Tuesday, August 13, 2013
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.
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
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!
Tuesday, July 30, 2013
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.
Tuesday, July 23, 2013
I have been lucky enough to find myself in collaboration with Amy Morris of Aspen Environmental Group. We have been working on three papers about the renewable energy development, specifically the utility-scale solar projects in the California desert. As often seems to happen, our initial paper got too long and cumbersome and we ended up breaking it up. Two of the papers should be out this fall (depending on the pace of the student editors) and the first is available on SSRN in draft form.
This first piece, Green Siting for Green Energy, gives some broad strokes about solar energy siting and some of teh environmental tradeoffs. Particularly interested in the tradeoffs with agricultural lands, we'll have a whole separate paper on that topic some day soon. Hopefully this short piece (presented at George Washington last April) will whet your appetite.
One of the weirdest things about this article for me: we don't once use the phrase conservation easement. Although we do say conservation a lot and easement a few times. Just not together. We do talk about solar use easements though, which are nowhere near almost as exciting.
Amy Morris, Jessica Owley & Emily Capello, Green Siting for Green Energy, 4 J. Energy & Envt’l L. _ (forthcoming 2013).
energy development is critical to reducing greenhouse gas emissions.
Solar energy projects can replace polluting fossil fuels, but because
they are land-intensive, solar projects also have environmental costs.
Large projects have the potential to provide hundreds of megawatts of
electricity, but could also disrupt huge expanses of undeveloped land.
Arrays of solar panels on commercial rooftops or capped landfills allow
beneficial reuse of developed sites, but these projects are typically
small-scale (less than 1 MW). This tension between renewable energy
development and protection of precious landscapes (particularly desert
landscapes) creates a conundrum for environmentalists.
This paper examines the tradeoffs involved in siting solar projects, with a particular focus on California. The unique ecosystems and biodiversity in the California desert have made the tradeoffs between environmental benefits and costs of solar projects especially apparent. We look at the current hurdles for “greener” siting of projects in disturbed and developed areas, including the obstacles to permitting distributed generation (DG) projects, smaller-scale projects that may be built on parking lots or rooftops. While both large and small scale renewables are necessary to reduce greenhouse gas emissions, there are many opportunities for greener renewable energy siting. Greener siting must proceed on two fronts. First, as large utility-scale solar facilities will be an important component of a sustainable energy future, we need to improve the environmental review and sustainability of those facilities while being wiser about where we locate such projects. Marginal agricultural land and abandoned mine lands can provide untapped opportunities. Second, distributed generation with solar photovoltaics located across the state will be vital. The key to greener siting of DG is fostering the expansion of renewable projects in disturbed areas, particularly contaminated sites and rooftops and parking lots. A challenge of DG is the number of actors, permits, and environmental review process required. Facilitation and coordination of these processes will speed the journey to a solar energy future.
Friday, July 19, 2013
Hannah Wiseman (Florida State) has posted Urban Energy, published in the Fordham Urban Law Journal, (invited symposium), 2013. The abstract:
The twenty-first century has seen important changes in the U.S. energy system, and most share a common theme: In some regions of the country, energy infrastructure is now located near human populations. As has always been the case; fuel in the form of oil, gas, sunlight, wind, water, or other energy sources must be extracted wherever it happens to be found; and humans have little control over its location. Energy companies must move to the areas of highest resource abundance and find available surface space from which to capture these fuels. Compounding this challenge is the fact that some of our most abundant remaining energy sources exist in low concentrations and are widely distributed. Sunlight and wind require thousands of acres of technology installations to be efficiently captured, and unconventional oil and gas resources exist at low densities over wide areas in shales or tight sandstone formations. As we tap these sources in ever more numerous locations, energy bumps up against certain human population centers. The city of Fort Worth, Texas, for example, now hosts thousands of natural gas wells, and San Diego has more than 4,500 solar projects. Indeed, with the rise of the Smart Grid; every American consumer could become a small source of electricity; sending electricity back into the grid from a plug-in hybrid vehicle, a solar panel or small wind turbine, a fuel cell, or battery storage. As the extraction of fuels and generation of electricity (“energy production”) become integral parts of certain population centers; the law will have to adjust; responding to land use and environmental disputes, nuisance claims, enhanced demands on local electricity grids, and concerns about equity, in terms of unevenly distributed effects. This Essay explores these new themes in energy law; investigating how certain populated areas have begun to embrace their role as energy centers; by addressing conflicts ex ante, creating systems for permitting and dispute resolution that balance flexibility with predictability, and managing the tradeoff between land-based energy demands and other needs. It also briefly proposes broader lessonsfor improving energy law, based on the piecemeal approaches so far.
Very important analysis; Prof. Wiseman (a former guest-blogger here!) has provided some of the most interesting recent scholarship on the new energy boom and land use.
July 19, 2013 in Clean Energy, Environmental Law, NIMBY, Oil & Gas, Planning, Property Rights, Scholarship, Sustainability, Texas, Urbanism, Wind Energy, Zoning | Permalink | Comments (0) | TrackBack (0)
Well looks like we are about half-way through the summer (depending on the schools schedules in your family). Instead of embarking on a new project this summer, I have committed myself to finish up several projects that have been lingering. One project that is oh so close to completion is a book chapter I wrote for a Cambridge University Press book that Keith Hirokawa is editing.The book is entitled Environmental Law and Contrasting Ideas of Nature: A Constructivist Approach and I think should hit bookshelves before the end of the year. Keith asked me to tackle the subject of nature versus perpetuity, with a particular emphasis on property law. I easily agreed because the topic seemed a natural one for me, but then I had trouble with it. My thesis was: perpetual static property rules make little sense in a changing world. Perfect! The problem was that Keith wanted something longer than a sentence.
As I delved deeper into these issues (and I would be hard pressed to label my approach "constructivist"), I became intrigued with thinking about why we have perpetual static tools. Now, I don't mean how they have evolved. I have written mind-numbingly boring fascinating articles about that in the past. Instead, I was intrigued with what it is about us as individuals that crafts our approach to land conservation the way that we do. In this research, I became intrigued by a few different pschological concepts. In very simple terms, we are not good at thinking about the future. First, when problems and issues are too big, our brains simplify them to make them digestible (or sometimes we just ignore them). Second, when making projections about future conditions, we tend to be overly optimistic. Layer these traits onto a policy for long-term land conservation in an era of increasing landscape changes and you start to see why we have problems. Although the chapter considers other subjects (including how current property laws fail to mesh with lessons from conservation biology), the brief psychology discussion was the most fun for me. Makes me pretty durn thankful that I work at an interdisciplinary school like Buffalo where I could just knock on the door of the psychologist (Chuck Ewing) whose office is next door to mine.
Interested in checking out the book chapter? You can find it here and the formal abstract is below. Interested in seeing what else appears in this book? A few other chapters have been popping up on SSRN as well including ones by Mike Burger, Jonathan Rosenbloom, Robin Kundis Craig, Tony Arnold, and Irus Braverman.
Property Constructs and Nature's Challenge to Perpetuity
Conservation biology and ecology (as well as our eyes and ears) tell us that nature is in a constant state of flux. Yet, models of land conservation focus on preserving the present state of land in perpetuity. Legal concepts that center on the status quo turn a blind eye to the fact that nature is ever-changing. This conflict is illustrated by examining both traditional property servitudes and conservation easements. These restrictions on private land often explicitly state that they are preserving today’s landscape in perpetuity. This chapter explores the inherent conflict between the changing natural world and rigid legal structures, detailing the struggles of applying principles like resiliency thinking and adaptive management to property tools for conservation. It also explores why this disconnect occurs including some discussion of environmental psychology
- Jessie Owley
Wednesday, July 17, 2013
This past weekend I was in Southern California for a family wedding, and we had the chance to go over to the Getty Museum. It is a spectacular place for many reasons including land use and architecture. Right now, and through July 21, the Getty is featuring an incredibly interesting exhibit called Overdrive: LA Constructs the Future, 1940-1990. It tells the story of how LA was the archetype for American land use and development in the postwar era through the end of the 20th Century.
Amy Hardberger (St. Mary's) has posted World's Worst Game of Telephone: Attempting to Understand the Conversation between Texas's Legislature and Courts on Groundwater, forthcoming in the Texas Environmental Law Review. The abstract:
Groundwater is a critical component of Texas water resources. Currently, groundwater accounts for 60% of all water withdrawn in the state. Historically, the largest groundwater user was the agricultural sector; however, Texas cities are also increasingly reliant on these water sources. State water demands are projected to increase 22% in the next fifty years. Many of these demands will be in the groundwater sector. In addition to increasing demand, periodic and sometimes severe droughts challenge an already stressed system. Texas’s ability to provide sufficient resources depends in large part on their effective management.
This paper evaluates the Day decision through the lens of past court decisions and legislation in an effort to understand why the court ruled as it did. Part II introduces Texas’s groundwater resources, current uses of that water, and present concerns regarding sustainability. Part III chronicles the line of cases that established capture as the common law rule in Texas. Part IV traces the history of groundwater legislation after courts established rule of capture. This legislation created a regulatory overlay on the common law rule of capture through localized groundwater conservation districts and the statewide planning process. Part V describes the process through which the Edwards Aquifer Authority came into existence and why it is different from other groundwater districts in the state in that its strict pumping cap immediately raised property rights concerns. Part VI explains how groundwater litigation shifted from right of capture limitations to questions of when ownership vests. This change was a product of increased pressure on groundwater resources caused by additional regulations and growing population demands.
Finally, Part VII presents three hypotheses regarding why the court came to its decision in the Day case despite the case law history. The first theory is that delineation of property interests is an issue reserved for courts’ authority. Another alternative is that the holding in Day was a result of a statewide shift towards the protection of private property rights above other concerns. The final proposed alternative is that the Day holding was actually an effort to define the property right in such a way as to encourage more regulation or at least limit takings claims through the expansive of correlative rights to groundwater.
Interesting and important--Texas is a huge state with a growing economy and population and an energy boom, and water is going to be a critical issue in the immediate and long-term future.
July 17, 2013 in Caselaw, Environmentalism, Local Government, Oil & Gas, Planning, Property Rights, Scholarship, State Government, Sustainability, Texas, Water | Permalink | Comments (0) | TrackBack (0)
Sarah Schindler (Maine) has posted Banning Lawns, forthcoming in the George Washington Law Review (2014). The abstract:
Recognizing their role in sustainability efforts, many local governments are enacting climate change plans, mandatory green building ordinances, and sustainable procurement policies. But thus far, local governments have largely ignored one of the most pervasive threats to sustainability — lawns. This Article examines the trend toward sustainability mandates by considering the implications of a ban on lawns, the single largest irrigated crop in the United States.
Green yards are deeply seated in the American ethos of the sanctity of the single-family home. However, this psychological attachment to lawns results in significant environmental harms: conventional turfgrass is a non-native monocrop that contributes to a loss of biodiversity and typically requires vast amounts of water, pesticides, and gas-powered mowing.
In this Article, I consider municipal authority to ban or substantially limit pre-existing lawns and mandate their replacement with native plantings or productive fruit- or vegetable-bearing plants. Although this proposal would no doubt prove politically contentious, local governments — especially those in drought-prone areas — might be forced to consider such a mandate in the future. Furthering this practical reality, I address the legitimate zoning, police power, and nuisance rationales for the passage of lawn bans, as well as the likely challenges they would face. I also consider more nuanced regulatory approaches that a municipality could use to limit lawns and their attendant environmental harms, including norm change, market-based mechanisms such as progressive block pricing for water, and incentivizing the removal of lawns.
Prof. Schindler has been working on this project and presented it at ALPS previously-- it will serve as a foundational article on the debate that is going to happen (whether or not you knew it) on the future of the American Lawn!
Tuesday, July 16, 2013
Darren A. Plum (Flordia State) and Tetsuo Kobayashi (Florida State-Geography) have posted Green Building Geography Across the United States: Does Governmental Incentives or Economic Growth Stimulate Construction? The abstract:
As green building activity continues to rise across the country, some state governments decided to create incentives that would motivate developers to voluntarily pursue third party certification for their real estate projects in order to assist in meeting sustainability and environmental goals. Despite the growing number of studies in green buildings, the geography of green buildings and sustainable construction only includes a few studies, which emphasize the lack of green building research from the spatial perspective and their relevance to public policies. This study analyses spatial distributions of certified green buildings in relation to governmental incentives deemed necessary to further environmentally friendly public policies that embrace sustainable construction practices while applying a regression analysis over time to determine the impact of such a course of action in relation to economic growth. This study focuses on each of the six states that applied tax incentives. The regression analysis between the number of certified green buildings and Gross Domestic Product in each state shows positive correlation between the two indicating an economic growth is a significant factor to explain the growth in green buildings.
Edward J. Sullivan (Portland State) and Benjamin H. Clark (Independent) have posted A Timely, Orderly, and Efficient Arrangement of Public Facilities and Services--The Oregon Approach, 49 Willamette Law Review 411 (2013). The abstract:
The provision of public facilities and services is not an exciting planning topic because it deals with the details of supply, rather than the grander issues of economics, social equity and policy. Yet these details occupy an inordinate amount of time and attention by planners, elected officials, and other policy-makers, and account for a substantial share of unresolved issues in planning law.
This Article sets out the rise of infrastructure planning policy in Oregon under a statewide land use planning system that began in 1973.1 In Part I, we give a brief history and description of the structure of that system, followed by a discussion of the evolution of state infrastructure policy under Statewide Planning Goal 11, Public Facilities and Services, and its implementing rules. Following this background, this Article will examine the application of that policy, particularly with respect to the mechanics (Part II) and financing (Part III) of infrastructure planning and its role in the reinforcement of the separation of urban and rural uses (Part IV).
Oregon is one of the leading examples of the comprehensive approach to land use regulation, and any study of the state's approach--particularly one from lawyers who have been involved in the issues--will be a valuable additon to the literature in the field.
Pamela Ko (Sage Colleges) and Patricia Salkin (Touro College) have posted What Every Land Use Lawyer Should Know About the Emerging Use of Health Impact Assessment and Land Use Decision Making, New York Zoning and Planning Law Report, Vol. 16 No. 6 (May/June 2013). The abstract:
The field of Health Impact Assessment is relatively new to the United States, but already a number of state and local governments are incorporating these assessments into land use planning and decision making. In five years, the use of HIA in the U.S. has increased dramatically with more than 100 HIAs completed or in progress in the U.S. from 2007 to 2010. This article provides a brief overview of HIA in the United States, describes how it is being used in other states with respect to land use decision making, and examines how HIA is starting to be incorporated into traditional land use and environmental decision making in New York.
Add public health to the list that makes land use one of the most interdisciplinary fields of legal practice.
Monday, July 15, 2013
William A. Fischel (Dartmouth-Economics; Lincoln Institute of Land Policy) has posted Fiscal Zoning and Economists' Views of the Property Tax. The abstract:
Fiscal zoning is the practice of using local land-use regulation to preserve and possibly enhance the local property tax base. Economists agree that if localities can conduct "perfect zoning," which effectively makes all real estate development decisions subject to a review that balances its benefits and costs to the community, then the local property tax can be converted into a benefit tax and lacks the deadweight loss of taxation. This essay argues that American zoning is closer to this ideal than many other economists think. The practice is often difficult to detect because zoning serves several objectives besides fiscal prudence.
Anything by Fischel is a must-read!
Michael Burger (Roger Williams) has posted The Last, Last Frontier, a chapter in Environmental Law and Contrasting Ideas of Nature: A Constructivist Appproach (Keith Hirokawa ed., Cambridge University Press) 2013. The abstract:
Increased temperatures associated with global climate change are opening new Arctic territory to oil and gas exploration and clearing passage for new maritime shipping routes. These changes are provoking a diverse range of legal responses in the international arena, where nations are staking new territorial claims and seeking to revise understandings of the Law of the Sea, and in the domestic environmental and maritime laws of Arctic nations. While these events provide evidence of an international competition over natural resources, they also provide a case study in how environmental law and litigation construct and reify dominant ideas of nature. This book chapter examines the particular ways in which the storylines and tropes that constitute the "imaginary Arctic" factor into litigation surrounding Shell Oil's attempts to drill for oil and gas in the Beaufort and Chukchi seas. The Shell litigation is exemplary because it pits a number of well-established storylines against each other: the Arctic as classical frontier, the Arctic as spiritualized frontier, the Arctic as neutral space, the Arctic as homeland, and the Arctic as part of the developing world.
Tuesday, July 9, 2013
This month's ABA Real Property "Professors' Corner" teleconference will focus on Koontz, the end-of-Term exactions that is one of the most significant Supreme Court property-rights cases in recent years. (Jessie Owley has discussed it here, and Tim Mulvaney and others have weighed in around the net). This Professor's Corner session should be a good one with several leading scholars participating. Here's the announcement:
Professors’ Corner: Wednesday, July 10, 2013: Koontz v. St. John’s River Water Management District: A Significant Victory for Property Rights?
Professors’ Corner is a monthly free teleconference sponsored by the ABA Real Property, Trust and Estate Law Section's Legal Education and Uniform Laws Group. Each month’s call features a panel of law professors who discuss recent cases or issues of interest to real estate practitioners and scholars. Members of the AALS Property Section are invited to participate in the call (as well as to join and become involved in the ABA Real Property, Trust and Estate Law Section).
Wednesday, July 10, 2013
12:30 p.m. Eastern time (11:30 a.m. Central, 9:30 a.m. Pacific). Call is ONE HOUR in length.
Call-in number: 866-646-6488
This program will feature a roundtable discussion breaking down the Supreme Court’s important June 25 decision in Koontz v. St. John’s River Water Management District. If “monetary exactions” have always seemed a little untamed to you, you’re not alone. The 5-4 decision in Koontz leaves a lot of room for analysis, and this month’s panel is prepared to guide you through it by parsing the decision and the dissent. Our distinguished panel will include Professor Jonathan H. Adler, who is the Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation at Case Western Reserve University School of Law; John D. Echeverria, Professor of Law at Vermont Law School; and David L. Callies, who is the Benjamin A. Kudo Professor of Law at the University of Hawai’i.
For those that haven’t already seen it, here’s a link to the opinion:
Please join us Wednesday for this great program!
July 9, 2013 in Caselaw, Conferences, Conservation Easements, Constitutional Law, Environmental Law, Federal Government, Property Rights, Scholarship, Supreme Court, Sustainability, Takings, Wetlands | Permalink | Comments (0) | TrackBack (0)
Wednesday, June 19, 2013
Brian Lee (Brooklyn) has posted Just Undercompensation: The Idiosyncratic Premium in Eminent Domain, 113 Colum. L. Rev. 593 (2013). Lee presents an interesting challenge to recent scholarship recognizing "confiscation of the uncompensated increment" to use Lee Fennell's terminology. The article does not reject above-market compensation altogether but instead criticizes premium approaches for redistributing wealth to the already well-off. Here's the abstract:
When the government exercises its power of eminent domain to take private property, the Fifth Amendment to the U.S. Constitution requires that the property's owners receive "just compensation," which the Supreme Court has defined as equal to the property’s fair market value. Today, a well-established consensus exists on three basic propositions about this fair market value standard. First, the standard systematically undercompensates owners of taken property, because market prices do not reflect owners' personal valuations of particular pieces of property. Second, this undercompensation is unfair to those owners. And third, an appropriate way to rectify this problem is to add fixed-percentage bonuses to the amount of compensation paid. Several states have recently enacted laws requiring such bonuses, and prominent academics have endorsed their adoption. This Article, however, argues that all three of these widely accepted propositions are false. First, examining the economics of market-price formation reveals that fair market value includes compensation for more subjective value than previously recognized. Second, much of what market value leaves uncompensated should not, in fairness, receive compensation. Third, although justice may require paying compensation above fair market value in certain situations, this Article argues that the solution favored by academics and recent state legislation is itself unjust, undermining the civic and moral equality of rich and poor property owners by relatively overcompensating the rich while undercompensating the poor for losses which have equal value to rich and poor alike. The Article concludes by showing how an alternative approach can avoid these fairness problems.
Tuesday, June 18, 2013
Rachel Godsil (Seton Hall) has posted The Gentrification Trigger: Autonomy, Mobility, and Affirmatively Furthering Fair Housing, 78 Brook. L. Rev. 319 (2013). It's wonderful to have Rachel's civil rights scholarship back in the (urban) neighborhood again. Here's the abstract:
Gentrification connotes a process where often white “outsiders” move into areas in which once attractive properties have deteriorated due to disinvestment. Gentrification creates seemingly positive outcomes, including increases in property values, equity, and a city’s tax base, as well as greater residential racial and economic integration; yet it is typically accompanied by significant opposition. In-place residents fear that they will either be displaced or even if they remain the newcomers will change the culture and practices of the neighborhood. Gentrification then is understood to cause a loss of community and autonomy – losses that have been well recognized in the eminent domain literature.
This article focuses on gentrifying neighborhoods that were abandoned during the government sponsored suburban migration of the 1950s through the 1980s. Racially discriminatory practices of government and private actors often denied Black and Latino families the option either to join the migration to the suburbs or to maintain their homes in city neighborhoods. This article argues that in-place residents of now gentrifying neighborhoods should have access to rental vouchers or low-interest loans to restore the autonomy they were previously denied, providing them with viable, self-determining options to remain or exit the neighborhood. Such a remedy – which is consistent with the Fair Housing Act’s obligation to HUD and its grantees to “affirmatively further fair housing” – has the potential to alter the political terrain of gentrification.
Saturday, June 15, 2013
Land Use Prof's own Ken Stahl (Chapman) has posted the final version of Neighborhood Empowerment and the Future of the City, 161 U. Pa. L. Rev. 939 (2013). (Who says Zoning can't go Ivy?!?) Matt notified us when the piece first was uploaded. Here's the abstract for the finished piece:
In any given metropolitan region,
scores of municipalities are locked in a zero-sum struggle for mobile sources
of jobs and tax revenue. This competition appears to benefit small, homogeneous
suburbs that can directly enact the uniform will of the electorate over large,
diverse cities that are often ensnarled in conflict between competing interest
groups. Cities can level the playing field with suburbs, however, by devolving
municipal power to smaller, more homogeneous subgroups, such as neighborhoods.
Indeed, many commentators have identified one such effort at neighborhood
empowerment, the “business improvement district” (BID), as a key factor in the
recent revitalization of many cities. The BID and the related “special
assessment district” devolve the financing of infrastructure and services to
landowners within a territorially designated area. Courts have widely upheld
BIDs and special assessment districts against constitutional challenges.
Cities remain hamstrung in competing with suburbs, however, because courts prohibit cities from delegating what is perhaps the most coveted power of all to neighborhood groups: zoning. Since an unusual series of Supreme Court cases in the early twentieth century, it has been largely settled that cities may not constitutionally delegate the zoning power to sub-municipal groups, at least where the power is delegated specifically to landowners within a certain distance from a proposed land use change (a scheme I designate a “neighborhood zoning district”).
This Article argues that the judicial prohibition on neighborhood zoning districts is inconsistent with the judiciary’s permissive attitude toward BIDs and special assessment districts. As I demonstrate, the neighborhood zoning district is conceptually identical to the special assessment district/BID. Both devices are designed to enable large, diverse cities to capture some of the governance advantages of small, homogeneous suburbs by providing landowners with the direct ability to manage local externalities. This Article attempts to make sense of the disparate treatment accorded these devices by examining several grounds upon which they could potentially be, and have been, distinguished. I find, however, that the only meaningful distinction between these mechanisms is that special assessment districts/BIDs actually raise far more troubling public policy concerns than neighborhood zoning districts, thus calling into question why the judiciary has been so much more deferential toward the former than the latter. I conclude that courts should broadly defer to municipal delegations of power to sub-local groups, so that cities can work out their own strategies for surviving in an era of intense interlocal competition.
Tuesday, June 11, 2013
Carol Zeiner (St. Thomas) has posted A Therapeutic Jurisprudence Analysis of the Use of Eminent Domain to Create a Leasehold, forthcoming in the Utah Law Review (2013). The abstract:
Therapeutic jurisprudence provides an excellent tool to analyze and guide the development of the law on the use of eminent domain to create leaseholds. The objective of these takings is for the condemnor to become a tenant under a “lease,” rather than the fee simple owner.
I am perhaps the only scholar who has written extensively on the topic of takings to create a leasehold. In a previous work, I provided an exhaustive analysis of the conclusion that government can use eminent domain to create a leasehold. That work went on to conclude that there are circumstances in which government should use eminent domain to create a leasehold, but that difficult problems can arise in such takings. They necessitate refinements in arriving at just compensation.
That work also concluded that there is at least one situation in which government should not be allowed to use eminent domain to create a leasehold. I labeled such takings Kelo-type takings, wherein the government uses its power of eminent domain with the objective of creating a leasehold that it will then transfer to a private party for private use. My argument that the use of such Kelo-type takings to create leaseholds should not be allowed was based primarily on public policy considerations. I concluded that the problems arising from takings that create private leaseholds are much worse than those encountered in situations such as Kelo, in which government acquires a fee simple from the condemnee and then makes a transfer to a private party, because the form disrupts the social contract between government and the people.
Any such conclusion demands reexamination on theoretical grounds, which is done in this Article. In order to re-examine the question, it formally extends the jurisprudential philosophy of therapeutic justice to eminent domain in general and specifically to takings to create leaseholds. The principles underlying therapeutic jurisprudence, as well as the illuminating insights derived from its application, confirm the prior conclusion.
Michael C. Blumm (Lewis & Clark) and Andrew B. Erickson (Lewis & Clark) have posted Wild Lands Policy in the Twenty-First Century: What a Long, Strange Trip It's Been. The abstract:
The protection of federally owned wild lands, including but not limited to designated wilderness areas, has long been a cardinal element of the American character. For a variety of reasons, designating wild lands for protection under the Wilderness Act has proved difficult, increasingly so in recent years. Thus, attention has focused on undesignated wild lands, that is, unroaded areas managed by the principal federal land managers, the U.S. Forest Service and the Bureau of Land Management (BLM). These areas can benefit from a kind of de facto protected status if they are Forest Service areas that have been inventoried for wilderness suitability and not released to multiple use or are wilderness study areas managed by BLM. In the last two decades, considerable controversy has surrounded roadless areas in both national forests and BLM lands because protecting their wild land characteristics may foreclose development, such as oil and gas leasing or timber harvesting. Recently, the courts have settled longstanding litigation by upholding roadless rule protection in the national forests. But BLM wild land protection has remained more unsettled, as Congress recently rejected a Wild Lands Policy adopted by the Obama Administration. Despite this political setback, current policy is to survey and consider wild lands in all BLM land plans and project approvals. This promised consideration, however, leaves the fate of such lands in the hands of local BLM officials and to the political vicissitudes of future administrations.
This article traces the evolution of federal wild lands policy from its beginnings in the 1920s to the enactment of the Wilderness Act in 1964 and the Federal Land Management and Policy Act in 1976 to the longstanding dispute over the Forest Service's roadless rule to the present controversy over BLM wild lands policy. We maintain that, pending congressional decisions on wilderness status, the best way to protect wild lands in the 21st century is through administrative rule, as in the case of national forest lands. Such protection, however, will require at least acquiescence from Congress, which has not been evident in the case of BLM lands in recent years.