PropertyProf Blog

Tyler and Markell on Evaluating Land Use Procedures

Tom Tyler (NYU/Dep't of Psychology) and David L. Markell (Florida State) have posted The Public Regulation of Land Use Decisions: Criteria for Evaluating Alternative Procedures on SSRN.  Here's the abstract:

In this article we argue for an empirical governance approach - the use of public evaluations - as one basis for deciding whether and how to regulate decisions with public consequences. We propose a conceptual framework for evaluating public acceptability, notably that public judgments should be evaluated against five criteria: overall acceptability ex ante; robustness; consensus; procedurality; and their ranking on non-fairness issues such as cost and convenience. In the article we also move beyond theory to implementation by modeling our framework to evaluate public judgments concerning acceptability in the contentious area of land use decisions in Florida.

Data from a survey of Florida stakeholders offers several interesting findings about five procedures currently in use to make land use decisions: private negotiation; public hearings conducted by elected local officials; administrative law hearings; judicial adjudication; and public referendums. Based upon the above five criteria, judicial adjudication is evaluated as the most desirable of these procedures through which to govern land use decisions. Respondents view judicial and administrative adjudication differently, a finding that raises important questions concerning the appropriate roles for, and structure of, administrative and judicial adjudication. Referendums receive mixed reviews, while public hearings, the most common form of decision-making procedure in the land use arena, are the least acceptable. In short, as the paper details, our findings in the specific context of land use decision-making procedures raise interesting and important questions about the most appropriate procedure through which decisions should be made in this arena and whether there are ways to revise procedures to improve their acceptability to the public. Further, the findings raise important questions across policy arenas about the appropriate use and structure of different types of decision making processes.

Our more general objective is to offer a framework for using empirical governance to consider and, ultimately, enhance the public acceptability of government decision-making processes. Our basic premise in this project is that, to further good governance, government should make decisions using procedures in which the public has confidence and that will increase public acceptance of such decisions.

Ben Barros

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

Stop the Beach Oral Arguments Set . . .

for Wednesday, December 2.  Respondents' merits briefs and supporting amicus briefs should be on-line soon; I will link to them as soon as they turn up.

Ben Barros

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

Salzberg on De Donis

Kenneth Salzberg (Hamline) has posted De Donis on SSRN.  Here's the abstract:

For many hundreds of years, starting at least in the 12th Century, many owners of land granted the land to new owner 'and the heirs of his body' - or some similar form of grant. The grantors continued to do this notwithstanding very substantial changes, over at least two centuries, in the law’s understanding of the effect of such grants. Part I provides an historical and jurisprudential analysis of those grants. Part II attempts to explain why so many land owners continued to make such grants, seemingly at about the same rate, throughout the 200 year period of those substantial changes.

Ben Barros

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Nelson on Virtual Property and the Rule of Capture

John William Nelson (Samford/East Anglia) has posted Fiber Optic Foxes: Virtual Objects and Virtual Worlds Through the Lens of Pierson V. Post and the Law of Capture on SSRN.  Here's the abstract:

Virtual worlds are more successfully blurring the lines between real and virtual. This tempts many to try and equate virtual property with tangible property. Such an equation creates problems when the common law of property is applied to virtual objects over which users can not possess complete dominion and control. The result is a conversion of the tangible resources that support virtual worlds into a virtual commons. Accordingly, the common law of contracts, rather than that of property, should be used to govern transactions between a user and owner of a virtual world.

Ben Barros

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Bronin on Solar Rights and Modern Lights

Sara C. Bronin (U Conn) has posted two related articles on SSRN.  The first is Solar Rights:

The rights to access and to harness the rays of the sun - solar rights - are extremely valuable. These rights can determine whether and how an individual can take advantage of the sun’s light, warmth, or energy, and they can have significant economic consequences. Accordingly, for at least two thousand years, people have attempted to assign solar rights in a fair and efficient manner. In the United States, attempts to assign solar rights have fallen short. A quarter century ago, numerous American legal scholars debated this deficiency. They agreed that this country lacked a coherent legal framework for the treatment of solar rights, especially given the emergence of solar collector technology that could transform solar energy into thermal, chemical, or electrical energy. These scholars proposed several legal regimes that they believed would clarify solar rights and facilitate increased solar collector use. Very little has changed since this debate about solar rights began. Although some jurisdictions have experimented with scholars’ suggestions, reforms have not been comprehensive, and solar rights are guaranteed in very few places. At least in part because of the muddled legal regime, and despite numerous technological advances that have reduced the cost of solar collectors, only one percent of our nation’s energy currently comes from the sun. In this context, this Article aims to reinvigorate and refocus the scholarly debate about solar rights. The Article first explains why solar rights are valuable to both individuals and to the country as a whole. It then analyzes three methods by which solar rights can be allocated: express agreements between property owners, governmental permit systems or zoning ordinances, and court assignments that result from litigation. Although this Article analyzes the concerns of both solar rights seekers and possible burdened parties with respect to current law; it does not fully address the possible solution to the problem of solar rights. Instead, this Article sets the stage for a second piece, 'Modern Lights,' simultaneously being published in the University of Colorado Law Review.

The second is Modern Lights:

This Article functions as a companion to a piece, Solar Rights, recently published in the Boston University Law Review. In that piece, the author analyzed the absence of a coherent legal framework for the treatment of solar rights - the rights to access and harness the rays of the sun. The growing popularity of, and need for, solar collector technology and other solar uses calls for reform.

Answering the call for reform in Solar Rights, this Article proposes a framework within which a solar rights regime might be developed. First, as a baseline, any regime must recognize the natural characteristics of sunlight. Sunlight travels in beams, often across multiple legal parcels, meaning that while a solar right benefits one parcel, it also likely burdens others. Any solar rights regime must weigh the relative value of various property interests and reject frameworks that attempt to implement absolutist approaches. In addition, solar rights must address topographic, latitudinal, and other location-specific conditions. In other words, the rules for solar rights should be flexible, drawing from water law to combine strategies of exclusion and governance to manage sunlight, a fugitive resource like water.

Second, in addition to accommodating the natural characteristics of sunlight, solar rights must clarify both the identity of the holder of the initial entitlement and the nature of the entitlement itself. In recognition of the public benefits of protecting solar access, solar rights should initially be assigned to the party who can put the solar right to the highest socially beneficial use: the solar collector owner, rather than the potential obstructer. Along with the assignment of the initial entitlement, and in recognition of the relativity of solar rights, we must embrace liability rules (as opposed to property rules), which compensate burdened landowners.

A solar rights regime that both recognizes the natural characteristics of sunlight and adequately articulates the nature of the initial entitlement may be difficult to formulate. This Article suggests that instead of creating new legal forms that may further complicate an already complicated task, we rely on existing property forms within the numerous clausus. It advocates a regime that draws from principles in water law, sets the initial entitlement so as to produce socially beneficial results, and adequately compensates burdened landowners. Although much work remains to refine and implement a functional solar rights regime, this Article aims to restart a discussion that has remained 'in the shadows' for too long.

Ben Barros

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Attention Junior PropertyProfs

AALS Property Law Section Junior Scholars Works in Progess Call For Papers

The AALS Property Law Section invites junior property scholars to submit works-in-progress for a junior scholars panel at the upcoming AALS Annual Meeting in New Orleans. The panel will take place on Sunday, January 10, 2010 from 9:00 a.m. - 12:00 p.m.. At the panel, paper au-thors will have the opportunity to present their papers and receive commentary from senior scholars knowledgeable about their paper topics.

Eligibility: The panel is open to scholars who (a) currently have a permanent or visiting ap-pointment at an AALS member or fee-paid school; (b) have been teaching for six or fewer years; and (c) do not yet have tenure. Papers that have been accepted for publication may be submitted for consideration, but only if they are early enough in the production process for the author to fully incorporate comments provided at the panel.

Submissions: Two papers and an alternate will be selected for the panel by blind peer review. Papers should be submitted by e-mail to both Carol Brown ([email protected]) and Steven Eagle ([email protected]), with the subject line “Property Junior Scholars Panel.”

To facilitate blind review, authors should place their names and other identifying information on a separate cover page only. Authors also should alter or delete references within the text that would reveal their identities to a referee. During the selection process, papers will be judged by how successfully they establish their contributions in a scholarly manner and by how substan-tially those contributions add to current property law scholarship.

Deadline: Papers must be submitted by Noon, October 26, 2010 (EDT).

Please direct any questions to the panel organizers, Steven Eagle ([email protected]) and Carol Brown ([email protected]).

Land Use Prof Blog

The Land Use Prof Blog has been re-launched with a new group of editors.  Check it out!

Ben Barros

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Rule on Allocation of Wind Rights

Troy A. Rule (Missouri) has posted A Downwind View of the Cathedral: Using Rule Four to Allocate Wind Rights on SSRN.  Here's the abstract:

The rapid pace of U.S. wind energy development is generating a growing number of conflicts over competing wind rights. The “wake” of a commercial wind turbine creates turbulence and unsteady wind flow that can reduce the productivity of other wind turbines situated downwind. Existing law is unclear as to whether a landowner who installs a wind turbine on its property is liable for the lost productivity of a downwind neighbor’s turbine resulting from such wake effects. Legal uncertainty as to how competing wind rights are shared among neighbors can induce wind energy developers to abandon otherwise lucrative turbine sites situated near property lines, thus forfeiting valuable wind resources. This paper applies Calabresi and Melamed’s familiar “Cathedral” model to determine which rule regime would best promote the efficient allocation of competing wind rights while maintaining consistency with existing law. Surprisingly, the Cathedral model’s infamous and rarely-applied “Rule Four” seems best-suited for addressing these conflicts.

Ben Barros

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Serkin on Private Conservation Easements and Public Land

Christopher Serkin (Brooklyn) has posted Entrenching Environmentalism: Private Conservation Easements Over Public Land on SSRN.  Here's the abstract:

This piece for the University of Chicago Law Review Symposium: Reassessing the State and Local Government Toolkit, examines how local governments can use private law mechanisms to entrench policy in ways that circumvent typical legal limitations. The piece examines in detail a specific example of a town donating conservation easements over property it owns to a third-party not-for-profit conservation organization in order ensure that the property would not be developed in the future. This is nearly the functional equivalent of passing an unrepealable zoning ordinance restricting development, something existing anti-entrenchment rules would never permit. The piece examines the costs and benefits of using such a device. It theorizes generally about the nature of entrenchment outside of public law, and identifies anti-entrenchment protections designed to prevent the worst abuses. It ultimately argues that eminent domain serves an important role in allowing subsequent governments to escape the precommitments of prior governments and proposes a modest modification in compensation rules to limit the extent to which conservation easements can entrench an anti-development agenda.

Ben Barros

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Roark on Fixtures

Marc Lane Roark (La Verne) has posted Defining Fixtures in Law and Policy in the UCC on SSRN.  Here's the abstract:

This article offers both a concession and a critique. The article concedes that the law of fixtures under the Uniform Commercial Code is helplessly tied to the various state laws dictating real estate. The natural impact of explicitly tying a UCC doctrine to multiple state law variation is the automatic loss of uniformity. At the center of the fixtures discussion in the UCC is a definition that does not define, and more importantly, does not limit doctrinal extension. Because the UCC offers a non-defining definition, this article considers the function of the fixtures definition. Specifically, the article looks to the original drafters comments about what the purpose of the fixtures definition was intended to accomplish.

Conceding that the definition in the UCC does not define, the article then critiques the definition by asking what role the definition plays in the game of seeking uniformity. Specifically, the article argues that the fixtures definition in UCC Section 9-102(a)(41) performs a function just as important as defining - it narrates. The article argues that the drafters in deciding on a definition of fixtures isolated themes of commonality and described those themes in a concise, but useful description of the fixture. Those themes include the joining of goods to realty, the concept of relation, and the emphasis on interests as a governing factor in the fixtures analysis. The article argues that the narration accomplished by the UCC allows for uniformity, not by mandatory uniformity, but by synchronic dialogue - allowing the themes to create images and the images to compel instinctive beliefs. The article argues, however, that the description provided by the drafters should be reunited with the substantive provisions relating to fixtures since each are tied to the other’s understanding.

Ben Barros

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Lefcoe on Curbing Opportunistic TIF-Driven Economic Development

George Lefcoe (USC) has posted After Kelo, Curbing Opportunistic TIF-Driven Economic Development: Forgoing Ineffectual Blight Tests; Empowering Property Owners and School Districts on SSRN.  Here's the abstract:

When economic development or urban redevelopment is funded by tax increment financing (TIF), local government officials, in their haste to pump up local tax receipts, may become overzealous in displacing some private land users to make way for private developers They are also tempted to hog property tax revenues collected from the project area and use it to repay redevelopment agency debt. These tax proceeds would previously have been divided among cities, counties, school districts and other taxing entities. This paper is about the legal solutions afoot to deal with these controversial aspects of TIF funded economic development - displacement of private owners for private development projects and diversion of the property tax base from other taxing entities.

Most states require findings of blight as a pre-condition to economic development or redevelopment projects. They hope their blight tests will meet ‘public use’ challenges and steer local governments away from economic development projects of questionable value. But blight definitions vary greatly. Some are so expansive and vague as to be virtually meaningless as constraints. Also, the same definition of blight cannot fulfill both these functions adequately because a blight definition protective of property owners must shield unblighted properties from the threat of condemnation while a blight norm meant to limit economic development to areas that desperately need rejuvenation must be predicated on an area wide basis, and include unblighted properties necessary for a successful economic development effort.

This paper recounts the measures that most states have enacted to complement or replace blight tests. Among these, states have enacted outright prohibitions on economic development takings, approved more generous compensation standards, instituted reforms in the planning process favoring citizen participation, and mandated condemnor’s to negotiate acquisition prices fairly. States have also legislated to safeguard school districts and other taxing entities from having their tax bases raided by opportunistic economic development projects. These enactments are described briefly here as well.

At the same time, state courts have been responding to ‘public use’ challenges to economic development takings in the wake of Kelo v. City of New London. Local governments undertake economic development projects to spike local tax and job rolls, enhance urban infrastructure (street improvements, ball parks, affordable housing), and advance planning norms, such as those favoring increased urban densities to facilitate the use of public transit. Many courts seem sensitive to the purposes of economic development projects and are more sympathetic to projects offering traditional ‘public goods’ such as infrastructure and planning improvements than they are to projects with no apparent ‘public use’ other than to increase the redeveloping jurisdiction’s tax rolls.

Ben Barros

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Blumm on the Public Trust Doctrine

Michael C. Blumm (Lewis & Clark) has posted The Public Trust Doctrine: A Twenty-First Century Concept on SSRN.  Here's the abstract:

This article briefly surveys the evolution of the public trust doctrine in 19th and 20th century America and discusses some notable recent developments, particularly in the doctrine's scope. It also discusses a treatise project on the public trust doctrine the author is undertaking with a colleague as well as three recent student publications the project has produced on the federal common law nature of the doctrine, its applicability to uplands like parks and beaches, and the adoption of the doctrine in the 2008 Great Lakes Compact. The article serves as an introduction to the publication of two of those articles.

Ben Barros

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Fincham on Museum Deaccession

Derek Fincham (Loyola New Orleans) has posted Navigating the Deaccessioning Crisis on SSRN.  Here's the abstract:

A deaccession crisis confronts the American Museum community. Deaccession of art occurs when a museum decides to sell or dispose of a work of art. The crisis stems not from the practice itself - though there are indications deaccession will occur with increasing regularity. Rather the curious mixture of trust and estates law, state law, tax policy, nonprofit governance, professional guidelines, and doctrines governing deaccession all combine to form a body of rules which lack clarity and often conflict. These general and ephemeral standards preclude reasoned appraisal of whether any given sale may benefit the public. More care should be taken when crafting the rules governing our collective cultural heritage.

This article attempts to define the public interest in works of art, and provide a framework to guide in the deaccession of works of art to ensure those sales do in fact serve the public interest. The decision to sell works of art should be taken with care; but the current rules lead to a number of pernicious consequences. They have caused the loss of works from the public trust, the closure of museums and unnecessary legal battles.

Current guidelines require that deaccession proceeds be used only to purchase more art; however this rule appears to be a product of one high-profile scandal involving New York's Metropolitan Museum of Art. To assist donors, museum directors and state Attorney Generals, this article proposes three changes. First, the unnecessary restriction on deaccession proceeds should be eliminated. Second, when an important work of art is deaccessioned, other museums should be given an opportunity to purchase a work - to keep it in the public trust or its region - in much the same way the United Kingdom and other nations regulate the export of works of art. Finally, when any museum is considering a deaccession, it must provide reasons for the sale and publicize the decision to allow for public comment.

Ben Barros

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Nelson on Virtual Property

John William Nelson (Samford/East Anglia) has posted The Virtual Property Problem: What Property Rights in Virtual Resources Might Look Like, How They Might Work, and Why They are a Bad Idea on SSRN.  Here's the abstract:

‘Virtual property’ is a solution looking for a problem. Arguments justifying ‘virtual property’ lie among three common themes - Lockean labor theory, theft protection and deterrence, and market efficiency. This paper goes beyond those who advocate for or against the creation of ‘virtual property.’ First, Locke’s labor theory is dismissed as a justification. Then, two models of what property rights may look like when applied to virtual resources are created. These models are then applied to six different virtual world scenarios in order to see the effects of ‘virtual property.’ Finally, the failure of property rights to benefit the users, developers, and virtual resources of virtual worlds is explained.

Ben Barros

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Of Roosters and Pit Bulls

Two articles caught my eye today, both on the topic of limiting animals in residential areas.

The LA Times reports that the Los Angeles City Council passed a law yesterday that caps the number of roosters per parcel of private property at one unless the property is a "permitted and licensed commercial, agricultural or industrial business" on a street with the proper zoning. 

On the other coast, the New York Times reports that, effective May 1st, the New York City Housing Authority banned pit bulls and other dog breeds which may grow larger than 25 pounds from public housing.  The policy has thus far caused 113 dogs to be surrendered to shelters, including 49 which have been euthanized.  Given that the policy covers 178,000 apartments, it is likely that a number of residents have not yet surrendered their pets.

It seems that interesting cross-currents are at work here.  I have seen a number of articles dealing with municipalities becoming more permissive of chickens as the twin concerns of local food and recession have encouraged urban flocks.  At the same time, attempts continue to limit the size and breeds of permitted dogs.  Much of this activity (limiting and permitting) is done through zoning and land use regulations.

Tanya Marsh

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Rule on Solar Access Laws

Troy A. Rule (Missouri) has posted Shadows on the Cathedral: Solar Access Laws in a Different Light on SSRN.  Here's the abstract:

Unprecedented growth in rooftop solar energy development is drawing increased attention to the issue of solar access. To operate effectively, solar panels require un-shaded access to the sun’s rays during peak sunlight hours. Some landowners are reluctant to invest in rooftop solar panels because they fear that a neighbor will erect a structure or grow a tree on nearby property that shades their panels. Existing statutory approaches to protecting solar access for such landowners vary widely across jurisdictions, and some approaches flatly ignore the airspace rights of neighbors. Which rule regime for solar access protection best promotes the efficient allocation of scarce airspace, within the constraints of existing law? This Article applies Calabresi and Melamed’s “Cathedral” framework of property rules and liability rules to compare and analyze existing solar access laws and to evaluate a model solar access statute recently drafted under funding from the US Department of Energy. Surprisingly, the Article concludes that a statute implementing the Cathedral model’s seldom-used “Rule Four” is best suited for addressing solar access conflicts.

Ben Barros

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

Salzberg on Confusions of Title and Value in Property Law Legislation

Kenneth Salzberg (Hamline) has posted Zombie Life Estates, Ghost Value Transfers, and Phantom Takings: Confusions of Title and Value in Property Law Legislation on SSRN.  Here's the abstract:

This paper addresses a number of problems in current legislation and regulations caused by misunderstanding basic concepts of property law and value. First, in recent legislation, life estates have been treated as if they continued to exist after the life tenant dies, allowing the state to place a lien for services to the life tenant on the remainderman’s interest. Second, in many states, a joint tenant can disclaim up to half the value of the joint tenancy property when one joint tenant dies—even though there is no transfer at the time of the death. Lastly, for some time, the US Supreme Court has been making a muddle of Takings Jurisprudence based, partly, on confusing value and title. This paper argues that an understanding of the difference between value and title would go a long way to fixing these problems in property law.

Ben Barros

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

Nash and Stern on Property Frames

Jonathan Remy Nash (Emory) and Stephanie Stern (Chicago-Kent) have posted Property Frames on SSRN.  Here's the abstract:

How can we most effectively weaken property rights? Property law confronts circumstances where owner’s excessive perceptions of their ownership rights impose social costs, frustrate policy goals, and hamper the very institutions meant to support private property. Groundbreaking research on cognitive framing suggests an answer to the question of how to selectively attenuate ownership perceptions. In a novel application of this research, we contend that property law may 'set frames' for individual owners. Specifically, we hypothesize that framing property as bundles of rights and forewarning of limitations weakens perceptions of ownership and decreases resistance to subsequent restrictions. We conducted experiments to evaluate this claim and found that both bundle/discrete asset framing and forewarning framing affect perceptions of ownership, rights infringement, valuation, and satisfaction. Our study shows that 'layering' both of these conditions (bundle framing and forewarning) have a stronger, synergistic impact than the sum of each effect alone. The potential applications of this research to property theory are numerous. Legislators, judges, and regulatory agencies craft legal measures that respond to, or even capitalize on, strong, pre-existing frames of citizen-owners. These institutional players may also endeavor to limit spillovers and other social harms by reframing property as a limited set of use rights in areas of law such as pollution rights, intellectual property, and common interest communities.

Ben Barros

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Merrill on Accession and Original Ownership

Thomas W. Merrill (Yale) has posted Accession and Original Ownership on SSRN.  Here's the abstract:

Although first possession is generally assumed to be the dominant means of establishing original ownership of property, there is a second but less studied principle for initiating ownership, called accession, which awards new resources to the owner of existing property most prominently connected to the new resource. Accession applies across a wide variety of areas, from determining rights to baby animals and growing crops to determining ownership of derivative rights under intellectual property laws. Accession shares common features with first possession, in that both principles assign ownership uniquely in a way that imposes minimal information cost burdens on society. But accession differs from first possession in that it does not presuppose that rights are established in an open access commons and does not require the performance of an act to establish ownership. These features of accession make it, as a rule, more efficient than first possession, at least where property rights are thick and securely enforced. More broadly, accession can be seen as the critical legal principle that generates the internalization function of property, insofar as gains and losses attributable to the management of resources are automatically assigned to the most prominently connected property by accession. Although the story of accession is generally a positive one from an efficiency perspective, it may be more problematic from several normative perspectives, which are briefly considered.

Ben Barros

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McLaughlin on Land Trusts and Biodiversity

Nancy A. McLaughlin (Utah) has postedThe Role of Land Trusts in Biodiversity Conservation on Private Lands on SSRN.  Here's the abstract:

This short article explores the role land trusts and conservation easements can play in the protection of biodiversity on private lands.

Short and sweet!

Ben Barros

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