Texas Supreme Court tries to play King Canute

Legend has it that King Canute of Denmark demonstrated his limitations to his courtiers by sitting at the edge of the sea and commanding the tide to stop. When the water inevitably continued to rise and dampened his feet, he contrasted his limited powers with the unlimited powers of God.

In an opinion announced this week, the Texas Supreme Court has asserted its power to stop nature and the oceans from redrawing property lines. The Court held that while hurricanes may change the physical location of beaches that will not change the location of the public portion of the beaches as they existed prior to the hurricane. Of course, those public portions may well be underwater permanently as a result of the storms. The upshot of this ruling is that the State of Texas will not be able to enforce its Open Beaches Act which had been used to reestablish public access in the wake of hurricanes even if it meant requiring landowners to demolish structures that were encroaching on the water’s edge post-storm.

West Galveston beachfront after Hurricane Ike

This was the rehearing of the Court’s initial decision which sparked an outcry from state officials and environmental groups alike. The result was the same though the three dissenting judges voiced strong objections.

The Court gives the State two options: (i) reacquire the public beach access easement by paying the landowner or (ii) relinquish public beach access in the affected area. Given the cost of purchasing such easements and the dynamic nature of beachfront ecosystems, over time this ruling is likely to dramatically restrict the ability of Texas residents to access the oceanfront.

Planet Under Pressure

The just concluded Planet Under Pressure conference in London resulted in the first ever State of the Planet Declaration. Among its eye-catching statements was this one:

“Consensus is growing that we have driven the planet into a new epoch, the Anthropocene, in which many Earth system processes and the living fabric of ecosystems are now dominated by human activities.”

This is intended to set the stage for the U.N.’s upcoming Rio+20 Conference.

The briefing papers prepared for Rio+20 make clear that an interconnected, international approach will be required to address environmental systems that we now know are international in nature. The Earth system is defined as

“. . . the Earth’s interacting physical, chemical and biological processes, and includes humanity. The system consists of the Earth’s land, oceans, atmosphere and ice. It includes the planet’s natural cycles – carbon, water, nitrogen, phosphorus, sulphur and others – and the geophysical processes that occur deep below the Earth’s surface. Life itself is an integral part of this system. Our interconnected social and economic systems are part of the Earth system. Many human systems are now driving change in the Earth system. While the system has always changed, what is happening right now is unique.”

To protect the continued viability of this Earth system, researchers have introduced the concept of boundaries for nine planetary boundaries. Already three of them have been crossed – climate change, loss of biodiversity and disruption of global cycles.

Of course, the warning and recommendations of these conferences will give Agenda 21 conspiracists more fodder. But the message is clear, local and national institutions and approaches to these problems are doomed to failure because the system at risk does not exist at the local or national scale, it exists at the planetary scale.

What interests me about this is the disconnect between our current property rights regime which focus on the micro scale  (i.e., the rights of individuals to small, arbitrarily defined plots of land) rather than on a systems scale. As we began to learn more about the interconnected nature of the environment, we have overlaid a regulatory regime on top of the property regime to try to strike a better balance. [For an exhaustive treatment of this effort, see my dissertation.] This approach has had limited success and in the United States runs into the Fifth Amendment’s protection against takings without compensation. I believe that just as we recognized new property rights with the advent of technologies such as air travel, telecommunications and the internet, we need to recognize a new category of property rights the recognize the components of the Earth system and that transcend and overlay parcel scale property rights.


U.S. ranks #36 worldwide in protecting physical property rights

Hernando de Soto is a Peruvian economist who founded the Institute for Liberty and Democracy and who gained international notoriety and acclaim for his thesis that economic development and a vibrant market economy depend on the ability of poor people to gain legal recognition of their land rights and be able to use it as collateral for loans. One of the offshoots of his work is an annual International Property Rights Index. The 2012 Index ranks the United States #18 overall among the 130 countries analyzed and #23 for physical property (i.e., land). The study found a strong correlation between higher property rights index scores and GDP per capita. You can read the full copy of the report here.


In arriving at its rankings in the physical property area, the IPR looks at the strength of a country’s property rights systems, judicial protection for those property rights, and how clearly property rights are defined. In the sub-area of protecting physical property rights, the United States ranks #36. I suppose it may surprise some who see the United States as the ultimate bastion of private property rights that its ranking is not higher. Those who believe our system of private property is under constant attack from local, state and federal governments.

An example of these concerns was provided by a just announced Supreme Court decision holding the the compliance orders of the EPA are subject to judicial review. The case involved an Idaho couple and their attempt to construct a house on a small lot (< 1 acre) in a residential subdivision where other houses had been constructed. After they began bringing fill to the site, the EPA issued an order demanding that the lot be restored to its original wetlands condition and threatened fines of up to $75,000 per day for failing to do so. A unanimous court ruled that the landowners were entitled to their day in court to determine whether their lot contains any wetlands.


Sacketts' home near Priest Lake, Idaho


Parking maximums can make strange bedfellows

Traditionally local zoning ordinances required project sponsors to provide 100% of the parking demand generated by the proposed project. More recently both Smart Growth and sustainability advocates have begun to question that approach as reinforcing the existing car culture. It is becoming more common, particularly in metropolitan ares with extensive public transit systems, to reduce minimum parking ratios thereby reflecting increased usage of public transit. In some cases, municipalities are going a step further and instead adopting parking maximums (i.e., rather than require a developer to provide a certain number of spaces, the city prohibits the developer from providing more than a certain number of spaces).

The underlying theory is simple enough to understand. Fewer parking spaces will eventually translate into fewer cars, less traffic, less land devoted to parking lots and parking garages and greater ridership on bus and rail systems. In turn, this means a reduction in exhaust emissions and gasoline usage and cleaner air. This trend is occurring in locales as disparate as New YorkSeattleTacoma, Los Angeles and Fairfax County (VA).  

Los Angeles

When this new approach is put into practice, however, it can lead to some unexpected arguments being made by the parties who participate in specific project zoning decisions. For example, developers typically tried to reduce parking requirements to save money on construction and operation. Now developers may be arguing for permission to exceed the new parking maximums if they are afraid they will not be providing as much parking as prospective tenants are seeking. Neighborhood activists usually want to make sure that office workers and shoppers are not using up the scarce supply of on-street parking used by residents. With parking minimums, these activists usually were on the opposite side of the fence from developers. But with parking maximums, neighbors and developers can find themselves as allies fighting together against planning officials who seek to minimize the amount of new parking.


A recent cleverly designed study done in New York City made a compelling case that the availability of a guaranteed private parking space increased the likelihood of the car owner driving into Manhattan. This study of how parking minimums influence commuting patterns by Rachel Weinberger of the University of Pennsylvania has provided empirical support for parking maximum proponents who believe that restricting such parking will reduce commuter trips.



Will Lincoln be disappointed in 20 years?

There was a fascinating article yesterday in the Baltimore Sun by Louis Miserendino marking the 20th anniversary of the opening of Camden Yards (we attempted to see a game during that inaugural year but didn’t make it past the National Anthem as one of our kids got sick in the stands). Mr. Miserendino compares the economic development track records for Boston and Baltimore over past half century. I was surprised to see that before 1980 Boston was in worse shape than Baltimore having lost more manufacturing jobs and population had a lower median income and a higher crime rate. But in the ensuing period, Boston’s income levels have soared while Baltimore’s have stagnated.

Camden Yards, Baltimore, Maryland

He notes that Boston has not built a new baseball or football stadium during that period (though he does not mention that the Boston Garden was replaced) while Baltimore made an enormous public investment in both baseball and football stadiums downtown. He questions whether that strategy has paid off for the city as a whole. Camden Yards, of course, is the stadium that triggered an onslaught of downtown, retro baseball stadiums (e.g., Pittsburgh, Cincinnati, Detroit, Denver, San Francisco). It is often held up as the poster child for how sports facilities can be used as catalyst for a downtown renaissance. The question Mr. Miserendino asks is “at what cost to the economic development prospects for the remainder of a city.

On the same day, the City Council in Lincoln, Nebraska, approved a $57 million mixed-use project that is to be built adjacent to the Pinnacle Bank Arena currently under construction.   The link between the two projects was acknowledged by Councilman Carl Eskridge who said: “Part of the reason for building the arena is to have lots of things around it, places for people to live and play.” The Arena will be part of a sports-entertainment district that includes Memorial Stadium and Haymarket Park. These three facilities are the home for the Husker basketball, football and baseball teams respectively. The Haymarket itself is a successful conversion of an old warehouse district into restaurants and shops.

Haymarket project, Lincoln, Nebraska

So while this project has a lot going for it in terms of ties to the University of Nebraska and an already thriving mixed-use district that it hopes to become an integral part of, one wonders what public investments in other parts of Lincoln could not be made in order to create this mecca for sports fans.

When tribes become developers

Since the establishment of Native American reservations, tribes typically were opposing attempts by outsiders who wanted to exploit resources located on the reservations. More recently, tribes themselves have become active developers of reservation land often for casinos and related development. Quite a different sort of project was announced last month by the Navajos, who in partnership with Confluence Partners LLC propose to develop a $1 billion complex consisting of a resort hotel, spa, restaurants, retail and commercial space and a tramway to the river’s edge. The project would be located at the confluence of the Colorado and Little Colorado Rivers and along the east rim of the Canyon.

Not surprisingly an opposition group has already sprung up, and long established environmental groups have begun to voice their concerns. You can download a copy of the Memorandum of Understanding at Save the Confluence’s website.

While I have no doubt that there are significant environmental issues that need to be addressed, my real interest in this is the collision between culture and legal systems. Native Americans have a very different concept of property rights but have long chafed under the paternalistic and often bumbling oversight of the Bureau of Indian Affairs. Environmentalists often allied themselves with tribes who were seeking to protect sacred sites on and off reservation lands. This particular project raises the prospect not only of internal conflicts within the Navajo nation but between the tribe and the federal government and environmental groups.



Sagebrush Rebellion redux

Updated: May 15, 2012

Brewer vetoes AZ bill.

As if battles with the federal government over immigration and health care weren’t enough, several western states have embarked on a campaign to wrest control of tens of millions of acres of federal lands in the West. Utah is furthest along with the governor there having just signed into law a measure asking the federal government to give back more than 20 million acres of public lands. Not to be outdone, the Arizona Senate just passed SB1332 which would require the federal government to transfer nearly 30 million acres (or roughly 40% of the state) to the state by 2015 or face the imposition of property taxes. Governor Brewer somewhat unexpectedly vetoed the measure acknowledging that it was unconstitutional and would have imposed a huge budget liability on the state if the federal lands were actually put under state control. Measures are expected to be introduced in Colorado, Nevada, Idaho and New Mexico.

Coupled with these legislative efforts are a new raft of lawsuits alleging that the federal government reneged promises made at the time these states entered the Union that federal ownership would be temporary. While most legal commentators agree that this issue has been resolved in the federal government’s favor repeatedly over the years, that doesn’t address the very different public-private land ownership patterns between states in the Mountain West and the rest of the country.

Its clear from comments being made by sponsors of the bills that if they are successful they believe state ownership will pave (literally and perhaps figuratively as well) the way for more aggressive resource extraction and development. The issue has even reared its head in the Republican primary where Senator Santorum has said if elected he would work to transfer much of the federal lands to the states and sell them to private interests. The Cato Institute, a libertarian think tank, has recently issued a lengthy study discussing possible reforms to federal land management including the transfer of such lands to the states.

Environmentalists have been quick to  raise the alarm of what such a transfer would likely mean for treasured wilderness areas such the red rock lands surrounding Moab, Utah. As this issue evolves it is almost a certainty the public trust doctrine will be invoked by those seeking to insure continued management of such lands in a manner that promotes the interest of the general public rather than a small group of private parties interested only in economic development. A recent Nevada Supreme Court decision did just that in applying the public trust doctrine to a dispute about whether the state had to transfer some land recently acquired from the federal government to a county.

While the takeover is supported by many in the Tea Party, in this case it is environmentalists who are raising the disastrous impact such a transfer of land could have on state budgets.


Making the most out of public transit

I was living in the DC area when its metro system first opened in 1976. I remember how bus lines were completely revamped to tie into the nascent rail lines which had the effect of greatly increasing the time of my commute from northern Virginia. In part because of this, I moved into the District to an apartment where I was literally steps from the Dupont Circle station. At first there was a fair amount of opposition from neighborhoods adjacent to the system’s stops to proposal for increasing zoning density. Over time, however, densities were indeed increased and large scale, mixed-use, transit oriented development (TOD) became commonplace in both the Virginia and Maryland suburbs.

A recent Urban Land article caught my eye given this personal history with Metro. It recaps the story of how a true public-private partnership among the District of Columbia, the federal government and private landowners shared the cost of adding a station to serve the recently renamed NoMa neighborhood directly north of the Capitol Building.

The private sector contributed nearly 30% of the cost of the project. In the ensuing eight years the availability of rail service has spurred $3 billion in private investment and over 7 million square feet (650,000 sq m) of development, and that more than 40,000 people have jobs in NoMa. City tax revenues in the 35-block area that constitutes the NoMa Business Improvement District (BID) have skyrocketed from $5 million annually to $60 million.

The Metro authority was a reluctant participant at the outset but eventually did cooperate. One wonders how many other potential transit station sites there are out there waiting for similar redevelopment efforts. The catalyst here was a developer, the Bristol Group, which found itself with a huge old department store distribution center and 8+ acres of vacant land. Perhaps when transit systems are planned or extended rather than having planners arbitrarily decide where stations belong, the public sector ought to open up the process to some form of “bidding” by groups who control enough land in the vicinity of a proposed station to ensure that the public investment pays off in terms of new development, increased property values, and greater ridership.

Stadiums as historic landmarks

I happened across an article today about the City of San Antonio moving towards designating Alamo Stadium as a city historic landmark. With my curiosity piqued, I soon learned that this stadium was built as a WPA project during the Depression and with a seating capacity of 23,000 is the largest high school football stadium in Texas.

This got me wondering about how many stadiums (and arenas) have been designated as historic landmarks by city, state or federal governments. It doesn’t appear that there is a master list of such designations (or at least I have not come across one). But I did learn that Harvard Stadium, the Yale Bowl, the Rose Bowl and the Los Angeles Memorial Coliseum all have received the most prestigious such designation as National Historic Landmarks. I find it a bit ironic that two Ivy League facilities and two from Los Angeles make up this quartet. Conversely, Soldier Field lost its National Historic Landmark status as a result of the massive renovation completed in 2003.

Before you ask, yes, Fenway Park is a National Historic Landmark; but you may be surprised to learn that designation was made only this month! Another iconic baseball stadium, Wrigley Field, was deemed eligible for designation back in 1987 but has not requested it be formalized in the ensuing quarter century.

One wonders which, if any, of the current generation of sports facilities will be around long enough to be considered as candidates for historic preservation.



Wind rights

It is well established by this time that a landowner can grant an easement over his property to a third party who wishes to build wind turbines that will capture the wind and convert it into electrical power. It is still somewhat of an open question whether an adjacent landowner can still make use of his land for something that would block the flow of wind (e.g., planting a windbreak to impede soil erosion or building a grain elevator). One commentator has noted that some states have recognized a solar right that prevents a  landowner from blocking sunlight needed to power solar panels on a neighbor’s land.

A recent lawsuit in California seeks to have wind rights of a different sort recognized. The Mountain Valley Airport in Tehachapi, California, has filed a lawsuit seeking to block construction of a wind power project that called for erecting up to 137 410-foot tall wind turbines on 7,100 acres. The owners of the airport are arguing that its users have established a “public easement” in the unique wind currents that occur above the proposed project site.

Wind by its very nature is not a resource that is confined to any single parcel of property regardless of how big. Should it be thought of more like free flowing water and treated similarly from a legal standpoint? The airport’s claim raises another possibility: should the wind be thought of as a resource owned collectively by all of us and held in public trust by state and federal governments? Such an approach would not mean that private landowners couldn’t capture wind resources as they pass over their individual parcels. But it might mean that government would have a role in resolving disputes like this one and ones that are increasingly likely to occur between adjacent landowners.