PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

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Friday, June 20, 2008

Rose on Public Infrastructure and Environmental Resources

Carol M. Rose (Arizona) has posted Big Roads, Big Rights: Varieties of Public Infrastructure and Their Impact on Environmental Resources on SSRN.  Here's the abstract:

Two types of public infrastructure-roads and property rights-are often thought critical to economic development; this article compares their impacts on the natural environment. Both roads and property rights draw unfamiliar persons to remote areas, undermine existing informal resource practices, and enhance wide commercial trade, creating wealth but also reducing local resource diversity. New kinds of property rights hold much promise for environmental protection, but unlike roads and conventional property rights, environmental property rights would be tasked with curtailing commerce, as in roadless areas and caps on resource use. This sharp divergence from the traditional commercial mission of public infrastructure can limit support for environmental property rights, creating an opening for fuzzier and more consultative versions of environmental property.

Ben Barros

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June 20, 2008 in Land Use, Natural Resources, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Parent on Takings Constraints

Colin P. Parent (DLA Piper) has posted Takings Constraints: Mechanisms to Minimize the Uncompensated Increment and Limit the Government's Power to Take Property on SSRN.  Here's the abstract:

The breadth of takings scholarship has left useful ideas diluted amongst an ocean of theories. This article addresses that problem by creating a clear and useful taxonomy for takings constraints by which takings theories can be categorized and analyzed. These new categories are (1) compensatory restraints on how much government must compensate property owners, (2) categorical constraints which absolutely limit which property can be taken and for what purposes, and (3) processes constraints which limit how property is condemned.

Furthermore, this article suggests that compensatory restraints are appropriate to minimize economic harms, and categorical constraints are only appropriate to minimize the destruction of property owners' autonomy. This new theory is only possible with the use of the new taxonomy to describe takings constraints.

This paper does not attempt to argue which interests of property should be protected - a topic already developed in the scholarship. However, its new theory provides a framework for policymakers to apply when deciding what takings constraints to use when seeking to advance their substantive values in property, whatever those values may be.

Ben Barros

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June 20, 2008 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Holdouts and Personal Values

Eduardo Penalver highlights a great story about a woman in Seattle who refused to sell out to private developers.  The story features a great holdout photo of the woman's home surrounded by new development.

Ben Barros

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June 20, 2008 in Takings | Permalink | Comments (0) | TrackBack (0)

Thursday, June 19, 2008

Who Owns Thomas Jefferson's Grave?

Thomas_jefferson_grave This ranks right up there with "Who's Buried in Grants Tomb?"  In light of the controversy over access to Jefferson's grave, which I've been following and gotten involved in a little bit, I now have a question
that's worthy of a final examination in wills.  First, some background on this.

In a post over at Oxford University Press' blog about access to Jefferson's grave, I wrote, following a New York Times story, that the cemetery is owned by some of Jefferson's heirs.  In a comment to the post, the current president of the Monticello Association (which manages the cemetery) says, the cemetery's owned by all of Jefferson's descendants.  ("The Graveyard is not owned by SOME of the descendants of Thomas Jefferson, but by ALL of the descendants of Thomas Jefferson.")  The truth of that turns on a couple of things, apparently, including whether the issue of Sally Hemings are also the issue of Thomas Jefferson.

And it also turns on a reservation of the graveyard way back in the 1830s when Monticello was sold out  by Jefferson's family.  So let's look a little more deeply at this puzzle.  Apparently the last recorded reference to the cemetery in a deed was when Monticello was sold in the 1830s.  At that point, the family of Thomas Jefferson Randolph reserved the cemetery:  "The parties reserve to themselves the family graveyard with free access to the same."  Nice!  This is an explicit reservation of what is an implied right of access in Virginia and a bunch of other states, too.  There is also an explicit reservation of the title to the cemetery.

The Monticello Association reports on their website that Thomas Jefferson Randolph's mother's will in 1836 left the residuary of her property to Thomas Jefferson Randolph and that Randolph's will failed to dispose of the property (so it presumably went, through partial intestatacy, to Randolph's heirs).  As the Monticello Association website points out:

It was under this last clause that the graveyard became the property of Thomas Jefferson Randolph when his mother died on October 10, 1836. ...

Thomas Jefferson Randolph died October 8, 1875, and was buried in the little plot laid out a hundred and two years before, and where there now existed nearly fifty graves. In his will, dated January 24, 1875, he made a number of specific bequests of silver, portraits, and certain items which had belonged to Mr. Jefferson, and then he provided carefully and explicitly for his unmarried and widowed daughters in his bequest to them of Edgehill and of its adjoining lands. However, he made no mention of the Monticello graveyard, which he had inherited from his mother. Thus it became the undivided property of all heirs, and so it remains. This divided ownership contributed in part to the difficulties faced by the family within a few years, when Congress responded to the increasing public concern about the deplorable conditions at Monticello.

One question here, which will be easily answered when someone looks at T.J. Randolph's will: wasn't there a residuary clause?  The Monticello Association website implies not (or if there was that it distributed the property to all his heirs, by which I think they them mean his issue).  If there was no residuary clause, then I guess that the cemetery descended to T.J. Randolph's issue and now, many generations later, they own in varying shares the property.  (This is implied in this 1882 New York Times story as well.)

The Monticello Association--a 501(c)(3) association--is currently managing the gravesite.  So I'm curious what their relationship to the cemetery is.  Have all the heirs given them the authority to manage the graveyard?  I'm guessing that there may be a deed to the Jefferson descendants somewhere and that the Association is the representative of the descendants.  But what happens when other putative descendants (like the issue of Jefferson and Hemings) appear?  They wouldn't take as heirs of T.J. Randolph (and presumably wouldn't have the right to be buried in the cemetery); but they still have the right to visit the cemetery under the Virginia cemetery access statute.  Makes for some mighty interesting questions in cemetery law.

But then a google led to this story from the New York Times in 1911, which alludes to another grant.

The public domain image of Thomas Jefferson's grave is from wikipedia.

Alfred Brophy

June 19, 2008 | Permalink | Comments (1) | TrackBack (0)

The Governance of Gramercy Park

Gramercypark2007 This morning's New York Times brings a story about the governance of Gramercy Park--which is so strict that few people use it.  Shades of Poe's The Domain of Arnheim?!  Ah, what would Thomas Jefferson have to say about this (or here)?

The public domain image of Gramercy Park is from our friends at wikipedia.

Alfred Brophy

June 19, 2008 | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 18, 2008

GELPI Takings Conference Save-The-Date

I recently received this notice from GELPI:

On November 6-7, 2008, the Georgetown Environmental Law & Policy Institute at Georgetown University Law Center and Stanford Law School’s Environmental and Natural Resources Law & Policy Program will host the 11th Annual Conference on Litigating Takings and Related Legal Challenges to Land Use and Environmental Regulation.

The conference, to be held at Stanford Law School in the San Francisco Bay area, will examine how the Takings Clause and related legal doctrines may undermine the public’s ability to address emerging environmental, public health, and growth management challenges.  A particular focus of this year’s conference will be the potential takings implications of public policy initiatives designed to mitigate and adapt to global warming.  The conference will also address recent legal developments in takings law and related fields, including the latest legal and policy fall out from the Supreme Court’s landmark decisions in Lingle v. Chevron USA and Kelo v. City of New London.  Another featured topic will be future prospects for property rights ballot measures along the lines of Propositions 98 and 99 in California and other states.

Conference faculty will include a mix of leading academic scholars and expert practitioners.  The proceedings of the conference will be published in the Stanford Environmental Law Journal.

Ben Barros

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June 18, 2008 in Conferences, Takings | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 17, 2008

New PLF Blog on The Endangered Species Act

This is outside of my main area of interest, but those of you interested in environmental issues might want to check out the Pacific Legal Foundation's new blog on the ESA.  The PLF folks, of course, have a clear agenda, but their analysis of property-related issues is often interesting and cogent.

Ben Barros

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June 17, 2008 in Natural Resources | Permalink | Comments (0) | TrackBack (0)

Epstein on Kelo

Richard A. Epstein (Chicago) has posted Public Use in a Post-Kelo World on SSRN.  Here's the abstract:

The aftermath of Kelo gives rise to urgent land use issues, both theoretical and historical. On the former, I argue that the analysts should be aware of the close and positive connection between restrictive land use policies on the one hand and a willingness to condemn parcels for private development on the other. The inability to overcome local opposition with private development forces developers to get in essence, pre-acquisition approval through public condemnation. One way, therefore, to ease the pressure on public use is to retreat from aggressive land use regulation to a scheme that more closely approximates that of the common law rules on nuisance and restrictive covenants, which will be hard to achieve since local systems of voting give little weight to the interest of potential buyers who live outside the governance area. Historically, this opportunity was lost when the United States Supreme Court in Berman v. Parker distanced itself from the thoughtful decision of Judge Prettyman below in Schneider v. District of Columbia, which sought to cabin in the ends for which the eminent domain power could be used, even if it gave too much deference to local governments on any means/ends connections.

Epstein graciously refers to my essay on the Berman and Midkiff conference notes, which discussed Judge Prettyman's opinion in Schneider.  In this essay, Epstein develops an interesting substantive defense of Prettyman's position.  Given the author, obviously a must-read for anyone interested in public use issues.

Ben Barros

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June 17, 2008 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Penalver on the Ambiguities of Gentrification

Over at Prawfs, Eduardo Penalver has a great post on gentrification.  Eduardo's post is reacting to a story from the NY Times on gentrification in Harlem.

Ben Barros

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June 17, 2008 in Recent Scholarship | Permalink | Comments (1) | TrackBack (0)

Landlord Conversion of 20-unit Building Into Private Residence

Over at the Co-op, Frank Pasquale has an interesting post on a NYC dispute featuring a landlord who is trying to convert a 20-unit building into a private residence.

Ben Barros

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June 17, 2008 in Real Estate Transactions, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Monday, June 16, 2008

Marcello on Community Benefit Agreements

David Marcello (Tulane) has posted Community Benefit Agreements: New Vehicle for Investment in America's Neighborhoods on SSRN. Here's the abstract:

Community Benefit Agreements (CBAs) are a relatively new feature of the land use planning process for major public-private developments. The CBA is a legally enforceable contract negotiated directly between the developer and a broad-based community coalition. Developers agree to provide valuable benefits to the community (e.g., park space or recreational facilities, a living wage for workers), and they receive in turn valuable support from the community for the proposed development. Both signatories to a CBA want to see the project built (otherwise, the community gets no benefits), so CBAs are not a vehicle for NIMBY-style ("not in my back yard") opponents. CBAs put developers into a direct dialogue with representatives of the community most immediately impacted by their proposed project, thereby enhancing the "democratic legitimacy" of public-private partnership agreements that are usually negotiated between governmental officials and private developers with little or no participation by nongovernmental stakeholders. Public officials, private developers, and community organizations share a common interest in negotiating and executing CBAs. Consequently, land use lawyers need to understand how they can assist their public, private, and nonprofit clients in conducting CBA negotiations.

Ben Barros

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June 16, 2008 | Permalink | Comments (0) | TrackBack (0)

Scarborough on Property Purchase v. Payment in Kind in Taxation of Property Exchanges

Robert H. Scarborough (Freshfields Bruckhaus Deringer) has posted Property Purchase or Payment in Kind? The Oxford Paper Conundrum on SSRN.  Here's the abstract:

If a taxpayer undertakes an obligation or assumes a liability in exchange for property, how is the transaction characterized? Did the taxpayer buy the property, paying with its promise? Or did the taxpayer receive the property as payment for its undertaking or assumption?

To anyone other than a tax lawyer, the question may seem semantic, but the tax consequences of the two ways of seeing the same facts are quite different. Under the first characterization (the Purchase Model), the taxpayer can have no income from receiving the property, since a purchase (even at a bargain) is not a taxable event. The taxpayer‘s costs are treated as purchase price and are generally capitalized as incurred, except to the extent treated as interest on a deferred payment obligation. Under the second characterization (the Fee Model), the taxpayer is deemed to receive a payment equal to the value of the property as consideration for what it has agreed to do, and then takes that as its basis in the property. This deemed payment may or may not produce current income, depending on whether the obligation is treated as debt, or if not, on the rules governing advance payments for the kind of obligation undertaken. The taxpayer then takes its costs into account as costs of performing its obligation, the timing of recognition of which depends on the kind of obligation, rather than as purchase price of property.

Whether to apply the Fee Model or the Purchase Model is a persistent issue, and it has arisen repeatedly since the early days of the income tax. This question was presented squarely by the 1936 transaction considered in the three Oxford Paper decisions, which are discussed in detail in this paper. It was hotly debated by the Justice Department and the Internal Revenue Service in 1970, and was faced again recently by the Treasury Department and the Service in drafting 2006 regulations on application of section 338 to taxable acquisitions of insurance companies.

The Oxford Paper issue is also a pervasive one, arising in a variety of contexts. Commentators have discussed extensively the law‘s general adoption of the Purchase Model in one setting: taxable acquisition of the assets of a business subject to its liabilities, and some have considered in detail arguments for and against adopting the Fee Model in that setting. But the same issue can arise in other settings where, as in Oxford Paper, only one obligation and one asset are involved and the obligation is not related to the asset.

This paper illustrates the choice between the Purchase Model and the Fee Model with a series of examples showing how it can arise in a variety of settings. This paper then surveys the judicial decisions and IRS rulings that have faced this issue, showing that - with a few notable exceptions - they have adopted the Purchase Model. Finally, this paper considers whether there is a "right answer", from a tax policy standpoint, as to which of these two models should apply and concludes that there is not.

Ben Barros

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June 16, 2008 in Real Estate Transactions, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

McLaughlin on Eminent Domain, Open Space, and Electric Transmission Corridors

Nancy A. McLaughlin (Utah) has posted Condemning Open Space: Making Way for National Interest Electric Transmission Corridors (or Not) on SSRN. Here's the abstract:

The Energy Policy Act of 2005 authorizes the Secretary of Energy to "designate any geographic area experiencing electric energy transmission capacity constraints or congestion that adversely affects consumers as a national interest electric transmission corridor." In 2007, the Secretary formally designated the Southwest Area National Corridor (which includes counties in California and Arizona) and the Mid-Atlantic Area National Corridor (which includes counties in Ohio, West Virginia, Pennsylvania, New York, Maryland, and Virginia, as well as all of New Jersey, Delaware, and the District of Columbia). Once the Secretary designates a National Corridor, the Federal Energy Regulatory Commission can issue permits to public utilities authorizing them to exercise the power of eminent domain to acquire rights-of-way to construct electric transmission facilities in the corridor. Questions have been raised in Virginia regarding the extent to which public utilities can exercise this power of eminent domain to condemn land encumbered by conservation easements. Some worry that land encumbered by conservation easements, which by definition is largely undeveloped, will be a natural target for condemnation because of the political difficulties associated with locating steel towers supporting high voltage transmission lines in populated areas. Others believe that encumbering land with a conservation easement can insulate the land from condemnation. This article discusses the extent to which public utilities may or may not have the right under either federal or Virginia law to condemn conservation easements.

Ben Barros

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June 16, 2008 in Land Use, Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)