Friday, September 16, 2011
A great story in today's New York Times about the evolution of immigrant neighborhoods and the hold-outs from a prior era. Although the article focuses on neighborhoods in Brooklyn, the same story could be told in cities across the U.S.
Patricia Salkin (Albany) and Amy Lavine (Albany) have posted Regional Foodsheds: Are Our Local Zoning and Land Use Regulations Healthy? (Fordham Environmental Law Journal). Here's the abstract:
Governments at all levels have become increasingly interested in fostering healthy eating habits and sustainable agricultural production. Promoting access to locally grown produce is an important part of many policy goals seeking to address these concerns, and the concept of regional foodsheds has risen in popularity as one method to achieve these goals. Research indicates that community based food systems have the potential to address food security, public health, social justice, and ecological health. Food production and consumption patterns are influenced by a range of federal, state, and municipal policies, but meaningful change in regional food system policies is likely to start with state and local governments, which can take proactive measures to strengthen their regional foodsheds through a variety of land use planning and regulatory actions. This Article focuses on how existing land use plans and regulations can promote healthier and more sustainable communities through the foodshed movement. In particular, this Article discusses specific land use strategies that can be implemented in urban and suburban settings to facilitate local and regional food production and distribution that go beyond farmland preservation strategies and examine, among other things, smaller-scale community gardens, residential agricultural uses and farmers markets.
Thursday, September 15, 2011
The Wall Street Journal reports today that the Trump Organization has accepted a security deposit in the form of 99.9% pure gold bullion, rather than cash or a letter of credit. Landlords probably don't need to buy safes just yet -- this appears to be a publicity stunt by the tenant (precious-metals dealer Apmex) and the landlord (who told the Journal that he saw the move as a "repudiation of the Obama administration's economic policies"). Now, if the lease called for all the rent to be paid in gold, that would really be interesting...
Trump told the Journal that depositing gold was the tenant's idea. I'm not surprised. From the landlord's perspective, it makes for a fairly problematic security deposit. Most commercial leases provide that if the tenant fails to pay rent or is otherwise in default, the landlord can dip into the security deposit to cure the default. That's a little tougher when your security deposit consists of three gold bars. Bigger problem is that the price of gold fluctuates, which impacts the value of the security deposit. If gold goes up in value, the tenant has an increasing incentive to meet its leasehold obligations, because it will get the bars back at the end of the lease. If the security deposit had been in cash, the landlord could have invested the money in an interest-bearing account (which is, admittedly, pretty much worthless right now), but it can't capture any appreciation in the value of the gold. But if gold plummets, then the landlord is left with a security deposit worth less than he originally bargained for. In short, the landlord can't capture the upside on changing gold prices, and is stuck with the downside.
But hey, at least Apmex and Trump bought themselves a little publicity!
If you are in New York City on October 4, 2011, consider attending a CLE sponsored by the Center for Real Estate Studies at New York Law School, entitled "Payments in Lieu of Taxes (PILOTs) by Nonprofit Organizations." Here's the brief synopsis:
Other cities (such as Boston) are adopting policies to "encourage" and "compel" nonprofits that are exempt from property taxes to make payments to the city to defray costs of city services (fire protection, police, streets, etc.) attributable to those exempt properties. This is a growing trend as municipalities face budget crunches with decreased tax revenues and increased costs. The October 4th program will present different perspectives on whether New York should consider nonprofit PILOTs. This program will be of interest to lawyers, the nonprofit sector, policy makers, professional services providers, and the public.
Event Speakers Daphne A. Kenyon and Adam H. Langley are also co-authors of Payments in Lieu of Taxes : Balancing Municipal and Nonprofit Interests, a report published in November 2010 by Lincoln Institute of Land Policy. This report will be discussed during the program and is available for download at http://www.lincolninst.edu/pubs/1853_Payments-in-Lieu-of-Taxes.
The program is free, but registration is required. You can register here.
This looks like a fascinating program -- I wish New York was a little closer to Winston-Salem!
From the Chicago Tribune, a quick Q&A about a dispute between a life tenant and a remainderman who wants to cash-in his interest in the property.
Julian Juergensmeyer (Georgia State) and James Nicholas (Florida) have posted Loving Growth Management in the Time of Recession (Urban Lawyer) on SSRN. Here's the abstract:
The current deep and long lasting recession has challenged the value of local government growth management programs – especially those which rely heavily on developer funded infrastructure finance programs such as impact fees. An examination of the characteristics of the current recession reveal that its severity is due in large part to excessive exuberance in housing development in the years preceding the burst of the housing bubble. Many local governments intensified the consequences of over-building by adopting ambitious infrastructure programs funded by impact and other fees charged to developers upon the issuance of building permits or other development approval actions. With residential building permit issuance at near zero in many formerly double-digit growth areas, local governments can no longer pay for nor do they need much of the planned or already constructed infrastructure. The authors advocate greater restraint by local governments in accepting growth projections and issuing bonds to be repaid through impact fee collection. Most importantly, the authors suggest as a pre-condition of development approval requiring developers to submit market studies establishing probable market demand for the proposed development.
Wednesday, September 14, 2011
The New York Times reports on a clash over affordable housing in Woodstock:
[A] protracted battle over a 53-unit affordable housing project is dividing this still-crunchy town where mellow ’60s vibes and liberal politics coexist uneasily with real estate prices increasingly out of the reach of the humbler classes.
Background: This case is a real life, modern example of a landlocked piece of property and an owner seeking an easement by necessity. Lewis owned a landlocked parcel and brought a private condemnation proceeding against Glenelk to obtain an easement over Glenelk's land.
Holding: The party seeking the private condemnation must state the purpose of the condemnation in a way that enables the trial court to examine the scope and necessity of the proposed easement.
Michael Blumm (Lewis & Clark) and Erika Doot (Lewis & Clark) have posted Oregon’s Public Trust Doctrine: Public Rights in Waters, Wildlife, and Beaches (Environmental Law Review) on SSRN:
Oregon’s public trust doctrine has been misunderstood. The doctrine has not been judicially interpreted in over thirty years but was the subject of an Oregon Attorney General’s opinion in 2005. That opinion interpreted the scope of the doctrine to be limited to the beds of tidelands and navigable-for-title waters and erected a separate “public use” doctrine protecting public rights in other waters, including recreational waters. However, since Oregon courts have never limited public rights in the state’s waters to those with publicly owned bedlands, the opinion should have recognized that the public trust doctrine provides broad public recreational rights in all waters. Indeed, since early statehood, Oregon courts and the legislature have recognized that water is publicly owned, and the Oregon Supreme Court has ruled consistently in favor of public rights in waterways, based on language in the Statehood Act that declared navigable waters to be public highways that would remain “forever free,” not monopolized by private owners. Moreover, in the early 20th century, the court explicitly ruled that the scope of public rights in publicly-owned waters could and should evolve over time.
This Article maintains that the Oregon public trust doctrine is grounded on public ownership of natural resources held in trust by the state in a sovereign capacity. The state has always claimed ownership of water and wildlife within the state, so the courts should recognize both as public trust resources. Although the state can authorize private rights in those resources, all private rights are subject to the state’s sovereign ownership – a public easement – requiring the state to maintain these resources as trustee for the public. Like the Statehood Act’s declaration of public ownership of waterways, courts should interpret the public trust doctrine to be implicit in other statutory declarations of public ownership of natural resources. Similarly, use rights in ocean beaches, claimed by the public under the doctrine of custom, are public trust resources, necessary to enable public use of the adjacent ocean waters. This Article suggests that public ancillary rights exist in other uplands where necessary to provide public access to, or preservation of, public trust water and wildlife resources.
Oregon’s public trust doctrine is not of mere academic interest. The doctrine imposes duties on the state as sovereign owner of water, wildlife, and ancillary uplands. In an era of widespread skepticism of government management, the venerable public trust doctrine seems an especially appropriate mechanism to give citizens an opportunity to gain review of government action and inaction threatening unsustainable development of natural resources that are central to the state’s identity, culture, and economy.
Tuesday, September 13, 2011
Tim De Chant on the density of cities in the pre-Columbian United States:
Cahokia is one of the largest historical American cities you’ve probably never heard of. Peaking around 1250 CE. . . . With somewhere between 10,000 to 15,000 people, it held the record for the largest American city until around 1800, when Philadelphia finally overtook it.
Jessica Owley (Buffalo) has posted The Enforceability of Exacted Conservation Easements (Vermont Law Review) on SSRN. Here's the abstract:
The use of exacted conservation easements is widespread. Yet, the study of the implications of their use has been minimal. Conservation easements are nonpossessory interests in land restricting a landowner’s ability to use her land in an otherwise permissible way, with the goal of yielding a conservation benefit. Exacted conservation easements arise in permitting contexts where, in exchange for a government benefit, landowners either create conservation easements on their own property or arrange for conservation easements on other land.
To explore the concern associated with the enforceability of exacted conservation easements in a concrete way, this article examines exacted conservation easements in California, demonstrating that despite their frequent use in the state, their enforceability is uncertain. The three California statutes governing conservation easements limit the ability to exact conservation easements. California caselaw, although thin, indicates that courts may be willing to uphold exacted conservation easements even when they conflict with the state statutes. This examination of the California situation highlights California-specific concerns while providing a framework for examining exacted conservation easements in other states.
This article illustrates not only challenges of enforceability that arise with exacted conservation easements, but uncertainty in their fundamental validity and concerns about public accountability. This exploration illustrates that enforceability is not straightforward. This raises significant concerns about using exacted conservation easements to promote conservation goals, calling into question specifically the use of conservation easements as exactions.
Ilya Somin (George Mason) has posted Let There Be Blight: Blight Condemnations in New York after Goldstein and Kaur (Fordham Urban Law Journal) on SSRN. Here's the abstract:
The New York Court of Appeals’ two recent blight condemnation decisions are the most widely publicized and controversial property rights rulings since the Supreme Court decided Kelo v. City of New London. In Kaur v. New York State Urban Development Corp., and Goldstein v. New York State Urban Development Corp., the Court of Appeals set new lows in allowing extremely dubious “blight” condemnations. This Article argues that the New York Court of Appeals erred badly, by allowing highly abusive blight condemnations and defining pretextual takings so narrowly as to essentially read the concept out of existence.
Monday, September 12, 2011
Econ Journal Watch has a fantastic mini-symposium titled Property: A Bundle of Rights? Here's the description:
Lawyers and social scientists often describe property as a “bundle of rights.” What are the connotations of “bundle”? What features of property does the “bundle” talk obscure or even deny? What are its political consequences?
In the past 15 years, the “bundle of rights” view has been provocatively challenged, notably by James E. Penner, Thomas W. Merrill, and Henry E. Smith. This symposium brings the challenge to the fore, as these leading critics elaborate the core points of contention. They are joined by three younger critics of the “bundle” view [Eric Claeys, Adam Mossoff, and Larissa Katz], each with a fresh perspective.
Two eminent legal scholars, Richard A. Epstein and Stephen R. Munzer, take up the challenge. Each mounts his own defense of “bundle of rights” theory. Another renowned property scholar, Robert C. Ellickson, weighs in and stakes out a middle ground.
Check it out!
[Comments are held for approval, so there will be some delay in posting]
Alex Tabarrok on the growth of private cities around the globe. These are places where the private sector has stepped in to provide transportation, utilities, security and other necessities:
Private cities are happening now for a reason. Africa, India, and China are urbanizing more rapidly than has ever occurred in human history. In Africa, the number of urban dwellers is projected to increase by nearly 400 million, in India at least 250 million will move to cities and in China more than 400 million will move to cities in just the next 20 years. Not all of these people will move to older cities, which are not always in the right places and which rarely possess anything like the right material let alone the right political infrastructure. The rising middle-class want to live in first-world cities and in many of these countries only the private sector can deliver those cities.
Nancy McLaughlin (Utah) has posted Conservation Easements and the Doctrine of Merger (Law & Contemporary Problems) on SSRN. Here's the abstract:
Conservation easements raise a number of interesting legal issues, not the least of which is whether a conservation easement is automatically extinguished pursuant to the real property law doctrine of merger if its government or nonprofit holder acquires title to the encumbered land. This article explains that merger generally should not occur in such cases because the unity of ownership that is required for the doctrine to apply typically will not be present. This article also explains that extinguishing conservation easements that continue to provide significant benefits to the public through the doctrine of merger would be contrary to the conservation and historic preservation policies that underlie the state enabling statutes and the federal and state easement purchase and tax incentive programs.
Blake Hudson (Stetson) has posted Reconstituting Land Use Federalism to Address Transitory and Perpetual Disasters: The Bimodal Federalism Framework (BYU Law Review) on SSRN. Here's the abstract:
Scholars analyzing the intersection of federalism and disaster law and policy have primarily focused on the difficulties federalism poses for inter-jurisdictional coordination of disaster response. Though scholars have highlighted that rising disaster risks and costs are associated with 'land use planning that exacerbates, rather than mitigates, disaster risk,' a more holistic analysis of land use-related disaster law and policy is needed. This article provides a more comprehensive framework within which to analyze prospective mitigation or prevention of disaster risk and costs through a rebalancing - or reconstituting - of the respective roles of the federal and state governments in land use planning. The federal government does not currently maintain direct regulatory inputs into a variety of land use policies that exacerbate disaster risks and costs- an apprehension that likely results from the history of jurisprudence declaring that land use regulation is the 'quintessential state and local government' activity under the Constitution. Even so, greater federal regulatory inputs for certain disasters are needed in circumstances where state and local governments fail to formulate standards, especially due to the national interests at stake and the greater capacity of the federal government to coordinate standards for disasters with very large inter-jurisdictional impacts. For other land use-related disasters federal inputs may be less necessary, though overlapping regulatory policies of federal, state, and local governments can yield even more robust disaster mitigation and prevention policies.
This article first categorizes the various disasters that implicate state and local government land use planning along a 'transitory-perpetual' spectrum. This spectrum provides a frame of reference for assessing which land use-related disasters are more localized with shorter temporal effects, and which therefore may require fewer federal inputs, and those that have far longer temporal effects and larger inter-jurisdictional impacts of nationwide import, therefore requiring greater federal input. The spectrum further provides a framework for determining the viability, from a constitutional perspective, of federal regulatory inputs into land use planning for which more federal inputs may be needed. This constitutional analysis is undertaken in the context of a theory of “Bimodal Federalism,” which integrates two modes of operation of modern U.S. federalism, acknowledging the trend toward new 'Dynamic Federalism' theory that normatively disregards separate constitutional spheres of authority for the state and local governments, while also incorporating the reality that remnants of 'Dual Federalism' theory still inform constitutional jurisprudence related to certain subject matters - like land use planning.
Finally, based upon the transitory-perpetual spectrum categorizations and informed by bimodal federalism analysis, the article assesses the appropriate legislative mechanisms for reconstituting land use disaster federalism. The article hypothesizes that those disasters closer to the perpetual end of the spectrum also happen to be the ones for which top-down federal inputs into land use policy are both more desirable and less constitutionally suspect. Correspondingly, for land use-related disasters that are more transitory in nature, top-down federal inputs may be more constitutionally suspect, thus calling for a need to explore bi-lateral and horizontal mechanisms of reconstituting federalism for all categories of disaster.