Friday, April 20, 2007

Post-Kelo Eminent Domain Reform

Reason Magazine on-line has a short essay on post-Kelo eminent domain reform by Ilya Somin (George Mason).

Ben Barros

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April 20, 2007 in Takings | Permalink | Comments (0) | TrackBack (0)

Thursday, April 19, 2007

Rose on Federalism and Takings

Carol M. Rose (University of Arizona) has posted What Federalism Tells Us About Takings Jurisprudence on SSRN.  Here's the abstract:

This paper, one of several in a symposium on “constitutional niches,” discusses a niche within a niche: federalism considerations in theories of governmental takings of property. Several property theorists have argued that larger-scale and smaller-scale legislative bodies should be treated differently in takings jurisprudence, since these differently-scaled legislatures are likely to behave differently in dealing with individuals' property, and to respond differently to compensation requirements. The author agrees with this general proposition, but she sharply disagrees with the centralist drift of most of this literature, which would favor the national legislature while imposing strict takings requirements on local legislatures; she argues that these analyses overlook the existing constraints on smaller-scale governing bodies. Meanwhile, the courts have paid very little overt attention to federalism concerns of any kind in takings jurisprudence, string-citing cases about local, state, and national governments without distinguishing them. Instead of responding to federalism (and other) taking theories, actual takings jurisprudence vacillates between leniency toward all legislatures and contempt for them. The author argues, however, that federalism considerations might help courts to analyze the legislative process, and might be incorporated into takings jurisprudence by a distinction between Fifth Amendment and Fourteenth Amendment takings.

Ben Barros

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April 19, 2007 in Recent Scholarship, Takings | Permalink | Comments (1) | TrackBack (0)

Wednesday, April 18, 2007

Turnbull on Sustainable Urban Communities

Shann Turnbull (Macquarie University - Asia Pacific Research Institute) has posted A Framework for Designing Sustainable Urban Communities on SSRN.  Here's the abstract:

The objectives of the paper are to show how the sustainability of urban settlements can be improved by treating as a variable the design of: (a) property rights to realty, corporations and currencies and: (b) their communication and control governance architecture. System science provides the basis for showing that the governance of complexity is improved by increasing the richness and variety of communication and control channels. The new variables introduced also provide a way to integrate the design of the built environment into the design of its governance architecture. The scope of orthodox economic analysis is extended to include the value of assets and liabilities to provide additional feedback signals. This more holistic economic framework increases the richness of the "semiotic" channel of social communication and control that complements those based on senses, words and prices. The analysis reveals self-reinforcing feed forward and feedback channels between the use and maintenance of the built environment and its governance architecture not available in less holistic design frameworks. This identifies the need for urban planners to extend their discipline to become governance architects and how the knowledge of system scientists can be applied to improve the design of capitalism. The analysis indicates how a design paradigm that does not accept the nature of property rights as a given, but a design variable, can enhance the ability towns or suburbs to become self-financing, self-governing political units. It also shows how capitalism can be made more efficient, equitable, responsive and democratic.

Ben Barros

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April 18, 2007 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 17, 2007

Billion-Dollar Housing Sale and the Takings Clause

I want to thank Ben and Al for welcoming me to PropertyProf.  I’ve long been a fan, and hope to have an interesting post or two to add from time to time.  So, here goes…

The New York Times reported over the weekend on the latest development in a proposed $1.3 billion sale of Brooklyn’s Spring Creek Towers, better known as Starrett City.  Back in February, Clipper Equity submitted the winning bid to purchase Starrett City, the nation’s largest federally subsidized housing development, with nearly 6,000 units in 46 buildings housing roughly 14,000 people.  In March, HUD rejected the initial proposed structure for the sale, and the New York State Division of Housing and Community Renewal rejected a subsequent proposal.  According to the Times, however, the sale may still go through.

This transaction raises a number of important policy questions, but in particular is emerging as a poster child for the issue of housing preservation—how to keep units that house low- and moderate-income residents developed with public subsidies from moving to market-rate (and, in places like New York, high-end) housing.   As the Urban Prospect has noted, Starrett City was developed with a combination of federal subsidies under the Section 236 program as well as with rent subsidies under the Rental Assistance Program, a precursor to the current project-based Section 8 program.  Starrett City also received state subsidies under New York’s Mitchell-Lama program, and city real estate tax abatements. 

The great irony of the myriad attempts to block the sale is that Starrett City’s current owners appear to have the right to exit from the federal and state programs that helped build the development.  Legislation recently introduced in New York would extend rent stabilization to projects like Starrett City upon exit from the Mitchell-Lama program, but the owners have much flexibility, especially over the long run, to shift Starrett City away from its original purpose.  (Clipper Equity has signaled a commitment to affordable housing at Starrett City, but the question remains whether that commitment is binding.)

From a property law perspective, these tussles over whether Starrett City will be sold and the fate of its 14,000 tenants echo an earlier round in housing preservation policy that implicated the Takings Clause.  In Cienega Gardens v. United States, 331 F.3d 1319 (Fed. Cir. 2003), the Federal Circuit reviewed claims that two federal statutes – the Emergency Low Income Housing Preservation Act of 1987 and the Low-Income Housing Preservation and Resident Homeownership Act of 1990 – had abrogated exit rights that owners had under both the Section 236 program (used at Starrett City) and a similar federal program, Section 221(d)(3).  Both programs originally allowed owners to prepay their subsidized mortgages after twenty years and thus lift affordability requirements, but the 1987 and 1990 legislation required HUD approval to exercise that exit right.  The Federal Circuit held that this limitation on prepayment constituted a taking under the Fifth Amendment.  As a result, preservation strategies have shifted—as the legislation currently pending in Albany would do in part—towards creating incentives for owners and developers to remain voluntarily in the programs that created the housing in the first place.

The Starrett City controversy highlights one underlying fact in housing policy:  designing housing subsidies with built-in expiration dates seriously risks the significant public investment that has gone into the stock of affordable housing.

Nestor Davidson

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April 17, 2007 in Real Estate Transactions, Takings | Permalink | Comments (1) | TrackBack (0)

Monday, April 16, 2007

Slate on Selling Organs

Over at Slate, Will Saletan has an interesting article on markets in organs.

Ben Barros

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April 16, 2007 in Property Theory | Permalink | Comments (0) | TrackBack (0)

Guest Blogger: Nestor Davidson

I'm delighted that Nestor Davidson, who teaches at the University of Colorado law school, will be joining us for a guest blogging stint.  Nestor clerked for Judge David S. Tatel on the D.C. circuit and for Justice Souter on the Supreme Court, then worked at HUD and at Latham & Watkins as a real-estate lawyer.  His recent publications include The Problem of Equality in Takings, 102 Nw. U. L. Rev. (forthcoming) (2008); Cooperative Localism: Federal-Local Collaboration in an Era of State Sovereignty, 93 Va. L. Rev. (forthcoming) (2007); and Relational Contracts in the Privatization of Social Welfare: The Case of Housing, 24 Yale L. & Pol’y Rev. 263 (2006).  I hope he'll talk about his scholarship while he's with us.


Ben Barros

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April 16, 2007 in About This Blog | Permalink | Comments (1) | TrackBack (1)

Rybczynski on Homes at Slate

This week, Slate is posting exerpts from Witold Rybczynski's latest book, which traces the development of an American suburb.  Today's post asks why people live in homes, as opposed to other types of structures.  Rybczynski is one of my favorite writers, and his earlier book on home was very influential on my article on Home as a Legal Concept.  Check out the excerpts this week at Slate!

UPDATE:  The second post in the series is on the ranch house.

Ben Barros

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April 16, 2007 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Radford on Penn Central

R.S. Radford (Pacific Legal Foundation) has posted Instead of a Doctrine: Penn Central as the Supreme Court's Retreat from the Rule of Law on SSRN. Here's the abstract:

When the Supreme Court handed down its decision in Penn Central Transportation Co. v. City of New York, it had not decided a regulatory takings case in over half a century. Penn Central's tortured and opaque analysis did little to move takings jurisprudence beyond Justice Holmes' cryptic 1922 maxim, “ if regulation goes too far it will be recognized as a taking.” The Court did little to elaborate on the meaning or weight of Penn Central's vague criteria – the nature of the government action, the economic impact of the regulation, or the owner's distinct investment-backed expectations – preferring instead to enunciate new bright line rules in Loretto v. Teleprompter Manhattan CATV Corp. and Lucas v. South Carolina Coastal Council. It even appeared to abandon Penn Central's terminology altogether in Agins v. City of Tiburon. But in the waning years of the Rehnquist Court, most of the newer formulations of takings doctrine were undermined, scaled back, or abandoned altogether in decisions like Tahoe-Sierra Preservation Council, v. Tahoe Regional Planning Agency and Lingle v. Chevron, USA, Inc. It now falls to the Roberts Court to go back three decades and begin fleshing out the meaning of Penn Central as the Court's “polestar” of regulatory takings law for the 21st century.

Ben Barros

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April 16, 2007 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)