to the question of federal judicial deference to state-law interpretations of property rights.  I'll add one other preliminary observation about the opinion: by framing the case around the fact question of whether certain riverbeds were navigable or required portage at the time of statehood, the decision highlights the importance of history and historical interpretation to issues of property law.

Matt Festa

Supreme Court opinion on PPL Montana

The U.S. Supreme Court published its decision in PPL Montana, LLC, v. Montana.  The opinion is here. 

A unanimous Court (Kennedy, J.) reversed the Montana Supreme Court's holding that the State of Montana owns and may charge for the use of the riverbeds at issue. 

Prof. Tim Mulvaney had an insightful analysis of the cert grant for us in a guest-post last year.  We previewed the oral argument here.  SCOTUSblog has, as always, a great roundup of early analysis and links. 

I look forward to hearing more discussion of this important land use case in the near future.

Matt Festa

NYC Rent Control Laws at Supreme Court?

The case of Harmon v. Markus, currently before the Supreme Court on a petition for cert, is starting to draw some attention.  Among others, George Will devoted his latest column to urging the Court to hear the case in Supreme Court should take on New York City's Rent Control Laws:

James and Jeanne Harmon reside in and supposedly own a five-story brownstone on Manhattan’s Upper West Side, a building that has been in their family since 1949. But they have, so to speak, houseguests who have overstayed their welcome by, in cumulative years, more than a century. They are the tenants — the same tenants — who have been living in the three of the Harmons’ six apartments that are rent controlled.

The Harmons want the Supreme Court to rule that their home has been effectively, and unconstitutionally, taken from them by notably foolish laws that advance no legitimate state interest. The court should.

This “taking” has been accomplished by rent-control laws that cover almost 1 million — approximately half — of the city’s rental apartments. Such laws have existed, with several intervals of sanity, since the “emergency” declared because returning soldiers faced housing shortages caused by a building slowdown during World War I.

This is a tough issue on the equities; rent-control laws (most prominently in New York) are of incredible help to some people and have a very negative effect on others, not only developers, but also (perhaps most especially) would-be entrants-- which is why the politics on this issue are more difficult to track.  Rent control favoring current (and often, inherited) tenants is getting increasingly hard to justify on policy grounds, but as a matter of property law, is it unconstitutional?  Harder to prove on legal doctrine.

Richard Epstein has a podcast on the case for the Federalist Society.  I've been looking for commentaries on the other side but haven't found quite as much; let me know.

Matt Festa

Federal Eminent Domain Reform?

Ilya Somin (George Mason) has a post on the Volokh Conspiracy called Another Chance at Federal Eminent Domain Reform:

In the aftermath of the Supreme Court’s controversial Kelo decision, which allowed the condemnation of private property for economic development, some 44 states have passed eminent domain reform laws. Although many of those laws are likely to be ineffective, overall a good deal of progress has been made at the state level in curbing abusive condemnations, including by state courts enforcing the property rights provisions of their state constitutions.

Unfortunately, very little has been achieved at the federal level during that time. On the third anniversary of Kelo in 2008, I summed up federal reform efforts as follows:

…

…

[Insert sound of crickets chirping, grass growing, and paint drying].

Somin cites an op-ed by Christina Walsh of the Institute of Justice:

A bipartisan bill, H.R. 1433, making its way through the House would strip a city of federal economic development funding for two years if the city takes private property to give to someone else for their private use. Cities that want to keep their funding will have to be more circumspect in using eminent domain.

This bill undoubtedly will pass the House as it did in 2005, and likely will get stalled in the Senate Judiciary Committee, headed by Sen. Patrick J. Leahy, Vermont Democrat, where it has gone to die in years past.

It'll be interesting to see if this goes anywhere, but I suspect there's probably too much political noise this year.

Matt Festa

Fenster on Failed Exactions

Mark Fenster (Florida) has posted Failed Exactions, 36 Vermont Law Review No. 3 (2012).  The abstract:

This symposium essay considers the doctrinal quandary created by 'failed exactions' - regulatory conditions on property development that government agencies contemplate but that are never finalized or enforced, usually because the property owner rejects them. A narrow but conceptually challenging issue to the relationship between the unconstitutional conditions doctrine and regulatory takings law, failed exactions could prove profoundly unsettling to current land use practices. A decade ago, the issue of whether failed exactions deserve heightened scrutiny prompted Justice Scalia to issue a dissent from a denial of petition for certiorari in which he stated, somewhat tentatively, that an extortionate demand made of a land owner by a government agency for land or money as a condition on development could and perhaps should trigger rigorous judicial review.

Both before and after Justice Scalia’s ruminations, which only Justices Kennedy and Thomas joined, courts have struggled with this question. As the litigation that ended with the Florida Supreme Court decision in Koontz v. St. Johns Water Management District (2011) reveals, judicial efforts to put the unruly peg of an unenforced condition into the narrowly defined categories of regulatory takings creates an excess of confusion. The essay identifies the doctrinal, remedial, procedural, and consequential dangers of any effort to apply heightened federal constitutional scrutiny to failed exactions.

Matt Festa

Michelman on the Property Clause Question

Frank Michelman (Harvard) has posted "The Property Clause Question."  In this essay, the preeminent property theorist of our time offers an engaging look at the constitutional protection of private property rights that a society seeking to establish a liberal social democracy should consider.  Here's the abstract:

A “property clause” is a dedicated text in the written basic law of a constitutional-democratic state, addressing the question of the security of asset-holdings (and of their values to their owners) against impairment by action or allowance of the state. The clause provides a defensive guarantee against such impairments, in the form of a trumping right of every person to be protected – perhaps not absolutely and unconditionally, but not negligibly, either – against state-engineered losses in lawfully established asset-holdings or asset-values.

How should someone writing a constitution for an expectantly “social liberal” state regime think about the question of a property clause? Without suggesting that there can be any one-size-fits-all sort of answer to the question of including such a clause or not, this paper confines itself to doubting sharply one sort of a reason our constitution-writers might consider for including one – namely, that a liberal constitutional bill of rights ought to contain clauses covering all classes of interests of persons that qualify in liberalism as basic rights and freedoms and the interest distinctively protected by a property clause does so qualify – and suggesting some pros and cons regarding a quite different sort of reason for inclusion that the writers will also undoubtedly ponder – namely, that the clause will serve to keep lawmakers and constitutional adjudicators properly attuned to a national foundational commitment to a system of political economy in which markets play a key role.

This essay, prepared as an after-dinner talk for the Conference on Constitutional Revolutions and Counter-Revolutions held at the New School for Social Research, May 5-7, 2011, is a companion to my “Liberal Constitutionalism, Property Rights, and the Assault on Poverty,” Stellenbosch Law Review (2012) (forthcoming), which treats more expansively some points made summarily here. A version of this essay will appear in Constellations 12 (2012).

Jim K.

City Journal's take on the California Redevlopment decision

I've been enjoying the outstanding posts on last week's landmark California Supreme Court ruling by Ken Stahl (here and here) and guest-blogger Stephen Miller (here and here) (I smell a great panel or symposium topic in the making).  Just now I came a cross an early analysis by Stephen Greenhut at City Journal, the always-interesting center-right urban affairs journal.  Greenhut has a strongly positive take on the decision in Crony Capitalism Rebuked California’s supreme court strikes a blow for property rights and fiscal sanity:

On December 29, the California Supreme Court handed down what the state’s urban redevelopment agencies (RDAs) and their supporters called a “worst of all worlds” ruling—first upholding a law that eliminates the agencies, then striking down a second law that would have allowed them to buy their way back into power. This was great news for critics who had spent years calling attention to the ways modern urban-renewal projects distorted city land-use decisions, abused eminent-domain policies, and diverted about 12 percent of the state budget from traditional public services to subsidies for developers, who would build tax-producing shopping centers and other projects sought by city bureaucrats. As of now, the agencies are history, though the redevelopment industry is working to craft new legislation that would resurrect them in some limited form.

Matt Festa

Wolf on the Supreme Court and the Environment

Michael Allan Wolf (Florida) has a new book out called The Supreme Court and the Environment: The Reluctant Protector (CQ Press, 2012).  Here's the Amazon blurb:

Silent Spring (1962) can arguable be cited as one of the most influential books of the modern era. This book, along with 1960's rampant activism reacting to high-profile ecological calamities, helped create the modern environmental movement. The Supreme Court and the Environment, written by Michael Wolf, discusses one of this movement's most important legacies, namely the body of federal statutory law amassed to fight pollution and conserve natural resources that began with the enactment of the National Environmental Policy Act of 1969. Instead of taking the more traditional route of listing court decisions, The Supreme Court and the Environment puts the actual cases in a subsidiary position, as part of a larger set of documents paired with incisive introductions that illustrate the fascinating and sometimes surprising give-and-take with Congress, federal administrative agencies, state and local governments, environmental organizations and private companies and industry trade groups that have helped define modern environmental policy.

And for a preview, Prof. Wolf has posted the introduction on SSRN.  The abstract:

This document contains the Introduction and Contents for The Supreme Court and the Environment: The Reluctant Protector (CQ Press/Sage 2012). When one views the body of modern environmental law — the decisions and the other key documents — the picture that emerges is not one of Supreme Court dominance. In this legal drama, the justices have most often played supporting roles. While we can find the occasional, memorable soliloquy in a Supreme Court majority, concurring, or dissenting opinion, the leading men and women are more likely found in Congress, administrative agencies, state and local legislatures, nongovernmental organizations, private industry, and state and lower federal courts.

What one learns from studying the Supreme Court’s environmental law output is that the justices for the most part seem more concerned about more general issues of deference to administrative agencies, the rules of statutory interpretation, the role of legislative history, the requisites for standing, and the nature of the Takings Clause than the narrow issues of entitlement to a clean environment, the notion of an environmental ethic that underlies written statutes and regulations, and concerns about ecological diversity and other environmental values. When we widen the lens, however, and focus on the other documents that make up essential parts of the story of the Supreme Court and the environment — complaints by litigants, briefs by parties and by friends of the court, oral argument transcripts, the occasional stirring dissent, lower court decisions, presidential signing statements and press conference transcripts, media reports and editorials, and legislative responses to high court decisions — we discover what is often missing in the body of Supreme Court decisions.

 Looks fascinating, and is a very original take that situates the cases themselves within a broader context of Supreme Court jurisprudence and goes beyond to the larger networks of actors that shape law.

Matt Festa

Davidson on a Hamiltonian Vernacular as a Social Function of Property

Nestor M. Davidson (Fordham) has posted Sketches for a Hamiltonian Vernacular as a Social Function of Property, Fordham Law Review, Vol. 80 (2011).  The abstract:

This symposium article examines the intersection between Léon Duguit’s concept of the social function of property, predicated on an affirmative duty on owners to put their property to productive use for the sake of social solidarity, and a tradition in the property law of the United States that similarly reflected this kind of pro-development norm. The article associates the impulse to associate ownership with a productivity oriented social function with certain Hamiltonian themes at the founding and in the early nineteenth-century salus populi tradition, and argues that the imperative remains a background norm in the United States that contrasts with classical liberal absolutism and certain strains of civic republican property norms.

Absolutely fascinating-- an original insight that makes an important contribution to our understanding of early republic property theory and its implications for property law today.

Matt Festa

Senik on Direct Dysfunctionality (initiative & recall)

Last month I posted a rant on Election Day and State Constitutions based on the referendum for new Texas constitutional amendments; Ken Stahl posted a thoughtful response with a qualified defense of direct democracy in ballot-box zoning, which set forth some thoughts that he more fully elaborates in his excellent article The Artifice of Local Growth Politics: At-Large Elections, Ballot-Box Zoning, and Judicial Review. 

My complaints--prompted by my frustration with a slate of ten poorly-articulated and confusing process amendments for which the State Legislature required a nominal thumbs-up from the people-- were more focused on (1) statewide (more than with local) lawmaking through referenda; and (2) the over-constitutionalization of public policy in fundamental state law.  Troy Senik has written an article for City Journal that articulates some of the points of this (hardly original) critique: Direct Dysfunctionality: California celebrates 100 years of the initiative, referendum, and recall. 

Golden State voters can approve or reject public-policy changes at the ballot box through the use of the initiative and referendum. They can also remove unpopular elected officials with the less frequently employed recall, made famous when it chased out Governor Gray Davis in 2003. While nearly half of U.S. states have an initiative process of some kind, nowhere is it as central to the political process as in California, where, in 2010 alone, 14 issues appeared on the ballot. As a result, voters constitute a de facto fourth branch of government. . . .

These measures were introduced in the salad days of the early Progressive movement, when California Governor Hiram Johnson (who would eventually serve as Theodore Roosevelt’s running mate on the Bull Moose presidential ticket of 1912) pressed for their implementation as a firewall against political domination by special interests—particularly those of the well-heeled railroads. . . .

But statewide direct constitution-making has its problems:

Expediting policy shifts, however, is a relatively modest benefit in exchange for the dramatic cost of the initiative process: inducing widespread public-sector sclerosis. Rather than simply providing an outlet for popular grievances, direct democracy actually annexes huge swaths of policymaking from the legislature. When voters mandate a policy directive from the ballot box, the legislature has no way to override the decision, even by supermajority. As a result, any issue that voters weigh in on directly becomes their exclusive purview in perpetuity—amendable or repealable only by another popular vote. This also has the ironic effect of slowing down the democratic process that the initiative system is supposed to make more responsive, ensuring that policy shifts can only come on election days spread years apart. And many of the ballot measures take the form of constitutional amendments, a trend that has given California the unenviable distinction of having the third-longest constitution in the world, after India and (believe it or not) Alabama. Because altering the state’s foundational political charter only requires a simple majority, California ends up inhabiting a bizarro world where it’s relatively easy to amend the constitution but can be nearly impossible to alter basic public policy.

So as with any political process tool, it's a mixed bag with some good things that can be contorted into bad results; my tentative thesis is that direct democracy is less effective the broader the polity (i.e. state vs. local) that engages in it.  I know, James Madison and others had something to say about this too. 

Soon I'll blog about an interesting local-government direct democracy land use requirement that is a little different from the ones that Ken has written about. 

Matt Festa

Upcoming Oral Argument in PPL Montana, Inc. v. Montana

On Wednesday, the U.S. Supreme Court will hear one of the only cases that touches on property rights scheduled for this Term, PPL Montana, Inc., v. Montana.  Professor Thomas Merrill has posted an excellent preview of the case on SCOTUS blog:

On December 7, the Court will hear argument in PPL Montana, LLC v. Montana. The case is one for history buffs. The question is whether the state of Montana holds title to portions of three riverbeds in the state. The parties agree that the relevant legal test is historical: were the river segments in question part of a waterway that was “navigable in fact” when Montana became a state in 1889? Prominent among the many bits of historical evidence cited are the journals of Meriwether Lewis and William Clark, who explored the rivers in 1805 on their famous expedition.

That's enough to get me excited (seriously).  Go read the rest of Prof. Merrill's informative analysis.  (h/t to our friends at Property Prof Blog for the link).

And don't forget that we had our own pre-preview here at the Land Use Prof Blog, back on the day after the Court granted cert. From guest-blogger Tim Mulvaney's take on SCOTUS cert grant for PPL Montana v. Montana:

In finding that all three rivers at issue met this “navigability for title” test when Montana entered statehood in 1889, the Montana Supreme Court cited to a litany of historical evidence, including the centuries-old journals of Lewis and Clark.  As today’s brief AP story notes, PPL Montana disagreed, pointing “to accounts of the [Lewis and Clark] expedition’s arduous portages of canoes and supplies around waterfalls to argue that the contested stretches of water were not navigable.”  The Montana Supreme Court’s opinion also drew PPL Montana’s ire by considering what the company alleges are flawed contemporary studies, as well as recent recreational uses of certain stretches of the rivers, to support the finding that the rivers are held in total by the state in trust for present and future generations.

One of the foremost experts in natural resources and water law, Professor Rick Frank, notes on Legal Planet that the U.S. Supreme Court has not addressed navigability in the context of state public trust claims for several decades.  How the Supreme Court interprets its time-honored test and identifies what evidence is relevant in its application could have major ramifications for thousands of miles of inland lakes and waterways nationwide.

Should be very interesting.  Stay tuned.

Matt Festa

Katz on the Regulative Function of Property Rights

Larrisa Katz (Queens U.) has posted The Regulative Function of Property Rights, 8 ECON J. Watch 236 (2011).  By looking at analogous regulatory responses to private ownership, this brief essay provides a concise and unique comparison of the dominant models of property rights ("bundle of sticks" and exclusion a/k/a "stick") with her own model based on the owner's entitlement to set the agenda for a resource.  Here's the abstract:

In this paper, I examine three different models of how we manage our common resources through a system of private property rights. One model (the exclusion approach) is to control owners’ decisions indirectly, through markets. Another model (the bundle-of-rights approach) is to regulate owners’ decisions directly, by setting out specifically what they can or cannot do. These first two models have in common their focus on the substantive decisions that owners make. There is a third approach that emerges from my own account of ownership as a position of exclusive agenda-setting authority. A distinguishing feature of this model is that it restricts the class of question that the owner may consider when dealing with the thing rather than the substantive answers that owners come up with.

Jim K.

Somin on Eminent Domain and Mississippi Measure 31

Ilya Somin (George Mason) has an op-ed in Daily Caller about the passage of Mississippi Measure 31, a post-Kelo eminent domain reform measure: Referendum Initiatives Prevent Eminent Domain Abuse.  The intro:

The Supreme Court’s 2005 decision in Kelo v. City of New London generated a record political backlash. Kelo upheld the condemnation of private property for transfer to other private owners in order to promote “economic development.” The case inspired widespread outrage. Polls show that over 80% of the public opposes economic development takings. As a result, 44 states have enacted eminent domain reform laws that restrict the condemnation of property for the benefit of private interests.

The most recent state to react to Kelo is Mississippi. On Tuesday, Mississippi voters adopted Measure 31 by a decisive 73% to 27% margin. The new law will make taking property for economic development unprofitable by forbidding most transfers of condemned land to a private party for 10 years after condemnation. The measure is a major victory for both property owners and the state’s economy.

Somin has also blogged on the measure at the Volokh Conspiracy here and here.  And from the former post, here's a nugget that's relevant to the discussion Ken and I have been having on direct democracy in land use:

As I explain in this article, referendum initiatives like Measure 31 tend to be stronger than reforms adopted by state legislatures because many of them are drafted by activists rather than by politicians. Measure 31 was submitted drafted by the Mississippi Farm Bureau Federation (small farmers are often victims of eminent domain in the state). The vast majority of post–Kelo referenda adopted by voters impose tough restrictions on takings.

More on that to come soon!

Matt Festa

State Constitutional Amendments on Texas Ballot

So I sat down to write a post noting some of the land-use related issues that are before Texas voters today as proposed amendments to the state constitution, and then I went off on a rant about why I don't like voting on state constitutional amendments--generally, because they're already too bloated with non-fundamental policy; and specifically, because of the informational problems that make it a terrible democratic mechanism.  But anyway, there are ten proposed amendments to the Texas constitution today, so let's see if any involve land use . . .

None of them seem to be that radical this year, and hence haven't gotten any publicity to speak of (unlike last time around (2009), when eminent domain reform and constitutionalizing the Texas Open Beach Act were on the ballot).  But as always, a few of them will affect land use--politically, structurally, and fiscally. The 2011 Analysis of Proposed Constitutional Amendments by the Texas Legislative Council is probably the best source out there.  So let's take a look at a few.  I'll paraphase the ballot language, which in turn only paraphrases the actual text of the amendments that will be come law!

1.  Authorizing the legislature to provide a property tax exemption on the residential homestead of a surviving spouse of a 100% disabled veteran;

2.  Authorizing the Texas Water Board to issue general obligation bonds up to $6 billion for water projects;

4.  Authorize the legislature to allow a county to incur debt "to finance the development or redevelopment of an unproductive, underdeveloped, or blighted area within the county," and to pay for it with increased tax revenues from that area.

Now this one really strikes me as a great example of what I was talking about in my last post.  What this is about is tax-increment financing, e.g. TIFs.  On the one hand, if you read the background of this proposal, it's not radical; it's simply giving county governments the same power that municipal governments already have.  On the other hand, the uses and abuses of TIFs are a big deal, and if it took this land use professor a few minutes of closely reading the ballot language to figure out that that's what were voting on, I can't have much confidence that this vote is in any way informed.

5.  Authorize the legislature to allow city and county governments to enter contracts with each other (for, e.g., consolidation or regional projects) without the imposition of a tax or a sinking fund).

6.  Allow the General Land Office to distribute revenue from certain dedicated lands for educational purposes.

7.  Allow El Paso County to create conservation and reclamation districts to develop parklands.

8.  Require the legislature to tax open space land devoted to water stewardship based on its productive capacity rather than its (usually higher) market value. 

So there you have it, out of ten proposed state constitutional amendments put before the people of Texas today by the biennial session of the legislature, seven of them by my count have at least something to do with land use, even though they're more about structure and finance than use regulations per se.  But of course, some of my students accuse me of "turning everything into a land use issue."  But we all know it's true, right?

Anyway, I've got to run out now and go vote!

UPDATE 11/9/11: Seven amendments passed; the three that failed were #4 (county TIFs); #7 (El Paso parks); and #8 (tax assessment for water stewardship).  The Secretary of State has the results.  But hey, over 5% of the registered voters turned out!

Matt Festa

Election Day 2011 and State Constitutions

Even though the media is obsessed with the 2012 elections, it is the first Tuesday after the first Monday in November, and as land use folks well know, a lot of important law is made at the state and local level during off-year elections.  Today in Texas there are ten state constitutional amendments on the ballot for voter approval, generated by the 2011 legislative session (Texas' legislature still meets only bienially--one of four remaining states to do so, and the only major state). 

I'm generally not a fan of constant new constitutional amendments, for two reasons, one structural and one democratic.  First, many state constitutions--like Texas'--are already bloated.  I printed it out once--all 80,806 words of it (sorry environmental profs)--and I make the point in class by comparing the massive document to a pocket U.S. Constitution.  In general, I don't think that most mundane policy issues should be entrenched in fundamental law.  On the other hand, this structural critique can be countered somewhat by the argument that while the federal constitution enables the Congress to do a certain range of things, state legislatures already have plenary power, so state constitutions largely exist to limit the legislature--and then they need to be amended often to adjust those limits.  But still . . . 80,806 words?

My second beef with the practice of placing a slew of state constitutional amendments is has more to do with the theory of state and local elections, and I don't like it for the same reason I'm skeptical of the overuse of initiative and referendum.  What could be more democratic than letting the people vote, you ask?  The problem is informational.  I usually ask my upper-level state & local government students--a sample of pretty well educated and informed voters--which way they voted on certain amendments or referenda from prior years.  Almost universally I get two responses; either (a) no recollection whatsoever; or, occasionally, (b) they voted with their gut based on a cursory reading of the ballot text in the voting booth.  And if they remember which way they voted, it was usually "yes" because the text sounded like "good things," or "no" because the text sounded like "spending more money." 

There in turn at least two reasons why even smart voters end up voting with their gut on these important measures.  First, the ballot language is usually vague and fuzzy, and often is quite different from the actual text of the law that will go on the books.  I don't think this is usually done to confuse the voters, I think it's the opposite intent--but regardless, the ballot language in my experience is usually so general that it fails to communicate what the proposal is really about.  Another major reason, of course, is that with a few exceptions, these items don't get very much media exposure.  So most Texans probably know a lot more about, e.g., the latest in sexual harrassment allegations against national candidates, than they do about the 10 items they are probably going to add to the state constitution today.  The info is out there, but it's up to the individual voter to burn some calories and go find and read information such as the analysis by the Texas Legislative Council.

Now in class, we talk about whatever amendments and referenda are on the ballot, and it's a lot of fun.  Students do class presentations, we have guest speakers, and so on.  And it often turns out that a lot of these state constitutional amendments (and local referenda) are substantively about land use--from eminent domain to land sales, zoning, conservation, and more (which was going to be the original point of this post, before I got off on my rant).  So I do my part to create a group of 40 or 50 educated voters.

But if that's what it takes, is democracy really served by putting all this stuff on the ballot, and in such a vague manner?  I find more and more that people in general really do care about land use in their communities and their region.  A lot.  Yet in the cases where they actually have a say in the matter, it gets translated so poorly that most votes actually cast are probably not informed ones.  So it's the people behind the scenes in and around legislative bodies that end up making all the rules.

Matt Festa

Bell on Property in the Third Amendment and the Constitution

Back when I was in law school a few of us would joke around about writing a paper on the Third Amendment, since it hardly ever comes up. But now Tom W. Bell (Chapman) has made it relevant, with 'Property' in the Constitution: The View from the Third Amendment, forthcoming in the William & Mary Bill of Rights Journal, vol. 20 (2012). The abstract:

During World War II, after Japan attacked the Aleutian Islands off Alaska’s coast, the United States forcibly evacuated the islands’ natives and quartered soldiers in private homes. That hitherto unremarked violation of the Third Amendment gives us a fresh perspective on what “Property” means in the U.S. Constitution. As a general legal matter, property includes not just real estate - land, fixtures attached thereto, and related rights - but also various kinds of personal property, ranging from tangibles such as books to intangibles such as causes of action. That knowledge would, if we interpreted the Constitution as we do other legal documents, tell us just about everything we need to know about the scope of constitutional property. Case law and commentary do not speak as plainly, however, raising troubling questions about what “Property” means each of the four times it appears in the Constitution. In particular, some authority suggests that the Takings Clause protects personal property less completely than it does real property. The unjust treatment of Aleutian natives during World War II shows the risk of giving constitutional property so peculiar and narrow a definition. This paper describes the troubling inconsistencies that afflict the law of constitutional property and invokes the Third Amendment, that oft-forgotten relic of the American Revolution, to argue for giving “Property” a plain, generous, and consistent meaning throughout Constitution.

Matt Festa

Azuela on the Constitutional Idea of Property in Contemporary Mexico

Antonio Azuela (UNAM) has published Property in the Post-post-revolution: Notes on the Crisis of the Constitutional Idea of Property in Contemporary Mexico, 89 Tex. L. Rev 1915 (2011).  In it he raises a number of questions important to comparativists and property theorists alike through discussion of a series of recent Mexican land law controversies.  Here is a summary from the Law Review website:

Professor Azuela responds to a critical lack of contemporary constitutional scholarship concerning property rights in Mexico. He argues that current problems affecting property rights in Mexico stem from a variety of social and political issues, including eminent domain and the tragedy of the commons. Given this variety, theoretical models are often lacking, so Professor Azuela proposes a research agenda that will address weaknesses, account for the constitutional and social-science dynamics of the debate.

Jim K.