Friday, December 2, 2005

Galvan on Measure 37 and Over-Regulation of Land Use

Sara Galvan, a student at Columbia, has posted a very interesting essay Gone Too Far: Measure 37 and the Perils of Over-Regulating Land Use (23 Yale Law & Policy Review 587) on SSRN.  Here's the abstract:

In November 2004, Oregonians passed a ballot measure, Measure 37, that presented a radical remedy for landowners by preventing the state from engaging in regulatory takings without compensating landowners. It required that local governments either monetarily compensate landowners whose properties fall in value as a result of land use regulations or, under certain conditions, exempt those landowners from the regulations altogether. At its core, Measure 37 addressed Oregon voters' concern that - for all the good the land use system had done - the government had gone too far in prohibiting landowners from using their land as they saw fit. This Comment examines why Oregon voters took the dramatic step of passing Measure 37, despite longstanding support for the state's strong approach to growth control. Although economic and demographic shifts may have been partly responsible, this Comment argues that the answer is more straightforward and far less inevitable: the legislature and the courts stopped listening to the people of Oregon.

As I've noted previously, Measure 37 was recently invalidated by a trial-level court in Oregon, but the voter outrage behind Measure 37 isn't going anywhere.  This essay is an interesting look at the causes of that outrage and the potential for political limits on land-use planning.  Highly recommended!

Ben Barros

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December 2, 2005 in Land Use, Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Thursday, December 1, 2005

Lazarus on Scalia and the Blackmun Papers

Richard Lazarus (Georgetown Law) has posted The Measure of a Justice: Justice Scalia and the Faltering of the Property Rights Movement within the U.S. Supreme Court on SSRN.  Here's the abstract:

This article takes the measure of Justice Scalia's ability to produce significant opinions for the Court, by focusing on the Court's property rights cases during the past several decades. Much of the analysis relies on the Official Papers of Justice Harry Blackmun, which provide a virtual treasure trove of information revealing the Court's deliberative process when Blackmun was on the Court from 1971 to 1994. The article concludes that Justice Scalia may have appeared an effective champion of pro-property rights rhetoric to those outside the Court, but he has been much less effective within the Court in furthering that agenda. He not only repeatedly failed in his efforts to build a workable majority coalition on the Court, but he instead pushed away potential allies. The upshot was, in the first instance, precedent heavy on strong rhetoric yet light on staying power. In combination with other causes, the ultimate result was a splintering of those Justices, which included more than a simple majority, intuitively sympathetic to property rights claims and the reconstruction of a new majority more often led by Justice John Paul Stevens that returned the law to where it had been prior to Justice Scalia's joining the Court.

Ben Barros

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December 1, 2005 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Retirement of Grazing Rights

There is an interesting story in the New York Times (registration required) today about the resistance of some local officials to the voluntary retirement of grazing rights on federal lands.  An excerpt:

[S]even years ago an environmental group based in Arizona, the Grand Canyon Trust, began paying ranchers to give up their grazing rights when their herds, or bank accounts, had failed to thrive. By this fall, the trust had spent more than $1 million to end grazing on more than 400,000 acres.

The deals seemed to suit all concerned, until a group of local officials decided that they were bad for the local economy and a threat to the ancestral tradition of living off the land. The group set out to end this latest, uncharacteristically civil chapter in the fraught history of cattlemen, environmentalists and dueling visions of the West's future.

Ben Barros

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December 1, 2005 in Land Use | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 30, 2005

ARM Litigation

Well, that was fast.  Last month I had a post in which I suggested that interest-only ARMs would be the source of the next class action boom.  Yesterday's Wall Street Journal had a story by Ruth Simon (subscription required) on what may be the first of many such class actions involving option ARMs, a similar type of mortgage that used a teaser rate to keep payments low in the first year:

In a lawsuit seeking class-action status filed in U.S. District Court in Milwaukee earlier this year, the Andrews allege that their lender, Chevy Chase Bank, violated the federal Truth-In-Lending Act by misleading borrowers into thinking they were getting rates lower than those actually charged. There are "deceptive disclosures," says Kevin Demet, an attorney representing the Andrews.

In a written response to questions about the lawsuit, Robert D. Broeksmit, president and chief executive of Chevy Chase Bank's mortgage lending unit, says the company offers option ARMs "only to affluent borrowers who use its various payment features to manage their cash flow intelligently." He says the bank makes "every effort to ensure that all of our customers understand the loan product they choose." This includes providing a "one page, large print, plain English flyer, which the borrower signs, which clearly states that the loan has a monthly adjustable interest rate," he says.

Other lawsuits are likely, particularly if interest rates rise and housing values level off or fall, says Paul F. Hancock, a partner with the Miami office of law firm Hogan & Hartson. "The most likely claim will be a consumer-protection claim ... [that borrowers] weren't properly informed or were sold a product that wasn't suited to them," he says. Mr. Hancock says the risks of option ARMs and other exotic loan products are getting more attention both from lenders and consumer advocates.

Ben Barros

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November 30, 2005 in Real Estate Transactions | Permalink | Comments (4) | TrackBack (0)

Tuesday, November 29, 2005

Blumm, Dunning and Reed on Renouncing the Public Trust

Michael C. Blumm , Harrison Dunning and Scott W. Reed (Lewis & Clark Law School , UC Davis and Stanford Law School) have posted Renouncing the Public Trust Doctrine: An Assessment of the Validity of Idaho House Bill 794 on SSRN. Here is the abstract:

    Under the influence of powerful irrigation and timber lobbies, the state of Idaho enacted a law in 1996 which renounced the application of the public trust doctrine to water rights and public land decisionmaking, in an effort to overturn several decisions of the Idaho Supreme Court. This article explains the genesis of that law, exposes its flaws, and questions its validity.

    In particular, we maintain that the rights that Idaho legislature attempted to terminate are in fact inalienable, sovereign rights that a state cannot renounce. We also argue that a state cannot, consistent with the federal law, terminate public rights in lands conveyed to the state under the equal footing doctrine. Finally, we contend that the Idaho statute violates the state constitution's declaration of the public character of water within the state. The article notes that its analysis may have use beyond the state of Idaho, as several other western states have constitutional provisions that could be interpreted to incorporate the public trust doctrine.

Ben Barros

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November 29, 2005 in Land Use, Recent Scholarship | Permalink | Comments (1) | TrackBack (0)

Monday, November 28, 2005

French on the Problem of the Future

Susan French (UCLA Law School) has posted Perpetual Trusts, Conservation Servitudes, and the Problem of the Future on SSRN. Here is the abstract:

This short article explores the similarities between perpetual private trusts and conservation servitudes granted in perpetuity, the adequacy of existing doctrines to handle future changes in circumstances, the deference due to donor intent, and concludes that legal changes will be needed to give private trust beneficiaries more power to determine how trust assets will be used and to protect the public interests in conservation servitudes and the continuing utility of the land subject to them.

Ben Barros

November 28, 2005 in Future Interests and the RAP, Land Use, Law Reform, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Decline in the Housing Market

David Bernstein over at the VC has a post describing the decine in housing prices in some markets.  Could it be that litigation will follow shortly behind?

Ben Barros

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November 28, 2005 in Real Estate Transactions | Permalink | Comments (1) | TrackBack (0)

Sunday, November 27, 2005

NPR Story on Post-Kelo Eminent Domain Reform

NPR has a story that asks whether post-Kelo eminent domain reform is going too far, using the example of waterfront redevelopment in Portland, Maine.

Ben Barros

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November 27, 2005 in Law Reform, Takings | Permalink | Comments (0) | TrackBack (0)

Weekly Top Ten

Not much change from last week, as most people focused on turkey rather than property law.

1. (288)  How City Hall Causes Sprawl: A Case Study, Michael Lewyn (George Washington University Law School)

2. (232) How Overregulation Creates Sprawl (Even in a City without Zoning), Michael Lewyn (George Washington University Law School)

3. (216)  Suburban Sprawl, Jewish Law, and Jewish Values, Michael Lewyn (George Washington University Law School)

4. (198)  Sprawl, Growth Boundaries and the Rehnquist Court, Michael Lewyn (George Washington University Law School)

5. (115)  Information Asymmetries and the Rights to Exclude, Lior Strahilevitz (University of Chicago Law School)

6. (111)  Home as a Legal Concept, Benjamin Barros (Widener University - School of Law)

7. (99)  Property Rights in Spectrum: Taking the Next Step, Dale Hatfield (University of Colorado at Boulder) and Phil Weiser (University of Colorado at Boulder - School of Law)

8. (76)  Testimony Before Pennsylvania House of Representatives State Government Committee Re: Eminent Domain, Benjamin Barros (Widener University - School of Law)

9. (57) Leasing, Ability to Repossess, and Debt Capacity, Andrea L. Eisfeldt and Adriano A. Rampini (both from Northwestern University - Department of Finance)

10. (55) Bargaining for Takings Compensation, Abraham Bell and Gideon Parchomovsky (Bar Ilan University - Faculty of Law and University of Pennsylvania - School of Law)

Ben Barros

November 27, 2005 in Recent Scholarship | Permalink | TrackBack (0)