Saturday, May 19, 2012
Robert W. Adler (Utah) has posted The Ancient Mariner of Constitutional Law: The Declining Role of Navigability, forthcoming in Vol. 90 Washington University Law Review (2013). The abstract:
For the first time in three decades, in its 2011-2012 Term the U.S. Supreme Court decided a case involving “navigability for title,” in which the issue of whether a river or other body of water is navigable determines whether a state has owned the beds and banks of the waterway since statehood. PPL Montana, LLC v. State, __ S. Ct. __, No. 10-218, 2012 WL 555205 (2012). The Court held that, in determining navigability for title, courts must focus on discrete segments of the river rather than the river as a whole, and that evidence of current navigability can only be used in limited circumstances to prove navigability at statehood. Under this ruling, as time passes it will become increasingly difficult for states to prove that a river was navigable at statehood, particularly where historical records are scarce.
The PPL Montana case, however, raises more fundamental questions about the continuing role of navigability as a central tenet of U.S. constitutional law, for which it serves several distinct but related purposes. In addition to the navigability for title test, slightly different navigability tests govern the geographical scope of federal authority under the Commerce Clause and the federal navigational servitude, and of Article III admiralty jurisdiction. Each of these doctrines dates to a time when rivers were our most important avenues of commerce. Waterways continue to serve as major avenues of commerce. Through the lens of twenty-first century science and values, however, rivers serve a much broader range of public purposes, such as water supply, biodiversity and habitat, fish and wildlife production, recreational use, flood control and watershed protection, and pollution assimilation. The role of navigability has declined accordingly for Commerce Clause purposes, but not for purposes of allocating public versus private proprietary rights in rivers and other waters. This article suggests that while navigability obviously remains relevant for some constitutional purposes, its role should diminish as the value of navigation as the main public function of waterways continues to decline relative to other public uses and values.
We've talked about the PPL Montana case in the past, and this article provides even further support for its significance. The "navigable waters" question is going to be of continuing importance for both property law and constitutional law.
I love the "Rime" reference in the title, too.
Friday, May 18, 2012
Steven J. Eagle (George Mason) has posted Judicial Takings and State Takings, forthcoming in the Widener Law Journal. The abstract:
In Stop the Beach Renourishment v. Florida Department of Environmental Protection, a Supreme Court plurality asserted that takings liability could arise from judicial acts, as well as from state or local legislation and executive agency decisions. The Plurality’s rationale supporting “judicial takings” was that the Just Compensation Clause of the Fifth Amendment applies to State acts, not to particular State actors.
This article starts by reviewing the doctrinal bases for the Stop the Beach plurality opinion. It provides prudential reasons why rulings affecting property rights might be legitimate under state law, but nevertheless constitute compensable takings under the federal constitution. It then analyzes the implications of the “state acts and not state actors” doctrine to existing regulatory takings law. Viewed through the lens of “state acts,” the rationales of the Supreme Court’s Williamson County “state litigation” prong and its Dolan “legislative vs. adjudicative” bifurcation are undermined. Similarly, takings distinctions pertaining to whether small-scale rezonings are “legislative” or “quasi-judicial” acts are drawn into question.
Wednesday, May 16, 2012
Up until now the Keystone Pipeline issue has been cast mainly as a contest between an economic development imperative and environmental conservation. Legal commentators have analyzed it as an environmental issue. As most people can infer, though, the notion of building an "infrastructure" project from Canada to the Gulf of Mexico will require some land rights. Perhaps only in Texas can we see the underlying tension between two principles that are very often in direct conflict: the exploitation of oil and gas resources, and the property owner's rights to her land. The New York Times last week did a fascinating story on one Texas landowner's fight against the eminent domain authority of the Keystone Pipeline, An Old Texas Tale Retold: The Farmer versus the Oil Company.
Ms. Crawford is worried about the possible contamination of her creek. She pointed out that the Keystone 1, TransCanada’s first pipeline, had a dozen spills in its first year of operation.
“I called my farm insurance agent and asked what happens if there’s a spill, I can’t water my crops, and my corn dies,” she said. “He said my insurance won’t cover that. I’d have to sue TransCanada for damages.”
The Crawfords are the last holdouts in Lamar County. (It is unclear how many are left in Texas; the company says it has 99 percent of the rights of way secured.) TransCanada asserts that it has used eminent domain only as “an absolute last resort” in an estimated 19 out of 1,452 land tracts in Texas. Critics dispute this number. . . .
Asked if she would take TransCanada’s offer now — if it meant the full $21,000, with all of her conditions met — she did not hesitate. “No,” she said. “There’s a $20,000 check sitting in the courthouse waiting for us,” she said. “But if we touch it, game over. We lose the use of our land, and we admit what they’re doing is right.”
This is a longstanding issue, both historically and today, but it often gets overlooked when people conflate Texas stereotypes about both property rights and solicitude for oil and gas. Ilya Somin commented on the article at the Volokh Conspiracy, noting correctly that despite its pro-property rights reputation and cosmetic legislation, Texas law still empowers quite a bit of eminent domain for economic development purposes:
Such efforts are unlikely to succeed in Texas. As I described in this article, Texas is one of many states that have passed post-Kelo reform laws that pretend to constrain economic development takings without actually doing so. They might have a better chance in one of the other states through which the pipeline must pass.
The larger question that he poses is whether and how environmental concerns will play a part in future discussions about eminent domain and the never-ending debate over the essentially contested concepts of property rights and the common good. In the real world of land use, the alignment of stakeholders, interests, policy preferences, and legal interpretations isn't always as easy to predict as the cartoon versions might imply.
May 16, 2012 in Agriculture, Economic Development, Eminent Domain, Environmental Law, Environmentalism, History, Houston, Judicial Review, Oil & Gas, Property Rights, Scholarship, State Government, Takings, Texas | Permalink | Comments (1) | TrackBack (0)
Tuesday, May 8, 2012
On Wednesday I'll be part of the ABA's "Professor's Corner" teleconference, to discuss Severance v. Patterson, the Texas Open Beaches Act case. The teleconference is Wednesday, May 9 at 12:30 eastern/11:30 central. All are welcome to participate at the number below. The blurb:
The ABA Real Property, Trust and Estate Law Section’s Legal Education and Uniform Laws Group has a regular (and free!) monthly teleconference, “Professor’s Corner,” in which a panel of three law professors highlight and discuss recent real property cases of note.
Members of the AALS Real Estate Transactions section are encouraged to participate in this monthly call (which is always on the second Wednesday of the month).
The May 2012 call is this Wednesday, May 9, 2012, at 12:30 p.m. Eastern time (11:30 a.m. Central, 9:30 a..m. Pacific). The call-in number is 866-646-6488. When prompted for the passcode, enter the passcode number 557 741 9753.
The panelists for May 9, 2012 are:
Professor Tanya Marsh, Assistant Professor of Law, Wake Forest University School of Law. Professor Marsh will discuss Roundy’s Inc. v. National Labor Relations Board, 674 F.3d 638 (7th Cir. 2012). Decided in March 2012, this case held that Roundy’s (a non-union supermarket chain) did not have the right to exclude third parties (in this case, non-employee union organizers) from common areas of shopping centers in which it operated.
Professor Matt Festa, Associate Professor of Law, South Texas College of Law. Professor Festa will discuss Severance v. Patterson, 2012 WL 1059341 (Tex. 2012). In this case, decided March 30, 2012, the Texas Supreme Court struck down the “rolling easement” theory of public beachfront property access under the Texas Open Beaches Act.
Professor Wilson Freyermuth, John D. Lawson Professor and Curators’ Teaching Professor, University of Missouri. Professor Freyermuth will discuss Summerhill Village Homeowners Ass’n v. Roughley, 270 P.3d 639 (Wash. Ct. App. 2012), in which the court refused to permit the mortgage lender to exercise statutory redemption after its lien was extinguished by virtue of a foreclosure sale by an owners’ association to enforce its lien for unpaid assessments. He will also discuss First Bank v. Fischer & Frichtel, 2012 WL 1339437 (Mo. April 12, 2012), in which the Missouri court rejected the “fair value” approach to calculating deficiency judgments under the Restatement of Mortgages.
It should be an interesting conversation with a good variety issues to discuss. Please feel welcome to participate, whether or not you are a currently a section member.
UPDATE: Thanks to everyone who participated, and to Wilson Freyermuth for moderating and Tanya Marsh for inviting me. The ABA RPTE Section will be doing this every month, so stay tuned for more interesting discussions to come!
Wednesday, May 2, 2012
Many thanks to Matt for inviting me back as a guest blogger! If nothing else, a bit of blogging will provide me a productive distraction this month from grading spring semester exams. Matt and the entire team of editors continue to do an outstanding job with the blog, and it’s absolutely one of my favorite morning reads.
I’ll use my first post to respond to Matt’s half-joking question: why should a land use prof spend time thinking about the space above land? After all, airspace rights receive scant attention in most land use casebooks. Discussions of airspace rights might seem better suited for a course on aviation law. Land use profs should stay down in the dirt, right?
Not necessarily. Over the past few years, I've managed to convince myself that some of the most perplexing and unsettled land use conflicts of the day involve the oft-forgotten space just above the surface of land.
For me, it all began while I was still practicing at a large law firm in Seattle. Our wind energy developer client approached us with a puzzling question: can a landowner be liable for stealing a neighbor’s wind? The client and a competing developer had leased adjacent parcels for wind farms. Our client wanted to install a wind turbine immediately upwind of one of the competitor’s turbine sites that was situated just on the other side of their common property boundary line. If both turbines were installed, the turbulent “wake” from the upwind turbine would render the downwind turbine largely ineffective. Only one of these two prime turbine sites could be profitably developed. Under the law, who should prevail in this dispute over wind – the upwind party or the downwind party?
While I was wrestling with that question, I stumbled upon the topic of solar access--a similar sort of airspace use conflict that involves solar energy devices instead of wind turbines. Should landowners be liable when trees or buildings on their parcels shade a neighbor’s solar panels? Laws Wyoming and New Mexico effectively give solar energy users strong legal protections against shading—“solar rights”—drawing analogies to water law’s prior appropriation doctrine. But these analogies to water law are misguided, ignoring neighbors’ longstanding rights in the airspace above their land. Better governance rules are needed for these conflicts that are capable of balancing policymakers’ general interest in promoting solar energy with the existing airspace rights of neighbors.
These wind and solar energy disputes over airspace are just two examples of how airspace is playing an increasingly crucial role in the sustainability movement. Vertical construction and infill development that occupy additional airspace continue to be significant strategies for curbing suburban sprawl, and city-based tree planting programs are occupying more urban airspace as well. At the same time, planners and sustainability advocates are pushing other strategies that require that more airspace be kept open. For example, city-sponsored urban gardens need significant amounts of un-shaded sunlight to thrive, and even LEED certification standards award points for natural lighting designs that often rely on skylights, windows, and minimal shade. When combined with the solar and wind energy uses of airspace mentioned above, these developments are collectively generating an unprecedented level of competition for scarce airspace.
In summary, I think that airspace is very much a topic worth covering in a land use course. There is reason to believe that the challenge of crafting policies that can fairly and efficiently govern airspace conflicts is only beginning and will continue to vex policymakers and legal scholars well into the future.
Monday, April 30, 2012
Kirsten Matoy Carlson (Wayne State) has posted Priceless Property, forthcoming in the Georgia State University Law Review. The abstract:
In 2011, the poorest Indians in the United States refused to accept over $1 billion dollars from the United States government. They reiterated their long held belief that money – even $1.3 billion dollars – could not compensate them for the taking of their beloved Black Hills. A closer look at the formation of the Sioux claim to the Black Hills helps us to understand why the Sioux Nation has repeatedly rejected over $1 billion dollars in compensation for land taken by the United States over 100 years ago. This article seeks to understand why the Sioux view the Black Hills as priceless by studying the formation of the Black Hills claim. It constructs a new, richer approach to understanding dispute formation by combining narrative analysis with the sociolegal framework for explaining dispute formation. The article argues that narratives enrich the naming, claiming, and blaming stages of dispute creation and illustrates the usefulness of this new approach through a case study of the Black Hills claim. It uses the autobiographical work of an ordinary Sioux woman to provide a narrative lens to the creation of the Sioux claim to the Black Hills. American Indian Stories by Zitkala-Sa presents a narrative of Sioux life around the time of the claims emergence. By contextualizing and humanizing the claim, my analysis provides insights into why the Sioux claim to the Black Hills emerged into a legal dispute and helps to explain why the Black Hills remain priceless property to the Sioux Nation today.
This article employs more of a law-and-humanities approach focusing on social and historical context and personal stories, which I think makes it an interesting read.
Friday, April 13, 2012
John Gillespie (Monash University) has posted Exploring the Limits of the Judicialization of Urban Land Disputes in Vietnam, Law and Society Review, Volume 45, No. 2, pp. 241-275, 2011. The abstract:
Economic and legal reforms have triggered waves of conflict over property rights and access to urban land in Vietnam. In this article I develop four epistemic case studies to explore the main precepts and practices that courts must negotiate to extend their authority over land disputes. Courts face a dilemma: Do they apply state laws that disregard community regulatory practices and risk losing social relevance, or apply community notions of situational justice that undermine rule formalism? I conclude that reforms designed to increase rule formalism in the courts may have the unintended consequence of reducing the capacity for judges to find lasting solutions to land disputes.
Thursday, April 12, 2012
This looks like a fascinating legal history/land use story. Bruce Ziff (Alberta) has posted The Great Onyx Cave Cases--A Micro-History. The abstract:
Controversies surrounding property rights to the Great Onyx Cave in Kentucky have given rise to two legendary decisions with enduring legal importance. The first of these, Edwards v. Sims (1929), is a leading authority on the extent of ownership rights below the surface of land. The second, Edwards v. Lee's Administrator (1936), concerns the appropriate measure of damages for trespass. Stripped to essentials, the facts that led to these two important rulings are quite straightforward: E discovered a cave beneath his surface, which he developed into a thriving tourist attraction. However, it turns out that approximately one-third of the cave passes below, well below, the surface of land owned by L, who had no ready means of access to the cave. Should title to the cave as a whole belong to the party who owns the mouth and who has taken possession? If not, how might one assess damages for trespass where E has benefited financially by the acts of trespass, but L has no practical use for his portion of the cave?
Of course, life is rarely as simple as that suggested by these sparse facts, and if one delves into the background of these famous cases -- a story that has been neglected over the years -- additional insights emerge. As it turns out, this dispute is one episode in a tempestuous time, the so-called 'cave wars' period, in which confrontations and lawsuits over cave rights and tourism in the region were commonplace. Moreover, the fight over Great Onyx Cave arose amid a campaign to acquire the caves in the region for a national park. As the clouds of the Depression formed, the park project must have held out hope for the local landowners. In addition, one member of the Kentucky Court of Appeals, Marvel Mills Logan, played a significant and somewhat unconventional role in the Great Onyx Cave litigation and the events surrounding it. His place in the story is examined in detail.
Monday, April 9, 2012
Larissa M. Katz (Queen's University) has an important new piece up: 'Governing Through Owners': How and Why Formal Private Property Rights Enhance State Power, forthcoming in the Pennsylvania Law Review (2012). The abstract:
A system of formal private property rights is a network of offices through which states can allocate responsibility to individuals on a mass scale for a wide variety of tasks, including some of the state’s core governance functions. A system of property rights do not straightforwardly constrain the state; in some contexts, they enhance state power, too. Because many of the state’s core governance functions are territorially defined (such as the maintenance of peace and order within the territory, defense of the territory from external threats, and the provision of infrastructure), this phenomenon appears most clearly in the case of private property rights in land. A network of landowners is a useful (and sometimes crucial) tool that enables a state to govern locally in the farthest reaches of its territory, even when it lacks the capacity or will to use other more formal tools for governance, such as governing by bureaucracy or licence. Thus, it is useful to think of the state’s power to define property rights in a manner that includes the obligation to carry out core state governance functions as itself a mode of governance. I call this “governing through owners.”
This model of state-owner relations emerges from two important conceptual starting points: first, the nature of ownership as an office through which the state assigns burdens; and second, what I call the “survival conditions” of a territorially defined state, namely, the establishment of basic governmental functions throughout its territory.
Looks like a must-read.
Friday, April 6, 2012
In the past week there have been two major state court takings decisions--both involving beachfront property--and a U.S. Supreme Court cert grant in a takings case from the Federal Circuit. Our erstwhile guest blogger Prof. Tim Mulvaney has a terrific analysis over on the Environmental Prof Blog: A Hectic Week on the Takings Front. From the post:
For Takings Clause enthusiasts, the past week has proven a busy one. Two state court decisions out of Texas and New Jersey, coupled with a grant of certiorari at the U.S. Supreme Court, threaten to constrain governmental decision-making at the complex intersection of land and water.
Tim's post discusses the Texas Supreme Court's final decision in Severance v. Patterson; the New Jersey case of Harvey Cedars v. Karan; and the SCOTUS cert grant in Arkansas Game & Fish Comm'n v. U.S. Exciting times in the takings world. Read Tim's whole post for a good analysis.
April 6, 2012 in Beaches, Caselaw, Coastal Regulation, Constitutional Law, Federal Government, Property Rights, State Government, Supreme Court, Takings, Texas, Water | Permalink | Comments (0) | TrackBack (0)
Monday, April 2, 2012
Eric R. Claeys (George Mason) has another new paper out: Locke Unlocked: Productive Use in Trespass, Adverse Possession, and Labor Theory. The abstract:
Most American property scholars acknowledge that “Of Property,” chapter 5 of John Locke’s Second Treatise of Government, deserves a significant place in the canon of property theory. Virtually all of those scholars, however, understand Of Property in one of several manners that trivialize its argument. This Article draws on scholarship published in the last 20 years in political philosophy and intellectual history, by scholars who understand Locke to propound a theory of labor called here “productive labor theory.” Productive labor theory judges legal and other normative institutions by how effectively the domains of freedom they create in relation to external assets help a wide range of citizens extract from those assets benefits likely to contribute to their rational flourishing.
This Article restates the main tenets of productive labor theory as propounded in that political-philosophy and intellectual-history scholarship. To make productive labor theory concrete, the Article illustrates how it applies to the prima facie case of trespass to land, the remedies for ongoing encroachments, and adverse possession and a few other common defenses to trespass. To situate productive labor theory in relation to legal academics’ impressions, the Article contrasts productive labor theory with act utilitarianism, with the libertarian rendition of Lockean worked out by Robert Nozick in Anarchy, State, and Utopia (1974), and with the labor-desert claims commonly associated with section 27 of the Second Treatise.
Friday, March 30, 2012
As regular readers know, we have a fondess for blogging about chickens. Now our friend Prof. Sarah Schindler (Maine) has given us another opportunity with her new article Of Backyard Chickens and Front Yard Gardens: The Conflict between Local Governments and Locavores, forthcoming in the Tulane Law Review, Vol. 87 (2012). The abstract:
Locavores aim to source their food locally. Many locavores are also concerned more broadly with living sustainably and decreasing reliance on industrial agriculture. As more people have joined the locavore movement, including many who reside in urban and suburban areas, conflict has emerged between the locavores’ desires to use their private property to produce food — for personal use and for sale — and municipal zoning ordinances that seek to separate agriculture from residential uses.
In this article, I consider the evolution of this conflict and its implications for our systems of land use, local government, and environmental law. Specifically, I investigate the police power rationales for the existence of ordinances that disallow urban homesteading in urban and suburban communities. I then demonstrate that public health, civic virtue, and free market principles can be used to justify the passage of ordinances that would expressly permit these behaviors. Central to this analysis is a discussion of the problems caused by industrial agriculture and the lack of access to locally produced foods — food insecurity, food deserts, obesity tied to processed foods, monoculture-induced environmental catastrophes, harm to animals, and greenhouse gas emissions — all of which could be alleviated, at least in part, through urban agriculture. In recognition of these changing conceptions of harm, some local governments have begun to pass ordinances expressly allowing gardens, chickens, and the sale of produce in residential areas. I conclude by considering what this movement toward loosening restrictions on the use of private property says more broadly about the decline of Euclidean zoning controls and the future of land use law.
While the urban agriculture issues are very interesting in their own right, the implications of this article go to the heart of the modern discomfort with the legacy of traditional Euclidean land use regulation. Well worth a read.
Wednesday, March 28, 2012
A couple of weeks ago, I sat down and read Matt Yglesias’ The Rent Is Too Damned High and Ryan Avent’s The Gated City back to back. Both were a pleasure to read, for their content, and for the opportunity to kick a couple of bucks to two of my fave bloggers behind an ennobling veil of commerce. As an avid reader of both authors’ online work, there were no huge surprises, but reading the ebooks took me deeper and inspired some more considered thought on their ideas. Ryan Avent and Matt Yglesias (and Ed Glaeser too!) are separate humans with their own identities and ideas. But these “econourbanists” share a core view, and I hope they will forgive me if I consider their work together. Although they arrive at a similar place, the two books take very different roads: Avent’s book is a bit wonkier and more economistic, focusing on the macro role of cities in enhancing productivity through economies of scale and agglomeration; Yglesias treats the same set of issues more polemically and with an emphasis on the personal, thinking about how individuals should expect to make a living in an increasingly service-oriented economy, the importance of accessible cities to the kind of prosperity he envisions, and the perils of any obstacle that makes urban life inaccessible (“the rent is too damned high!”). Read both!
This is a long post with extensive analysis of the reviewed work and the authors' own insights. Waldman is a qualified skeptic of the authors' approaches. A very insightful essay that grapples with the issues I am trying to address in my own scholarship. I am glad to add a new term-- "econourbanist"-- to my land use lexicon! Thanks to Geoff Corn for the link.
Edward J. Sullivan (Portland State) and Alexia Solomu (International Court of Justice) have posted Alternative Dispute Resolution in Land Use Disputes — Two Continents and Two Approaches, published in The Urban Lawyer, Vol. 43, No. 4, p. 1036, Fall 2011. The abstract:
This paper notes the increasing use of alternative dispute resolution ("ADR"), which includes negotiations among parties, mediation, and arbitration) generally and specifically examines its use in resolving planning controversies in two jurisdictions -- England and Wales in the United Kingdom and the State of Oregon in the United States. ADR is less expensive, more efficient, and may well result in a more satisfactory outcome to the parties. In the United States, the siting of locally unwanted land uses ("LULUs"), property rights, and litigation pose profound conflicts for the land use process. In the United Kingdom, initial issuance of permits without hearings, local resistance to major public works projects (such as airport runways and power plants) and lengthy and costly planning inquiries are similar concerns. ADR may be helpful in the resolution of these disputes.
After briefly examining the legal structure of the two planning systems, the authors provide concrete examples of ADR in Oregon (a system that tends to be more informal and geared to solutions in individual cases) and examine the proposed new structure of ADR in planning law in the United Kingdom, including the recent and thoughtful "green paper" on the subject.
Saturday, March 24, 2012
Douglas C. Harris (UBC Faculty of Law) has posted A Railway, a City, and the Public Regulation of Private Property: CPR v. City of Vancouver, published in CANADIAN PROPERTY LAW STORIES, James Muir, Eric Tucker, and Bruce Ziff, eds., Osgoode Society and Irwin Law, 2012. The abstract:
The doctrine of regulatory or constructive taking establishes limits on the public regulation of private property in much of the common law world. When public regulation becomes unduly onerous — so as, in effect, to take a property interest from a private owner — the public will be required to compensate the owner for its loss. In 2000, the City of Vancouver passed a by-law that limited the use of a century-old rail line to a public thoroughfare. The Canadian Pacific Railway, which owned the line, claimed the regulation amounted to a taking of its property for which the city should pay compensation. The case, which rose to the Supreme Court of Canada in 2006, marked that court’s first engagement with the doctrine of regulatory taking (also known in Canada as de facto expropriation) in nearly twenty years. This chapter explores the intertwined histories of a railway company and a city that gave rise to CPR v. City of Vancouver. It then analyzes the court decisions and considers the role of courts in mediating the appropriate boundary between private property and public regulation in a jurisdiction where there is no constitutional protection for private property.
Wednesday, March 21, 2012
Eric R. Claeys (George Mason) has posted Bundle-of-Sticks Notions in Legal and Economic Scholarship. This piece is part of the Econ Journal Watch symposium Property--A Bundle of Rights, Vol. 8, No. 3, pp. 205-214, September 2011. The abstract:
The phrase “bundle of rights” does not serve as an accurate conceptual definition of property. Nor has that phrase provided a helpful metaphor as used in Ronald Coase’s article “The Problem of Social Cost” (1960) and subsequent legal and economic scholarship. Coase’s usage portrays property rights as a collection of individualized permissions to use an asset, when in sound conceptual usage “property” signifies a domain of authority to decide how to use the asset. The “bundle” metaphor may be understood to state that an owner has a right to deploy his property in any specific manner fairly implied by his general rights of ownership. Although this metaphorical usage is helpful, it remains parasitic on a sound conceptual definition of property. Property is best conceived of as a right securing a normative interest in determining exclusively the use of an asset external to the person of the owner.
Friday, March 16, 2012
Troy A. Rule has a very interesting article up: Airspace and the Takings Clause, forthcoming in the Washington University Law Review. The abstract:
This Article argues that the U.S. Supreme Court’s takings jurisprudence fails to account for instances when public entities restrict private airspace solely to keep it open for their own use. Many landowners rely on open space above adjacent land to preserve scenic views for their properties, to provide sunlight access for their rooftop solar panels, or to serve other uses that require no physical invasion of the neighboring space. Private citizens typically must purchase easements or covenants to prevent their neighbors from erecting trees or buildings that would interfere with these non-physical airspace uses. In contrast, public entities can often secure their non-physical uses of neighboring airspace without having to compensate neighbors by simply imposing height restrictions or other regulations on the space. The Supreme Court’s existing regulatory takings rules, which focus heavily on whether a challenged government action involves physical invasion of the claimant’s property or destroys all economically beneficial use of the property, fail to protect private landowners against these uncompensated takings of negative airspace easements. In recent years, regulations aimed at keeping private airspace open for specific government uses have threatened wind energy developments throughout the country and have even halted major construction projects near the Las Vegas Strip. This Article highlights several situations in which governments can impose height restrictions or other regulations as a way to effectively take negative airspace easements for their own benefit. The Article describes why current regulatory takings rules fail to adequately protect citizens against these situations and advocates a new rule capable of filling this gap in takings law. The new rule would clarify the Supreme Court’s takings jurisprudence as it relates to airspace and would promote more fair and efficient allocations of airspace rights between governments and private citizens.
Troy, our excellent guest blogger, has written before about sun, wind, and air, so this article is coming from one of the emerging experts in property rights above the dirt.
Thursday, March 15, 2012
Jerrold A. Long (Idaho), who just posted an article last week, has another one up: Waiting for Hohfeld: Property Rights, Property Privileges, and the Physical Consequences of Word Choice. The abstract:
An important part of our institutional and cultural history is our understanding of a system of property interests. The most common trajectory of land-use regulation (or the lack thereof) appears consistent with a property meta-narrative that informs multiple academic disciplines and levels of human interaction. This meta-narrative suggests that all land-use decisions begin with an assumption about the nature and extent of property rights held by potentially affected landowners, and that the ultimate end of any land-use regime is to “protect” those assumed property rights from unwarranted or unjustified intrusion by government. Because the law is a distinct linguistic environment in which word choices, and definitions, have significant consequences, the rhetorical landscape of a property dispute plays a significant role in determining the dispute’s ultimate outcome. In most land-use disputes, all participants make one important concession, or assertion, before the discussion begins. The often unchallenged assertion is the claim that the discussion is about property rights. Once a particular property interest is characterized as a “right,” the community’s political capacity to regulate that property diminishes substantially. Consequently, our decisions to characterize as “rights” those settings, circumstances and relationships that are better and more accurately understood as “privileges” changes our focus from the community to the individual, and necessarily weakens the political justification for, and community understanding of, most resource- or community-protective ordinances. This article considers contemporary property jurisprudence, theory, and conflict in a Hohfeldian context to demonstrate how our default rhetorical landscape leads to real and unnecessary negative social and environmental effects.
Monday, March 5, 2012
Ilya Somin (George Mason) has posted What if Kelo v. City of New London had Gone the Other Way?, published at Indiana Law Review, Vol. 45, No. 1, pp. 21-39, 2011 (What If Counterfactuals in Constitutional History Symposium) . The abstract:
Kelo v. City of New London is one of the most controversial decisions in U.S. Supreme Court history. The Kelo Court held that the Public Use Clause of the Fifth Amendment allows government to condemn private property and transfer it to other private parties for purposes of “economic development.” This Article considers the question of what might have happened if the Supreme Court decided Kelo v. City of New London in favor of the property owners. Such counterfactual analysis may seem frivolous. But it is, in fact, useful in understanding constitutional history. Any assessment of the impact of a legal decision depends on at least an implicit judgment as to the likely consequences of a ruling the other way. Analysis can be improved by making these implicit counterfactual assumptions clear and systematically considering their implications.
Part I briefly describes the Kelo case and its aftermath, focusing especially on the massive political backlash. That backlash led to numerous new reform laws. However, many of them turned out to be largely symbolic. Part II discusses the potential value of a counterfactual analysis of Kelo. It could help shed light on a longstanding debate over the effects of Supreme Court decisions on society. Some have argued that court decisions have little impact, mostly protecting only those rights that the political branches of government would protect of their own accord. Others contend that this pessimistic view underrates the potential effect of Supreme Court decisions.
Part III considers the possible legal effect of a ruling in favor of the property owners. Such a decision could have taken several potential forms. One possibility is that the Court could have adopted the view advocated by the four Kelo dissenters: that economic development condemnations are categorically forbidden by the Public Use Clause. This would have provided strong protection to property owners and significantly altered the legal landscape. On the other hand, the Court could easily have decided in favor of the property owners on one of two narrower grounds. Such a ruling would have led to much weaker protections for property owners.
Part IV weighs the potential political impact of a decision favoring the property owners. Such an outcome might have forestalled the massive political backlash that Kelo caused. Ironically, a narrow ruling in favor of the owners that did not significantly constrain future takings might have left the cause of property rights worse off than defeat did. On the other hand, a strong ruling categorically banning economic development takings would likely have done more for property rights than the backlash did, especially considering the uneven nature of the latter. Furthermore, political movements sometimes build on legal victories, as well as defeats, as happened in the case of the Civil Rights movement in the wake of Brown v. Board of Education. It is possible that property rights advocates could have similarly exploited a victory in Kelo.
Tuesday, February 28, 2012
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.