PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

A Member of the Law Professor Blogs Network

Friday, February 15, 2013

A Philosopher's Quest for the Perfect Home

Open Culture summarizes philosopher Alain de Bottom's thoughts about architecture and neighborhood building:

In the first episode of The Perfect Home, embedded above, philosophical journalist and broadcaster Alain de Botton contends that we don’t live in the modern world. Rather, we do live in the modern world in that we exist in it, but we don’t live in the modern world in that few of us choose to make our homes there. As de Botton sees it, the residents of the developed world have, despite keeping up with the latest cars, clothes, and gadgetry, chosen to hole up in shells of aesthetic nostalgia: our mock Tudors, our restored cottages, our Greek Revivals. Having written books and presented television shows on philosophical subjects — you may remember Philosophy: A Guide to Happiness — he even brings in Nietzsche to diagnose this architectural disorder as an abject denial of reality. According to old Friedrich, he who builds himself into a fake reality ultimately pays a much greater price than what enduring real reality would have cost. With that ominous bit of wisdom in mind, de Botton travels the world in search of buildings designed with modern sensibilities and modern technology that nevertheless make us happy without enabling self-delusion.

Steve Clowney

February 15, 2013 | Permalink | Comments (0) | TrackBack (0)

Owen on Taking Groundwater

Owen2Dave Owen (Maine) has posted Taking Groundwater on SSRN.  Here's the abstract:

In February, 2012, in a case called Edwards Aquifer Authority v. Day, the Texas Supreme Court held that landowners hold property rights to the groundwater beneath their land, and that a regulatory restriction on groundwater use could constitute a taking of private property. The decision provoked strong reactions, both positive and negative, throughout the world of water law, for it signaled the possibility of severe restrictions on governmental ability to regulate groundwater use.

This Article considers the deeper issue that confronted the Texas Supreme Court, and that has confronted other courts across the country: how should the Takings Clause of the Fifth Amendment, and parallel clauses of state constitutions, apply to groundwater use regulation? Initially, this Article explains why this issue is exceedingly and increasingly important. It then reviews all of the groundwater/takings decisions from federal and state courts in the United States. Finally, the Article considers the implications of foundational property theories for the application of takings doctrine to groundwater use.

The analysis supports two key conclusions. First, it undermines arguments against treating water rights as “constitutional property” — that is, property protected by federal and state takings clauses. Proponents of those arguments generally assert that treating water rights as property has uneven support from prior caselaw and that such treatment will be prevent sensible governance. A review of groundwater caselaw demonstrates that the former assertion runs counter to the weight of authority, and that the fears underlying the latter argument are overstated. Second, and more importantly, the analysis undermines arguments for granting groundwater use rights heightened protection against regulatory takings. Recently, litigants and commentators skeptical of government regulatory authority have widely advanced those arguments. But they find no support in past groundwater/takings caselaw, and no property theory justifies adopting such an approach.

Steve Clowney

February 15, 2013 | Permalink | Comments (0) | TrackBack (0)

Thursday, February 14, 2013

Land Use in Palestine

The Atlantic's Armin Rosen takes a visit to Rawabi, the first Palestinian planned city in the West Bank.

Rawabi represents something totally new -- a visionary Palestinian-directed private sector project, with support from both Israeli businesses and a major Arab government. It has the potential to shift the conversation on the region's future on both sides of the Green Line. It could convince Palestinians -- and the rest of the world -- that the future of the West Bank shouldn't be shackled to Ramallah or Jerusalem's vacillating willingness to hash out fundamental issues. It could prove that there's an appetite, both among Palestinian consumers and foreign donors, for the creation of a social and economic existence in the West Bank that's de-coupled, insomuch as currently possible, from the Middle East's tense and labyrinthine politics. 

It would also help solidify the benefits of the current cessation in hostilities. Indeed, Palestinian leader Mahmoud Abbas's progress in fostering the end of violent resistance in the West Bank in the years after the bloody Second Intifada, coupled with Palestinian Prime Minister Salaam Fayyad's widely-respected institution-building initiative, could get a crucial private sector assist through Rawabi's eventual success.

Steve Clowney

February 14, 2013 | Permalink | Comments (0) | TrackBack (0)

Nolon on the Emergence of the Law of Sustainable Development

John_NolonJohn Nolon (Pace) has posted Shifting Paradigms Transform Environmental and Land Use Law: The Emergence of the Law of Sustainable Development (Fordham Envt'l Law Journal) on SSRN.  Here's the abstract:

We began these two decades reacting to the market’s interest in developing greenfields and coastal property and end it wondering how to prepare more urbanized places for a growing population of smaller households who seek the amenities of urban living and some protection from the storms ahead. This essay discusses this and nine other fundamental paradigm shifts in environmental and economic conditions that are reshaping the law and changing the way state and local governments control land use and order human settlements.

Steve Clowney

February 14, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 13, 2013

When Neighbors Hate Neighbors

Loveneighbor
Over at the Faculty Lounge Al Brophy highlights a dramatic story out of Virginia about homeowners association that destroyed itself in a protracted lawsuit over a yard sign:

[The board of the homeowners association] passed a resolution allowing the board to fine residents up to $900 per infraction for violating HOA guidelines. Across the country, fining authority has been controversial, with HOAs hitting residents with levies for such transgressions as displays of colored Christmas lights and patches of dead grass.

Board members believed that they had the right under Virginia law, but the Farrans saw an illegal power grab that had no basis in the HOA’s covenants. When the board, acting at a meeting that was not publicly announced, rejected the Farrans’ roof and deck projects for aesthetic and architectural reasons, the Farrans said it was retribution.

“It’s like we weren’t living in America,” Maria Farran said. “You are always one board election away from a tyranny. They wield enormous power.” The Farrans filed a lawsuit against the HOA saying it didn’t have the authority to impose fines and had vindictively rejected their home improvements.

Steve Clowney

February 13, 2013 | Permalink | Comments (0) | TrackBack (0)

Rendleman on Boomer v. Atlantic Cement

RendlemandDoug Rendleman (Washington & Lee) has posted Rejecting Property Rules-Liability Rules for Boomer's Nuisance Remedy: The Last Tour You Need of Calabresi and Melamed's Cathedral on SSRN.  Here's the abstract:

This draft article analyzes and criticizes the New York court’s tort remedies in its nuisance decision, Boomer v. Atlantic Cement, and Calabresi and Melamed’s famous law-and-economics article, One View of the Cathedral. From the Remedies branch of Legal Realism, this draft finds both wanting because both subordinate the winning plaintiffs’ injunction remedy to money damages.

Both the Boomer decision and the Cathedral article undervalue public health and environmental protection. This mindset militates against robust and effective private-law remedies for defendants’ environmental torts.

In addition, the Cathedral article’s four-rule organization and vocabulary are confusing and misleading. In particular its Rule 1) over-emphasizes the effect of an injunction, which, if the defendant breaches, will usually lead to compensatory contempt and a money award that converts a so-called “property right” into a so-called “liability right.”

Behavioral economists’ studies and recent events have undermined and qualified many of the market-economics theories in the Cathedral article. This draft favors a flexible and pragmatic common-law technique instead of the law-and-economics analysis that favors awarding a nuisance-trespass plaintiff damages over an injunction. Moreover, the draft maintains that the economists’ presumption of nuisance-trespass parties’ post-injunction negotiation leading to an excessive coerced money settlement is overstated and should yield to more particularized and contextual analysis.

This draft maintains that the Cathedral article’s four point array of remedies solutions is both too long and too short. Rule 3) is the liability decision that doesn't belong in a remedies analysis at all. Rule 4)’s plaintiff-pays solution destabilizes property rights and should be abandoned in private litigation. Rule 2)’s preference for damages over an injunction should be a rare remedy. Analysis of the trespass and nuisance injunction should study structural litigation’s injunctions and emphasize flexibility and equitable discretion, in short a broadened Rule 1). Other remedies, punitive damages and restitution, should also be considered as viable options.

Taking earlier Legal Realists cue, this article seeks to replace theory with a more functional approach. By arguing in this draft for more and more detailed injunctions, the author hopes for augmented environmental protection and private-law remedies against global warming and climate change.

Steve Clowney

February 13, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 12, 2013

Do You Want to Be A Tenant in a Community Owned Building?

The N.Y. Times takes a look the city's First Look program, "in which a small number of banks have agreed that instead of selling troubled residential buildings to the highest bidder, they will give community developers first crack at taking the buildings over."

While the conditions in some of the buildings at issue sound truly awful, I do wonder if turning over the apartments to a non-profit is a viable long-term solution.  The article suggests that community groups don't really have enough cash to pull off these large scale purchases.  And, everyone seems to be ignoring that the real reason that these buildings have fallen into disrepair is New York City's rent control legislation. 

Steve Clowney

February 12, 2013 | Permalink | Comments (0) | TrackBack (0)

Ngov on Privatizing Public Land to Avoid Violating the Establishment Clause

NgovEang Ngov (Barry) has posted Selling Land and Religion (Kansas Law Review) on SSRN.  Here's the abstract:

Thousands of religious monuments have been donated to cities and towns. Under Pleasant Grove City v. Summum, local, state, and federal governments now have greater freedom to accept religious monuments, symbols, and objects donated to them for permanent display in public spaces without violating the Free Speech Clause. Now that governments may embrace religious monuments and symbols as their own speech, the obvious question arises whether governments violate the Establishment Clause by permanently displaying a religiously significant object.

Fearing an Establishment Clause violation, some governmental bodies have privatized religious objects and the land beneath them by selling or transferring the objects and land to private parties. Some transactions have included restrictive covenants that require the buyer to maintain the religious object or reversionary clauses that allow the government to reclaim the land. Others have sold or transferred the religious object without soliciting bids from other buyers.

This article provides an in-depth analysis of five cases in which governmental bodies resorted to privatizing public land to avoid violating the Establishment Clause. Drawing from Establishment Clause jurisprudence involving religious displays, this article utilizes the Lemon and Endorsement tests as analytical tools for resolving the constitutionality of land dispositions involving religious displays.

This article considers the purported secular government purposes for selling or transferring land to private parties. The government has sought to justify these land dispositions as a means to provide memorials that honor veterans or promote civic-mindedness, to preserve the religious object in order to avoid showing disrespect to religion, and to avoid violating the Establishment Clause. I argue that these purported government purposes are secondary to a religious interest because there are other alternatives to achieve the government’s purposes.

I also examine the effects of these land dispositions on the reasonable observer. The Herculean efforts exerted by the government to save the religious monument send a message of government endorsement of religion. Restrictive covenants that require the private owner to maintain the religious monument and reversionary clauses that allow the government to reclaim the monument and underlying land perpetuate state action and excessively entangle the government.

I conclude that the best measure to avoid the Establishment Clause is to simply remove the religious object. Removing the religious object will protect the dilution of sacred religious symbols through their secularization and will provide greater inclusiveness in public spaces for religious minorities and nonbelievers.

Steve Clowney

February 12, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, February 11, 2013

Is New Urbanism the End of Land Use Law?

Jonathan Zasloff of UCLA asks why there's very little case law on form-based land use codes:

One can understand that in several ways, I suppose.  You could infer that New Urbanism just leaves less room for legal disputes than traditional Euclidean zoning.  For example, there is no need to worry about non-conforming uses, use variances, or conditional use permits with Form-Based Codes because those codes do not regulate uses to begin with.  Certainly many advocates of New Urbanism might make this argument; they would argue that New Urbanist codes, based upon building form and the transect, are more certain than traditional Euclidean zoning and also more protective of private property precisely because they leave more discretion in the market.  They are right about the general point, but it is hard to argue that any legal framework simply eliminates legal disputes — if it did, it would either be the first such system to do so or rely upon a sort of coercion wholly at odds with New Urbanism.  (Not too many land use disputes under Stalinist land use, but that surely did not reflect an advantage of the system).

Alternatively, you could argue, as many critics of New Urbanism do, that its land use philosophy is essentially a boutique product, suitable for Berkeley, Boulder, or Austin, but not for “real” American places.  Thus, it is not prevalent enough to generate cases.  This argument runs aground on facts.  New Urbanism does not work everywhere, but it is hard not be impressed by the wide variety of American communities that are adopting it.

Steve Clowney

February 11, 2013 | Permalink | Comments (1) | TrackBack (0)

Ruhl on Climate Change

RuhlJ.B. Ruhl (Vanderbilt) has posted A Summary of Present and Future Climate Adaptation Law (Book Chapter) on SSRN.  Here's the abstract:

In anticipation of the inevitable shift from adaptation planning to adaptation action, this chapter provides a background on climate change adaptation policy and a survey of climate impacts and adaptation responses likely to put some demand on legal institutions and rules. The chapter opens by defining the key terms and concepts of climate change adaptation as it has been discussed in major policy analyses. The chapter then summarizes the scope and focus of federal, state, local, tribal, and private climate change adaptation planning initiatives. From there, the chapter reviews the current law of climate change adaptation, which as mentioned above is not yet extensive. What few morsels of legal initiative exist break down into five types: (1) coastal land use controls; (2) environmental impact assessment programs; (3) corporate disclosure requirements; (4) endangered species protection; and (5) anti-adaptation measures The chapter closes with a survey of the potential legal issues climate change adaptation could spark, organized into five categories: (1) land and resources; (2) infrastructure; (3) business disputes and regulation; (4) health and safety concerns; and (5) governance and process.

Steve Clowney

February 11, 2013 | Permalink | Comments (0) | TrackBack (0)