PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

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Friday, December 7, 2007

Advice to Law Journals, Part 18

Freelibrary_philadelphia 18   publish your journal with open access on the web as well as in print. 

Just as journals should do everything possible to get content, they should do everything possible to facilitate distribution of that content.  This includes encouraging authors to post their articles on ssrn and bepress before publication.  I've heard some journals don't want to let authors post their articles on the web before the articles are published--or even after they're published.  To use a colloquial term, that's nuts.  Journals need to get scholarship into the hands (or before the eyes) of readers.

Endnote: The image of the Free Library of Philadelphia, from our friends at wikipedia, is supposed to illustrate making knowledge available in lots of ways at no cost.  Spent a lot of hours there when I was an undergraduate and some hours in more recent years when I was working in Philadelphia.  Not sure it's the best image for that--I wanted to use a picture of the new Alexandria Library, but couldn't find a decent one in the public domain.

Alfred L. Brophy
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December 7, 2007 in Law Schools | Permalink | Comments (0) | TrackBack (0)

Third Circuit RLUIPA/Eminent Domain Case

A divided Third Circuit panel recently decided Lighthouse Institute for Evangelism v. City of Long Branch, a RLUIPA case with a redevelopment/eminent domain twist.  The New Jersey Eminent Domain Blog has a recap of the case.  An excerpt:

In its precedent setting 96-page opinion, the Third Circuit ruled 2-1 in favor of the City of Long Branch against Reverend Kevin Brown and the Lighthouse Institute for Evangelism in their attempt to establish a church at 162 Broadway within the Broadway Corridor Redevelopment area. However, the court remanded the case to Judge William Walls in the U.S. District Court for further findings on the plaintiff's challenge to the C-1 ordinance, the zoning for the subject property prior to the adoption of the redevelopment ordinance and plan, under RLUIPA's Equal Terms provision. The court was unanimous that the C-1 ordinance violated RLUIPA. This will entitle the plaintiffs to damages, counsel fees, and costs. . . .

The majority opinion, written by senior Judge Jane Roth, affirms the entry of summary judgment by Judge William Walls of the U.S. District Court. The dissent, filed by Judge Kent A. Jordan, disagreed with the majority regarding the redevelopment plan ordinance. Judge Jordan said that both ordinances failed to treat religious and non-religious assemblies on equal terms and, therefore, violate the very purpose for which the RLUIPA statute was enacted.

Judge Jordan noted that both ordinances, as interpreted by Long Branch,  prohibit religious use categorically. Judge Jordan reasoned that, if the majority reading of RLUIPA were correct, local governments could effectively render RLUIPA meaningless. Both the Becket Fund for Religious Liberty and the Department of Justice Civil Rights Division argued as amicus in support of Reverend Brown and the Lighthouse Mission. This decision is at odds with other decisions regarding RLUIPA in other circuit courts and may well end up before the United States Supreme Court.

The location of houses of worship, temples, mosques, and evangelical congregations is an issue that comes up frequently in New Jersey. Protracted battles in Rockaway Township ensued over the site selection by Dr. David Ireland, pastor of the 5000-member Christ Church. That church, a predominantly African American evangelical congregation, sought to move from its Montclair location to the former Agilent site in Rockaway. The relocation of the church was vigorously contested by a group of local residents. In Wayne, an Albanian mosque pursued litigation against the township of Wayne because the planning board delayed the plaintiff’s land use application.

Ben Barros

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December 7, 2007 in Land Use, Recent Cases, Takings | Permalink | Comments (1) | TrackBack (0)

Wednesday, December 5, 2007

Van Dyke: Who Owns the Crown Lands of Hawaii

I'm looking forward to reading Jon Van Dyke's "Who Owns the Crown Lands of Hawaii."  Here's the description from the University of Hawaii press:

Van_dyke_2

The 1846 Mahele (division) transformed the lands of Hawai‘i from a shared value into private property, but left many issues unresolved. Kauikeaouli (Kamehameha III) agreed to the Mahele, which divided all land among the mô‘î (king), the ali‘i (chiefs), and the maka‘âînana (commoners), in the hopes of keeping the lands in Hawaiian hands even if a foreign power claimed sovereignty over the Islands. The king’s share was further divided into Government and Crown Lands, the latter managed personally by the ruler until a court decision in 1864 and a statute passed in 1865 declared that they could no longer be bought or sold by the mô‘î and should be maintained intact for future monarchs. After the illegal overthrow of the monarchy in 1893, Government and Crown Lands were joined together, and after annexation in 1898 they were managed as a public trust by the United States. At statehood in 1959, all but 373,720 acres of Government and Crown Lands were transferred to the State of Hawai‘i. The legal status of Crown Lands remains controversial and misunderstood to this day.

Here's the link to additional information about the book.

Rose Cuison Villazor

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

Tuesday, December 4, 2007

PA Supreme Court Overrides Zoning Objections to Casinos

The Pennsylvania Supreme Court recently ordered Philadelphia to approve the zoning for a casino.  From the Philadelphia Inquirer:

The Pennsylvania Supreme Court went over Philadelphia's head yesterday and cleared the way for construction to begin on the $550 million SugarHouse casino in Fishtown and Northern Liberties.

Finding "deliberate inaction" in City Council's longstanding failure to vote on SugarHouse's zoning and land-use requests, the court took it upon itself to issue the go-ahead. . . .

The city "ultimately has no discretion to preclude gaming," the court's opinion stated. "We conclude that the undisputed documentation establishes the deliberate inaction by Council for the purposes of delay."

The court ordered that SugarHouse's site, approved last December by the Pennsylvania Gaming Control Board, be granted the requisite zoning as a commercial entertainment district.

It also declared that SugarHouse's development plan, approved in May by the city Planning Commission, be given final approval with no further input from Council. . . .

"This really does not deter us. This actually infuriates us," said Debbie King, vice president of the Northern Liberties Neighbors Association. "We are outraged by the courts and the city government officials that are trying to jam these casinos down our throats. Where are our rights?"

Ben Barros

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December 4, 2007 in Land Use, Recent Cases | Permalink | Comments (1) | TrackBack (0)

Colorado Redevelopment Case

The Colorado Supreme Court recently decided Wheat Ridge Urban Renewal Authority v. Cornerstone Group, an eminent domain case involving the ability of the government to change its mind and back out of a redevelopment condemnation.  Ilya Somin and Tim Sandefur both have comments on the case.

Ben Barros

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December 4, 2007 in Recent Cases, Takings | Permalink | Comments (1) | TrackBack (0)

Monday, December 3, 2007

Glazer on Outlaws and the Right to Exclude

Elizabeth Glazer (Hofstra) has posted Rule of (Out)Law: Property's Contingent Right to Exclude on SSRN.  Here's the abstract:Meat_loaf

Anything for love;
I would do anything for love;
I would do anything for love;
But I wont do that;
I wont do that.

When Meat Loaf mystified scores of listeners in the early nineties by his logically inconsistent song lyrics, he almost certainly did not look to property law when answering his fans most popular question. This Essay does not argue that he should have. However, Meat Loaf's (in)famous song lyrics may be able to shed light on what has become a popular question among property fans, namely what is the nature of the right to exclude.
This Essay argues that an owner's invocation of the right to exclude depends upon the owner's invocation of other rights in the property bundle. In so arguing, the Essay analyzes current efforts to understand the right to exclude through the lens of the property outlaw, whom Eduardo Moisés Peñalver & Sonia K. Katyal profile in their recent article, Property Outlaws. The Essay highlights the effects of Professors Peñalver's and Katyal's argument on the nature of property's right to exclude. After summarizing recent efforts to understand the right to exclude, describing Peñalver's and Katyal's argument that outlaw behavior has a special and socially productive function in property law, and explaining the connection between their article and the right to exclude, the Essay concludes by proffering evidence that Meat Loaf may have audited a first year property course, or at least that he incorporated insights about property law into his music.

Gotta respect the Loaf.  Photo from Wikipedia.

Ben Barros

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December 3, 2007 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Advice to Law Journals: Part 17

Franklin_printing_press 17    edit outside authors sparingly

We're now turning to advice to journals once they have accepted a piece.  I thought you might like a picture of Benjamin Franklin's printing press from our friends at project Gutenberg to illustrate this point: it's a mistake to edit heavily the non-student authors.

Alfred Brophy

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December 3, 2007 in Law Schools | Permalink | Comments (0) | TrackBack (0)

Interesting Sign Dispute, With Eminent Domain Twist

From the Saint Louis Post-Dispatch:

Supporters say it's a political statement, maybe even art. The city says it's too big, a nuisance that needs to be removed.

Either way, a two-story mural decrying eminent domain is testing the boundaries of the First Amendment, sparking a federal lawsuit that challenges the city's intricate zoning code.

At issue is a tricky constitutional dilemma — fighting clutter versus protecting free speech — that experts say could force St. Louis to rewrite its laws regarding outdoor signs. . . .

Painted on the side of a brick apartment building near Soulard, the mural faces drivers heading downtown on Gravois Avenue. It advocates an end to "eminent domain abuse," the mantra of veteran activist Jim Roos.

Roos is among the state's leaders in the fight against eminent domain, an issue that has gained visibility since a 2005 Supreme Court ruling that cities can use eminent domain to promote economic development. He has testified in Jefferson City and clashed with city officials who support eminent domain. . . .

In April, the building division cited Roos for having an illegal sign. At about 360 square feet, the eminent domain mural is more than 10 times larger than the size allowed for signs in that section of the city.

Three surrounding neighborhood associations have submitted letters opposing the sign, as did the local alderman, Phyllis Young.

"He should rent a billboard," Young said.

Roos fought the citation, claiming the city was targeting him not because of the size of his sign, but because of its message.

"I think if it said, 'Go Cardinals,' we wouldn't have any problems," Roos said.

The city routinely approves exemptions for large signs. On the same day a city panel rejected Roos' claim, it granted an appeal by Laclede Gas to display a sign of over 1,000 square feet on the utility's downtown headquarters.

Even so, content is not the issue, city officials say — it's keeping the city tidy.

"Can you imagine what our city would look like if everyone were allowed to paint a 363-square-foot, two-story sign on their buildings?" asked City Attorney Patti Hageman.

Roos has taken his case to federal court, where he has drawn the aid of the Institute for Justice, a libertarian advocacy group in Arlington, Va.

Ben Barros

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December 3, 2007 in Land Use, Recent Cases, Takings | Permalink | Comments (0) | TrackBack (0)

Shavell on Government Land Acquisition

Steven Shavell (Harvard Law School) has posted Eminent Domain versus Government Purchase of Land Given Imperfect Information about Owners' Valuations on SSRN.  Here's the abstract:

Governments employ two basic policies for acquiring land: taking it through exercise of their power of eminent domain; and purchasing it. The social desirability of these two policies is compared in a model in which the government's information about landowners' valuations is imperfect. Under this assumption, the policy of purchase possesses the market test advantage that the government obtains land only if an owner's valuation is low enough that he is willing to sell it. However, the policy suffers from a drawback when the land that the government needs is owned by many parties. In that case, the government's acquisition will fail if any of the owners refuses to sell. Hence, the policy of eminent domain becomes appealing if the number of owners of the land is large. This conclusion holds regardless of whether the land that the government seeks is a parcel at a fixed location or instead may be located anywhere in a region.

Ben Barros

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December 3, 2007 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)