Wednesday, October 24, 2012

Lehavi on Why Philosophers, Social Scientists, and Lawyers Think Differently About Property Rights

Amnon Lehavi (Interdisciplinary Center Herzliyah - Radzyner School of Law) has posted Why Philosophers, Social Scientists, and Lawyers Think Differently about Property Rights.  The abstract:

Property is a powerful concept. It features prominently in academic and public discourse. But it is also a source of ongoing confusion. While some of this disarray may be attributed to the success of “disintegrative” normative agendas, much of it is the result of a methodological and conceptual disconnect both within and among different fields of study. Aimed at narrowing this gap, this Article analyzes the transformation of property from a moral and social concept into a legal construct. It seeks not to develop a historical or intellectual account of such an evolution, but to analyze the institutional and structural features of property once it is incorporated into the legal realm.

The Article identifies the unique jurisprudential ingredients of a system of rules by which society allocates, governs, and enforces rights and duties among persons in relation to resources. It examines the work of decision-making institutions entrusted with the task of designing property norms over time. Clarifying the institutional and structural attributes of property does not require, however, adhering to a uniform body of substantive norms or to a single set of underlying values. Illuminating the construction of property allows rather for a better informed debate about the socially-desirable content of property rights.

Matt Festa

October 24, 2012 in Property Rights, Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

Rose on Property and Emerging Environmental Issues--Optimists vs. Pessimists

Carol M. Rose (Arizona) has posted Property and Emerging Environmental Issues--The Optimists vs. the Pessimists, 1 William & Mary Brigham-Kenner Property Rights Conference Journal 405 (2012).  The abstract:

Can property rights and markets address environmental issues? Some say yes and some say no. This article tracks the debate through several iterations, beginning with the 1980 bet between by the biologist Paul Ehrlich and the economist Julian Simon. The former bet that the world was exhausting its natural capital and that a particular basket of minerals would therefore increase in price, while the latter bet that human ingenuity would substitute for natural capital and make prices fall. The optimistic Simon won that bet, but another version of the debate was soon to come, with free market environmentalists asserting that property and markets can evolve even for diffuse environmental resources. But more pessimistic commentators point out that success is not assured, and that social and political factors, and even past property rights regimes, can present substantial obstacles. The upshot appears to be that if one is to be optimistic about property and market approaches, one must be optimistic about social and political factors as well.

Matt Festa

October 24, 2012 in Conferences, Property Rights, Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 10, 2012

Conservation Easements Again: Golf Courses as Natural Habitat?

Some of the most questionable conservation easements are those covering golf courses. A recent summary judgment ruling from the Tax Court highlights the concerns that arise. RP Golf LLC owns 277 acres in Platte County, Missouri where it has two private golf courses. It placed a conservation easement over the golf courses and claimed a $16,400,000 tax deduction (yep that’s $16.4 million to agree not to subdivide its golf courses).

To qualify for tax deductions, conservation easements must have a qualified “conservation purpose” as defined in § 170(h)(4)(A) of the Internal Revenue Code. RP Golf claims that its conservation easements meet two different purpose requirements: (1) open space and (2) natural habitat.

Deductions are allowed for conservation easements that protect open space where such preservation is pursuant to a clearly delineated Federal, State, or local governmental conservation policy. I.R.C. § 170(h)(4)(A)(iii)(II). Missouri does have a general policy to promote open space, but the policy enables counties and the state park board to acquire property rights to protect open space in counties where the population exceeds 200,000.  Mo. Ann. Stat. § 67.870. As Platte County has fewer than 100,000 residents, the court concluded the golf course conservation easements were not acquired pursuant to a conservation policy.

Deductions are also permissible where conservation easements protect relatively natural habitat of fish, wildlife or plants. Perhaps somewhat audaciously, RP Golf contends that its conservation easements protect “relatively natural habitat.” It is always a challenge to determine what is “natural” these days and the court found that there disputed material facts on this issue (thus making it inappropriate for summary judgment).

This little cases raises a lot of issues regarding what we protect for whom along with what we consider natural in our increasingly developed world.

- Jessie Owley

October 10, 2012 in Caselaw, Conservation Easements, Land Trust, Property, Property Rights | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 9, 2012

Brigham-Kanner 2012

The Ninth Annual Brigham-Kanner Property Rights Conference is taking place this week at William & Mary law school in Williamsburg, VA.  The conference, named for Toby Prince Brigham and Gideon Kanner, brings together many of the very top property scholars in the country as well as members of the bench and bar.  This year the Brigham-Kanner Prize will be presented to Professor James E. Krier (Michigan).

The conference will take place this Friday, Oct. 12, following a Thursday evening event.  The conference program looks fantastic and features many of the leading property scholars in the nation.  There is still time to register on-line, and I have also been informed that walk-ins are welcome.  If you can be there it looks to be a great event.

Matt Festa

October 9, 2012 in Conferences, Property, Property Rights, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, October 4, 2012

Reiss on the Use of Eminent Domain to Restructure Mortgages

David J. Reiss (Brooklyn) has posted Comment on the Use of Eminent Domain to Restructure Performing Loans, which was submitted to the Federal Housing Finance Agency (No. 2012–N–11) (2012).  The abstract:

There has been a lot of fear-mongering by financial industry trade groups over the widespread use of eminent domain to restructure residential mortgages. While there may be legitimate business reasons to oppose its use, its inconsistency with Takings jurisprudence should not be one of them. To date, the federal government’s responses to the current crisis in the housing markets have been at cross purposes, half-hearted and self-defeating. So it is not surprising that local governments are attempting to fashion solutions to the problem with the tools at their disposal. Courts should, and likely will, give these democratically-implemented and constitutionally-sound solutions a wide berth as the ship of state tries to right itself after being swamped by a tidal wave of mortgage defaults.

A concise and thoughtful public comment on what is emerging as a hot, hot issue.

Matt Festa

October 4, 2012 in Constitutional Law, Eminent Domain, Finance, Housing, Local Government, Mortgage Crisis, Mortgages, Property Rights, Real Estate Transactions, Scholarship, State Government, Takings | Permalink | Comments (0) | TrackBack (0)

Monday, September 24, 2012

Klass on Takings and Transmission

Alexandra B. Klass (Minnesota) has posted Takings and Transmission, forthcoming in the North Carolina Law Review.  The abstract:

Ever since the Supreme Court’s controversial 2005 decision in Kelo v. City of New London, courts, state legislatures, and the public have scrutinized eminent domain actions like never before. Such scrutiny has focused, for the most part, on the now-controversial “economic development” or “public purpose” takings involved in the Kelo case itself, where government takes private property for a redevelopment project that will benefit another private party as well as increase the tax base, create new jobs, assist in urban renewal, or otherwise provide economic or social benefits to the public. By contrast, until recently, there has been little change in law or public opinion with regard to takings involving publicly-owned projects such as hospitals or post offices or “use by the public” takings that involve condemnation for railroad lines, electric transmission lines, or other infrastructure projects. However, recent changes in electricity markets and the development of the country’s electric transmission system have raised new questions about the validity of “use by the public” takings in the context of electric transmission lines. With some transmission lines now being built by private, “merchant” companies rather than by publicly-regulated utilities, and with the push to build more interstate transmission lines to transport renewable energy to meet state renewable portfolio standards, what was once a classic public use is now subject to new statutory and constitutional challenges. This Article explores the potential impact of these developments on the use of eminent domain for electric transmission lines. Ultimately, it suggests that states should ensure that their eminent domain laws governing transmission lines are consistent with their policy preferences surrounding energy development in the state, and it outlines some ways for states to accomplish this goal.

I think you could make some analogous analysis about the newly-hot issue of eminent domain and pipelines, for example the controversy over the acquisition of rights of way for the Keystone Pipeline.  Interesting issues.

Matt Festa

September 24, 2012 in Caselaw, Constitutional Law, Economic Development, Eminent Domain, Oil & Gas, Property Rights, Scholarship, State Government, Takings | Permalink | Comments (0) | TrackBack (0)

Friday, September 21, 2012

Martinez on Cognitive Reconstruction of Local Government Authority

John Martinez (Utah) has posted From Pyramids to Stories: Cognitive Reconstruction of Local Government Authority.  The abstract:

This article describes a cognitive science approach to law, uses it to critically evaluate conventional "pyramid" legal analysis of local government authority, and suggests stories as alternative models for defining such authority. The article suggests that stories better reveal what is at stake in regard to local government authority and thus helps us to arrive at better solutions. The article illustrates the storytelling analytical approach in three situations: a local government's condemnation of private property for resale to a private developer, the delegation of land use control authority to neighborhood groups, and local government attempts to zone out nontraditional families.

The paper offers an alternative approach to classic local government questions about land use.  Interesting ideas to ponder while some of us are here at the Local Government Law Workshop in Milwaukee. 

Matt Festa

September 21, 2012 in Eminent Domain, Local Government, Property Rights, Scholarship, Takings, Zoning | Permalink | Comments (0) | TrackBack (0)

Friday, August 24, 2012

Man Fights to Keep Wife's Remains Buried in Front Yard

If you've been reading the work of some of our colleagues at Property Prof like Tanya Marsh and Al Brophy, you know that cemeteries, memorials, and burial rules can be important issues in law and historical memory.  Here's a more quotidian case in point, from the Huffington Post: James Davis, Alabama Man, Fights To Keep Remains Of Wife Buried In Front Yard.  From the article:

Davis said he was only abiding by Patsy Ruth Davis' wishes when he buried her outside their log home in 2009, yet the city sued to move the body elsewhere. A county judge ordered Davis to disinter his wife, but the ruling is on hold as the Alabama Civil Court of Appeals considers his challenge.

While state health officials say family burial plots aren't uncommon in Alabama, city officials worry about the precedent set by allowing a grave on a residential lot on one of the main streets through town. They say state law gives the city some control over where people bury their loved ones and have cited concerns about long-term care, appearance, property values and the complaints of some neighbors.

But even some of the objecting neighbors are still concerned with the individual property-rights aspect of this situation:

A strong libertarian streak runs through northeast Alabama, which has relatively few zoning laws to govern what people do with their property. Even a neighbor who got into a fight with Davis over the gravesite – Davis said he punched the man – isn't comfortable with limiting what a homeowner can do with his property.

"I don't think it's right, but it's not my place to tell him he can't do it," said George W. Westmoreland, 79, who served three tours of duty in Vietnam. "I laid my life on the line so he would have the right to do this. This is what freedom is about."

The article profits from the analysis of Samford law prof Joseph Snoe (invoking Mahon (which I just taught) and other important precedents):

A law professor who is familiar with the case said it's squarely at the intersection of personal rights and government's power to regulate private property. While disputes over graves in peoples' yards might be rare, lawsuits over the use of eminent domain actions and zoning restrictions are becoming more common as the U.S. population grows, said Joseph Snoe, who teaches property law at Samford University in suburban Birmingham.

While it's a quirky fact pattern, this sort of case is intensely personal, and goes to show the broad range of issues that can end up in disputes over land use law.  Thanks to Troy Covington for the pointer.

Matt Festa

August 24, 2012 in Caselaw, History, Humorous, Property Rights, State Government, Sun Belt, Teaching | Permalink | Comments (0) | TrackBack (0)

Stern on Property's Constitution

James Y. Stern (Virginia) has posted Property's Constitution, forthcoming in the California Law Review.  The abstract:

Long-standing disagreements over the meaning of property as a matter of legal theory present a
special problem in constitutional law. The Due Process and Takings Clauses set forth individual rights that can only be asserted if “property” is at stake. Yet the leading cases interpreting constitutional property doctrines have never managed to articulate a coherent general view of property and in some instances reach opposite conclusions about its meaning. Most notably, government benefits are considered “property” for purposes of due process but not takings doctrines, a conflict the cases acknowledge but do not attempt to explain.

This Article offers a way to bring order to the confused treatment of property in constitutional law. It shows how a single definition of property can be adopted for all of the major constitutional property doctrines without the calamitous results that many seem to fear. It begins by arguing that property is best understood as the right to have some measure of legal control over the way a particular item is used, control that comes at the expense of all other people. It then argues that legal rights are a kind of private property and that, while courts and commentators are correct that legal entitlements to government benefits — so-called “new property” — should receive constitutional protection, they mistakenly believe the property at issue is the good that a recipient has a right to receive, rather than the legal right to receive it. The Article proceeds to show that legal rights are the only kind of things whose existence government can altogether extinguish and therefore that ownership of legal rights is the only kind of property right government can terminate without conferring equivalent property rights on others. The Article further argues that while due process protection should be read to apply whenever a person is denied an asserted property right (a deprivation), takings protection should only come into play when property rights are transferred from one party to another (a taking). Combining these observations, the Article concludes that termination not only of “new property” rights but also of old-fashioned in personam legal rights should trigger due process but not takings protection. This analysis provides theoretical coherence to constitutional doctrine that has thus far been lacking and it sheds light on the essential characteristics of property rights as a general matter, helping theoreticians understand more clearly the core structures of property law.

Matt Festa

August 24, 2012 in Constitutional Law, Federal Government, Property, Property Rights, Property Theory, Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 22, 2012

Who Owns Land Created by a Volcanic Eruption?

During my just-completed trip to Hawaii, I spent some time in the wonderful Hawaii Volcanoes National Park.  The volcanic eruptions in the park continue to add new land to Hawaii’s youngest and largest island.  In fact, over 500 acres of new land have been added since 1983 alone.

This led me to wonder who owned this new land.  It turns out that the US Geological Survey’s Hawaiian Volcano Observatory provided a helpful answer to this question a while back.  The Hawaii Supreme Court, in the 1977 case State by Kobayashi v. Zimring, 566 P.2d 725, decided the issue.  Granted this is not an issue of broad relevance, but I found their resolution of the question interesting.

In Zimring, the State of Hawaii sought to quiet title over 7.9 acres of new land added after a 1955 eruption extended the shoreline.  This new land, which was termed a “lava extension,” was adjacent to land purchased by the Zimrings in 1960, after the eruption.  The lava flowed over the purchased land and into the ocean, forming the new 7.9 acres of land.  After purchasing the adjacent land the Zimrings entered onto the new land, bulldozing it and planting trees.  The State even assessed the land and collected taxes from the Zimrings on it.  Nonetheless, the court found in favor of the State of Hawaii and in doing so distinguished lava flows from the common law doctrine regarding accretion of land.

The court first reviewed the history of Hawaiian law regarding private property ownership, concluding that it made clear that “land in its original state is public land and if not awarded or granted, such land remains in the public domain.”  It then considered whether there was a relevant doctrine from the common law or traditional Hawaiian usage that applied in the case.  It concluded that there were too few similar lava flows over private land to have established a usage. 

It then considered the common law, first declaring that “[n]o court sitting at common law has had occasion to deal with the question of lava extensions.”  The court distinguished the common law regarding accretion, the gradual increase of land through the deposit of soil.  Under the common law, owners of contiguous land take title to land formed by accretion.  In contrast, the court declared, “in cases where there have been rapid, easily perceived and sometimes violent shifts of land (avulsion) incident to floods, storms or channel breakthroughs, preexisting legal boundaries are retained notwithstanding the fact that former riparian owners may have lost their access to the water.”  Similarly, it noted that under California law if an accretion is caused by artificial means, the newly created land does not belong to the upland property owner.  The court concluded that “[r]ather than allowing only a few of the many lava victims the windfall of lava extensions, this court believes that equity and sound public policy demand that such land inure to the benefit of all the people of Hawaii, in whose behalf the government acts as trustee.”

It can be expected that the Loihi Seamount, which is being formed by volcanoes southeast of the Big Island, will similarly fall under control of the state when and if it emerges some thousands of years into the future.

John Infranca

August 22, 2012 in Beaches, History, Property, Property Rights, State Government | Permalink | Comments (1) | TrackBack (0)

Friday, August 17, 2012

Davis on Adverse Possession as a Redistributive Tool

Tessa Davis (Tulane) has posted Keeping the Welcome Mat Rolled-Up: Social Justice Theorists’ Failure to Embrace Adverse Possession as a Redistributive Tool, Journal of Transnational Law & Policy, Vol. 20, p. 73, 2010.  The abstract:

J.A. Pye (Oxford) Ltd.and another v. Graham and another (Pye), a recent U.K. case, raised the question of whether adverse possession may violate a human right to own property. The case implicated the then recent bringing adverse possession into the human rights realm. Yet, a review of the case as it moved through the U.K. courts and the European Court of Human Rights reveals, however, that courts have not embraced a consideration of adverse possession as playing a role in substantive human rights or social justice concerns. This is due, in part, to the dearth of human rights and social justice scholarship on the doctrine. Though human rights and social justice theorists have failed to fully develop the doctrine, their theories lay the groundwork for utilizing adverse possession as a tool to fashion new property systems. Utilizing adverse possession as a social justice tool can help foster systems with widespread property distribution while actively recognizing and supporting human rights of both owners and those seeking ownership.

Just today I witnessed a spirited discussion of adverse possession law, so its good to see some writing on the theory.

Matt Festa

August 17, 2012 in Comparative Land Use, Property Rights, Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, August 12, 2012

Penalver on Progressive Lessons from DeSoto

DeSotoEduardo M. Penalver (Cornell) has posted The Costs of Regulation or the Consequences of Poverty? Progressive Lessons from De Soto, which is a chapter from the book Hernando de Soto and Property in a Market Economy, (D. Benjamin Barros ed.), Ashgate, 2010.  Penalver's abstract:

Commentators have often characterized Hernando de Soto's advocacy of formalization of title for landless squatters as right-wing. And de Soto seems to understand himself as an advocate of individual property rights and free markets. But his analysis of informality and redistribution has a subtext with potentially progressive implications. Although de Soto sometimes reflexively attributes informality to overregulation, informality can always also be characterized as the consequence of being too poor to afford regulated goods. Indeed, for any particular regulation that puts the regulated good out of reach of the poor, we can either attribute this consequence to the cost of the regulation or to the consequences of a distribution of wealth that makes the regulated good unaffordable to those at the bottom. Thus, if the regulation is a good one, its effect on price, and therefore on informality, may argue in favor of keeping the regulation but redistributing purchasing power to blunt its pernicious impact on informality. What we need is a way of evaluating regulations that goes beyond merely observing their impact on the cost of goods and, indirectly, on the prevalence of informality. Specifically, we need to be able to evaluate four different possibilities: (1) regulation with redistribution to offset the impact of the regulation on the poor; (2) regulation without redistribution with its attendant increase in informality; (3) redistribution without regulation; and (4) no redistribution and no regulation. Choosing among these options is the domain of applied political theory. The choice is a far more complicated and demanding task than merely observing that regulation without redistribution increases informality.

All of the contributions to the 2010 Barros-edited volume on DeSoto are extremely interesting and thought-provoking.  Penalver's essay, just now posted on SSRN, pushes us to consider the property theory beyond the traditional political characterizations of DeSoto's ideas. 

Matt Festa

August 12, 2012 in Books, Comparative Land Use, Economic Development, History, Politics, Property Rights, Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

Field Report: The Ahupua'a of Hawaii

I am writing this blog post from lovely Kona on the island of Hawaii, where I am in town for the next week for the wedding of two good friends.  And, as luck would have it, I happened upon an interesting land use topic on my first full day here.  The National Historic Park Pu`uhonua O Hōnaunau, also known as Place of Refuge, was a designate piece of land where law breaking civilians, or warrior during times of war, could come and seek protection from the penalty of death. 

The park, which also include royal grounds adjoining the Place of Refuge, crosses over three Ahupua‘a, traditional Hawaiian land divisions that run in narrow pie-shaped tracts from the ocean to the mountains.  A number of these separate tracts would be under the control of an individual chief, and each Ahupua’a was ruled by a designated subordinate.  The boundaries of the Ahupua’a were shaped by streams or other natural features.  Each Ahupua’a was designed to be a self-contained area, which provided access to the sea for fishing and salt, to arable land for crops, and to the forests and mountains for resources.  The sizes of Ahupua’a would vary to ensure provision of adequate resources, resulting in wider tracts in less plentiful areas.

The Ahupua’a were largely split through land redistribution in the nineteenth century, but some remained intact under private ownership for some time.  In addition to being a system of land division, the Ahupua’a provided for cooperative use of the land and an emphasis on carefully protecting resources needed for survival.  Some contemporary groups are seeking to retrieve elements of the Ahupua’a system in the interests of sustainability and localism.

According to a Park Ranger I spoke with, it is believed that the Ahupua’a system was derived from Polynesian methods of land and social division.  I have heard of similar methods of dividing land into narrow tracts providing access to a range of resources in places including parts of Guyana and West Africa.

John Infranca 

August 12, 2012 in Agriculture, Beaches, Property Rights | Permalink | Comments (1) | TrackBack (0)

Saturday, August 4, 2012

Police Powers, Free Speech, and the Chick-fil-A Land Use Controversy

The Chick-fil-A land use controversy has mostly focused on freedom of speech, but I think there is a larger point about the police-power basis of land use regulation that has been overlooked.  In the wake of the Chick-fil-A CEO's comments on gay marriage, and the subsequent statements of public officials in Chicago and Boston indicating their opposition to building new Chick-fil-A franchises in their jurisdictions, there seems to be a general agreement that it would be illegal to deny building rights on the basis of the CEO's speech.  Ken Stahl and Stephen Miller have offered additional insights on the political, tax, and other potential motivations behind this controversy, with which I completely agree.  In this post, I want to expand on Ken's point about a potential Fourteenth Amendment violation of basing a land use decision on "animus" against the owner, and to peel back the onion a little bit and consider what might be the primary legal basis to a challenge to such a land use denial.

The general agreement seems to focus on the First Amendment free speech issue.  Eugene Volokh seems to have the definitive analysis that, whether or not one agrees with the CEO's opinions, it would be a First Amendment violation to deny a building permit on that basis (h/t Property Prof).  Viewed through the general prism of free speech and the Bill of Rights, this is entirely correct, and is probably sufficient for the public understanding of the issue.  As Prof. Volokh's caselaw indicates, there can be a First Amendment violation in denying a permit based on the property owner's speech.  But I think that's actually a secondary issue when it comes down to hypothetical litigation here.  What's really the primary issue, as I see it, is whether or not such a denial would be a violation of the police power itself.

The Chick-fil-A hypothetical permit denial does not on its face regulate speech: neither the CEO's personal remarks, nor the official speech of the corporation are being suppressed.  While there is a colorable as-applied claim of retaliation through the land use process in this hypo, the way I see it is that the primary cause of action would be that the permit denial was a violation of the statutory zoning/regulatory power itself.  In other words, Chick-fil-A would start by arguing that the city's denial of permission to build is not legitimately related to the purposes for which the state legislature granted the power to regulate.

The power of local governments to engage in planning, zoning, and building regulations comes from the police powers--the state legislature's plenary authority to regulate.  The Standard State Zoning Enabling Act, promulgated by Secretary Hoover's Commerce Department in 1926, starts with the standard description of the police-power font of authority for all modern land use regulation, which is "[f]or the purpose of promoting health, safety, morals, or the general welfare of the community . . . ."  This means that in theory, as long as there is a legitimate reason for regulating on those broad bases, a local government can be empowered to regulate land use in its political discretion.  Therefore there is a "presumption of constitutionality" granted to land use regulations (see Mandelker & Tarlock 1992 for a nuanced analysis of the presumption in judicial review).  Judicial review--again, in theory--has generally centered on whether the regulation itself (whether a use restriction, site requirement, etc.) is legitimately related to one of the police-power purposes.  A classic Euclidean example would be restriction of industrial uses from a residential area, for health and safety purposes.  

While the courts have given broad interpretation to the police power justifications of land use regulations, the outer limit is supposed to be--again, in theory--that the nature of the restriction is itself somehow related to the objective.  What it can't be is an arbitrary and capricious restriction based on considerations outside the police power. It's very similar to the "rational basis" standard of scrutinty that all lawyers learn about in consitutional law.

The reason this is important is because the presumption of constitutionality usually holds, the police powers usually win, and "arbitrary and capricious" challenges to land use decisions are hard to prove and usually lose.  Steve Clowney noted Matt Yglesias' insight that almost any seemingly-legitimate content-neutral reason could give a police-power justification to regulate despte ulterior motives (though I think his example of a Sunday-opening requirement isn't the best one--just about anything involving traffic, for example, would be much easier to justify), and this is obviously a longstanding issue in land use law.  But if I were trying to prove that a negative land use decision was outside the bounds of the police power basis of government regulation, I couldn't ask for a better piece of evidence than a published statement by a City Alderman like this:

"Because of this man's ignorance, I will now be denying Chick-fil-A's permit to open a restaurant in the 1st Ward."

(emphasis added).  In other words, the primary reason for the negative land use decision does not have anything to do with the actual use of the land itself, but instead is based primarily on the government official's opinion about the property owner's opinions about topics extraneous to the land use (again, the decision is not based on any discriminatory practice, or on speech taking place on the site).  This may in fact be a decision that is not rationally related to the police power basis for regulation, and could be struck down for that reason alone.  This is important because while the First Amendment angle that had dominated the discussion of the issue could apply "strict scrutiny" to the decision, this situation could be the much rarer case where a court could find a government decision to be arbitrary and capricous, and therefore to flunk the rational basis test itself.   Which means that this is potentially much more than just a case of an individual right trumping the regulatory power; it means that the city didn't have the power to do it in the first place.

This way of looking at the controversy allows us to consider the larger issue of what are the outer bounds of legitimate land use regulation, in a way that we don't often get to see in the real world.  I'm still no fan of the substance of the CEO's remarks on gay marriage, but as a land use specialist, I'm also very disturbed by what Ken identified as an attitude of "entitlement" to near-absolute discretion over land use decisions by government officials in informal systems such as Chicago's traditional "aldermanic privilege," which is apparently so ingrained that it can lead an elected official to say things like:

"You have the right to say what you want to say, but zoning is not a right."

Well, maybe not, but the latter certainly can't depend on what a government official thinks of the former.  Zoning still has to comport with the rule of law.

Matt Festa

August 4, 2012 in Chicago, Constitutional Law, First Amendment, History, Judicial Review, Local Government, Politics, Property Rights, Zoning | Permalink | Comments (0) | TrackBack (0)

Saturday, July 28, 2012

Chick-fil-A, Gay Marriage, Constitutional Law, and Land Use

Even the culture wars often end up in a land use controversy.  Over the past few days, public officials in Boston and Chicago made statements that Chick-fil-A restaurants would not be welcome in their jurisdictions because of the anti-gay-marriage opinions expressed by the company's CEO.  According to the Wall Street Journal's Jack Nicas, one Chicago alderman went so far as to state that he would personally deny a permit solely on that basis.  From First Amendment Trumps Critics of Chick-fil-A:

Chicago Alderman Proco Moreno wrote in the Chicago Tribune Thursday, "Because of [Mr. Cathy's] ignorance, I will deny Chick-fil-A a permit to open a restaurant in my ward."

I don't agree with the CEO's statements either, but it's pretty clear that, under the Constitution, his opinions can't legitimately be the basis for granting or denying land use permission.  Cleveland State law prof Alan Weinstein put it best:

Alan Weinstein, a professor of law at Cleveland State University who specializes on the intersection of land-use law and constitutional issues, said he has seen officials try to use zoning laws to block adult stores or religious institutions, but never a commercial enterprise because of political views. He said that beyond the First Amendment, "in the land-use sphere, the government has no legitimate interest" in the political views of an applicant.

That last observation is key.  Most of the commentary on this issue has revolved around the CEO's First Amendment rights.  And it's true that free speech is one of the only areas where the courts will apply strict scrutiny to overturn government land use decisions.  But as Prof. Weinstein notes, this question isn't even really about regulating actual speech on land; it's about the rational basis for land use regulation itself under the police powers. 

From a pragmatic perspective, it's pretty easy to imagine a counterfactual scenario where an unpopular political opinion on the other side of the spectrum could likewise result in negative land use decisions under such a precedent.  It appears that this constitutional reality is setting in, and the public officials are backtracking.  Here's a video interview with the WSJ reporter:

 

I was one of the other "land use experts" who talked to the reporter, but Prof. Weinstein definitely said it best.   

So to sum up: Many of us disagree with the Chick-fil-A CEO's opinions, but everyone seems to agree that it would be unconsitituional to prohibit the company's land use on that basis.

Matt Festa

July 28, 2012 in Constitutional Law, First Amendment, Food, Local Government, Politics, Property Rights, Zoning | Permalink | Comments (0) | TrackBack (0)

Thursday, July 26, 2012

DeGennaro & Li on Business Formation in the Wake of State Responses to Kelo

Ramon P. DeGennaro (Tennessee--Finance) and Tianning Li (Hood College) have posted Business Formation in the Wake of States' Responses to Kelo.  The abstract:

On June 23, 2005, the U.S. Supreme Court ruled in Kelo v. City of New London, 505 U.S. 469 (2005) that the Public Use Clause allows governments to take private property for transfer to new private owners for the purpose of promoting “economic development.” Our theoretical model identifies the circumstances under which Kelo and subsequent state laws affect business formation. We show that business creation can be encouraged, unaffected, or discouraged as the probability of takings increases, depending on the level of compensation for the takings and the magnitude of the owners’ public use benefits. We also show that utility-maximizing entrepreneurs’ choices of investment depend on the probability of takings and the level of government compensation for the taking. Our empirical results yield three insights. First, states and municipalities can pass laws protecting property rights without fear of retarding business formation. Second, we identify explanations why Kelo and these laws do not measurably affect business formation in our empirical work. Specifically, we believe that either government entities correctly compensate entrepreneurs for the disruption in their businesses through eminent domain legislation, or that the change in the probability of such takings is very small, so that any effect on business formation is too small to measure. Third, takings open the possibility for political corruption and distortions in the economy by encouraging overpayment or underpayment for takings. Under this interpretation, local laws against takings are not pro-business laws or anti-business laws. Rather, they are anti-corruption laws.

Matt Festa

July 26, 2012 in Eminent Domain, Local Government, Property Rights, Scholarship, State Government, Takings | Permalink | Comments (2) | TrackBack (0)

Wednesday, July 18, 2012

Power on Stop the Beach: Property Rights, the 'Gang of Four' & the Fifth Vote

Garrett Power (Maryland) has posted Property Rights, the 'Gang of Four' & the Fifth Vote: Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection (U.S. Supreme Court 2010), 25 Widener Law Journal (2012).  The abstract:

In 2010 The U.S. Supreme Court decided the case of Stop the Beach Renourishment v. Florida Department of Environmental Protection (SBR v. Fla. EPA). Justice Antonin Scalia announced the judgment of the Court. All Justices agreed that Florida had not violated the Takings Clause of the Federal Constitution’s Fifth Amendment. But then in a plurality opinion Justice Scalia joined by the Chief Justice Roberts and Justices Thomas and Alito proposed profound changes in the law of “regulatory takings.” As the spokesman for the Court’s property rights absolutists Scalia advanced two novel legal propositions. First he argued that federal courts had the power to collaterally attack and reverse state court decisions which evaded the requirements of the Taking Clause with pretextual background principles of the State's law of property. Second he opined that each of the “essential sticks in the bundle of rights that are commonly characterized as property” was a separate distinct property right, and that any deprivation of an “established property right” was a compensable Taking under the Fifth and Fourteenth Amendments. If the “Gang of Four” can find a fifth vote, the law of regulatory takings will be radically revised.

Matt Festa

July 18, 2012 in Beaches, Caselaw, Coastal Regulation, Constitutional Law, Eminent Domain, Property Rights, Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Thursday, July 12, 2012

Letters from the field: Buying a share of utopia in Copenhagen

I’ve just returned from several weeks of travel, and thought I’d post on several items I saw along the way.  The first of these was a utopian community in Copenhagen, Denmark, called Christiana.  Christiana is on an island, Christianhavn, adjacent to the central city of Copenhagen that had been used for military purposes for centuries.  When the Danish military closed a base on the island in the Sixties, some freedom-loving hippies and other radicals set up shop  by squatting on the land, declared their independence from the Danish state (adverse possession is for sissies, apparently), refused to pay taxes, and otherwise have engaged in community- and ganja-based decision-making ever since.  About 1,000 residents now call Christiana home.

There are several aspects of Christiana that I think land use folks will find interesting.  First, after four decades of tolerating open rebellion in its midsts, the Danish government finally decided that it needed to do something about Christiana.  You might be anticipating a “throw the bums out” approach; but remember, this is Denmark, not Rudy Giuliani’s New York City.  Instead of mounting riot troops at Christiana’s borders, the Danish government sent in their lawyers with an ultimatum:  Christiana’s residents could stay, but they would have to buy the land from the Danish government.  But the Danish government did not demand the market price for the property; instead, they offered the property to Christiana’s residents for a song.  In a sense, all the Danish government is seeking to do is to legitimate the ownership of the land; in other words, if Christian’s residents “own” the land, there is some acknowledgment of the government’s control and sovereignty over that land.  But, of course, the Christiana residents disdain this idea of ownership even though they need to raise capital to purchase the land.  

The result has been one of the most peculiar of solutions:  a stock offering of nominal ownership that investors can purchase. 

As the New York Times described it:

[Christiana's residents] decided to start selling shares in Christiania. Pieces of paper, hand-printed on site, the shares can be had for amounts from $3.50 to $1,750. Shareholders are entitled to a symbolic sense of ownership in Christiania and the promise of an invitation to a planned annual shareholder party. “Christiania belongs to everyone,” Mr. Manghezi said. “We’re trying to put ownership in an abstract form.”

Since the shares were first offered in the fall, about $1.25 million worth have been sold in Denmark and abroad. The money raised will go toward the purchase of the land from the government.

I found this struggle over the idea of ownership to be fascinating.  After all, the amount the Danish government is seeking from Christiana is far below the market price of the land in the now trendy area of Christianhavn.  However, what the government is doing is forcing the utopian community out of its stance of declaring “independence” from the Danish state, while Christiana’s residents attempt to use arcane legal structures to avoid sullying their hands with the prospect of “ownership.”  Am I the only one who thinks of Johnson v. M'Intosh on these facts?

The second interesting issue in Christiana was a poster located on the community’s main meeting Christiana Common Lawroom, which establishes the community’s “common law.”  A picture is to the right.  Now, at first blush, this will not look much like common law, but rather a visual statutory scheme, or maybe even something like the Ten Commandments if written for a biker gang.  But it was the kind of rules that interested me:  they speak, I think, to the kinds of problems that must have evolved in Christiana over time:  hard drugs, biker’s colors, firearms, and so on.  Each of these rules, you can imagine, resulted from a particular incident, and so a “common law” evolved in this place where all decisions are made collectively.  Such a common law speaks to the potentially rough nature of standing as a state independent from the protection of the sovereign.  It made me think of the devolution of all of the United States’ utopian communities, from New Harmony on down.  Is such a slide into anarchy, or the fight against anarchy, inevitable in such utopian movements?  I don’t know, but Christiana remains, and it seems to continue to thrive despite its troubles.  It eeks out a living on the sale of rasta trinkets and “green light district” paraphernalia.  And even in this space where there is supposedly no sovereign, there is still some law, borne of hard experience, common to all.  Its future, cast somewhere between lawfully-abiding property owner and anti-property ownership crusaders, between freedom and the "common law's" protections, will be interesting to watch in the coming decades.

Stephen R. Miller

July 12, 2012 in Aesthetic Regulation, Architecture, Community Economic Development, Comparative Land Use, Constitutional Law, Development, Economic Development, Eminent Domain, Globalism, Planning, Property, Property Rights | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 3, 2012

Dwyer on Urban Blight and its Impact on Children

James G. Dwyer (William & Mary) has posted No Place for Children: Addressing Urban Blight and Its Impact on Children Through Child Protection Law, Domestic Relations Law, and 'Adult-Only' Residential Zoning, Alabama Law Review, vol. 62 (2011).  The abstract:

For any child, residential location is a large determinant of well-being. At the negative extreme, a neighborhood can pose threats to children's well-being far exceeding those present within the home in typical cases of child protection removal. The worst neighborhoods pose direct threats to children's physical and psychological well-being, and they also adversely affect children indirectly by creating stressors that undermine parents' abilities to care for children. Pervasive crime and substance abuse, in particular, substantially elevate risks to children beyond those created just by less capable or less motivated parents. Given that a relatively high percentage of adults who live in the worst neighborhoods are marginal to begin with, in terms of their inherent capacities for giving care and maintaining safe and healthy homes, the additional threats present in the larger residential environment push the experience of most children in such neighborhoods below what most people -- including those who live in the neighborhoods -- would regard as a minimally acceptable quality of life. Because such neighborhoods are also likely to have inadequate -- even dangerous -- schools and few legal employment opportunities, living in them severely diminishes the life prospects of children forced to grow up in them.

To date, government efforts to improve the lives of these children, and scholarly writing on the topic, have focused on urban renewal and criminal law enforcement in these neighborhoods. These have mostly been unsuccessful, where they do succeed they typically do so by simply relocating the dysfunction to another neighborhood, and even if renewal efforts undertaken today might ultimately be successful that is of no help to a child born today into dangerous urban blight. The only way to ensure that children do not suffer the effects of growing up in deeply dysfunctional communities is to get them out now. Policy should shift to a strategy of separating children as early as possible from the adults who are creating toxic social environments in impoverished areas. In fact, programs that have assisted parents who wished to relocate with their children from high-poverty, inner-city neighborhoods to low-poverty areas have greatly improved the children's well-being and longterm life prospects. This Article presents a novel argument for expanding such relocation programs, an argument founded upon basic rights of children -- not rights against private actors who might harm them, though children certainly possess such rights, but rather rights against the state. I argue that the state violates basic rights of children by making certain decisions about children's lives that effectively consign many of them to living in hellish conditions. To remedy this violation of children's rights, the state should now institute reforms such as giving children first priority in distribution of housing vouchers and in provision of relocation assistance and, most controversially, making relocation out of the most dangerous neighborhoods mandatory rather than voluntary for parents who have and wish to retain custody of children. The state should no more permit parents to house children in apartments where stray bullets come through windows and drug addicts clutter the hallways outside than permit parents to take children into casinos and nightclubs. This Article argues that the state is legally free, and in fact morally and legally obligated, to adopt new legal rules and policies aimed at ensuring that no children live in the horrible neighborhoods that exist, and likely will always exist, in our society. It also presents a constitutional lever for overcoming political and community resistance to taking the necessary measures. These measures would entail changes to the law in three broad areas -- child maltreatment, domestic relations, and zoning.

Matt Festa

July 3, 2012 in Affordable Housing, Crime, Density, Economic Development, Housing, Politics, Property Rights, Scholarship, State Government | Permalink | Comments (0) | TrackBack (0)

Thursday, June 28, 2012

Mulvaney on Exactions for the Future

Timothy M. Mulvaney (Texas Wesleyan) has posted Exactions for the Future, Baylor Law Review vol. 64, p. 101 (2012).  The abstract:

New development commonly contributes to projected infrastructural demands caused by multiple parties or amplifies the impacts of anticipated natural hazards. At times, these impacts only can be addressed through coordinated actions over a lengthy period. In theory, the ability of local governments to attach conditions, or “exactions,” to discretionary land use permits can serve as one tool to accomplish this end. Unlike traditional exactions that regularly respond to demonstrably measurable, immediate development harms, these “exactions for the future” — exactions responsive to cumulative anticipated future harms — admittedly can present land assembly concerns and involve inherently uncertain long-range government forecasting. Yet it is not clear these practical impediments are sufficient to warrant the near categorical prohibition on such exactions that is imposed by current Takings Clause jurisprudence. After analyzing the features of takings law that constrict the use of such an exactions scheme, this article offers an alternative approach to exaction imposition involving temporal segmentation of the government’s sought-after interest, which could provide a public tool to address anticipated future harms while offering at least some protection against takings claims.

This is the latest important piece of Prof. Mulvaney's work on exactions and time.  Check it out, and Gig 'em Aggies! 

Matt Festa

June 28, 2012 in Constitutional Law, Property Rights, Property Theory, Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)