PropertyProf Blog

Neighbors Cheer Crosswalk Vigilante

Here's a fun story about do-it-yourself urbanism from Pittsburgh's Polish Hill neighborhood. You might not be able to fight city hall, but you can take the law into your own hands:

A crosswalk vigilante has beaten Pittsburgh road crews to the punch - and to the paint - by marking crosswalks at what residents say is a dangerous intersection for pedestrians in the city's Polish Hill neighborhood. The lines were painted about three weeks ago and have drawn rave reviews from residents. One posted this message on a bulletin board at a nearby park: "Dear crosswalk vigilantes: Thank you!. You made my day." City officials, however, aren't thrilled . . . Public Works director Rob Kaczorowski says crews were planning to install larger stop signs paint a crosswalk in a few weeks. The city had previously twice denied requests for crosswalks. Kaczorowski says whoever painted the crosswalks should have waited because they "would be part of the liability if there's an accident there."

All of this does raise the issue about when (or if) the vigilante ethos is appropriate in a modern setting. Of course, if there is such a thing as a "socially constructive" form of urban vigilantism, then the crosswalk marauders seem to embody it: they're supported by a majority of the neighborhood (including the leading citizens); they dealt quickly and effectively with a criminal problem; their reaction was measured (no violence); they left the area in a more stable and orderly condition; and when opposition from the city developed, they disbanded. 

Steve Clowney

Ellickson on Street Layouts

Robert Ellickson (Yale) has posted The Law and Economics of Street Layouts: How a Grid Pattern Benefits a Downtown (Alabama Law Review) on SSRN.  Here's the abstract:

People congregate in cities to improve their prospects for social and economic interactions. As Jane Jacobs recognized, the layout of streets in a city’s central business district can significantly affect individuals’ ability to obtain the agglomeration benefits that they seek. The costs and benefits of alternative street designs are capitalized into the value of abutting lots. A planner of a street layout, as a rule of thumb, should seek to maximize the market value of the private lots within the layout. By this criterion, the street grid characteristic of the downtowns of most U.S. cities is largely successful. Although a grid layout has aesthetic shortcomings, it helps those who frequent a downtown to orient themselves and move about. A grid also is conducive to the creation of rectangular lots, which are ideal for siting structures and minimizing disputes between abutting landowners. Major changes in street layouts, such as those accomplished by Baron Haussmann in Paris and Robert Moses in New York City, are unusual and typically occur in bursts. Surprisingly, the aftermath of a disaster that has destroyed much of a city is not a propitious occasion for the revamping of street locations.

Steve Clowney

Sewage to Snow

So I didn't intend for this to be a theme today, but sewage has popped up again in the New York Times, which has reported that an Arizona ski resort will become the first ski resort in the world to use 100 percent sewage effluent to make artificial snow this season.  The U.S. Forest Service owns the land that the resort is located on and says that the sewage will be treated to a standard just below drinking water, and is already being used to irrigate golf courses, soccer fields and parks.

Tanya Marsh

Combined Sewer Overflow Systems in American Cities

A few years ago, I toured a beautiful house in Indianapolis that I was interested in buying.  It was around 100 years old, beautifully restored with stained glass and wood floors and trim.  Big backyard that boarded Fall Creek, and a bargain for the price.  That is, until I walked into the backyard and the smell from the creek hit me -- the smell of an open sewer.  It had rained the night before and the storm sewers had overflowed, mixing with the sanitary sewers and dumping the combined wastewater into a sewage outflow point on Fall Creek just a few hundred feet from the house.  Even though I knew that Indianapolis's combined sewer outflow system functioned this way, I had no idea where the sewage outflow points were located.  I'm lucky that it rained that night, or I probably would have put an offer in on a house where my children would be constantly tempted to play in the adjacent creek, a creek tained by raw sewage on a regular basis.

The Indianapolis Star has an article today that maps the sewage outflow points in the city of Indianapolis.  Not surprisingly, since the system is old, the points are mostly located in the core city, which means that 2/3 are located in what are now poor neighborhoods.  Half of the 144 outflow points are located within a quarter-mile of a school, a park, or a recreation center. 

Indianapolis is under a federal mandate to clean up this system, at a cost of $3.1 billion, before 2025.  That's a long time for raw sewage to continue to pollute the city's creeks and rivers.  Amazingly, although there is a high level of awareness of this problem in the city, there is very little political will to speed up the solution, despite the public health risks.

Indianapolis is not alone.  According to the EPA, 772 cities have combined sewage overflow systems.  I'd be interested in learning whether any of these other cities are voluntarily cleaning up their systems before the EPA mandate deadline.

Tanya Marsh

Mitt Romney's Housing Policy

Matt Yglesias looks at Mitt Romney's proposals to cure the nation's housing issues.  His takeaway: "Romney’s housing plan is depressing. Faced with a clear policy area in which Obama has not succeeded, his opponent came out with a seven-page white paper so embarrassing the campaign dropped it on a Friday night."  On the specifics, Yglesias argues:

In terms of something the parties actually disagree about, Romney proposes to replace the Dodd-Frank Act with “sensible regulation.” If we repeal Dodd-Frank and its tools for orderly liquidation, what would we do instead? Well, the last plank of the Romney plan argues that “the Romney-Ryan plan will completely end ‘too-big-to-fail’ by reforming the GSEs,” i.e. Fannie Mae and Freddie Mac.

This is a real head-scratcher. Not only does Romney not say how he would reform Fannie and Freddie, he doesn’t even begin to try to explain how this would end the “too-big-to-fail” dilemma—presumably because it wouldn’t. Fannie and Freddie may have exacerbated the extent of the housing bubble, but this has literally no bearing on the question of whether or not the economy can survive the liquidation of a diversified mega-bank. If a bank goes bust under Romney’s plan—what happens? Nobody knows.

Steve Clowney

Aziz and Khan on Private Ownership in Islamic Law

Farooq Aziz (Federal Urdu University - Pakistan) and N. R. Khan (Sultan Idris University - Malaysia) have posted Refutation of Private Ownership of Land: An Islamic Perspective (Journal of Islamic Economics) on SSRN.  Here's the abstract:

It is normally accepted that, Islam recognized the private ownership of land just like other items. Private ownership is an accepted institution in Islam. No doubt this institution is well admitted in Holy Book, however, it does not accept the private ownership of land. Arguments which are given in this context from Qur’an & Hadith do not qualify any standard of reasoning. The foremost gap in the arguments given in Holy Book is that, Qur’an definitely accepts the ownership of houses, gardens and agriculture production, but doesn’t the land on which they are situated. It is wrongly assumed that, the land on which houses or gardens are situated or from which cultivator attains production is also in the possession of individual, it is the basic deception. Holy Book has admitted the ownership of all those items which are the result of human labor. Since land is not the result of human labor; hence its private ownership is not recognized.

Steve Clowney

Redrawing the Globe

The New York Times has a terrific feature on the emergence of a new nation states across the globe:

new countries will not be the product of a single political change or conflict, as was the post-Soviet proliferation, nor will they be confined to a specific region. If anything, they are linked by a single, undeniable fact: history chews up borders with the same purposeless determination that geology does, as seaside villas slide off eroding coastal cliffs. Here is a map of what could possibly be the world’s newest international borders.

Steve Clowney

Hynes on The Right to Exclude in the Digital Age

Richard Hynes (UVa) has posted Centralized Posting and the Right to Exclude in the Digital Age on SSRN.  Here's the abstract:

Many European nations recognize a right to hike, hunt or engage in other recreation on private land without the owner’s consent. Some American states once recognized variants of this right, but today all recognize the landowner’s right to exclude outdoor enthusiasts. Most states insist that landowners post signs or physically mark their property to exercise their right. This essay argues that states should allow landowners to “post” their property by checking a box when they pay their property taxes. States should then provide this information to the public in a form that can be accessed on the internet and stored on telephones or handheld GPS devices. This system would reduce the landowner’s cost of posting and improve the notice given to the public. This system could also enhance the government’s ability to serve as an intermediary between landowners and outdoor enthusiasts by negotiating for public access to private land. By playing the role of intermediary, the government substantially reduces bargaining costs and changes the analysis of the optimal allocation of property rights. Modern technology makes it much harder to argue for a general public right to access private land.

Steve Clowney

Private City in Honduras Will Have Minimal Taxes, Government

This seems like kind of a big deal:

Small government and free-market capitalism are about to get put to the test in Honduras, where the government has agreed to let an investment group build an experimental city with no taxes on income, capital gains or sales.

Proponents say the tiny, as-yet unnamed town will become a Central American beacon of job creation and investment, by combining secure property rights with minimal government interference. 

“Once we provide a sound legal system within which to do business, the whole job creation machine – the miracle of capitalism – will get going,” Michael Strong,  CEO of the MKG Group, which will build the city and set its laws, told FoxNews.com.

Steve Clowney

Serkin to Vanderbilt

Christopher Serkin (Brooklyn) has accepted a senior offer at Vanderbilt to begin in 2013.

Steve Clowey

(HT: Brian Leiter)

Osofsky on Suburban Climate Change Efforts

Hari Osofsky (Minnesota) has posted Suburban Climate Change Efforts: Possibilities for Small and Nimble Cities Participating in State, Regional, National, and International Networks (Cornell Journal of Law and Public Policy) on SSRN.  Here's the abstract:

This Article provides a novel analysis of the capacity of suburbs to play a constructive role in addressing climate change. Small suburban cities represent the majority of metropolitan populations and emissions; encouraging their mitigation efforts, in addition to those of large center cities, is critical. In contrast to the conventional critique of suburbs as an undifferentiated group of sprawling emitters, the Article analyzes pathways for different types of small, nimble, suburban governments to learn from other localities and find cost-effective approaches to reducing emissions. It intertwines scholarship on (1) cities, suburbs, and climate change, (2) the complex demography of suburbs, (3) the role of climate change networks in transnational governance, and (4) more inclusive multi-level climate change governance to describe the limits of the current discourse on suburbs and climate change and to propose a new model for encouraging more suburban action. Using the Twin Cities metropolitan region as an initial case example, the Article considers what steps different types of leader suburbs are taking and how they are participating in voluntary multi-level climate change and sustainability networks. It argues that, especially in the absence of top-down mandates requiring cities to mitigate their emissions, these voluntary networks play an important role in fostering local action and connecting that action to international climate change treaties. It proposes that these networks could have a greater impact, however, through strategies that reflect the differences among types of suburban cities and foster more cross-network interaction.

Steve Clowney

Can Moving to a Better Neighborhood Break the Cycle of Poverty?

A fascinating look at housing vouchers:

Single mothers mired in extreme poverty feel considerably better about their lives and are mentally healthier after moving out of public housing with the help of federal housing vouchers, a new study finds. But here’s the bad news: That type of helping hand isn’t strong enough to break the cycle of poverty.

This two-sided trend, uncovered by economist Jens Ludwig of the University of Chicago and his colleagues, presents policy makers with a quandary. Designed as poverty-fighting tools, housing vouchers don’t get poor adults off welfare rolls and into decent-paying jobs, Ludwig’s team reports in the Sept. 21 Science. Yet the same black and Hispanic single mothers who received vouchers did cite big emotional benefits after moving from public housing to apartments in somewhat better parts of town.

Steve Clowney

The Senkaku / Diaoyu Islands Dispute

There’s been a lot of coverage in the news about the protests in China over Japan’s attempt to sell the Senkaku Islands (as they are called in Japan)/ Diaoyu Islands (as they are called in China).  Both countries claim sovereignty over the islands, and protesters in China claim that Japan’s attempt to buy them from private owners violates China’s claim over them.

Much of the coverage I saw last week (for example: The New York Times 9/19 and the BBC) was focused primarily on the nature of the protests. Not only were there demonstrations outside the Japanese embassy, there was “extensive rioting and vandalism” last weekend (The New York Times 9/19), and Japanese car manufacturers  halted operations in China for a few days. Also, interestingly, evidently the Chinese government did not immediately shut down these protests  (The New York Times 9/17). 

Most commentators refrained from speculating on where sovereignty over the islands actually lies, instead reporting that both countries claim it - China on the grounds that they controlled the islands “since ancient times” and that the islands should have been returned to them after World War II (WWII) and Japan because of their control of them more recently. I thought I’d dig a bit deeper and see if I could find a clearer answer here.  Actually, I thought that if we looked back far enough or with a neat property/ international law framework in mind, perhaps there would be an clear legal answer - an answer which would probably be complicated by politics or time - but an answer nonetheless. ..

As it turns out, the answer is not so clear, in part because politics and time are part of the determination of sovereignty in the case of claims over unoccupied land.  

Luckily, there are a few journal articles which help explain the competing claims. In particular, an article in 1996 by the late Professor Hungdah Chiu of the University of Maryland School of Law explains the Chinese claims in detail, and I encourage readers to take a look in order to learn more (citation below).

As detailed by Chiu, there is plenty of historical evidence China controlled the islands from at least the 15^thcentury - hence the assertion in the articles above that the islands are theirs “since ancient times” – and that Japan was aware of this claim. The press articles above and others seemed to gloss over the ‘ancient times’ assertion as a kind of awkwardly articulated legal claim, separate from the claim that post-WWII treaties should have been interpreted differently. A closer look at the history and China’s legal assertions prior to this event, though, show that these claims are hardly inseparable and in fact are stronger and more coherent when read together. China is basically claiming that the islands were always theirs, that Japan knew this and stole them after the Sino-Japanese War in 1895 and that Japan’s subsequent claim to sovereignty over them is illegal. As a result, China claims that these islands should have been returned to them under the post-WWII treaties in 1945.  In support of this claim, China has actively protested alternate (Japanese or other) legal interpretations of the international law regarding international boundaries extending from their continental shelf and the ‘return’ of these islands to Japan in 1972 (as a result of post-WWII treaties).  

Japan’s claims rest not only on a different interpretation of the post-WWII settlement, but relatedly on international law which recognizes sovereignty of uninhabited land (terra nullius) through occupation. According to Japan, an application of this law would necessarily find Japanese sovereignty over the islands because Japan surveyed them, found no trace of Chinese occupation , and then took control of them in 1895. Japan’s account of their survey and investigation in 1895 is disputed by (China and) Han-Yi Shaw, a Taiwanese scholar who recently wrote an article on Nicholas Kristof’s blog (citation below) .  If Japan had in fact gained control over these islands terra nullius in 1895, then the islands wouldn’t be part of the land that required to be returned to China after WWII (Ramos-Mrosovsky, citation below).

So, the legal situation is unclear, in part because of the time and politics involved. (After reading through these materials, I don’t fault the press for glossing over the finer points of actual sovereignty.) What is actually stake? Not just uninhabited islands in the ocean and diplomatic relations - evidently in 1969 a UN Committee with members from Taiwan, Korea, the Philippines and assistance from the US concluded that the area might contain vast reserves of oil and gas. On that note, Japan also claims that China didn’t dispute their sovereignty over these islands until the 1970s, after the oil was (maybe) discovered. This part was really interesting. Could China’s “motive” be used to discredit them (legally or diplomatically)? Also, on the time factor, under the customary international law of prescription, “a state that fails to contest other states' assertions of sovereignty over its territory can lose its rights for failure to insist upon them” (Ramos-Mrosovsky, citation below). However, the law isn’t clear as to how much time must pass in order for the invader to claim sovereignty.  China’s repeated public assertions that they didn’t recognize Japanese sovereignty would of course cut against this claim; but if in fact they didn’t protest until the 1970s, then perhaps they waited too long? In any case, it looks like Japan is setting up an argument for their sovereignty on several (perhaps cloudy) grounds of international law, should this dispute end up in an international court (for more on this, take a look at their Ministry of Foreign Affairs on this subject, website below).

 

Further Reading regarding the Background of the Dispute

Hungdah Chiu, An Analysis of the Sino-Japanese Dispute over the T'iaoyutai Islets (Senkaku Gunto), 15 Chinese Taiwan Y.B. Int’l L. & AFF. 9 (1996-97), reprint available
at http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=1149&context=mscas

Han-Yi Shaw, The Inconvenient Truth Behind the Diaoyu/Senkaku Islands, available at http://kristof.blogs.nytimes.com/2012/09/19/the-inconvenient-truth-behind-the-diaoyusenkaku-islands/

Carlos Ramos-Mrosovsky, International Law’s Unhelpful Role in the Senkaku Islands, 29 U. Pa. J. Int'l L. 903 (2008)

Alexander M. Peterson, Sino-Japanese Cooperation in the East China Sea: A Lasting Arrangement?,
42 Cornell Int'l L.J. 441 (2009)

Japanese Ministry of Foreign Affairs: http://www.mofa.go.jp/region/asia-paci/senkaku/qa_1010.html

 

Priya S. Gupta

Thank you to PropertyProfs Blog for having me this next month. As Stephen mentioned last week, I’m currently teaching Property at Southwestern Law School. Before this Fall, I was at the Jindal Global Law School in India.  Much of my research has focused on property theory and law, both in India and the US. I'll use this month to post on international property developments, property in pop culture and the news, and teaching Property as a first year course. I welcome comments and conversations in response to any of my posts!

 

Has Sprawl Won?

Andrew Tuck asks what to make of the fact that cities countine to become less dense:

Should we admit defeat and let cities spread? Are ideas such as the Green Belt outdated (they may not work and, even if they do, often have the unintended consequence of forcing up land and property prices in the core). And if now that cities are going to spread whatever you do, should we put aside the land now, build the basic infrastructure and embrace the process?

Steve Clowney

(HT: Andrew Sullivan)

Klass on Takings and Electric Transmission Lines

Alexandra Klass (Minnesota) has posted Takings and Transmission (North Carolina Law Review) on SSRN.  Here's the abstract:

Ever since the Supreme Court’s controversial 2005 decision in Kelo v. City of New London, courts, state legislatures, and the public have scrutinized eminent domain actions like never before. Such scrutiny has focused, for the most part, on the now-controversial “economic development” or “public purpose” takings involved in the Kelo case itself, where government takes private property for a redevelopment project that will benefit another private party as well as increase the tax base, create new jobs, assist in urban renewal, or otherwise provide economic or social benefits to the public. By contrast, until recently, there has been little change in law or public opinion with regard to takings involving publicly-owned projects such as hospitals or post offices or “use by the public” takings that involve condemnation for railroad lines, electric transmission lines, or other infrastructure projects. However, recent changes in electricity markets and the development of the country’s electric transmission system have raised new questions about the validity of “use by the public” takings in the context of electric transmission lines. With some transmission lines now being built by private, “merchant” companies rather than by publicly-regulated utilities, and with the push to build more interstate transmission lines to transport renewable energy to meet state renewable portfolio standards, what was once a classic public use is now subject to new statutory and constitutional challenges. This Article explores the potential impact of these developments on the use of eminent domain for electric transmission lines. Ultimately, it suggests that states should ensure that their eminent domain laws governing transmission lines are consistent with their policy preferences surrounding energy development in the state, and it outlines some ways for states to accomplish this goal.

Steve Clowney

Universities and the Law of Eminent Domain

The Chronicle of Higher Education reports on the use of eminent domain by educational institutions like Ball State:

At a time when public university leaders regularly point to the advantages that private institutions have enjoyed over them in recent years – such as freedom from most state regulations, freedom to raise tuition, and often significant financial resources -- it’s easy to forget that the public universities still have one significant advantage. They are parts of the state, and that comes with a lot of powers.

Earlier this month, Ball State University’s board of trustees authorized the use of eminent domain – the power of the state to seize private property without the owner’s consent so long as the owner is compensated – to take a piece of property on which it plans to construct a hotel, conference center, restaurants, and dormitory for hospitality students.

Steve Clowney

(HT: Volokh Conspiracy)

Miller on The Visual and the Law of Cities

Stephen Miller (Idaho) has posted The Visual and the Law of Cities (Pace Law Review) on SSRN.  Here's the abstract:

This experimental article will attempt to explore, through brief sketches, or “tableaus,” four ways in which the visual interplays with the law of cities, and how a deeper understanding of this intersection can assist in the development of these laws and their underlying policies. For the purposes of this article, the “law of cities” is defined as those allied fields of law that deal with building, construction, architecture, planning, developing, preserving, and otherwise creating the places where we live. First, the article explores the law’s longstanding adverse relationship to the visual, as well as contemporary efforts to change that relationship. The article then turns to the four tableaus that explore the law of cities and the visual. In the first tableau, the article discusses the question of the cultural value of a hand-drawn map by reviewing the U.S. Supreme Court’s nineteenth century jurisprudence on Spanish era diseños, or property maps, which were part of Spanish and Mexican California-era land grants. In the second tableau, the article discusses the question of whether aesthetics is a proper domain of the law of cities by comparing the U.S. Supreme Court’s decision in Berman v. Parker, its progeny, and Daniel Burnham’s 1909 Plan of Chicago, which was the first, and perhaps most important, comprehensive plan drafted for an American city in the “City Beautiful” tradition. The third tableau explores the production of space and the philosophy of Henri Lefebvre in the context of the visual as law, most notably, in the rise of visual zoning codes. The fourth tableau extends the law and literature movement to the visual arts through the philosophy of Edward Casey as applied to the painter Edward Hopper. By presenting these four approaches in which the visual complicates and assists the law of cities, and sometimes even acts as the law of cities, the article intends to spur a dialogue on the complicated relationship of the visual to the law of cities.

Steve Clowney

Is Greenland the New Maine?

The NY Times looks at how climate change is affecting the value of property in the artic circle.

At stake are the Arctic’s abundant supplies of oil, gas and minerals that are, thanks to climate change, becoming newly accessible along with increasingly navigable polar shipping shortcuts. This year, China has become a far more aggressive player in this frigid field, experts say, provoking alarm among Western powers.

Steve Clowney

(image: Tasiilaq, Greenland, where climate change is bringing new prosperity and new challenges)

Borden & Reiss on Real Estate Mortgage Investment Conduits

Bradley Borden (Brooklyn) and David Reiss (Brooklyn) have posted Wall Street Rules Applied to REMIC Classification on SSRN.  Here's the abstract:

Investors in mortgage-backed securities, built on the shoulders of the tax-advantaged Real Estate Mortgage Investment Conduit (“REMIC”), may be facing extraordinary tax losses because of how bankers and lawyers structured these securities. This calamity is compounded by the fact that those professional advisors should have known that the REMICs they created were flawed from the start. If these losses are realized, those professionals will face suits for damages so large that they could put them out of business.

Steve Clowney

When Hipsters Take Property

Ha.

Steve Clowney

(HT: Matt Festa)