PropertyProf Blog

Developers Turn Rowhouses Into Middle Fingers?

A great article in the Washington Post on the backlash against renovated townhouses that look to take maximum advantage of D.C.'s limitations on building height.

They’re like skyscrapers in small villages: renovated townhouses — but between 40 and 65 feet high — right next to squat, two-story rowhouses in Washington neighborhoods from Petworth to NoMa to Adams Morgan.

Their common nickname: pop-ups. Their common epithet among neighbors and on local blogs: monsters. Middle Fingers.

These skyward-extending residences are spreading across the city, fueled by small developers eager to cash in on the District’s real estate boom and seize any inch of available real estate, which these days means vertical empty space. Though developers have the right to build upward — and say they are providing needed housing stock — the city is evaluating how it can ensure that pop-ups in some neighborhoods reflect their community’s character.

[...] Anyone can drive around the District and find them. The five-story building at 1013 V St. NW dubbed “the Monster” is the most notorious. But the pop-up bible is the PoPville blog, which for several years has chronicled the advance of pop-ups with the same curiosity people had when McMansions began cropping up on old farms in Northern Virginia. (The “PoP” in the blog’s name stands for Prince of Petworth, the Web site’s original name.) Dan Silverman, the site’s publisher, frequently posts his and readers’ comments, along with photographs of some of the more unusual buildings.

Riley on Native American Lands & the Supreme Court

Angela Riley (UCLA) has posted Native American Lands and the Supreme Court (Journal of Supreme Court History) on SSRN. Here's the abstract:

The Supreme Court has been instrumental in defining legal rights and obligations pertaining to Indian lands since its first path-making decision in the field in Johnson v. McIntosh in 1823. But the groundwork for the Court's contemplation of such cases predates Supreme Court jurisprudence, and it in fact predates the formation of the Court and the United States itself.

When Europeans first made contact with this continent, they encountered hundreds of indigenous, sovereign nations representing enormous diversity in terms of language, culture, religion, and governance. For those indigenous groups -- as is a common attribute of indignity of similarly situated indigenous groups around the world -- this land was and is holy land. Indigenous creation stories root Indian people in this continent -- Turtle Island to many -- as the focal point of life, creation, religion, culture, and language. In the settlement of the country, the colonial powers initially -- and the United States subsequently -- treated with Indian nations to negotiate the transfer of lands from Indians to Europeans, often in exchange for peace or protection.

Map of the Day: Grocery Stores

Big Think has a wonderful series of maps that shows where all your favorite grocery stores (Walmart, Whole Foods, Giant Eagle, Kroger, etc.) are located:

Lyke on Affirmative Action Through the Lens of Property Theory

Sheldon Lyke (Whittier) has posted Diversity as Commons (Tulane Law Review) on SSRN.  Here's the abstract:

Educational diversity arose as a shared valuable resource benefitting both universities and students in two landmark affirmative action cases — Regents of the University of California v. Bakke and Grutter v. Bollinger. This Article argues that diversity empirically resembles a commons (i.e., a shared resource). Extending this analysis exposes plaintiffs who file anti-affirmative action lawsuits — individuals like Abigail Fisher in Fisher v. University of Texas — as agents of enclosure who are trying to enclose the educational diversity commons, destroy its management structure, and privatize it for their own benefit (i.e. to gain admission into elite universities). Examining diversity and affirmative action through a common property lens reveals that the defense of race-conscious admissions policies faces a collective action problem. The interests of universities and their minority students largely overlap in their desire to protect diversity. They diverge, however, when universities refuse to employ additional equality rationales that could strengthen the defense of diversity and race-conscious admissions. This refusal facilitates anti-affirmative action efforts.

Call for Papers: [Re]Integrating Spaces

[Re]Integrating Spaces 

Call for Papers

In the summer of 2014 Savannah Law School will complete its comprehensive restoration of the historic Candler Hospital on Forsyth Park. Originally constructed in 1819, the building has been home to a diverse group of tenants in its nearly two-hundred-year lifespan: military doctors, Confederate and Union soldiers, general practitioners, female nurses-in-training, the mentally ill, and rumored ghosts. The building was once a representation of the grand achievements of a flourishing Southern port city, but as the city changed in both appearance and demographics, the building was abandoned and left in ruin for decades. However, what was once old and neglected is now preserved and revitalized. The Savannah brick and stucco edifice now rests on a new foundation—the meaning of the space changed once more—the building is at once both old and new.

Inspired by Savannah Law School’s progressive remodel of the historic Candler Hospital and the scholarship of Professor Alfred Brophy, Savannah Law Review is hosting a colloquium titled [Re]Integrating Spaces to examine the parallel themes of historic preservation and transformation as well as societal sense of place, space, and meaning within the law.

Professor Brophy of UNC School of Law has written extensively about Southern legal history and the role of property entitlements and property law in shaping the trajectory of the racial experience. Professor Brophy has agreed to come to Savannah to present the keynote address of [Re]Integrating Spaces and publish a related article in Savannah Law Review’s Winter 2014 Issue. Others presenting and publishing for [Re]Integrating Spaces include Professor Kali Murray (Marquette University School of Law), Professor Stephen Clowney (University of Arkansas College of Law), Professor Anthony Baker (Atlanta’s John Marshall Law School), Professor Connie Pinkerton (Savannah College of Art & Design), and more.

The Colloquium will take place at Savannah Law School, Friday and Saturday, September 19-20, 2014—likely the first public event held in the historic Candler Hospital for several decades. With this Call for Papers, Savannah Law Review invites panelists and written submissions in the general themes of [Re]Integrating Spaces.

Please submit an abstract no longer than two-hundred and fifty words by August 1, 2014. Send submissions to [email protected] with [Re]Integrating Spaces in the subject line.

Arnold on Resilient Cities

Tony Arnold (Louisville) has posted Resilient Cities and Adaptive Law (Idaho Law Review) on SSRN.  Here's the abstract:

This article explores the roles that legal institutions play in enhancing or impeding the social-ecological resilience of cities in the United States. Resilience is the capacity of a system to withstand or adapt to disturbances while maintaining the same basic structures and functions. Attention to what makes cities resilient or not is growing, but both the scholarship and practice of resilient cities mean many different things in many different contexts. This article calls for an integrated approach to the interlinked resilience of social systems, ecological systems, and institutions. Drawing on a recent adaptive law framework developed by resilience scientist Lance Gunderson and law-and-institutions scholar Tony Arnold, this article explores three overarching themes in the legal systems effects on cities' social-ecological resilience: 1) the benefits and limits of polycentric local governance; 2) the effects of the institution of private property on urban resilience in the U.S.; and 3) the adaptive capacity of cities, including the use of adaptive management and adaptive planning methods and the development of adaptive governance systems and structures.

Property in Dinner Reservations?

A recent piece in the The New York Times asks some property-themed questions:

Who owns a restaurant reservation?

Is it the restaurant, having set aside a table as a courtesy for a particular guest? Is it the guest, who made the reservation and can use it — or not — at will? Or is it the entrepreneur who pays workers to frantically redial reservation lines at the moment when prime tables are made available, snagging them under false names and marking them up for sale?

This is the crux of the restaurant industry’s current debate over selling reservations for cash, a smoldering issue being reignited by mobile apps that do just that.

The paper also published a short roundtable on the issue.  Tyler Cowen defends the market:

When restaurants don’t charge for reservations, they tend to hold back tables for regular customers, celebrities, very attractive people and the politically and socially well connected. You might be dying to go to that restaurant for a special birthday or anniversary, but you’ll simply be unable to get in. Money is ultimately a more egalitarian force than privilege, as everyone’s greenbacks are worth the same.

When restaurants don’t charge for reservations, they tend to hold back tables for regular customers, celebrities, very attractive people and the politically and socially well connected. You might be dying to go to that restaurant for a special birthday or anniversary, but you’ll simply be unable to get in. Money is ultimately a more egalitarian force than privilege, as everyone’s greenbacks are worth the same. - See more at: http://marginalrevolution.com/marginalrevolution/2014/06/should-restaurant-reservations-be-for-sale.html#sthash.QVoZnexJ.dpuf

When restaurants don’t charge for reservations, they tend to hold back tables for regular customers, celebrities, very attractive people and the politically and socially well connected. You might be dying to go to that restaurant for a special birthday or anniversary, but you’ll simply be unable to get in. Money is ultimately a more egalitarian force than privilege, as everyone’s greenbacks are worth the same. - See more at: http://marginalrevolution.com/marginalrevolution/2014/06/should-restaurant-reservations-be-for-sale.html#sthash.QVoZnexJ.dpuf

Craig on Offshore Public Lands

Robin Craig (Utah) has posted An Historical Look at Planning for the Federal Public Lands: Adding Marine Spatial Planning Offshore (George Washington Journal of Energy & Environmental Law) on SSRN.  Here's the abstract:

The federal government controls far more offshore public lands - the Outer Continental Shelf - than it controls terrestrial lands, but the oceans have been bereft of the kind of comprehensive planning mandated for other public lands under statutes like the Federal Lands Policy and Management Act (FLPMA) or the National Forest Management Act (NMFA). Beginning with the Oceans Act of 2000, however, the federal government has considered adopting comprehensive planning for the oceans, generally known as marine spatial planning or marine zoning. Indeed, reports such as those from the Pew Oceans Commission in 2003 and the U.S. Commission on Ocean Policy in 2004 strongly recommended national and regional marine spatial planning for the United States' oceans.

When the National Ocean Council proposed its Implementation Plan for the newly created U.S. Ocean Policy, it would have required comprehensive regional marine spatial planning in all U.S. ocean waters. In April 2013, however, the Council’s Final Implementation Plan reclassified marine spatial planning from a mandatory activity to a voluntary one, once again leaving the nation's offshore lands and waters without any legal mandate for comprehensive planning. This gap has important implications for offshore energy production and adaptation to climate change; it also perpetuates the regulatory fragmentation of ocean jurisdiction that prompted Congress to enact the Oceans Act fourteen years ago. This Article explores the implications of the Final Implementation Plan for the future of a comprehensive governance regime for the nation’s offshore resources, comparing the history of marine spatial planning in the United States to the histories of comprehensive planning for other federal public lands.

The Money Pit House

Ha:

The Long Island mansion used for “The Money Pit,” the 1986 comedy starring Tom Hanks and Shelley Long about the ultimate fixer-upper fiasco, is poised to go on the market for $12.5 million. The annual property taxes on the home are $65,992.

The eight-bedroom 1898 house in Lattingtown, N.Y., has been totally redone, meticulously designed and decorated with a Versace-esque flair. The three-story white clapboard home has a center hall and is reached through a gated entrance and down a quarter-mile-long rhododendron-lined drive to a white-pebble motor court. “It’s now the anti-'Money Pit,’ ” said Shawn Elliott of Shawn Elliott Luxury Homes & Estates, the listing broker. “The home was restored at the highest quality.”

Eagle on Regulatory Property

Steve Eagle (George Mason) has posted The Perils of Regulatory Property in Land Use Regulation (Washburn Law Review) on SSRN.  Here's the abstract:

"Regulatory property" is the right to engage in specified activities, made valuable by government prohibitions against competitors, and protected by de jure or de facto status as property. This Article explores regulatory property and focuses upon its applications in land use regulation. It considers, inter alia, transferrable development rights, exclusive leases of subsidized sports stadia, and urban revitalization condemnations for retransfer for pre-arranged private development. The Article concludes that these generally are unfair and inefficient practices.

Patent Office Cancels Trademark Registration of Washington's Football Team

The Washington Post reports:

The U.S. Patent and Trademark Office canceled the Washington Redskins’ trademark registration on Wednesday, a move that won’t force the NFL team to change its name but fuels the intense fight by opponents to eliminate what they view as a racial slur against Native Americans.

The 99-page decision by the Trademark Trial and Appeal Board said the team’s name and logo are disparaging. It dilutes the Redskins’ legal protection against infringement and hinders the team’s ability to block counterfeit merchandise from entering the country.

But its effect is largely symbolic. The ruling cannot stop the team from selling T-shirts, beer glasses and license-plate holders with the moniker or keep the team from trying to defend itself against others who try to profit from the logo.

The ruling’s main impact is as a cudgel by an increasingly vocal group of Native Americans, lawmakers, former players and others who are trying to persuade team officials to change the name. The backlash against the name has never been more intense.

License Plate Follies

As we've covered before, some states grant individuals a property interest in their license plate numbers.  That does not mean, however, that private citizens have the right to choose any plate number they want.  Slate has a fluffy piece that catalogues the 995 applications for vanity license plates that the State of Utah has recently rejected:

Like many states, Utah reserves the right not to issue plates that its Division of Motor Vehicles deems inappropriate, either because the plate is obscene, offensive, or otherwise untoward.

Of course, obscenity is famously difficult to define, and some aspects of Utah’s personalized plate laws are easier to interpret than others. The state has issued a more-or-less blanket ban on the number 69, unless “used in a combination with the vehicle make, model, style.” This rule triggered the rejection of at least 39 license plate requests—including 69METS, a seemingly innocuous nod to the New York Mets’ first World Series championship in 1969. But most of the rules are a bit vaguer, leaving it to state officials to know an offensive plate when they see one. Often, the obscenity is plain as day, as in the cases of CARGASM, SKISLUT, and NAZI. Other applicants are cleverer, though not cleverer than the DMV’s watchdogs, who caught MLHICLB, FAHQUU and TIH2TA3 (read that last one backwards).

Smith on the Scholarship of Thomas Merrill

Henry Smith (Harvard) has posted The Thing About Exclusion (Brigham-Kanner Property Rights Conference Journal) on SSRN.  Here's the abstract:

In this contribution to a volume on the work property scholarship of Thomas Merrill, I will show how an account of property as the law of things completes the picture of property, putting the right to exclude in proper perspective. Contra Merrill, the right to exclude is not the sine qua non of property, and the main features of property cannot be derived from the right to exclude. Nonetheless, I will argue that Merrill is right to search for a unifying theme in property and that the relevant thread is the mediation of legal relations through things. From the role of the thing in depersonalizing and formalizing property relations, we can see when the right to exclude and closely related notions of possession are – and are not – important. Private law deals with the complex interactions of members of society, and a first cut at managing potential conflict is to carve the world into modular things, in tangibles or intangibles, and associate them with people through the norms and the law of property. More complex aspects of property from governance strategies to entity property build off of the legal thing. At the heart of property is the thing.

Racial Differences in the Mortgage Market

Matt Yglesias writing for Vox:

Fannie Mae and Freddie Mac are more likely to reject mortgage applications from black and Hispanic borrowers than from non-hispanic whites. That could be evidence of discrimination, or it could simply be a reflection of broader economic gaps in American society.

And, indeed, as this Urban Institute chart shows the primary cause of the racial gap is a difference in credit quality. White families are more likely to get a loan because they're more likely to be highly creditworthy. 

But if you look at the "weak applicants only" lines you'll see that while the black-white gap is still pretty huge. White applications are rejected at a high rate, but black applications seem to be rejected at a fifty percent higher rate.

That could be evidence of direct discrimination or it could be evidence that you need to peer deeper into the data to find an explanation.

Map of the Day: Who Speaks English in Eurpoe?

Human Tissue is Property in Canada

The Superior Court of Justice in Ontario recently ruled that human tissue is personal property.  The court's language:

The moving defendants have provided me with an article from the Canadian Medical Association Journal dealing with rights to access excised human tissue and in so doing make conclusions about who “owns” the tissue.[7] It notes that human tissue is excised either for diagnostic purposes/medical care or for research purposes. Diagnostic tissue, such as in the case before me, is tissue obtained in a procedure for patient care and that in accordance with regulations under the Public Hospitals Act[8] must be sent to a laboratory or pathology department  for examination and diagnosis. The sampled and processed tissue is retained as archived diagnostic tissue for a minimum of 20 years in the clinical archives of the pathology department (although excised tissue not specifically sampled is typically discarded within weeks).[9]

The authors state that it “is unquestionably true that patients own their tissue before it is excised”, and while it has never been squarely dealt with by a Canadian court, they conclude that diagnostic tissue, once excised becomes a “component of the medical record” (as required by regulation under the Public Hospitals Act)[10]. As such, “both possession and ownership are transferred to the institution” and “by virtue of it being part of the medical record, diagnostic tissue is therefore owned by the institution or hospital.” At best a patient is entitled to “reasonable access.” The authors note that their conclusion has been supported by American jurisprudence. While this is not binding on me I find the reasoning compellable and I adopt its conclusions.

This is certainly a more honest approach than the California Supreme Court took in Moore v. Regents. A link to the full opinion is here.

(Thanks to Matthew Harrington at the University of Montreal for the tip)

Cities at or Near Their All-Time Peaks of Excellence?

Tyler Cowan makes a list:

1. Berlin 

2. Kuala Lumpur 

3. Mexico City

4. San Francisco 

5. Seoul 

6. Toronto

7. Stockholm 

8. Lagos

Higher living standards count toward this designation, but they are not enough.  Vienna’s general excellence was higher in the 20s, even though the city was much poorer back then, and so Vienna cannot make the list.  Los Angeles probably peaked in the 80s and New York arguably peaked in the postwar period through the 1970s or 80s.  Chicago might have a claim.  Can you think of others?  Does Shanghai have a chance, or did it peak around 2000 or so, before it got so polluted and crowded?

The comments section of Cowen's post gets pretty fierce.

Berlin

2. Kuala Lumpur

3. Mexico City

. Berlin

2. Kuala Lumpur

3. Mexico City

4. San Francisco

5. Seoul

6. Toronto

7. Stockholm

8. Lagos

Higher living standards count toward this designation, but they are not enough.  Vienna’s general excellence was higher in the 20s, even though the city was much poorer back then, and so Vienna cannot make the list.

Los Angeles probably peaked in the 80s and New York arguably peaked in the postwar period through the 1970s or 80s.  Chicago might have a claim.  Can you think of others?  Does Shanghai have a chance, or did it peak around 2000 or so, before it got so polluted and crowded

- See more at: http://marginalrevolution.com/marginalrevolution/2014/06/cities-at-or-near-their-all-time-peaks-of-excellence.html#sthash.VKhuiYxX.dpuf

1. Berlin

2. Kuala Lumpur

3. Mexico City

4. San Francisco

5. Seoul

6. Toronto

7. Stockholm

8. Lagos

Higher living standards count toward this designation, but they are not enough.  Vienna’s general excellence was higher in the 20s, even though the city was much poorer back then, and so Vienna cannot make the list.

Los Angeles probably peaked in the 80s and New York arguably peaked in the postwar period through the 1970s or 80s.  Chicago might have a claim.  Can you think of others?  Does Shanghai have a chance, or did it peak around 2000 or so, before it got so polluted and crowded

- See more at: http://marginalrevolution.com/marginalrevolution/2014/06/cities-at-or-near-their-all-time-peaks-of-excellence.html#sthash.cIdkuKsL.dpuf

1. Berlin

2. Kuala Lumpur

3. Mexico City

4. San Francisco

5. Seoul

6. Toronto

7. Stockholm

8. Lagos

Higher living standards count toward this designation, but they are not enough.  Vienna’s general excellence was higher in the 20s, even though the city was much poorer back then, and so Vienna cannot make the list.

Los Angeles probably peaked in the 80s and New York arguably peaked in the postwar period through the 1970s or 80s.  Chicago might have a claim.  Can you think of others?  Does Shanghai have a chance, or did it peak around 2000 or so, before it got so polluted and crowded?

- See more at: http://marginalrevolution.com/marginalrevolution/2014/06/cities-at-or-near-their-all-time-peaks-of-excellence.html#sthash.cIdkuKsL.dpuf

1. Berlin

2. Kuala Lumpur

3. Mexico City

4. San Francisco

5. Seoul

6. Toronto

7. Stockholm

8. Lagos

Higher living standards count toward this designation, but they are not enough.  Vienna’s general excellence was higher in the 20s, even though the city was much poorer back then, and so Vienna cannot make the list.

Los Angeles probably peaked in the 80s and New York arguably peaked in the postwar period through the 1970s or 80s.  Chicago might have a claim.  Can you think of others?  Does Shanghai have a chance, or did it peak around 2000 or so, before it got so polluted and crowded?

- See more at: http://marginalrevolution.com/marginalrevolution/2014/06/cities-at-or-near-their-all-time-peaks-of-excellence.html#sthash.cIdkuKsL.dpuf

Schneider on the Supreme Court's Recent Interest in the Fair Housing Act

Valerie Schneider (Howard) has posted In Defense of Disparate Impact: Urban Redevelopment and the Supreme Court's Recent Interest in the Fair Housing Act on SSRN.  Here's the abstract:

Twice in the past three years, the Supreme Court has granted certiorari in Fair Housing cases, and, each time, under pressure from civil rights leaders who feared that the Supreme Court might narrow current Fair Housing Act jurisprudence, the cases settled just weeks before oral argument. Settlements after the Supreme Court grants certiorari are extremely rare, and, in these cases, the settlements reflect a substantial fear among civil rights advocates that the Supreme Court’s recent decisions in cases such as Shelby County v. Holder and Fisher v. University of Texas are working to dismantle many of the protections of the Civil Rights legislation of the 1960s. The sole issue in both of the recently settled Fair Housing Act cases was whether disparate impact analysis – a type of analysis that some on the Supreme Court may view as requiring racial preferences – is valid under the Fair Housing Act.

This article argues that in order to have a chance at achieving the goal of its sponsors – “to replace the ghettos [with] truly integrated and balanced living patterns,” – the Fair Housing Act cannot just take aim at the aberrant individual who intentionally denies a person housing because of his or her race. Instead, the Fair Housing Act must recognize claims based on disparate impact analysis alone. This article argues that disparate impact analysis is especially needed to address urban redevelopment decisions because such decisions are often made through a multi-party protracted process, in which a discriminatory intent may be impossible to discern or entirely absent. Additionally, it is the outcome of large-scale urban redevelopment projects that will truly shape racial housing patterns in the twenty-first century.

Colinvaux on Conservation Easements

Roger Colinvaux (Columbus) has posted Conservation Easements: Design Flaws, Enforcement Challenges, and Reform (Utah Environmental Law Review) on SSRN.  Here's the abstract:

The charitable deduction for conservation easements promises a conservation benefit, lasting forever. Millions of acres have been protected by deductible conservation easements. On average over $1.5 billion are claimed in easement contributions each year, not including corporate contributions. The deduction, however, has serious problems. As use of the incentive has grown, doubts about the public benefit conveyed by conservation easements and significant enforcement difficulties have led to increased scrutiny of land trusts and to a growing chorus of calls for reform of the tax benefit and state laws governing easements. This Essay argues that it is because the tax incentive was born as an exception to the normal charitable deduction rules that many of the problems have resulted. In order to make the deduction fit within the charitable contribution framework, three special rules were enacted: that there be a qualified donee, a conservation purpose, and perpetuity. Although each requirement was intended to protect the promise of conservation, each requirement fails. This largely is because the charitable deduction framework does not contemplate an ongoing enforcement role for the IRS to police contribution use or donee effectiveness, either at the level of the charitable deduction or at the level of tax exemption. These design flaws have thus led the way to a retinue of wide-ranging reform proposals. The Essay suggests that the proven challenges of using the charitable deduction for partial interest conservation contributions warrant a comprehensive reform – either through elimination of the tax incentive, or conversion to a tax credit.

Map of the Day: Who Calls it Soccer

The map above details what people around the world call the sport that we know as “soccer.” In short, Ireland, Australia, New Zealand, South Africa, and a couple other nations join the U.S. in our refusal to conform world norm of "football."

But why do Americans call it soccer?  Blame the British - they started it.  In late nineteenth century  England, two types of football developed in parallel: rugby football and association football. The slang term for rugby football was "rugger," and the slang for association football was "assoc." The word "assoc" gradually evolved into "soccer."  When association football came to North America, "gridiron" American football already had a foothold. To avoid confusion, Americans adopted the British nickname "soccer" for the new sport.