March 07, 2013
Owen on Taking Groundwater
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.
February 20, 2013
Plummer on The Effects of Property Tax Protests on Assessment Uniformity of Residential Properties
Elizabeth Plummer (Texas Christian) has posted The Effects of Property Tax Protests on the Assessment Uniformity of Residential Properties, forthcoming in Real Estate Economics. The abstract:
This study examines whether the appeals process improves assessment uniformity for residential properties. The sample includes all single family residential properties in Harris County, Texas, for 2006-2008. I use a hedonic pricing model and Heckman’s two stage approach to explain the assessed values of all properties before and after the appeals adjustments. Full sample results suggest that the appeals process increased assessment uniformity and that the value adjustments were appropriate in amount. I also present results across properties of different values (low, medium, high). The first stage probit model provides evidence on the factors that affect the likelihood that an owner will protest.
I'm personally excited to see this study of real estate value effects in my own backyard, here in The Unzoned City.
June 03, 2012
Lefcoe on California Redevelopment Decision
George Lefcoe (USC) has posted CRA v. Matosantos: The Demise of Redevelopment in California and a Proposal for a Fresh Start. The abstract:
This paper describes how redevelopment in California came to an end with the California Supreme Court’s decision in California Redevelopment Association v. Matosantos and how redevelopment could be resuscitated. The first part of the paper highlights the precipitating events leading up to the case: California’s unique property tax history, the successes and drawbacks of redevelopment, how redevelopment is financed, and the text and politics of Proposition 22, the state constitutional predicate for the Court’s opinion. The second section describes the arguments and outcome of the case in which the Court upheld a statute dissolving redevelopment agencies (RDAs) and simultaneously struck down a companion bill — a “pay-to-stay” law — that would have enabled cities and counties to preserve their RDAs by pledging local funds to the state. A concluding section proposes that California legislators consider a new redevelopment enabling law, modeled along the lines of Texas’s tax increment reinvestment zones (TIRZs). Such a statute would conform to the guidelines for constitutionality from the concluding paragraph of the Court’s opinion in Matosantos, and it would be fiscally responsible because it limits the use of tax increment financing.
May 24, 2012
Nolon on Regulatory Takings, Property Rights, and Sea Level Rise
John R. Nolon (Pace) has posted Regulatory Takings and Property Rights Confront Sea Level Rise: How Do They Roll. The abstract:
Under the Beach and Shore Preservation Act, the State of Florida is authorized to conduct extraordinarily expensive beach renourishment projects to restore damaged coastal properties. The statute advances the State’s interest in repairing the damage to the coastal ecosystem and economy caused by hurricanes, high winds, and storm surges. The effect of a renourishment project conducted under the statute is to fix the legal boundary of the littoral property owner at an Erosion Control Line. Plaintiffs in Walton County v. Stop the Beach Renourishment, Inc. claimed that the statute took their common law property rights to their boundary, which would, but for the Act, move gradually landward or seaward, maintaining contact with the water. The Florida Supreme Court disagreed and the U.S. Supreme Court granted certiorari in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection to determine whether the state court reinterpreted Florida’s common law as a pretext for upholding the statute against the plaintiffs’ taking claim and, if so, whether that reinterpretation constituted a “judicial taking.” The Court ultimately decided that the Florida court’s interpretation was correct and that there was no regulatory taking. A majority of the Court could not agree as to whether a state court’s interpretation of state common law could constitute a “judicial taking.”
This article discusses greenhouse gas emissions, global warming, sea level rise, and the ferocity of coastal storms associated with climate change. It explores the tension between these movements in nature and the policy of the State of Florida to fix property boundaries, which under common law would move landward as sea level rises. The property rights and title to land of littoral landowners are described and the effect of the Beach and Shore Preservation Act on them discussed. The article contrasts the Florida coastal policy regarding beach and shore protection with the policies and programs of federal, state, and local governments that use other approaches such as accommodating rolling easements, prohibiting shoreline armoring, requiring removal of buildings, purchasing development rights or the land itself, and imposing moratoria on rebuilding after storm events. These may be less expensive and more realistic approaches to long-term coastal erosion and avulsive events and the inevitability of sea level rise as the climate warms and worsens. The article concludes with a recommendation that the framework for federal, state, and local cooperation in coastal management be revisited and strengthened so that the critical resources and knowledge are brought to bear on this critical issue. It suggests that strengthening those ties, rather than radically restructuring the relationship between state and federal courts, is a more productive method of meeting the needs of a changing society.
This is the latest in a series of articles by Prof. Nolon addressing how local land use law can be used to manage climate change, including The Land Use Stabilization Wedge Strategy: Shifting Ground to Mitigate Climate Change; Land Use for Energy Conservation: A Local Strategy for Climate Change Mitigation; and Managing Climate Change through Biological Sequestration: Open Space Law Redux. The article also discusses Stop the Beach and our favorite Texas Open Beaches Act "rolling easement" case Severance v. Patterson, and offers some solutions toward an integrated federal-state-local framework for coastal management.
May 24, 2012 in Beaches, Caselaw, Climate, Coastal Regulation, Conservation Easements, Constitutional Law, Environmental Law, Environmentalism, Federal Government, History, Judicial Review, Local Government, Property Rights, Scholarship, State Government, Supreme Court, Sustainability, Takings, Texas, Water | Permalink | Comments (0) | TrackBack
May 21, 2012
Blocks Where No One Has Fun: Salon on Urban Entertainment Districts
Will Doig has an interesting article in Salon called Urban Entertainment Districts: Blocks Where no one has Fun. Subtitle: "Cities keep trying to create downtown cool with dull nightlife districts. But who wants to hang out at the mall?" The article starts with a criticism of Dallas' Victory Park, moves to Kansas City's Power & Light District, and generally paints a negative picture of big-project attempts to create "entertainement districts"--or "districts" of any kind, including "arts districts." It's a well-written article with a good general critique, so read the whole thing. Let me tease out one of the sub-themes here: the problem of comprehensive urban development projects.
What could be wrong with a district where nightclubs and galleries are encouraged to thrive? Nothing, necessarily; done right, a city can help foster these scenes with a gentle guiding hand. Constructing an entire milieu from whole cloth, however, is where cities get into trouble. “The problem with these created-overnight districts is that you’re trying to create a culture as opposed to letting one grow,” says Nathaniel Hood, a Minneapolis-based transportation planner. “You’re getting the culture that one developer or city council member thinks the city needs, as opposed to the ground-up culture that comes from multiple players.” . . .
“A district inherently becomes a single-use idea,” says [studio owner Patrick] Kennedy. “Everything [in the "arts district"] has to be ‘art.’ You end up with a bunch of performing arts spaces and when they’re not in use it becomes a vacuum.” This vacuum has made the district itself a museum of sorts, something impressive to observe but strangely inert. (The Chicago Tribune called the area “the dullest arts district money can buy.”) . . .
So it seems like there are two problems with the "let's-create-a-cool-urban-district" impulse: (1) the practical (and cultural) limitations of comprehensive development projects, and (2) the inherent tendency towards single-use separation that comes with large scale "districting" plans:
That’s a defeatist choice to have to make, but the monocultures created by urban districting make it almost inevitable. At last week’s 20th annual Congress for the New Urbanism, Hood spoke about the folly that is Kansas City’s Power & Light District, an $850 million entertainment district whose neon signage is as blinding as its eagerness to be hip. . . .
It’s not just that the developers are boring people — the economics of single-owner districts incentivize blandness. Chain stores and restaurants can afford to pay higher rent, so they get first dibs. To boost rents even higher, tenants are sometimes promised that no competition will be allowed nearby. “Starbucks will be willing to pay the higher rent if [the developer doesn't] let other cafes into the area,” says Hood. . . .
He contrasts these contrived districts with the more organic development of an entertainment scene at Boston's Kenmore Square: "it shows that these districts work better without all the bureaucratic attachment parenting."
Let's not forget that these grand schemes usually come from good intentions, which combine economic incentive with a genuine desire to create attractive places. But there are some limitations that inhibit these grand schemes. I think that the biggest challenge for the intermediate-term urban planning future will be to figure out how to make legal and incentivize the creation of public spaces through an incremental but still realizable process.
I'm going to Dallas for a bar lecture in a couple of weeks, so I'll try to check out Victory Park. Thanks to Jason Rowe for the pointer.
May 16, 2012
Pipelines, Eminent Domain, and Property Rights
Up until now the Keystone Pipeline issue has been cast mainly as a contest between an economic development imperative and environmental conservation. Legal commentators have analyzed it as an environmental issue. As most people can infer, though, the notion of building an "infrastructure" project from Canada to the Gulf of Mexico will require some land rights. Perhaps only in Texas can we see the underlying tension between two principles that are very often in direct conflict: the exploitation of oil and gas resources, and the property owner's rights to her land. The New York Times last week did a fascinating story on one Texas landowner's fight against the eminent domain authority of the Keystone Pipeline, An Old Texas Tale Retold: The Farmer versus the Oil Company.
Ms. Crawford is worried about the possible contamination of her creek. She pointed out that the Keystone 1, TransCanada’s first pipeline, had a dozen spills in its first year of operation.
“I called my farm insurance agent and asked what happens if there’s a spill, I can’t water my crops, and my corn dies,” she said. “He said my insurance won’t cover that. I’d have to sue TransCanada for damages.”
The Crawfords are the last holdouts in Lamar County. (It is unclear how many are left in Texas; the company says it has 99 percent of the rights of way secured.) TransCanada asserts that it has used eminent domain only as “an absolute last resort” in an estimated 19 out of 1,452 land tracts in Texas. Critics dispute this number. . . .
Asked if she would take TransCanada’s offer now — if it meant the full $21,000, with all of her conditions met — she did not hesitate. “No,” she said. “There’s a $20,000 check sitting in the courthouse waiting for us,” she said. “But if we touch it, game over. We lose the use of our land, and we admit what they’re doing is right.”
This is a longstanding issue, both historically and today, but it often gets overlooked when people conflate Texas stereotypes about both property rights and solicitude for oil and gas. Ilya Somin commented on the article at the Volokh Conspiracy, noting correctly that despite its pro-property rights reputation and cosmetic legislation, Texas law still empowers quite a bit of eminent domain for economic development purposes:
Such efforts are unlikely to succeed in Texas. As I described in this article, Texas is one of many states that have passed post-Kelo reform laws that pretend to constrain economic development takings without actually doing so. They might have a better chance in one of the other states through which the pipeline must pass.
The larger question that he poses is whether and how environmental concerns will play a part in future discussions about eminent domain and the never-ending debate over the essentially contested concepts of property rights and the common good. In the real world of land use, the alignment of stakeholders, interests, policy preferences, and legal interpretations isn't always as easy to predict as the cartoon versions might imply.
May 16, 2012 in Agriculture, Economic Development, Eminent Domain, Environmental Law, Environmentalism, History, Houston, Judicial Review, Oil & Gas, Property Rights, Scholarship, State Government, Takings, Texas | Permalink | Comments (1) | TrackBack
April 06, 2012
Mulvaney's Hectic Week in Takings
In the past week there have been two major state court takings decisions--both involving beachfront property--and a U.S. Supreme Court cert grant in a takings case from the Federal Circuit. Our erstwhile guest blogger Prof. Tim Mulvaney has a terrific analysis over on the Environmental Prof Blog: A Hectic Week on the Takings Front. From the post:
For Takings Clause enthusiasts, the past week has proven a busy one. Two state court decisions out of Texas and New Jersey, coupled with a grant of certiorari at the U.S. Supreme Court, threaten to constrain governmental decision-making at the complex intersection of land and water.
Tim's post discusses the Texas Supreme Court's final decision in Severance v. Patterson; the New Jersey case of Harvey Cedars v. Karan; and the SCOTUS cert grant in Arkansas Game & Fish Comm'n v. U.S. Exciting times in the takings world. Read Tim's whole post for a good analysis.
April 6, 2012 in Beaches, Caselaw, Coastal Regulation, Constitutional Law, Federal Government, Property Rights, State Government, Supreme Court, Takings, Texas, Water | Permalink | Comments (0) | TrackBack
November 09, 2011
Ballot Box Zoning -- A Response to Festa
OK, I'll bite. Matt has laid down the gauntlet with his criticism of the initiative process. This subject is of great importance to land use profs because, at least in many sunbelt states, a good deal of land use policy is made through direct democracy -- so-called "ballot box zoning." In this post, I want to respond to some of Matt's criticisms and offer a very tentative defense of ballot box zoning. For those who are interested, I have defended ballot box zoning at greater length (although I ultimately call for its abolition anyway) in this paper.
I must first concede to Matt that the initiative process has serious deficiencies. He mentions transparency and voter ignorance. The social science literature confirms that these are major problems. I would also add a few more: the initiative process is often captured by special interest groups, as money and organizational resources are often decisive in initiative contests; the initiative tends to favor the affluent and well educated, which is not surprising since the affluent and well educated are more likely to vote on initiatives; voters are easily confused by deceptive wording on initiatives, and initiative advocates often deliberately use deceptive terms to confuse voters; the initiative process reduces complex issues to a simplistic yes/no dichotomy in which hyperbolic sound bytes replace rational discourse. I suppose I could go on, but you get the point.
So what virtues could the initiative process possibly have? I want to focus specifically on the land use initiative, although some of my comments may be generalizable. Although it is often asserted that local politics are controlled by homeowners who seek to limit or manage growth, that is generally true only in smaller municipalities. Sunbelt states like Texas and California, however, have a disproportionate number of medium to large-size municipalities, dubbed "boomburbs" by sociologists Robert Lang and Jennifer LeFurgy. The larger size of these municipalities gives homeowners less political power. At the same time, sunbelt boomburbs have often pursued headlong development as a means of economic growth and to overcome fiscal constraints imposed by constitutional or political limitations on raising tax revenue. Lang and LeFurgy accordingly assert that these municipalities tend to be in thrall to the "growth machine," a matrix of developers and related cohorts who facilitate urban growth. As I further argue in my paper, the fact that many of these boomburbs use at-large voting structures rather than ward voting systems further enhances the power of developers and dilutes the ability of neighborhood groups to fight development.
Obviously, this system is less than ideal for homeowners. And let's face it: while we might hate those NIMBYs, they have some pretty good reasons for opposing new growth. For years it has been national policy to induce Americans to purchase property through a combination of incentives, including low-interest mortgages and municipal zoning ordinances that provide some assurances to homeowners that their property values, and hence their ability to pay off their mortgages, will be protected against unpredictable declines. New growth and the externalities that accompany it are very likely to diminish property values, and hence prejudice the ability of homeowners to finance what is likely to be by far their most significant asset. Existing homeowners are in effect subsidizing new growth through diminished property values, and although city officials claim that everyone benefits from new growth, it is often a concentrated group of homeowners alone who must bear a disproportionate degree of the cost. As I questioned in a previous post, it can even be argued that homeowners have a regulatory takings claim -- but courts have never recognized such a cause of action.
As envisioned by its Progressive-era architects, the initiative is supposed to correct the defects in the ordinary legislative process, particularly the dominance of special interests. And that is exactly what ballot-box zoning appears to do in the sunbelt states -- the very states where boomburbs, at-large voting and the growth machine dominate the political landscape are also the states where ballot-box zoning is most robust. Ballot box zoning has proven to be a powerful weapon with which homeowners can fight back against the growth machine, because prevailing on a local initiative requires only a one-time infusion of cash and a constituency that is easily organized and highly motivated -- ie, a group of neighboring homeowners who are all extremely ticked off about land use changes around their neighborhood. This can counteract the repeat player and other advantages that the developer has in the legislative process. Granted, the initiative process itself invites special interest abuses and all sorts of other problems, but it seems no less messy or dysfunctional than the system of government it is designed to counterbalance.
November 08, 2011
State Constitutional Amendments on Texas Ballot
So I sat down to write a post noting some of the land-use related issues that are before Texas voters today as proposed amendments to the state constitution, and then I went off on a rant about why I don't like voting on state constitutional amendments--generally, because they're already too bloated with non-fundamental policy; and specifically, because of the informational problems that make it a terrible democratic mechanism. But anyway, there are ten proposed amendments to the Texas constitution today, so let's see if any involve land use . . .
None of them seem to be that radical this year, and hence haven't gotten any publicity to speak of (unlike last time around (2009), when eminent domain reform and constitutionalizing the Texas Open Beach Act were on the ballot). But as always, a few of them will affect land use--politically, structurally, and fiscally. The 2011 Analysis of Proposed Constitutional Amendments by the Texas Legislative Council is probably the best source out there. So let's take a look at a few. I'll paraphase the ballot language, which in turn only paraphrases the actual text of the amendments that will be come law!
1. Authorizing the legislature to provide a property tax exemption on the residential homestead of a surviving spouse of a 100% disabled veteran;
2. Authorizing the Texas Water Board to issue general obligation bonds up to $6 billion for water projects;
4. Authorize the legislature to allow a county to incur debt "to finance the development or redevelopment of an unproductive, underdeveloped, or blighted area within the county," and to pay for it with increased tax revenues from that area.
Now this one really strikes me as a great example of what I was talking about in my last post. What this is about is tax-increment financing, e.g. TIFs. On the one hand, if you read the background of this proposal, it's not radical; it's simply giving county governments the same power that municipal governments already have. On the other hand, the uses and abuses of TIFs are a big deal, and if it took this land use professor a few minutes of closely reading the ballot language to figure out that that's what were voting on, I can't have much confidence that this vote is in any way informed.
5. Authorize the legislature to allow city and county governments to enter contracts with each other (for, e.g., consolidation or regional projects) without the imposition of a tax or a sinking fund).
6. Allow the General Land Office to distribute revenue from certain dedicated lands for educational purposes.
7. Allow El Paso County to create conservation and reclamation districts to develop parklands.
8. Require the legislature to tax open space land devoted to water stewardship based on its productive capacity rather than its (usually higher) market value.
So there you have it, out of ten proposed state constitutional amendments put before the people of Texas today by the biennial session of the legislature, seven of them by my count have at least something to do with land use, even though they're more about structure and finance than use regulations per se. But of course, some of my students accuse me of "turning everything into a land use issue." But we all know it's true, right?
Anyway, I've got to run out now and go vote!
UPDATE 11/9/11: Seven amendments passed; the three that failed were #4 (county TIFs); #7 (El Paso parks); and #8 (tax assessment for water stewardship). The Secretary of State has the results. But hey, over 5% of the registered voters turned out!
Election Day 2011 and State Constitutions
Even though the media is obsessed with the 2012 elections, it is the first Tuesday after the first Monday in November, and as land use folks well know, a lot of important law is made at the state and local level during off-year elections. Today in Texas there are ten state constitutional amendments on the ballot for voter approval, generated by the 2011 legislative session (Texas' legislature still meets only bienially--one of four remaining states to do so, and the only major state).
I'm generally not a fan of constant new constitutional amendments, for two reasons, one structural and one democratic. First, many state constitutions--like Texas'--are already bloated. I printed it out once--all 80,806 words of it (sorry environmental profs)--and I make the point in class by comparing the massive document to a pocket U.S. Constitution. In general, I don't think that most mundane policy issues should be entrenched in fundamental law. On the other hand, this structural critique can be countered somewhat by the argument that while the federal constitution enables the Congress to do a certain range of things, state legislatures already have plenary power, so state constitutions largely exist to limit the legislature--and then they need to be amended often to adjust those limits. But still . . . 80,806 words?
My second beef with the practice of placing a slew of state constitutional amendments is has more to do with the theory of state and local elections, and I don't like it for the same reason I'm skeptical of the overuse of initiative and referendum. What could be more democratic than letting the people vote, you ask? The problem is informational. I usually ask my upper-level state & local government students--a sample of pretty well educated and informed voters--which way they voted on certain amendments or referenda from prior years. Almost universally I get two responses; either (a) no recollection whatsoever; or, occasionally, (b) they voted with their gut based on a cursory reading of the ballot text in the voting booth. And if they remember which way they voted, it was usually "yes" because the text sounded like "good things," or "no" because the text sounded like "spending more money."
There in turn at least two reasons why even smart voters end up voting with their gut on these important measures. First, the ballot language is usually vague and fuzzy, and often is quite different from the actual text of the law that will go on the books. I don't think this is usually done to confuse the voters, I think it's the opposite intent--but regardless, the ballot language in my experience is usually so general that it fails to communicate what the proposal is really about. Another major reason, of course, is that with a few exceptions, these items don't get very much media exposure. So most Texans probably know a lot more about, e.g., the latest in sexual harrassment allegations against national candidates, than they do about the 10 items they are probably going to add to the state constitution today. The info is out there, but it's up to the individual voter to burn some calories and go find and read information such as the analysis by the Texas Legislative Council.
Now in class, we talk about whatever amendments and referenda are on the ballot, and it's a lot of fun. Students do class presentations, we have guest speakers, and so on. And it often turns out that a lot of these state constitutional amendments (and local referenda) are substantively about land use--from eminent domain to land sales, zoning, conservation, and more (which was going to be the original point of this post, before I got off on my rant). So I do my part to create a group of 40 or 50 educated voters.
But if that's what it takes, is democracy really served by putting all this stuff on the ballot, and in such a vague manner? I find more and more that people in general really do care about land use in their communities and their region. A lot. Yet in the cases where they actually have a say in the matter, it gets translated so poorly that most votes actually cast are probably not informed ones. So it's the people behind the scenes in and around legislative bodies that end up making all the rules.
October 21, 2011
Wilson on Navigating the Land Use Maze
Perusing the latest issue of Tierra Grande, the magazine of the Texas A&M Real Estate Center, I came across this short article by Reid C. Wilson called All the Right Moves: Navigating the Land Use Maze. The "takeaway":
Land use regulations can be daunting. Landowners and developers must understand why land use regulation exists; appreciate the tough position of city staff members; do their own homework on specific regulations; and reserve adequate time for the process. Wilson is one of the leading real estate attorneys in Texas. This brief article is a good introduction to the process of navigating land use regulation, and might be a good read for students and professionals who want to start learning about it. Matt Festa
Land use regulations can be daunting. Landowners and developers must understand why land use regulation exists; appreciate the tough position of city staff members; do their own homework on specific regulations; and reserve adequate time for the process.
Wilson is one of the leading real estate attorneys in Texas. This brief article is a good introduction to the process of navigating land use regulation, and might be a good read for students and professionals who want to start learning about it.
September 01, 2011
New Eminent Domain Rules take effect in Texas
Since Justice Stevens told the states in Kelo v. City of New London (2005) that they were free to provide additional eminent domain restrictions through state law, policy groups and lawmakers in Texas have been trying to take him up. There were a few small measures to come through the past three (biennial) legislative sessions, but nothing too meaty. Governor Rick Perry even vetoed an eminent domain reform bill in 2007. But this spring after an "emergency" session, Gov. Perry signed Senate Bill 18--"An act relating to the use of eminent domain authority." And today, eminent domain reform became law in Texas.
September 1, 2001 is the day that dozens of laws passed in the spring 2011 legislative session take effect. The eminent domain reform--which is now codified in the Property Code, the Local Government Code, and various other statutes--basically makes it harder for entities to exercise eminent domain, and gives landowners more procedural protections:
- It requires that eminent domain can only be exercised for "public use," and replaces all statutory references (apparently there were many!) to "public purpose." "Public use" is still undefined, so while the legislature's intent is to restrict economic development and other types of takings, this one will probably end up in the courts.
- It adds public hearing and notice requirements and voting mandates to any use of eminent domain authority; it also adds certain requirements for bona fide written offers to purchase.
- It requires all public or private entities who think they have eminent domain power to submit a letter to the state comptroller for review by the legislature.
- It gives landowners additional statutory rights to repurchase property not actually used for the "public use."
We'll have to see if this law has substantive effects on the use of eminent domain, but at minimum it seems to provide some procedural protections. Yesterday at my daughter's soccer practice--i.e., the last day before the new law took effect--one of the other parents told me that his firm filed hundreds of lawsuits that day, related to ongoing projects. So at least there will be a lot of work for the lawyers!
August 18, 2011
South Texas job announcement: Property
Here's some exciting news, for me anyway. South Texas College of Law is looking to hire a property scholar:
South Texas College of Law invites applications from both experienced and entry-level faculty for one or more full-time, tenure-track positions beginning in the 2012 - 2013 academic year. While all candidates will be considered, we particularly seek candidates interested in teaching the required property courses, and commercial law (including courses covering the Uniform Commercial Code). Other areas of interest include real estate development and finance, and international law. We seek candidates with outstanding academic records who are committed to both excellence in teaching and sustained scholarly achievement. Members of minority groups and others whose backgrounds will contribute to the diversity of the faculty are especially encouraged to apply.
South Texas College of Law provides a diverse body of students with the opportunity to obtain an exceptional legal education, preparing graduates to serve their community and the profession with distinction. The school, located in downtown Houston, was founded in 1923 and is the oldest law school in the city. South Texas is a private, nonprofit, independent law school, fully accredited by the American Bar Association and a member of the Association of American Law Schools, with 55 full-time and 40 adjunct professors serving a student body of 1,300 full and part-time students. South Texas is home to the most decorated advocacy program in the U.S. and the nationally recognized Frank Evans Center for Conflict Resolution.
Please send letters of interest and resumes to Professor Kevin Yamamoto, Chair, Faculty Appointments Committee, South Texas College of Law, 1303 San Jacinto Street, Houston TX 77002; Tel: (713) 646-2945; Email: email@example.com
Via Fran Ortiz, a property colleague on the hiring committee. You can contact Kevin or Fran about the position, and of course I'd be more than happy to talk with anyone about the great opportunities for teaching and scholarship at South Texas College of Law, or about living in the diverse and dynamic city of Houston.
August 04, 2011
Texas Supreme Court abates Severance v. Patterson
I was on the road for about a month with very little internet access (more on that to come). Fortunately, my land use students keep me up to date on things. Late last week I learned from my student Sonny Eckhart that the Texas Supreme Court issued its latest, and perhaps last, ruling in the Severance v. Patterson case that we've been following here on the blog, "abating" the case until the Fifth Circuit rules on the issue of mootness. I asked him to write it up for our readers, and here's what he has to say:
For those who have been following the Open Beach Act Litigation in Severance v. Patterson: warning, you might be a little disappointed. The Severance case is a challenge to the Texas Open Beaches Act, where Galveston Island homeowner Carol Severance brought suit against the Texas Attorney General and other state officials over the central issue of whether private beachfront properties on Galveston Island have redress when a public beach access easement is “rolled” onto private property when the vegetation line migrates landward. Needless to say, this has caused a stir in the courts and among legal scholars. During this process, the Land Use Prof Blog has provided several discussions and updates on the long-running dispute. See here, here, here, here, here, and here.
On November 5, 2010, the Texas Supreme Court issued their opinion concluding public easements do not always “roll” with the beachfront. Most notably, the court distinguished between a change or avulsion caused by a natural event, such as a hurricane, and a “gradual change.”It would appear that Carol Severance had won a substantial victory. To combat this, the State filed a motion for rehearing—a motion that held the support of several amicus groups. The court granted rehearing in Severance and heard arguments four months ago, in April.
The facts of the case took an unexpected turn a few weeks ago when Carol Severance sold her property in Galveston, and thus may have rendered the legal action moot. The State acted quickly and filed a motion to vacate the November 2010 opinion before sending this matter back to the Fifth Circuit. Both parties submitted briefs on the issue of mootness. See State’s brief on mootness; Severance’s brief on mootness. Last Friday, July 29, the court issued an order that abated the case until the Fifth Circuit first reviewed the issue of mootness. The order in this case abates the Texas Supreme Court appeal until the jurisdictional issues can be decided.
Is This The End?
Find out after the jump!
Unfortunately, the situation looks rather bleak at this point for Severance’s claims; issues of standing are often resolved unfavorably to the petitioning party in litigation of this nature. Interestingly enough, the Texas Supreme Court’s decision on Friday makes no mention of their opinion on the mootness issue. As the Texas Supreme Court Blog points out, this was a wise decision as it could have put the Fifth Circuit in a rather precarious position should the Fifth Circuit disagree with the Texas Supreme Court on the mootness issue. Thus, the decision was correctly left to the federal court.
How will the Fifth Circuit rule? In the April of 2009 Fifth Circuit opinion, the issue of Carol Severance’s standing to bring suit was an issue resolved by the court in favor of Severance; however, those issues were of ripeness and an argument that Severance had no distinct injury because the harm had occurred prior to her purchase of the property. The current standing issues are much more unique and potentially detrimental to the claims in Severance. In fact, looking at Severance’s arguments in her brief to the Texas Supreme Court on mootness, the plaintiffs have a rather large uphill battle ahead of them:
“[T]he certified questions should not be held moot by this Court because the case has not been declared moot by the Fifth Circuit and the Officials have failed to show there is no concrete conflict between the parties. Severance continues to suffer actual or threatened harm from the rolling easement policy.”
This is an issue that the Texas Supreme Court ruled on directly by abating the case. Further, this was perhaps the best argument Severance had to make on the issue. Severance also made arguments regarding other exceptions to the mootness doctrine such as the “Collateral Consequences” Doctrine from the state’s past refusal to let her rebuild and rent her homes, as well as the argument that Severance’s injuries are “capable of repetition yet evading review.” She will have to put together a much more compelling reason than that cited in her brief to persuade the Fifth Circuit I suspect. Perhaps, the State’s brief says it best:
“If this is the best Severance can offer—and surely it is, since she has known about the closing for months—then this case should be swiftly returned to the Fifth Circuit for dismissal as moot.”
It is no secret that financial expenses from this litigation were a cause of Severance’s sale of the properties, as described in the State’s brief; however, a very contentious debate in land use law may have been put to rest last Friday. This truly was a rare debate in constitutional litigation and land use policy, one which similar facts may not resurface for several years. If Severance’s claims are moot, the question now becomes: whose claims are not moot?
Thanks again to Sonny Eckhart for providing his timely analysis of this latest development in an important case.
August 4, 2011 in Beaches, Caselaw, Coastal Regulation, Constitutional Law, Judicial Review, Property, Property Rights, Property Theory, State Government, Takings, Texas | Permalink | Comments (1) | TrackBack
July 06, 2011
Mulvaney guest-blog on Severance's latest development: Mootness?
[This guest post is from Prof. Timothy Mulvaney (Texas Wesleyan), whom we've featured here before for his scholarship and commentary on judicial takings and on Severance v. Patterson--on which he hosted an excellent program in March. Here are his thoughts on the latest development in the case. Thanks!--Matt Festa]
The Land Use Prof Blog previously has included several entries on the long-running dispute regarding the Texas Open Beaches Act in the case of Severance v. Patterson (see here, here, here, here, and here). The case took yet another surprising turn last week when the plaintiff sold the last remaining property at issue in the suit.
At the filing of the complaint in 2006, the lawsuit involved three residential gulf-front properties owned by plaintiff Carol Severance. Following 2005’s Hurricane Rita, these properties ended up seaward of the vegetation line; after Rita, that is, Ms. Severance’s properties were composed almost entirely of dry sand beach. Ms. Severance challenged the State’s policy of removing homes that, due to erosion or coastal storms, now rest within the public’s “rolling” beach access easement.
In a 6-2 decision in November of 2010 on three certified questions from the Fifth Circuit, the Texas Supreme Court largely sided with Ms. Severance. The Court distinguished between (1) an easement destroyed by an avulsive event—which the majority held does not “roll” upland, such that the state must prove that a public easement across the “new” strip of beach adjacent to the post-Rita mean high water line has been established by custom, dedication, or prescription in each individual case, including Ms. Severance’s—and (2) an easement destroyed by imperceptible erosion—which the majority held does “roll” upland.
Yet in March of this year, the Court, at the request of the State and nearly two dozen amici, took the rather extraordinary step of deciding to re-hear the case. The Court ultimately conducted a second round of oral argument in April. Yet just last week, with the re-hearing decision pending, Ms. Severance sold the third and final property subject to the litigation (she had sold the other two properties several years earlier).
Upon receiving notice that Ms. Severance sold this last remaining property (notably, through a FEMA-funded buy-back program administered by the City of Galveston on the final day that she could avail herself of that option), the State immediately sent a letter to the Court suggesting that (1) the case is moot, and (2) the Court “should follow the established practice of vacating the latest opinion [the November 2010 opinion] before returning this matter to the Fifth Circuit.” Otherwise, said the State, the Court would be authorizing “a prevailing party to obtain through unilateral action what it was unable to accomplish in opposing a rehearing motion or a petition for review. … [the Court should not] permit an opinion to stand, by default, that was under active reconsideration.”
Counsel for Ms. Severance, David Breemer of the Pacific Legal Foundation, responded with a letter stating that the case is not moot because: (1) mootness cannot permit the state “to avoid a controversy over its property restrictions” by using those same controversial restrictions to force Ms. Severance to sell; (2) Ms. Severance owns another property in Galveston that was not included in her 2006 complaint but that is now subject to the State’s rolling easement policy; and (3) “there are ongoing personal and legal consequences to Severance” for which the Court can fashion a remedy.
In his letter, Mr. Breemer requested that the Court issue an expedited briefing schedule on the mootness issue. The Court obliged. The State filed its brief today, and Ms. Severance’s response is due next Tuesday. Stay tuned to the Land Use Prof Blog for updated information on Severance v. Patterson.
June 20, 2011
Bronin on Solar Rights for Texas Property Owners
Sara C. Bronin (Connecticut) has posted Solar Rights for Texas Property Owners, Texas Law Review See Also, Vol. 89, p. 79, 2011. The abstract:
In response to Jamie France's note, "A Proposed Solar Access Law for the State of Texas," Professor Bronin urges future commentators to focus on three additional areas of inquiry related to proposed solar rights regimes. Bronin argues that such proposals would be strengthened by discussion of potential legal challenges to the proposals, related political issues, and renewable energy microgrids.
Ms. France’s proposal for the State of Texas includes the elimination of preexisting private property restrictions that negatively affect solar access. Bronin argues that this proposal would be strengthened by a discussion of potential challenges under federal and state takings clauses. Additionally, Ms. France's suggestion that zoning ordinances protect homeowners' solar access would benefit from a discussion of challenges that might be raised by home rule cities in Texas. Furthermore, to provide a full perspective, a discussion of possible alternative rules for Houston, which lacks a zoning ordinance, might add to Ms. France's proposal, according to Bronin.
Bronin also emphasizes that proposals for solar rights regimes, such as that of Ms. France, often affect various interest groups, and commentators should address the political issues that this creates. Specifically, in discussing Ms. France's proposal for the State of Texas, Bronin identifies the lack of political support for small-scale renewable energy installations as opposed to large-scale projects, Texas's current budget shortfall, and powerful interests groups that are affected by the proposal.
Finally, Bronin encourages other commentators to consider advocating for renewable energy microgrids. Bronin has described these as "small-scale, low-voltage distributed generation between neighbors for energy derived from sources such as solar collectors, wind power systems, microturbines, geothermal wells, and fuel cells, which have minimal negative impact on the environment." Bronin believes that renewable energy microgrids "should be a key part of solar access regimes in any state."
May 20, 2011
Today I will be proud to participate in Commencement at South Texas College of Law. We're thrilled to have Houston Mayor Annise Parker as our keynote speaker. But shortly before Mayor Parker begins speaking, she will order hundreds of buildings destroyed all across the city.
No, it's not the May 21 Rapture. It's Demolition Day!
With the donated help of the Houston Contractors Association, 99 abandoned, dangerous buildings will be bulldozed as part of Mayor Annise Parker's 2nd annual Demo Day. Some of these structures are in your neighborhood. Click here to see addresses for the 99 buildings http://www.houstontx.gov/citizensnet/hcasites.pdf.
Mayor Parker and District D Houston City Council Member Wanda Adams will help kick off Demo Day Saturday, May 21, 2011 9:00 a.m.
Initiated in 2010, Demo Day is a one-day concentrated effort to rid neighborhoods of abandoned and dangerous buildings that often serve as havens for drugs, prostitution and other crimes. This year's effort will extend beyond one day to include the demolition of approximately 300 more derelict structures over the summer months. This second batch of demolitions will be carried out by City contractors once the buildings have undergone asbestos abatement. Click here to see the complete list of about 400 structures http://www.houstontx.gov/citizensnet/demoinitiative.pdf.
There has been a lot of attention given to the problem of abandoned and derelict properties from several angles recently, from the foreclosure crisis, to dying cities & neighborhoods, to crime & disorder, to blight and eminent domain. "Demolition Day" sounds like a cool movie title, but more importantly it looks like Mayor Parker has an innovative approach to the problem.
April 28, 2011
The Beach Rolls to Fort Worth: Severance Panel at Texas Wesleyan
It's Severance-palooza today on the Land Use Prof Blog, with Hannah Wiseman's great summary of the oral arguments at the recent rehearing of the Open Beaches Act case in the Texas Supreme Court, and the contribution in my previous post from Timothy Mulvaney. Scroll down to the next two posts for that background and analysis.
But wait, there's more! Prof. Mulvaney, who has done a lot of research on takings, including a piece on last year's Stop the Beach Renourishment, has been following Severance v. Patterson for a long time. Last month he hosted a lively panel discussion on the case at Texas Wesleyan School of Law (ably sponsored by their Federalist Society and Environmental Law Society). The participants were David Breemer, the attorney for plaintiff Carol Severance; Ellis Pickett, former chair of the Texas Upper Coast Chapter of the Surfrider Foundation; and yours truly.
Prof. Mulvaney spoke first and gave a helpful introduction to the case and the background of the legal issues. Mr. Breemer, a principal with the Pacific Legal Foundation, gave his client's view of the case and argued vigorously that the state's interpretation of beach-access easement law is an unconstitutional interference with his client's property rights.
I spoke a little bit about the Texas Supreme Court's initial opinion from November 2010, and also about the issue I focused on in my amicus curiae brief, which was (my view) that an easement must be proven up for each property through common law doctrines of dedication, prescription, or custom before we can even get to the question of whether it rolls.
Mr. Pickett, whose Surfrider Foundation also filed an amicus brief (with which a former student of mine assisted in drafting), spoke passionately about the environmental costs of restricting the public interest in the beach. He had lots of compelling pictures and even passed around the room a giant piece of twisted metal to make his point. This was followed by a great Q&A session with the well-informed crowd.
What made it even more interesting is that when Prof. Mulvaney organized the panel, it was conceived as an after-action discussion of the November opinion. It wasn't until just a couple of weeks beforehand that we all learned that the court had taken the unusual step of granting the rehearing. By the way, you can read all of the briefs, including the amici, at the link from this post.
It was a great event, and the other three participants have offered to give me a surfing lesson. The participants have all agreed to contribute to an upcoming issue of the Texas Wesleyan Law Review.
Here's the video! [requires Real Player]. This video, plus Part 2, are also available at the Texas Weslayan web article on the event.
Mulvaney on the Severance Rehearing and Location vs. Purpose
Thanks to Hannah Wiseman for the great post summarizing the recent rehearing in Severance v. Patterson. I meant to get to it last week, but I wouldn't have done half as good a job. But I also encourage you to do as she suggests and listen to the oral argument yourself.
But she's not the only junior land use prof with Texas ties who has some great thoughts about the rehearing. Professor Timothy Mulvaney at Texas Wesleyan also watched the oral argument, and composed some observations on the case, particularly the interesting question of the physical location vs. the purpose of these easements.
[T]he Texas Supreme Court conducted a re-hearing in the “rolling” beach access easement case of Severance v. Patterson. In its original 6-2 decision, the Court distinguished between (1) an easement destroyed by an avulsive event—which the majority originally held in November does not “roll” upland—and (2) an easement destroyed by imperceptible erosion—which the majority originally held does “roll” upland. But the Court today seemed focused not on the avulsion/erosion divide but rather on this question:
Is the geographic location of an easement physically static, such that the easement holder must re-establish that easement each time a natural event (storm, sinkhole, etc.) makes the geographic location of the original easement impassable? Or, is it the purpose of that easement that is static, whereby no re-establishment would be necessary?
The answer may depend on a multitude of factors (e.g., the method of creation, the use of the easement, the character of the property at stake, etc.). There do seem to be several instances where only the easement’s purpose, not its physical location, should remain static. At oral argument, the State pointed to the natural alteration of a river’s course, which does not require a re-establishment of the navigable servitude. Another analogy might be that of oil and gas leases, which convey an easement by implication that is not limited to a fixed location but rather allows use of the surface as reasonably necessary to fulfill the lease’s purpose. I would be interested to hear other analogies or perspectives off-blog (firstname.lastname@example.org), or even on-blog if you are so inclined. Thank you for your time.
Feel free to share your thoughts with Prof. Mulvaney or even better, leave a comment here!
April 04, 2011
The Final Four and Land Use in the Unzoned City
As many of you might be aware, the NCAA Men's Basketball Final Four has been this weekend in Houston, where I live and teach. As I write this, the championship game is set to tip off in about an hour in Reliant Stadium, about a mile from my home. So of course you must be thinking "how is Festa going to turn this into a land use issue?"
Already done, with my students' help. On the first day of the semester, to make the point that land use issues intersect with almost everything that goes on in our communities, I put up the home page of the Houston Chronicle and challenged them to explain the land use issues in a given story. The lead story was something about the then-upcoming Final Four. So here's some of what we came up with on the fly:
Land assembly--where did they get the land to build the stadium and the parking? It's next to the old Astrodome (you can see a corner of it in the picture), so I don't believe eminent domain was needed this time around, but you know that's always a big issue with new sports stadiums.
Use--the Reliant/Astrodome complex was just used up until about two weeks ago for one of the nation's largest Livestock Show & Rodeo events with accompanying carnival. It's impressive that they could retrofit for the Final Four so quickly.
Transportation--can people get there? Do the roads need to be widened, etc.? If so, who pays, and are there legal changes needed? Houston has a seven-year old light rail that goes from downtown through the Texas Medical Center to the stadium, and it's been quite busy the past weekend. Also, there've been lots of limos, helicopters, and blimps around town the last few days--where do they go?
Local government--the stadium is goverened not by the City of Houston, but by an independent quasi-public County Sports Authority. Plus the transportation is governed by a separate Metro agency. However a lot of coordination is necessary for big events like the Final Four.
Facilities--lots of people coming in from all over the country; where do they stay, etc. For example, I took a ULI-sponsored construction site tour about a year ago of the just-opened Embassy Suites downtown. The city's goal was to get a hotel opened in time for the Final Four, so there was a fairly complicated tax incentive scheme put in place that involved changing the law to provide an occupancy-tax break for new hotels sited in a particular space (and they say we don't have zoning based on use). The incentivized siting was between the light rail and the new Discovery Green park--where a lot of free concerts have been given as part of the festivities--and the downtown convention center, where the "Bracketown" official hoopla program was held. All of this is just a few blocks from where I teach at South Texas College of Law. Discovery Green is itself also a recently-built and critically acclaimed new urban park and public space. Finally, all of the planning and coordination that involves a city's hosting a big event requires lots of logistics, regulatory changes, and many many permit approvals, for things ranging from temporary buildings to new signs.
So my students and I think there are a lot of land use issues involved with having the Final Four in town, and it goes to show that even in the Unzoned City, there are many ways that land use gets regulated and controlled. It's been fun having all the activity in town, and . . . Go Butler!
UPDATE: It wasn't to be for the underdogs, so congrats to Connecticut. The photo above was taken by Natalie Festa at almost the exact time that the national championship game tipped off. "The Road Ends . . ." = land use metaphor? Tuesday is the women's championship--don't tell my fellow Texans that I'll be pulling for Notre Dame vs. A&M.
April 4, 2011 in Development, Downtown, First Amendment, Green Building, History, Houston, Humorous, Local Government, Planning, Politics, Property, Property Rights, Scholarship, Signs, Sun Belt, Teaching, Texas, Transportation, Urbanism | Permalink | Comments (0) | TrackBack