Friday, October 5, 2012
The good folks over at Volokh recap the oral argument in Arkansas Game and Fish Commission v. United States, a case about whether government actions that impose recurring flood invasions must continue permanently to take property within the meaning of the Takings Clause:
Even some of the liberal justices seemed skeptical about the government’s remarkable argument that flooding caused by a government-built dam can never be considered a taking of downstream property owners’ land, even if the flooding is permanent. Deputy Solicitor General Edwin Kneedler claimed that such flooding was an inevitable result of operating dams in such areas in the first place, and was justified by the great benefits created by the dams.
But none of this proves that there was no taking. The fact that flooding is inevitable once the government builds and operates a dam does not mean that the resulting invasion of downstream owners’ property is not a taking. Intrusions on property owners’ land are often an inevitable result of building roads in populated areas, including roads that create major public benefits. But that doesn’t mean that such construction is not a taking.
The [British Columbia] government on Friday cancelled all development on the Marpole Midden site considered sacred by the Musqueam Indian band. The Century Group were planning a five-storey condo development on the site, near the Arthur Laing Bridge in South Vancouver, until the discovery of human remains earlier this year halted work.
The land must now be returned to its original condition, the government said in a statement Friday, which cancelled the two permits concerning work on the site. The decision will cost the developer “literally millions of dollars” as no compensation is planned, spokesman Bob Ransford said.
The short piece implicates a lot of property concepts: respect for the property rights of Native groups, regulatory takings, economic values v. human values, the reliance interest in land use disputes, and the importance of clear rules for developers. If you're curious about regulatory takings law in Canada, check out this article by Brian Schwartz and Melanie Bueckert. Schwartz and Bueckert argue, in a nutshell, that Canada law does not offer private property owners the same robust protections as U.S. law.
Thursday, October 4, 2012
A couple weeks ago, the South Africa Supreme Court issued a landmark ruling in a case involving Mugabe’s controversial land reform program in Zimbabwe. The Court ruled that a white Zimbabwean farmer (Mike Campbell) who has been dispossessed by the government could take possession of government property as compensation. The case and the context of the farmer’s dispossession offer particularly troubling illustrations of how the postcolonial dilemma regarding land reform has unfolded in Zimbabwe.
Zimbabwe and the Dilemma of Postcolonial Land Reform, briefly
While many postcolonial states (for example, South Africa and India) struggled during the early years of their independence with how to enact land reform and simultaneously recognize a right to property (in a context of concentrated elite landholdings), Zimbabwe’s experience with land reform has been particularly inequitable and violent.
Unlike many other postcolonial states, the newly independent government of Zimbabwe had its hands tied when it came to distributing land to the large numbers of landless citizens. As a condition of independence in 1980, Zimbabwean leaders agreed to protect the large arable tracts of land held by
white landowners for ten years under the Lancaster House Agreement with Britain. After the ten-year period, the Zimbabwe government could compulsory acquire this land by providing compensation. (Britain agreed to provide some of the government compensation for both the voluntary sales during the first ten years and the compulsory acquisition afterwards.)
Unfortunately, when land reform was possible in the 1990s, the government took action very slowly, and often acquired land that was not ideal for farming. Then, in the early 2000s, the Mugabe government began to encourage violence and land invasions for personal gain through a change in law that allowed for “fast-track land redistribution”:
“To appease the landless masses and maintain political popularity, Mugabe's government officially encouraged veterans to occupy white-owned farms. In some instances, members of the army helped facilitate land grabs and police were told not to respond to landowners' complaints or to remove squatters. As a result of the land grabs, many white farmers and their black workers were killed or subjected to violent attacks.” (PBS)
“Mugabe. . . present[ed] the policy as a “redistribution” of land to the poor and as a triumph over greedy white imperialists. In reality the policy, spearheaded by a ragbag army of armed thugs — the so-called “war veterans” — was a ruse to cement Mugabe’s hold on power through the distribution of patronage. It thus became a scramble for the plum, mainly (though not exclusively) white-owned, estates among the country’s elite, most of whose members had little interest in farming.” (Telegraph)
Not surprisingly, this “program” did little to alleviate the vast inequity of landholdings throughout the country. In 2002, Human Rights Watch reported that:
“The fast track program has . . . violated rights to equal protection of the law, nondiscrimination, and due process. The violence accompanying land occupations has created fear and insecurity on white-owned commercial farms, in black communal areas, and in “fast track” resettled areas, and threatens to destabilize the entire Zimbabwean countryside.” (Human Rights Watch)
As a result of this violence, Zimbabwe, a once-richly agricultural country, is now dependent on food aid.:
"Farms seized in Zimbabwe often have landed up in the hands of Mugabe's cronies and inner circle and have been left to lie fallow, turning the country that once was the breadbasket of the region into a net food-importer where the poor often go hungry." (Associated Press)
The Case of Mike Campbell’s Farm
In 1974, Mike Campbell, a white South African, moved to then-Rhodesia and purchased the Mount Carmel farm. He expanded on it subsequently, and built it into a profitable enterprise. In his obituary last year, the Telegraph noted that
He “plant[ed] mangoes, citrus trees, maize, tobacco and sunflowers, establish[ed] a herd of Mashona/Sussex cattle and dedicat[ed] a large area to a wildlife reserve, complete with herds of giraffe, impala and other animals. Their Biri River Safari Lodge became a popular tourist destination.
Campbell was described as a model employer, and by the end of the 1990s Mount Carmel farm was the largest mango producer in Zimbabwe, helping to generate much-needed export earnings. The farm sustained the livelihoods of more than 500 people...”
During the violence that ensued throughout the 2000s, Campbell’s farm was repeatedly invaded and significantly damaged. Attempts to gain relief in Zimbabwean courts did not yield results. In 2007, he brought his case to the inter-governmental Southern African Development Community (SADC) Tribunal, the highest court in the region. Before that court issued its judgment (in favor of Campbell and other dispossessed white farmers), Campbell and his family were kidnapped and tortured. (He passed away last year as a result of deteriorated health caused by the torture and did not live to see the recent judgment from South Africa.)
The ruling from the South African Supreme Court attempts to enforce the SADC Tribunal’s order.
The Recent Ruling from the South African Supreme Court
On September 20, South Africa's Supreme Court ruled that:
“[A] white Zimbabwean farmer can take possession of a Zimbabwe government property to compensate for the seizure of his farm.
. . .
A tribunal of the Southern African Development Community in 2008 ruled that the takeovers of white-owned farmland in Zimbabwe were illegal and racist. President Robert Mugabe's government argued it was part of a land reform process to redress colonial wrongs. Hundreds of farmers were forced off their property in often violent government-sponsored seizures.
Zimbabwe refused to act on the tribunal's order to restore the farms to their owners, and the Southern African community dissolved the tribunal earlier this year.
In 2010, a South African High Court attached a Zimbabwe government property in Cape Town to satisfy the tribunal's order for punitive costs to pay for farmer Mike Campbell's legal expenses.
[The recent] dismissal upholds that ruling.” (Associated Press)
Enforcing this ruling will be a challenge in Zimbabwe – the Zimbabwean government has already “dismissed” it. Even if it is enforced, it sidesteps the issues of the thousands of landless black Zimbabweans and farm workers for whom a path to property, much less protection of that
property, has never been available.
Priya S. Gupta
For more on Mike Cambpell’s story (including the lawsuit), readers are encouraged to watch the 2010 film, Mugabe and the White African. The film, which is not without fault, especially with regards to its race, gender, and historical framing, does provides some visual context to the legal case and what has been at stake.
The American Planning Association recently released its list of the ten best streetscapes in America:
1. Key West, Florida: Duval Street
2. Kansas City, Missouri: Ward Parkway
3. Bozeman, Montana: Main Street
4. Kingston, New York: Wall Street
5. New York, New York: Fifth Avenue
6. Saratoga Springs, New York: Broadway
7. Cleveland, Ohio: Shaker Boulevard
8. Pittsburgh, Pennsylvania: Grant Street
9. Charleston, South Carolina: Broad Street
10. Knoxville, Tennessee: Gay Street
Matt Yglesias inveighs against regulations that outlaw trailer parks:
According to a report from the National Consumer Law Center, just six states—California, Idaho, Kansas, Nevada, Ohio, and Washington—require towns to allow manufactured homes in areas zoned for single-family residences. An additional nine states don’t allow a jurisdiction to completely prohibit manufactured houses from its boundaries but do allow them to be excluded from particular places. Exclusionary zoning practices are quite diverse. Alongside simple bans on the use of manufactured homes as infill in existing areas, such homes are often subjected to discriminatory treatment. That includes taxation at higher rates (as personal property rather than at lower residential rates), design rules requiring slanted roofs, and rules requiring large lots.
This is a shame. After adjusting for land costs, manufactured houses cost about half per square foot what conventional houses cost. And manufactured houses are improving rapidly.
[226 downloads] Is China's
Housing Market Heading Toward a US-Style Crash?
Gregory M. Stein (Tennessee)
[90 downloads] Absolute
Preferences and Relative Preferences in Property Law
Lior Strahilevitz (Chicago)
[75 downloads] Original
Acquisition and Unilateralism: Kant, Hegel, and Corrective Justice
N. W. Sage (Toronto)
[71 downloads] Starting
With the Questions, Not the Answers: Reunifying Property in the Classroom
Tim Iglesias (San Francisco)
Wednesday, October 3, 2012
Foregin Policy looks at the cause of China's enormous real estate bubble:
It's a tough, competitive life for men in China these days, in part due to the aftershocks of the one-child policy, which has left the country with a gaping gender imbalance of 120 boys for every 100 girls. [...] The marriage challenge is rippling its way up through the classes. It is manifested most clearly in China's real estate market, where -- given the highly desirable nature of property -- men are pouring all their savings as a means of improving their chances of finding Mrs. Right, or any Mrs. for that matter.
Denise Fort (New Mexico) has posted Policy Questions Concerning Tribal Water Marketing on SSRN. Here's the abstract:
Pressures to market water rights are growing, especially because municipal and industrial users can pay higher prices for water rights than can traditional agricultural uses. Water rights held by tribes are different in some key respects from water rights held by nontribal entities, in that a tribe’s ability to lease water rights is dependent on Congressional approval. The sale or lease of water rights by nontribal entities generally requires approval of a state agency. Sales and leases are becoming accepted tools of water management in many western states. Tribal water rights tend to be established through settlements. Settlements provide benefits to multiple parties, often involve federal funding for new water projects, and must be approved by the Congress. Thus, it is possible for tribes to obtain Congressional authorization for leasing as part of water settlements. But, tribes must affirmatively bargain for the ability to market water as part of proposed settlements, thereby reducing their position in settlements. Should there be a presumptive right in tribes to market water, and, if so, should there be an opportunity for involvement by other stakeholders in the review of specific leasing proposals? Second, state’s strenuously guard their water (as defined by compacts, etc.) against interests in other states. Should tribes be constrained by these interests, or should interstate marketing be permitted when a tribe can receive greater compensation for a transaction with an entity in a different state?
Tuesday, October 2, 2012
Businessweek and Bloomberg have attempted to rank the top cities in the country:
Businessweek.com evaluated 100 of the country’s largest cities based on leisure attributes (the number of restaurants, bars, libraries, museums, professional sports teams, and park acres by population); educational attributes (public school performance, the number of colleges, and graduate degree holders), economic factors (2011 income and June and July 2012 unemployment), crime, and air quality.
Lisa Austin (Toronto) has posted Pluralism, Context and the Internal Life of Property: A Response to Hanoch Dagan (Toronto Law Journal) on SSRN. Here's the abstract:
This paper is a comment on Hanoch Dagan’s claims in “Inside Property.” Despite Dagan’s desire to provide an “internal” account of property institutions that is sensitive to both pluralism and context, I argue that his denigration of doctrinal analysis robs him of important critical resources. Doctrine is part of the “inside” of law that can help us understand when legal institutions fail. In addition, by offering an alternative to Dagan’s ends-based reasoning, doctrinal analysis can provide us with a way of seeking agreement on public norms governing interaction when we have deep disagreements regarding ends. In other words, pluralists interested in critical contextual analysis of institutions have good reason to take doctrinal reasoning seriously. I illustrate my claims by using the Canadian example of Re Noble and Wolf, a Canadian case concerning discriminatory restrictive covenants.
Monday, October 1, 2012
Fascinating piece in the New York Times over the weekend about the only fenced and gated, private park in Manhattan -- Gramercy Park. The focus of the article is the limited access to the park, exemplified by the 383 numbered keys granted to residents of the 39 buildings which surround the park and pay the annual assessment. The two-acre park was established in 1831 by Samuel Ruggles as an ornamental park to be enjoyed by the residents of the mansions which lined it. Gramercy Park has been fenced since 1831 and locked since 1844. Lots of interesting historical details in the article about how the keys are made, distributed, and managed.
Beyond the history, the most interesting thing to me about the article was the drum beat of thinly veiled criticism of the existence of a private park. For example:
"Parkside residents rationalize that their communal front yard is privatized for its own protection. Besides, they, not the city it enhances, have footed its bills for nearly two centuries."
"For connection-challenged mortals, though, the park is increasingly problematic to appreciate from within ..."
"So unless you are among the fortunate few to rent or own property directly on Gramercy Park; are a member in very good standing of the National Arts Club, the Players club, the Brotherhood Synagogue, or Calvary-St. George's Church; or can splurge on a stay at the aggressively hip Gramercy Park Hotel, these coveted keys and the verdant two-acre jewel box they unlock are off limits to you, period. No exceptions are made."
So the "fortunate few" who have access to the "coveted keys and the verdant two-acre jewel box" have to "rationalize" the privatization of property that they, through a neighborhood association, own and pay to maintain. The park is "off limits" to the rest of us, the "connection-challenged mortals." So, what's up with the hostility to the exclusion of the public from private property? Is this an urban mindset, where there is very little private greenspace but many public parks? Am I unable to understand this attitude as a Midwesterner, where the opposite is true?
It does make me want to stay at the Gramercy Park Hotel so I can visit the park, however....
A land use story? About Kentucky? In the NY Times? Dreams really do come true.
Last week, Michael Kimmelman wrote a scathing piece on Louisville's decision to enlarge it's downtown freeways. Kimmelman points out that this decision is out of step with the prevailing wisdom of highway removal:
Adding more lanes doesn’t turn out to reduce traffic. It increases traffic. The phenomenon is called “induced demand.” The reverse is also true: fewer roads ultimately tend to produce less traffic. As for the notion that expanding the interstate tangle and adding the sister bridge next to the Kennedy might bring more people and jobs into the city, I can only say that 40 years after the interstates supposedly started pumping life into Louisville’s downtown, the streets here looked pretty empty, especially at night. Maybe that’s an outsider’s misperception. But removing the highways, or downscaling them, might turn downtown and its adjacent neighborhoods, including the riverfront, into more attractive places.
(HT: Kent Barnett)
Matthew Sweet pushes back on the minimalism that has leaked from fancy-hotel-decoration into residential interior design:
The boutique hotel now seems to be the principal template for domestic interior design [...] It's worth pausing, though, to consider the oddness of this impulse. The hotel room is an amnesiac space. We would be troubled if it bore any sign of a previous occupant, particularly as many of us go to hotels in order to do things we would not do at home. We expect a hotel room to be cleaned as thoroughly as if a corpse had just been hauled from the bed. (In some cases, this will actually have happened.) The domestic interior embodies the opposite idea: it is a repository of memories. The story of its inhabitants ought to be there in the photos on the mantelpiece, the pictures on the wall, the books on the shelves. If hotel rooms were people, they would be smiling lobotomy patients or plausible psychopaths.
Lee Fennell (Chicago) has posted Resource Access Costs (Harvard Law Review) on SSRN. Here's the abstract:
The Coasean insight that transaction costs stand between the world as we know it and an ideal of perfect efficiency has provided generations of law and economics scholars with an analytic north star. But for legal scholars interested in the efficiency implications of property arrangements, transaction costs turn out to constitute an unhelpful category. Transaction costs are related to property rights in unstable and contested ways, and they comprise a heterogeneous set of impediments, not all of which are amenable to cost-effective reduction through law. Treating them as focal confuses the cause of our difficulties in structuring access to resources (positive transaction costs) with the solution to the cost minimization problem presented by a world featuring scarce resources and positive transaction costs. A broader notion of resource access costs, appropriately subdivided, can correct problems of overinclusion, underinclusion, and insufficient specification in the transaction cost concept. The resulting analytic clarity will allow property theorists to contribute more usefully to solving resource problems.