PropertyProf Blog

Malloy on Land Use Law & Disability

Robin Malloy (Syracuse) has posted Inclusion by Design, Thinking Beyond a Civil Rights Paradigm - Land Use Law and Disability: Planning and Zoning for Accessible Communities (Book Chapter) on SSRN.  Here's the abstract:

In Land Use Law and Disability: Planning and Zoning for Accessible Communities (Cambridge University Press 2015), I argue that our communities need better planning to be safely and easily navigated by people with mobility impairment and to facilitate intergenerational aging in place. To achieve this, communities will need to think of mobility impairment and accessible design as land use and planning issues, in addition to understanding them as matters of civil and constitutional rights. Although much has been written about the rights of people with disabilities, little has been said about the interplay between disability and land use regulation. This book undertakes to explain mobility impairment, as one type of disability, in terms of planning and zoning. This involves examining disability in relation to the police power. Coverage goes beyond matters of universal design and focuses on the special legal requirements for planning and zoning when disability is raised; including the requirements for regulating use, special use permits, variances, and accessory uses. Much like situations involving a tension between zoning and the First Amendment, the standards of review when zoning collides with the ADA (Americans with Disability Act) require additional considerations in order to be legally upheld. The goal of the book is to advance our understanding of disability in terms of planning and zoning and to thereby facilitate cooperative engagement between disability rights advocates and land use professionals. Chapter one of the book, titled “Inclusion by Design: Thinking Beyond a Civil Rights Paradigm,” is attached with permission of Cambridge University Press and of the author.

Quasi-Property in White House Press Room Seating

Politico explains how the seats in the White House Press Room are divvied up and outlines some recent changes to the seating chart:

Most of the 49 spots remain unchanged. The biggest differences are that BuzzFeed and Al Jazeera now have partial seats (they're sharing them with other news organizations) and The Hill has moved up one row. 

The reorganization also changed the desk and booth assignments behind the scenes. Both types of slots - briefing room and desks - are allocated based off several factors, including tenure, who actually shows up to the briefings, and the audience of the publication (hence why the TV and wire services have the front row). If an organization doesn't show up to the briefings every day, they're less likely to keep their seat. 

Reuter's Jeff Mason, who ran the review, said in a statement the changes came after a months-long process.

"The review took months to complete and was approved unanimously by the WHCA board after careful consultation with and input from all of the affected organizations. We’re confident that we’ve made gentle adjustments that give designated spots to the reporters who use them most," Mason said. "The board reviews press seating and work space on a regular basis. Members of the media are welcome to cover the briefing or work from the White House press area, designated seat or not. We continue to fight for press access for everyone who wishes to cover the White House at the regular briefings and beyond."

The Washington Post's Chris Cillizza has a good look at how the seats have changed over time. And USA Today's Gregory Korte has a good explainer on why it matters where certain reporters sit.

The Property Roundtable at Tulane

Tulane Law School recently hosted an impressive-looking property roundtable.  Organized by Sally Richardson, the Roundtable sought to "bring together property scholars from around the country to discuss and debate important property issues pertaining to the regulation of private and public property rights. The roundtable showcases the works-in-progress of the participating scholars and encourages lively debate regarding the drafts."  The event attracted a great mix of junior and senior scholars, including Eric Freyfogle, Avi Bell, and Lee Fennell.  You can see the full list of participants and the papers here.

Stern on Reforming Takings Law to Fairly Compensate Common Interest Communities

Shai Stern (Bar Ilan) has posted Takings, Community and Value: Reforming Takings Law to Fairly Compensate Common Interest Communities (Brooklyn Journal of Law and Policy) on SSRN.  Here's the abstract:

This Article argues that individuals who live in highly cooperative common interest communities should — in certain instances — be entitled to additional compensation or other remedies when their property is taken through eminent domain. The exclusive takings remedy of monetary compensation equal to the fair market value of the property cannot always account for loss of communality. This Article offers guidelines for allocation of additional remedies (monetary and in-kind) that recognize such loss. This proposal is grounded in a pluralistic conception of property, which holds that the state should support individuals’ use of property as a social instrument to fulfill diverse values and beliefs. To that end, the state should balance several factors to determine whether a member of a community, or a community as a whole, should be entitled to remedies for communal loss: (1) the size and scope of the taking within the community; (2) the role, if any, of the community’s cooperation in its members’ realization of a shared conception of the good; (3) the community’s social legitimacy as determined primarily by its structural openness, that is, its members’ ability to simultaneously belong to other communities; and (4) the community’s ability to self-rehabilitate as determined by its political and economic strength. The state should also consider these factors in determining which of several types of remedies for communality loss would be most appropriate.

2015 ABA Property Section Student Writing Contest

The ABA section of Real Property, Trust, and Estate Law announces its annual student writing competition.  Here are the details:

Goals: The goal of the American Bar Association (ABA) Real Property, Trust and Estate Law Student Writing Contest (Contest) is to encourage and reward l aw student writings on real property, trust and estate law subjects of general and current interest. As part of this effort, the ABA will sponsor the Contest, which invites law school students to submit to the ABA Section of Real Property, Trust and Estate Law (Section), original essays on a current topic dealing with real property, trust and estate law. The essay contest is designed to attract students to the real property, trust and estate law field, and to strongly encourage scholarships in these areas.

Who May Enter: Open to any law school student in good standing, over the age of 18, who is currently attending an ABA - accredited law school within the United States and its possessions,  and who is a citizen or legal permanent resident of the United States. Officers, employees, and agents of the ABA and their immediate family or household members are not eligible to enter or win.

Deadline: Entries must be received by t he Section no later than June 30 , 2015

Specifications: Essays must be submitted electronically, as an attachment to an email message to [email protected] with the subject line, “ Writing Contest Entry ”, formatted for standard, 8 - 1/2 x 11 inch paper, double spaced, sent in PDF format. All margins must be one-inch. Essays must not exceed 50 pages of double - spaced typed text, including footnotes. Only one essay is to be submitted for each entrant. PLEASE NOTE: The entrant’s name is not to be on any page of the submitted essay. Entrants should write essays in traditional law review style, presenting a scholarly discussion with full citation to authority in footnotes. Lengthy lists and outlines normally are not appropriate within the text of an essay; however, they may be included as appendices to a textual discussion. For example, if the law of all states on a subject is surveyed, the essay may compare analytically how and why the law differs between jurisdictions. A listing of the law by jurisdiction within the body of the essay would generally not be appropriate. If such a listing of the law by jurisdiction would be of particular value to the reader, it may be included in an appendix to the essay. Entrants should write essays in the active voice and in the third person. Essays should conform to The Bluebook - A Uniform System of Citation and to the Texas Law Review Manual on Style .

Offical Contest Rules and Entry Form.

For more information, please contact Monica Larys at [email protected].

Rosser on Destabilizing Property

Ezra Rosser (American) has posted Destabilizing Property (Connecticut Law Review) on SSRN.  Here's the abstract:

Property theory has entered into uncertain times. Conservative and progressive scholars are fiercely contesting everything it seems, from what is at the core of property to what obligations owners owe society. Fundamentally, the debate is about whether property law works. Conservatives believe that property law works. Progressives believe property could and should work, though it needs to be made more inclusive. While there have been numerous responses to the conservative emphasis on exclusion, this Article begins by addressing a related line of argument, the recent attacks information theorists have made on the bundle of rights conception of property. The Article goes on to make two main contributions to the literature. It gives a new critique of progressive property and, more fundamentally, shows how distribution challenges in property call for a third path forward. Conservative scholarship is scholarship for property, defending traditional views of property against the influence of new realist-inspired deconstruction. Progressive scholarship works with property, showing how doctrine supports expanding property law to reach those who would otherwise be excluded. But missing from this debate is the possibility that, instead of working for or with property, the rise in inequality and the calcification of advantages defined at birth of the current economic and legal environment calls for work against property. Expanding the range of answers to the broad questions being asked of property to include deliberately destabilizing property would add to the academic debate and to the possible policy responses to the emerging threat of oligarchy. Working for, with, and against property are all answers to the question of how to respond to the property crisis of our time, the problem of inequality. This Article seeks to give some content to the neglected against portion of the spectrum.

The Strange World of Architectural Renderings

John King takes a look at the future promised to us by architectural renderings.  He doesn't like what he sees:

In tomorrow’s San Francisco, every adult who matters looks as if he or she arrived on a Google bus. The men are stylishly scruffy. The women are lissome and poised. These are people who drink single-origin coffee and listen to vinyl at home.

I base my prediction not on the apocalyptic warnings of gentrification critics, but the cumulative evidence of every architectural rendering that has come my way in recent years. The city imagined by designers and developers is a monoculture of the wired and young.

An air of unreality is expected, to be sure: Renderings released for public consumption have always set out to seduce us. The idea is to conjure up a mood so that the viewer sees change as something to embrace or at least accept, not oppose. Panhandlers are never in the background. Graffiti does not scar the walls. The difference now is the narrowness of the vision conveyed. For all the debate over gentrification and saving the “soul” of San Francisco (whatever that means), the future will arrive with a backpack slung over its shoulder.

Murray on Detroit's Eminent Domain Takings

Yxta Murray (Loyola LA) has posted Detroit Looks Toward a Massive, Unconstitutional Blight Condemnation: The Optics of Eminent Domain in Motor City (Georgetown Journal on Poverty Law and Policy) on SSRN.  Here's the abstract:

The Detroit Blight Removal Task Force prepares the city to engage in an unconstitutional and unjust taking of up to 72 thousand structures in the city, but its members pretend otherwise. Task Force Chairs do not recommend that these seizures take place under the powers of eminent domain, since the Michigan Constitution erects profound barriers to blight takings. Instead, they urge that this clearance operate under an enhanced version of Michigan’s Nuisance Abatement Program, which now is used to seize approximately fifty properties a week. The Task Force, however, does not recognize that this Program has long been taking properties in violation of the U.S. Constitution’s Fifth Amendment. Additionally, blight condemnations historically exploit low-income communities and people of color, but these same officials also pretend that this danger does not exist when it comes to Motor City.

The reasons for this indirection prove exigent: Detroit is the most dilapidated city in the nation, and desperately needs to repair or remove its unsound housing. Constitutional dramas and troublesome objections about the city’s very poor would only protract this process if not vanquish it altogether. Yet the Task Force performs a great feat in obscuring these problems. How does it do it?

The Task Force succeeds by luring the public’s focus – specifically, its gaze – away from the Constitution and the problem of poverty toward mesmerizing scenes that speak to Detroiters’ greatest fears and desires. That is, officials use optics to persuade politicians, judges, and the citizenry that they can confiscate thousands of properties without compensation. In previous work, I have named these optics a specious brand of official and judicial gazing practice: I call it “peering.”

In this paper, I study how optics now work in Detroit to occlude the legal and social problems that lurk in the Task Force’s recommendations. I then offer a different public purpose under which eminent domain exercises could progress unhampered by the Constitutional barriers facing Michigan blight condemnations: The alleviation of poverty. In my development of an anti-poverty agenda that would support Detroit blight clearance, I advance an optical practice that would deflect many of the hazards of peering: I call it “seeing.”

"Mutiny on the Bounty" Descendants Likely To Lose Control of Their Island

Things have gotten contentious on Norfolk Island:

Residents of the remote Pacific island of Norfolk Island, home to descendants of the sailors who launched mutiny on the Bounty, are poised for their own fightback over plans to end its self-rule.

The island has been plagued by financial issues for years, and relies heavily on assistance from Canberra, but many of the islanders are protective of its independence and the island’s chief minister, Lisle Snell, has declared the proposed changes tantamount to a return to “colonial” rule.

The move by the Australian government, announced by assistant minister for Infrastructure and Rural Development Jamie Briggs, will see the island’s parliament abolished and replaced by a regional council, while personal and business taxes will be introduced. The island has self-governed with a four-member government and a parliament of nine people since 1979. In return, the 1,800 inhabitants will be able to access healthcare and social security benefits. “The infrastructure on Norfolk Island is run down, the health system not up to standard”, Mr Briggs said.

The Problem of Mortgage Debt Forgiveness

The LA Times reports on the tax implications of mortgage debt forgiveness:

Under the federal tax code, if a lender forgives mortgage debt as part of a loan modification or other arrangement, that amount will be treated by the IRS as ordinary income and taxed accordingly. Typically the tax bill runs into the tens of thousands of dollars.

(Note to California homeowners: If your mortgage forgiveness occurred because of a short sale, you're exempt from the tax because of an IRS interpretation of state law.)

Two senators — Nevada Republican Dean Heller and Michigan Democrat Debbie Stabenow — have introduced a bipartisan bill that would extend the mortgage debt relief safe harbor for eligible homeowners through the end of 2016. Heller is a member of the tax-writing Senate Finance Committee and is in a strategic position to attach the bill to a larger piece of legislation that is moving through his committee — something he pledged to do.

Map of the Day: Seattle Not All That Wet

Mandiberg & Harris on Alcohol- and Drug-Free Housing

Susan Mandiberg (Lewis & Clark) and Richard Harris (Independent) have posted Alcohol- and Drug-Free Housing: A Key Strategy in Breaking the Cycle of Addiction and Recidivism (McGeorge Law School) on SSRN.  Here's the abstract:

Drug addicts and alcoholics commit an enormous number of crimes. The only successful strategy for managing the criminality is to get these offenders into recovery. However, many, if not most offenders fail to achieve sustained abstinence from addictive substances while in prison. The problem is that addicts and alcoholics who return to a social milieu that either supports or does not discourage the use of drugs and alcohol are more likely to fail to overcome their addictions, even when they have participated in traditional treatment. Drug addicts and alcoholics can avoid this dilemma by choosing to live in a community of people committed to live free of drugs and alcohol, whether or not they are on parole or probation. Experience and evidence show that living in properly structured and operated alcohol- and drug-free housing, combined with outpatient treatment and other services, is an effective way to address addiction and the criminality that accompanies it, and thus to stop the cycle of recidivism for those ex-convicts who participate in that community. This article traces the experience of Central City Concern, a private, nonprofit housing, social service, and health care agency in Portland, Oregon, that has successfully developed this type of recovery housing over the past 30 years. The article places this experience in the legal context of federal and state laws that both support and potentially frustrate the operation of such alcohol- and drug-free housing: federal anti-discrimination law, federal housing law, and state and local landlord-tenant law.

"The Last Free Place in America"

The New York Times relates the fascinating tale of Slab City, an unregulated squatter settlement in the California desert:

Slab City is home to perhaps 150 year-round residents — refugees from mortgages and bill collectors, former hippies, rebels and self-identified misfits — who live in personal camps made from old trailers, truck campers and crude lean-tos, and call themselves Slabbers. From October to April, the population swells to perhaps 2,000 as snowbirds, attracted by the guaranteed sunshine and zero fees, arrive in sometimes majestic motor homes.

“This is the only place I have ever lived where I feel I belong,” said Christina Swistak, who goes by the nickname Dreamcatcher and moved to “The Slabs” three years ago after drifting from Arizona.

But now, the denizens of this bleak stretch of desert between the Salton Sea and a military bombing range are bitterly divided. After the notion spread that the California State Land Commission might sell the land, the Slabbers started debating what to do: Should they try to buy the place that they occupy illegally? Should they form a residents’ association to save the anarchistic soul of Slab City, or would that spawn the type of bureaucracy that people came here to escape?

The 10 Most Famous Streets in the World

From Conde Nast traveler.

Zoning is the Worst, Part 734

The Economist has a pretty good article on Houston, which touches on the lack of zoning.  The magazine's bottom: "Houston is not pretty, but it thrives."

One particular statistic from the article is utterly & absolutely mind-blowing: "Last year authorities in the Houston metropolitan area, with a population of 6.2m, issued permits to build 64,000 homes. The entire state of California, with a population of 39m, issued just 83,000."  If we care at all about people of modest means, that should be a call to arms.

What “Blurred Lines” Says About Copyright

 

Kal Raustiala and Christopher Jon Sprigman take a look at copyright implications of the recent lawsuit between Marvin Gaye's estate and the songwriters behind “Blurred Lines,” 2013's most discussed single:

Members of the Gaye estate publicly accused the musicians of copying key elements of Gaye’s iconic 1977 song “Got to Give It Up.” Williams and Thicke pre-emptively sued the Gaye estate, seeking a court declaration that they did not copy Gaye. And this week the verdict came down. The “Blurred Lines” team was found liable for copyright infringement and ordered to pay nearly $7.4 million in damages.

This is one of the largest music industry copyright verdicts in history. But the biggest losers in this saga aren’t Williams and Thicke, who can readily afford the millions each. It’s all of us who love music. The “Blurred Lines” verdict may end up cutting off a vital wellspring of creativity in music—that of making great new songs that pay homage to older classics.

“Blurred Lines” unquestionably references “Got to Give It Up.” Indeed, Williams and Thicke made clear that the feel of their song and Gaye’s were very similar. The key issue in court was whether they crossed the line into copyright infringement—and where exactly that line is.

Selmi on Takings and Extortion

Daniel Selmi (Loyola Los Angeles) has posted Takings and Extortion (Florida Law Review) on SSRN.  Here's the abstract:

In a series of controversial decisions the Supreme Court has addressed the constitutionality of governmental exactions that require developers to dedicate land or pay fees as a condition of developing property. Rather than focusing on the questionable doctrinal consistency of these decisions, this article sees them as reflecting an underlying judicial narrative that assumes local governments unfairly "extort" exactions. The article demonstrates how this "extortion narrative" explains the decisions and, if the Court continues to follow it, will lead to further contraction of governmental discretion and possibly to a reformulation of takings law generally. The article then evaluates the foundations of the narrative and concludes that it cannot support the reformulation of exactions takings law on which the Court has embarked.

Drones: Coming to a Homeowners Association Near You

So says Benny Kass:

It is actually mind-boggling to speculate on everything that a drone can do in a community association. First, security. A low-flying drone with a camera can spot trespassers and the information automatically relayed to the police.

Inspection of buildings, especially high-rise condos in congested urban areas. Often the condo board needs to know the condition of the roof, for example, which requires expensive ladders or scaffolding to access. The drone can inspect with the camera quickly and much less expensively.

While Nodiff’s fictional board president was a little too aggressive when it aimed the drone’s camera into a window in a private house, careful use of the drone would allow complete inspections of the entire community. Especially in large communities, the cost saving could be considerable.

And if you are planning to buy or sell any property, real estate agents are anxious to have the right to use drones to market their products. The National Association of Realtors (NAR) recently cautioned its members “that the use of unmanned aerial vehicles for real estate marketing is currently prohibited by the Federal Aviation Administration. Such prohibited use of unmanned aerial vehicles may lead to the assessment of substantial fines and penalties.”

Brady on Navigability

Molly Brady (Yale - Ph.D. candidate) has posted Defining 'Navigability': Balancing State-Court Flexibility and Private Rights in Waterways (Cardozo Law Review) on SSRN.  Here's the abstract:

Over the course of American history, state courts have eliminated property rights in waterways through a quirk of public trust law: declaring the water in question to be “navigable” makes it public property, while declaring it “non-navigable” leaves the water subject to private control. The historical record is flooded with examples of these declarations by state courts. While some navigability rulings have protected public rights in waters against irrational private claims, others have abused this peculiarity to seize private property to placate irate, and even violent, interest groups.

The scope of this authority to make navigability doctrine — especially whether it gives state judges the ability to change the definition of “navigability” once declared — is unclear. Current law fails to curb abuses of navigability doctrine and pays scant attention to constitutionally protected property rights. These issues are particularly salient today: prompted by large-scale water diversions, droughts, and fears of water shortages, twenty-first century litigants wishing to prevent water privatization are increasingly seeking new judicial declarations of “navigable” waterways.

This Article provides an original history and analysis of state-law navigability doctrine and the limitations that should be implemented. First, it shows how this unusual common-law authority was created and how state courts exercised it in two moments in history when water rights became vitally important: the explosion of American development in the mid-nineteenth century and the rise of the environmental movement in the mid-twentieth century. Building on this history, this Article argues that to avoid abuses while permitting reasonable exercises of judicial power, navigability must be viewed through a national constitutional lens. The Takings Clause and Due Process Clause — independently or in combination — can provide guidelines that permit evolution while safeguarding individual rights.

Map of the Day: The World's Spaceports