Monday, October 28, 2013
Lee Fennell (Chicago) and Eduardo Penalver (Chicago) have posted Exactions Creep (Supreme Court Review) on SSRN. Here's the abstract:
How can the Constitution protect landowners from government exploitation without disabling the machinery that protects landowners from each other? The Supreme Court left this central question unanswered — and indeed unasked — in Koontz v St. Johns River Water Management District. The Court’s exactions jurisprudence, set forth in Nollan v. California Coastal Commission, Dolan v. City of Tigard, and now Koontz, requires the government to satisfy demanding criteria for certain bargains — or proposed bargains — implicating the use of land. Yet because virtually every restriction, fee, or tax associated with the ownership or use of land can be cast as a bargain, the Court must find some way to hive off the domain of exactions from garden variety land use regulations. This it refused to do in Koontz, opting instead to reject boundary principles that it found normatively unstable. By beating back one form of exactions creep — the possibility that local governments will circumvent a too-narrowly drawn circle of heightened scrutiny — the Court left land use regulation vulnerable to the creeping expansion of heightened scrutiny under the auspices of its exactions jurisprudence. In this paper, we lay out this dilemma and suggest that it should lead the Court to rethink its exactions jurisprudence, and especially its grounding in the Takings Clause, rather than the Due Process Clause. The sort of skepticism about bargaining reflected in the Court’s exactions cases, we suggest, finds its most plausible roots in rule-of-law concerns implicated by land use dealmaking. With those concerns in mind, we consider alternatives that would attempt to reconcile the Court’s twin interests in reining in governmental power over property owners and in keeping the gears of ordinary land use regulation running in ways that protect the property interests of those owners.
Tuesday, October 8, 2013
Monday, July 8, 2013
Professors’ Corner: Wednesday, July 10, 2013: Koontz v. St. John’s River Water Management District: A Significant Victory for Property Rights?
Professors’ Corner is a monthly free teleconference sponsored by the ABA Real Property, Trust and Estate Law Section's Legal Education and Uniform Laws Group. Each month’s call features a panel of law professors who discuss recent cases or issues of interest to real estate practitioners and scholars. Members of DIRT are invited to participate in the call (as well as to join and become involved in the ABA Real Property, Trust and Estate Law Section).
Wednesday, July 10, 2013
12:30 p.m. Eastern time (11:30 a.m. Central, 9:30 a.m. Pacific). Call is ONE HOUR in length.
Call-in number: 866-646-6488
This program will feature a roundtable discussion breaking down the Supreme Court’s important June 25 decision in Koontz v. St. John’s River Water Management District. If “monetary exactions” have always seemed a little untamed to you, you’re not alone. The 5-4 decision in Koontz leaves a lot of room for analysis, and this month’s panel is prepared to guide you through it by parsing the decision and the dissent. Our distinguished panel will include Professor Jonathan H. Adler, who is the Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation at Case Western Reserve University School of Law; John D. Echeverria, Professor of Law at Vermont Law School; and David L. Callies, who is the Benjamin A. Kudo Professor of Law at the University of Hawai’i.
For those that haven’t already seen it, here’s a link to the opinion:
Please join us Wednesday for this great program!
Monday, November 5, 2012
Many many thanks to Steve, Ben, Tanya and Mark for having me. As Steve said, a few familiar names to this blog set out on a wild excusion this past year by signing on as the innaugeral faculty at the Savannah Law School. So what could Savannah Law School offer that would make it worth a move? I'm going to pitch you five reasons why you'll want to make Savannah your home too -- or at least make you want to stop by for a visit.
Young Rock Star Faculty and Amazing Staff (myself excluded from the commentary). Have you ever tried to navagate an 18 person bicycle through an ancient city with your faculty and staff on board -- that's the kind of faculty and staff we have at Savannah Law School. The faculty and staff I have joined make teaching law sooooooo much fun. I have always had fun teaching law. But joining these highly competent, extremely thoughtful, and engaging people have made teaching so much fun this year. So Caprice, Elizabeth, Kelly, Kellyn, Belinda, Montre, Ray and Rose Anne --you rock!
The Building. Our building is a rennovation of a 1790's era hospital -- the largest rennovation in Savannah in the past forty years. Listen to the date again -- 1790's. The depiction above shows the charm that the building will hold for sure, but like so many things, there is more than meets the eye. There are tunnels under the building where people who succumbed to yellow fever in the 18th and 19th century were transported out of the city. And across the street is one of the best parks (Forsythe Park) anywhere. The building (they say) is haunted -- which in itself makes this the most unique law school in the country. This building is just waiting for Al Brophy to begin what I am sure will be an Emmy Award winning show on Bravo -- Monument Hunters. If you believe esthetics are important to education (which is a hard pitch given the plethera of neo-soviet style 1950's bomb shelters canvassing American colleges today), then Savannah might be the right place for you.
The Students. Our students have been awesome. The students are highly talented, multi-versed and, like their faculty, adventurers. They are kind, endearing and not without a little bit of pizzazz.
Savannah Itself. Savannah is one of the oldest cities in the U.S. Steeped in history and covered in spanish moss, Savannah is the crown jewell of the Southeast (all due respect to our Brethren in Charleston and New Orleans). But Savannah has more than just history. There is SCAD. There is Tybee Beach (12 minutes from my house). There is the Port. There are ghost tours everywhere. And the food is amazing.
The Tree. Last but certainly not least, nestled right outside the building is the Candler Oak, the oldest Oak Tree in the State of Georgia. The stories the tree could tell would be amazing.
Later this week I will take some picutres of the inside of the new rennocation and tell you more about this awesome building.
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....
Friday, June 8, 2012
I visited New York City a few weeks ago and stayed in a hotel at 42nd and 10th. My room looked south, so although the weather was hazy for most of my visit, I could observe the construction of 1 World Trade Center and (I think) 4 World Trade Center.
Although I was more than three miles north of the World Trade Center site, the 1 World Trade Center building is obviously significantly taller than any structure south of Times Square. (I know, duh. When it is completed in 2013, with its nearly 400 foot spire, 1 WTC will be the tallest building in the Western Hempishere and the third tallest building in the world.) Following up on Steve's post regarding cranes on the top of skyscrapers, this photo more clearly shows the cranes on top of 4 World Trade Center. Unfortunately, the top of 1 World Trade Center is obscured by clouds.
All of this is background to introducing a really interesting article in today's New York Times regarding the history of skyscrapers. I love the Streetscapes column in the Times -- they do a wonderful job of blending the history of New York City real estate with present issues. This article is no exception. My favorite tidbit:
In 1897 The Record and Guide, alarmed by a proposal for a building 2,000 feet high, protested that New York was open “to attack from the audacious real estate owner” who cared nothing about robbing light from the neighbors, adding, “All that is needed is a barbarian with sufficient money and lunacy.”
The article discusses the historical animosity towards skyscrapers in New York, and the political battles regarding the land use restrictions that were put in place after the turn of the last century. The article begins and ends with a description of the construction of 1 World Trade Center, concluding:
No one talks seriously about banning skyscrapers anymore; indeed congestion has been in recent decades praised, not derided. And so we have before us the prospect of a tower one-third of a mile high, that will be considered a monument of civic pride, a literal triumph out of tragedy. What people would have said in the 1880s and 1890s is barely a footnote.
But as a law professor, of course, I love footnotes.
Thursday, May 17, 2012
Wednesday, May 16, 2012
The New York Times has a fascinating article today about the abandonment of Treece, Kansas, a town built literally on top of zinc and lead mines and now thoroughly, completely, contaminated. The mining companies that caused the contamination and abandoned the mines are, of course, out of business. The town is a parade of horrors -- structures and parts of roads collapse into abandoned tunnels from time to time, the lead dust in the air has led to children with lead-blood levels three times the national average, and the bodies of water that aren't orange are filled with acid. “The only thing polluted in Treece,” says Rex Buchanan, interim director at the Kansas Geological Survey, “is the earth, air and water.”
Yet, the article also describes the people who didn't want to leave, despite every reason to do so. The article describes the remaining residents:
A few blocks away, I saw an immaculate double-wide trailer on a flowery corner lot. Its owners — Della Busby, a shovel-jawed woman with short bangs like Bettie Page’s and a raspy smoker’s growl, and her husband, Tim — had refused the buyout. Treece’s official population was now just two people. “To be honest, I don’t know why everyone left,” Della told me when I found her on her porch later that morning, still in the pink pajama pants and Las Vegas T-shirt she’d slept in. “Despite the obvious, it’s kind of nice out here. I’ve got the place to myself.”
A fascinating, and depressing story.
Monday, February 20, 2012
Christopher Mims profiles L. Brooks Patterson, the county executive of Oakland County, Michigan and the country's most vocal advocate of urban sprawl:
Let’s stop the hysteria and honestly ask ourselves what is sprawl? “Sprawl” is the unfortunate pejorative title government planners give to economic development that takes place in areas they can’t control. In reality, “sprawl” is new houses, new school buildings, new plants, and new office and retail facilities. “Sprawl” is new jobs, new hope and the fulfillment of lifelong dreams. It’s the American Dream unfolding before your eyes.
Wednesday, February 8, 2012
The always-interesting Ken Stahl highlights a recent land use case out of New Jersey. In Sayreville v. 35 Club, the New Jersey Supreme Court held that the first amendment does not necessarily require a municipality to allow the sitting of adult businesses, so long as adult ventures have adequate access to locations elsewhere in the metro region (even if those locations are across state borders).
Stahl dubs this "the bizarro Mount Laurel Doctrine" and argues that it has the potential to create new red light disctricts. He writes, "Those communities that have permitted land uses deemed undesirable by other communities, perhaps out of a willingness to absorb their fair share, will be branded as red-light districts or ghettos and become dumping grounds for undesirable uses, while those that have guarded their exclusiveness most zealously will get to continue doing so for no better reason than that they always have."
Thursday, December 22, 2011
Matt Yglesias pushes to "up zone" Manhatten:
[A]t a minimum if there are vacant lots or teardown candidates anywhere in Manhattan (and yes, these exist) or along subway lines it would be very much in the interests of the city and the country as a whole to build on them as densely as the market will bear. This is much greener than having the suburbs expand further, and besides which we should be allowing as many people as possible to get access to the great cities of the world.
Monday, December 19, 2011
The New York Times runs an important story on the increasing tension between states and local governments over control of shale gas drilling:
The battle is playing out in Pennsylvania as the Republican-controlled legislature considers bills that would in their current form sharply limit a community’s right to control where gas companies can operate on private property. Critics say the final bill could vastly weaken local zoning powers and give industry the upper hand in exchange for a new tax, which municipalities badly need.
Wednesday, November 30, 2011
Edward McMahon of the Urban Land Institute mulls over the 85th anniversary of Euclid v. Ambler and comes to the conclusuion that although "some anti-government activists argue that we don’t need zoning and that land use planning is somehow akin to socialism. In fact, planning is the multi-faceted process that communities use to prepare for change." Along the way he dismisses "myths" that "Houston, Texas disproves that zoning is unncessary" and that "zoning is un-American."
Monday, November 14, 2011
The D.C. Zoning Board gets hot & heavy trying to figure out what constitutes a "sexually oriented business:"
Meridith Moldenhauer . . . debated from the dais with BZA newbie Lloyd Jordan about whether entertainment had to be intentionally arousing to its audience in order to qualify as a SOBE, or if it could merely be incidental.
Video of the Zoning Board hearing can be found here (go to 3:38:51 for the relevent discussion).
Friday, November 11, 2011
The New York Times runs a story on the zoning changes that are making it possible for extended families to all live on the same lot:
California, Massachusetts, Vermont and Washington — have enacted laws encouraging or requiring changes to the zoning rules to permit the so-called accessory dwelling units.
Thursday, November 10, 2011
Matt Festa (South Texas) has posted Academic Research and Writing as Best Practices in a 'Practically Grounded' Land Use Course (Pace Envtl Law Review) on SSRN. Here's the abstract:
Land use is a discipline that involves diverse academic, practical, and social perspectives; it is also an ideal subject for applying nontraditional teaching methods, including those suggested by the “best practices” movement in legal education. In this article - a contribution to the “Practically Grounded” conference on teaching land use and environmental law - I suggest that a scholarly research and writing focus can help students develop their practical and analytical skills and values while achieving “best practices” goals in the context of a doctrinal land use course. In the article I set forth a pedagogical basis for including an academic writing component in a doctrinal land use course; and I discuss the experience of teaching a large land use class with a significant research and writing component. The benefits from an academic writing focus may also apply to teaching in other doctrinal fields.
Monday, October 17, 2011
An article at Slate discusses the requirements for claiming a property interest in a set of dance moves. The piece then reports that "Beyoncé may have cribbed dance moves from a Belgian choreographer, Anne Teresa de Keersmaeker, for her new music video “Countdown.” See for yourself:
Bonus fun: The article looks into the zoning implications of the movie Footloose.
Monday, October 3, 2011
There is an interesting article in The Economist regarding the proposal to bring the Keystone XL oil pipeline from the tar sands of Alberta, Canada to Texas. The new pipeline will cross Montana, South Dakota, Nebraska, Kansas, and Oklahoma on its way to Port Arthur, but apparently it is the Cornhuskers who are raising the biggest stink. The main reason is concern about potential contamination of the Ogallala aquifer:
"Many Nebraskans are worried that a leak from the pipeline might pollute the Ogallala aquifer, a vast underground reservoir that stretches from South Dakota to Texas and provides Nebraska with almost all its tap water and irrigation. The aquifer rises especially close to the surface in the Sand Hills region in the north of the state, near Mrs Luebbe’s ranch. The water table is so high, explains one of her neighbours, that if you drive a piece of piping three or four feet into the ground, water clean enough to drink will start gushing out."
The article doesn't explain how TransCanada will acquire the rights to bring the pipeline through the United States, but I presume that eminent domain will be involved. That's interesting, since apparently the pipeline so unpopular in Nebraska that even the state's Republican governor has written to Hillary Clinton, asking her to refuse the required permits unless TransCanada modifies the pipeline's route.
Friday, August 26, 2011
Keith Hirokawa (Albany) has posted Making Sense of a 'Clear Misunderstanding of the Planning Process': Examining the Relationship Between Zoning and Rezoning Under the Change-or-Mistake Rule on SSRN. Here's the abstract:
In some states, zoning is marked by the persistence of the so-called “change or mistake rule." In contrast to the traditional deference afforded to local zoning decisions, this rule limits the freedom of local governments to make site-specific zoning amendments by burdening the applicant to justify the rezone with evidence of a mistake or a substantial change in circumstances since the initial zoning designation was adopted. Despite being chastised in the courts and labeled in legal literature as a “clear misunderstanding of the planning process,” the rule has endured for over a half a century. This article explores the criticisms of and justifications for the change or mistake rule in order to identify the understanding that supports its continued application. Specifically, this article argues that the change or mistake rule was intended as a mediator between two fundamental purposes of zoning - maintaining communities that have sufficient flexibility to implement a new community vision, while providing stability and certainty as a planning device.
Tuesday, August 23, 2011
Here's a podcast that explains everything you ever wanted to know about cul-de-sacs.