PropertyProf Blog

Reconsidering Seaside, Florida

Kaid Benfield reflects on Seaside:

It’s easy to mock Seaside, and plenty do, for being overplanned, a neo-traditional artifice too consumed with nostalgia for an idyllic past that never quite existed as reconceived.  Being featured in the Jim Carrey movie The Truman Show certainly didn’t help.  Neither does its function as a resort community of second homes for an upscale clientele.  Some of that is fair, in my opinion. [..]

There were plenty of other innovations, too, and they are newly chronicled in two new works:  First, Dhiru Thadani’s beautifully written and illustrated new book, Visions of Seaside, tells the complete story of Seaside's conception and evolution.  It’s not a small volume at 600 pages, but Visions is as seriously impressive as its subject.  Lovers of architecture and town planning will be fascinated, as much by the book's depiction of proposals for the town that, for one reason or another, did not get built as by the descriptions of what did.

Second, the engaging video about Seaside below, produced by Chris Elisara for the American Makeover series, provides as good a short, hands-on lesson about innovative city planning as you are likely to find anywhere.  Highly recommended:

Steve Clowney

Million Dollar Mausoleums

Oh I do love cemeteries.  The Wall Street Journal has a great piece on the very highest-end of the high-end cemetery sales.  (It might be behind a paywall.)  An excerpt:

At Metairie Cemetery in New Orleans, an eight-crypt mausoleum on a 32-by-32-foot lot is scheduled for completion in October with a price tag of about $1.1 million. The buyer, Ray Brandt, a 66-year-old attorney and auto-dealership owner, says he wants space for the whole family. The mausoleum will be carved from pink kershaw granite from South Carolina (his wife's choice) and hold up to 12 burials. There will be two sets of bronze doors, one of which will open to a back patio with picnic-style furniture and a view of a lagoon. "Eventually everyone will end up somewhere," he said. "I guess it's the last house I'll buy."

Above is a picture of Metairie from January, although I didn't get a good picture of Millionaire's Row.  I prefer the older tombs.

Tanya Marsh

The End of Grassy Lawns?

The New York Times notes that cities in the southwest are using a bundle of carrots and sticks to get homeowners to give up their grassy lawns in favor of more drought-resistant landscapes:

In hopes of enticing, or forcing, residents to abandon the scent of freshly cut grass, cities in this parched region have offered homeowners ever-increasing amounts to replace their lawns with drought-resistant plants; those who keep their grass face tough watering restrictions and fines for leaky sprinklers.These efforts are drastically reshaping the landscape, with cactuses and succulents taking over where green grass once reigned.

“The era of the lawn in the West is over,” said Paul Robbins, the director of the Nelson Institute for Environmental Studies at the University of Wisconsin. “The water limits are insurmountable, unless the Scotts Company develops a genetically modified grass that requires almost no water. And I’m sure it’s keeping them up at night.”

This piece by Sarah Schindler that we highlighted a few weeks goes much deeper on the same subject.

Steve Clowney

Alterman on Land Use Regulations and Property Values

Rachelle Alterman (Israel Institute of Technology) has posted Land Use Regulations and Property Values: The 'Windfalls Capture' Idea Revisited (Book Chapter) on SSRN.  Here's the abstract:

The idea of reaping the 'windfalls' in land values due to planning decisions is by no means new. The underlying rationale is that much of the value of real property is created not by the landowner’s work, but by government policies that grant development rights or by broad economic and social trends. Governments need the funds collected for financing public services of various kinds.

This paper opens with the conceptual debate about value capture and its rationale, presenting the positions of proponents as well as critics. Drawing on the author’s comparative research on the laws and practices in 13 advanced-economy countries around the world, the paper then addresses the degree to which recapture of the “unearned increment” from planning decisions is indeed a viable approach. Should policymakers adopt it for financing or incentivizing the delivery of public services and affordable housing?

Only three countries among the 13 have adopted laws and policies about value capture at some point in their history. What lessons may be learned from their experiences? The findings show that the idea of value capture in its pure form has failed to catch on widely among advanced economies, with only a few exceptions. However, the basic idea of the “unearned increment” as a financial source for public services has not died away. In recent decades, several “mutations" of this idea have been gaining popularity in many countries, but in widely different forms and degrees. I call these "indirect modes" of value capture. These are much more complex and less “elegant” than the direct value-capture notion, and present legal and public-policy challenges. Yet in some contexts, these modes are more realistic instruments for funding public services.

The paper concludes with a set of assumptions (for further research) about the legal-administrative conditions for the successful application of the indirect modes of value capture. These are still lacking even in some advanced-economy countries.

Steve Clowney

On Property, Community, and Pubs

Property and beer don't come together nearly enough.  Recognizing that pubs often serve as the social centers of smaller communities, England has granted 100 localities the power to (temporarily) block the transfer of bars that are put up for sale: 

A hundred pubs in England have been given special protected status to stop them being closed down and sold off for redevelopment. [...]

The 100 pubs have been given Assets of Community Value (ACV) status with their local councils, which means the pub can't be sold on without the local community being told. It grants councils greater powers to refuse planning applications from developers and gives the community up to six months to put in a bid to buy the pub should it be put up for sale.

Steve Clowney

(HT: Friend of the blog, and all-world legal geographer, Nick Blomley)

Blumm & Paulsen on The Public Trust in Wildlife

Michael Blumm (Lewis & Clark) & Aurora Paulsen (Lewis & Clark) have posted The Public Trust in Wildlife (Utah Law Review) on SSRN.  Here's the abstract:

The public trust doctrine, derived from ancient property principles, is thought to mostly apply to navigable waters and related land resources. The doctrine supplies a mediating force to claims of both private ownership and unfettered government discretion over these resources, vesting the state with trust responsibility to ensure that the use of these resources promotes long-term sustainability. A related doctrine — sovereign ownership of wildlife — is also an ancient public property doctrine inherited from England. State ownership of wildlife has long defeated private ownership claims and enabled states to enact and implement wildlife conservation regulations. This paper claims that these two doctrines should be merged, and that state sovereign ownership of wildlife means that wildlife — like navigable waters — is held in trust for the public and must be managed for long-term sustainable use by future generations. Merging the doctrines would mean that state ownership would not only give states with the authority to manage their wildlife populations but also the duty to do so and would equip members of the public with standing to enforce the states’ trust duties in court. This paper shows that the public trust in wildlife has already been employed in California and in several other states, and suggests that it deserves more widespread judicial recognition, particularly — as we demonstrate — in view of the fact that no fewer than forty-seven states use trust or trust-like language in describing state authority to manage wildlife. We include an appendix citing the sources of the wildlife trust in all forty-seven states for reference.

Steve Clowney

Map of the Day: The Most Common Surnames in Europe

Steve Clowney

Investors Sue Over Use of Eminent Domain for Mortgage Seizure Plan

Southern's Chris Odinet passes along this news:

A group of plaintiffs representing some of the nation's largest bond investors (including Fannie Mae and Freddie Mac) have filed a lawsuit against the City of Richmond, CA and the investment firm Mortgage Resolution Partners (MRP), seeking to block the City’s proposal to seize mortgages using eminent domain. The complaint argues that the use of eminent domain being proposed by the City and MRP is unconstitutional because it benefits a small group of Richmond citizens at the expense of out-of-state investors, effectively violating the interstate commerce clause.

In conjunction, the Federal Housing Finance Agency also released a memo stating its view that the use of eminent domain in this capacity “presents a clear threat to the safe and sound operations of Fannie Mae, Freddie Mac and the Federal Home Loan Banks."  These statements suggest that there may be some very real consequences for future access to consumer credit if the eminent domain plan is carried out.  HUD has yet to weigh in on whether it will insure the loans that will refinance the seized mortgages.

The complaint is here.

The FHFA's general counsel memo is here.

Steve Clowney

Designing for North Korea

Olga Wong asks who designs all the mega-projects in North Korea.  The answers she finds involve shadowy middlemen, private jets, Kim Jong-um, and an architecture firm from Hong Kong.

Steve Clowney

(Pic: Design for the Kumgang Tourism airport in North Korea)

Property & Speech, Ctd.

The New York Times reports on a veterans group that attempted to fly the Gadsden Flag (recently assosicated with the Tea Party movement) on city property of New Rochelle, NY.  The city ordered the flag removed:

City officials, who have been barraged by angry e-mails from conservatives nationally, say residents are welcome to put up banners or signs representing their opinions, but not on city-owned property.

“Although it’s certainly true that the Gadsden flag has a historic meaning, it’s also true that in the modern day, it is often associated with the Tea Party movement,” said Mayor Noam Bramson, who is also the Democratic candidate for Westchester County executive. “If you Google ‘Tea Party flag,’ this is the one that comes up. Of course, it’s fine for individuals to express their views on their own property or persons, but I think on public property, the standard has to be different.”

In a lawsuit filed on July 26 in federal court in White Plains, the United Veterans Memorial and Patriotic Association of New Rochelle and its president, Peter Parente, sued the city, Mr. Bramson, the city manager and four City Council members, saying that the city had acted in an “arbitrary, capricious and unreasonable manner” and violated the group’s First Amendment rights.

Steve Clowney

SEALS 2014 Property Panel?

SEALS '13 is almost over and its been great -- the series for new and newish faculty members has been particularly interesting, as well as the panel on interdisciplinary courses.  But not a ton of property or real estate offerings.  Anyone interested in putting together a panel or discussion group (or more than one) on a property/real estate/land use theme?  We could do something general or specific.  Next year SEALS will be back at Amelia Island Plantation, August 1-7th.

If you have ideas for a panel or discussion group, please leave a comment or e-mail me directly.

Tanya Marsh

Colombia & Nicaragua Clash Over Disputed Border

It never ceases to surprise how many international borders remain contested:

Tensions between the two nations have ratcheted up since last November when the International Court of Justice in The Hague ruled in the long-simmering dispute over Caribbean islands and territory that have been under Colombian control since its 1819 independence.

While the court reaffirmed Colombia’s sovereignty over San Andres and other Caribbean islands, it said Nicaragua had the right to thousands of square miles of territory east of the 82nd Meridian, which has served historically as the two countries’ marine border.

Steve Clowney

New Yorker Article on Asset Forfeiture Abuse

The New Yorker Magazine has an terrific article about police abuse of civil forfeiture laws, which highlights the outrageous and unconstitutional police raid at the Contemporary Art Institute of Detroit:

In the midst of festivities one evening in late May, 2008, forty-odd officers in black commando gear stormed the gallery and its rear patio, ordering the guests to the ground. Some in attendance thought that they were the victims of an armed robbery. One young woman who had fallen only to her knees told me that a masked figure screamed at her, “Bitch, you think you’re too pretty to get in the mud?” A boot from behind kicked her to the ground. The officers, including members of the Detroit Police Department’s vice squad and mobile tactical unit, placed the guests under arrest. According to police records, the gallery lacked proper city permits for after-hours dancing and drinking, and an old ordinance aimed at “blind pigs” (speakeasies) and other places of “illegal occupation” made it a crime to patronize such a place, knowingly or not.

After lining the guests on their knees before a “prisoner processing table” and searching them, the officers asked for everyone’s car keys. Then the raid team seized every vehicle it could find, even venturing to the driveway of a young man’s friend nearly a mile away to retrieve his car. Forty-four cars were taken to government-contracted lots.

Most of those detained had to pay more than a thousand dollars for the return of their cars; if payment wasn’t made promptly, the car would become city property.

Ilya Somin at Volokh piles on:

The idea that government can seize your property without ever having to prove that you committed a crime is deeply unjust, and creates dangerous perverse incentives for police, especially in cases where they or the local governments they work for get to keep the assets seized. The Texas jurisdiction discussed in Stillman’s article is particularly egregious, since it focuses its abusive behavior on out-of-town drivers who have little or no political leverage in the area, and face unusually high costs if they choose to contest the seizures.

A variety of reforms could help diminish asset forfeiture abuse. For example, police could be banned from keeping the proceeds, and state and local governments should give owners the right to contest seizures quickly and cheaply. In some states, current arrangements allow the authorities to hold forfeited property for many months without giving the owner any opportunity to challenge the seizure, thereby violating the Due Process Clause of the Fourteenth Amendment. Ultimately, however, the best solution is to abolish civil asset forfeiture completely.

Steve Clowney

Your Cubicle as Property

Feeling drained in your cubicle?  Property to the rescue:

Newly published research suggests working in an environment that offers little privacy can lead to emotional exhaustion and burnout. [...]  

But this link disappeared when . . .  employees . . . personalized their cubicles. Employees who had turned their workspaces into areas that reflect their interests and personalities reported the same (relatively low) level of emotional exhaustion, regardless of whether they worked in an office or a cubicle.

The researchers credit “the calming effect” of having your own stuff around you. This “enables employees to cope more effectively with the interferences and distractions at work, and maintain the necessary energy needed to pursue their work successfully,” they write.

Steve Clowney

Henrietta Lacks Finally Gets Her Due

For those who haven't followed the story, here's a brief recap of the controversy over the HeLa Cell line:  Henrietta Lacks was a poor Southern tobacco farmer born in 1920.  Ms. Lacks died on October 1, 1951 and was buried in an unmarked grave.  However, cells taken from her body (without her permission) during a medical procedure at Johns Hopkins became one of the most important tools in medicial research -- the HeLa cell line.  Lacks' cells were vital for developing the polio vaccine and helped uncovered secrets of cancer, viruses, and the effects of the atom bomb. Scientists eventually commercialized Lacks' unique cells. For many years they have been bought and sold the world over, and they have generated millions in profits.  Nevertheless, neither Lacks nor her family ever received a dime.  In fact, Lacks' family didn't even know about the existence of the HeLa cell line until last year.

NBC News has a new follow up story on the case:

On Tuesday, the National Institute of Health announced it was, at long last, making good with Lacks' family. Under a new agreement, Lack's genome data will be accessible only to those who apply for and are granted permission. And two representatives of the Lacks family will serve on the NIH group responsible for reviewing biomedical researchers’ applications for controlled access to HeLa cells. Additionally, any researcher who uses that data will be asked to include an acknowledgement to the Lacks family in their publications.

The new understanding between the NIH and the Lacks family does not include any financial compensation for the family. The Lacks family hasn’t, and won’t, see a dime of the profits that came from the findings generated by HeLa cells. But this is a moral and ethical victory for a family long excluded from any acknowledgment and involvement in genetic research their matriarch made possible.

Steve Clowney

Faceoff in Dallas

Interesting conflict in Dallas between the Nasher Sculpture Center and a brand new, $200 million, 42-story residential condo tower which reflects some serious glare on the center.  Museum officials report that the garden has had to be resodded twice because of the heat of the glare, trees have been burned, and the galleries have been compromised.  Evil greedy developer versus a museum?  Except that the Museum Tower was built and is owned by the Dallas Police and Fire pension fund.

The conflict between the tower and the museum would be a fun ripped-from-the-headlines hypo to allow property students to discuss the balance between private property rights, nuisance, etc.

For more info, there is a story in the New York Times today, and a number of stories in the Dallas Morning News, including one on July 27th. 

Tanya Marsh

August Professor's Corner Call

It's time to invite you to this month's Professors' Corner call, sponsored by the ABA RPTE Section.  From this month's host, Wilson Freyermuth:

Professors' Corner:   Wednesday, August 14, 2013

12:30pm Eastern/11:30am Central/9:30am Pacific

Call-in number: 866-646-6488

Passcode: 5577419753

Professors’ Corner is a monthly FREE teleconference sponsored by the ABA Real Property, Trust and Estate Law Section's Legal Education and Uniform Laws Group.  Each month’s call features a panel of law professors who discuss recent cases or issues of interest to real estate practitioners and scholars.

Our program on Wednesday, August 14 is “Real Estate Issues in the Bankruptcy Courts.”  Our panel will discuss the latest on several important real estate issues in bankruptcy, including the “absolute priority” rule in individual Chapter 11 cases; the “strip-off” of underwater liens in Chapters 11 and 13; and the artificial impairment and artificial classification in Chapter 11 cases.

Our panelists for the program include three leading bankruptcy scholars:

Professor Ralph Brubaker, University of Illinois College of Law.  Prof. Brubaker has taught at Illinois since 2004 after many years at Emory University Law School.  He has served as Interim Dean and Associate Dean for Academic Affairs at Illinois and most recently as the Guy Raymond Jones Faculty Scholar.  He will discuss a recent Fifth Circuit decision, In re Village at Camp Bowie I, L.P., and the extent to which a Chapter 11 debtor can “artificially” impair claims to facilitate cramdown of a reorganization plan and the status of the “artificial classification” doctrine.  Here are links to the cases that Prof. Brubaker will address: 

In re Village at Camp Bowie, 710 F.3d 239 (5th Cir. 2013)

http://www.ca5.uscourts.gov/opinions/pub/12/12-10271-CV0.wpd.pdf 

In re Greystone III Joint Venture, 995 F.2d 1274 (5th Cir. 1992)

https://bulk.resource.org/courts.gov/c/F2/995/995.F2d.1274.90-8529.html

In re Little Creek Development Co., 779 F.2d 1068 (5th Cir. 1986)

https://bulk.resource.org/courts.gov/c/F2/779/779.F2d.1068.85-1615.html 

In re Sun Country Development, Inc., 764 F.2d 406 (5th Cir. 1985)

https://bulk.resource.org/courts.gov/c/F2/764/764.F2d.406.84-1999.84-1978.html

Professor Bruce Markell, Florida State University.  Prof. Markell returns to teaching at FSU in 2013 as the Jeffrey A. Stoops Professor, after many years of service as a United States Bankruptcy Judge for the District of Nevada and as a member of the Bankruptcy Appellate Panel for the Ninth Circuit.  Prior to his service as bankrutpcy judge, Prof. Markell had a distinguished career as a law teacher at both Indiana University and UNLV.  He will address recent case developments involving the “absolute priority rule,” including whether the rule applies in individual Chapter 11 cases and Judge Easterbrook’s recent “new value” decision in In re Castleton Plaza.  Here are links to the cases that Prof. Markell will address: 

In re Lively, 717 F.3d 406 (5th Cir. 2013)

http://www.ca5.uscourts.gov/opinions/pub/12/12-20277-CV0.wpd.pdf

In re Castleton Plaza, LP, 707 F.3d 821 (7th Cir. 2013)

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2013/D02-14/C:12-2639:J:Easterbrook:aut:T:fnOp:N:1083443:S:0 

In re Shat, 424 B.R. 854 (Bankr. D. Nev. 2010)

http://www.nvb.uscourts.gov/downloads/opinions/bam-08-23136-shat.pdf

Professor Robert Lawless, University of Illinois.  Prof. Lawless has taught at Illinois since 2006, and previously taught at both Missouri and UNLV. He currently serves as the Associate Dean for Research and the Co-Director of the Illinois Program on Law, Behavior, and Social Science.  Prof. Lawless will address recent case developments regarding the ability of Chapter 11 and 13 debtors to “strip-off” underwater mortgage liens.

Tanya Marsh

Obama Looks to Wind Down Freddie & Fannie

In a speech in Phoenix, President Obama outlined his vision for beleaguered mortgage giants Freddie Mac and Fannie Mae:

Fannie Mae and Freddie Mac do not make loans directly, but buy mortgages from lenders, package them as bonds, guarantee them against default and sell them to investors. The enterprises currently own or guarantee half of all US mortgages and back nearly 90% of new ones. [...]

Fannie and Freddie, as the two federally-created entities became known, were blamed for encouraging an era of reckless lending and were bailed out by the US government at a cost of $187bn.

Now the White House argues it is time to work with Congress to replace the system with more private guarantees. "For too long, these companies were allowed to make big profits buying mortgages, knowing that if their bets went bad, taxpayers would be left holding the bag," said Obama. [...]

Obama is also seeking guarantees that a private sector-led mortgage finance system would still ensure wide homeowner access to popular 30-year mortgages at fixed rates.

Steve Clowney

Miller on the Relationship Between Nature and the City

Stephen Miller (Idaho) has posted Boundaries of Nature and the American City (Book Chapter) on SSRN.  Here's the abstract:

This chapter presents a framework for understanding how legal approaches have guided and defined the relationship between nature and the city since the wilderness movement. The purpose of presenting a selective and concise, but by no means exhaustive, version of these changes is twofold: first, this chapter satisfies a need to identify the dynamics that govern and organize the disparate policies through which we navigate the boundaries between nature and the city; second, because the city and its legal tools will be tasked with driving human adaptation to climate change, this chapter will serve as a guide for further exploration into the capacity and potential of these legal tools in a changing environment.

The five approaches to city boundaries explored here illustrate the variety of tensions constructed in the law between humans, nature, and place. The first two approaches, both of which fit under the larger rubric of growth management or smart growth policies, primarily concern the city’s sprawl into nature. These approaches are driven by a felt need to maintain the boundary between human, civilized places and nature. The first approach uses legal tools that would bind a city geographically through preservation of natural elements at the city’s border, such as open space acquisition, land trusts and conservation easements, agricultural easements and working landscapes, transfer of development rights, greenbelts and urban growth boundaries, and large-lot zoning. A second approach to sprawl has been to restrain the speed of the city’s geographic growth through land use tools such as tempo and sequencing controls, and linking land use and transportation planning.

Beyond addressing sprawl, a third approach to boundaries of nature and the city has sought to revitalize neglected natural elements located geographically within the city — rivers, native species, and agriculture — enhance them, and integrate them into city life. A fourth approach has sought to change how cities’ built environment relates to nature by reducing and mitigating the built environment’s effects on nature. This has included use of legal tools such as mandatory environmental review of new projects, new legal regimes governing how the built environment’s use of resources affected nature globally through climate change, as well as regulations of even small parts of the built environment, such as street lights, that can have an outsized effects on wildlife. A fifth approach has sought to change how a city’s community relates to nature, including using law to address environmental justice and empowering sub-local communities to seek environmental benefits.

After reviewing these five approaches to boundaries of nature and the city, the chapter concludes by evaluating how the relationship between nature and city is being redefined through rapid population and ecosystem migrations. As both nature and the city morph and change, new, forward-looking legal tools will be needed to renegotiate nature and the city’s boundaries at both the hyper-global and hyper-local levels.

Steve Clowney

Map of the Day: The Metric System

Or, rather, a map of countries not on the metric system:

Steve Clowney