Land Use Prof Blog

USA vs. Canada: Property Rights

Watching the big Olympic Gold Medal game today?  While the eyes of North America will be on the hockey game, this Western Standard article compares the two contries in another area: Canada beats the U.S. (in protection of property rights, not hockey). 

The article discusses the recently-released 2010 International Property Rights Index.  The report is produced by the DC-based Property Rights Alliance (with support from the Institute for Liberty and Democracy and Hernando de Soto).  According to the press release of the Canada-based Frontier Centre for Public Policy, the report compares compares countries around the world on ten factors in three subject areas:

• The legal and political environment (as it relates to judicial independence, rule of law, political stability and degree of corruption);
• Physical property rights (protection of physical property rights, ease of registration of property, and access to loans);
• Intellectual property rights (protection of intellectual property rights, patent protection, and copyright policy)

According to the report, Scandivian property rights rock.  The top 5: Finland, Denmark, Sweden, Netherlands, and Norway-Switzerland-New Zealand (tie).  Canada is tied with Germany and Ireland at #12, and the U.S. is at #15.  I'm not familiar with the report so I can't comment on the rankings or any potential methodological issues.  But to keep the focus on Canada for today, the Frontier Centre's press release includes this interesting commentary:

Frontier’s director of research, Mark Milke, notes Canada’s showing occurred in the absence of constitutional protection for private property. “Canada is lucky to have a certain historical and legal framework of respect for property rights. However, and regrettably, property rights are not yet a guaranteed right. As such, the protection of property in Canada is akin to rule by a monarch. You’re lucky if the king or queen is benevolent, but out of luck if the monarch is unwise, unjust or foolish.”

 

In Canada, governments can still expropriate at will with no constitutional protection for family assets. This has occurred over the decades in almost every Canadian province notes Milke.

Milke concludes that "Canada needs a constitutional amendment to ensure property rights become a Charter right.”

 

In the meantime, the USA-Canada property-rights comparison will focus more immediately on a little "ice-use" dispute in Vancouver. 

 

UPDATE: By the way, congratulations on the gold, Canada.

 

Matt Festa

Rajora on Land Acquisition in the U.S. and India

Varsha Rajora has posted Land Acquisition: Its Legal and Constitutional Implications.  The abstract:

Property is the most ancient, the most vital institution, with which man became concerned. Its original function is to secure physical existence. It is a social concept and being a social concept is a creation of law.

According to Bentham, Property and law are born together and die together. He felt that before laws were made there was no property and that if the laws were taken away property would cease . If the definition of property is examined from the Anglo-American Jurisprudence and from the Russian Jurisprudence, they apparently reflect the contradictory views.

The 5th and 14th Amendment to the Constitution of the United States of America says that, “No person shall be deprived of his life, liberty or property, without due process of law”. According to it, property, the term in its broader sense, is the right of dominion, possession, and power of dispossession which may be acquired over a physical thing, and not the thing itself.

Property, in a sense, is the projection outside, of a man’s personality. Man is identified by his physical and mental characteristics. And in the image of the person must be included not only his tastes, preferences, but also the objects of personal possession indissolubly associated with him. These things achieve an immorality of their own.

The Indian view has always been that property, or at any rate, the right to the possession of it, belonged to the person who put the land first to beneficial use. There is nothing anti-social in the concept of personal possession. Even in socialistic countries, the private ownership of articles that are manufactured by the persons themselves is recognized. Ownership of property was an item in the Declaration of Human Rights. In the American Constitution, the importance of this aspect was recognized to the extent that it was said that the guarantee of liberty of a person by itself included protection of the rights of property and it was not necessary to have word ‘property’ included in the amendment to the constitution. A citizen of India has the right to acquire, hold and disposed of the property. The ownership and control of the material resources of the community are so distributed as best to sub serve the common good.

Matt Festa

Lyons on Competing Political Economies of Takings Law

Daniel Lyons (Boston College) has posted Public Use, Public Choice and the Urban Growth Machine: Competing Political Economies of Takings Law, University of Michigan Journal of Law Reform, Vol. 42, p. 265 (2009).  The abstract:

The Kelo decision has unleashed a tidal wave of legislative reforms ostensibly seeking to control eminent domain abuse. But as a policy matter, it is impossible to determine what limits should be placed upon local government without understanding how cities grow and develop, and how local governments make decisions to shape the communities over which they preside. This Article examines takings through two very different models of urban political economy: public choice theory and the quasi-Marxist Urban Growth Machine model. These models approach takings from diametrically opposite perspectives, and offer differing perspectives at the margin regarding proper and improper condemnations. But surprisingly, both models stand united in opposition to economic development takings and both view skeptically the current wave of eminent domain reform. By discussing why each model comes to this conclusion, this Article sheds additional light upon the substantive limits that legislatures should place upon eminent domain authority and procedural reforms that would help assure proper exercises of that power within this circumscribed scope. The Article also recommends greater cooperation between legislatures and judiciaries to develop these broad standards and to assure that condemnation authorities adhere to them in individual cases.

Matt Festa

Monuments and the West

For many of us in the South who live with monuments on nearly every street corner of one kind or another, the recent controversy over monument designations "out West" is surprising.  On the other hand, most people don't think of monuments being land.  (One South Carolina exception is the Congaree Swamp National Monument, a truly beautiful old-growth floodplain forest.)  Kirk Johnson has written an interesting article, "In the West, 'Monument' Is a Fighting Word," New York Times (Feb. 20, 2010), that captures this disconnect.  Click here for a link to his article.  Notwithstanding initial opposition in some western states to land monument designations a few decades ago, today most seek to capitalize on and promote access to these national treasures.

Will Cook, Charleston School of Law

Schargrodsky and Galiani on Property Rights for the Poor

Ernesto Schargrodsky (Universidad Torcuato Di Tella) and Sebastian Galiani (Washington U--Economics) have posted Property Rights for the Poor: Effects of Land Titling.  The abstract:

Secure property rights are considered a key determinant of economic development. The evaluation of the causal effects of property rights, however, is a difficult task as their allocation is typically endogenous. To overcome this identification problem, we exploit a natural experiment in the allocation of land titles. In 1981, squatters occupied a piece of land in a poor suburban area of Buenos Aires. In 1984, a law was passed expropriating the former owners’ land to entitle the occupants. Some original owners accepted the government compensation, while others disputed the compensation payment in the slow Argentine courts. These different decisions by the former owners generated an exogenous allocation of property rights across squatters. Using data from two surveys performed in 2003 and 2007, we find that entitled families substantially increased housing investment, reduced household size, and enhanced the education of their children relative to the control group. These effects, however, did not take place through improvements in access to credit. Our results suggest that land titling can be an important tool for poverty reduction, albeit not through the shortcut of credit access, but through the slow channel of increased physical and human capital investment, which should help to reduce poverty in the future generations.

Matt Festa

Climate Change, Water, & Adaptive Law Symposium at Houston

Jamie Roskie mentioned this event once before, but since it is about to take place I thought I'd post a reminder.  The place to be on Friday, Feb. 26, is in Houston at the UH Law School's sixth annual Environmental & Engergy Law & Policy Journal symposium: Climate Change, Water, & Adaptive Law. 

Prof. Tony Arnold (Louisville; visiting at UH) has assembled an excellent lineup of speakers, including law profs Robin Kundis Craig (Florida State), Noah Hall (Wayne State), A. Dan Tarlock (Chicago-Kent), and Elizabeth Burleson (South Dakota), plus a number of other points of view from experienced practitioners, scientists, and politicians.  More info at the link above.  It looks like an interesting event!

Matt Festa

Faux "Green"...

This story from NPR about the State of California's new law requiring certain "green" measures for all new construction represents a fundamental flaw with the whole idea of "green" new housing.

The fundamental flaw is the idea that building a new house--no matter how many eco-friendly features it may have--is "greener" than retrofitting, renovating, or rehabbing existing structures. 

The story touches on the concept of "embodied energy" which is the reason that renovating is almost always greener than new construction.  Unfortunately, the California law appears to slant the playing field in favor of new green construction as opposed to "green renovation" of existing structures.

The other tricky part is how their is no maximum size on these new "green" homes.  That's key because you can put in all the green gadgets you want but a 2,000 square foot or smaller house is almost always going to be more efficient in environmental performance than large structures.  Really what this law is doing is mandating that inefficiently sized new homes operate more efficiently.

If they really wanted to address the issue of green building, the state would incentivize the renovation of existing structures and the construction of only those new structures that are not oversized in scale.

The end result?  Good intentions but bad execution by California.

--Chad Emerson, Faulkner U.

NYC's Affordable Housing Plan: "Build Less, Preserve More"

New York City's plan for affordable housing under Mayor Bloomberg, called the New Housing Marketplace Plan, anticipates the "creation or preservation of 165,000 affordable homes," according to Cara Buckley's February 21, 2010, article in the New York Times.  Click here for a link to Buckley's article, "City's New Plan on Affordable Housing:  Build Less, Preserve More."  "Preservation of affordable housing" under the Plan, however, is not without controversy.  It relies on rent controls, a market-bending mechanism that's sure to generate criticism from free market sectors.  NYC officials have explained that this move is necessary now more than ever, especially in light of the ongoing financial crisis, and in anticipation of the next housing boom.  During the boom years, all things being equal, property owners often convert rental units to condominiums or cooperatives in order to sell them, a decision that decreases the availability of rental stock in housing markets, along with affordable housing supply. 

Will Cook, Charleston School of Law

Smart Growth Implementation Assistance from EPA

I'm on the listserv for EPA's Smart Growth office.  Here's an announcement that came over the weekend.

Request for Letters of Interest: Smart Growth Implementation Assistance

Free technical assistance available!

The Development, Community, and Environment Division in EPA’s Office of
Policy, Economics, and Innovation is seeking applications for technical
assistance from communities that want to incorporate smart growth in
their future development to meet environmental and other community
goals. This request is being coordinated under the interagency
Partnership for Sustainable Communities. Staff from HUD and DOT will
assist in the provision of this technical assistance.

Eligible entities are tribal, local, regional, and state governments,
and nonprofit organizations that have a demonstrated partnership with a
governmental entity. Letters of interest are due at 3:00 pm EST, April
9, 2010.

EPA has identified some key topics in which communities are likely to
benefit from technical assistance:

- climate change
- equitable development
- financing and planning infrastructure investments
- hazard mitigation plans
- removing local barriers to implementing LEED-ND
- suburban retrofit
- transportation solutions for rural communities and places without rail
- cities in transition (significant population loss, poverty, or
economic deterioration)

Proposals are not limited to requests for technical assistance in only
these thematic areas; other topics for assistance are welcome and
encouraged, provided they demonstrate cutting-edge challenges and the
possibility of replicable solutions. The type of work may incorporate
policy analysis and review, planning and visioning processes,
scorecard/ranking criteria development and assessment, and/or other
elements pertinent to the role of the applicant.

Selected communities or states will receive assistance in the form of a
multi-day visit from a team of experts organized by EPA, HUD and DOT and
other national partners to work with local leaders. EPA plans to assist
three to four communities over a period of twelve months. The Agency
anticipates announcing the selected communities in fall of 2010.

For more information and application materials, visit
http://epa.gov/smartgrowth/2010_0128_rfli.html.

Please share this information with communities in need of assistance.

Jamie Baker Roskie

Developer Doubles Up on New Buyer Tax Credit

From today's Gainesville (Ga.) Times, a story about a developer who is offering to double the first time homebuyer and "move up" homebuyer tax credits as an incentive to buy in his subdivision in South Hall County (less than an hour north of Atlanta).  I've heard of lots of incentives, but that's a new one on me.

Jamie Baker Roskie

NYT Book Review: "The Routes of Man"

Janet Maslin of the New York Times has reviewed a collection of essays by Ted Conover, The Routes of Man:  How Roads are Changing the World and the Way We Live Today."  Click here for a link to Maslin's review and here for a link to an excerpt.  The essays are not an attempt to survey the effects of road building on land use law, but rather treat the topic of roads in a series of six essays and discuss more broadly the effects of roads on everyday life.  For a look at some of Conover's photographs, the Times provides a few here.  Maslin ultimately finds the collection disjointed.  Nevertheless, Conover's book attempts to shed new light on a facet of transportation in unanticipated ways.

Will Cook, Charleston School of Law

Report from the Seattle Smart Growth Conference

Awhile back I posted the announcement for the annual New Partners for Smart Growth conference.  I wasn't able to attend, but here's a report from Anthony Flint at the Lincoln Institute:

Members of President Obama’s “green cabinet” vowed to implement smart growth at the federal level by coordinating the agencies responsible for housing, transportation, and the environment, delighting nearly two-thousand planners and local government officials gathered for a sustainability conference here.

Shaun Donovan, secretary of the Department of Housing and Urban Development, Ray LaHood, secretary of the Department of Transportation, and Lisa Jackson, director of the Environmental Protection Agency, detailed how they were working together to favor funding for initiatives for housing with better proximity to jobs, schools, and transit, for example, and give more priority to transportation projects that helped reduce greenhouse gas emissions, over traditional criteria such as relieving congestion. They also said the agencies have also stopped working at cross purposes in the array of programs they administer, unifying disparate initiatives under the mantra of sustainability.  “It’s time the federal government spoke with one voice,” said Donovan.

Read the entire article here.  See more in his Citiwire post here. I also posted the news release about this new initiative from the Obama administration here.  I'll try to keep up with developments about this program as they evolve.

Jamie Baker Roskie

2010 National Award for Smart Growth Nomination Period Opens

From Delores Wingo-Huntley at EPA:

Applications are now being accepted for the 2010 National Award for
Smart Growth Achievement. This competition is open to public- and
private-sector entities that have successfully used smart growth
principles to improve communities environmentally, socially, and
economically. The application period is open from February 8, 2010 to
April 5, 2010. Up to five awards will be given in the following
categories:

        Programs, Policies, and Regulations
        Smart Growth and Green Building
        Civic Places
        Rural Smart Growth
        Overall Excellence

More information at http://www.epa.gov/smartgrowth/awards.

Jamie Baker Roskie

Massive CRE Problems on the Horizon...

Have you looked at any recent Planning Commission agendas and noticed a lack of commercial real estate items? 

If you live almost anywhere in the U.S., you likely saw just that.  Hardly any rezoning, development plan, or other land use hearings related to commercial development.

This Washington Post story explains why:

Nationwide, at least $1.4 trillion in commercial real estate debt is expected to roll over during the next three years. Warren said that half of commercial real estate mortgages will be underwater by the beginning of 2011. A fifth of residential mortgages are underwater now, she said.

Unlike residential mortgages, which often can be paid over 30 years, commercial real estate mortgages typically must be paid off or refinanced within five years. Commercial properties mortgaged in 2005, 2006 and 2007, at the height of the boom, are reaching their maturity date. "Do the math on this," Warren said. "This is a significant problem."

If you thought that the residential property downturn was steep, wait until you see the effects of the CRE crisis in full effect.

--Chad Emerson, Faulkner U.

More on the Effects of Transit...

I've blogged in the past about my hometown of Detroit.  Once one of the country's most prominent cities, its land use decision-making (among other things) has really gutted large chunks of the community.

This recent PBS special (1.30 hours long so get a nice latte, warm muffin, and a quiet place to listen) does a nice job detailing how Detroit ended up where it is today.

It also discusses how land use and transit policy might provide one of the few hopes to reclaim some level of viability throughout the troubled areas. 

--Chad Emerson, Faulkner U.

Changes in Mass Transit...

While the Orlando/Tampa area is gaining a major mass transit program, the City of Atlanta recently suffered a big regulatory blow to its plans for expanded transit options:

In a blow to Atlanta’s hopes for a rebirth in transportation, the Obama administration has passed over the city’s application for a federal stimulus grant to build a streetcar on Peachtree Street. 

In fact, in a two-page list of grant recipients including many in the Southeast, Georgia appears not to have a single project. Atlanta, local business groups and MARTA applied for $298.3 million, the total amount needed to construct the streetcar. The city and the business groups would have shared the cost of operations, helped by ticket fares, advertising revenues, and naming rights. MARTA would have administered the grant. The city also suggested smaller versions of the project that would cost less, but no dice. Streetcars operated in Atlanta until 1949.

The loss for the streetcar is one more drop in the bucket of metro Atlanta's mass transit misery. MARTA, the only public transit system of its size in the U.S. that receives no significant, sustained state funding, according to transit officials, is facing a disaster in the next fiscal year, when it will have to cut more than $100 million out of its operating budget. Clayton, one of the five core metro Atlanta counties, has decided that it can pave roads, but it shouldn't have to fund buses, so it is completely shutting down C-Tran on March 31.

As someone who lives just a couple hours away from Atlanta, we enjoy visiting the city often. One of the nicest things is the fairly expansive availability of fixed rail mass transit (the MARTA system).

Indeed, a case can be made that Atlanta is the only Southeastern U.S. city where a resident could reasonably live without owning a car. There is enough horizontal and vertical mixed use near several of the MARTA stops that living, working, and meeting your daily needs without a car is viable.

It seems quite odd then that the current Administration would fund high speed rail lines between two Florida cities that don't have a great deal of crossover use while neglecting the type of intra-city and intra-region transit that really would reduce the need for vehicular travel.

One final note: for my smart growth seminar this semester, I'm taking the students on a series of "site visit" classes. In March we'll travel to Atlanta where everyone will park their cars at the airport and then travel the city via MARTA while studying legal issues related to pedestrian activity versus vehicular activity--looking especially at how transit-oriented development is and is not affected to land use laws and regulations.

--Chad Emerson, Faulkner U.

Even Boulder Struggles with its Carbon Footprint

From the Wall Street journal, an article about how Boulder, despite heroic efforts in reducing the carbon footprint of its built environment, has only reduced greenhouse gas emissions by 1%.

Turns out it's very hard to spur people to action, even when the city tries to remove as many barriers as possible, including cost.

Boulder has found that financial incentives and an intense publicity campaign aren't enough to spur most homeowners to action, even in a city so environmentally conscious that the college football stadium won't sell potato chips because the packaging isn't recyclable...Since 2006, Boulder has subsidized about 750 home energy audits. Even after the subsidy, the audits cost each homeowner up to $200, so only the most committed signed up. Still, follow-up surveys found half didn't implement even the simplest recommendations, despite incentives such as discounts on energy-efficient bulbs and rebates for attic insulation..."If a place like Boulder that regards itself as being in the environmental forefront has such a tough time, these types of efforts are not going to work as a core policy" for the nation, says Roger Pielke Jr., who studies the political response to climate change at the University of Colorado, Boulder.

A statement like that would give even No Impact Man pause.  But Boulder officials aren't giving up yet. 

Boulder plans to spend about $1.5 million in city funds and $370,000 in federal stimulus money to hire contractors to do basic upgrades for residents.  In the program, dubbed "Two Techs in a Truck," as many as 15 energy-efficiency teams will go door-to-door. They'll ask home and business owners for permission to caulk windows, change bulbs and install low-flow showerheads and programmable thermostats—all at taxpayer expense. The techs will set up clothes racks in laundry rooms as a reminder to use the dryer less often. They'll even pop into the garage and inflate tires to the optimum pressure for fuel efficiency.

And the Boulder example has wider ramifications.

More than 1,000 U.S. cities have pledged to make such cuts, yet analysts say most are stymied—in part because it's extremely difficult to reduce emissions without a wholesale switch to renewable energy sources. Boulder depends almost entirely for energy on a coal-powered plant.

Aye, there's the rub.  And so President Obama has announced a major new funding initiative for nuclear power.  That story has a local edge to it for me - the initiative will fund two new plants built by our own Southern Company in Burke County, Georgia (home to Georgia Power's Plant Vogtle).  There's sure to be more reaction to that - stay tuned.

In the meantime, what's happening in your own jurisdiction?  It is a struggle to change individual behavior at a scale to do broader good.  It's the age old question of individual action vs. collective action, and how to make it all matter.

Thanks to Anthony Flint at the Lincoln Institute for the heads' up about this story, through their e-mail newsletter.

Jamie Baker Roskie

Follow up - here's an article from the NYTimes about environmentalists' response to Obama's proposal to fund the nuclear power plants.

Update two - Friends of the Earth are protesting Obama's visit to Savannah today (March 2, 2010).

Nothing says "Be Mine" quite like . . . manure

On the 14th I was disappointed that I couldn't think of any holiday-themed items to blog about for Valentine's Day.  But a Minnesota farmer has come to my rescue with seven loads of manure.  From KIMT.com, Local Farmer Makes Manure Valentine:

Bruce Andersland raises cattle and farms near Albert Lea Minnesota, and this Valentine's Day, he's saying "I Love You" to his wife Beth of nearly forty years, in a unique way. . . .

He used his machinery to draw this arrow pirced heart on their farm land, with manure. . . .

After seven loads of fertilizer he let his wife beth in on his big Valentine's wish.

Beth said, "I've had flowers, jewelery, and chocolate, this was something from the heart and imagination and he's very creative and very thoughtful so this was something special."

Bruce said he thought up the idea one day when he noticed just how well the dark manure showed up on the white snow. . . .

It's about a half a mile wide and in order to see the whole thing you need a plane.

So, they hired a pilot to take aerial shots of the Bruce's creation.

Click the link above for an aerial photo of the giant manure heart.  The fun isn't over yet, either:

Bruce said, "now next year we're gonna see if the corn grows a little better in the shape of a heart."

Thanks to John McKinney for the pointer.  Now if only someone would send me a good land use story for Mardi Gras or Ash Wednesday!

Matt Festa

Climate Change Refugees

Friday I attended the afternoon session of the UGA International Human Rights & Climate Change conference.  The conference was cut short by Athens' own version of Snowmaggedon (which mostly melted by noon the next day).  However, before the white stuff started really falling, Professor John Knox of Wake Forest Law gave an interesting talk on climate change refugees, who are not (under international conventions) really refugees at all, but environmental migrants.  Refugees are those fleeing persecution, rather than natural (or human caused) disaster. Professor Knox suggested some options for dealing with migration issues related to climate change, including the negotiation of a new convention.  For land use fans, Professor Knox's most interesting work has been on preserving the rights of peoples who could be totally displaced by climate change in the Maldives and Bangladesh.  See the Center for International Environmental Law's website on these issues here.

Jamie Baker Roskie

"Urban, Rural Areas Battle For Census Prison Populace"

From this evening's broadcast of NPR's All Things Considered, one of those stories that makes you say, "Huh?" and them "hmmnn."  Seems there's a controversy brewing over how this year's census will count prisoners - as part of the population of the place where they are imprisoned, or their community of origin.  You might ask yourself, "How is this a story for the Land Use Prof Blog?"  Well, as it turns out, the controversy creates an urban/rural (and a racial) split.  The prisoners come from African-American and Latino urban areas, and the places where they are imprisoned are rural and predominantly white.  Both areas tend to be poor, and with census numbers come federal dollars to address their most pressing issues - including schools and jobs.

It's always troubling when the neediest folks are pitted against each other for limited resources.  We'll see if some happy medium can be found on this issue.

Jamie Baker Roskie

UPDATE: Turns out the funding issue is a bit of a red herring, according to Peter Wagner of the Prison Policy Initiative.  The real issue is redistricting, and the increase of political influence for districts that have prisons.  See his comment to this post, below, which explains the issues more clearly.