PropertyProf Blog

New York Court Rejects Eminent Domain for Columbia Project

An intermediate appellate court in New York has rejected the use of eminent domain for a project associated with Columbia University.  The New York Times has a story on the case, and Ilya Somin comments at the VC.  There seems to be some conflict with the NY Court of Appeals' recent decision in the Atlantic Yards case.  Particularly because the intermediate appellate court's decision was 3-2, this case is quite likely to go up to the Court of Appeals.

Ben Barros

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New York City Bans Storefront Gates

Just in time for those of you looking for an exam question on regulatory takings, comes this New York Times story on the New York City Council's regulation of storefront gates.  But the ban on gates that completely block the view of the store until 2026.

A couple of  key quotes from store owners:

“If the government pays, then O.K.,” said Mr. Lee, the owner of the shop, who was not surprised to learn that the government would not, after all, be covering the cost of a new gate. “They make law, law, law, and people’s life is more difficult.”

"If the government pays, then O.K."  That may be the title of my next article.

And this, about the long period to amortize the cost of the current gates:

[Frank Caputo] has had the second gate — a $4,000 model with an electric motor that allows him to turn a key or press a button to raise or lower it — for about two years, and he figured that by 2026, when the ban fully kicks in, he would need to replace it, anyway. “If they would have told me I had six months to replace it, I would have been upset,” Mr. Caputo said.

Alfred Brophy

Of Hotdog Stands and Beach Parties -- Oral Argument in Stop the Beach

The Supreme Court heard oral argument this morning in Stop the Beach Renourishment v. Florida DEP.  If you are new to the case, this post summarizes what it at stake.  My overall view of the case hasn't changed much after hearing oral argument.  I will update this post with notes from oral argument throughout the afternoon.  For now, here are some quick thoughts:

(1)  Justice Stevens was not on the bench.  Informed comment around the Court seemed to be that he has recused himself because he owns Florida beachfront property.  This is a potentially big deal because (a) Justice Stevens has been the most vocal advocate of the government position in the Supreme Court's recent regulatory takings jurisprudence and (b) because it increases the chances of a 4-4 decision.

(2) I'm really not sure how this case is going to come out.  There was a lot of support for the general idea of judicial takings on the bench, and Florida's counsel conceded that the right case could present a judicial taking.  The doubts are about whether there was a judicial taking in this case.  A number of justices who the petitioner need to win in this case -- the Chief Justice, Justice Scalia, and Justice Kennedy, all asked some skeptical questions.  Not that skeptical questions mean that much in this context.

More, including an explanation of the title of this post, soon.

A BIT LATER . . .

Okay, the transcript of oral argument is now available on the Supreme Court's website.  So I won't bother doing a blow-by-blow of the argument.  The title of the post comes from the hypotheticals that the members of the Court were playing around with.  The hot dog stand stuff starts pretty early with a question from Justice Sotomayor. 

Having thought about it a bit further, here are my thoughts on how the case comes out. First, the usual caveat that predicting case outcome based on oral argument questions is a fool’s game.  So call me a fool – here’s my guess.  I think that the Chief Justice and Justices Scalia, Alito, and Thomas are likely to be sympathetic to the Petitioner’s case.  (As usual, Justice Thomas didn’t ask any questions, so this is just a guess based on his general pro-property owner tilt in takings cases).  This seems to me to be a best-case for the Petitioner, and even these four votes might not be solid.  Justice Scalia, in particular, asked some questions that seemed to suggest that he thought that there might be some basis in Florida caselaw for the Florida Supreme Court’s decision.  Justice Scalia also wasn’t as aggressive in pressing Respondent’s counsel as I would have expected. 

That’s only four votes for the Petitioner, and the Petitioner needs five to win.  Justice Kennedy would be the most likely fifth vote, but he asked a number of questions that suggested that he is skeptical of Petitioner’s claims in this particular case.  He commented at one point that one Florida case that Petitioner had cited didn’t help Petitioner’s case.  He also suggested that this was a close case based on Florida law – if this is his view, then it is hard seeing him finding that this was a judicial taking.  Finally, Justice Kennedy asked a fairly skeptical question about what the standard would be for judicial takings.  This gist of the question was whether the standard would be based on a pile of adjectives like “sudden” and “unexpected” in describing a change in state property law.

Justice Breyer was fairly aggressive in trying to help Respondents’ counsel out during the argument.  As expected, Justice Ginsburg also appeared to be sympathetic to the government.  Justice Sotomayor asked some good, interesting questions, but these questions didn’t suggest to me that she was leaning either way.  Still, if the Petitioners appear to be having a hard time with Justice Kennedy, it seems likely that they will have difficulty getting Justice Sotomayor.

All of this said, there seemed to be some widespread concern among the members of the Court about judicial overreaching, and there didn’t seem to be a lot of hostility to the general idea of judicial takings.  Justice Breyer raised the hypothetical of a state Supreme Court suddenly holding that the state could put a power plant on someone’s private property without compensation, and phrased the question in a way that made it seem that he thought that this kind of judicial action would be an obvious taking.  The Chief Justice presented a hypothetical in which a state legislature passes a law, the state Supreme Court holds that it is a taking, a person runs for election to the state Supreme Court on a platform opposing the takings holding, is elected, and becomes part of a majority that changes the law to eliminate the takings problem.  This was very interesting hypothetical on a number of levels, but at the least it suggested that there was a set of facts that the Chief Justice thought would constitute a judicial taking.

So one possible outcome is an opinion of the Court that supports the general idea of judicial takings, but finds that there wasn’t one in this case.  At a panel held at Georgetown Law after the oral argument, Richard Lazarus made an interesting observation that Justice Stevens’ absence could be very important here.  If the Petitioners lose, and the Chief Justice is in the minority, then the opinion assignment would typically go to Justice Stevens.  With Justice Stevens recused, the senior justice in the majority may be Justice Kennedy, or even Justice Scalia.  Presuming that the senior justice keeps the opinion, then either Justice Kennedy or Justice Scalia might be expected to write an opinion more favorable to the general idea of judicial takings than Justice Stevens would.

Given the general lack of hostility on the Court to the idea of judicial takings, I’d be surprised to see an opinion that closed off the possibility of judicial takings entirely.  The more likely outcome would be an opinion that holds that this case didn’t present a judicial taking, and leaving the question of whether another case could constitute a judicial taking open.  And, of course, the possibility still remains that the Petitioners will get their fifth vote, and the Court will find a judicial taking in this case.

Ben Barros

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Press Stories on Stop the Beach

Yesterday's Washington Post had a great story on the Stop the Beach Renourishiment case by Robert Barnes.  The case was also discussed by Ashby Jones at the WSJ Law Blog.  Both made my Dean very happy.

Ben Barros

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NY Court of Appeals Decision in Atlantic Yards Case

The New York Court of Appeals has issued its opinion in the Atlantic Yards case.  Unsurprisingly, the court allowed the use of eminent domain to transfer private property to a private developer.  Ilya Somin comments at the VC, and the NY Times has a story on the case.

Ben Barros

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Post-Argument Panel on Stop the Beach

From Peter Byrne (Georgetown):

When: Wednesday, December 2nd, 12:15 PM

Where: Hart Auditorium, Georgetown University Law Center
              600 New Jersey Ave., NW, Washington, DC

Immediately after oral argument in the Supreme Court, hear advocates discuss Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, which presents the question whether a judicial change in the common law can “take” property from landowners in violation of the federal Takings Clause. The case also raises questions about how a state can legislatively address beach erosion and modify the boundaries between public tidelands and private uplands, issues that will grow in significance as sea levels rise due to global warming.  Briefs in the case can be found at http://www.abanet.org/publiced/preview/briefs/dec09.shtml.

Speakers:

D. Kent Safriet, Hopping, Green and Sams, Counsel for Petitioner
Thomas Merrill, Yale Law School, Counsel for Respondents Walton County and City of Destin
Ilya Shapiro, Cato Institute, Counsel for Amici, Cato Institute, et al.
John Echeverria, Vermont Law School, Counsel for Amicus, American Planning Association
Richard Lazarus, Georgetown University Law Center, Supreme Court Institute

Presented by: Georgetown Environmental Law and Policy Program (GELPP) & Georgetown University Law Center Supreme Court Institute

For more information, contact Professor Peter Byrne at byrne@law.georgetown.edu

Ben Barros

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Lehavi on Takings and Taxings

Amnon Lehavi (Interdisciplinary Center Herzliyah - Radzyner School of Law) has posted The Taking/Taxing Taxonomy on SSRN.  Here's the abstract:

Takings jurisprudence is engaged in a constant paradox. It is conventionally portrayed as chaotic and “muddy,” and yet attempts by the judiciary to create some sense of order in it by delineating this field into distinctive categories that apply to each a different set of rules are often criticized as analytically incoherent or normatively indefensible.

This Essay offers an innovative approach to the taxonomic enterprise in takings law, by examining what is probably its starkest and most entrenched division: that between taking and taxing. American courts have been nearly unanimous in refusing to scrutinize the power to tax, viewing this form of government action as falling outside the scope of the Takings Clause. Critics have argued that the presence of government coercion, loss of private value, and potential imbalances in burden sharing mandate that the two instances be conceptually synchronized and subject to similar doctrinal tests.

The main thesis of the Essay is that this dichotomy, and other types of legal line-drawing in property, should be assessed not on the basis of a “pointblank” analysis of allegedly-comparable specific instances, but rather on a broader view of the foundational principles of American property law and of the way in which takings taxonomies mesh with the broader social and jurisprudential understanding of what “property” is.

Identifying American property law as conforming to two fundamental principles-formalism of rights and strong market propensity-but at the same time as devoid of a constitutional undertaking to protect privately-held value against potential losses as a self-standing “strand” in the property bundle, the Essay explains why prevailing forms of taxation do seem to be disparate from other forms of governmental interventions with private property. Focusing attention on property taxation, the Essay shows why taxation is considered a “lesser evil” type of government coercion, how the taking/taxing dichotomy better addresses the public-private interplay in property law, and why taxation is often viewed as actually empowering property rights and private control of assets.

Ben Barros

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Testing Theory on Property Exams

Does anyone offer a "pure" theoretical question on their property exam.  This semester I assigned 88 pages out of Commodity and Propriety to force students to undertake careful reading in a different context other than cases.   So we have weaved in through the semester this theme as it has been appropriate.  Then came the question, how was I going to test this material.  

One of my divinity school professors would give ten theoretical questions at the beginning of the semester, of which four would be on the exam. I decided to use this trick and give my students two questions in advance of which one of them will be on their final examination. The trick is that they don't know which one.  The other trick is that the exam is a word limit exam, and they do not know the word limits prior to the exam.  My rationale is that this material is such that I just want their knowledge to be expanded.  So if they are caused to think about the material in preparation of answering a question on the exam, they at least have been exposed to the material as more than an in class anecdote or a piece of nice trivia.  From the grading perspective, I hope that this causes better answers than if the students were presented the material and asked to create a thoughtful answer in less than four hours.  Since I have distributed the questions in advance, I can go ahead and post them here as well.  

Possibility 1

Alexander writes: “Commodification had ambiguous implications for the Rule [against perpetuities].”  On the one hand, it made sense to conclude that the Rule was consonant with a commodified conception of land, insofar as it made land more readily available to creditors.  On the other hand, the commodified conception of property was not strictly an economic idea; more fundamentally, it was part of a broader social vision.” Is the modern approach to the Rule Against Perpetuities a greater reflection of the economic nature of property or the social ordering aspect of property?  

Possibility 2

Alexander describes the tension of American civic republicanism and English common law institutions in the context of time and history. Alexander writes: “American republican lawyers, including not only Jefferson but virtually everyone who wrote on the subject of Property, answered with a historical understanding of property and individual freedom.  Individual autonomy, they said, was secured by individual property rights because the meaning of individual liberation was negatively framed as the repudiation of ‘feudal tyranny’ itself serving as the central metaphor for domination and hierarchy. So long as the meanings of individual autonomy and property and their relation to each other were articulated in terms of a negation, the dilemmas of individualized property rights were avoided. … History (particularly, the feudal past) was a trope by which property and human liberation were signified, a symbol for the past that Americans were transcending.”    Explain the Johnson v. M’instosh opinion as either a confirmation or a repudiation of this American Republican Vision. 

Does anyone do anything similar?

Marc 

More on Pfizer's Pull Out From New London . . .

From the New York Times, and at the Times' Room For Debate blog.

Also, Tim Iglesias left this excellent comment to the last post on this subject:

In all of the analysis and judgment cited concerning the failure of the New London redevelopment project there is one important piece that is left out: the role of the litigation to stop the project. It may be that the litigation had little actual impact and that the project would have collapsed and failed completely independently of the opposition. However, anyone who has worked with real estate development knows that litigation alone can sometimes kill a project--particularly litigation of the extent and nature in this case. I would feel more comfortable with these analyses and judgments if the potential role of litigation had at least been considered as a contributing factor to the failure. Instead, the folks who brought the litigation and supported it argue as if it that part never existed.

Ben Barros

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Pfizer Pulls Out of New London

Pfizer is closing its New London facility.  The takings in Kelo v. New London seem more and more pointless every day.  Various folks in the blogosphere comment:  Will Baude, Ilya Somin, Jacob Sullum, Gideon Kanner.

Ben Barros

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Petitioner's Reply Brief in Stop the Beach . . .

is now available online.  All of the briefs in the case, including amicus briefs, can be found here (scroll down).

Ben Barros

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Vermont Takings Conference

I'm back from the Regulatory Takings conference that was held at Vermont Law School last Friday.  I had a great time and learned a lot.  Thanks to John Echeverria and everyone at VLS for organizing the event.

Ben Barros

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Akee on Property Institutions and Efficiency in Housing Markets

The May issue of the Journal of Law and Economics has an article by Randall Akee (Tufts University) titled Checkerboards and Coase: The Effect of Property Institutions on Efficiency in Housing Markets (free download for subscribers only).  Here's the abstract:

In the late 1800s, Palm Springs, California, was evenly divided into 1-mile-square blocks—like a checkerboard—and property rights were assigned in alternating blocks to the Agua Caliente tribe and a non-Indian landowner by the U.S. federal government. The quasi-experimental nature of land assignment holds land quality constant across the two types of landowners. Sales, mortgaging, and leasing restrictions on the Agua Caliente Reservation land created large transaction costs to development on those lands; consequently, there was very little housing investment. The non-Indian blocks, which were extensively developed, provide a benchmark for efficient outcomes for the Agua Caliente lands. Once the restrictions on Agua Caliente lands were relaxed in 1959, the number of homes and real estate values converged to those of non-Indian-owned lands as predicted by the Coase theorem.

Ben Barros

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Property Visitors Wanted

The University of San Francisco and Gonzaga are both seeking property visitors for parts of the 2010-11 school year.  Here's the info:

USF:

The University of San Francisco School of Law is seeking a visitor to teach Property and Trusts & Estates for the 2010-11 academic year.  The visit would likely be for a single semester, although a year-long position may be possible.  USF provides a highly congenial academic environment, with weekly faculty scholarship lunches, an engaged student body, excellent facilities, and all the benefits of a San Francisco location.  Formal inquiries should be directed to Prof. Josh Davis, Chair, Faculty Appointments Committee, at davisj@usfca.edu or (415) 422-6223.  Applicants may contact Prof. Alice Kaswan, kaswan@usfca.edu or (415) 422-5053, with informal thoughts or questions.

Gonzaga:

Gonzaga University School of Law seeks applicants for a full-time visiting position for Spring 2011.  The visitor will teach a four-credit Property course to second-semester, first-year students.  In addition, the visitor may teach an upper level elective in an area of the visitor’s interest.  Applicants should have experience in teaching Property and a demonstrated commitment to teaching excellence.  The law school is strongly committed to diversifying its faculty and furthering Gonzaga’s mission.  For additional information, contact Professor Gerry Hess, Chair, Faculty Recruitment Committee, Gonzaga University School of Law, P.O. Box 3528, Spokane, Washington 99220-3528, or contact Professor Hess by e-mail at ghess@lawschool.gonzaga.edu.

 

Ben Barros

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Salkin on Land Use Ethics

Patricia Salkin (Albany) has posted 2009 Ethical Considerations in Land Use on SSRN.  Here's the abstract:

This article is one in a series of annual updates on reported cases and opinions in the area of ethics and land use regulation, A number of themes emerged from the round of litigation in the last year. The most surprising discovery was for a second year in a row, the number of reported cases involving allegations of unethical conduct on the part of land use attorneys. This article reviews these cases, as well as cases involving conflicts based on community involvement, familial relationships, employment and finacial interests; and cases involving allegations of bias and prejudgment.

Ben Barros

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Saxer on Property and Speech

Shelley Ross Saxer (Pepperdine) has posted A Property Rights View: Commentary on Property and Speech by Robert A. Sedler on SSRN.  Here's the abstract:

This Article, published as part of a Symposium on “The Rehnquist Court and the First Amendment,” responds to another Article, titled “Property and Speech,” by Professor Robert A. Sedler. In the Article, Professor Saxer builds upon Professor Sedler’s analysis that the First Amendment can be used as a “sword” against property owners who seek to exclude free expression with claims of private ownership rights and as a “shield” against government attempts to restrict individual rights by regulating property use. While Professor Sedler concludes that, because the First Amendment has been used to significantly interfere with property rights, protection of free expression is strong in the United States, Professor Saxer posits that such a conclusion may show just how weak property rights have become. Professor Saxer argues that the Rehnquist Court has reduced the protection of private property rights against government action, while restricting private property owners’ rights to exclude private actors who trespass or substantially interfere with their use and enjoyment of property interests.

Professor Saxer also addresses a category of government action not mentioned by Professor Sedler – the government’s use of eminent domain, which can be used as a “sword” against undesirable land uses, even if those uses are protected by the First Amendment. Professor Saxer contrasts the treatment of church property and adult businesses in the eminent domain context. The Religious Land Use and Institutionalized Persons Act (RLUIPA) acts as a “shield” against government land use decisions that impact religious land uses by requiring heightened judicial scrutiny. However, adult business land uses are not similarly protected against eminent domain actions.

Ben Barros

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Tate on Assignability of Charitable Trust Enforcement Rights

Joshua C. Tate (SMU) has posted Should Charitable Trust Enforcement Rights Be Assignable? on SSRN.  Here's the abstract:

In recent years, scholars have given much attention to the problem of charitable trust enforcement. Departing from the common law, section 405(c) of the Uniform Trust Code provides that “[t]he settlor of a charitable trust, among others, may maintain a proceeding to enforce the trust.” This Article addresses the question of whether, and to what extent, a settlor’s right to enforce a charitable trust should be assignable to third parties. Should the law permit the settlor of a charitable trust to assign her enforcement rights after the creation of the trust, or should assignments be recognized only if they are spelled out in the trust instrument? How many potential assignees may the settlor properly select? Once the right has been assigned to a third party, should that third party also retain the right of assignment, so that the right can potentially be passed from one individual to the next in perpetuity? What would be the ramifications of granting a right of assignment to the settlor’s personal representative? Any resolution of these issues must protect the interests of charitable beneficiaries, but also be fair to trustees and not overwhelm the courts with frivolous litigation.

Ben Barros

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Rosser on Indians and Judicial Humility

Ezra Rosser (American University) has posted Assumptions Regarding Indians and Judicial Humility: Thoughts from a Property Law Lens on SSRN.  Here's the abstract:

Negative assumptions regarding Indians can be found in the recent decisions of the U.S. Supreme Court and attention to these assumptions is required if courts are to base their decisions on how Indians and non-Indians actually impact each other. This brief article uses a property and liability rules framework to argue for judicial restraint when considering cases that could limit tribal soveriegnty

Ben Barros

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Saxer on Eminent Domain and First Amendment Land Uses

Shelley Ross Saxer (Pepperdine) has posted Eminent Domain Actions Targeting First Amendment Land Uses on SSRN.  Here's the abstract:

This Article explores constitutional and statutory limitations on land use regulations where First Amendment rights are implicated. The government’s eminent domain power can weaken the protection due undesirable land uses under the First Amendment. Professor Saxer advocates that courts should distinguish between the government exercising eminent domain and the government using typical land use regulation and should impose stricter constitutional limitations on the eminent domain power.

In particular, this Article focuses on how courts have dealt with eminent domain actions targeting adult business and religious land uses. Although these two types of uses are strange bedfellows, they are the land uses that typically involve First Amendment rights and that tend to generate emotional responses from the community leading to content-based regulation. Issues examined in this Article include: eminent domain actions against religious land uses protected under state and federal constitutions, state Religious Freedom Restorations Act (RFRA) statutes, and the Religious Land Use and Institutionalized Persons Act (RLUIPA).; government motivations for targeting protected land uses; and special valuation considerations for just compensation determinations.

Ben Barros

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Bennett's Bibliography on Condos

Donna S. Bennett (Northern Kentucky) has posted Condominium Homeownership: A Selected Annotated Bibliography of Legal Sources on SSRN.  Here's the abstract:

Following a brief historical sketch of the condominium concept, this bibliography focuses on the development and growth of condominium homeownership in the United States.

Ben Barros

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