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.
Wednesday, July 17, 2013
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 Currently, groundwater accounts for 60% of all water withdrawn in the state.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)
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, June 10, 2013
Margaret F. Brinig (Notre Dame) and Nicole Stelle Garnett (Notre Dame) have posted A Room of One's Own? Accessory Dwelling Unit Reforms and Local Parochialism, forthcoming in The Urban Lawyer (2013). The abstract:
Over the past decade, a number of state and local governments have amended land use regulations to permit the accessory dwelling units (“ADUs”) on single-family lots. Measured by raw numbers of reforms, the campaign to secure legal reforms permitting ADUs appears to be a tremendous success. The question remains, however, whether these reforms overcome the well-documented land-use parochialism that has, for decades, represented a primary obstacle to increasing the supply of affordable housing. In order to understand more about their actual effects, this Article examines ADU reforms in a context which ought to predict a minimal level of local parochialism. In 2002, California enacted state-wide legislation mandating that local governments either amend their zoning laws to permit ADUs in single-family zones or accept the imposition of a state-dictated regulatory regime. We carefully examined the zoning law of all California cities with populations over 50,000 people (150 total cities) to determine how local governments actually implemented ADU reforms “on the ground” after the state legislation was enacted. Our analysis suggests that the seeming success story masks hidden local regulatory barriers. Local governments have responded to local political pressures by delaying the enactment of ADU legislation (and, in a few cases, simply refusing to do so despite the state mandate), imposing burdensome procedural requirements that are contrary to the spirit, if not the letter, of the state-law requirement that ADUs be permitted “as of right,” requiring multiple off-street parking spaces, and imposing substantive and procedural design requirements. Taken together, these details likely dramatically suppress the value of ADUs as a means of increasing affordable housing.
This looks really interesting. Here in Houston we have a significant number of ADUs--so-called "granny flats" because--stop me if you've heard this before--Houston has no zoning to make it illegal, as this article shows it has been in single-family residentail neighborhoods around the country. These ADUs provide an important supply of affordable "inside-the-Loop" (i.e. central city area) housing.
June 10, 2013 in Affordable Housing, California, History, Housing, Houston, Local Government, Planning, Politics, Property, Property Rights, Scholarship, State Government, Subdivision Regulations, Zoning | Permalink | Comments (0) | TrackBack (0)
Saturday, May 18, 2013
Here's another recently-posted paper from Stephanie Stern (Chicago-Kent): Protecting Property Through Politics: State Legislative Checks and Judicial Takings, forthcoming in the Minnesota Law Review. The abstract:
In the 2010 Supreme Court case Stop the Beach Renourishment v. Florida Department of Environmental Protection, a plurality of the Court launched judicial takings in political and scholarly debate and laid the groundwork for expanding the Fifth Amendment to encompass court decisions. This Article explores a neglected institution in the debate over judicial takings — state legislatures. In the comparatively rare instances when state courts overreach, state legislatures can revise state court decisions and restore private property rights. Through case studies of state legislative checks of judicial activism, I examine the comparative institutional advantages, and the potential gaps, of situating primary responsibility for state court revision in state legislatures. In view of takings federalism and the costs of judicial takings, I contend that the existing balance of state legislative checks and state court restraint works well enough to police against state court property activism.
May 18, 2013 in Caselaw, Constitutional Law, Eminent Domain, Judicial Review, Politics, Property Rights, Property Theory, Scholarship, State Government, Supreme Court, Takings | Permalink | Comments (0) | TrackBack (0)
Thursday, March 7, 2013
Dave Owen (Maine) has posted Taking Groundwater. The abstract:
In February, 2012, in a case called Edwards Aquifer Authority v. Day, the Texas Supreme Court held that landowners hold property rights to the groundwater beneath their land, and that a regulatory restriction on groundwater use could constitute a taking of private property. The decision provoked strong reactions, both positive and negative, throughout the world of water law, for it signaled the possibility of severe restrictions on governmental ability to regulate groundwater use.
This Article considers the deeper issue that confronted the Texas Supreme Court, and that has confronted other courts across the country: how should the Takings Clause of the Fifth Amendment, and parallel clauses of state constitutions, apply to groundwater use regulation? Initially, this Article explains why this issue is exceedingly and increasingly important. It then reviews all of the groundwater/takings decisions from federal and state courts in the United States. Finally, the Article considers the implications of foundational property theories for the application of takings doctrine to groundwater use.
The analysis supports two key conclusions. First, it undermines arguments against treating water rights as “constitutional property” — that is, property protected by federal and state takings clauses. Proponents of those arguments generally assert that treating water rights as property has uneven support from prior caselaw and that such treatment will be prevent sensible governance. A review of groundwater caselaw demonstrates that the former assertion runs counter to the weight of authority, and that the fears underlying the latter argument are overstated. Second, and more importantly, the analysis undermines arguments for granting groundwater use rights heightened protection against regulatory takings. Recently, litigants and commentators skeptical of government regulatory authority have widely advanced those arguments. But they find no support in past groundwater/takings caselaw, and no property theory justifies adopting such an approach.
An important issue, and a reminder that state supreme courts continue to play a crucial role in shaping modern property law.
March 7, 2013 in Caselaw, Constitutional Law, Environmental Law, Property, Property Rights, Scholarship, State Government, Sustainability, Takings, Texas, Water | Permalink | Comments (0) | TrackBack (0)
Wednesday, February 13, 2013
The University of Missouri School of Law is hosting a Symposium on February 22, 2013, called Promoting Sustainable Energy through Tax Policy. Sponsored by the Journal of Environmental and Sustainability Law and the Missouri Tax Law Society, the event will be introduced by Mizzou profs Michelle Arnopol Cecil and our own guest blogger Troy Rule, and features panels with Alexandra Klass (Minnesota), Steve Gaw (The Wind Coalition), Felix Mormann (Miami), Roberta Mann (Oregon), Robert Peroni (Texas), with a keynote by David Weisbach (Chicago). Here's the info and link:
Renewable energy and sustainable development are valuable means of combatting climate change and of reducing the nation’s reliance on foreign energy sources. Recognizing the importance of sustainable energy, state and federal policymakers have employed aggressive tax incentive programs to stimulate unprecedented growth in wind energy, solar energy, biomass, green building, and related industries in recent years. Unfortunately, shortfalls in many state budgets and growing concerns about the national debt are now creating pressure for governments to extinguish these tax programs — a move that could bring progress in the nation’s fledgling sustainable energy sector to a grinding halt.
This year’s Journal of Environmental and Sustainability Law symposium is being sponsored jointly with the University of Missouri Tax Law Society. The symposium explores questions about the long-term role of tax policy as a tool for promoting renewable energy and sustainability in the United States.
Cost and Registration
The symposium is free and open to the public.
Registration is suggested by Friday, February 15.
To register, please contact:
Journal of Environmental and Sustainability Law
University of Missouri School of Law
12E Hulston Hall
Columbia, MO 65211
February 13, 2013 in Clean Energy, Climate, Conferences, Environmental Law, Environmentalism, Federal Government, Local Government, Oil & Gas, Politics, Scholarship, State Government, Wind Energy | Permalink | Comments (0) | TrackBack (0)
Tuesday, February 12, 2013
A Virginia Homeowner's Assocation appears to have gone bankrupt due to litigation over its attempts to enforce its rules against a four-inch violation by a couple's Obama yard sign during the 2008 election. After four years, skyrocketing assessments, and hundreds of thousands of dollars in legal fees, the bankrupt HOA is considering selling off the central common area. From the Washington Post, Feud over sign could force Fairfax's Olde Belhaven to sell square.
Such HOA disputes are as suburban as cul-de-sacs and two-car garages, but few metastasize into legal battles that spend years in the courts, break legal ground and bankrupt the HOA.
Most damaging of all, though, was a move probably unprecedented in area neighborhood feuds: The common area that is the literal and metaphoric heart of Olde Belhaven was put up for sale last year to settle its debts. It appeared that “the square,” as some called the neighborhood, would no longer have a square.
“It destroyed our community,” Maria Farran said.
The litigation ranged from a challenge to the HOA's power to fine the owners, and a retaliation claim. It made some new law:
In 2010, a county judge sided with the Farrans on the fining issue. The case set a Virginia precedent that HOAs cannot claim powers, such as fining, that are not specifically laid out in their covenants.
You can read the whole article for a great description of the legal issues and the story. As HOAs trend toward more extensive sets of rules, and as not everyone buys in, you can probably finds examples of similar (if not quite so expensive) conflicts in communities around the country. And one thing that's common to both public and private regulation: when individual property rights clash with collective restrictions regarding people's homes, passions run high--even (especially?) when the stakes are as low as four inches on a political yard sign.
Thanks to Helen Jenkins for the pointer.
February 12, 2013 in Common Interest Communities, Constitutional Law, First Amendment, Homeowners Associations, Politics, Property Rights, State Government, Subdivision Regulations, Suburbs | Permalink | Comments (0) | TrackBack (0)
Friday, November 16, 2012
Last year we blogged about the then-upcoming Kratovil Conference on the 40th Anniversary of The Quiet Revolution in Land Use Control, the seminal 1971 book by Fred Bosselman and David Callies. The conference was hosted by the Center for Real Estate Law and Practice at The John Marshall Law School in Chicago, and the Symposium Issue has just come out in the John Marshall Law Review. The Conference blurb:
In 1971, the President's Council on Environmental Quality published The Quiet Revolution in Land Use Control. The book described in detail the innovative land use laws in nine states which returned the control of land use to a state or regional level, largely at the expense of local zoning. This constituted the "quiet revolution." The Kratovil Quiet Revolution Conference [brought] together national scholars and experts in land use to analyze the lasting impact of The Quiet Revolution in several jurisdictions around the country and examine the future of land use policy.
We've posted some of the individual articles as they came out on SSRN, but just last week I received the hard copy symposium issue in the mail. As you can see from the program, this excellent issue includes a foreword by Celeste Hammond, center director, and pieces by leading land use experts Bosselman, Callies, Patricia Salkin, Daniel Mandelker, Edward J. Sullivan, Nancy Stroud, and John S. Banta.
The whole issue is worth getting a hold of if you haven't already. But wait, there's more! Prof. Hammond notes in her cover letter that the entire conference is now available to watch on video! Here's a link to the conference page with videos on the Center's website. Check it out if you couldn't be there and are looking for a great excuse for end-of-semester procrastination!
Tuesday, November 6, 2012
It's Election Day, and we all know what's the most important thing on the ballot: local land use issues. Through the initiative and referendum process, as well as in races for local government office, land use ballot issues often have an importance to our communities far beyond the relative amount of publicity they receive . . . especially in a presidential election year.
In Houston, voters are going to the polls today to answer a number of local government ballot questions, including amendments to the City Charter, a number of bond issues for parks and schools, and perhaps most importantly, a referendum that is colloquially referred to as "METRO."
In the late 1970s, Houston joined about 15 other local government bodies (including the County, the school district, and a number of smaller suburban municipalities) to create the METRO transit authority. METRO was responsible for regional buses and transit, and in the early 2000s it built the first Houston light rail line. METRO has ambitious plans to expand the light rail into a regional transit system, but it has always been controversial. METRO is supposed to be funded by a sales tax, but since its inception, the City has always diverted one-quarter of those revenues toward road improvements. So the ballot question is whether we should *continue* diverting that portion of the transit tax for another decade.
We discussed it in land use class yesterday. Here are some competing op-eds: METRO Board member Dwight Jefferson says that "Yes" on the METRO referendum will expand bus system, continue road building and reduce debt. In opposition, Houston Tomorrow president David Crossley says More light rail for Houston? If you’re pro-transit, vote "No" on METRO ballot issue. Mayor Annise Parker (D) and most politicians are in favor of the measure. As you can see in Crossley's op-ed and at the opposition website http://supporthoustontransit.org/2012/, the smart growth/pro-transit crowd is passionately opposed.
So--depending on who you ask--the future of transit in the nation's fourth-largest city is on the line; or, its capability to deal with critical mobility issues.
The unfortunate thing is that very few people even understand the ballot language, let alone the stakes. Here is the language of the ballot question that is referred to as the "METRO ballot" issue:
THE CONTINUED DEDICATION OF UP TO 25% OF METRO'S SALES AND USE TAX REVENUES FOR STREET IMPROVEMENTS AND RELATED PROJECTS FOR THE PERIOD OCTOBER 1, 2014 THROUGH DECEMBER 31, 2025 AS AUTHORIZED BY LAW AND WITH NO INCREASE IN THE CURRENT RATE OF METRO'S SALES AND USE TAX.
Last year I wrote a screed complaining about ballot language for state constitutional referenda. Ken Stahl penned a typically thoughtful response with a partial defense of the initiative process for land use issues (and of course he has the leading recent scholarly piece on Ballot Box Zoning). But this METRO referendum language seems to me to be a perfect example of how screwy the process is. Basically, if you are in favor of more transit generally and light rail expansion in particular, you are supposed to vote "NO" on the ballot referendum that everyone is referring to as "METRO." If you want that tax revenue to contiue to be diverted away from transit and toward roads, then you are supposed to vote "Yes on METRO."
We discussed this in Land Use class yesterday and it confirmed to me how confusing this is. My students are way above the average voter in land-use sophistication, but they still had a hard time figuring this out. I suspect that most voters, motivated into the booth primarily by their choice for the presidential election, will only have the vaguest idea that if you are pro-transit you are supposed to vote "no" on "METRO." That's counterintuitive, and I'm afraid that whatever the result is, it won't be a very good democratic indicator. And that's just for the people who vote on it; the proposal is one of the last items on the ginormous sample ballot that I photographed above. Many people will vote "straight party ticket" (that's an option in Texas) and walk out of the booth, without even seeing the referendum questions.
So we'll have to see how this land use question is resolved by the people, and, after that, what actually happens to the transit system and whether the political predicitons on either side come to fruition. In the meantime, remember that while the national horse race gets all the attention, there are critically important land use issues being decided in communities across America tonight.
UPDATE: "METRO" passed by a large margin: 79-21. The presidential vote in Houston was a statistical tie. All of the other ballot referenda (mostly to approve debt for capital projects) passed as well. I honestly have no idea whether the METRO vote represents anything at all with respect to public opinion on the future of transit.
Thursday, October 4, 2012
David J. Reiss (Brooklyn) has posted Comment on the Use of Eminent Domain to Restructure Performing Loans, which was submitted to the Federal Housing Finance Agency (No. 2012–N–11) (2012). The abstract:
There has been a lot of fear-mongering by financial industry trade groups over the widespread use of eminent domain to restructure residential mortgages. While there may be legitimate business reasons to oppose its use, its inconsistency with Takings jurisprudence should not be one of them. To date, the federal government’s responses to the current crisis in the housing markets have been at cross purposes, half-hearted and self-defeating. So it is not surprising that local governments are attempting to fashion solutions to the problem with the tools at their disposal. Courts should, and likely will, give these democratically-implemented and constitutionally-sound solutions a wide berth as the ship of state tries to right itself after being swamped by a tidal wave of mortgage defaults.
A concise and thoughtful public comment on what is emerging as a hot, hot issue.
October 4, 2012 in Constitutional Law, Eminent Domain, Finance, Housing, Local Government, Mortgage Crisis, Mortgages, Property Rights, Real Estate Transactions, Scholarship, State Government, Takings | Permalink | Comments (0) | TrackBack (0)
Monday, September 24, 2012
Alexandra B. Klass (Minnesota) has posted Takings and Transmission, forthcoming in the North Carolina Law Review. The abstract:
Ever since the Supreme Court’s controversial 2005 decision in Kelo v. City of New London, courts, state legislatures, and the public have scrutinized eminent domain actions like never before. Such scrutiny has focused, for the most part, on the now-controversial “economic development” or “public purpose” takings involved in the Kelo case itself, where government takes private property for a redevelopment project that will benefit another private party as well as increase the tax base, create new jobs, assist in urban renewal, or otherwise provide economic or social benefits to the public. By contrast, until recently, there has been little change in law or public opinion with regard to takings involving publicly-owned projects such as hospitals or post offices or “use by the public” takings that involve condemnation for railroad lines, electric transmission lines, or other infrastructure projects. However, recent changes in electricity markets and the development of the country’s electric transmission system have raised new questions about the validity of “use by the public” takings in the context of electric transmission lines. With some transmission lines now being built by private, “merchant” companies rather than by publicly-regulated utilities, and with the push to build more interstate transmission lines to transport renewable energy to meet state renewable portfolio standards, what was once a classic public use is now subject to new statutory and constitutional challenges. This Article explores the potential impact of these developments on the use of eminent domain for electric transmission lines. Ultimately, it suggests that states should ensure that their eminent domain laws governing transmission lines are consistent with their policy preferences surrounding energy development in the state, and it outlines some ways for states to accomplish this goal.
I think you could make some analogous analysis about the newly-hot issue of eminent domain and pipelines, for example the controversy over the acquisition of rights of way for the Keystone Pipeline. Interesting issues.
Wednesday, September 19, 2012
Alan Weinstein (Cleveland-Marshall) has posted The Ohio Supreme Court’s Perverse Stance on
Development Impact Fees and What to Do About It. The abstract:
Ohio is among the twenty-two states that have no enabling legislation for development impact fees. But in a 2000 ruling, Homebuilders Association of Dayton and the Miami Valley, et. al. v. City of Beavercreek, a divided Ohio Supreme Court ruled that municipalities could lawfully enact impact fees under their police and “home rule” powers, provided that the fees could pass constitutional muster under a “dual rational nexus test.” On May 31, 2012, however, the Court ruled in Drees Company, et. al. v. Hamilton Township, that a development impact fee enacted by an Ohio township with “limited home rule” powers was an unconstitutional tax. The Court’s unanimous opinion in Hamilton Township was authored by Justice Paul Pfeiffer, who, twelve years before, had authored the main dissenting opinion in the Beavercreek case. This article faults the Court’s opinion invalidating the impact fees in Hamilton Township, arguing that the Court, rather than engaging in a fair-handed analysis, chose instead to rely on very limited authority to support a conclusion that appears to have been pre-determined. In particular, the article demonstrates that the Court failed even to acknowledge, let alone distinguish: (1) its earlier ruling upholding impact fees in Beavercreek and (2) the state supreme court decisions that had rejected the reasoning of the Iowa and Mississippi courts upon which the Court relied in part. The article notes that the Court’s ruling leaves Ohio with a bifurcated approach to impact fees that is perverse because it makes impact fees most defensible in municipalities, in many of which there is little new development, and thus the need for impact fees is less, and effectively prohibits their use in rapidly-developing
townships where they are needed most. The article concludes that the time is long-past for the legislature to examine the policy debate on impact fees and make a decision about adopting enabling legislation for impact fees, and that the decision should be to join the majority of states that have enacted such legislation.
This is a big deal given the increasing resort to impact fees by local governments, while nearly half the states don't have clear rules governing their application.
Wednesday, September 5, 2012
Chad Pomeroy (St. Mary's) has posted A Theoretical Case for Standardized Vesting Documents. The abstract:
real estate professionals, and lay people throughout the country rely
on the recording system to provide critical information regarding
ownership rights and claims. Indeed, the recording system acts as a
virtually mandatory repository and disseminator of all potential
parties’ claims. This system, in turn, relies on these claimants and
their agents to publicize their claims: property purchasers, lenders,
lien-claimants, title companies, attorneys - these parties interact,
make deals, make claims, order their affairs, and then record. The
information system available to us, then, is only as good as what we
make of it and what we put into it.
As such, it is surprising how little thought has been put into exactly what it is that we record. Should the mortgage of a lender in Ohio look like that of a lender in Florida? Should a deed from an individual in Texas differ from that of a corporation in Nevada? As it stands now, no one familiar with real estate law or commerce would expect different parties in different jurisdictions to record identical, or even similar, instruments. In an immediate sense, this heterogeneity of the recorded documents (“vesting heterogeneity”) does not seem a good thing: parties utilizing the recording system generally seek to make known, or to discern, the same generic type of information – that is, evidence of claims upon property – so why are different forms and types of documents utilized all over the country?
This article analyzes this vesting heterogeneity from a new perspective and concludes that it is, in fact, cause for significant concern. Vesting heterogeneity has arisen organically, growing with the recording system as they both evolved over time. This historical explanation does not, however, excuse the cost associated with such a lack of uniformity. Anyone seeking information with respect to any piece of property must navigate the complexities and uncertainties that arise because all such information is heterogeneous and, as a consequence, difficult to understand and utilize. This represents both a immediate transactional cost and an increased risk of ill-informed behavior.
This is particularly troublesome because this sort of cost-based concern arising from variability has a well-established analogue in property law that the law clearly desires to avoid. That analogue is the cost that would arise if property law were to permit unlimited property forms and gives rise to what is known as the numerus clausus theory. This theory explains the law’s hostility toward new, or different, types of property and holds that such heterogeneity is not generally permitted because of the extremely high informational costs associated with such creativity.
This article suggests that this common law concept can, and should, inform our analysis of vesting heterogeneity and that it precipitates strongly against such lack of uniformity. This is because the costs that drive the numerus clausus to hold that variability should be limited are strikingly similar to those created by variability of vesting documents. As such, this theory is relevant here such that the same analysis should be applied to vesting heterogeneity by asking whether a different (or “new”) document is helpful enough to outweigh the informational costs inherent therein.
Based on this reasoning, this article concludes that the law is wrong to systematically ignore heterogeneity in vesting documents. Instead, a numerus clausus type of analysis should be applied to new or different vesting documents to determine whether any inherent lack of uniformity is defensible. Where it is not, uniformity should be imposed.
Tuesday, August 28, 2012
UMKC Law and the ABA Section on State & Local Government are hosting an education law symposium with The Urban Lawyer, preceded by the 2012 Gage Lecture, featuring Nicole Stelle Garnett (Notre Dame) on "School Closures in Urban Neighborhoods: Lesson's from Chicago's Catholic Schools."
Thursday, Oct. 4, 2012 | 6:30 p.m.
UMKC School of Law's Thompson Courtroom
What Happens When You Close Urban Schools
America’s educational landscape is changing with the rapid disappearance of Catholic schools from the urban core. Yet, studies show negative effects on neighborhoods when schools close. Scholar Nicole Garnett will discuss what this means for urban and educational policy.
Professor Garnett's lecture is free and open to the public; the program and registration for the Oct. 5 symposium are available at the website.
Friday, August 24, 2012
If you've been reading the work of some of our colleagues at Property Prof like Tanya Marsh and Al Brophy, you know that cemeteries, memorials, and burial rules can be important issues in law and historical memory. Here's a more quotidian case in point, from the Huffington Post: James Davis, Alabama Man, Fights To Keep Remains Of Wife Buried In Front Yard. From the article:
Davis said he was only abiding by Patsy Ruth Davis' wishes when he buried her outside their log home in 2009, yet the city sued to move the body elsewhere. A county judge ordered Davis to disinter his wife, but the ruling is on hold as the Alabama Civil Court of Appeals considers his challenge.
While state health officials say family burial plots aren't uncommon in Alabama, city officials worry about the precedent set by allowing a grave on a residential lot on one of the main streets through town. They say state law gives the city some control over where people bury their loved ones and have cited concerns about long-term care, appearance, property values and the complaints of some neighbors.
But even some of the objecting neighbors are still concerned with the individual property-rights aspect of this situation:
A strong libertarian streak runs through northeast Alabama, which has relatively few zoning laws to govern what people do with their property. Even a neighbor who got into a fight with Davis over the gravesite – Davis said he punched the man – isn't comfortable with limiting what a homeowner can do with his property.
"I don't think it's right, but it's not my place to tell him he can't do it," said George W. Westmoreland, 79, who served three tours of duty in Vietnam. "I laid my life on the line so he would have the right to do this. This is what freedom is about."
The article profits from the analysis of Samford law prof Joseph Snoe (invoking Mahon (which I just taught) and other important precedents):
A law professor who is familiar with the case said it's squarely at the intersection of personal rights and government's power to regulate private property. While disputes over graves in peoples' yards might be rare, lawsuits over the use of eminent domain actions and zoning restrictions are becoming more common as the U.S. population grows, said Joseph Snoe, who teaches property law at Samford University in suburban Birmingham.
While it's a quirky fact pattern, this sort of case is intensely personal, and goes to show the broad range of issues that can end up in disputes over land use law. Thanks to Troy Covington for the pointer.
Wednesday, August 22, 2012
During my just-completed trip to Hawaii, I spent some time in the wonderful Hawaii Volcanoes National Park. The volcanic eruptions in the park continue to add new land to Hawaii’s youngest and largest island. In fact, over 500 acres of new land have been added since 1983 alone.
This led me to wonder who owned this new land. It turns out that the US Geological Survey’s Hawaiian Volcano Observatory provided a helpful answer to this question a while back. The Hawaii Supreme Court, in the 1977 case State by Kobayashi v. Zimring, 566 P.2d 725, decided the issue. Granted this is not an issue of broad relevance, but I found their resolution of the question interesting.
In Zimring, the State of Hawaii sought to quiet title over 7.9 acres of new land added after a 1955 eruption extended the shoreline. This new land, which was termed a “lava extension,” was adjacent to land purchased by the Zimrings in 1960, after the eruption. The lava flowed over the purchased land and into the ocean, forming the new 7.9 acres of land. After purchasing the adjacent land the Zimrings entered onto the new land, bulldozing it and planting trees. The State even assessed the land and collected taxes from the Zimrings on it. Nonetheless, the court found in favor of the State of Hawaii and in doing so distinguished lava flows from the common law doctrine regarding accretion of land.
The court first reviewed the history of Hawaiian law regarding private property ownership, concluding that it made clear that “land in its original state is public land and if not awarded or granted, such land remains in the public domain.” It then considered whether there was a relevant doctrine from the common law or traditional Hawaiian usage that applied in the case. It concluded that there were too few similar lava flows over private land to have established a usage.
It then considered the common law, first declaring that “[n]o court sitting at common law has had occasion to deal with the question of lava extensions.” The court distinguished the common law regarding accretion, the gradual increase of land through the deposit of soil. Under the common law, owners of contiguous land take title to land formed by accretion. In contrast, the court declared, “in cases where there have been rapid, easily perceived and sometimes violent shifts of land (avulsion) incident to floods, storms or channel breakthroughs, preexisting legal boundaries are retained notwithstanding the fact that former riparian owners may have lost their access to the water.” Similarly, it noted that under California law if an accretion is caused by artificial means, the newly created land does not belong to the upland property owner. The court concluded that “[r]ather than allowing only a few of the many lava victims the windfall of lava extensions, this court believes that equity and sound public policy demand that such land inure to the benefit of all the people of Hawaii, in whose behalf the government acts as trustee.”
It can be expected that the Loihi Seamount, which is being formed by volcanoes southeast of the Big Island, will similarly fall under control of the state when and if it emerges some thousands of years into the future.
Monday, August 6, 2012
An article in this Sunday's Philadelphia Inquirer discusses New Jersey Governor Chris Christie's demand that towns in New Jersey turn over to the state money that has been in their affordable-housing trust funds for more than four years, a total of $141.2 million. A state law (N.J.S.A. 52:27D-329.2) requires that this money, which towns receive from fees paid by developers, be committed within four years. The state recently sent letters to 372 town outlining how much each one is being asked to transfer to the state's Affordable Housing Trust Fund. (NJ's Fair Share Housing Center posted a copy of one of these letters.)
Christie's effort, as the Inquirer article notes, is just the latest episode in New Jersey's battles over zoning and affordable housing regulation, battles made famous by the Mount Laurel decision. Christie previously sought to eliminate the state's Council on Affordable Housing (COAH), which enforces the judicial requirements regarding how much housing must be built in each town. However, NJ's Supreme Court rejected his attempt. (For an interesting perspective on Christie's "War Against the Mount Laurel Doctrine," see this piece by Rick Hills from a while back on PrawfsBlawg).
Now, critics claim Christie is seeking the money to fill holes in the state budget, while the Governor's camp responds that the money will be used for housing programs at the state level. Local officials assert their failure to spend the money is largely due to the state's confusing guidelines, particularly regarding what it means to have, as the law requires, "committed" funds to fulfill their affordable housing obligations.
When Christie first announced his plans to seize the funds, the Fair Share Housing Center filed a motion seeking to enjoin the state's actions, arguing that COAH failed to promulgate standards outlining what municipalities must do to "commit" the funds. The Appellate Division of the NJ Superior Court refused to issue an injunction, but did require that municipalities receive written notice of the amount they owed and how it was calculated. This notice came in the form of the subsequent letters stating the amount due and demanding that towns transfer the funds - or dispute the amount calculated - by August 13, 2012. The Fair Share Housing Center, joined by the NJ State League of Municipalities, now contend that the letter sent to municipalities fails to comply with the requirement that municipalities be informed regarding how the amount was calculated.
To my mind, it seems the challenge to the state's actions will be an uphill battle for the municipalities. The statute the state is relying upon in seizing the funds states:
"The council shall establish a time by which all development fees collected within a calendar year shall be expended; provided, however, that all fees shall be committed for expenditure within four years from the date of collection. A municipality that fails to commit to expend the balance required in the development fee trust fund by the time set forth in this section shall be required by the council to transfer the remaining unspent balance at the end of the four-year period to the “New Jersey Affordable Housing Trust Fund" . . . to be used in the housing region of the transferring municipality for the authorized purposes of that fund."
In its Order denying the request for an injunction, the court declared that "[t]he ambiguity, if any, concerning the term commit has not precluded municipalities from seeking COAH's approval of particular housing projects on a case-by-case basis." The court's chief concern, as noted, was that the municipalities receive notice and an opportunity to contest the transfer. It is likely this battle will continue to drag out, largely focused on the process through which the state is seeking to take back the funds, but it seems difficult to envision a strong legal basis for the municipalities ultimately stopping the seizure of the funds. It may be more likely that political pressure, from local municipalities and residents who will still need to fulfill their affordable housing obligations, but will be forced to find new sources of funding, may stop the state's efforts.