Tuesday, January 28, 2014

Takings and Conservation Easements

Like many nerds tech-savvy people, I have an alert set up with WestLaw to send me any new law review article or case that even mentions the phrase "conservation easement." It sends me a lot of fluff, but every now and then I find a gem that seems to have eluded the 5,000 SSRN lists I get. When I saw an article entitled "Environmental Preservation and the Fifth Amendment: The Use and Limits of Conservation Easements by Regulatory Takings and Eminent Domain," I just couldn't resist dropping everything and reading it immediately.

I was surprised that I didn't know the author (Beckett Cantley of Atlanta's John Marshall Law School) because well the conservation easement crew is a small one. Turns out that Cantley is an interesting combination of a tax law prof who also teaches property. As the title suggests, the article focus on standard 5th Amendment  takings analysis. Unsurprisingly, this involves a large focus on exacted conservation easements. As I am sure all none of you know, my 2005 dissertation was entitled Exacted Conservation Easements, and I have a small obsession with the phenomenon.

Cantley has an interesting take on the issue.

First, he asks whether there is a market for conservation easements. He contends that a landowner's ability to voluntarily sell a conservation easement constitutes an "economic use for regulated land that could help avoid a regulatory taking by lessening the economic impact of environmental and land use regulations." I assume the argument goes this way: The government entity enacts a land-use law that restricts development. The landowner argues that this violates the 5th amendment under a Lucas-style total deprivation of value argument. The government entity says no we haven't totally deprived you of value because you could still donate or sell a conservation easement on your land. Of course, it would be pretty tricky to find a willing buyer for such a conservation easement but probably not impossible to find someone willing to accept the donation (depending on the features of that parcel). But what would be the value of the donation? Would it be zero? Well the current regulations do not allow development, but conservation easements can extend regulations (making them more stringent, giving them certainty, extending the restriction in perpetuity). So the value of the conservation easement while low, is probably  not zero. Cantley suggests that such a conservation easement market would be so speculative that it would not be enough to defeat a Lucas-style takings claim.

Second, Cantley analyzes the ability of a government agency to create a conservation easement with eminent domain. This is a tricky issue. As a threshold, it would only work where the government entity had eminent domain power. Some states prohibit creation of CEs via eminent domain explicitly. In other places, it is just politically sensitive (not to mention potentially hard to calculate). The best example of this phenomenon was when the Highway Commission in Wisconsin exercised eminent domain over holdouts for scenic easements along the Great River Road. One of the confusing points for me here has to do with the fact that when a parcel encumbered by CE is condemned, most jurisdictions acknowledge the CE is compensable and they pay the CE holder for their lost property interest when they pay the underlying landowner just compensation for her property interest. Do such payment policies mean that the jurisdictions recognize CEs as something one could take via eminent domain without taking the fee title? Just an interesting way to do parcel by parcel regulation? Spot zoning with compensation? Something several folks have speculated about but few governments seem interested in pursuing just to amuse us academics.

Now, on the exacted CE front, Cantley notes that generally Nollan and Dolan analysis apply but in some places there is a bit of trickiness with what constitutes an "exaction" meriting Nollan/Dolan analysis (i.e., nexus + rough proportionality) versus just a regulatory act with the less demanding Penn Central balancing test. I have written about this weirdness before in New York where the case of Smith v. Town of Mendon held that conservation easements are not actually "exactions" even where they are er... exacted. As I speculated in a recent piece for the Environmental Section of the New York Bar Association, I think the broad definition of exaction in Koontz overrules Smith v. Town of Mendon and makes it pretty hard to argue that you can't exact conservation easements. One bone I have to pick with Cantley is his description of exacted conservation easements as being required donations. I think we really need to remove the donation language from our talk about such CEs. Landowners are sometime surprised that they can't (or well at least they shouldn't) get tax benefits from these exactions because they associate all CEs with tax breaks. It also looks to me like Cantley must have written his article pre-Koontz (unsurprising considering the pace of law review publication). I think that case may change his assessment that failed exactions are not cognizable takings... or maybe it depends on how/when we assess failure.

Interesting stuff! The artcle doesn't appear to be available for free on SSRN or elsewhere, but those of you with access to various legal databases can find it at

Beckett G. Cantley, Environmental Preservation and the Fifth Amendment: The Use and Limits of Conservation Easmeents by Regulatory Taking and Eminent Domain, 20 Hastings W.-N.W. J. Envtl. L. & Pol'y 215 (2014).


January 28, 2014 in Caselaw, Conservation Easements, Eminent Domain, New York, Scholarship, Servitudes, Supreme Court, Takings | Permalink | Comments (1) | TrackBack (0)

Monday, January 27, 2014

CFP: Comparative Urban Law Conference

Here's an interesting sounding one!

Call For Participation : Comparative Urban Law Conference
June 30, 2014, London, England

The Fordham Urban Law Center is pleased to announce a call for participation for the Comparative Urban Law Conference, which will be held on Monday, June 30, 2014 at Loyola Hall, University of London. The Conference will gather legal and other scholars for a provocative, engaging conversation about the field of "urban law" from an international, comparative, and interdisciplinary perspective. The Conference will focus on the nature and boundaries of urban law as a discipline, which participants will explore through overlapping themes such as the structure of local authority and autonomy and the role of law in urban policy areas such as environmental sustainability, consumer protection, public health, housing, and criminal justice, among others. The goal is to facilitate an in-depth exploration across sub-specialties within the legal academy to help develop an understanding of urban law in the twenty-first century.

PAPER SUBMISSION PROCEDURE: Potential participants in panels and workshops throughout the day should submit a one-page proposal to Professor Nestor Davidson at ndavidson@law.fordham.edu. If you are already working on a draft paper, please include that draft with your submission, but participants do not need to have prepared a formal paper to join the conversation. The deadline for topic proposal submissions is Thursday, February 13. We will discuss potential publishing options available as a result of conference participation. Please contact Annie Decker at adecker2@law.fordham.edu with any questions.

ABOUT THE URBAN LAW CENTER: The Urban Law Center at Fordham Law School in New York City is committed to understanding and affecting the legal system's place in contemporary urbanism. See: http://law.fordham.edu/urbanlawcenter.htm for more information about our activities.

January 27, 2014 in Conferences, Scholarship, Urbanism | Permalink | Comments (0) | TrackBack (0)

Friday, January 24, 2014

What to do when the historic district floods.

I just finished reading a new article by Jess Phelps in the latest issue of Environmental Law. In Preserving Perpetuity?: Exploring the Challenges of Perpetual Preservation in an Ever-Changing World, Phelps tackles some issues closely related to questions I research: what do we do about perpetual permanent restrictions in a world of constant change? Phelps takes a narrower tack  than my articles though, looking just at historic preservation easements. If you think that perpetual land conservation sound challenging, try fooling yourself into thinking that buildings are going to last forever. Well, okay we all know that perpetual restrictions have their usefulness even when we know that a perpetual building is not possible. What I like about Phelps' piece is that he cites me he takes a practical approach, providing specific plans for how to respond when natural disasters damage or destroy structures protected by historic preservation easements. It is a helpful read for land trusts or drafters of conservation easements thinking proactively about climate change impacts.



January 24, 2014 in Climate, Conservation Easements, Historic Preservation, Land Trust, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 18, 2013

Bray on Progressive Property and Low-Income Housing

Zachary Bray (University of Houston) has posted The New Progressive Property and the Low-Income Housing Conflict, BYU Law Review, Volume 2012, Issue 4, p. 1109 (2012).  The abstract:

The foundation of property law has been much debated in recent years, as several scholars have sought to provide a theoretical alternative to what they call the dominant, “law-and-economics” approach to property. In place of the law-and-economics approach, these scholars advance a new theoretical approach, which I call “the new progressive property.” At its core, this new approach favors rules thought to promote the collective well-being of the larger community while ensuring that relatively disadvantaged members of society have access to certain basic resources. This Article explores the boundaries and practical implications of the new progressive property. To do so, I focus on two potential examples of this theoretical approach related to low-income housing: the federal Section 8 housing voucher program and local rent-control ordinances. I argue that Section 8 is a better example than rent control of the new progressive-property approach, even though rent control has previously been identified as a practical example of the new progressive property and Section 8 has not.

I then turn to examine a deep conflict at the intersection of Section 8 and rent control, which presents an important opportunity to further test and refine the new progressive property. In particular, I argue that this underexamined low-income housing conflict provides good reasons to abandon rent control, even from a progressive-property perspective. In addition, the low-income housing conflict between Section 8 and rent control sheds light on the ambiguous relationship between law-and-economics analysis and the progressive-property framework. More specifically, I argue that the conflict between rent control and Section 8 demonstrates that even the most basic law-and-economics tools must be incorporated into a progressive-property framework to achieve the ends of the new progressive property.
Very interesting, and an an original contribution in comparing two different facets of housing policy in the context of the larger theoretical discussion of progressive property.
Matt Festa

December 18, 2013 in Affordable Housing, Housing, Landlord-Tenant, Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 10, 2013

Serkin and Wellington on Exclusionary Dynamics Beyond Zoning Ordinances

Chris Serkin (Vanderbilt) and Leslie Wellington have posted Putting Exclusionary Zoning in its Place: Affordable Housing and Geographical Scale, 40 Fordham Urb. L. J. 1667 (2013).  Here's the abstract:

The term “exclusionary zoning” typically describes a particular phenomenon: suburban large-lot zoning that reduces the supply of developable land and drives up housing prices. But exclusionary zoning in its modern form also occurs both within the urban core and region-wide. Exclusionary zoning at the sub-local and regional scales results in property values that fully capitalize the benefits of living in higher-wage regions, and the value of local public goods (like high-quality schools). Lower-income households then cannot meaningfully access those advantages, even if every municipality accommodates its fair share of regional need. The long-standing focus of exclusionary zoning on the content of local ordinances, instead of on these broader exclusionary dynamics, has defined the problem of exclusionary zoning too narrowly. We remedy that deficiency in our contribution to the Fordham Urban Law Journal’s Fortieth Anniversary issue.


December 10, 2013 in Affordable Housing, Inclusionary Zoning, Scholarship, Suburbs, Transportation | Permalink | Comments (0) | TrackBack (0)

Thursday, November 21, 2013

Davidson and Foster on the Mobility Case for Regionalism

So excited about this one.  Nestor Davidson (Fordham) and Sheila Foster (Fordham) have posted The Mobility Case for Regionalism, 47 U. C. Davis L. Rev. 63 (2013).  Here's the abstract:

In the discourse of local government law, the idea that a mobile populace can “vote with its feet” has long served as a justification for devolution and decentralization. Tracing to Charles Tiebout’s seminal work in public finance, the legal-structural prescription that follows is that a diversity of independent and empowered local governments can best satisfy the varied preferences of residents metaphorically shopping for bundles of public services, regulatory environment, and tax burden.

This localist paradigm generally presumes that fragmented governments are competing for residents within a given metropolitan area. Contemporary patterns of mobility, however, call into question this foundational assumption. People today move between — and not just within — metropolitan regions, domestically and even internationally. This is particularly so for a subset of residents — high human-capital knowledge workers and the so-called “creative class” — that is prominently coveted in this interregional competition. These modern mobile residents tend to evaluate the policy bundles that drive their locational decisions on a regional scale, weighing the comparative merits of metropolitan areas against each other. And local governments are increasingly recognizing that they need to work together at a regional scale to compete for these residents.

This Article argues that this intermetropolitan mobility provides a novel justification for regionalism that counterbalances the strong localist tendency of the traditional Tieboutian view of local governance. Contrary to the predominant assumption in the legal literature, competition for mobile residents is as much an argument for regionalism as it has been for devolution and decentralization. In an era of global cities vying for talent, the mobility case for regionalism has significant doctrinal consequences for debates in local government law and public finance, including the scope of local authority, the nature of regional equity, and the structure of metropolitan collaboration.

Jim K.

November 21, 2013 in Inclusionary Zoning, Local Government, Planning, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, November 14, 2013

Foster on Zoning Responses to Payday Lending

Sheila Foster (Fordham) has posted Breaking Up Payday: Anti-Agglomeration Zoning and Consumer Welfare, 75 Ohio St. L.J. ___ (forthcoming 2014).  Here's the abstract:

In the last decade, dozens of local governments have enacted zoning ordinances designed to limit the concentration of payday lenders and other alternative financial services providers (AFSPs), such as check-cashing businesses and auto title loan shops, in their communities. The main impetus for these ordinances is to shield economically vulnerable residents from the industry’s lending practices in the absence of sufficiently aggressive federal and state consumer protection regulation. This Essay casts considerable doubt on whether zoning is the appropriate regulatory tool to achieve the consumer protection and welfare goals animating these ordinances.  The author’s analysis of the aftermath of payday lending zoning restrictions in one state demonstrates that while such laws may play a role in reducing the number of payday lenders in the immediate urban area, they do not shield consumers from these lenders altogether.  Further, the economic literature on agglomeration economies suggests that there are costs to consumer welfare from limiting or breaking up retail agglomerations.  Such “anti-agglomeration” zoning restrictions can prevent consumers from capturing the benefits of the price and product competition that result from retail agglomerations.  This Essay concludes that if the main impetus behind anti-agglomeration zoning measures is to protect local residents from the high interest rates and loan terms associated with the payday industry, it might be that these measures are working against their intended purpose and actually harming consumers who lack viable financial services alternatives.  As such, in weighing the costs and benefits of payday lender agglomeration, lawmakers should consider more carefully the effects of anti-agglomeration zoning measures on consumer welfare.

Sheila has written terrific articles on social capital and urban geography.  I'm glad to see her confront, as a land use regulation problem, activities identified as detrimental to social capital and explore some of the same strategies used by communities to respond to the marketing of pornography.

Jim K.

November 14, 2013 in Scholarship, Zoning | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 13, 2013

Dagan on Justifications for Undercompensation in Eminent Domain

Hanoch Dagan (Tel Aviv) has posted his anthology entry entitled Expropriatory Compensation, Distributive Justice and the Rule of Law in Rethinking Public Interest in Expropriation Law (Mostert & Verstaapen eds., forthcoming 2014).  Here's the abstract:

This Essay examines the possible justification for providing less than full (fair market value) compensation for expropriation. One obvious justification applies in cases of public measures, where the burden is deliberately distributed progressively, namely, where redistribution is the desired goal of the public action or, at least, one of its primary objectives. Beside this relatively uncontroversial category, two other explanations are often raised: that partial compensation is justified by reference to the significance of the public interest, even if it is not redistributive, and that it can serve as a means for adjusting the amount of the compensation to the specific circumstances of the case. This Essay criticizes both justifications, arguing that the former is normatively impoverished while the latter affronts the rule of law. The notion of partial and differential compensation, however, can serve as a powerful tool for developing a nuanced expropriation doctrine that serves important property values, and also targets the potentially regressive effects of a uniform rule of full market value. The proposed doctrine draws careful, rule-based distinctions between types of injured property (fungible vs. constitutive) and types of benefited groups (local communities vs. the broader society).

One of the wonderful benefits of participating in the annual gatherings of the Association of Law, Property and Society is the opportunity to emgage with scholars from other countries.  A 2011 panel focusing on his book Property: Values and Institutions (Oxford Univ. Press, 2011), which Dean Dagan participated in personally, was one of the best discussions of property theory that I've ever had the chance to hear. 

Jim K.

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

Monday, November 11, 2013

Fennell and Peñalver on Exactions Creep

Lee Fennell (Chicago)  and Eduardo Peñalver (Chicago) have posted Exactions Creep, 2013 Sup. Ct. Rev. ___ (forthcoming).  Here's the abstract:

How can the Constitution protect landowners from government exploitation without disabling the machinery that protects landowners from each other? The Supreme Court left this central question unanswered — and indeed unasked — in Koontz v St. Johns River Water Management District. The Court’s exactions jurisprudence, set forth in Nollan v. California Coastal Commission, Dolan v. City of Tigard, and now Koontz, requires the government to satisfy demanding criteria for certain bargains — or proposed bargains — implicating the use of land. Yet because virtually every restriction, fee, or tax associated with the ownership or use of land can be cast as a bargain, the Court must find some way to hive off the domain of exactions from garden variety land use regulations. This it refused to do in Koontz, opting instead to reject boundary principles that it found normatively unstable. By beating back one form of exactions creep — the possibility that local governments will circumvent a too-narrowly drawn circle of heightened scrutiny — the Court left land use regulation vulnerable to the creeping expansion of heightened scrutiny under the auspices of its exactions jurisprudence. In this paper, we lay out this dilemma and suggest that it should lead the Court to rethink its exactions jurisprudence, and especially its grounding in the Takings Clause, rather than the Due Process Clause. The sort of skepticism about bargaining reflected in the Court’s exactions cases, we suggest, finds its most plausible roots in rule-of-law concerns implicated by land use dealmaking. With those concerns in mind, we consider alternatives that would attempt to reconcile the Court’s twin interests in reining in governmental power over property owners and in keeping the gears of ordinary land use regulation running in ways that protect the property interests of those owners.


Jim K.

November 11, 2013 in Impact Fees, Judicial Review, Local Government, Property, Property Rights, Property Theory, Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Friday, November 1, 2013

Boyd on Zoning for Apartments

Marie Boyd (South Carolina) has posted Zoning for Apartments: A Study of the Role of Law in the Control of Apartment Houses in New Haven, Connecticut 1912-1932, 33 Pace L. Rev. 600 (2013).  In it, she reviews building records and Sanborn maps to give her reader a complete picture of the restrictions placed on apartment development before and after New Haven's first zoning ordinance in 1926. Here's the abstract:

This article seeks to contribute to the legal and policy debates over zoning by providing a more detailed examination of the impact of apartments on both pre-zoning land use patterns and the zoning process during the formative initial stages of zoning in the United States than has been provided in the literature to date. Specifically, this Article analyzes the impact of apartments on both pre-zoning land use patterns and the zoning process in New Haven, Connecticut. It focuses on the period beginning with the selection of New Haven’s first Zoning Commission in 1922, and concluding with the passage of New Haven’s first zoning ordinance in 1926. Through this detailed historical account of the realities of zoning, this Article demonstrates how — due to delays in the enactment of zoning — New Haven’s first zoning ordinance, rather than shaping the future growth of the regulated area, was instead shaped by existing land use patterns and political considerations.

Jim K.

November 1, 2013 in Development, Downtown, History, Local Government, Nuisance, Scholarship, Zoning | Permalink | Comments (0) | TrackBack (0)

Sunday, September 22, 2013

Fromherz on Community Consent to Environmentally Significant Projects

Nicholas Fromherz (Lewis & Clark) has posted From Consultation to Consent: Community Approval as a Prerequisite to Environmentally Significant Projects, 116 W. Va. L. Rev ___ (2013).  Here's the abstract:

Since the United States enacted the National Environmental Policy Act (NEPA) in 1969, nations all around the world have adopted similar statutes. What started as a unique response to the American environmental movement grew to become a nearly global standard. Although the details of the regimes vary from country to country, there are two constants: (1) the regimes force the government to consider environmental impacts before conducting or authorizing projects, and (2) they allow some degree of public participation. This article focuses on the latter of these two features.

Public participation in NEPA-style regimes generally means public consultation: information is disseminated and civil society is allowed to comment. Depending on a range of factors — some political and some legal — comments may influence the circumstances under which a project takes place or whether it occurs at all. Though the public’s influence is often limited in practice, the mere fact of public participation at the project level — as opposed to participation at the candidate level through elections or at the issue level through referenda — is exceptional. In the U.S. and many other countries, NEPA and its counterparts represent a break from the normal rule of executive decision-making by encouraging public involvement and deliberative, participatory democracy.

Despite the progress, critics have accused these regimes of falling short. In practice, public consultation under NEPA-style frameworks is severely limited in terms of who participates, how many participate, and the extent to which this participation impacts the decision-making process. This is not surprising. By its very nature, consultation implies limited influence.

In this article, I argue that policy-makers, both domestic and foreign, should replace consultation with consent as the public-participation requirement in certain cases. Although the concerns leading to the inclusion of public consultation in NEPA and its foreign counterparts were many, one of the more important ideas was that those persons affected by environmentally significant projects should have a say in the matter. Unfortunately, the consultation approach has proven increasingly ineffective. If the goal is to match influence with stake, consultation is the wrong mechanism.

Requiring consent, even in a limited number of cases, may seem like an extreme remedy. Not so. It is an attractive way to respond to a situation inherent in many major public works (especially infrastructure and energy projects) and in large-scale private endeavors on public land (especially extractive projects). While the benefits of these projects are often spread around an entire nation or large region, the environmental costs are frequently concentrated within a small, local community (the site community). Requiring the consent of the local site community insures that its interest is adequately accounted for in the decision-making process.

I am always glad to see authors taking on the question of strengthening community control of land resources especially as a response to a particular impact, as Rachel Godsil and I have each written about in the urban context.  Fromherz dedicates some important discussion to defining the affected community, a problem made even more interesting in his piece by the overlay of the rights of indigenous inhabitants. 


Jim K.

September 22, 2013 in Environmental Justice, Environmental Law, Oil & Gas, Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, September 20, 2013

Conservation Development without Conservation Biologists?

A new paper on conservation development provides oodles of information about conservation development in the western United States while pinpointing shortfalls with current ordinances. Conservation development for the uninitiated is well... pretty much exactly what it sounds like. It is a land-se planning strategy that requires conservation measures for new development. It can take the form of conservation easements, cluster development, conservation-oriented planned development, etc. A common feature is setting aside some portion of land for conservation in a residential development project. Many counties and local governments have laws promoting conservation development (often pledging faster project review or bestowing density bonuses).

Although not yet available in print, you can get an early view of an article in the upcoming issue of Conservation Biology by Sarah Reed, Jodi Hilty, and David Theobald that examines conservation development ordinances in 11 western states. The authors did an impressive job of reviewing ordinance for 402 counties (97% response rate-- wowzers). As conservation biologists, the authors were interested to see if the county ordinances promoted sound ecological principles.  A few interesting things coming out of the study:

  • over 30% of the counties actually had conservation development ordinances
  • most required protection in perpetuity, but not all
  • most required conservation of some portion of the land, but set no minimum sizes on protected area, rarely required connection with other protected lands or even other lands within the site
  • very few ordinances required ecological analysis
  • only 8% required some type of consultation with an ecologist or conservation biologist
  • few required management plans

These  are just a few of the points that they make, and I recommend getting the full article to learn more. This is a good article for lawyers and planners to read because it highlights some of the problems we have communicating with each other. One thing they don't answer but I wondered about is how many conservation biologists were consulted when the counties actually wrote the ordinance.

Here is the full title and abstract:

Guidelines and Incentives for Conservation Development in Local Land-Use Regulations


Article first published online: 3 SEP 2013

DOI: 10.1111/cobi.12136

Effective conservation of biological diversity on private lands will require changes in land-use policy and development practice. Conservation development (CD) is an alternative form of residential development in which homes are built on smaller lots and clustered together and the remainder of the property is permanently protected for conservation purposes. We assessed the degree to which CD is permitted and encouraged by local land-use regulations in 414 counties in the western United States. Thirty-two percent of local planning jurisdictions have adopted CD ordinances, mostly within the past 10 years. CD ordinances were adopted in counties with human population densities that were 3.0 times greater and in counties with 2.5 times more land use at urban, suburban, and exurban densities than counties without CD ordinances. Despite strong economic incentives for CD (e.g., density bonuses, which allow for a mean of 66% more homes to be built per subdivision area), several issues may limit the effectiveness of CD for biological diversity conservation. Although most CD ordinances required a greater proportion of the site area be protected than in a typical residential development, just 13% (n = 17) of the ordinances required an ecological site analysis to identify and map features that should be protected. Few CD ordinances provided guidelines regarding the design and configuration of the protected lands, including specifying a minimum size for protected land parcels or encouraging contiguity with other protected lands within or near to the site. Eight percent (n =11) of CD ordinances encouraged consultation with a biological expert or compliance with a conservation plan. We recommend that conservation scientists help to improve the effectiveness of CD by educating planning staff and government officials regarding biological diversity conservation, volunteering for their local planning boards, or consulting on development reviews.


- Jessie Owley


September 20, 2013 in Community Design, Conservation Easements, Density, Local Government, Planning, Scholarship, Subdivision Regulations | Permalink | Comments (0) | TrackBack (0)

Sunday, September 8, 2013

Fennell on Lee's Eminent Domain as Just Undercompensation

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

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

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

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

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

Jim  K.


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

Wednesday, September 4, 2013

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

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

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

Jim K.

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

Saturday, August 31, 2013

Echeverria's Take on Koontz

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

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

Jim K.

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

Friday, August 23, 2013

Iglesias on the Legality of Local Inclusionary Zoning Ordinances

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

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

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

Jim K.

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

Tuesday, August 13, 2013

Dagan on Property Theory, Essential Resources, and the Global Land Rush

Hanoch Dagan (Tel Aviv) has posted Property Theory, Essential Resources, and the Global Land Rush.  The abstract:

Recent large scale transnational transfers of land threaten members of rural communities in the developing world who rely for food and shelter on access to land they lack formal title to. Contrary to some of the conventional wisdom, this Essay argues that liberal property theory provides important inroads for addressing this challenge. Properly interpreted, property requires an ongoing (albeit properly cautious) redefinition of existing property institutions as well as the design of new ones, in light of changing circumstances and in response to the liberal property values of personal independence, labor, personhood, aggregate welfare, community, and distributive justice. These property values imply that the new, transnational land market must accommodate a property institution for essential resources that secures the individual and collective rights of pre-existing users. Securing these rights does not require that we reject the logic of competitive markets. Quite the contrary. One promising path for realizing these rights is to strengthen competition through properly designed auctions that ensure the members of local communities choices between outright sale offers and equity investment in local cooperatives.

Looks like another must-read for property theorists!

Matt Festa

August 13, 2013 in Comparative Land Use, Economic Development, Property Rights, Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

Blumm & Paulsen on the Public Trust in Wildlife

Michael C. Blum (Lewis & Clark) and Aurora Paulsen (Lewis & Clark) have posted The Public Trust in Wildlife, Utah Law Review (2013).  The abstract:

The public trust doctrine, derived from ancient property principles, is thought to mostly apply to navigable waters and related land resources. The doctrine supplies a mediating force to claims of both private ownership and unfettered government discretion over these resources, vesting the state with trust responsibility to ensure that the use of these resources promotes long-term sustainability. A related doctrine — sovereign ownership of wildlife — is also an ancient public property doctrine inherited from England. State ownership of wildlife has long defeated private ownership claims and enabled states to enact and implement wildlife conservation regulations. This paper claims that these two doctrines should be merged, and that state sovereign ownership of wildlife means that wildlife — like navigable waters — is held in trust for the public and must be managed for long-term sustainable use by future generations. Merging the doctrines would mean that state ownership would not only give states with the authority to manage their wildlife populations but also the duty to do so and would equip members of the public with standing to enforce the states’ trust duties in court. This paper shows that the public trust in wildlife has already been employed in California and in several other states, and suggests that it deserves more widespread judicial recognition, particularly — as we demonstrate — in view of the fact that no fewer than forty-seven states use trust or trust-like language in describing state authority to manage wildlife. We include an appendix citing the sources of the wildlife trust in all forty-seven states for reference.

Matt Festa

August 13, 2013 in California, Environmentalism, History, Property Theory, Scholarship, State Government, Sustainability | Permalink | Comments (0) | TrackBack (0)

Professors' Corner teleconference on Real Estate Issues in the Bankruptcy Courts

It's time for the monthly "Professors' Corner" teleconference sponsored by the ABA Real Property Section.  Here's this month's info! --Matt Festa


Professors' Corner:   Wednesday, August 14, 2013

12:30pm Eastern/11:30am Central/9:30am Pacific

Call-in number: 866-646-6488

Passcode: 5577419753

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

Our program on Wednesday, August 14 is “Real Estate Issues in the Bankruptcy Courts.”  Our panel will discuss the latest on several important real estate issues in bankruptcy, including the “absolute priority” rule in individual Chapter 11 cases; the “strip-off” of underwater liens in Chapters 11 and 13; and the artificial impairment and artificial classification in Chapter 11 cases.

Our panelists for the program include three leading bankruptcy scholars:

Professor Ralph Brubaker, University of Illinois College of Law.  Prof. Brubaker has taught at Illinois since 2004 after many years at Emory University Law School.  He has served as Interim Dean and Associate Dean for Academic Affairs at Illinois and most recently as the Guy Raymond Jones Faculty Scholar.  He will discuss a recent Fifth Circuit decision, In re Village at Camp Bowie I, L.P., and the extent to which a Chapter 11 debtor can “artificially” impair claims to facilitate cramdown of a reorganization plan and the status of the “artificial classification” doctrine.  

Professor Bruce Markell, Florida State University.  Prof. Markell returns to teaching at FSU in 2013 as the Jeffrey A. Stoops Professor, after many years of service as a United States Bankruptcy Judge for the District of Nevada and as a member of the Bankruptcy Appellate Panel for the Ninth Circuit.  Prior to his service as bankrutpcy judge, Prof. Markell had a distinguished career as a law teacher at both Indiana University and UNLV.  He will address recent case developments involving the “absolute priority rule,” including whether the rule applies in individual Chapter 11 cases and Judge Easterbrook’s recent “new value” decision in In re Castleton Plaza.

Professor Robert Lawless, University of Illinois.  Prof. Lawless has taught at Illinois since 2006, and previously taught at both Missouri and UNLV. He currently serves as the Associate Dean for Research and the Co-Director of the Illinois Program on Law, Behavior, and Social Science.  Prof. Lawless will address recent case developments regarding the ability of Chapter 11 and 13 debtors to “strip-off” underwater mortgage liens.

Please join us on Wednesday for this program!

August 13, 2013 in Conferences, Real Estate Transactions, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 30, 2013

Freyfogle on Private Ownership and Human Flourishing

Eric Freyfogle (Illinois) visited in South Africa last fall as a fellow in the Stellenbosch Institute for Advanced Study.  During that time, he began work on his recently posted essay, Private Ownership and Human Flourishing:  A Critical Review.  A number of us Land Use Prof bloggers had the opportunity to hear Eric present this interesting work this Spring at the Association for Law, Property and Society conference at the University of Minnesota.  Here's the abstract:

This essay surveys the many, contradictory links between private ownership and human flourishing and assesses the moral implications of this complexity. It begins with and ultimately broadens claims made by leading South African scholars on the need to reconsider longstanding ways of thinking about property, particularly the “rights paradigm.” Private ownership in obvious ways benefits an owner. But as explained, the links between private rights and human flourishing are far greater, implicating not just owners but neighbors, surrounding communities, the landless, future generations, and other life forms. The recognition of private property rights can both expand and curtail human flourishing. As for human flourishing, it is equally complex in that it is affected by many factors going far beyond physical needs. Property rights are created by law and involve the use of state power to protect rights by curtailing the liberties of non-owners and others. The only sound moral justification of this use of coercive power — this use of state power to help owners control and dominate others — rests in the ways a well-designed property regime can foster the welfare of nearly everyone, owners and non-owners alike. Law thus should not vest an owner with any power that does not, on balance, promote widespread human flourishing. Inherited ways of thinking about private property cloud these realities and distort inquiries into property’s origins and moral and practical consequences. Much of this thought is best wiped away with discussion begun from a new place, from an express recognition of private property as an evolving, socially created, morally complex institution that can both promote and undercut human flourishing, an institution that must be carefully calibrated to maintain its moral legitimacy and maximize its social benefits.

Jim K.

July 30, 2013 in Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)