PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

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Saturday, February 11, 2006

Weekly Top Ten

Lots of new entries on our Weekly Top Ten list of the most-downloaded recent property papers on SSRN.

1. (364) Teaching Law Students About Sprawl, Michael Lewyn (George Washington University Law School)

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

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

4. (77) 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)

5. (57) Land, Law and Economic Development, Kenneth W. Dam (University of Chicago Law School)

6. (56) Report Regarding the Pacific McGeorge Workshop on Globalizing the Law School Curriculum, Franklin A. Gevurtz, Linda E. Carter, Julie Davies, Brian K. Landsberg, Thomas O. Main, Michael P. Malloy, and John G. Sprankling (all of the University of the Pacific - McGeorge School of Law)

7. (55) New Urbanist Zoning for Dummies, Michael Lewyn (George Washington University Law School)

8. (42) Before Kelo, William A. Fischel (Dartmouth College - Department of Economics)

9. (30) Economic Development as Public Use: Why Justice Ryan's Poletown Dissent Provides a Better Way to Decide Kelo and Future Public Use Cases, Glen H. Sturtevant (George Mason University - School of Law)

10. (29) Thirst: A Short History of Drinking Water, James Salzman (Duke University - School of Law)

Ben Barros

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February 11, 2006 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, February 10, 2006

Homeowners Association Held to Constitutional Actor For Free Speech Purposes

The New Jersey Appellate Division has held that a common interest community homeowner's association is a constitutional actor and as a result is subject to the free speech provisions of the NJ constitution.  The court's opinion is available here.  From the ACLU of New Jersey's press release:

Newark - The Rutgers Constitutional Litigation Clinic and the American Civil Liberties Union of New Jersey praise an opinion handed down by the Superior Court Appellate Division today that provides new rights under the State Constitution for the more than one million New Jerseyans who reside in private communities governed by homeowners associations.

"For the first time anywhere in the United States, an appellate court has ruled that such private communities are 'constitutional actors' and must therefore respect their members' freedom of speech," explained Rutgers Law Professor Frank Askin, lead counsel in the case. "The court recognized that just like shopping malls are the new public square, these associations have become and act, for all practical purposes, like municipal entities unto themselves," he added.

At issue in the case, which involved the 10,000-resident community of Twin Rivers in East Windsor, were the right to post political signs on members lawns, equal access to the community newspaper run by the Board of Trustees, and equitable access to the community room for meetings for dissidents. The complaint raises claims under the free speech protections of the New Jersey Constitution.

The Unanimous Opinion of the three-judge appellate panel relied heavily upon earlier decisions of the New Jersey Supreme Court holding that privately owned and operated shopping malls were public forums under the State Constitution, and had to allow non-profit advocacy groups to gather petitions and distribute educational material on mall property.

Building on those cases, the Court held that private residential communities could no more deny free speech to its residents to discuss public issues than municipal governments. The Court wrote:

The manner and extent to which functions undertaken by community associations have supplanted the role that only towns or villages once played in our polity mirrors the manner and extent to which regional shopping centers have become the functional equivalents of downtown business districts . . .

It follows that fundamental rights exercises, including free speech, must be protected as fully as they always have been, even where modern societal developments have created new relationships or changed old ones. Expressive exercises, especially those bearing upon real and legitimate community issues, should not be silenced or subject to undue limitation because of changes in residential relationships, such as where lifestyle issues are governed or administered by community associations in addition to being regulated by governmental entities.

The case had initially been dismissed by the Superior Court in Trenton. The Appellate Division, in overturning that decision, has now remanded the case back to the lower court to apply the new constitutional standard to the issues involved in Twin Rivers. The appeals court did uphold the dismissal of the Plaintiffs' complaint against the weighted voting system employed by the Twin Rivers Homeowner Association to elect its Board of trustees.

The case was handled by the Rutgers Law School Constitutional Litigation Clinic on behalf of the American Civil Liberties Union of New Jersey under the supervision of Rutgers Law Professor Frank Askin, who was assisted by dozens of Rutgers' law students during the 5-year course of the litigation. The case was originally filed in December 2000. The complaint raised claims solely under the New Jersey Constitution and state statutes. Under the United States Constitution, such communities are currently considered solely private property and their residents have no constitutional rights.

Professor Askin described the case as a national landmark, and said that homeowners groups across the country have anxiously awaited the outcome, and would now try to convince other states' courts to emulate New Jersey.

Ben Barros

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February 10, 2006 in Land Use | Permalink | Comments (2) | TrackBack (0)

Craigslist and the FHA

David Bernstein at the VC has a very interesting post on a suit against Craigslist for violating the anti-discrimination provisions of the FHA.  Discrimination in ads for roommates is always a big topic of discussion when I cover the FHA, and this case might make a good teaching tool for first-year property.  Like Bernstein, I don't have an informed view of whether the FHA should apply to on-line forums like Craigslist, but the case does highlight the consequences of not explicitly exempting roommates and houseshares from the advertising provisions of the FHA.

Ben Barros

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February 10, 2006 in Teaching | Permalink | Comments (0) | TrackBack (0)

Thursday, February 9, 2006

Iowa Restrictions on Sex Offender Residency

Over at Sentencing Law and Policy, Douglas Berman has a very interesting post on a statement by an Iowa prosecutors' group opposing Iowa's sex offender residency restrictions.  (A while ago, I linked to a NPR story that illustrates just how out-of-control these restrictions have become; I've also posted on private covenants against sex offenders).  Berman's post includes a number of useful links, including a link to the document issued by the Iowa County Attorney's Association.  Also, over at Concurring Opinions, Dan Filler has some good thoughts on the issue.

Ben Barros

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February 9, 2006 in Land Use | Permalink | Comments (0) | TrackBack (0)

Plantation Workers and Their Homes

Alfred Brophy sent along a pointer to an article in the Hawaii Advertiser about the impact of Del Monte pulling out of the Hawaii pineapple market.  To me, the most interesting thing about the story is the suggestion that pineapple workers might be able to buy for a below-market price the homes they have been renting from Del Monte:

If developer Peter Savio's idea becomes reality, pineapple workers who live in plantation housing at Kunia Camp will not be thrown into O'ahu's pricey real estate market when Del Monte Fresh Produce pulls out of the Islands.

Savio has been working for the past year to allow other Del Monte workers to buy 63 plantation homes at nearby Poamoho Camp at about one-third market price. Yesterday, Savio said he is putting together a nearly identical plan for the Del Monte workers at Kunia Camp in Central O'ahu who would otherwise likely lose their homes along with their jobs.

Del Monte workers who live in Kunia Camp's 70 to 90 plantation homes pay $200 to $300 in monthly rent, Savio said.

He estimated the homes are worth $150,000 to $200,000. According to Savio's plan, Del Monte pineapple workers would be able to buy the homes and land for $50,000, with no money down.

As Brophy noted, this scenario raises some issues that come up in the first year Property course.  To me, the efforts to allow the workers to stay in their homes bring to mind both Radin's personhood theory and Singer's reliance theory.  But what is particularly interesting to me is that it seems that a potential developer, rather than the former employer/landlord Del Monte, is making the effort to allow people to stay in their homes.  Assuming that the developer is a rational economic actor, I'd guess that he must see a benefit in allowing the workers to buy their homes at such dramatically below-market prices.  Perhaps this benefit would be in the form of goodwill that would reduce local community and regulatory opposition to his development plan.  This in turn makes me wonder whether a similar dynamic is present in condo-conversion situations.

As always, comments are welcome, but I'd particularly welcome thoughts from anyone who has more detail about what might be happening with the Del Monte property.

Ben Barros

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February 9, 2006 in Property Theory, Real Estate Transactions | Permalink | Comments (2) | TrackBack (0)

Cole on Kelo and Planning

Daniel H. Cole (Indiana University School of Law) has posted Why Kelo is Not Good News for Local Planners and Developers on SSRN.  Here's the abstract:

When the Supreme Court announced its 2005 decision in Kelo v. City of New London, few legal scholars were surprised at the outcome, which was premised on precedents extending back to the middle of the 19th century. Legal scholars were surprised, however, by the intense political reaction Kelo caused (fueled substantially by Justice O'Connor's hyperbolic dissent), as property-rights advocates, legislators (at all levels of government), and media pundits assailed the ruling as a death knell for private property rights in America.

Kelo's combination of relative legal insignificance and high political salience makes it an interesting case study in cross-institutional dynamics, i.e., the study of how the combination (and recombination) of political, legal, economic, and social forces determine the content of our laws. In this case, the Supreme Court's legal ruling in Kelo generated a political controversy, which is leading to legislative changes in the law. Those legislative changes, in turn, will affect future court decisions.

The primary purpose of this article is to explain the aftermath of Kelo as a socio-legal phenomenon, which is every bit as important as (perhaps more important than) the Supreme Court's ruling in the case. By paying close attention to the political and legislative aftermath of Kelo, we can understand why the Supreme Court's decision is not good news for local planners and developers, who are finding it significantly more difficult to engage in urban (re)development throughout the United States. By contrast, the plaintiffs who lost the Kelo battle, may have won the battle to keep their homes.

This article also has a secondary purpose, which is the place Kelo and its political reception in a larger, comparative institutional context. That context (which I develop fully in Political Institutions, Private Property and Judicial Review: A Comparative Institutional Analysis, forthcoming 2007 in the Supreme Court Economic Review) examines how political bodies, as well as courts, substantially protect private property rights. Along with other evidence from the United Kingdom and the several United States, Kelo's aftermath supports the proposition that, even in the absence of constitutional protections assiduously enforced protected by judges, the institution of private property would almost certainly survive.

Ben Barros

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February 9, 2006 in Land Use, Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 8, 2006

Proposed Kelo "Compromise"

The Washington Post reports that the Mayor of New London has offered a compromise to four of the homeowners who are still resisting the Fort Trumbull redevelopment plan:

The mayor of New London, where a fight over government seizing property led to a controversial U.S. Supreme Court ruling, is proposing a compromise for a group of homeowners.

Under a plan presented to the City Council Monday night, four people whose homes were seized for a private development would be allowed to stay. The city would own their properties and the residents would have to pay the city to live there.

Unsurprisingly, the homeowners aren't interested:

One of the property owners who sued over the Fort Trumbull seizures, Susette Kelo, said the mayor's proposal shows that the houses and the private development can coexist. But she and another plaintiff, Michael Cristofaro, said they aren't interested in paying rent for homes they owned.

"The ongoing battle of the last eight years has not been to allow us to live in our homes and pay rent to the city of New London until we die," Kelo said.

Hat tip:  Larry Eubanks

Ben Barros

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February 8, 2006 in Takings | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 7, 2006

Taking Blighted Property To Give To A Religious Institution

The Pennsylvania Commonwealth Court (an intermediate appellate court) decided an interesting takings case yesterday.  As described by the court, the core issue was "whether the Redevelopment Authority of the City of Philadelphia may exercise eminent domain power to condemn a private homeowner's property, located in an area of North Philadelphia that was certified as blighted, and then turn over the acquired property to a purely private religious organization to construct and operate a private independent school."  In a 4-3 decision authored by Judge Doris A. Smith-Ribner, the majority held that the taking violated the Establishment Clause.  The court applied a three-factor Establishment Clause test :  "[A] legislative enactment does not contravene the Establishment Clause if it has a secular legislative purpose, if its principal or primary effect neither advances nor inhibits religion, and if it does not foster an excessive government entanglement with religion."

The application of the three-part test shows unequivocally that the Authority's taking contravened the Establishment Clause.  First, the Authority's primary purpose was to acquire land for the Hope Partnership to make it available for the construction and operation of a private school.  Although the Authority argued that no contract is yet executed between the Authority and the Hope Partnership, such evidence is immaterial where the redevelopment proposal included the religious organization as the developer, the Planning Commission approved the proposal, City Council enacted the required ordinance and the Authority then proceeded with its taking.  Second, the Authority's land acquisition for the Hope Partnership had a primary religious effect because it directly aided the religious organization's mission to provide faith-based educational services, among other things, to residents in blighted areas.  The land acquisition had the primary effect of advancing religion.  Third, there is no dispute that the Authority jointly worked with the Hope Partnership in effectuating the taking.  The evidence shows that the Hope Partnership designated the land that it wanted and requested the Authority to acquire it, and the Authority proceeded to do so.  This joint effort demonstrates the entanglement between church and state.

Judge Dan Pellegrini authored the dissent.  He first asserted that even if there was an Establishment Clause problem it should only invalidate the transfer of the property to the Hope Partnership and not invalidate the taking.  He then argued that there was no underlying Establishment Clause violation:

First, it is well-settled that after the property is acquired and the blight is eliminated, that property can be conveyed to a private developer.  What the majority is suggesting is that the Authority, or for that matter, any governmental entity could not convey property that it has in its possession for a church, school or nursing home, a college run by a religious group or a shelter run by the Salvation Army because that would aid religion and violate the Establishment Clause.  To the contrary, what that outcome suggests is "viewpoint discrimination" against religious groups, which is an impingement on their First Amendment rights that has been condemned by the United States Supreme Court in Good News Club v. Milford Central School, 533 U.S. 98 (2001).

Second, based on what has been pled about the project, there is no possible Establishment Clause violation because there is no proof that the project is a religious enterprise, but only that is its being run by groups who have religious motivations to educate the poor.  Holy Child, Brothers of the Christian Schools and Sisters of Mercy, the religious orders that are sponsoring the project, state in their Vision Statement that the project is for the purpose of "creating an intergenerational, independent educational center in an economically depressed and educationally underserved area of North Philadelphia," with the intent to serve "a variety of religious backgrounds and beliefs."  Because Holy Partnership has not yet shown its intentions are otherwise, until such time we must take it at its word and give it the opportunity to provide the middle school, after-school programs and adult center for students from a variety of religious backgrounds and beliefs.

I am not knowledgeable enough on Establishment Clause issues to have a view on the merits, and would welcome comment from anyone with an informed (or uninformed) view on the issue.  I expect that the case will go up to the Pennsylvania Supreme Court.  Whatever the result, the case makes an interesting counterpoint to post-Kelo controversies about economic development takings of church properties.

UPDATE:  The Philadelphia Inquirer has a story on the case.

UPDATE 3/31:  The Redevelopment Authority of Philadelphia has filed a Petition For Appeal to the Pennsylvania Supreme Court.

Ben Barros

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February 7, 2006 in Takings | Permalink | Comments (1) | TrackBack (0)

Monday, February 6, 2006

Penalver on Kelo and Home as Castle

Eduardo Penalver (Fordham Law School) has posted Property Metaphors and Kelo v. New London:  Two Views of the Castle on SSRN.  Here's the abstract:

Much of the public outcry against the Supreme Court's decision in Kelo v. New London can be understood in terms of the public's commitment to the conception of the home as a castle. This familiar metaphor is typically viewed as aligned with libertarian conceptions of property and of the right to exclude, a conception that rules out the exercise of eminent domain altogether. A different understanding of the castle metaphor is possible, however, one rooted in notions of the dignity of homeownership. While such a dignitary understanding of the home as the castle remains true to the intuitions underlying the metaphor, it yields a more flexible stance towards eminent domain.

Ben Barros

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February 6, 2006 in Takings | Permalink | Comments (0) | TrackBack (0)

Radin From Stanford to Michigan

Brian Leiter reports that Margaret Jane Radin is retiring from Stanford and taking a position at Michigan.  The sad part of Leiter's post is his description of Radin's areas of expertise (intellectual property, Cyberlaw, feminist legal theory), which just reinforces the fact (already clear for a number of years) that the most interesting property theorist of the last thirty years (IMHO) has given up property for other fields.

Ben Barros

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February 6, 2006 in Law Schools | Permalink | Comments (0) | TrackBack (0)

Sunday, February 5, 2006

Weare Voters Decide Not To Try To Take Justice Souter's Home

From the Concord Monitor:

Weare voters put an end to plans to seize the home of U.S. Supreme Court Justice David Souter yesterday.

“He’s one of ours,” Walter Bohlin said, adding: “Why would we take something from one of ours?”

For seven months, Souter’s brown farmhouse and eight acres on Cilley Road have been the focal point of a nationwide response to a controversial U.S. Supreme Court decision. In June, Souter sided with a 5-4 majority in allowing a Connecticut city to seize private property by eminent domain and offer it to developers who could bring the community greater economic benefit.

Logan Darrow Clements, a California man who was incensed with the court’s ruling, devised a plot to give Souter his just desserts: take the justice’s property and convert it into a “Lost Liberty Inn.” Local residents petitioned to put the issue on the town’s March ballot.

The article asked the town to seize the land and create two trust funds: one to pay for any legal expenses and another to compensate Souter. The money would be raised by private donation.

The idea captured national media attention. Clements, a Los Angeles native, flew to Weare twice to hold rallies. Supporters deluged town officials with emails; some even sent checks and asked to reserve rooms at the inn.

Bohlin, who said the article was vengeful, recommended negating it by inserting the word “not.” Voters approved Bohlin’s suggestion by a secret ballot vote of 94-59.

Then another resident, Paul Doscher, suggested adding language to the article that urges state lawmakers to further restrict land seizures by eminent domain. The Legislature is considering several such proposals. The amended article forbids the town from seizing Souter’s land and asks Gov. John Lynch and lawmakers to bar the transfer of private property to private interests for economic development.

The amended article passed by a unanimous voice vote, followed by a loud cheer. Residents will vote on the measure next month.

Hat tips:  Dave Hoffman and Cheryl Humes (who really should be studying for the bar, not surfing the web).

Ben Barros

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February 5, 2006 in Takings | Permalink | Comments (1) | TrackBack (0)

So Much For Planning

Today's NY Times has a story on the ad hoc rebuilding of New Orleans:

Every day the line snakes down a spartan corridor on the eighth floor of City Hall here, as hundreds of people clutch a piece of paper inscribed with a fateful percentage that could force them to abandon their home.

The number is always over 50, and it means a house was so damaged in the flooding after Hurricane Katrina — more than half-ruined — that it faces demolition, unless the owner can come up with tens of thousands of dollars to raise it several feet above the ground and any future floodwaters.

But there is a way out, and that is why so many people stand in line every day, collectively transforming this battered city. "What you need to do is talk to a building inspector and get that lowered below 50 percent," a city worker calls out to the crowd. And at the end of the line, in a large open room down the hall, that is exactly what happens, nearly 90 percent of the time, New Orleans officials say.

By agreeing so often to these appeals — more than 6,000 over the last few months — city officials are in essence allowing random redevelopment to occur throughout the city, undermining a plan by Mayor C. Ray Nagin's rebuilding commission to hold off on building permits in damaged areas for several months until more careful planning can take place. That plan, greeted by widespread opposition, including from the mayor himself, is now essentially dead.

House by house, in devastated neighborhoods across the city, homeowners are bringing back their new-minted building permits and rebuilding New Orleans. As many as 500 such permits are issued every day, said Greg Meffert, the city official in charge of the rebuilding process.

And there is no particular rhyme or reason to who gets a permit, or consideration of whether their neighborhoods can really support its previous residents. One city building inspector, Devra Goldstein, called the proceedings on the eighth floor "really fly-by-night, chaotic, Wild West, get-what-you-want."

The floor, she said, represents "a plan by default." . . .

But there may be a steep price to the city's largess in allowing so many people to move back into flood plains without having to elevate their homes. Past federal flood insurance directors say the practice violates the program, which established the 50-percent rule to guide safe building in flood-prone areas. Most communities have adopted it as a minimum standard, say officials of the Federal Emergency Management Agency, which runs the flood program.

Ben Barros

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February 5, 2006 in Land Use, New Orleans | Permalink | Comments (0) | TrackBack (0)