Friday, August 15, 2008

And More Burial News--and Building--in Kauai

Thanks to Carl Christensen for this article, "Building may continue atop burials,"from the Honolulu Star Bulletin

California businessman Joseph Brescia will be able to continue building his home at Naue Point, at least for now, a circuit judge ruled yesterday.

A hearing on a request for a preliminary injunction, filed by the Native Hawaiian Legal Corp. to stop construction of the house, was not finished after about six hours of testimony in court yesterday, and has been continued until Sept. 3.

But an oral motion to keep Brescia from continuing the project until September was denied, Judge Kathleen Watanabe said, because the concrete footings for the home have already been poured.

Planet Kauai blog has more details, including discussion of an administrative rule apparently requiring builders to mitigate damage to grave sites.

Ah, preliminary injunctions--a favorite topic of mine and a key piece of aloha jurisprudence.  Sounds like the makin's of a great class discussion.


August 15, 2008 | Permalink | Comments (0) | TrackBack (0)

Stone Age Grave Yard

The New York Times  has a story on stone age graves found in the Sahara (from the Sahara's "green period").  Very exciting--now what the law, if any, of cemetery access was is unknown and unknowable.  But there were some pretty elaborate funeral practices.  As the article says:

In its first comprehensive report, published Thursday, the team described finding about 200 graves belonging to two successive populations. Some burials were accompanied by pottery and ivory ornaments. A girl was buried wearing a bracelet carved from a hippo tusk. A man was seated on the carapace of a turtle.

The most poignant scene was the triple burial of a petite woman lying on her side, facing two young children. The slender arms of the children reached out to the woman in an everlasting embrace. Pollen indicated that flowers had decorated the grave.


August 15, 2008 | Permalink | TrackBack (0)

Thursday, August 14, 2008

Pennsylvania's Curative Amendment

The Center For Public Integrity's website has a good article on Pennsyvlania's odd-but-interesting curative challenge process.  An excerpt:

Land planners, township government officials, and the developer’s attorneys say the villain in the battle over Buckingham Springs is the same — the curative amendment, a zoning challenge process unique to Pennsylvania, which both sides say benefits the other. Yet despite its problems, land use battles brought under the curative amendment process have defined development in Bucks County and other areas where rural meets urban.

In Pennsylvania, municipalities are responsible for land-use planning, but guidelines are laid out in the state’s Municipalities Planning Code. Case law interpreting the statute has required local governments to provide for all types of uses and to accept its “fair share” of development.

Landowners can challenge zoning by filing cases directly with a township board of supervisors, seeking a “curative” amendment to the zoning regulations, a move that often sets a costly battle in motion that pits a developer’s legal budget against township defense dollars. If a board of supervisors rules against a challenge — and they almost always do — developers and or landowners can appeal to the courts.

The “curative challenge” is a check on a community’s natural tendency to insulate itself from unwanted development, including low-income and high-density housing, said Kurt Paulsen, a land-use expert at the University of Wisconsin who taught formerly at Temple University in Philadelphia.

The challenge balances the rights of a locality to determine its future and the needs of the state and outside community as a whole, Paulsen said. “That is the fundamental question: Is it correct to say that municipalities should determine their own destinies? On a certain level it seems fundamental, and you say, ‘Yes.’ On another you say: ‘Wait a minute. They should also maximize opportunities for future residents.’”

Ben Barros

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August 14, 2008 in Land Use | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 13, 2008

They're having trouble giving this property away

A bank in Detroit asked only $1 for a house. But it's worse than that--the bank agreed to pay closing costs, a water bill, and back taxes.  It ended up costing them $10,000 to get rid of the property.  Sounds like the makin's of a pretty interesting class discussion on the costs of ownership.


August 13, 2008 | Permalink | TrackBack (0)

Brophy on Antebellum Landscape Art and Property Law

Our own Alfred L. Brophy (UNC) has posted Property and Progress: Antebellum Landscape Art and Property Law on SSRN.  Al has posted on this subject here before.  Here's the abstract:

Landscape art in the antebellum era (the period before the American Civil War, 1861-1865), often depicts the role of humans on the landscape. Humans appear as hunters, settlers, and travelers and human structures appear as well, from rude paths, cabins, mills, bridges, and canals to railroads and telegraph wires. Those images parallel cases, treatises, orations, essays, and fictional literature that discuss property's role in fostering economic and moral development. The images also parallel developments in property doctrine, particularly related to adverse possession, mistaken improvers, nuisance, and eminent domain.

Some of the conflicts in property rights that gripped antebellum thought also appear in paintings, including ambivalence about progress, concern over development of land, and fear of the excesses of commerce. The concerns about wealth, as well as the concerns about the lack of control through law, appear at various points. Other paintings celebrate intellectual, moral, technological, and economic progress. The paintings thus remind us of how antebellum Americans understood property, as they struggled with the changes in the role of property from protection of individual autonomy of the eighteenth century to the promotion of economic growth in the nineteenth century.

Ben Barros

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August 13, 2008 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Penalver on Land Virtues

Eduardo M. Penalver (Cornell) has posted Land Virtues on SSRN.  Here's the abstract:

This article has two goals. First, I explore some of the descriptive and normative shortcomings of traditional law and economics discussions of the ownership and use of land. These market-centered approaches struggle in different ways with features of land that distinguish it from other "commodities." The complexity of land - its intrinsic complexity, but even more importantly the complex ways in which human beings interact with it - undermines the notion that owners will focus on a single value, such as wealth, in making decisions about their land. Adding to the equation land's "memory," by which I mean the combined impact of the durability of land uses and the finite quantity of land, calls into question the normative assessment that owners whose behavior is guided by a unitary measure like market value are using their land wisely, or at least more wisely than other modes of decision-making might hope to accomplish. The shortcomings of traditional law and economics theories of land use point toward the benefits of a pluralist theory of property based on the Aristotelian tradition of virtue ethics. Setting forth the broad outlines of such a theory as it applies to the law of land use is the second goal of this article. Virtue theory, I will argue, is capable of incorporating the valuable insights that have made economic analysis so appealing to land use theorists without distorting our moral vision or treating economic consequences as the only considerations that ought to matter.

Ben Barros

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August 13, 2008 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, August 11, 2008

Brigham-Kanner Conference at William & Mary

I just got the save-the-date card for this year's Brigham-Kanner Property Rights Conference, which will be held at William & Mary on October 17-18, 2008.  Robert Ellickson will be awarded the Brigham-Kanner prize.  I'll post more info when it becomes available online.

UPDATE:  I have now been pointed to the conference brochure.  Looks like a great program.

Ben Barros

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August 11, 2008 in Conferences | Permalink | Comments (0) | TrackBack (0)

Sunday, August 10, 2008

Stahl on the Suburb as a Legal Concept

The Cardozo Law Review's website has posted an interesting article by Kenneth A. Stahl titled The Suburb as a Legal Concept:  The Problem of Organization and the Fate of Municipalities in American Law.

Ben Barros

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August 10, 2008 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

New Jersey Case Invalidating Blight Taking

Ilya Somin has the details on City of Long Branch v. Anzalone at the VC.

Ben Barros

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August 10, 2008 in Recent Cases, Takings | Permalink | Comments (0) | TrackBack (0)