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Saturday, November 10, 2007

Claims of Pretextual Takings Post-Kelo

The D.C. Court of appeals recently held that a property owner can challenge a taking based on a blight designation as pretextual.  I've had some e-mail discussion with some folks about the case (Franco v. National Capital Revitalization Corp, 930 A.2d 160 (D.C. 2007)) and whether this type of challenge is the kind of claim of pretext that the Kelo majority expressly contemplated or whether it is an end-run around Kelo.  I'm waffling, and need to think about it more, but wanted to note the decision.  Another interesting issue, which I also need to think about more, is whether this creates a split with the Second Circuit's recent Didden decision.

UPDATE:  Ilya Somin at the VC has a very thoughtful post on this case.  Ilya is more up on this issue than anyone I know.  Check it out.

Ben Barros

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November 10, 2007 in Recent Cases, Takings | Permalink | Comments (2) | TrackBack (2)

Thursday, November 8, 2007

Oregon Voters Limit Measure 37

Over at PrawfsBlawg, Eduardo Penalver has the details.  A taste:

Under the new law, landowners who can establish that regulation caused their property values to decline will be entitled to some relief, but not the virtually complete liberation from land use regulation that some owners enjoyed under Measure 37.   Owners will be entitled to build one to 10 houses on burdened rural parcels under various scenarios, but typically not more than three.  In effect, the measure tries to strike something of a middle ground, permitting some rural development in order to address horror stories like Dorothy English's inability to build a home for her grandson, but prohibiting new hundred-home subdivisions and commercial and industrial development in rural areas outside of Oregon's urban growth boundaries.   

Ben Barros

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November 8, 2007 in Takings | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 7, 2007

Salkin on Community Benefit Agreements

Patricia Salkin (Albany Law School) has posted Understanding Community Benefit Agreements: Opportunities and Traps for Developers, Municipalities and Community Organizations on SSRN.  Here's the abstract:

A Community Benefits Agreement (CBA) is a private contract negotiated between a prospective developer and community representatives. In essence, the CBA specifies the benefits that the developer will provide to the community in exchange for the community's support of its proposed development. The validity and enforceability of CBAs has yet to be tested in court, but some have expressed concerns that the agreements will not hold up. Chief among the questions as to the validity of CBAs is whether community groups provide any real consideration for these contracts. Questions have also been raised as to who can enforce a CBA's provisions. Enforceability questions may also concern which parties are bound by developers' promises. Because the process of negotiating CBAs often involves local governments or elected officials, CBAs may also raise legal issues related to the propriety of planning process. While CBAs represent an opportunity to accomplish redevelopment projects in a manner that achieves social equity and engages all community stakeholders in the project with an eye towards designing a process and product that can be win-win for communities, myriad legal issues are present for all involved participants. This paper provides an overview of legal and policy implications of CBAs, highlighting how this new tool is currently utilized in a number of communities across the country.

Ben Barros

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November 7, 2007 in Land Use, Real Estate Transactions, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, November 5, 2007

Making Apartments Smoke Free: Erosion of Private Property Rights?

The New York Times today reported that an increasing number of U.S. cities have enacted legislation restricting the ability of residents in multi-unit residential buildings to smoke inside their apartments. (It also discussed increased anti-smoking restrictions in public housing units.)

Both public and private efforts to restrict smoking inside these residential buildings seek to minimize the effects of secondhand smoking and protect the rights of residents (who are against smoking) to enjoy their property.  Their efforts, however, consequently impact the rights of property owners.   Although there are private real estate companies that have adopted smoke-free policies in their apartments, others in the real estate industry have complained that smoke-free legislation constitutes "an erosion on private property rights."

In at least one case last year, residents prevailed in a non-payment of rent dispute after they left their apartment because the owner and the building management failed to address their complaints about their neighbor's smoking.  Apparently, secondhand smoke began seeping into their unit. The judge explained that, "secondhand smoke can constitute a breach of the warranty of habitability because under [New York]’s Real Property Law, every written and oral lease contains an implicit warranty that the premises are fit for human habitation and that tenants cannot be subjected to any conditions detrimental to life, health or safety."

Rose Cuison Villazor

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November 5, 2007 | Permalink | Comments (1) | TrackBack (0)

Salkin on Sprawl

Patricia Salkin (Albany Law School) has posted Squaring the Circle on Sprawl: What More Can We Do?: Progress Towards Sustainable Land Use in the States on SSRN.  Here's the abstract:

With almost ten years of nationwide dialogue and experimentation with the legal implementation of smart growth concepts at the state and local levels,this paper pauses to consider whether and to what extent success has been realized. The one certainty in this dynamic intersection of land development and conservation is that there is no one best model adaptable to all fifty states. Rather, to accommodate national diversity in local government structure, cultural relationships of people to the land, and differences in geography and a sense of place, the best lesson learned is that advocates and lawmakers alike must shape and adopt politically palatable policies, programs, and regulations to best fit their unique jurisdictional sustainability needs. However, with the realization that a lot of innovation is taking place at the state level in furtherance of smart growth initiatives also comes the reality that if states fail to continue to promote and refine these programs, the United States will lose the war on sustainability. This paper examines the recent efforts by states to provide localities with the tools necessary to curb sprawl and to promote sustainable communities.

Ben Barros

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November 5, 2007 in Land Use, Recent Scholarship | Permalink | Comments (1) | TrackBack (0)