PropertyProf Blog

God and Land at Albany

The Albany Government Law Review and Government Law Center at Albany Law School are cosponsoring a conference called God and the Land:  Conflicts Over Land Use and Religious Freedom.  The conference will be held at Albany Law from October 1-3, 2008.  They have a great group of speakers.

Ben Barros

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Bromley on Land Formalization

The Journal of Land Use Policy has an article in press by Daniel W. Bromley (Wisconsin, Applied Economics) called Formalising Property Relations in the Developing World: The Wrong Prescription for the Wrong Malady.  I can't find a link now, but will post one if it becomes available.  Here's the abstract:

Formalisation of property relations through the registration of land and the issuance of titles is but the latest in a long history of optimistic policy prescriptions imposed on the poor nations of theworld. As with the discreditedWashington Consensus, the imperative of formalisation flows from the flawed inductive logic that says” “rich countries have formalised tenure, therefore formalisation of tenure will help make you rich.”Unfortunately,empirical research on formalisation of tenure as a stimulus to agricultural investment is unable to establish any robust and reliable connection between “more secure” tenure and enhanced agricultural productivity. Urban slum dwellers who get titles but who are without work cannot possibly leverage credit from the banking sector. Formalisation erodes and displaces existing social networks and arrangements that do offer security. Formalisation offers little assurance that beneficial outcomes are inevitable. As with a long list of previous simple solutions to complex problems, this too shall pass.

This should be of interest to folks who are interested in Hernando de Soto's work (either pro or con).

Ben Barros

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Rose on Public Infrastructure and Environmental Resources

Carol M. Rose (Arizona) has posted Big Roads, Big Rights: Varieties of Public Infrastructure and Their Impact on Environmental Resources on SSRN.  Here's the abstract:

Two types of public infrastructure-roads and property rights-are often thought critical to economic development; this article compares their impacts on the natural environment. Both roads and property rights draw unfamiliar persons to remote areas, undermine existing informal resource practices, and enhance wide commercial trade, creating wealth but also reducing local resource diversity. New kinds of property rights hold much promise for environmental protection, but unlike roads and conventional property rights, environmental property rights would be tasked with curtailing commerce, as in roadless areas and caps on resource use. This sharp divergence from the traditional commercial mission of public infrastructure can limit support for environmental property rights, creating an opening for fuzzier and more consultative versions of environmental property.

Ben Barros

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McLaughlin on Eminent Domain, Open Space, and Electric Transmission Corridors

Nancy A. McLaughlin (Utah) has posted Condemning Open Space: Making Way for National Interest Electric Transmission Corridors (or Not) on SSRN. Here's the abstract:

The Energy Policy Act of 2005 authorizes the Secretary of Energy to "designate any geographic area experiencing electric energy transmission capacity constraints or congestion that adversely affects consumers as a national interest electric transmission corridor." In 2007, the Secretary formally designated the Southwest Area National Corridor (which includes counties in California and Arizona) and the Mid-Atlantic Area National Corridor (which includes counties in Ohio, West Virginia, Pennsylvania, New York, Maryland, and Virginia, as well as all of New Jersey, Delaware, and the District of Columbia). Once the Secretary designates a National Corridor, the Federal Energy Regulatory Commission can issue permits to public utilities authorizing them to exercise the power of eminent domain to acquire rights-of-way to construct electric transmission facilities in the corridor. Questions have been raised in Virginia regarding the extent to which public utilities can exercise this power of eminent domain to condemn land encumbered by conservation easements. Some worry that land encumbered by conservation easements, which by definition is largely undeveloped, will be a natural target for condemnation because of the political difficulties associated with locating steel towers supporting high voltage transmission lines in populated areas. Others believe that encumbering land with a conservation easement can insulate the land from condemnation. This article discusses the extent to which public utilities may or may not have the right under either federal or Virginia law to condemn conservation easements.

Ben Barros

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Ostrow on Judicial Review and RLUIPA

Ashira Ostrow (Hofstra) has posted Judicial Review of Local Land Use Decisions: Lessons from RLUIPA on SSRN.  Here's the abstract:

This Article questions whether traditional judicial deference to local land use regulators is justified in light of the highly discretionary, and often corrupt, system of modern land use regulation. In 2000, Congress determined that unlike other forms of economic legislation, land use regulation lacks objective, generally applicable standards, leaving zoning officials with unlimited discretion in granting or denying land use applications. Congress further concluded that this unlimited discretion lends itself to religious discrimination. Congress therefore enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA), which requires courts to strictly scrutinize land use decisions that impact religious land users.

Since its passage, the constitutionality of RLUIPA has been extensively debated. Many scholars maintain that RLUIPA is an overly broad exemption that creates a privileged class of land users and allows religious institutions to avoid a community's reasonable land use concerns. In contrast, this Article argues that Congress, through RLUIPA, identified a global flaw in land use regulation which impacts all land users, but limited its remedy to religious land users. While RLUIPA's strict scrutiny review is clearly inappropriate for land use cases that involve neither fundamental rights nor suspect classes, traditional judicial deference is equally inappropriate in light of the discretionary nature of modern zoning. Fortunately, the Supreme Court established the appropriate standard of review in its earliest zoning cases. Thus, this Article maintains that RLUIPA is significant because it highlights a global flaw in local land use and because its bifurcated approach to judicial review of zoning decisions revives an early facial/as-applied dichotomy in land use jurisprudence and encourages more meaningful judicial review of all as-applied land use decisions.

Ben Barros

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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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McLaughlin on Condeming Conservation Easements

Nancy A. McLaughlin (Utah) has posted Condemning Conservation Easements: Protecting the Public Interest and Investment in Conservation on SSRN. Here's the abstract:

The public is investing substantial financial and other resources in conservation easements and the conservation and historic values they protect. Yet little has been written about who should be entitled to what when land encumbered by a conservation easement is condemned in whole or in part. This Article explores these issues. It first demonstrates that conservation easements should constitute a compensable form of property for purposes of the Takings Clause of the Fifth Amendment. Then, using well-settled eminent domain valuation principles, it describes how just compensation should be calculated and apportioned between the holder of a conservation easement and the owner of the encumbered land upon the taking of all or any portion of the encumbered land. The Article explains that paying the economic value attributable to a conservation easement upon its condemnation to the owner of the encumbered land would confer an undue windfall benefit on the owner at the public's expense. The Article also explains that allowing condemning authorities to take easement-encumbered land without paying for the easement would have the perverse and counterproductive effect of making land protected for its conservation or historic values cheaper to condemn than similar unprotected land.

Ben Barros

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Davies on Assured Supply Laws

Lincoln Davies (Utah) has posted Just a Big, 'Hot Fuss'? Assessing the Value of Connecting Suburban Sprawl, Land Use, and Water Rights Through Assured Supply Laws on SSRN.  Here's the abstract:

States and localities increasingly recognize the need to link land use and water supply planning. As the populace grows and sprawl continues, the strain on available natural resources, particularly water, makes this recognition all the more important. This Article addresses an increasingly common type of this planning link "assured supply" laws that require developers to prove they have secured adequate water stock before commencing construction. The Article performs a qualitative analysis of the potential benefits and costs of such laws and finds that, on balance, assured supply laws provide at least five significant benefits: consumer protection, greater holistic project- and agency-level planning, improved efficiencies in water rights allocation, and increased water conservation. Notably, however, these laws appear to do very little to diminish sprawl and, if designed incorrectly, may actually exacerbate it. The Article then extracts five dimensions around which localities might design their assured supply laws to maximize their benefits and minimize possible costs, concluding that such laws are most likely to deliver optimal benefits when they are (1) mandatory, (2) stringent, (3) statewide, (4) broadly applicable, applying to more than only large projects, and (5) interconnected with broader land-water and environmental lanning mechanisms.

Ben Barros

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Salkin and Lavine on RLUIPA and Federalism

Patricial Salkin and Amy Lavine (Albany Law School) have posted The Genesis of RLUIPA and Federalism: Evaluating the Creation of a Federal Statutory Right and its Impact on Local Government on SSRN.  Here's the abstract:

In 2000, Congress passed, and President Clinton signed, the Religious Land Use and Institutionalized Persons Act (RLUIPA), designed to provide protection from discrimination for the exercise of religion for incarcerated individuals and for those in need of various municipal permits or approvals in order to exercise their religion. With seven years of experience in the courts, this article examines the impact of RLUIPA on local governments across the country through an analysis of how the courts have been interpreting and applying statutory ambiguities and creating inconsistent doctrine in an effort to define terms and implement RLUIPA's protections. Whether an appropriate Solomon-like balance can be developed under the Act to clearly recognize compelling governmental interests in protecting the public health, safety and welfare through land use planning and various land use and local environmental controls remains elusive at this point in time and may depend upon the wisdom of the individual federal courts.

Section II of this article explores the uncomfortable relationship of government with religion, and the manner in which this relationship has affected the genesis of the constitutional interpretations of the Free Exercise Clause of the First Amendment. What constitutes the establishment of religion and whether RLUIPA aids government in the establishment of religion is beyond the scope of this article and will not be discussed in detail. Section II also examines the precursor to RLUIPA, the Religious Freedom Restoration Act (FRFA), enacted by Congress in 1993 and ruled unconstitutional in 1997. Understanding Congressional motivation for the enactment of RFRA, as well as its constitutional deficiencies, sets the backdrop for the last part of the section, which discusses the Congressional development and enactment of RLUIPA, including why Congress chose land use as a primary focus of religious freedom.

Section III briefly reviews the arguments surrounding the constitutionality of RLUIPA, and while not attempting to fully analyze this issue, the discussion is provided since some believe that the statute's constitutionality as it relates to the land use provisions may be vulnerable to further constitutional attack.

Section IV discusses the operative provisions of RLUIPA, including both the substantial burden rule and the Act's nondiscrimination provisions. It explores how the courts have interpreted RLUIPA and its ambiguous terms, and discusses how various cases have been decided. Attorney's fees are also touched on.

Section V argues why RLUIPA, as drafted, may not necessarily bode well for local governments and their historical use of the police powers to guide community planning and community development. The article concludes with some final comments concerning the propriety of and need for RLUIPA.

Ben Barros

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Is a 26-bathroom Mansion a Single Family Home?

CNN has a story about this pressing question.

Ben Barros

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Lewyn on Five Myths About Sprawl

Michael Lewyn (Florida Coastal) has posted Five Myths About Sprawl on SSRN.  Here's the abstract:

In Sprawl: A Compact History, Robert Bruegmann, an art historian, has painted a superficially convincing case for the status quo, asserting that sprawl is "a natural result of affluence that occurs in all urbanized societies." Bruegmann's book has generated glowing media publicity. This article suggests that Bruegmann overestimates the universality of sprawl, by overlooking the differences between pedestrian-friendly cities with some sprawling development and cities in which automobile-dependent sprawl is the only choice available to most consumers. In addition, Bruegmann understates the harmful social effects of sprawl, especially the effect of automobile-dependent development upon non-drivers. Bruegmann also consistently underestimates the role of government spending and regulations in creating sprawl and, as a result, fails to adequately discuss the possibility that sprawl can be reduced by limiting, rather than increasing, the size and intrusiveness of government.

Ben Barros

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Anderson on Zoning Board Composition

Jerry L. Anderson (Drake University Law School) has posted A Study of American Zoning Board Composition and Public Attitudes Toward Zoning Issues on SSRN.  Here's the abstract:

In the United States, many important land use decisions are made, at least in the first in-stance, by administrative bodies composed of local citizens, appointed by the mayor or city council. These boards, typically designated the Planning and Zoning Commission and the Board of Zoning Adjustment, are often suspected of favoritism and bias, in exer-cising authority ranging from the adoption of comprehensive land use plans and zoning amendments to granting variances or special use permits. However, courts routinely give board decisions great deference, adopting a presumption of validity based on the notion that these boards are composed of the proper representatives of the community.

In order to test that assumption, we surveyed the nation‘s largest cities to determine the occupations of their zoning board members. The results indicate that zoning boards are dominated by citizens with white-collar occupations. About three-quarters of zoning board members hold professional, technical or managerial jobs, despite comprising only a third of the national workforce. In addition, over 30% of board members have a direct interest in property development.

To determine the potential effects of this occupational skew, we conducted a survey of citizens to determine whether their attitudes toward controversial land use issues vary ac-cording to demographic factors, including occupation. We found significant differences, although not always in ways we expected. In the end, these results indicate that cities should attempt to appoint a broader cross-section of the community to zoning boards. Although planners, lawyers, and other professionals were necessary in the past, we question whether particular expertise is necessary to accomplish the tasks assigned to modern zoning boards. Finally, if zoning boards continue to be dominated by interest groups, courts may need to reconsider the deference they typically grant to board decisions.

Ben Barros

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Johnson on Zoning and Sex Offenders

Asmara T. Johnson (Thurgood Marshall School of Law) has posted In the Zone: Sex Offenders and the Ten Percent Solutions on SSRN. Here's the abstract:

This Article challenges prevailing judicial orthodoxy that many sex offender residency restrictions are constitutional under the federal Ex Post Facto Clause. The paper applies the analytical framework in Smith v. Doe, the Court's most recent case involving sex offender legislation. It also forges a new way of thinking about these regimes as land-use policies that "negatively" zone individuals out of the urban cores. The paper proposes an innovative "positive" zoning scheme, the Sex Offender Containment Zone, that zones high-risk convicted sex offenders back into the city and that is effective, humane, and constitutional.

At first glance, sex offender residency restrictions appear plausible because they ostensibly place a convicted sex offender's residence out of reach of children. However, these regimes address less than 10% of the very real problem of child sex abuse, as over 90% of this abuse is committed by a family member or acquaintance of the child. On the other hand, many schemes effectively banish almost 100% of convicted sex offenders to society's literal and psychic margins, condemning many low-risk offenders who pose minimal recidivist risk to a lifetime of isolation and breeding optimal conditions for high-risk offenders to re-offend. The practical implications of this policy choice, therefore, are dangerous and real, lulling the public into a veritable false sense of security.

Ben Barros

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Right to Sunlight in California

From CNN:

In an environmental dispute seemingly scripted for eco-friendly California, a man asked prosecutors to file charges against his neighbors because their towering redwoods blocked sunlight to his backyard solar panels.

But the couple next door insisted they should not have to chop down the trees to accommodate Mark Vargas' energy demands because they planted the redwoods before he installed the solar panels in 2001. . . .

After more than six years of legal wrangling, a judge recently ordered Richard Treanor and his wife, Carolyn Bissett, to cut down two of their eight redwoods, citing an obscure state law that protects a homeowner's right to sunlight.

The couple does not plan to appeal the ruling because they can no longer afford the legal expenses, but they plan to lobby state lawmakers to change or scrap the law.

The Solar Shade Control Act means that homeowners can "suddenly become a criminal the day a tree grows big enough to shade a solar panel," Treanor said.

The case marks the first time a homeowner has been convicted of violating the law, which was enacted three decades ago, when few homeowners had solar systems.

The law requires homeowners to keep their trees or shrubs from shading more than 10 percent of a neighbor's solar panels between 10 a.m. and 2 p.m., when the sun is strongest. Existing trees that cast shadows when the panels are installed are exempt, but new growth is subject to the law.

Ben Barros

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Late 1800's San Francisco Spite Fence

I have a thing for spite fence cases.  My Mom sent along a link to this 1902 story (with photos) about a great spite fence (40 feet tall!!!) in San Francisco's Nob Hill neighborhood.  As an added bonus for propertyprofs, the story involves a land assembly issue:  the spite fence was put up around a holdout.  Some excerpts:

The Yung lot is the only portion of the block bounded by California, Taylor, Sacramento and Jones streets which Charles Crocker was unable to secure, when he erected his mansion there. Nicholas Yung, who was in the undertaking business and who was comfortably fixed, although not wealthy, preferred to stay in his Nob hill home. He and his family enjoyed the view and the other advantages of the situation as much as did Crocker, and he saw no reason why he should trade his residence for some other property which Crocker offered him, and emigrate. Crocker was willing to give him $6000, but we would not sell, even when the blasting on the Crocker site sent rocks flying around his house and the grading left his place up in the air. Finally Crocker threatened to fence in the Yung home, and at last Yung said he would sell for $12,000. Crocker refused to pay that sum, and carried out his threat to put up the fence. Yung did not consider the price he asked exorbitant, it being said that Flood paid $25,000 for a similar lot when he wished to get a complete block on Nob Hill.  . . .

The fence cost about $3000, but Crocker was a millionaire and did not mind the expense, and he had the satisfaction of driving the Yung family away from their home. Their house was boxed up and the sunlight shut out, and Yung was compelled to move the dwelling to another lot which he owned on Broderick street. The tall fence destroyed the value of the Sacramento street lot, which for about a quarter of a century has remained unused and unsightly. . . .

Ben Barros

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Zoning and the Subprime Crisis

Over at the VC, Ilya Somin has a post on possible links between restrictive zoning and the subprime market.  I have to say that I'm a bit skeptical.  I can see how zoning increases housing prices, but I can't see too much of a link between zoning and people getting mortgages on houses that they couldn't afford.

Ben Barros

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Saxer on Religious Accessory Uses

Shelley Ross Saxer (Pepperdine) has posted Faith in Action: Religious Accessory Uses and Land Use Regulation on SSRN.  Here's the abstract:

This article details the application of constitutional, land use and tax law principles to non-religious facilities and activities, within religious institutions, considered accessories or auxiliaries to the institutions' principal religious function. To qualify them as accessory uses, the religious institution must establish that these non-religious/secular uses are necessary to the religious exercise of the institution's members and guests. The article compares the tests for accessory uses applied in land use cases interpreting the Religious Land Use and Institutionalized Persons Act (RLUIPA), with the test for auxiliary uses employed by cases determining the tax exempt status of certain religious organizations. The idea of accessory uses was developed in land use law according to the principle that because the primary use (religious worship) was permitted under the zoning regulations or a variance, the secondary and incidental uses should likewise be protected. On the other hand, the integrated auxiliary principle proceeds from the idea that the religious institution should not be burdened by government regulation. Therefore, those activities and facilities meeting the definition of an integrated auxiliary likewise cannot be burdened. The article proposes that the rationale behind providing protection for accessory uses under the RLUIPA and the rationale behind offering tax relief for religious auxiliary uses are the same: that religious exercise should not be unnecessarily burdened by the government. Therefore, the article suggests a consolidated approach be created wherein an auxiliary use that qualifies for tax exempt status likewise should warrant protection under the RLUIPA as an accessory use, and vice versa. By combining the approaches for tax exemption and land use regulation, religious freedom will be more consistently secured. To avoid violating the Establishment Clause, the article warns, the government must not become so entwined with legislating or acting in the area of religious worship as to express a preference for one religion over another, or religion over irreligion. Ultimately, it is a difficult line that the state or federal government must walk: avoiding interference with religious exercise on one side and benefiting or preferring a certain religion over another on the opposite side. The article concludes that the laws governing tax exemptions can inform land use cases struggling with the issue of accessory uses and constitutional protection under RLUIPA. There are three reasons why tax laws are helpful: 1) tax courts and legislatures have struggled to answer the same basic question of what constitutes an accessory use; 2) tax laws have embraced a more cooperative approach, allowing religious institutions to define which accessory uses are reasonably devoted to church purposes (and therefore deserving of tax exemption); and 3) tax courts have increasingly recognized that the term religious use constitutes some activities, such as recreation and social gatherings, not traditionally considered religious in nature. On the other hand, land use decisions have not provided any consistent approach to identifying accessory religious uses, and some courts have required the religious institution to independently establish the religious nature of the use without the benefit of referencing the primary religious function of the organization. Finally, the article proposes that the RLUIPA be broadly construed to protect all accessory uses that contribute directly to the religious mission of the institution, regardless of whether their independent religious nature is established.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Salkin and Lavine on RLUIPA

Patricia Salkin and Amy Lavine (Albany Law School) have posted The Genesis of RLUIPA and Federalism: Evaluating the Creation of a Federal Statutory Right and its Impact on Local Government on SSRN.  Here's the abstract:

In 2000, Congress passed, and President Clinton signed, the Religious Land Use and Institutionalized Persons Act (RLUIPA), designed to provide protection from discrimination for the exercise of religion for incarcerated individuals and for those in need of various municipal permits or approvals in order to exercise their religion. With seven years of experience in the courts, this article examines the impact of RLUIPA on local governments across the country through an analysis of how the courts have been interpreting and applying statutory ambiguities and creating inconsistent doctrine in an effort to define terms and implement RLUIPA's protections. Whether an appropriate Solomon-like balance can be developed under the Act to clearly recognize compelling governmental interests in protecting the public health, safety and welfare through land use planning and various land use and local environmental controls remains elusive at this point in time and may depend upon the wisdom of the individual federal courts.

Section II of this article explores the uncomfortable relationship of government with religion, and the manner in which this relationship has affected the genesis of the constitutional interpretations of the Free Exercise Clause of the First Amendment. What constitutes the establishment of religion and whether RLUIPA aids government in the establishment of religion is beyond the scope of this article and will not be discussed in detail. Section II also examines the precursor to RLUIPA, the Religious Freedom Restoration Act (FRFA), enacted by Congress in 1993 and ruled unconstitutional in 1997. Understanding Congressional motivation for the enactment of RFRA, as well as its constitutional deficiencies, sets the backdrop for the last part of the section, which discusses the Congressional development and enactment of RLUIPA, including why Congress chose land use as a primary focus of religious freedom.

Section III briefly reviews the arguments surrounding the constitutionality of RLUIPA, and while not attempting to fully analyze this issue, the discussion is provided since some believe that the statute's constitutionality as it relates to the land use provisions may be vulnerable to further constitutional attack.

Section IV discusses the operative provisions of RLUIPA, including both the substantial burden rule and the Act's nondiscrimination provisions. It explores how the courts have interpreted RLUIPA and its ambiguous terms, and discusses how various cases have been decided. Attorney's fees are also touched on.

Section V argues why RLUIPA, as drafted, may not necessarily bode well for local governments and their historical use of the police powers to guide community planning and community development. The article concludes with some final comments concerning the propriety of and need for RLUIPA.

Ben Barros

[Comments are held for approval, but there will be some delay in posting]

Private Road Act Litigation

Pennsylvania has a Private Road Act that allows owners of landlocked parcels to condemn a private road for access to a nearby public road.  The Pennsylvania courts have interpreted the Private Road Act as requiring a degree of necessity that is short of strict necessity but that still imposes a fairly high hurdle for the petitioner.  In re Packard, 926 A.2d 557 (Comm. Ct. 2007) is an interesting example.  Petitioners had access to their property through a run-down private road.  They argued that use of this road was impractical; the court rejected their claim because they had not met their burden to prove necessity.  The case is discussed in this story from the Harrisburg Patriot News, though the story doesn't really capture the role of necessity in the court's analysis.

Ben Barros

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Prescriptive Easement Beach Access Case From My Hometown

From the Boston Globe:

In a case that may send legal ripples across the South Shore, some Hingham homeowners have won the right to use a crescent-shaped sliver of beach, defeating property owners who erected a locked gate and tried to deny them access.

The three-year legal battle ignited a storm of controversy in the quiet Crow Point section of town, pitting neighbor against neighbor in a battle over who could use the rocky beach, which has spectacular views of the harbor and its islands.

The Dec. 12 ruling by Land Court Judge Alexander H. Sands III was in some ways a split decision. He ruled that the plaintiffs had no deeded rights to the beach. However, those who had used the beach for 20 years or more had established a right-of-way and could continue using it.

The ruling meant that seven families obtained an easement to the beach, while three families did not, including one family that had used the beach for 19 1/2 years. The easement continues with their houses when they are sold.

Ben Barros (Hingham High School '87)

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Private Property v. Beach Access in Hawaii

Reader David Peterson pointed me in the direction of a series of news articles on an interesting beach access dispute in Hawaii.  From an overview article in the Star Bulletin:

Some beachgoers are upset that a gate was installed on a private road in Kailua that blocks access to Kailua Beach Park.

A "no beach access" sign was placed at the entrance of L'Orange Place when the gate was installed a month ago. . . .

Some mornings, Dianne Price would find used condoms on her mock orange bushes.

Some nights at 2 a.m., large groups would walk down her lane to build bonfires on Kailua Beach.

Those and other concerns led the residents of L'Orange Place to put up a locked gate blocking their private road. That was a month ago.

Some beachgoers are now complaining about the loss of convenient access.

"It seems, at best, unneighborly," said Ben Willkie, a Kainui Drive resident who had used the route at least once a week to head to the beach with his wife, Veronica, and 5-year-old son. . . .

"There are a lot of people alarmed by this," said Robert Moncrief, a resident since 1970. "I think this whole thing is a travesty. ... They're excluding all these people."

The Moncriefs said they fear more gates will be installed at other private side streets along Kalaheo Avenue, further blocking access to the beach.

"It's going to start this chain of reaction of exclusivity," he said.

City Council Chairwoman Barbara Marshall, who represents District 3 (Waimanalo-Kaneohe), said that while it is frustrating for beachgoers, the residents are within their rights.

"It's a private beach access owned by the adjacent homeowners," she said.

Homeowners who allow public access receive a tax break. L'Orange Place residents had opted to pay additional taxes when the gate was installed, she added.

There is another public access route about 200 yards away, near Kailuana Street.

The dispute is discussed in this op-ed, and in this follow-up article.  Some useful discussion of the issue can also be found at the Beach Access Hawaii website.  I'll defer substantive discussion to our resident Aloha Jurisprudence experts, Al Brophy and Carl Christensen.

Ben Barros

Photo from Wikipedia Commons

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McLaughlin on Conservation Easements

Nancy A. McLaughlin (Univ. of Utah) has posted Conservation Easements: Perpetuity and Beyond on SSRN.  Here's the abstract:

Perpetual conservation easements are intended to protect the particular land they encumber for the conservation purposes specified in the deed of conveyance in perpetuity, or at least until circumstances have changed so profoundly that continued protection of the land for those purposes is no longer feasible. To protect the public interest and investment in perpetual conservation easements, and, at the same time, permit adjustments to be made to respond to changing conditions, such easements should be treated like any other form of charitable asset acquired by a government or charitable entity for a particular charitable purpose -i.e., as subject to equitable charitable trust principles. This Article outlines the considerable support for applying charitable trust principles to perpetual conservation easements, including uniform laws, the Restatement of Property, federal tax law, and judicial activity on this issue to date. This Article cautions that perpetual land protection is not appropriate in all circumstances and recommends a more considered use of perpetual conservation easements as a land protection tool. This article also explores the possible use of a number of nonperpetual conservation easements to accomplish land protection goals.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Third Circuit RLUIPA/Eminent Domain Case

A divided Third Circuit panel recently decided Lighthouse Institute for Evangelism v. City of Long Branch, a RLUIPA case with a redevelopment/eminent domain twist.  The New Jersey Eminent Domain Blog has a recap of the case.  An excerpt:

In its precedent setting 96-page opinion, the Third Circuit ruled 2-1 in favor of the City of Long Branch against Reverend Kevin Brown and the Lighthouse Institute for Evangelism in their attempt to establish a church at 162 Broadway within the Broadway Corridor Redevelopment area. However, the court remanded the case to Judge William Walls in the U.S. District Court for further findings on the plaintiff's challenge to the C-1 ordinance, the zoning for the subject property prior to the adoption of the redevelopment ordinance and plan, under RLUIPA's Equal Terms provision. The court was unanimous that the C-1 ordinance violated RLUIPA. This will entitle the plaintiffs to damages, counsel fees, and costs. . . .

The majority opinion, written by senior Judge Jane Roth, affirms the entry of summary judgment by Judge William Walls of the U.S. District Court. The dissent, filed by Judge Kent A. Jordan, disagreed with the majority regarding the redevelopment plan ordinance. Judge Jordan said that both ordinances failed to treat religious and non-religious assemblies on equal terms and, therefore, violate the very purpose for which the RLUIPA statute was enacted.

Judge Jordan noted that both ordinances, as interpreted by Long Branch,  prohibit religious use categorically. Judge Jordan reasoned that, if the majority reading of RLUIPA were correct, local governments could effectively render RLUIPA meaningless. Both the Becket Fund for Religious Liberty and the Department of Justice Civil Rights Division argued as amicus in support of Reverend Brown and the Lighthouse Mission. This decision is at odds with other decisions regarding RLUIPA in other circuit courts and may well end up before the United States Supreme Court.

The location of houses of worship, temples, mosques, and evangelical congregations is an issue that comes up frequently in New Jersey. Protracted battles in Rockaway Township ensued over the site selection by Dr. David Ireland, pastor of the 5000-member Christ Church. That church, a predominantly African American evangelical congregation, sought to move from its Montclair location to the former Agilent site in Rockaway. The relocation of the church was vigorously contested by a group of local residents. In Wayne, an Albanian mosque pursued litigation against the township of Wayne because the planning board delayed the plaintiff’s land use application.

Ben Barros

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PA Supreme Court Overrides Zoning Objections to Casinos

The Pennsylvania Supreme Court recently ordered Philadelphia to approve the zoning for a casino.  From the Philadelphia Inquirer:

The Pennsylvania Supreme Court went over Philadelphia's head yesterday and cleared the way for construction to begin on the $550 million SugarHouse casino in Fishtown and Northern Liberties.

Finding "deliberate inaction" in City Council's longstanding failure to vote on SugarHouse's zoning and land-use requests, the court took it upon itself to issue the go-ahead. . . .

The city "ultimately has no discretion to preclude gaming," the court's opinion stated. "We conclude that the undisputed documentation establishes the deliberate inaction by Council for the purposes of delay."

The court ordered that SugarHouse's site, approved last December by the Pennsylvania Gaming Control Board, be granted the requisite zoning as a commercial entertainment district.

It also declared that SugarHouse's development plan, approved in May by the city Planning Commission, be given final approval with no further input from Council. . . .

"This really does not deter us. This actually infuriates us," said Debbie King, vice president of the Northern Liberties Neighbors Association. "We are outraged by the courts and the city government officials that are trying to jam these casinos down our throats. Where are our rights?"

Ben Barros

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Interesting Sign Dispute, With Eminent Domain Twist

From the Saint Louis Post-Dispatch:

Supporters say it's a political statement, maybe even art. The city says it's too big, a nuisance that needs to be removed.

Either way, a two-story mural decrying eminent domain is testing the boundaries of the First Amendment, sparking a federal lawsuit that challenges the city's intricate zoning code.

At issue is a tricky constitutional dilemma — fighting clutter versus protecting free speech — that experts say could force St. Louis to rewrite its laws regarding outdoor signs. . . .

Painted on the side of a brick apartment building near Soulard, the mural faces drivers heading downtown on Gravois Avenue. It advocates an end to "eminent domain abuse," the mantra of veteran activist Jim Roos.

Roos is among the state's leaders in the fight against eminent domain, an issue that has gained visibility since a 2005 Supreme Court ruling that cities can use eminent domain to promote economic development. He has testified in Jefferson City and clashed with city officials who support eminent domain. . . .

In April, the building division cited Roos for having an illegal sign. At about 360 square feet, the eminent domain mural is more than 10 times larger than the size allowed for signs in that section of the city.

Three surrounding neighborhood associations have submitted letters opposing the sign, as did the local alderman, Phyllis Young.

"He should rent a billboard," Young said.

Roos fought the citation, claiming the city was targeting him not because of the size of his sign, but because of its message.

"I think if it said, 'Go Cardinals,' we wouldn't have any problems," Roos said.

The city routinely approves exemptions for large signs. On the same day a city panel rejected Roos' claim, it granted an appeal by Laclede Gas to display a sign of over 1,000 square feet on the utility's downtown headquarters.

Even so, content is not the issue, city officials say — it's keeping the city tidy.

"Can you imagine what our city would look like if everyone were allowed to paint a 363-square-foot, two-story sign on their buildings?" asked City Attorney Patti Hageman.

Roos has taken his case to federal court, where he has drawn the aid of the Institute for Justice, a libertarian advocacy group in Arlington, Va.

Ben Barros

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Kushner on Urban Neighborhood Regeneration

James Alan Kushner (Southwestern Law School) has posted Urban Neighborhood Regeneration and the Phases of Community Evolution After World War II in America on SSRN. Here's the abstract:

This article describes four distinct phases that urban neighborhoods have passed through in the last sixty years. The first phase, from World War II until 1968, followed a pattern of decentralization, investment in suburban infrastructure, and strict segregation. The second phase, 1968 to 1975 was marked by hyper-sprawl, the loss of the central city economic base and population, and hyper-segregation. The third phase, 1975-1990, was characterized by class segregation, increased cost to access the suburbs and increased class and racial separation. The fourth phase, 1990 to 2008, witnessed hyper-segregation, voluntary class, racial, and ethnic separation, and persistent racial discrimination. The article suggests that the United States may be entering a fifth post-war phase of Smart Growth, public transport, infill strategies, and New Urbanist and surburbanist designs producing greater diversity.

Ben Barros

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Van Houweling on The New Servitudes

Molly Shaffer van Houweling (UC Berkeley - Boalt) has posted The New Servitudes on SSRN. Here's the abstract:

In the age of electronic commerce, consumers routinely acquire intangible products without engaging in any direct human interaction. These products—computer programs, digital music, etc.—often arrive bearing terms that purport to limit the sticks in the consumers' bundles of rights in ways that depart from the background limitations imposed by intellectual property law. For example, a consumer who has downloaded a computer program from the Internet might be presented with a screen of text imposing myriad restrictions on how the program may be used; installation commences only when the consumer clicks “I agree.” Courts in the United States have increasingly enforced such restrictions—labeling them “click-wrap licenses” and applying to them the same contractual concepts that govern face-to-face exchanges of promises. Similar licensing approaches—albeit with quite different substantive terms—have been extended into the realms of “free software” and “free culture.”

The law of tangible property offers a different lens through which to view these contemporary techniques for distributing and controlling intangible products. When someone buys land that is purportedly subject to use restrictions imposed by a prior owner, those restrictions are sometimes enforced as “servitudes”—non-possessory property interests that attach to land and impose their restrictions and obligations on generation after generation of landowners. Like click-wrap licenses and similar techniques of the digital age, use restrictions imposed by servitudes bind remote purchasers with whom the beneficiaries of the restrictions may have no direct relationship. They do not arise from any human communication, but instead “run with” the burdened assets and automatically bind current possessors.

Although servitudes are a familiar feature of contemporary real property law, they have long encountered judicial skepticism that has generated a host of doctrinal complications. This skepticism has been even more pronounced in the context of servitudes applied to items of tangible personal property. But it finds little expression in the current contractual approach to interpreting licenses attached to intangible products.

In this article I develop a comprehensive account of the evolving jurisprudence of servitudes as applied to both land and personal property, identifying the sources of traditional servitude skepticism in order better to evaluate the new generation of running restrictions on intangible informational goods. I apply the lessons I draw from the old servitudes to paradigmatic examples of contemporary licensing practices—including Microsoft end-user license agreements, the Free Software Foundation's General Public License, and Creative Commons licenses. The lessons I draw from the old servitudes bring the problems—and also the promise—of these new servitudes into sharp focus, providing a new framework within which to analyze emerging electronic commerce practices while contributing doctrinally- and historically-grounded insights into the ongoing debate about the proper relationship between intellectual property and the public domain.

Ben Barros

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Salkin on Community Benefit Agreements

Patricia Salkin (Albany Law School) has posted Understanding Community Benefit Agreements: Opportunities and Traps for Developers, Municipalities and Community Organizations on SSRN.  Here's the abstract:

A Community Benefits Agreement (CBA) is a private contract negotiated between a prospective developer and community representatives. In essence, the CBA specifies the benefits that the developer will provide to the community in exchange for the community's support of its proposed development. The validity and enforceability of CBAs has yet to be tested in court, but some have expressed concerns that the agreements will not hold up. Chief among the questions as to the validity of CBAs is whether community groups provide any real consideration for these contracts. Questions have also been raised as to who can enforce a CBA's provisions. Enforceability questions may also concern which parties are bound by developers' promises. Because the process of negotiating CBAs often involves local governments or elected officials, CBAs may also raise legal issues related to the propriety of planning process. While CBAs represent an opportunity to accomplish redevelopment projects in a manner that achieves social equity and engages all community stakeholders in the project with an eye towards designing a process and product that can be win-win for communities, myriad legal issues are present for all involved participants. This paper provides an overview of legal and policy implications of CBAs, highlighting how this new tool is currently utilized in a number of communities across the country.

Ben Barros

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Salkin on Sprawl

Patricia Salkin (Albany Law School) has posted Squaring the Circle on Sprawl: What More Can We Do?: Progress Towards Sustainable Land Use in the States on SSRN.  Here's the abstract:

With almost ten years of nationwide dialogue and experimentation with the legal implementation of smart growth concepts at the state and local levels,this paper pauses to consider whether and to what extent success has been realized. The one certainty in this dynamic intersection of land development and conservation is that there is no one best model adaptable to all fifty states. Rather, to accommodate national diversity in local government structure, cultural relationships of people to the land, and differences in geography and a sense of place, the best lesson learned is that advocates and lawmakers alike must shape and adopt politically palatable policies, programs, and regulations to best fit their unique jurisdictional sustainability needs. However, with the realization that a lot of innovation is taking place at the state level in furtherance of smart growth initiatives also comes the reality that if states fail to continue to promote and refine these programs, the United States will lose the war on sustainability. This paper examines the recent efforts by states to provide localities with the tools necessary to curb sprawl and to promote sustainable communities.

Ben Barros

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O'Toole on Debunking Portland

Randal O'Toole (Cato Institute) has posted Debunking Portland: The City that Doesn't Work on SSRN.  Here's the abstract:

Though many people consider Portland, Oregon, a model of 21st-century urban planning, the region's integrated land-use and transportation plans have greatly reduced the area's livability. To halt urban sprawl and reduce people's dependence on the automobile, Portland's plans use an urban-growth boundary to greatly increase the area's population density, spend most of the region's transportation funds on various rail transit projects, and promote construction of scores of high-density, mixed-use developments.

When judged by the results rather than the intentions, the costs of Portland's planning far outweigh the benefits. Planners made housing unaffordable to force more people to live in multifamily housing or in homes on tiny lots. They allowed congestion to increase to near-gridlock levels to force more people to ride the region's expensive rail transit lines. They diverted billions of dollars of taxes from schools, fire, public health, and other essential services to subsidize the construction of transit and high-density housing projects.

Those high costs have not produced the utopia planners promised. Far from curbing sprawl, high housing prices led tens of thousands of families to move to Vancouver, Washington, and other cities outside the region's authority. Far from reducing driving, rail transit has actually reduced the share of travel using transit from what it was in 1980. And developers have found that so-called transit-oriented developments only work when they include plenty of parking.

Portland-area residents have expressed their opposition to these plans by voting against light rail and density and voting for a property-rights measure that allows landowners to claim either compensation or waivers for land-use rules passed since they purchased their property. Opposition turned to anger when a 2004 scandal revealed that an insider network known as the light-rail mafia had manipulated the planning process to direct rail construction contracts and urban-renewal subsidies to themselves.

These problems are all the predictable result of a process that gives a few people enormous power over an entire urban area. Portland should dismantle its planning programs, and other cities that want to maintain their livability would do well to study Portland as an example of how not to plan.

Ben Barros

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Arnold on Land Use

Tony Arnold (University of Louisville) has posted The Structure of the Land Use Regulatory System in the United States on SSRN.  Here's the abstract:

The land use regulatory system has been criticized for causing or failing to solve social problems and for perceived inherent defects, such as inefficiency, inequality, and environmental harm. These criticisms fail to understand the land use regulatory system in the United States as a dynamic, functional, adaptive system.

This paper systematically analyzes the: 1) functions; 2) location and scale; 3) components; 4) processes; and 5) values of the land use regulatory system in the United States. If we are to improve our land use practices to be fairer, more efficient, and more ecologically responsible, we must understand how land use planning and regulation function and change over time.

Particular attention is given to the role of land use regulation as a mediator between people and places, between communities and power, and between freedom and boundaries. Additional attention is given to the broad array of forces shaping land use decisions, the “thinness” of land use law as a set of rules and limits (contrasted with its role as a source of tools, authority, and discretion), and the “patchiness” of land use regulatory authority in the United States.

This paper also examines a specific issue of law and policy: the extent to which the land use regulatory system can value and conserve ecosystem services – the humanly beneficial services that nature provides. The paper explores both barriers to and opportunities for accounting for ecosystem services in land use planning and regulation.

Ben Barros

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Contraband Historical Society and Grave Preservation in Hampton, Virginia

Our friends at the Contraband Historical Society are working to find, mark, and preserve a cemetery--and perhaps more--near Fort Monroe, at Hampton Virginia.  This from Phil Adderley of the Society:

Fort Monroe, at Old Point Comfort, Hampton Virginia, is at risk of being developed.  The Contraband Historical Society has been, working for many years, asking the City and State Governments to provide leadership with financial support for our history to be made visible to the community.

Now that the Army is leaving in 2011, Hampton wants to develop the land for housing revenues. What most people, including African Americans, do not know is that Old Point Comfort is where the first ships landed before going to Jamestown. It is also where Captain John Smith sat down with the Indians. More over, it is where former slaves (James Townsend, Sheppard Mallory and Frank Baker) were freed by Gen. Benjamin Butler in May, 1861 over 1.5 years prior to Lincoln's Emancipation proclamation (over 10,000 slaves at the Fort at one time). This event is the most significant event for America as we know it today (the Union of States) because it caused the Union Army to confiscate slaves (Confiscation Act 1861) everywhere they went and used the slaves as laborers to support the war effort. Without this support the Union would not have won the Civil War; thus the beginning of the end of Slavery. As said by Professor Robert F. Engs -University of Pennsylvania, who wrote the book " Freedom's First Generation" {which recounts the achievements of the contrabands as the earliest enterprenuers and business owners in Hampton Va. from 1861 thru 1900} after the Civil War.

The Army has been over Fort Monroe for over 146 years and has not identified the burial grounds of former slaves nor have erected any monuments to our their achievements.

We the Contraband Society see the need for perpetual education of our community and the Nation to this history. A National Park is what America requires for preserving it's treasures and would thus preserve African American Heritage. However, Hampton and the Virginia Governor is continuing with business as usual ideas of development, as the first option for a re-use plan to submit to the Army. The coordinating group, FMFADA, has not considered the National Park option, nor the prospect of this history as an American untold story. Fort Monroe is like the African American's 'Ellis Island'{'Statue of Liberty'} since we as African Americans do not have a Monument from Slavery which speaks to our Ancestor's achievements (as slaves) in a good light. Something which we can and needs celebrating. Of note most African Americans celebrate 'Juneteenth' which is a Texas observance that signaled the end of Slavery but the 'Contraband story' is the beginning of the end of slavery and ultimately effected the end.

Please respond to our request to help get the word out by asking Congress to honor our Ancestors with a national monument at Fort Monroe and a National park for it's Preservation.

Issues of historical preservation--particularly when they involve graves--are near and dear to my heart.  It will be most interesting to see where this all goes.

The public domain aerial shot of Fort Monroe is from our friends at wikipedia (who got it from the federal government in turn).

Alfred L. Brophy
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Inclusionary Housing

John Nolan and Jessica Bacher have an article on-line about inclusionary housing policies.  Here's the description:

This article explores the expansive legal authority that local governments in many states have to meet housing needs directly by providing for the production of new affordable homes. There is not a great deal of scholarship on the subject as we approach it. The emphasis in the academic literature in the field of affordable housing is on top down, systemic, or theoretical solutions: urging reforms in federal and state finance programs, imploring courts to penalize localities that engage in exclusionary zoning, describing in detail a variety of inclusionary zoning techniques; or explaining relevant theories or the economics of the issue of affordable housing. 

Our topic focuses instead on what individual municipalities can do to bridge the widening gap between income and housing costs. Like the impacts of climate change, which many municipalities are beginning to address, the housing crisis is, in the first instance, a local phenomenon; it fails to provide for local workers, prejudices the local economy, forces out seniors, and is beyond the reach of young families—the workers in local businesses and the moms, dads, daughters, and sons of local residents.  Our article illustrates a full range of tools and strategies that the law and established practice place in the hands of local citizens and their elected officials to meet local housing needs. The information contained in this article gives them something to do while waiting for systemic, top down, and more theoretical solutions to work.

We describe a “local inclusionary housing program” and outline ten steps that local governments and leaders can take to create and implement such a program.  These steps include:

conducting a survey of housing needs within the locality and its immediate region;
creating a citizens’ task force of leaders committed to meeting these housing needs;
establishing an advisory board of landowners and developers to help design economically and politically workable strategies;
adopting a housing component of the local comprehensive plan that contains a strategy for meeting defined housing needs;
adopting one or more of a variety of inclusionary zoning techniques;
identifying land and buildings that can be dedicated to affordable housing projects;
creating a local non-profit housing corporation whose corporate objective is the implementation of the local housing strategy;
providing financial incentives directly to projects that meet housing needs;
using a variety of outside public and private financial techniques; and
adopting local housing regulations that ensure the success and continued affordability of all housing produced under the inclusionary housing program.

This approach to meeting housing needs turns the traditional approach to solving the nation’s housing crisis on its head.  While recognizing limitations in local capacity, it does not regard local governments as parochial and exclusionary obstacles to the accomplishment of federal, state, or judicial housing goals.  Instead, it is based on respect for local land use traditions, the existence of extensive municipal legal authority to solve local problems, and recognition of the great diversity of local circumstance. 

The article ends with a modest proposal for a state housing law that provides adequate legal authority for inclusionary housing initiatives and assists and rewards localities that commit themselves to using that authority effectively. 

Ben Barros

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Kushner on Urban Planning and the American Family

James Alan Kushner (Southwestern Law School) has posted Urban Planning and the American Family on SSRN.  Here's the abstract:

American urban design is anti-family, generating unhealthy and unsafe communities and lifestyles. Although taxation schemes, zoning codes, and comprehensive planning requires an overhaul to become sustainable and healthy, the very design of neighborhoods must be altered to support families and children.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]