Land Use Prof Blog

Land sales in Cuba?

Land use news from Cuba: New law will let Cubans buy and sell real estate. (Paul Haven, AP).

HAVANA (AP) -- For the first time in a half-century, Cubans will be allowed to buy and sell real estate openly, bequeath property to relatives without restriction and avoid forfeiting their homes if they abandon the country.

The highly anticipated new rules instantly transform islanders' cramped, dilapidated homes into potential liquid assets in the most significant reform yet adopted by President Raul Castro since he took over the communist country from his brother in 2008.

But plenty of restrictions remain.

. . . including restrictions on sales to emigrants or foreigners, so shelve those plans to acquire your Caribbean resort. But it's a great step in the right direction for Cuba. Thanks to Adam MacLeod for the pointer!

Matt Festa

Azuela on the Constitutional Idea of Property in Contemporary Mexico

Antonio Azuela (UNAM) has published Property in the Post-post-revolution: Notes on the Crisis of the Constitutional Idea of Property in Contemporary Mexico, 89 Tex. L. Rev 1915 (2011).  In it he raises a number of questions important to comparativists and property theorists alike through discussion of a series of recent Mexican land law controversies.  Here is a summary from the Law Review website:

Professor Azuela responds to a critical lack of contemporary constitutional scholarship concerning property rights in Mexico. He argues that current problems affecting property rights in Mexico stem from a variety of social and political issues, including eminent domain and the tragedy of the commons. Given this variety, theoretical models are often lacking, so Professor Azuela proposes a research agenda that will address weaknesses, account for the constitutional and social-science dynamics of the debate.

Jim K.

Sprankling on the Emergence of International Property Law

John G. Sprankling (Pacific McGeorge) has posted The Emergence of International Property Law, forthcoming in the North Carolina Law Review. The abstract:

Title to deep seabed minerals, ownership of cultural objects, transferable allowances to emit greenhouse gases, security interests in spacecraft, and rights of indigenous peoples in ancestral lands are all components of a new field: international property law.

Scholars have traditionally viewed property law solely as a national concern. Indeed, the conventional wisdom is that international property law does not exist. But if we ask how international law affects private property, we find a substantial body of international property law that governs the rights of individuals, businesses, and other non-state actors. Some components are well established, while others are still evolving.

This article first examines the antecedents of international property law. It then develops the thesis that this law stems from four main sources: regulation of the global commons; coordination of transboundary property rights; adoption of global policies to prevent specific harms; and protection of human rights. It concludes by analyzing the challenges that arise from the emergence of international property law.

Forty years ago, international environmental law emerged as a new field. Today we stand on the threshold of a similar era in international property law. This article argues that the time has come to recognize international property law as a discrete subject, and thereby promote its coherent evolution in future decades.

Fascinating!

Matt Festa

Salkin & Gross on International Comparative Property Rights

Patricia Salkin (Albany) and Daniel Gross (Albany) have posted International Comparative Property Rights: A Cross-Cultural Discipline Comes of Age. The paper is being given this weekend at the Brigham-Kanner Conference, which is being held in Beijing this year. The abstract:

This article provides an overview of the differences and similarities among a select group of nations through an examination of their real property protection regimes. The countries selected – South Africa, India, Chile, Singapore and Ghana – were chosen to illustrate how geographical, social, and economic diversity all contribute to different property rights cultures and legal approaches. Part II of this article examines general international or global factors that affect property rights. Part III offers a focused look at the historical and cultural development of property rights in the five selected countries. Part IV follows with a discussion of some of the domestic factors present in these five different countries that contribute to or influence the development and enforcement of different property rights regimes. The article concludes in Part V with a discussion about the importance of understanding the property rights regimes in other countries to better enable practitioners to provide responsible legal counsel to clients.

This one looks really interesting for those who are looking at comparative perpsectives. There have been a lot of land use and property related articles posted recently (I think we're probably two articles behind just on Prof. Salkin's recent work!)-- we'll be bringing them to you soon . . . and if you have an article that you'd like us to post about, let us know.

Matt Festa

Bicycle Diaries

At our house we just finished reading Bicycle Diaries by David Byrne (Penguin Group 2009).  Byrne, who most know as the lead singer for the rock band Talking Heads, is also an author, conceptual artist, and bike rack designer.  Here's the fly-leaf copy for the book:

Since the early 1980s, David has been riding a bike as his principal means of transportation in New York City. Two decades ago, he discovered folding bikes and started taking them with him when travelling around the world. DB's choice was initially made out of convenience rather than political motivation, but the more cities he saw from his bicycle, the more he became hooked on this mode of transport and the sense of liberation, exhilaration, and connection it provided. This point of view, from his bike seat, became his panoramic window on urban life, a magical way of opening one’s eyes to the inner workings and rhythms of a city’s geography and population.

Bicycle Diaries chronicles David’s observations and insights — what he is seeing, whom he is meeting, what he is thinking about — as he pedals through and engages with some of the world’s major cities. In places like Buenos Aires, Istanbul, San Francisco, and London, the focus is more on the musicians and artists he encounters. Politics comes to the fore in cities like Berlin and Manila, while chapters on New York City, and on the landscaped suburban industrial parks and contemporary ruins of such spots as Detroit, Pittsburgh, and Columbus are more concerned with history in the urban landscape. Along the way, DB has thoughts to share about fashion, architecture, cultural isolation, globalization, and the radical new ways that some cities, like his home town, are becoming more bike-friendly — all conveyed with a highly personal mix of humor, curiosity, and humanity.

Byrne seems remarkable well versed in urban planning - he's a big fan of Jane Jacobs, for example - and he provides many unique insights into transportation policy and city life.  I'm thinking of adding this book to my students' optional reading list.

Jamie Baker Roskie

PS Yes, I realize this is my second rock-band-related post in a row.  Maybe we need a new subject category?

My next article: sprawl in Canada and the U.S.

In public debate over suburban sprawl, one common argument is the “Inevitability Theory.”  The Inevitability Theory is based on the following chain of logic:

1.  Sprawl happens even in places where government policy doesn’t favor sprawl (such as Canada, Europe, etc.)

2.  Therefore, sprawl is an inevitable result of the free market, rather than government policy.

The Inevitability Theory is designed to rebut the environmentalist argument that sprawl is the result of American public policies such as highway construction, minimum parking requirements, anti-density zoning, and anti-pedestrian street design.

My next article criticizes the Inevitability Theory by focusing on Canada.  Part 1 of the Inevitability Theory discussed above can be broken down into two assumptions: (a) that Canada sprawls as much as the U.S.; and (b) Canadian public policy is antisprawl.  But in my article, I challenge both assumptions, arguing that:

a.  Canada is less suburbanized than the United States; even controlling for changes in city boundaries, Canadian central cities have been more likely to grow than their American counterparts.  Even Canadian cities that have lost population are better off than many older American cities.  For example, the fastest-declining major Canadian city, Montreal, lost 18 percent of its population between 1971 and 2001 (excluding areas annexed to the city in the intervening decades).  By contrast, St. Louis lost 44 percent of its population, and other cities such as Cleveland and Detroit lost over 30 percent of their population.

b.  If you treat sprawl as a matter of “how we develop” rather than “where we develop”,Canada again differs.  14 percent of Canadian commuters (as opposed to 6 percent of Americans) use public transit to get to work, and 5 percent walk (as opposed to 2 percent in the U.S.)

To be sure, Canada has some automobile-dependent cities and suburbs.  But is this necessarily the result of the market at work?  In my article, I show that Canadian cities and suburbs have the same kind of anti-density, pro-sprawl regulations as their American counterpart.  For example, in both nations, municipal zoning regulations limit density, thus limiting the number of people who can live within walking distance of public transit and other destinations.  And in both nations,  zoning regulations require businesses to install large amounts of parking, thus reducing density, making driving more convenient, and also making businesses more inhospitable to pedestrians (who often have to walk through large parking lots).   And in both nations, streets are often designed to be too wide to be comfortably crossed.  However, Canadian regulations do tend to be more lenient (and thus less anti-pedestrian) than their U.S. counterparts.

The full article is at http://works.bepress.com/lewyn/65/ .

Craig on Making Marine Zoning Climate Change Adaptable

Robin Kundis Craig (Florida State) has posted Ocean Governance for the 21st Century: Making Marine Zoning Climate Change Adaptable, which relates to her forthcoming book, COMPARATIVE OCEAN GOVERNANCE: PLACED-BASED PROTECTIONS IN AN ERA OF CLIMATE CHANGE (forthcoming Edward Elgar Press 2012).  The abstract:

The variety of anthropogenic stressors to the marine environment - including, increasingly, climate change - and their complex and synergistic impacts on ocean ecosystems testifies to the failure of existing governance regimes to protect these ecosystems and the services that they provide. Marine spatial planning has been widely hailed as a means of improving ocean governance through holistic ecosystem-based planning. However, that concept arose without reference to climate change, and hence it does not automatically account for the dynamic alterations in marine ecosystems that climate change is bringing.

This Article attempts to adapt marine spatial planning to climate change adaptation. In so doing, it explores three main topics. First, it examines how established marine protected areas can aid climate change adaptation. Second, the Article looks at how nations have incorporated climate change considerations into marine spatial planning to increase marine ecosystem resilience, focusing on the international leader in marine spatial planning: Australia. Finally, the Article explores how marine spatial planning could become flexible enough to adapt to the changes that climate change will bring to the world’s oceans, focusing on anticipatory zoning. Governments, of course, can establish marine zoning governance regimes in anticipation of climate change impacts, as has already occurred in the Arctic. However, drawing on work by Josh Eagle, Barton H. Thompson, and James Sanchirico, this Article argues that governments could also combine anticipatory zoning and closely regulated marine use rights bidding regimes to encourage potential future private users to make informed bets about the future productivity value of different parts of the ocean, potentially improving both our knowledge regarding climate change impacts on particular marine environments and ocean governance regimes for climate-sensitive areas.

Matt Festa

Brigham-Kanner 2011 Property Rights Conference

William & Mary sends news and this latest press release about the upcoming annual Brigham-Kanner Property Rights Conference, with links:

Beijing Conference Explores the Importance of Property Rights on a Global Scale

As China continues to emerge as an economic superpower, one of the challenges it faces is deciding how to further enhance its market economy through its private property laws. It is against this backdrop that, on October 14-15, William & Mary Law School's Property Rights Project will host the law school's first international conference at Tsinghua University in Beijing, China. The eighth annual Brigham-Kanner Property Rights Conference will bring together esteemed scholars, jurists, and practitioners from the United States and China to discuss the evolution of property rights on a global scale.

Justice Sandra Day O'Connor will receive the 2011 Brigham-Kanner Property Rights Prize at the conference and will be a featured speaker. O'Connor served as an associate justice of the Supreme Court from 1981 to 2006. She made history in 1981 as the first woman nominated to serve on the high court. Her widely cited dissenting opinion in Kelo v. City of New London (2005) has been hailed as a pivotal opinion in property law jurisprudence. She became Chancellor of the College of William & Mary following her retirement from the judiciary. A formal reception will be held on October 13 at the United States Embassy in Beijing to honor Justice O’Connor and the conference’s Chinese host, Tsinghua University School of Law.

The conference is being held at and in cooperation with Tsinghua University School of Law, one of China’s top universities and law schools. The conference will be a featured event during Tsinghua University's celebration of the 100th anniversary of its founding.

Holding the conference in China "will foster a comparative framework for the discussion of property rights that is long overdue given the strong ties between the United States and China and China's dynamic role in the world economy," explained Chancellor Professor of Law Lynda Butler, the Project's director.

William & Mary Law School Dean Davison M. Douglas said the slate of participants comprised many scholars "whose work forms the foundation of contemporary American property law jurisprudence." He added that while plans are still preliminary, he looked forward to having a number of China's pre-eminent scholars also participate.

The annual Brigham-Kanner Property Rights Conference is named in recognition of Toby Prince Brigham and Gideon Kanner for their lifetime contributions to private property rights. Now in its eighth year, the conference is designed to bring together members of the bench, bar and academia to explore recent developments in takings law and other areas of the law affecting property rights. During the conference, the Project presents the Brigham-Kanner Prize to an outstanding figure in the field.

All previous prize recipients will participate in the conference. They include: Richard A. Epstein, formerly of the University of Chicago Law School and now at New York University School of Law, Robert C. Ellickson of Yale Law School, James W. Ely, Jr., professor emeritus of Vanderbilt Law School, Frank I. Michelman of Harvard Law School, Richard E. Pipes, professor emeritus of Harvard University, Margaret Jane Radin of the University of Michigan Law School, and Carol M. Rose of the University of Arizona James E. Rogers College of Law and professor emerita of Yale Law School.

The Conference program will explore the following panel topics:

** Legal Protection of Property Rights: A Comparative Look
** Reflections on Important Property Rights Decisions
** Property as an Instrument of Social Policy
** How Practitioners Shape the Law
** Culture and Property
** Property as an Economic Institution
** Property Rights and the Environment
** The Future of Property Rights

An optional post-conference tour of China and Hong Kong has been arranged.  The tour will run from October 16 through 23.  Prior to the conference, on October 13, day trips will be available to the Forbidden City and Great Wall.

For information about the conference, CLE credit, and the optional trips and tour, please visit the Brigham-Kanner Property Rights Conference website at www.bkconference.com or contact Kathy Pond at [email protected].

Dean Douglas’s video message: http://www.youtube.com/watch?v=f64MYI3bs9A&feature=player_embedded

Conference Poster: http://law.wm.edu/academics/intellectuallife/conferencesandlectures/propertyrights/beijing-poster.pdf

 The Brigham-Kanner Conference always has a great lineup of participants, and this year it goes global!

Matt Festa

Robertson on Public Access to Private Land for Walking

Heidi Gorovitz Robertson (Case Western) has posted Public Access to Private Land for Walking: Environmental and Individual Responsibility as Rationale for Limiting the Right to Exclude, forthcoming in Georgetown International Environmental Law Review, Vol. 23, pp. 211-262, 2011.  The abstract:

Whether people have an independent right of access to walk on land they do not own is a question answered differently throughout the world, largely due to cultural, historical, and political variations amongst regions. In this decade, English citizens gained a legislated right to roam on privately owned land designated by the government for public access. The British government now designates land as access land by evaluating the nature of the land itself, not its ownership status. In Sweden, the right to roam on land owned by another has long been a deeply rooted cultural tradition, though not codified in law. Other countries have adopted variations of a right of access, while some, like the United States, continue largely to resist it, choosing instead to hold property owners’ right to exclude above a public right of access. This paper looks at some of the historical and cultural reasons countries have adopted, cherished, or rejected a public right of access to privately owned land. In particular, it focuses on the degree to which each culture values environmental and individual responsibility.

To do so, it considers the Scandinavian countries, with an emphasis on Sweden, where a public right of access is longstanding and cherished, and there is a corresponding deep respect for the environment and individual responsibility. It then considers England, which has moved decisively toward granting broader rights of access to certain types of land through legislation, grounding that expansion on the satisfaction of certain rules pertaining to environmental and individual responsibility. It also looks briefly at several countries in Europe,where environmental and individual responsibility, as well as other cultural factors, have supported expanded rights of access. Finally, it raises the question why the United States does not have, and will not likely achieve, a similar legislated or cultural right of access to private land for walking.

Matt Festa

Europe: Annoying Drivers on Purpose

I haven't been able to blog as much as usual lately, and one of the reasons is that we just moved.  It was a local move, but I'm sure you all know what a hassle moving is.  But today, the move actually helped my blogging.  It seems that the previous tenant failed to cancel his multiple newspaper subscriptions.  I rarely read news on dead tree anymore, so I might not otherwise have seen this morning's front page New York Times Story by Elisabeth Rosenthal called: Across Europe, Irking Drivers is Urban Policy.

ZURICH — While American cities are synchronizing green lights to improve traffic flow and offering apps to help drivers find parking, many European cities are doing the opposite: creating environments openly hostile to cars. The methods vary, but the mission is clear — to make car use expensive and just plain miserable enough to tilt drivers toward more environmentally friendly modes of transportation.

Some cities have closed entire streets; some introduced stiff fees for driving into the city; many have reduced on-street parking drastically; bike lanes have replaced car lanes without offset for traffic; others have purposely added red lights to mess with drivers; Zurich's tram operators seem to have the ability to change the lights to their favor as they approach.  (I'm trying to imagine how much a magic traffic-light-changing remote control clicker would fetch on e-bay.)

According to the story, and probably not inconsistent with what some of you may have observed, many of these European cities have dramatically improved in walkability, transit options, and quality of public space.  How much the policies are related causally to the result isn't clear, but we can assume they've had an impact.

I'm not entirely sure what I think of all this.  I'm a strong proponent of improving urban life by incentivizing higher density, mixed-use development and increasing pedestrian-oriented neighborhood viability and transit-oriented development.  Love it.  Still, I am hesitant to pursue these goals through policies that actually make things worse for some people on purpose.  What do these policies do to affordable housing?  How about people from lower socioeconomic strata that need to make their living from driving goods and services around the city?  How do public shared bikes help women who don't cycle (and families with kids)?  By all means, make mass transit better, faster, more economical.  But purposely creating red-light patterns just to deliberately piss people off just concerns me a bit.  It also would seem to thwart a number of smart-growth-friendly options that nonetheless rely on roads, such as bus rapid transit.

Admittedly I'm looking at this from the urban planning side more than the environmental side, but it seems the environmental benefits of these policies will be much more difficult to observe than the effect on quality of life; it's easy to see the quality of life in the very nice and improved transit-accessible mixed-use public spaces, but these types of policies would seem to generate a lot of external costs--on purpose.  Maybe that's a tradeoff people are willing to make.  But to acheive the same progressive land use goals, I still have a preference for a positive approach (e.g., incentivizing (or even just allowing) smart growth and new urbanism) rather than purposely making some aspects of urban life worse by degrading capabilites to make some people's lives "miserable." 

Matt Festa

Giant Kenyan Superhighway

My husband grew up in East Africa and follows the regional news fairly closely.  A couple of days ago he sent me a link to this NPR story about a gigantic superhighway being built in Kenya, 16 lanes wide in some places, that engineers hope will alleviate Nairobi's epic traffic problems.  Apparently, some folks still haven't gotten the decades-old news that  you can't build your way out of traffic congestion...

Jamie Baker Roskie

Comparative Law Conference on Sustainability June 11th in Montréal

Weekend in Montréal anyone? The McGill Faculty of Law and Vermont Law School present a joint cross-border conference on Sustainability: Achieving Environmental Sustainability in the Face of Climate Change. 

Kat Garvey

For the full agenda...

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Prairie Chickens: Another Challenge for Wind Energy Development

The Kansas Department of Wildlife is asking a wind energy developer to spend an extra $567 million to route its project’s power lines away from “lesser prairie chicken” mating areas.     

According to a Kansas City Star article published yesterday, the Department’s revised power transmission route would spare about 140 of the 20,000 to 40,000 lesser prairie chickens estimated to live in Kansas.  Based on those figures, the developer is being asked to spend about $4 million per prairie chicken saved.  An ordinary Kansas hunter can purchase a license to kill up to 40 of the birds for less than $21.   

Usually, conflicts between bird conservationists and wind energy developers center around the risk that birds or bats will suffer fatal collisions with turbines and towers.  Developers now tend to install wind turbines outside of migratory bird paths to help limit bird fatalities on wind farms. 

In contrast, wind turbines and transmission systems threaten prairie chickens by inhibiting the birds’ breeding activities.  A Bloomberg article from 2009 states that the species’ mating rituals involve an “elaborate dance” and suggests that “the chickens have learned to avoid such mating displays around structures like wind turbines or utility poles where predators may perch.” 

Based on the available information, revising the transmission route to steer clear of the chickens’ breeding grounds seemingly isn’t cost-justified in this case.  It will be interesting to see whether the Kansas Corporation Commission, which is deciding this dispute, reaches the same conclusion.

Troy Rule

Zoning for Solar Energy on Federal Lands

A recent proposal from two federal agencies recommends using zoning to encourage and coordinate utility-scale solar energy development on public lands.

Last December, the U.S. Department of Energy (DOE) and Bureau of Land Management (BLM) released their Draft Solar Programmatic Environmental Impact Statement (PEIS), which summarizes a two-year study of the potential environmental impacts of industrial-scale solar energy development on BLM land in six western states.  Based on the study, the DOE and BLM want to designate 24 specific areas covering more than 1,000 square miles of land in those states as Solar Energy Zones—areas where the BLM would prioritize its solar energy siting activities. 

The PEIS is intriguing from an academic perspective in that it evidences the DOE’s and BLM’s deliberate effort to direct solar energy development only to those specific geographic areas that can accommodate the development for the lowest environmental cost.  As Professor Sara Bronin recently emphasized in her article, Curbing Energy Sprawl with Microgrids, siting renewable energy projects in remote areas often requires expansive transmission infrastructure and other improvements that can intrude upon habitats and pristine wilderness.  For those reasons, some conservation and wildlife protection groups have expressed dissatisfaction over the new PEIS and continue to oppose solar energy projects on federal lands (for example, Colorado-based Solar Done Right released a report last month sharply criticizing the document).  On the other hand, the PEIS does attempt to address environmental concerns and should facilitate more cost-justified solar energy development on BLM property.  And markets seem poised to move more of these projects forward:  Google recently announced its commitment to invest $168 million in Brightsource’s Ivanpah Solar Project on BLM land in California’s Mojave Desert.

Troy Rule

Blumm & Guthrie on Internationalizing the Public Trust Doctrine

Michael C. Blumm (Lewis & Clark) and R.D. Guthrie (Lewis & Clark) have posted Internationalizing the Public Trust Doctrine: Natural Law and Constitutional and Statutory Approaches to Fulifilling the Saxion Vision, forthcoming in University of California Davis Law Review, Vol. 44, (2012).  The abstract:

The public trust doctrine, an ancient doctrine emanating from Roman law and inherited from England by the American states, has been extended in recent years beyond its traditional role in protecting public uses of navigable waters to include new resources like groundwater and for new purposes like preserving ecological function. But those state-law developments, coming slowly and haphazardly, have failed to fulfill the vision that Professor Joseph Sax sketched in his landmark article of forty years ago. However, in the last two decades, several countries in South Asia, Africa, and the Western Hemisphere have discovered that the public trust doctrine is fundamental to their jurisprudence, due to natural law or to constitutional or statutory interpretation. In these dozen countries, the doctrine is likely to supply environmental protection for all natural resources, not just public access to navigable waters. This international public trust case law also incorporates principles of precaution, sustainable development, and intergenerational equity; accords plaintiffs liberalized public standing; and reflects a judicial willingness to oversee complex remedies. These developments make the non-U.S. public trust case law a much better reflection than U.S. case law of Professor Sax’s vision of the doctrine.

A timely article considering the recent upsurge in caselaw and commentary on the public trust doctrine.

Matt Festa

Hudson on Federal Constitutions, Global Governance, and Climate Change

Blake Hudson (Stetson) has posted Federal Constitutions and Global Governance: The Case of Climate Change, forthcoming in the Indiana Law Journal, Vol 87 (2012).  The abstract:

Federal systems of government present more difficulties for international treaty formation than perhaps any other form of governance. Federal constitutions that grant subnational governments exclusive regulatory authority over certain subject matters constrain national governments during international negotiations - a national government that cannot constitutionally bind subnational governments to an international agreement cannot freely arrange its international obligations. At the same time, federal nations that grant subnational governments exclusive control over certain subject matters are seeking to maximize the benefits of decentralization in those regulatory areas. The difficulty lies in striking a balance between global governance and constitutional decentralization in federal systems. For example, recent scholarship demonstrates that U.S. federalism may jeopardize international negotiations seeking to utilize global forest management to combat climate change, since subnational forest management is a constitutional regulatory responsibility reserved for state governments. This article expands that scholarship by undertaking a comparative constitutional analysis of five other federal systems - Australia, Brazil, Canada, India, and Russia. These nations, along with the U.S., are crucial to climate negotiations since they account for 54 percent of the world’s total forest cover. This article reviews the constitutional allocation of forest regulatory authority between national and subnational governments in these nations to better understand potential complications that federal systems present for global climate governance aimed at forests. The article concludes that federal systems that maintain three key elements within their constitutional structure are most capable of agreeing to an international climate agreement that includes forests, successfully implementing that treaty on domestic scales, and doing so in a way that maintains the recognized benefits of decentralized forest management at the local level - 1. national constitutional primacy over forest management, 2. national sharing of constitutional forest management authority, and 3. adequate forest policy institutional enforcement capacity. The article also establishes the foundation for further research assessing how the constitutional structures of federal systems lacking key elements may be adjusted to achieve more effective climate and forest governance.

Prof. Hudson is also part of the group--with Lincoln Davies (Utah), Brigham Daniels (BYU), Lesley McAllister (San Diego), and our guest Hannah Wiseman (Tulsa)--who very recently relaunched the Environmental Law Prof Blog on our Law Professor Blogs Network.  Welcome and congrats to them, and check out Prof. Hudson's paper. 

Matt Festa

Bright on Occupation Rents and TLATA

Susan Bright (Oxford) has posted Occupation Rents and TLATA: From Property to Welfare?, Conveyancer, Vol. 73, No. 378, 2011.  The abstract:

This article considers what changes have been made in relation to occupation rents following the enactment of the Trusts of Land and Appointment of Trustees Act 1996 (TLATA).

The article analyzes an important UK land law with broader implications.  More from the intro:

The two particular questions focussed on are "liability", that is, the circumstances in which a co-owner can be required to pay an occupation rent (or "compensation" as it is called under TLATA) to a non-occupying co-owner, and "quantum", that is how the amount of this rent should be assessed. The issues commonly arise in the residential context, when a property initially bought as a shared home is occupied by only one of the co-owners following relationship breakdown, but can equally occur in a commercial context, for example, as part of the dissolution of a business partnership run from co-owned premises.

Matt Festa

Happy St. Patrick's Day 2011

[This is a reprise of last year's St. Pat's post, plus a picture from 2011--MJF]

Now it's time to try and make a land use-related post about St. Patrick's Day.  First of all, the legend of St. Patrick has it that he drove the snakes out of Ireland.  If that isn't an awesome land use regulatory feat, then nothing is!     

St. Patrick is credited with bringing Christianity to Ireland, and the Church played a major part in land control over the centuries.  Later on in Irish history, the Catholic-Protestant struggle had a great deal to do with English land ownership and the relationship of the Irish people to the land.  Even until recent years, the symbol of St. Patrick has been part of the controversy over the IRA and Northern Ireland.

St. Patrick's Day has spread throughout the Irish diaspora worldwide.  In the U.S., St. Patrick's Day has, of course, served as a semi-official Irish-American holiday.  Irish immigrants moved throughout the country, but are particularly known for rising to political power in the cities.  Anti-Irish/Catholic prejudice loomed over the Gilded Age ("no Irish need apply") and the Progressive Era (multifamily housing (the "pig in the parlor") associated with immigrants).  Irish Catholic churches played a major role in urban affairs and continue to have a presence in First Amendment and RLUIPA issues.  After attaining some political power in urban political systems such as Tammany Hall, Irish-Americans have played a central role in city governance for over a century.  My undergrad alma mater, Notre Dame, served as a source of pride for Irish-Americans for its competitiveness in that land-use struggle known as football, and later in academics.  When John F. Kennedy was elected President, it seemed to many Americans of Irish extraction that they had finally become accepted into the American Dream. 

In the last few decades, St. Patrick's Day has continued to influence American land use issues.  Major celebrations take place in many U.S. cities, and places like Chicago, most famously, and Savannah dye their rivers green for the occasion.  [ancillary question: is being "green" a good thing, in this sense?]  In some American cities the St. Patrick's Day parade has become one of the most important political events of the year, which has led in turn to protracted litigation over the question of who gets to decide who marches in privately-organized yet publicly-sanctioned St. Patrick's Day parades.  The U.S. Supreme Court weighed in on the matter in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995).  Justice Souter's opinion for a unanimous Court upheld the First Amendment associational rights of the parade organizers to exclude an Irish-American GLBT group (would the case come out the same way today?). 

St. Patrick's Day has a lot of cultural significance and a little bit of land-use significance too.  So hoist a green beer and celebrate.  [And in 2011, Jim and I are hoping that the luck of the Irish works all the way to Houston for the Final Four!]

Matt O'Festa

Building Codes & the Quake

The news seems to get worse from Japan as the Death Toll Estimate Soars.  But it's still true that things could have been even worse if it had not been for Japan's careful land and development planning.  As James Glanz and Norimitsu Onishi reported in the New York Times, Japan's Strict Building Codes Saved Lives.  From the article:

Hidden inside the skeletons of high-rise towers, extra steel bracing, giant rubber pads and embedded hydraulic shock absorbers make modern Japanese buildings among the sturdiest in the world during a major earthquake. . . .

Unlike Haiti, where shoddy construction vastly increased the death toll last year, or China, where failure to follow construction codes worsened the death toll in the devastating 2008 Sichuan earthquake, Japan enforces some of the world’s most stringent building codes. Japanese buildings tend to be much stiffer and stouter than similar structures in earthquake-prone areas in California as well, said Mr. Moehle, the Berkeley engineer: Japan’s building code allows for roughly half as much sway back and forth at the top of a high rise during a major quake.

So it's sad to contemplate but still probably true that the destruction and loss of life could have been much worse if not for the regulations.  Of course, these building codes have made development much more expensive; but the article goes on to note an interest twist in how this has played in the marketplace:

New apartment and office developments in Japan flaunt their seismic resistance as a marketing technique, a fact that has accelerated the use of the latest technologies, said Ronald O. Hamburger, a structural engineer in the civil engineering society and Simpson Gumpertz & Heger, a San Francisco engineering firm.

“You can increase the rents by providing a sort of warranty — ‘If you locate here you’ll be safe,’ ” Mr. Hamburger said.

In the meantime, it's a terrible disaster and we wish the best to the rescue and recovery efforts.  Thanks to James McKechnie for the pointer.

Matt Festa

New Heights for ALPS!

Saturday was the second and final day of the 2nd Annual Meeting of the Association for Law, Property and Society at Georgetown.  Last year's inaugural offered such terrific exchanges as to fully justify Matt's enthusiastic posts leading into this year's reprise.  Comprising more than 120 participating presenters, the two dozen panels featured scholars engaged in projects in real property, land use, environmental law, property theory and intellectual property among others.  Many past and present bloggers from Land Use Prof and Property Prof were in attendance. Robin Paul Malloy (Syracuse) and Michael Diamond (Georgetown) deserve our thanks for not only putting together another great event but also fostering the critical mass of leadership ALPS will need to continue to offer inclusive gatherings that promote the very best in engaged property thought.

This year, the work offered by scholars from non-U.S. institutions really made the conference for me.  Even with the wide-ranging participation from domestic law schools, 20% of this year's presenters came from, among other countries, the U.K, Canada and Israel.  I got a chance to hear great talks by Lorna Fox-O'Mahony (Durham) and recent Land Use Prof guest blogger Antonia Layard (Cardiff).  I also was able to re-connect with Susan Bright (Oxford) and Nick Hopkins (Southampton), who have been writing about the same kind of perpetually affordable homeownership models that I have focused on in my own scholarship. 

The highlight of the weekend for me was the amazing discussion of property theory as examined in Property: Values and Institutions, a brand new Oxford U. Press book by Hanoch Dagan (Tel Aviv). The panel featured terrific dialogue between the author and commentators Larissa Katz (Queens), Eduardo Peñalver (Cornell), Eric Claeys (George Mason) and Jed Purdy (Duke).

Next year at Georgetown again for ALPS 3.0.  Keep checking our blog for updates on registration.

Jim K.