Friday, April 8, 2016
When last we blogged (which was a while ago, my apologies), we learned that Trump won’t dump the Fifth Amendment, Cruz can be TRUSTed to not use eminent domain (unless it’s to build a wall between the United States and Mexico), and Kasich is happily warrior-ing on somewhere in between. Now on to the Democrats!
It’s been a big week for Bernie, filled with ups and downs. First he had a tough meeting with the Daily News Editorial board, then he won Wisconsin, then he noticeably did not attack Clinton in his victory speech, then he went to the other extreme in Philadelphia and said Hillary was not qualified to be President. The Communications team for Senator Sanders must be running on coffee fumes after the busy week they have been having!
As a self-proclaimed democratic socialist, my expectation was that Sanders would be pro-eminent domain given that the Fifth Amendment advances government ownership of formerly private property for a public use. That certainly fits in line with a socialist agenda. And Sanders did not let me down. In December 2007, Senator Sanders voted no on an amendment to that year’s Farm Bill Extension Act, which would prohibit the federal government from taking farmland or grazing land for “parks, open space, or similar purposes.” This makes sense. To grossly oversimplify Sanders’ semi-socialist view:
public parks > private farmland
This led me to Kelo and wondering what would Sanders think. Strong use of government power would not be offensive to Sanders’ philosophy, but the factual end result of the case was a middle-class individual being ousted from her house by a private corporation, and that struck me as antithetical to Sanders war against the economic and political oligarchy. What’s then-Representative Sanders to do? As predicted, Sanders was not hot to trot for Kelo. At the time of the decision, Sanders said, “I believe that the result of [Kelo] will be that working families and poor people will see their property turned over to corporate interests and wealthy developers.” To Sanders credit, that is essentially the same line he has used throughout the entire campaign about, well, everything, so he’s got a consistent message. Again, to oversimplify Sanders’ brand of socialism:
land held by individuals of modest means > land held by Pfizer
But there is a little more to the Sanders-Kelo story. Representative Sanders was also among the largely Democratic minority that voted against an amendment in June 2005 offered to that year’s House Transportation Appropriations Bill that prohibited using any funds appropriated by the bill to enforce Kelo. You read that last run-on sentence correctly. An amendment was made to the Transportation Appropriations Bill in 2005 that said none of the tens of billions of dollars in the bill could be used for any purpose that would help enforce the Supreme Court’s decision in Kelo. If a member of Congress’ dislike of Kelo was, as Trump would say, huuuuuuuuuge, one way to stop it was to vote for the amendment, which is what a number of Democrats and a lot of Republicans did. But Sanders didn’t. He voted against the amendment meaning he voted to allow federal money to be used to enforce the judgment. For Sanders, this vote could have been more about separation of powers than his true views on Kelo. He did not make any floor speeches on the specific amendment so who knows what he was thinking at the time, but perhaps it was something like this:
separation of powers > using Congressional authority to defund Court’s authority
If that’s what Sanders was thinking, then I say good for him. What all of his other statements and votes on eminent domain seem to indicate is that while his pro-government values push him to look favorably on takings, he’s got result-oriented sunglasses on that impact his ultimate decision.
Last up, Hillary who, like Trump, has previously used eminent domain. What will she say on the topic? Tune in soon to find out!
Monday, February 8, 2016
(Photo Credit here)
ProPublica recently came out with a story detailing how NYPD officials are using nuisance law to kick individuals out of their homes, largely based on groundless criminal claims that are ultimately dismissed in court. In at least 74 cases of nuisance eviction that were studied by ProPublica in partnership with The Daily News, residents agreed to warrantless searches of their dwellings (sometimes on an on-going basis) in order to be allowed to return to their homes. More importantly, the vast majority of these nuisance actions are falling on minorities. Over an 18-month study period, 9/10 homes targeted for nuisance abatement were in minority communities. The article notes that ProPublica "identified the race of 215 of the 297 people who were barred from homes in nuisance abatement battles. Only five are white."
This story raises some very interesting legal issues for property law professors in teaching nuisance principles. At the turn of the 20th century, nuisance law began to yield to zoning and land use restrictions, which were viewed as superior methods for regulating competing, adjacent land uses. In fact, in many cases zoning rules can preclude or at least diminish the validity of nuisance claims. For an excellent historical article on the progression of zoning and nuisance law in the U.S., click here.
The way nuisance law is being wielded in NY raises a host of policy and legal issues, spanning from fair housing, criminal procedure, constitutional law, and beyond. Here's an excerpt from the ProPublica article:
The nuisance abatement law was created in the 1970’s to combat the sex industry in Times Square. Since then, its use has been vastly expanded, commonly targeting apartments and mom-and-pop bodegas even as the city’s crime rate has reached historic lows. The NYPD files upward of 1,000 such cases a year, nearly half of them against residences. . .
A man was prohibited from living in his family home and separated from his young daughter over gambling allegations that were dismissed in criminal court. A diabetic man said he was forced to sleep on subways and stoops for a month after being served with a nuisance abatement action over low-level drug charges that also never led to a conviction. Meanwhile, his elderly mother was left with no one to care for her. . .
The NYPD has embraced nuisance abatement actions as part of its controversial “Broken Windows” strategy of aggressively pursuing low-level offenders to prevent more serious ones. . . Sidney Baumgarten, the former city official who commissioned the drafting of the nuisance abatement law in the 1970s, said it is now being abused. He is alarmed by the sheer volume of cases, especially those aimed at households in which no one has been convicted of a crime.
“I think it’s wrong. I think it’s unconstitutional. I think it’s over-reaching,” he said. “They’re giving up their constitutional rights. And why? Because they’re afraid they’re going to be evicted from their home, with their children. There’s a certain amount of compulsion, and threat and coercion, by the very nature of the process they’re using.”
Sunday, January 31, 2016
This past Friday I had the pleasure of participating in a symposium on Housing for Vulnerable Populations and the Middle Class: Revisiting Housing Rights and Policies in a Time of Expanding Crisis, hosted by the wonderful faculty and law review folks at the University of San Francisco School of Law (and a special hat tip to our very gracious host, Tim Iglesias). The timing of this gathering couldn’t have been better. 2015 was a busy year in the housing world as SCOTUS upheld the validity of the disparate impact theory under the Fair Housing Act and HUD issued its significantly updated regulations on the obligation to affirmatively further fair housing. Moreover, cities and local governments are being looked to more than ever to solve major and seemingly intractable issues around housing, spurring a host of new policies, programs, and initiatives. The impressive participants of the USF symposium (coming from practice, government, non-profit, and the academy) explored these and related issues, including potential solutions to pressing problems of housing. Here’s an overview of what the panelists had to say:
What’s the matter with housing?
Rachel Bratt (Harvard Joint Center) kicked off the day by giving an overview of the nation’s current housing woes. She noted that the increase in income inequality over the last 20 years, combined with disinvestment and misinvestment of public resources, has been at the core of the affordable housing issue. She also described how political spending has played a role in further entrenching existing housing interests (in 2015, $234M was spend on real estate/finance lobbying, second only to healthcare). Bratt also explained the uneven distribution of federal housing benefits to the wealthy and the continued persistence of concentrated racial segregation. Rosie Tighe (Cleveland State-Urban Affairs) followed by describing the particular housing problems facing so-called “shrinking cities” (those places in an intense population-decline). She noted that the issue for these cities has more to do with poor quality affordable housing, rather than quantity. Tighe described the failure of low-income housing tax credits to meet the needs of these locales, and discussed the need for more scattered-site developments in these areas, while recognizing the financing and property management challenges inherent in such developments. Peter Dreier (Occidental-Poli Sci) rounded-out the discussion by pointing out that the current political discussions around the presidential election have focused much on wages and other issues, but not at all on housing. He described some reasons for the absence of attention to this important area, and drew the strong connection between household over-all health and housing.
What’s the matter with our current solutions?
Chris Odinet (Southern) started the discussion by describing some current efforts by states and local governments to deal with the fall-out from the housing crisis and on-going issues of blight and abandoned property. He then explained a number of recent federal court cases and acts taken by the FHFA that have significantly frustrated these efforts and also seriously call into question the ability of states and local governments to be innovative in dealing with issues of housing when federal programs are involved. Michael Allen (Relman, Dane, & Colfax) discussed the Fair Housing Act and the new “affirmatively furthering” regulations. He went into depth on contemporary disagreements between affordable housing advocates (who support more affordable units) and fair housing groups (who support integrated housing, and advocated for a way to reconcile their views under the auspices of these new HUD regulations. John Infrana (Suffolk) followed by describing the types of housing in and changing household composition of many cities. Despite these changing demographics, however, housing has not kept pace. In connection with this, Infranca pointed to the many possibilities that micro-housing and accessory-dwelling units (ADU) provide in the way of meeting this need. He noted that ADUs allow for greater economic diversity and can better align with demographic trends, but noted current legal barriers to them such as occupancy requirements and zoning restrictions. Marcia Rosen and Jessica Cassella (both of the National Housing Law Project)) concluded the panel by discussing the current state of the public housing program in the U.S., noting that there are currently 1.2M units (and ever-declining). She described HUD’s recent efforts to give public housing authorities (PHAs) a financing tool to rehab and rebuild these properties through the Rental Assistance Demonstration Program (RAD). This program essentially allows PHAs to convert their public housing stock into section 8 funded housing, and to combine section 8 with tax credits and other forms of debt and equity financing to fund the project. Cassella stated that although the program has great potential in terms of revamping old and decaying public housing properties, there are draw-backs in the way of transparency and long-term funding stability.
What are some new solutions?
For this final panel, John Emmeus Davis (Burlington Community Development Associates) gave an overview of community land trusts (CLTs)—currently over 280 exist nationwide—and their successes across the country. He noted that these types of entities are usually most successful in communities where there would otherwise be no affordable housing available. He noted the ability of CLTs to empower communities, protect tenants, and provide street-level land reform. Andrea Boyack (Washburn) followed by noting the current lack of rental stock compared to the growing demand across the country. She pointed out that in 2015 over half of the population of the U.S. is renting, with an annual demand of 300K new rental units per year. She followed by describing some current statistical trends in American homeownership and posited a number of ways in which cities and states in particular can seek to achieve solutions to these major housing problems. Lastly, Lisa Alexander (Wisconsin) discussed the the human right to housing, not through the lens of federal law, but rather through the ways in which localities across the country are building legal structures that provide many of the rights associated with a right to housing. She noted that market participation has been important to this process, and she used the “tiny homes for the homeless” movement and community control of vacant land as examples.
You can watch each of these presentations by clicking on the youtube video above. Participants, moderators, and USF Dean John Trasviña (former HUD assistant secretary for fair housing) are pictured below.
January 31, 2016 in Conferences, Home and Housing, Land Use, Landlord-Tenant, Law Reform, Mortgage Crisis, Real Estate Finance, Real Estate Transactions, Recording and Title Issues, Takings | Permalink | Comments (0)
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.
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!
Tuesday, May 22, 2012
William Marra, Harvard Law School, has posted Adverse Possession, Takings, and the State on SSRN.
Here's the abstract:
Normally, the government may not seize private land without paying for that land. Yet it turns out that governmental bodies sometimes avail themselves of the laws of adverse possession, taking title to private land without paying the landowner. This phenomenon, largely ignored by the scholarly literature, raises two questions. First, should the government be allowed to adversely possess land in the same manner as private individuals? Second, when the government commits adverse possession, does this constitute a constitutional “taking” that requires the payment of just compensation? These two questions are of practical importance because they affect the resolution of numerous property claims, and they are of theoretical significance because they implicate both the appropriate scope of private property rights and the proper relationship between the individual and the state. Part I provides an introduction to adverse possession, and Part II studies the law of government adverse possession, detailing how nearly every jurisdiction permits the government to adversely possess private land in the same manner as private individuals. But as Part III demonstrates, government adverse possessors are not similarly situated to private adverse possessors, and the laws of adverse possession are built on a trio of assumptions — that the landowner has a property rule entitlement to her land, that the trespasser develops robust reliance interests, and that society’s primary interest is in quieting title — that do not necessarily hold when the government is the adverse possessor. Part IV concludes that because the current rules of adverse possession incentivize government trespass upon private land, special rules should apply to the government. When the government adverse possessor trespassed in good faith, a longer statute of limitations should apply; when the government trespassed in bad faith, it should be entirely denied the right to adverse possession. One quick fix to the problem, proposed by a federal court and endorsed by some commentators, is to call government adverse possession a constitutional taking and require the state to pay just compensation. Part V explains that the problem cannot so easily be wished away, and contends that the text of the Constitution, its history, and Supreme Court precedent all suggest that government adverse possession is not a taking. The solution to the problem presented by government adverse possession rests in righting property law, not distorting constitutional law.
By way of comparative comment:
- It is interesting how "takings" issues are such a significant part of constitutional discourse in the US, and in my nearer neighbour, Australia. New Zealand, without a formal written constitution, and without any "takings" provision, is in a different world in this sense. I have recently been exploring how the absence of this regime makes it easier to "propertise" resources (and also regulate them without having to worry about compensation issues) for a forthcoming article for the New Zealand Universities Law Review.
- Adverse possession was a part of my NZ Land Law course, as it remains part of US property courses. In New Zealand the law is statute based, and there would be very few adverse possession cases in New Zealand: one of the recent ones concerned a fairly isolated block of farm land with a fence in the wrong place (rather than the "squatter's rights" (of an abandoned house, for example) I imagined at law school).
- Marra hasn't steered away from takings.
- An empirical study of adverse possession (comparative, Commonwealth or otherwise) would seem to deserve attention.
Thursday, March 15, 2012
Troy A. Rule (Missouri) has posted Airspace and the Takings Clause on SSRN. Here's the abstract:
This Article argues that the U.S. Supreme Court’s takings jurisprudence fails to account for instances when public entities restrict private airspace solely to keep it open for their own use. Many landowners rely on open space above adjacent land to preserve scenic views for their properties, to provide sunlight access for their rooftop solar panels, or to serve other uses that require no physical invasion of the neighboring space. Private citizens typically must purchase easements or covenants to prevent their neighbors from erecting trees or buildings that would interfere with these non-physical airspace uses. In contrast, public entities can often secure their non-physical uses of neighboring airspace without having to compensate neighbors by simply imposing height restrictions or other regulations on the space. The Supreme Court’s existing regulatory takings rules, which focus heavily on whether a challenged government action involves physical invasion of the claimant’s property or destroys all economically beneficial use of the property, fail to protect private landowners against these uncompensated takings of negative airspace easements. In recent years, regulations aimed at keeping private airspace open for specific government uses have threatened wind energy developments throughout the country and have even halted major construction projects near the Las Vegas Strip. This Article highlights several situations in which governments can impose height restrictions or other regulations as a way to effectively take negative airspace easements for their own benefit. The Article describes why current regulatory takings rules fail to adequately protect citizens against these situations and advocates a new rule capable of filling this gap in takings law. The new rule would clarify the Supreme Court’s takings jurisprudence as it relates to airspace and would promote more fair and efficient allocations of airspace rights between governments and private citizens.
[Comments are held for approval, so there may be some delay in posting]
Thursday, January 19, 2012
I'm about to teach Kelo to my Property students. They'd all remember the hubbub about the case, right? It was only a few years ago, right? Wrong. Many of them were in 9th grade. I asked the class how many people remembered the case. Only about 15% raised their hands. Be warned. We are old.
[Comments are held for approval, so there will be some delay in posting]
Monday, October 3, 2011
In case you missed it last week, Jeff Bendict, author of a book about the Kelo case and the failure of New London's development project, has reported that one of the four Connecticut Supreme Court justices who voted against Susette Kelo recently said, "Had I known all of what you [Benedict] just told us, I would have voted differently."
In the comments on the blog, Tim Iglesias makes a nice point:
As anyone who works with real estate development knows, litigation can kill projects. It's hard to sort out how much the litigation that Ms. Kelo brought and pursued all the way to the USSC contributed to the failure of the proposed redevelopment project. I don't see how anyone could confidently state that the project would have failed if the lawsuit had not been brought.
Tuesday, September 27, 2011
Justice Richard N. Palmer of the Connecticut Supreme Court, one of the four justices who voted with the 4-3 majority against Susette Kelo and her neighbors, had a face-to-face encounter with Ms. Kelo and Jeff Benedict, author of Little Pink House, at a 2010 dinner party. According to Benedict, the Justice said "Had I known all of what you [Benedict] just told us, I would have voted differently."
Justice Palmer later provided some context for the remark. "Those comments," he wrote, "were predicated on certain facts that we did not know (and could not have known) at the time of our decision and of which I was not fully aware until your talk — namely, that the city's development plan had never materialized and, as a result, years later, the land at issue remains barren and wholly undeveloped." He later added that he could not know of those facts "because they were not yet in existence."
Benedict's take on the encounter is here.
(HT: Sarah Waldeck)
Thursday, September 8, 2011
Josh Patashnik (Stanford student) has posted Bringing a Judicial Takings Claim on SSRN. Here's the abstract:
In Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, the Supreme Court breathed life into the doctrine of judicial takings – the idea that judicial decisions, like executive and legislative action, might be deemed to take property rights under the Takings Clause of the Fifth Amendment. Before the case, judicial takings were the province only of law review articles, a few offhanded mentions in Supreme Court concurring and dissenting opinions, and one or two cases in the lower federal courts. Stop the Beach Renourishment firmly established the proposition that the federal Constitution provides some protection against judicial redefinition of property rights, though the Court was unable to determine whether that protection emanates from the Takings Clause of the Fifth Amendment or the Due Process Clause of the Fourteenth Amendment. In this Note, I seek to shed some light on the unexamined questions of how and where, in the wake of that case, a party aggrieved by a judicial property law decision might actually go about bringing such a claim, and what remedy she might hope to obtain. I conclude that a plaintiff bringing a judicial takings claim (or a due process claim rooted in judicial takings) should be able to bring her case in federal court, notwithstanding the barriers the Supreme Court has erected that keep the vast majority of federal takings litigation in state court. I further argue that while the Eleventh Amendment likely precludes a federal court from awarding money damages to a judicial takings plaintiff, equitable relief – in the form of invalidation of the offending state court opinion – should be available.
Thursday, July 21, 2011
Thomas Sprakling (Columbia - student) has posted Does Five Equal Three? Reading the Takings Clause In Light of the Third Amendment's Protection of Houses (Columbia Law Review) on SSRN. Here's the abstract:
The Supreme Court’s 5-4 decision in Kelo v. City of New London broke new ground by holding that the seizure of owner-occupied homes as part of a plan to foster economic development was a taking for “public use” under the Takings Clause of the Fifth Amendment. Kelo’s many critics have yet to advance a constitutionally-grounded rationale for why homes should receive special protection from condemnation. This Note argues that the Third Amendment’s solicitude for the home provides a constitutional basis for distinguishing between homes and the other forms of “private property” covered by the Takings Clause. The Amendment, which provides that “[n]o soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law,” shares both historical and textual links with the Clause. These connections suggest the judiciary should apply a form of heightened scrutiny similar to the “meaningful” review standard proposed by Justice Kennedy’s concurring opinion in Kelo when determining whether the government’s seizure of an owner-occupied home is for “public use.”
Thursday, June 23, 2011
Over at Land Use Prof, Tim Mulvaney has a nice write-up on PPL Montana v. State of Montana, a recent property/enviro case that the Supreme Court has decided to grant cert on. The central issue in the case is who owns the beds and banks of three Montana rivers that play a significant role in state's economy. Whether the rivers are privately owned or belong to the state under the public trust doctrine depends on whether the rivers were “navigable” when Montana was admitted to the Union in 1889.
As Tim points out, there may also be a looming judicial takings issue. Tim writes: "In its petition for certiorari, PPL Montana cited to Stop the Beach in asserting that, '[b]ecause [the Montana Supreme Court was] the operative force behind this land transfer [from private ownership to state ownership], it remains to be seen whether property owners in general have a Takings Claim or due process objection to [such a] land grab.'" Moreover, the Cato Institute is arguing that the "Montana Supreme Court adopted a retroactive rule that destroyed title already accrued in violation of the Takings Clause," and calls the Court’s ruling a “thinly-disguised judicial taking.”
Monday, June 20, 2011
Donna Christie (Florida State) has posted Stop the Beach Renourishment v. Florida Department of Environmental Protection: Much Ado About Nothing? (Stetson Law Review) on SSRN. Here's the abstract:
Florida’s beaches are critical to the State's economy and provide significant protection for upland property, but erosion from natural forces, coastal development, and construction and maintenance of navigation inlets threatens the beaches’ ability to provide these vital services. Of the 825 miles of sandy beach in the State, over 485 miles (about fifty-nine percent) are eroding, with 387 miles of beach (about forty-seven percent) experiencing ‚critical erosion. To protect and manage critically eroding beaches, the Legislature enacted the Beach and Shore Preservation Act (BSPA) directing the State to provide for beach restoration and nourishment projects. The State has spent at least six hundred million dollars on beach erosion control and beach restoration, and the Florida Department of Environmental Protection (DEP) now manages over two hundred miles of restored beaches. In 2006, the Florida First District Court of Appeal put the Florida Beach Erosion Control Program in jeopardy, however, by finding that the BSPA deprived the beachfront property owners of their constitutionally protected riparian rights without just compensation. The case eventually worked its way to the United States Supreme Court. But in the U.S. Supreme Court, the issue of focus was not so much whether riparian rights had been unconstitutionally taken - a unanimous Court agreed they had not - but whether the constitution encompasses a doctrine of judicial takings. This article reviews the Florida and U.S. Supreme Courts' dispositions of the case. Although the State prevailed in both cases, from the Florida perspective, the case left many questions about the legal status of beach restoration and application of the BSPA. At the U.S. Supreme Court level, the case provided a flimsy vehicle for Justice Scalia to introduce his theory of judicial takings. Nevertheless, none of the Justices categorically denied the existence of the concept of a judicial taking; four Justices specifically adopted the doctrine, and six Justices agreed that state supreme court decisions that eliminate existing property rights might be unconstitutional. In the end, the case left the law unsettled in a way that will likely incite property rights advocates to continue to cause "much ado".
Tuesday, May 24, 2011
Commentator Jeff gives an update:
Notwithstanding the existence of flowage easements on the affected properties, there is still a fair chance that the owners of the land flooded by the opening of the Morganza Spillway will file a takings suit against the government. The owners of the Missouri farmland flooded when the Corps breached the Birds Point levee near Cairo, IL a couple of weeks ago have already filed a takings suit in the U.S. Court of Federal Claims (Case No. 11-275), even though those properties are also located in a floodway and are subject to flowage easements.
Wednesday, May 18, 2011
Tim Mulvaney (Texas Wesleyan) has posted Proposed Exactions on SSRN. Here's the abstract:
In the abstract, the site-specific ability to issue conditional approvals offers local governments the flexible option of permitting a development proposal while simultaneously requiring the applicant to offset the project’s external impacts. However, the U.S. Supreme Court curtailed the exercise of this option in Nollan and Dolan by establishing a constitutional takings framework unique to exaction disputes. This exaction takings construct has challenged legal scholars on several fronts for the better part of the past two decades. For one, Nollan and Dolan place a far greater burden on the government in justifying exactions it attaches to a development approval than it has placed on the government in justifying the underlying regulations by which such approval could be withheld. Moreover, there remain a series of unanswered questions regarding the scope and reach of exaction takings scrutiny that plague the development of a coherent body of law upon which both landowners and regulators can comfortably rely. This Article explores whether these problems are amplified where the exaction takings construct that is ordinarily applied when an exaction is imposed is also applicable at the point in time when an exaction is merely proposed. The piece seeks to move beyond the cursory analysis in the few reported decisions addressing this issue by identifying and exploring the competing normative justifications underlying it.
[Comments are held for approval, so there will be some delay in posting]
Tuesday, May 17, 2011
In case you've been living in a cave for the last few months, it's been raining a lot in the middle of the country. Here in Lexington, we've got lots of wet basements and leaky roofs; But along the Mississippi River, the consequences of too much water are far more serious. In 1927, for example, the river flooded 27,000 square miles, displaced 600,000 people, killed 250, and caused $400 million in property damage.
As water levels of the Mississippi near record levels, the Army Corps of Engineers is taking steps to ensure that there isn't a repeat of 1927. This weekend, the corp opened the Morganza Spillway for the first time in 40 years. The Morgnaza is a huge flood control system that can divert water out of the Mississippi and away from New Orleans and Baton Rougue. Unfortunately, the water has to go somewhere else. The water that flows out of the Morganza will pour across farmland and destroy homes before heading into the Gulf of Mexico.
The property question is, what happens to the towns and farmland in the floodway? Why can the government flood homes here to save property there? Does the flooding caused by the Corp amount to a taking?
It seems that it does not. According to Tulane University geographer Richard Campanella, the federal government purchased flow easements from the property owners in the 1950s that allows it to store water on the land. The Corp also sends residents yearly written notices to remind them of the possibility of opening the floodway. Despite the threat of flooding, a number of folks took the calculated risk to invest in the flood plain.
Friday, April 29, 2011
The Institute for Justice helped the owner of a small boxing gym in National City, California file suit challenging the municipality's redevelopment plan. National City intended to declare 700 properties as "blighted," level the entire area, and then construct new condominiums. However, a trial court in San Diego found that National City lacked a legal basis for the blight declaration. Ilya Somin at the Volokh Conspiracy notes that the "National City case is a particularly egregious example of the widespread phenomenon under which local governments use of dubious blight designations to condemn property and transfer it to politically influential developers and other interest groups. The City declared a vast area to be “blighted” on the basis of extremely dubious evidence, and then refused to even make the evidence available for public scrutiny." Here's the IJ's press release. And here's their video on the case:
Many are trumpeting this case as a victory for post-Kelo state-level reforms. Before jumping on that bandwagon, I think it's important to note that the Kelo Court, for all the grief the its taken, probably would have come out the same way on this case. Stevens' opinion takes process seriously. If National City was as loosey-goosey with then blight designation as Somin and other indicate, then it doesn't get by Stevens (or Kennedy). Kelo isn't perfect, but it didn't wipe-out property rights.
Peter Byrne (Georgetown) has posted Stop the Stop the Beach Plurality! (Ecology Law Quarterly) on SSRN. Here's the abstract:
The plurality opinion in Stop the Beach Renourishment v. Florida Department of Environmental Protection articulated a new doctrine of "judicial takings," and justified it with arguments drawing on text, history, precedent, and "common sense." This essay argues that the opinion falls makes a mockery of such forms of interpretation, represents raw pursuit of an ideological agenda, and indicates why the Regulatory Takings Doctrine more generally should be abandoned or limited.
Saturday, April 16, 2011
I had the great good fortune of having my colleague Ken Port, Director of William Mitchell's Intellectual Property Institute and Japanese law scholar-extraordinaire, visit my Comparative Property Rights seminar this week. Besides some very interesting historical information regarding Japan's adoption and adaptation of the German civil law system in the 19th century, we focused on some unique features of Japanese property law that may make recovery and rebuilding in Japan more difficult than it would be otherwise.
One impediment arises from the Japanese version of concurrent estates. Japanese law recognizes one version of co-ownership of property, which is without precise parallel to any of the estates recognized in the Anglo-American common law. Each co-tenant has the right to use the property in proportion to her share, but no co-tenant can alter the property without the permission of the other co-tenants. Moreover, there is no right of survivorship among co-tenants; the deceased tenant's share passes by will or through intestacy.
The problem with this form of co-ownership in post-tsunami Japan should be immediately apparent. Co-owned property cannot be altered without the agreement of all of the co-tenants. Therefore, rebuilding cannot take place until the co-tenants reach agreement. In the tsunami stricken regions, even if the property itself can be identified without boundary markers and in a land physically altered by the tsunami, locating all co-tenants is likely to be extremely difficult if not impossible. Many co-tenants are, unfortunately, likely dead; their interests must be distributed through will (often destroyed with the home) or through intestacy. Locating heirs may be difficult if not impossible, since many heirs may also be dead, and their heirs must be located. After that nearly impossible task has been completed, all of the interest holders must reach agreement on whether, and how, to rebuild or attempt to sell.
In the United States, governments faced with insurmountable coordination problems and transaction costs might cut through them by exercising the power of eminent domain. Although Article 29 of the Japanese Constitution authorizes the government to take private property in return for just compensation, the ability of the government to exercise that power is severely limited compared to the United States, both legally and normatively. It is limited legally because civil courts in Japan lack the contempt power, so they lack a means of enforcing their rulings. Therefore, unlike in the United States, in Japan courts cannot send armed agents of the state to enforce an eviction order.
More importantly, normatively, there is deep opposition to the exercise of the eminent domain power in Japan -- much deeper than in the U.S. Consider, for example, what happened when the Japanese government tried to build Narita, the main airport serving Tokyo, by using eminent domain to expel inhabitants of a small village. The plan met with widespread, and sometimes violent opposition, not only from those displaced but from those the airport was intended to serve. I quote from Ken's book to describe the level of opposition :
The airport was supposed to open on March 30, 1978. . . . Hurling Molotov cocktails and driving a flaming vehicle through the perimeter of the airport, [protesters] briefly occupied the completed control tower. They proceeded to destroy most of the air traffic control equipment and delayed the opening of the airport for two months. . . . . Until the early 1990's, Narita Airport appeared to be under armed siege. The entire airport was surrounded by unclimbable fences, lookout towers and armed police in full riot gear.
During the decades of protests, 3 policemen and several protestors were killed.
In other words, the exercise of the eminent domain power in Japan is legal, but often socially unacceptable. Therefore, to rebuild after the tsunami, Japan may have to undergo something much more difficult and more fundamental than just changes in law; it may have to undergo a change in norms as well.
Mark A. Edwards
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