Monday, November 28, 2005
Susan French (UCLA Law School) has posted Perpetual Trusts, Conservation Servitudes, and the Problem of the Future on SSRN. Here is the abstract:
This short article explores the similarities between perpetual private trusts and conservation servitudes granted in perpetuity, the adequacy of existing doctrines to handle future changes in circumstances, the deference due to donor intent, and concludes that legal changes will be needed to give private trust beneficiaries more power to determine how trust assets will be used and to protect the public interests in conservation servitudes and the continuing utility of the land subject to them.
Sunday, November 27, 2005
NPR has a story that asks whether post-Kelo eminent domain reform is going too far, using the example of waterfront redevelopment in Portland, Maine.
[Comments require approval before posting, so there might be some delay]
Thursday, October 27, 2005
As expected, the presentations at the GELPI Litigating Takings conference have been outstanding. This post only covers the first two panels. Over the coming week, I'll report on the rest of the conference.
Lingle v. Chevron
Bob Dreher (GELPI) and R.S. Radford (Pacific Legal Foundation) were up first, discussing Lingle v. Chevron. For those unfamiliar with the case, the Court's pre-Lingle takings cases had suggested that a regulation that does not substantially advance a legitimate government interest is a taking. In Lingle, the Court rejected the substantially advance test as a takings test. I summarize Lingle and explain my own views of the significance of the case in this essay.
Dreher, who had been counsel to Hawaii in the Lingle litigation, began the discussion by explaining how the substantially advance test had crept into takings law through citation to early substantive due process cases. Beyond eliminating the substantially advance test from takings doctrine, Lingle may have enduring significance due its separation of takings doctrine from substantive due process doctrine. This separation may be reflected in takings cases in several ways. It resolves the relevance of cases like Euclid v. Ambler Realty to takings doctrine (i.e., no relevance at all). It greatly reduces the ability of the government to rely on early substantive due process cases like Mugler v. Kansas. And it makes the economic impact on the property owner the paramount consideration in the takings analysis. I agree with Dreher completely on all of these points.
Dreher also noted that the rejection of the substantially advance test was a big deal because it killed off a pernicious doctrine that had been used by the 9th Cir. to invalidate rent control regulations. I've never taken the substantially advance test very seriously, largely because it so obviously engaged in Lochner-style review of legislative actions that I had a hard time seeing contemporary courts using the test to strike down regulations. But other panelists discussed a number of state cases that seemed to apply the substantially advance test, so I'm coming around to Dreher's view that it was a big deal.
R.S. Radford, who had been a leading proponent of the substantially advance test, began his talk with a good-natured acknowledgment of Bob's win in Lingle. The introduction to his paper written for the conference begins with the following from Monty Python and the Holy Grail:
Arthur: Now stand aside, worthy adversary.
Black Knight: 'Tis but a scratch.
Arthur: A scratch? Your arm's off!
Black Knight: No, it isn't.
Arthur: Well, what's that then?
Black Knight: I've had worse.
Radford's argument was that the character of the government action (which is at the heart of the substantially advance test) will survive in regulatory takings cases, allowing the effectiveness or lack of effectiveness of a government action to play a role in the regulatory takings inquiry. Radford noted that the character of the government act is certainly relevant to issues like the applicability of the nuisance exception. More importantly, he thought that the effectiveness of the government action will always play into the fairness inquiry that underlies much of the Court's regulatory takings jurisprudence. In the Q&A, Dreher and Radford agreed that the character of the action would remain in Court's unstated fairness analysis, but they disagreed on whether the fairness inquiry should focus on the impact on the property owner or on the benefit conferred to the public by the regulation.
Following up on this fairness point, Frank Michelman asked a very interesting question during the Q&A about squaring fairness concerns with "background principles" like necessity and the nuisance exception that allow the uncompensated destruction of property. Dreher said that he was uncomfortable with the underpinnings of some of the necessity cases, though he noted that in firefighting cases, the courts may allow property to be destroyed without compensation because they don't want firefighters to be thinking about the cost of their actions. Radford added that in many fire cases, the property is likely to be destroyed anyway.
Kelo v. New London
Tom Merrill (Columbia) and Scott Bullock (Institute for Justice) next discussed Kelo.
Bullock focused on the Kelo decision itself, arguing that Kelo broke new ground in allowing economic development takings. While I agree that the Court had never previously allowed this type of taking, I think that Midkiff and Berman all but required the result in Kelo by articulating a highly deferential approach to public use (as discussed further here and here). So I think the Court might have broken even more ground new ground if it had disallowed the taking in Kelo. Bullock also criticized the way in which the Court seemed to think that fact that the agency exercising eminent domain had a detailed plan in place was relevant. I agree with his view that this is completely disconnected from the real world. Bullock wrapped up with a short discussion of the Kelo backlash, noting that 90+ percent of Americans disagree with the result in Kelo and that the backlash cuts across ideological lines.
Tom Merrill focused his discussion on the Kelo backlash, saying that the backlash has made him think about the different ways that academics and the general public frame eminent domain issues. He labeled the two approaches the utilitarian frame and the moral rights frame, which he noted had some similarity to Ackerman's distinction between the perspectives of the scientific policymaker and the ordinary observer. To the utilitarian, we have the institution of eminent domain to overcome holdout problems, and reconfiguration of rights should go forward any time there is a net benefit to society. As a result, the utilitarian would want public use to be broadly construed.
The moral rights perspective, in contrast, focuses on the property owner, and views eminent domain as government coercion against innocent parties. At one extreme, this view could call for a ban on eminent domain outright. A more moderate position is that you only take when there is some good moral reason to do so, and the moral justification for the taking is stronger if the benefits are transferred to the public. In this context the fairness test is the opposite of that articulated in Armstrong, focusing not on the impact on the condemnee but on the distribution of benefits of the taking to the public. People holding this view favor a more strict interpretation of public use, and tend to think that this should be an issue for the judiciary to resolve.
Merrill than asked what to make of all this? He said that he is not ready to chuck utilitarianism out the window just because 95% of Americans disagree with it, but that he is open to a more constrained view of eminent domain. He said he would agree with a ban on eminent domain where the sole purpose is to raise tax revenue, and would agree to a ban on the economic development takings of homes. (I've discussed banning economic development takings of homes, but allowing it for other types of property, here and here.) He also suggested that he doesn't disagree with a ban on the use of federal funds for economic development takings, because it would make state and local governments focus on costs of development projects.
In the Q&A, an interesting question was raised about why increasing the compensation paid to homeowners hasn't been more popular in the legislative response to Kelo. Merrill thought it was because the post-Kelo backlash is being driven from a moral rights perspective, which is more focused on the absolute right of the property owner. Bullock agreed, saying that people are concerned about possession of their homes. Merrill did note, though, that there is some empirical evidence that opposition goes down to eminent domain as compensation goes up.
Merrill also noted in answer to a question that it was somewhat discouraging that legislative reform needs a highly unpopular Supreme Court decision to go anywhere, and gave credit to the IFJ's very effective P.R. campaign about Kelo. Bullock, who had used the home as castle metaphor in his earlier discussion, was also asked whether poor people have castles. He answered emphatically yes, noting the importance in this context of making sure blight clearance is used to take truly blighted property.
[Comments are open, but as always I have to review them before they post. Due to the HLS WiFi ban, discussed below, there will be some delay before I can get on-line to review comments]
Thursday, October 13, 2005
I was just on Smart Talk, a public affairs show on WITF, our local PBS station here in beautiful Harrisburg, PA, for a panel discussion on Kelo and eminent domain reform. The other guests were Dana Berliner of the Institute for Justice and Ed Troxell of the Pennsylvania State Association of Boroughs. Surprisingly enough, we all agreed on many issues. Dana and Ed predictably sparred a little bit over the inherent goodness of local government officials (e.g., whether eminent domain is used as a last resort), but Ed and his organization are in support of reasonable eminent domain reform so there wasn't anyone on the show arguing for local governments' ability to take homes and replace them with box stores.
Two of the more interesting issues that we discussed were raised by people who called into the show. One asked about the potential for future government condemnation of conservation easements. This seems like a real potential problem to me. Dana raised the very good point that if you take away government power to engage in economic development takings, you take away a lot of the potential desire for governments to take the conservation easements.
The other issue raised by a caller was what to do when the government no longer uses taken property for a public use. The example raised by the caller was land taken to protect a watershed twenty years ago that was recently sold to a developer who put houses on the property. One possible solution to this problem is to have the property revert back to the original owner when the government ceases using it for a public use. I'm not a big fan of reverter clauses because (a) I prefer to avoid future interests whenever possible; (b) if the reverter has too long a duration, finding the former owner (or successors) can be difficult; and (c) the owner already received compensation for the property.
If anyone has any thoughts on these issues, please leave a comment. [As always, comments require approval before posting, so there may be a delay]
Wednesday, October 12, 2005
Consider the following definition of blight from Pennsylvania's Urban Redevelopment Law:
35 Penn. Stat. § 1702:
It is hereby determined and declared as a matter of legislative finding--
(a) That there exist in urban communities in this Commonwealth areas which have become blighted because of the unsafe, unsanitary, inadequate or over-crowded condition of the dwellings therein, or because of inadequate planning of the area, or excessive land coverage by the buildings thereon, or the lack of proper light and air and open space, or because of the defective design and arrangement of the buildings thereon, or faulty street or lot layout, or economically or socially undesirable land uses.
. . .
Therefore, [blight clearance and related redevelopment activities] are declared to be public uses for which public money may be spent and private property may be acquired by the exercise of the power of eminent domain.
This definition of blight is absurdly overbroad. It allows for eminent domain to be used to take property that falls into any one of the laundry list of conditions in paragraph (a). Any of the categories in this list could be subject to abuse, but focus on the last one: "economically or socially undesirable land uses." Here is a translation of that language: "Kelo-style economic development takings can be done in Pennsylvania under the guise of blight." To add insult to injury, property owners are held to a high standard in challenging blight designations.
Now consider this definition of blight, from the same chapter of the Urban Redevelopment Law:
35 Penn. Stat. § 1712.1
(a) Notwithstanding any other provision of this act, any Redevelopment Authority shall have the power to acquire by purchase, gift, bequest, eminent domain or otherwise, any blighted property as defined in this section . . .
(c) Blighted property shall include:
(1) Any premises which because of physical condition or use is regarded as a public nuisance at common law or has been declared a public nuisance in accordance with the local housing, building, plumbing, fire and related codes.
(2) Any premises which because of physical condition, use or occupancy is considered an attractive nuisance to children, including but not limited to abandoned wells, shafts, basements, excavations, and unsafe fences or structures.
(3) Any dwelling which because it is dilapidated, unsanitary, unsafe, vermin-infested or lacking in the facilities and equipment required by the housing code of the municipality, has been designated by the department responsible for enforcement of the code as unfit for human habitation.
(4) Any structure which is a fire hazard, or is otherwise dangerous to the safety of persons or property.
(5) Any structure from which the utilities, plumbing, heating, sewerage or other facilities have been disconnected, destroyed, removed, or rendered ineffective so that the property is unfit for its intended use.
(6) Any vacant or unimproved lot or parcel of ground in a predominantly built-up-neighborhood, which by reason of neglect or lack of maintenance has become a place for accumulation of trash and debris, or a haven for rodents or other vermin.
(7) Any unoccupied property which has been tax delinquent for a period of two years prior to the effective date of this act, and those in the future having a two year tax delinquency.
(8) Any property which is vacant but not tax delinquent, which has not been rehabilitated within one year of the receipt of notice to rehabilitate from the appropriate code enforcement agency.
(9) Any abandoned property. A property shall be considered abandoned if:
(i) it is a vacant or unimproved lot or parcel of ground on which a municipal lien for the cost of demolition of any structure located on the property remains unpaid for a period of six months;
(ii) it is a vacant property or vacant or unimproved lot or parcel of ground on which the total of municipal liens on the property for tax or any other type of claim of the municipality are in excess of 150% of the fair market value of the property as established by the Board of Revisions of Taxes or other body with legal authority to determine the taxable value of the property; or
(iii) the property has been declared abandoned by the owner, including an estate that is in possession of the property.
Unlike Section 1702, Section 1712.1 is a serious and reasonable attempt to define property that is actually blighted. The contrast between the two contains two related lessons for post-Kelo economic domain reform. First, legislators considering reform must take a hard look at all of the definitions of blight in their state. Second, definitions of blight like Section 1702 must systematically be replaced by narrower definitions like Section 1712.1.
Wednesday, October 5, 2005
Kaimi Wenger over at Concurring Opinions has an interesting post on a California bill designed to make it easier to remove racial covenants from titles:
Racial restrictions were declared illegal half a century ago, in Shelley vs. Kraemer. It's not as if anyone is enforcing them today. But they remain in the titles to many pieces of property, and they serve as a painful reminder of the past. Under current law, property owners can petition to have them removed, but the process is cumbersome and time-consuming, and it affects only single parcels.
AB 394 would provide a streamlined method for removing these covenants from entire subdivisions. Seems like a reasonable idea to me.
I haven't seen much academic discussion of the legislative response to Kelo, which to me is far more interesting than the Court's decision itself. The Kelo backlash presents a rare opportunity to get state legislatures to pay attention to eminent domain law and procedure. This opportunity extends beyond the relatively narrow "economic development takings" issue raised by Kelo. I think that in the current political climate, many legislatures are willing to consider a wide range of reform ideas.
I will have some substantive postings on legislative reform soon, but in the meantime, I'm trying to put together a list of links to resources on the issue. Here is what I have so far:
The Castle Coalition maintains listings of pending legislation on the federal, state and local levels. They also have model legislation and the Institute for Justice's white paper on legislative reform.
Will Baude has posted notes on a debate on the issue between Merrill and Nicole Garnett (Notre Dame).
I've given testimony to the Pennsylvania legislature on the issue.
I'm sure there is more out there. Please e-mail me or leave a comment if you know of anything I should add to the list. To be clear, I'm not looking for material about the Kelo decision itself; rather, I'm looking for material on what legislatures should do (or not do) in response to Kelo.
[Please note that there might be a delay in comments going up because they won't appear until I have had a chance to review them.]
Tuesday, October 4, 2005
My students sometimes ask me why we don't cover more of the Restatements in our first year property class. In torts and contracts, the Restatements are all over the place. In property, they don't come up much at all, though I do cover the Restatement (Third) when I'm teaching servitudes. My answer varies, but is based on the following impressions: (1) there is far less uniformity across jurisdictions in property than there is in, say, torts and contracts; (2) the first two Restatements reinforced a lot of silly common law rules and as a result academics don't like them much; and (3) courts are less willing to change the common law of property than they are in other common law disciplines, so the Restatements of Property have had less impact than the Restatements of other subjects.
I don't have any real empirical support for these impressions, and feel free to correct me in the comments if you think I'm wrong about any of them. I've read enough property decisions to think that number 3 is true. Courts are always hesitant to upset expectations by changing the rules in mid-stream, and the long duration of many property relationships reinforces this tendency. Major change in property law, the courts often say, should be done by the legislature.
So if courts are hesitant to reform and rationalize property law, why do we keep doing Restatements? I'm generally a fan of the Restatement (Third) of Property, Servitudes. Among other things, abolition of the distinction between real covenants and equitable servitudes makes a great deal of sense -- the difference between the two is a relic of the division between law and equity, and it seems silly to have different rules if a covenant is going to be enforced through an injunction or money damages. Some courts might be bold enough to make such a radical change, but my bet is that most would not. So why be court-centric? Why don't we put the same substance into a Model Law of Servitudes and try to reform property law through the legislatures? Some legislative property reform might raise takings issues (a subject I'll address in a future post), but I have a hard time seeing that as a problem with servitudes reform.
Comments are open. There might be some delay in the comments showing up on the blog because I have to approve them before they post.