Thursday, November 14, 2013
This story out of Virginia, features Donald Trump, a winery, a proposed golf course, and a conservation easement. In 2011, a Trump subsidiary bought Patricia Kluge’s Estate Winery and Vineyard, a 1,200-acre property with a dormant nine-hole golf course designed by Arnold Palmer. Trump wants to replace the old links with an expanded to 18-holes, 480 acre course. The difficulty is Partricia Kluge placed 216 acres under “conservation easement” in 2006:
Patricia Kluge, as a trustee of the John Kluge Jr. Trust, signed onto an easement with the Virginia Outdoors Foundation (VOF) in 2006, which states that it encourages preservation of natural, scenic, historic, open-space, and recreational land in Virginia. A memo from VOF stewardship specialist Tracy Hibbitts said golf courses don’t fit the bill. “It was noted that VOF’s current practice is not to accept easements with golf courses,” reads the memo.
The Trump, unsurprisingly, offer a different interpretation:
In a 2011 letter to VOF, Trump’s attorney Jason Greenblatt uses exact language from the deed of easement to argue for the golf course, explaining that industrial or commercial activities other than “temporary or seasonal outdoor activities that do not permanently alter the physical appearance of the Property, and that do not diminish the conservation values herein protected” are prohibited. “A golf course, naturally, is a commercial activity that clearly meets the requirements,” Greenblatt says in the letter.
Wednesday, November 13, 2013
Anne Siders (Columbia) has posted Managed Coastal Retreat: A Legal Handbook on Shifting Development Away from Vulnerable Areas on SSRN. Here's the abstract:
Climate change will change the way we live. No longer will the environment be a static condition, a certainty upon which other variables depend. Rather, it will be a variable itself, and it will make us plan for the future like never before. Already we are beginning to see the effects of change along our coasts. Rising seas and more frequent hurricanes present a dynamic environment that threatens infrastructure long thought to be safe. Our cities are ill-prepared for the dangers of the next century. Fiscally, we are spending more and more to repair the damage. Long-term planning that accounts for climate change is needed to ensure that money spent today will reduce our future risk.
We have the opportunity to not only build resilience today but also prepare for the future, to build the infrastructure that will be the foundation for our cities in the next century. This will require innovation and new technologies. It will also require tough decisions. Some areas will be too vulnerable, despite our best efforts to hold back the sea. Infrastructure and homes will need to be moved away from the threat and the shore opened up to the public. The political obstacles to this strategy will be severe in many places, but consideration of them should begin now.
Numerous legal tools already exist to assist federal, state, and local governments in conducting managed retreat away from the most vulnerable coasts. Scattered publications, toolkits, and websites describe a broad range of legal, policy, and regulatory tools. These tools have, with little fanfare, been used by communities around the United States to implement managed retreat. This Handbook collects examples, case studies, and lessons learned from some of these early innovators in the hope that their lessons can inform future efforts to limit the exposure of our communities to coastal threats. The key legal issues raised by these examples are also discussed.
The Handbook is organized into five sections. Each describes a potential tool, provides examples and information, and then present the lessons learned for that tool. The tools described herein are not the only tools that can or should be used. In fact, significant innovation will likely be needed to address the novel challenges posed by climate change. The tools presented here are simply a selection of those that have been implemented and that can inform future actions.
Tuesday, November 12, 2013
For twenty years, students in Auburn University's Rural Studio architecture program have been working to perfect the design of a house that can be built for $20,000. They now want to make their ideas available on the mass market:
But that's where the 20K house gets tricky. Its most desirable attribute also happens to be a bit of a curse. [...] "It costs the same amount to underwrite a $150,000 as a $20,000, so there's always pressures to raise the cost of the house, whether it's from the bank lending the money, whether its from the builder looking to make a profit, whether it's from the real estate agent," Freear says. In order to keep the 20K house at $20,000, Rural Studio is looking to partner with nonprofits that will help make sure their good design stays affordable.
In the meantime, Freear says it's a bit difficult for him to let the nit-picked, hyper-optimized 20K designs loose in the world. "My anxiety is always that we find a better solution each year," he says. "We've designed this thing to an inch of its life."
Katharine Maus (UVa - English) has recently published Being and Having in Shakespeare (Oxford University Press), a concise consideration of property and power in a few of the bard's plays. Here's the publisher's blurb:
What is the relation between who a person is, and what he or she has? A number of Shakespeare's plays engage with this question, elaborating a 'poetics of property' centering on questions of authority and entitlement, of inheritance and prodigality, and of the different opportunities afforded by access to land and to chattel property. Being and Having in Shakespeare considers these presentations of ownership and authority Richard II and the Henry IV plays construe sovereignty as a form of property right, largely construing imperium, or the authority over persons in a polity, as a form of dominium, the authority of the propertyholder. Nonetheless, what property means changes considerably from Richard's reign to Henry's, as the imagined world of the plays is reconfigured to include an urban economy of chattel consumables. The Merchant of Venice, written between Richard II and Henry IV, part 1, reimagines, in comic terms, some of the same issues broached in the history plays. It focuses in particular on the problem of the daughter's inheritance and on the different property obligations among kin, friends, business associates, and spouses. In the figure of the 'vagabond king', theoretically entitled but actually dispossessed, Henry VI, part 2 and King Lear both coordinate problems of entitlement with conundrums about distributive justice, raising fundamental questions about property relations and social organization.
(HT: Nick Blomley)
Monday, November 11, 2013
The New York Times offers a long look at the promise and peril of government efforts to resettle farmers into new model cities:
As China pushes ahead with government-led urbanization, a program expected to be endorsed at a Communist Party Central Committee meeting that began Saturday, many worry that the scores of new housing developments here may face the same plight as postwar housing projects in Western countries. Meant to solve one problem, they may be creating a new set of troubles that could plague Chinese cities for generations.
“We’re talking hundreds of millions of people who are moving into these places, but the standard of living for these relocatees has actually dropped,” said Lynette Ong, a University of Toronto political scientist who has studied the resettlement areas. “On top of that is the quality of the buildings — there was a lot of corruption, and they skimped on materials.”
Lee Fennell (Chicago) has posted Forcings on SSRN. Here's the abstract:
Eminent domain receives enormous amounts of scholarly and popular attention, and for good reason — it is a powerful form of government coercion that cuts to the heart of ownership. But a mirror-image form of government coercion has been almost entirely ignored: forced ownership, or “forcings.” While legal compulsion to begin or continue ownership is neither entirely unstudied as an academic matter nor entirely unprecedented as a doctrinal matter, the category lacks a unified treatment. Because coercively imposed ownership can substitute for other forms of government coercion, forcings deserve attention, even if they will rarely dominate other alternatives. Attending to forcings as a conceptual possibility reveals their kinship with existing features of law and highlights one of ownership’s most essential moves: delivering actual outcomes, and not just their expected value equivalents. Unpacking the considerations that might prompt law to impose ownership on unwilling parties points the way to alternatives short of full-strength compelled ownership. The analysis also suggests an additional domain of government action — “relievings” — for unburdening owners of unwanted property.
Friday, November 8, 2013
The Guardian tries to think through the aftermath of Mugabe's violent land redistribution policies:
While many maintain that Mugabe loyalists remain the main beneficiaries of the bloody land reform (the Mugabe family is now said to own more than 30 farms), some have suggested that it was not all bad. For example, though it says the methods used were inexcusable, a book entitled Zimbabwe Takes Back its Land by Professor Ian Scoones of Sussex University concluded: “In the biggest land reform in Africa, 6,000 white farmers have been replaced by 245,000 Zimbabwean farmers. These are primarily ordinary poor people who have become more productive farmers.”
During the turbulence of the farm takeovers, tobacco production plunged to 48.3 million kilograms in 2008 from a record 236.7 million kilograms in 2000, according to the Zimbabwe Tobacco Association. Now it’s making a comeback, with this year’s 166.7 million kilograms earning about $612m.
Gregory Alexander (Cornell) has posted Ownership and Obligations: The Human Flourishing Theory of Property (Hong Kong Law Journal) on SSRN. Here's the abstract:
The thesis of this brief paper is straightforward, although not uncontroversial: The moral foundation of property, both as a concept and as an institution, is human flourishing. In the remainder of my remarks I will explain what I mean by human flourishing, as I use the term, and I will distinguish human flourishing from welfare as that term is commonly used today by economists and legal analysts. I will then briefly illustrate the approach through an example.
Private property ordinarily triggers notions of individual rights, not social obligations. After all, the core function of private property, at least according to conventional lore, is to insulate individuals from the demands of society both in its organised political form and its non-political collective form. Of course, the common law has long recognised limits on the exercise of property rights, limits that grow out of the needs of others in cases of conflicting land uses. The obvious example is the common law of nuisance, which courts developed using the ancient maxim sic utere tuo ut alienum non laedas (“use your land in such a way as not to injure the land of others”) as their guiding principle. But such limits on property rights are considered the exception, not the rule, the periphery rather than the core. The core image of property rights, in the minds of many people, is that the owner has a right to exclude others and owes no further obligation to them. On this view trespass is the paradigmatic cause of action in the law of property. Hence if another intentionally commits trespass upon my land after I have refused permission to pass across it, the trespasser is properly liable for punitive damages even though only trivial damage was done to my property.
That image is highly misleading. The right to exclude itself, thought by many to be the most important twig in the so-called bundle of rights, is subject to many exceptions, both at common law and by virtue of statutory or constitutional provisions. For example, the common law requires landowners to permit police to enter privately owned land to prevent a crime from being committed or to make an arrest.
More generally, property owners owe far more responsibilities to others, both owners and non-owners, than the conventional imagery of property rights suggests. Property rights are inherently relational, and because of this characteristic, owners necessarily owe obligations to others. But the responsibility, or obligation, dimension of private ownership has been sorely under-theorised.
In this brief paper I shall outline a theory of property that emphasises the obligations that owners owe to others, specifically, to certain members of the various communities to which they belong. These obligations vary in different contexts and at different times. As society has grown more complex and more interdependent, the obligations have thickened. Capturing all of these obligations under one theoretical umbrella, one may speak of a social-obligation norm that the law does and should impose on owners. This norm, I want to stress, in inherent in the concept of ownership itself. This is an important point because it means that when the law, whether by way of statutes, administrative action, or judicial decisions, announces some restriction on an owner’s use of her land or building, insofar as that announcement restates what is already part of the social-obligation norm, it is simply a legal recognition of a restriction that is inherent in the concept of ownership rather than being externally imposed and engrafted upon the owner’s bundle of right.
The basis of this norm is human flourishing. The social-obligation theory builds on the claim that the basic purpose of property is to enable individual to achieve human flourishing. The theory further builds on Amartya Sen’s famous insight that flourishing is a matter of what a person is able to do rather than what he has. That is, the well-lived life should be measured by a person’s capabilities rather than by a person’s possession or by the satisfaction of his subjective preferences. Before developing the social obligation of ownership, I must first explain the foundational norm of human flourishing a bit further.
Thursday, November 7, 2013
Nestor Davidson (Fordham) and Sheila Foster (Fordham) have posted The Mobility Case for Regionalism (UC Davis Law Review) on SSRN. Here's the abstract:
discourse of local government law, the idea that a mobile populace can
“vote with its feet” has long served as a justification for devolution
and decentralization. Tracing to Charles Tiebout’s seminal work in
public finance, the legal-structural prescription that follows is that a
diversity of independent and empowered local governments can best
satisfy the varied preferences of residents metaphorically shopping for
bundles of public services, regulatory environment, and tax burden.
This localist paradigm generally presumes that fragmented governments are competing for residents within a given metropolitan area. Contemporary patterns of mobility, however, call into question this foundational assumption. People today move between — and not just within — metropolitan regions, domestically and even internationally. This is particularly so for a subset of residents — high human-capital knowledge workers and the so-called “creative class” — that is prominently coveted in this interregional competition. These modern mobile residents tend to evaluate the policy bundles that drive their locational decisions on a regional scale, weighing the comparative merits of metropolitan areas against each other. And local governments are increasingly recognizing that they need to work together at a regional scale to compete for these residents.
This Article argues that this intermetropolitan mobility provides a novel justification for regionalism that counterbalances the strong localist tendency of the traditional Tieboutian view of local governance. Contrary to the predominant assumption in the legal literature, competition for mobile residents is as much an argument for regionalism as it has been for devolution and decentralization. In an era of global cities vying for talent, the mobility case for regionalism has significant doctrinal consequences for debates in local government law and public finance, including the scope of local authority, the nature of regional equity, and the structure of metropolitan collaboration.
Wednesday, November 6, 2013
The LA Times reports:
Unknown masterpieces by artists such as Marc Chagall and Henri Matisse, works thought lost to the ravages of war and others deemed "degenerate" or looted by the Nazis form part of the spectacular trove of art discovered by German authorities in the apartment of an elderly recluse in Munich.
Two days after news of the find broke, officials in southern Germany revealed Tuesday that the hoard contains 1,406 pieces by masters whose names read like a who's who of Western art of the last 150 years: Pablo Picasso, Pierre-Auguste Renoir, Henri Toulouse-Lautrec, Gustave Courbet, Oskar Kokoschka, Emil Nolde.
But the authorities seem unsure what they'll do with the paintings:
Since word of the cache emerged, advocates of returning art looted during the war have criticized German officials for keeping quiet so long and for failing to issue an inventory as quickly as possible to allow heirs of the original owners to reclaim what was stolen.
Nemetz [the state prosecutor] said that keeping the works safe was crucial and that their security could have been compromised by a media frenzy surrounding news of their discovery. He does not intend to exhibit or publish images of the entire stash, and it will be up to people who believe that a former family possession might be included to contact his office.
"Our primary goal is to investigate whether there has been a crime," Nemetz said. "It is by no means easy to find the rightful owners, particularly when we are talking about more than 1,400 paintings."
He added: "It is totally counterproductive for us to go public with this case. We don't want to keep the pictures. The pictures are not going to be put up in my office."
Steven Eagle (George Mason) has posted Penn Central and Its Reluctant Muftis (Baylor Law Review) on SSRN. Here's the abstract:
This Article explores the role of the Supreme Court’s Penn Central line of regulatory takings cases, from the premise that the purpose of the Penn Central doctrine is to advance fundamental fairness in an era of pervasive land use regulation. In particular, the Article focuses on whether the doctrine inherently is self-defeating, since judges are reluctant to act as “grand muftis” of zoning and planning, and hence are driven towards the type of formulaic rules that the doctrine eschews.
Tuesday, November 5, 2013
Allison Schrager thinks so. She proposes:
This year, Americans on Eastern Standard Time should set their clocks back one hour (like normal), Americans on Central and Rocky Mountain time do nothing, and Americans on Pacific time should set their clocks forward one hour. After that we won’t change our clocks again—no more daylight saving. This will result in just two time zones for the continental United States. The east and west coasts will only be one hour apart. Anyone who lives on one coast and does business with the other can imagine the uncountable benefits of living in a two-time-zone nation (excluding Alaska and Hawaii).
Why stick with a system designed for commerce in 1883? In reality, America already functions on fewer than four time zones. I spent the last three years commuting between New York and Austin, living on both Eastern and Central time. I found that in Austin, everyone did things at the same times they do them in New York, despite the difference in time zone. People got to work at 8 am instead of 9 am, restaurants were packed at 6 pm instead of 7 pm, and even the TV schedule was an hour earlier. But for the last three years I lived in a state of constant confusion, I rarely knew the time and was perpetually an hour late or early. And for what purpose? If everyone functions an hour earlier anyway, in part to coordinate with other parts of the country, the different time zones lose meaning and are reduced to an arbitrary inconvenience. Research based on time use surveys found American’s schedules are determined by television more than daylight. That suggests in effect, Americans already live on two time zones.
Stephen Miller (Idaho) has posted Community Land Trusts: Why Now is the Time to Integrate this Housing Activists’ Tool into Local Government Affordable Housing Policies (Zoning & Planning Law Report) on SSRN. Here's the abstract:
A recent study found that housing expenses in the period from 2006 to 2010 were 52 percent higher for the typical household living in each of the 25 largest U.S. metropolitan areas than they had been in 2000. This rise in housing expenses, coupled with stagnant wages in those same locations over the same period, is one of the major reasons that community land trusts (CLTs) have risen from a fringe housing movement to the center of cities’ efforts to provide affordable housing within the last decade. In addition, many cities see CLTs as a way to provide perpetually affordable units, a benefit not provided by inclusionary zoning ordinances that often only require affordability for a term of years. This article explores how some cities have already added CLTs to their list of affordable housing policy tools, ultimately arguing that the current economic environment presents a strong case for more cities to start CLTs at this time. Even where cities are not ready to take such steps now, the dramatic rise in CLT formation nationally, as well as the massive city-wide CLTs planned for several major cities in the U.S., such as Chicago, Illinois and Irvine, California, are developments that land use and zoning lawyers will want to watch. If the massive CLTs ultimately work as planned, other cities are likely to follow suit in embracing CLTs, a move that in turn could alter how project proponents meet inclusionary housing requirements and revolutionize how affordable housing dollars are spent by local governments. The article proceeds by offering a history of CLTs; reviewing 10 characteristic features of the “classic” CLT structure; reviewing the rise of cities’ use of CLTs and presents, in detail, a review of two of the most ambitious city-backed CLTs started by Chicago and Irvine; reviewing several legal and policy issues unique to city CLTs; and finally making the case for why cities should consider starting CLTs now.
Monday, November 4, 2013
Some Canadian doctors have put forth a proposal to pay kidney donors $10,000:
"Our model demonstrated that a strategy where living donors are paid
$10,000, with a corresponding assumption this strategy would increase
the number of transplants performed among wait-listed dialysis patients
by five per cent, would be less costly and more effective than the
current organ donation system," Lianne Barnieh of the University of
Calgary and her co-authors concluded in an upcoming issue of the
Clinical Journal of the American Society of Nephrology.
Money would be saved from reduction in dialysis costs, Barnieh said. The length and quality of life for patients with end-stage renal disease would also increase.
(HT: Volokh Conspiracy)
The New York Times looks at how a flurry of new construction could cut off large swaths of Central Park from the sun and asks why more people aren't complaining:
Fueled by lax zoning laws, cheap capital and the rise of a global elite with millions to spend on pieds-à-terre, seven towers — two of them nearly as tall as the Empire State Building — have recently been announced or are already under way near the south side of the park. This so-called Billionaires’ Row, with structures rising as high as 1,424 feet, will form a fence of steel and glass that will block significant swaths of the park’s southern exposure, especially in months when the sun stays low in the sky. [...]
That means the shadows of the larger of these planned buildings would jut half a mile into the park at midday on the solstice and elongate to around a mile in length as they angled across the park toward the Upper East Side, darkening playgrounds and ball fields, as well as paths and green space like Sheep Meadow that are enjoyed by 38 million visitors each year. “The cumulative effect of these shadows will be to make the park less usable and less pleasant to be in,” Mr. Kwartler said.
(HT: Celeste Pagano)
Sjef Van Erp (University of Maastricht) has posted Contract and Property Law: Distinct, but not Separate on SSRN. Here's the abstract:
and property law are traditionally seen as rather distinct parts of a
legal system. However, there is growing awareness that contract and
property are not so separate at all. We can observe more and more fuzzy
boundaries. Four examples (case studies) are discussed: reclaiming
money, the non-accessory mortgage, protection of mortgagors, private
re-registration of mortgages in the US: Mortgage Electronic Registration
Systems (MERS). The fuzzy boundaries make us realise that the
distinction between contract and property (in the classical, 19th
century, model of private law: the absence or presence of the binding
force of an arrangement on third parties) is becoming less of a binary
and more of a gradual nature.
It seems that a growing category of intermediary rights is developing, rights between contract and property law, which may very well prove to have become no longer a dogmatic anomaly, but a necessary supplement to the traditional distinction between contract and property law. If this analysis is correct, it might imply that we have to rethink our categorisation of private law into a law of contract and a law of property, as we had to rethink the categorisation of private law into a law of contract and a law of tort after Gilmore’s famous statement that contract law was dead, or at least drowning in a sea of tort. It is not argued that contract law, again, is dead, but that contract law may have begun a new life as part of a broader category of arrangements regarding objects with burdening effect vis-à-vis third parties, where classical contract is one end of the spectrum (no third party effect) and property is the other end of the spectrum (full third party effect).
Friday, November 1, 2013
A landlord plans to inspect rental units for bed bugs with a trained dog. But one tenant says doing so would violate her religious beliefs. The LA Times looks for answers under California law:
The answer to this question requires a balancing act. Your legal duty to respect your tenant's religious beliefs must be balanced against your duty as a landlord to take timely and reasonable steps to maintain the habitability of the rental premises. Under Civil Code Section 1941, that duty requires you to provide premises free from vermin infestation to all your tenants.
If you give proper written notice under Civil Code Section 1954, you have a right to enter the rental unit to address the vermin issue. A tenant would ordinarily have no right to object or refuse entry. Assuming you have correctly concluded that using a dog for the bedbug inspection is an appropriate and effective means of inspecting for bedbugs and that there is no effective alternative at the same cost, your plan does not constitute religious discrimination.