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Univ. of Kentucky College of Law

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Friday, January 27, 2006

Lewyn on New Urbanist Zoning

Michael Lewyn (George Washington Law School) has posted New Urbanist Zoning for Dummies on SSRN.  Here's the abstract:

For most of the 20th century, American land use regulation sought to separate different types of land uses from each other and to reduce population density, while American parking and street design regulation sought to facilitate driving by mandating wide streets and forcing landlords and businesses to build parking lots for their tenants and customers. These policies have helped to create a pattern of land use often described as "sprawl": low-density, automobile-oriented development. Where offices and shops are in a different zone of a city from low-density housing, residents will often be unable to live within walking distances of such facilities. And where parking lots and wide streets surround those offices and shops, pedestrians must cross dangerously wide streets and then cross a sea of parking in order to reach those buildings. In recent decades, a group of architects generally known as the New Urbanist movement has sought to reform both conventional land use regulation and the sprawl that it generates. New Urbanists seek to build compact, walkable, mixed-use neighborhoods. Because existing zoning is hostile to New Urbanism, New Urbanists have begun to develop alternative zoning codes codifying New Urbanist principles. For example, Duany Plater-Zyberk & Company (DPZ), a leading New Urbanist architectural firm, has drafted a model code known as the SmartCode. The purpose of this article is to compare New Urbanist zoning to sprawl-oriented conventional zoning, using the SmartCode and two conventional zoning codes as case studies. The article concludes that the SmartCode is in many ways less restrictive than existing zoning, and shows how the SmartCode could be made even more libertarian yet at the same time even more pedestrian-friendly.

Ben Barros

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January 27, 2006 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Weekly Top Ten

Not much change from last week in our Weekly Top Ten list of the most-downloaded recent property papers on SSRN.

1. (509) Economic Analysis of Law, A. Mitchell Polinsky and Steven Shavell (Stanford Law School and Harvard Law School)

2. (296) The Measure of a Justice: Justice Scalia and the Faltering of the Property Rights Movement within the U.S. Supreme Court, Richard Lazarus (Georgetown University Law Center)

3. (227) Teaching Law Students About Sprawl, Michael Lewyn (George Washington University Law School)

4. (127) Property and the Public Domain, Hanoch Dagan (Tel Aviv University - Buchmann Faculty of Law)

5. (113) What a Strange Place to Put a Church: The Political Economy of 'Just Compensation', Nicole Stelle Garnett (Notre Dame Law School)

6. (94) Human Nature, the Laws of Nature, and the Nature of Environmental Law, Richard James Lazarus (Georgetown University Law Center)

7. (70) Three Reasons Why Even Good Property Rights Cause Moral Anxiety, Emily L. Sherwin, (Cornell University - School of Law)

8. (64) It's Not About the Fox: The Untold History of Pierson v. Post, Bethany Berger (Wayne State University - School of Law)

9. (62) Gone Too Far: Measure 37 and the Perils of Over-Regulating Land Use, Sara C. Galvan (Yale University)

10. (57) Did Reform of Prudent Trust Investment Laws Change Trust Portfolio Allocation?, Max M. Schanzenbach & Robert H. Sitkoff (Northwestern University - School of Law and New York University School of Law)

Ben Barros

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January 27, 2006 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, January 26, 2006

Camden Redevelopment Plan Thrown Out on Technical Grounds

The City of Camden's redevelopment plan for the Cramer Hill neighborhood was thrown out by a New Jersey Superior Court judge on procedural grounds:

During arguments heard before today's scheduled trial over the use of eminent domain for the project, Judge Michael J. Kassel ruled that two witnesses who testified before a planning board in May 2004 at the adoption of the plan had not been sworn in.

This is the second time the plan has been tossed on procedural grounds.  Why might a judge use such ticky-tacky reasons to avoid hearing the merits?  The plan is very controversial, largely because it will use eminent domain to displace 1,200 families from their homes and turn the property over to a private developer.  To be fair, though, the plan appears to contemplate providing replacement housing for the displaced families.  For those who are interested, the plan is available on-line.

Ben Barros

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January 26, 2006 in Takings | Permalink | Comments (2) | TrackBack (0)

Meidinger on Property Law and Development Policy

Errol Meidinger (University at Buffalo Law School) has posted Property Law for Development Policy and Institutional Theory: Problems of Structure, Choice, and Change on SSRN.  Here's the abstract:

This paper brings the institutional and ontological assumptions of development-by-incorporation theorists such Hernando De Soto into dialogue with modern property scholarship. The central argument of the incorporationists is that state-based legal systems should simply recognize and incorporate the informal property rights of urban squatters and rural villagers, thereby creating the necessary institutional conditions for successful economic development in those communities. While not directly addressing the consequentialist side of the argument, this paper argues that our knowledge of modern property systems poses several significant challenges to this prescription. The most significant of these are that modern property systems have often resisted incorporating informal property rights, and indeed often suppressed them, that they typically involve a great deal more indeterminacy than institutional theorists assume, that the very boundaries of modern property systems seem to be shifting beyond the nation state system, that incorporation decisions will necessarily involve significant normative choices, and that some traditional systems may simply be inconsistent with the institutional ontology of modern economic institutions.

Ben Barros

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January 26, 2006 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 25, 2006

Bank Refuses to Lend To Kelo-style Projects

From a story on FT.com:

A regional US bank has banned lending to commercial developers who plan to build on land seized from private citizens, in protest against the strengthening of government powers to make compulsory purchases. . .

“The idea that a citizen’s property can be taken by the government solely for private use is extremely misguided, in fact it is just plain wrong,” said John Allison, chief executive of BB&T.

Thanks to Bill Sjostrom for the pointer.

Ben Barros

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January 25, 2006 in Takings | Permalink | Comments (0) | TrackBack (0)

Genres of Elite Property Scholarship

Mark Fenster has a great post up on this subject at PrawsBlawg.

Ben Barros

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January 25, 2006 in Property Theory, Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Lewallen, Sandefur and Gieseler on Measure 37

Leslie Marshall Lewallen, Timothy Sandefur and Steven Geoffrey Gieseler (all of the Pacific Legal Foundation) have posted Measure 37:  Paying People For What We Take on SSRN.  Here's the abstract:

For decades, landowners in Oregon have suffered under one of the most restrictive land-use regimes in the nation. Among the many ills this system fostered was a failure to compensate owners when land use restrictions resulted in a diminution of the value of their property. Property owners seeking judicial enforcement of their constitutional right to be compensated found no such protection. Therefore, in 2004 the voters of Oregon took it upon themselves to enact Measure 37, an initiative requiring state and local governments to compensate landowners where land use regulations result in decreased property values. Incredibly, an Oregon circuit judge struck down Measure 37 in October, claiming among other things that the people of Oregon had no right to limit the powers of their elected officials.

This Article examines the events that led to, and resulted from, Oregon’s enactment of Measure 37. In particular, it looks at the theory behind the doctrine of regulatory takings, advocating the position that governments can “take” property without physically occupying it. With this theoretical baseline in place, the Article recounts the regulatory nightmare that is Oregon’s land use apparatus, and recounts the steps that led the state’s voters to finally do something about it in the form of Measure 37. Finally, the Article concludes by critiquing the unfortunate decision invalidating Measure 37, with emphasis on the court’s argument that citizens are powerless to limit the authority of their own legislature.

Regular readers of this blog will know that I have quite a bit of sympathy for the property-owner's side on regulatory takings issues.  I think it is a shortcoming of this article, however, that Lewallen et al never make a convincing transition from criticism of the current regulatory takings doctrine that denies property owners compensation for substantial diminutions of value to support for a statute that requires compensation for any diminution in value.  I don't think there is a convincing argument that compensation for any diminution of value is (a) mandated by the constitution, (b) supported by any caselaw, or (c) a good idea.  I also think that some aspects of the article (and of Measure 37) are based on the flawed idea that "police power regulations, rightly understood [are] laws which protect individuals' rights to use their land and their faculties without interference from others."  (I discuss the scope of the police power at length in this article).

That said, the voter anger behind Measure 37 is isn't going anywhere. Lewallen et al provide an important perspective on that voter anger (as did Sara Galvan's essay on Measure 37).  Even if the Oregon courts ultimately invalidate Measure 37, voter pressure is likely to require Oregon to do something to make its land-use law more responsive to property owners' concerns.

Ben Barros

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January 25, 2006 in Recent Scholarship, Takings | Permalink | Comments (2) | TrackBack (0)

Tuesday, January 24, 2006

Sturtevant on Poletown and Kelo

Glen H. Sturtevant Jr. (George Mason University - School of Law) has posted Economic Development as Public Use: Why Justice Ryan's Poletown Dissent Provides a Better Way to Decide Kelo and Future Public Use Cases on SSRN.  Here's the abstract:

Eminent domain is the power of the government to take private property for public use, provided the property owner receives compensation. This power is contained in the Takings Clause of the Fifth Amendment, which states, nor shall private property be taken for public use, without just compensation. Interpretations of the Public Use Clause, and what actually constitutes a public use, have varied considerably among scholars, lawyers, and jurists since the enactment of the Fifth Amendment. The Supreme Court's most prominent public use cases in the past 50 years are Berman v. Parker, Hawaii Housing Authority v. Midkiff, and, as of June 2005, Kelo v. City of New London. These cases demonstrate the Supreme Court's significant deference to governmental decisions to use eminent domain and condemn private property. Specifically, the Midkiff Court stated that such governmental determinations of public use only warrant highly deferential rational basis scrutiny. Under this standard of review, the Court upholds the government's use of eminent domain, provided it is rationally related to a conceivable public purpose.

Although state courts are not confined to the Supreme Court's reasoning, a great majority of states have followed the Court's deferential lead in interpreting their own state constitutions' public use clauses.11 Until recently, one of the leading state court cases dealing with eminent domain was Poletown Neighborhood Council v. City of Detroit. In sustaining the condemnation of private property to make way for an automobile manufacturing plant, the Michigan Supreme Court held that the potential for economic development, forecasted to result from the retention and creation of jobs, constituted a valid public use. Economic development, in this context, is essentially the creation of jobs and tax revenue from businesses that receive land condemned through eminent domain. Recently, the Michigan Supreme Court overruled Poletown in County of Wayne v. Hathcock. The Hathcock court adopted the rationale of Poletown dissenter, Justice Ryan, holding that economic develoment was not a valid public use justifying the exercise of the eminent domain to transfer property from one private party to another.

The Connecticut Supreme Court, however, still adheres to the deferential Midkiff rationale in interpreting its state constitution's public use clause, subjecting state or local government exercises of eminent domain to a relatively low level of scrutiny. In March 2004, that state's high court held that economic progress trumped the private property rights of some residents of New London, Connecticut in Kelo v. City of New London. The Supreme Court granted certiorari in Kelo and ultimately affirmed the Connecticut Supreme Court's ruling, marking the first time in twenty years that the Court has addressed the public use issue.

Part I of this Note addresses the history of Public Use Clause jurisprudence and the role that the courts play in reviewing exercises of eminent domain. Part II examines the Michigan Supreme Court's decision in Hathcock overruling Poletown, and the Connecticut Supreme Court's decision in Kelo to continue to apply the highly deferential standard of review. It also analyzes the three factors laid out by Justice Ryan in his dissenting opinion in Poletown, which the Michigan Supreme Court ultimately adopted in Hathcock, and their application to Kelo. Part III provides a critique of the Supreme Court's decision in Kelo affirming the state supreme court's decision. Part IV applies Justice Ryan's Poletown exceptions to Kelo. Finally, Part V analyzes the many problems caused by a broad interpretation of public use and blind deference to the legislature.

The debate over the meaning of public use is the subject of a great many scholarly writings. Although this Note addresses that issue, its primary purpose is to analyze and critique the Kelo decision, as well as to provide an alternative rationale to decide Public Use Clause real property cases that is sensitive to the many benefits of eminent domain and the fundamental liberty interests inherent in private property.

Ben Barros

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January 24, 2006 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Blumm on Free Market Environmentalism

Michael C. Blumm (Lewis & Clark Law School) has posted The Fallacies of Free Market Environmentalism, a 1992 article from the Harvard Journal of Law and Public Policy, on SSRN.  Here's the abstract:

This essay reviews the book, Free Market Environmentalism, and finds it wanting on several counts. The proponents of free market environmentalism (Privateers) hold an atomistic view of of society, glorify market exchanges, discount market failures, and decry governmental intervention. They indict the democratic process for being dominated by rent-seeking interest groups and claim that public dialogue can never subsume private preferences. Yet privateers ignore the fact that most environmental resources are incapable of being accurately priced.

This essay explains how external cost, collective goods, and free rider problems ensure that the marketplace systematically overvalues polluting activities and resource consumption while undervaluing clean air and water and other environmental goods, thus creating significant inefficiencies. The essay also points out that enforcing market-based preferences requires public enforcement, which is itself costly. Reliance on common law remedies like nuisance produced spectacular inefficiences and unfairness in the past. The authors of Free Market Environmentalism offer no prescriptions of how to avoid these mistakes in the future.

Because Free Market Environmentalism fails to acknowledge that markets persistently fail to produce ecological and health information necessary to allocate environmental resources efficiently, it is a deeply flawed book. Privateers also unwisely assume the wisdom of current preferences and the fairness of existing wealth distribution. And they carve out a significant role for the judiciary, the least representative branch of government, to allocate environmental resources. While there may be a role for markets in the implementation of environmental policy, particularly in supplying incentives to comply with environmental requirements, thereby reducing both fiscal and physic costs, the market is a poor place in which to make environmental policy. The values which shape environmental policy are better identified through the dialogue of democracy, through public hearings and legislative determination, and with the participation of both the landed and the landless.

Ben Barros

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January 24, 2006 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, January 23, 2006

Dam on Land, Law and Economic Development

Kenneth W. Dam (University of Chicago Law School) has posted Land, Law and Economic Development on SSRN.  Here's the abstract:

Real estate is a major source of wealth in the developing world. And since in many developing countries the majority of the population lives in rural areas, land law and institutions are of special importance to economic development. The importance to rural incomes growth of legal certainty with regard to land titles and transfers is well established. It would nevertheless be a mistake to view communal land systems as necessarily standing in the way of economic development because they are usually not open access systems subject to the tragedy of the commons. Where economic changes, such as expansion of cities and exploitation of natural resources, impinge on communal land areas, attention to the administrative, financial and human capital challenges of implementing land titling systems is crucial.

Ben Barros

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January 23, 2006 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Somin on Kelo

Ilya Somin (George Mason University - School of Law) has posted Controlling the Grasping Hand: Economic Development Takings After Kelo on SSRN.  Here's the abstract:

The Supreme Court's controversial recent decision in Kelo v. City of New London upheld the condemnation of private property for purposes of "economic development." This Article argues that Kelo was wrongly decided and that courts should forbid condemnations for economic development.

Part I analyzes the flaws of economic development takings generally. Such condemnations allow politically powerful interest groups to "capture" the condemnation process for the purpose of enriching themselves at the expense of the poor and politically weak. Economic development takings are especially vulnerable to abuse because their rationale can justify almost any condemnation that transfers property to a commercial enterprise. Several other aspects of economic development takings also exacerbate the danger.

This Part also shows that the need to eliminate "holdout problems" that could block desirable assembly projects cannot justify permitting economic development takings. In most cases, private developers can prevent holdouts by such noncoercive methods as assembling property in secret and adopting precommitment strategies that prevent holdouts from using their bargaining power.

Part II considers the major alternatives to a categorical ban. While these proposals are not without merit, none can prevent eminent domain abuse as effectively as forbidding the economic development rationale altogether. The first such alternative, adopted for a time by courts in Michigan and Delaware, is to require heightened scrutiny in cases where the condemnation power is used in a way that benefits identifiable private interests. Unfortunately, the heightened scrutiny test is not an adequate bulwark against the dangers of economic development takings, and may in some cases actually exacerbate those risks. The same weaknesses bedevil academic proposals to impose "means-ends" scrutiny on takings, which bear a considerable resemblance to the heightened scrutiny test.

Increasing the compensation awarded to property owners targeted for condemnation is another possible alternative to a ban. While this idea has some merit, it is almost impossible to accurately calculate the appropriate amount of compensation for "subjective value." Moreover, even a perfect compensation formula cannot offset the damage inflicted by economic development takings on taxpayers and the community as a whole.

Many defenders of the Kelo decision advocate procedural protections for property owners as an alternative to vigorous judicial enforcement of public use limitations on takings. Though such protections have real value, they are unlikely to be an adequate substitute for a judicial ban on economic development takings.

Lastly, it is possible that strong judicial review of economic development takings is unnecessary because localities that abuse their eminent domain powers will be disciplined by interjurisdictional competition in a federal system. While exit rights are a valuable tool for forcing governments to respect the needs and interests of citizens, they have only limited utility in protecting property rights in land because real property is an immobile asset that owners cannot take with them when they "vote with their feet."

In Part III, I consider the Supreme Court's decision in Kelo. In advocating broad deference to local governments on public use issues, the Kelo majority unfortunately ignored the serious defects in the political processes that control economic development takings. The Court's analysis of history and precedent also has significant weaknesses, particularly in its heavy reliance on early twentieth century precedents that were based on "substantive due process" rather than on the Takings Clause of the Fifth Amendment. Nonetheless, Kelo actually represents a modest improvement on the Court's previous public use decisions, by holding out the possibility of at least slightly greater judicial scrutiny.

A final important aspect of Kelo is the strong political reaction against it, which has led Congress and numerous state legislatures to consider legislation restricting the use of eminent domain. Unfortunately, my analysis shows that most of the proposed legislation is likely to have little or no effect and may simply represent "position-taking" intended to mollify public opinion without actually constraining the use of eminent domain.

Part IV strikes an additional note of caution, showing that even a categorical ban on economic development takings is not a comprehensive solution to the underlying problem of eminent domain abuse. A ban on economic development takings can potentially be circumvented in several ways, most notably because such bans still permit condemnations to alleviate "blight." Courts in many states have already defined blight so broadly that the definition could encompass virtually any property. The blight exception to the ban on economic development condemnations must be carefully limited, lest it swallow the rule.

Ben Barros

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January 23, 2006 in Recent Scholarship, Takings | Permalink | Comments (1) | TrackBack (0)

Sunday, January 22, 2006

Weekly Top Ten

New articles from Nicole Garnett and Emily Sherwin make their debuts on the Weekly Top Ten.

1. (442) Economic Analysis of Law, A. Mitchell Polinsky and Steven Shavell (Stanford Law School and Harvard Law School)

2. (293) The Measure of a Justice: Justice Scalia and the Faltering of the Property Rights Movement within the U.S. Supreme Court, Richard Lazarus (Georgetown University Law Center)

3. (221) Teaching Law Students About Sprawl, Michael Lewyn (George Washington University Law School)

4. (121) Property and the Public Domain, Hanoch Dagan (Tel Aviv University - Buchmann Faculty of Law)

5. (90) Human Nature, the Laws of Nature, and the Nature of Environmental Law, Richard James Lazarus (Georgetown University Law Center)

6. (81) What a Strange Place to Put a Church: The Political Economy of 'Just Compensation', Nicole Stelle Garnett (Notre Dame Law School)

7. (63) Three Reasons Why Even Good Property Rights Cause Moral Anxiety, Emily L. Sherwin, (Cornell University - School of Law)

8. (59) It's Not About the Fox: The Untold History of Pierson v. Post, Bethany Berger (Wayne State University - School of Law)

9. (59) Gone Too Far: Measure 37 and the Perils of Over-Regulating Land Use, Sara C. Galvan (Yale University)

10. (54) Did Reform of Prudent Trust Investment Laws Change Trust Portfolio Allocation?, Max M. Schanzenbach & Robert H. Sitkoff (Northwestern University - School of Law and New York University School of Law)

Ben Barros

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January 22, 2006 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)