The Journal of Things We Like (Lots)
Select Page

One Hundred Years of Solitude: A Reconsideration of Single-Family Zoning

John Infranca, Singling Out Single-Family Zoning, 111 Geo. L.J. 659 (2023).

John Infranca’s recent article, Singling Out Single-Family Zoning, recounts and critiques the foundational legal arguments underlying the advent and dominance of single-family zoning. His insightful framing of this historical perspective is especially valuable in the context of today’s debates about the impacts and future of single-family zoning.

A century ago, localities, land use professionals, and lawyers innovated zoning systems that created protected enclaves for single-family detached homes, isolating these residences from multifamily residential, commercial, and industrial uses. In the 1920s, courts considered and ultimately upheld such land use schemes in opinions that include the seminal 1926 Supreme Court decision of Village of Euclid v. Ambler Realty. Once U.S. courts generally accepted that single-family zoning was a valid exercise of a municipality’s police power, this type of zoning proliferated throughout the country, becoming the unique and defining feature of American land use. But the ubiquity of single-family zoning in the United States obscures its legally questionable foundation.

In the early 20th century, the amorphous, yet compelling, ethos of the “American Dream” was harnessed to expand municipal police power and limit private property rights. Political consensus on the value of promoting homeownership led to laws and programs spurring suburban development. Government policies–from federal mortgage insurance to local land use planning–worked together to create what were purportedly ideal “family” communities, but they resulted in neighborhoods of detached homes populated mostly by upper/middle-class, white families.

Long-justified as a way to promote “public health, safety, and morals,” single-family districting exacerbates residential segregation by race and class, contributes to sprawl and environmental harms, cements American car-dependency, and drives up housing prices. How the government’s police power evolved from a legislative tool to ensure public health, safety, and welfare into the legislative power to create these exclusive neighborhoods is a compelling, cautionary tale.

Using the police power to exclude non-conforming structures (and people) from a neighborhood was a dramatic departure from prior land use applications focused on public health and safety. Infranca traces the innovation of exclusionary zoning generally and of single-family residential zoning specifically, subtly moving from a foundational power to proscribe nuisances to the virtually limitless power to prescribe aesthetics and exclusion.

For example, limiting the size and location of buildings on lots may have originally been grounded in concerns regarding fire because smaller, separated structures reduced the risk of destructive conflagration. These early land use regulations effectively limited multifamily homes, however, and within just a few years, zoning’s implicit hostility to multifamily housing became explicit. Legislatures and courts cast apartment houses as the villain in residential community development. Apartment buildings were “parasites” consuming suburban green space, cutting off light and air, and depressing property values. Excluding “incompatible uses” meant keeping commercial, multifamily, and even two- or three-family homes away from single-family neighborhoods. One early zoning advocate proclaimed that this novel, broad use of police power was “more drastic than any other form of regulation” this country had ever known (P. 686).

Even if creating single-family-only neighborhoods benefitted their residents (which is debatable–see, e.g., Gregory Shill, Should Law Subsidize Driving), these benefits did not accrue to citizens living outside these neighborhoods. Infranca explains that early defenders of single-family zoning attempted to argue to the contrary, that there were broad public benefits from single-family zoning.

By framing homeownership in a single-family neighborhood as an aspirational ideal and by asserting that all citizens benefit from “spacious lawns and plenty of shrubs and trees” (P. 691), advocates claimed that privately owned single-family neighborhoods benefit the public.

The disparate treatment of residents in certain neighborhoods was also explained away by characterizing single-family districting as an economical reflection of existing development patterns. Finally, clustering multifamily homes (for poorer households) in more commercial areas, away from richer households’ detached homes, was framed as an efficient way to provide public services (transportation and other amenities).

Infranca rips the public benefit veneer off of these hollow justifications, concluding that they “have not stood the test of time” and that “[s]ingle-family districts continue to confer whatever benefits they provide only upon a small subset of the population” (P. 722). Although homeowners and their local municipalities may wish to exclude multi-family housing from neighborhoods as a way to prop up their property values,1 single family districts create more public harms than public good. They “exacerbate racial and economic segregation and perpetuate wealth disparities” (P. 661) and are among the ways that the law penalizes renting relative to homeownership.2 In short, single-family zoning does not promote the public welfare and is therefore an unjustified use of the police power.

Historically, however, courts refused to look too closely at the asserted public benefits from single-family zoning when it was included as part of a “comprehensive” land use plan. Infranca explains that courts have generally deferred to land use planning decisions based on the presumption that a comprehensive land use plan carefully and fairly balances various public needs and interests.

The judicial presumption of and deference to zoning comprehensiveness likely “played the most important role in efforts to establish the validity of single-family districts” (P. 696). Judicial deference was based on the idea that since “a comprehensive system of districting is essential to the health and general welfare,” then it must be true that “every specific regulation that is an essential part of such comprehensive system is justified under the police power” (P. 696).

Infranca unravels this house-of-cards reasoning. He queries whether a comprehensive approach truly is essential to health and welfare and whether the benefit of a comprehensive approach generally is sufficient to justify every component thereof. Founded on this logical fallacy, a court using comprehensiveness to justify single-family districting “assumes quite a bit” (P. 697).

Ironically, the appeal to comprehensiveness to justify zoning decisions not only masks complete deference to legislators, but also has been used to justify upholding zoning schemes that were not, in fact, even based on comprehensive planning. Presuming that zoning is always the product of a scientific process and is therefore immune from judicial oversight ignores not only the lack of data-driven decision-making in many instances, but also the fact that in many ways, zoning is more of an art (driven by vision) than a science (driven by data).

Infranca builds on his exploration of single-family zoning’s historical foundations to suggest three strategies to de-legitimize single-family zoning. First, because zoning’s presumptive validity is rooted in its comprehensiveness, its lack of dynamism and poor balance of various community needs could undercut its legitimacy. Second, single-family neighborhoods’ lack of accessibility–both in terms of infrastructure and affordability–can demonstrate the absence of a public benefit from this mode of zoning. Finally, Euclidian zoning implicitly presumes regional coordination as prerequisite for its police power legitimacy, suggesting that local zoning power is constrained.3

The hundred years of solitude that has walled off single-family neighborhoods in the United States is starting to crack. An increased emphasis on adverse impacts of single-family zoning (and exclusive zoning in general) has already led several states and municipalities to jettison this “American obsession” (P. 666).

But our common law precedent-based legal system looks backwards to move forwards. Exploring and critiquing yesterday’s assumptions that established single-family zoning as a legitimate use of police power can provide the key to reconsidering its validity for tomorrow.

  1. William Fischel, The Homevoter Hypothesis (2005).
  2. See Sarah Schindler & Kellen Zale, The Anti-Tenancy Doctrine, 171 Univ. Pa. L. Rev. 267 (2023); previously reviewed by Serena Williams, Illustrating Rent: Why Is the Tenant Falling?, JOTWELL (October 21, 2022).
  3. See Ezra Rosser, The Euclid Proviso, 96 Wash. L. Rev. 811 (2021).
Cite as: Andrea Boyack, One Hundred Years of Solitude: A Reconsideration of Single-Family Zoning, JOTWELL (March 6, 2024) (reviewing John Infranca, Singling Out Single-Family Zoning, 111 Geo. L.J. 659 (2023)), https://property.jotwell.com/one-hundred-years-of-solitude-a-reconsideration-of-single-family-zoning/.

Rethinking Nature’s Rights

Mauricio Guim & Michael A. Livermore, Where Nature’s Rights Go Wrong, 107 Va.. L. Rev. 1347 (2021).

In When Nature’s Rights Go Wrong, Professors Mauricio Guim and Michael Livermore offer much needed analytical clarity to a significant, yet still understudied, field: rights of nature. After centuries of adopting a predominantly human-centric perspective, a more biocentric outlook is now coming to the fore.

Much like property rights, nature’s rights award control over clusters of natural resources. However, unlike traditional property rights, in the case of nature’s rights—as the name suggests—the right holders are non-human. What’s more, they tend to attach to a broader and more general natural entity, such as an ecosystem or a class of species, rather than a more crisply defined right-holder.

This carries profound implications for nature’s rights function and ability to achieve their environmental or climate-related goals. Analyzing nature’s rights is therefore especially important at present, as mounting evidence suggests our current legal mechanisms are insufficient to tackle the climate crisis.

The significance for property scholars is two-fold: first, Guim and Livermore underscore important conceptual difficulties that arise with regards to nature’s rights. The same challenges may arise with regards to property rights. After all, both utilize a similar mechanism – awarding right holders with control over chunks of natural resources. Property scholars should therefore pay close attention to the rights of nature discourse.

Second, this analysis also enhances the property-climate connection and builds further on the growing understanding that the two fields can and must work together to benefit from mutual synergies.

Guim and Livermore make three key arguments, which are conceptual, empirical and normative. First, the conceptual analysis shines a light on the challenges associated with defining the holders of nature’s rights. These holders of rights of nature will often be complex aggregates, like ecosystems, landscapes or species.

Defining these aggregates (in a way that is sufficiently clear to work with as a legal right holder), in short, is difficult. Nature is, by its nature, continuous and interconnected. Any attempt to slice it into bright-lined packages, is bound to run into analytical difficulties. In essence this is a problem for any attempt to draw a bright-line distinction through a continuous variable or resource.

The same is true for property rights. In fact, property rights have been doing just that for centuries: think of a property right one could have in a meadow, a river, or a wooded area. All of these likewise impose crisp lines on what is otherwise a continuous and interconnected resource. What is novel with regards to rights of nature is that the right holder is non-human. What’s more, the right holder could (and often is) also the subject of the right as well.

Put differently, there is a fundamental definitional challenge: how to draw crisp lines around messy clusters. Property rights constantly face this challenge when it comes to defining the “thing” at the heart of property, the subject matter of the right.

Nature’s rights, however, face a double definitional challenge – both with regards to defining the subject matter of the right and with regards to defining the right holder. This double definitional standard complicates things significantly. Adding to the complexity, beyond the physical and biological interconnectedness, there are also moral, social, political and economic considerations intertwined.

There is a further conceptual challenge: how can we offer an analytically coherent framework for evaluating the tradeoffs involved in defining and enforcing rights of nature? The basic problem, as Guim and Livermore underscore, is that making comparisons across entities adds another layer of complexity to the (already complex) analysis of rights.

Why? Because one of the dominant ways of analyzing the policy tradeoffs in the US (whether it be protecting rights or enacting legislation) involves comparing social welfare functions. That kind of analysis, which is inherently human-based, doesn’t work when trying to evaluate the welfare of non-human entities such as species, ecosystems and landscapes. Without a coherent and consistent framework for evaluating the tradeoffs involved, argue Guim and Livermore, decision-makers don’t have solid criteria through which they can resolve disputes that arise with regards to the rights.

The second contribution of the article is empirical. Using the experience gained with nature’s rights in Ecuador as a case study, Guim and Livermore show that in the few cases where rights of nature have been applied, the results have been analytically inconsistent.

The third and final contribution of the article is normative. To achieve the potential of nature’s rights, Guim and Livermore propose to tweak the way nature’s rights are framed: rather than defining the right-holder as an amorphous, fuzzy entity such an ecosystem, to instead award rights to people and organizations who seek to advance a healthy relationship with the environment. First, because doing so will mitigate the conceptual complexities that currently exist in the definition of nature’s rights. Second, because a comparative constitutional analysis suggests that awarding rights to people who seek to promote broader policy goals is more likely to achieve the desired results. This suggestion will likely be of interest to trust law scholars, who may find echoes of the relationship between a trustee and a beneficiary in this context.

Rights in nature, and all its glorious resources and species, have a significant role to play in the protection of the environment and in achieving our climate goals. Guim and Livermoe’s thoughtful piece invites both scholars and policymakers to rethink the ways in which rights in and of nature can be crafted and utilized, to better achieve these crucial goals.

Cite as: Yael Lifshitz, Rethinking Nature’s Rights, JOTWELL (February 1, 2024) (reviewing Mauricio Guim & Michael A. Livermore, Where Nature’s Rights Go Wrong, 107 Va.. L. Rev. 1347 (2021)), https://property.jotwell.com/rethinking-natures-rights/.

“Draw Me a Circle” and Where You Place Me Makes All the Difference

Danielle Stokes, From Redlining to Greenlining, 71 UCLA L. Rev. __ (forthcoming, 2024) available at SSRN (June 8, 2023).

I like circles, don’t ask me why. Maybe I like them because they make me think about how a few inches, feet, or yards can make a world of difference. If you enclose me in a circle, you may destine me for a lifetime (even generations) of disinvestment, lost opportunity, and lost hope. These are the vestiges of redlining, a historic process in which the federal government participated in racially segregated housing beginning in the 1930s by refusing to insure home mortgages in and near Black neighborhoods.

As I prepared to teach a housing law course this summer in Cambridge, England, I thought a lot about circles and in my research, I discovered Danielle Stokes’s recent article, From Redlining to Greenlining. The title of her article harkens to the old lending maps of the 1930s — the few inches on a map between green and red, blocks or miles on the ground, and untold lost opportunities or thwarted dreams for those enclosed in the thin red circle.

A red circle drawn around a neighborhood on a lender’s map signaled high lending risk and therefore an undesirable neighborhood. Place me on the outside of this thin red circle and my economic prospects (and my family’s prospects potentially for generations) are much improved. In fact, on these same color-coded maps, areas in green signified the lowest level of lending risk and were highly recommended for lending. They were also White, racially homogenous neighborhoods.

Stokes’ thesis is that discriminatory land use policies helped to marginalize minority communities and these same land use planning mechanisms can be used to help remediate the effects of historic discrimination. She introduces the concept of “greenlining” for the first time into the land use and environmental context as a descriptor for “a comprehensive planning mechanism that integrates sustainability principles into land use decisions, using development standards and other incentives to ameliorate longstanding injustices.”

Stokes does not seek to reinvent the wheel; nor does she suggest that any one solution can redress the effects of housing discrimination and inequity. What she offers is one strategy that uses existing land use planning mechanisms, not to exclude, but instead to comprehensively integrate sustainability principles into development standards and land use decision-making. And of course, her goal is to ameliorate some of the existing housing injustices that are the results of historic discriminatory land use, environmental, and residential lending policies.

Land use law is housing law and environmental law as well. Although land use planning and control is very local in its workings, its impacts reverberate beyond the local level to the regional, state, and national levels. Stokes has these broad impacts in mind as she articulates a proposal for a holistic approach to redressing environmental and land use injustices, from climate change to economic disinvestment.

Greenlining is malleable and provides a vehicle for coordinating land use regulation and environmental law while simultaneously using equitable principles to prioritize resource allocation and infrastructure investments in communities experiencing the greatest marginalization and harm. In this way, greenlining has the potential to bridge independent policy and regulatory areas and help them function in a more coherent way (e.g. land use planning as locally regulated, environmental law regulated largely by state and federal governments).

Stokes is careful not to overpromise (an increasingly rare attribute). She suggests that greenlining has the potential to provide a sound “structural framework for governing bodies to identify the geographic areas that are eligible for funding and incorporate green initiatives when approving new development.” She describes how greenlining can also be helpful in developing standards and processes that can be leveraged in the comprehensive planning process to address climate change and sustainable land use.

Simultaneously, Stokes cautions that greenlining is not a panacea and is not an appropriate redress for every negative climate impact. Her judiciousness is refreshing, and it is an acknowledgment of the complexity and sophistication of the problems she is tackling.

For the careful reader, Stokes offers greenlining as a conceptual framework for converging land use and environmental law to not only address historic policies and their lingering negative effects but to also move forward with new development in a transformative way. New development is inevitable and even welcomed.

Stokes offers greenlining as a way of achieving development that is more inclusive of all stakeholders and that employs development standards that prioritize sustainability principles and practices. Equity, sustainability, and an opportunity to offer meaningful remedies for historic land use and environmental injustices are the focus of Stokes’ work. She offers greenlining as a foil for the fall-out from redlining.

Moving from red to green is not easy. Stokes seeks to clear a pathway for those seeking a more equitable future.

Cite as: Carol Necole Brown, “Draw Me a Circle” and Where You Place Me Makes All the Difference, JOTWELL (January 4, 2024) (reviewing Danielle Stokes, From Redlining to Greenlining, 71 UCLA L. Rev. __ (forthcoming, 2024) available at SSRN (June 8, 2023)), https://property.jotwell.com/draw-me-a-circle-and-where-you-place-me-makes-all-the-difference/.

Spatial Inequality: The Reproduction of Racial Segregation Through School District Boundaries

Erika Wilson, White Cities, White Schools, 123 Colum. L. Rev. 1221 (2023).

In her important new essay, White Cities, White Schools, Professor Erika Wilson discusses the intersection of property law and education as part of an excellent symposium uniting the two topics, organized by Professors LaToya Baldwin Clark and Tim Mulvaney in the Columbia Law Review.

Wilson’s piece builds on recent law and geography scholarship by focusing on race, exclusion, and school district boundaries—topics that are familiar to those of us who teach land use and local government law but underdiscussed in the literature.

Much of her analysis centers on what she calls “white island districts,” which she defines as “predominantly white and affluent school districts that are situated in the middle of racially and economically diverse metropolitan areas.” (P. 1240.) Wilson’s essay seeks to challenge the dominant narrative, which sees these school districts as a product of individual decisions about where to live, rather than as a product of intentional racial discrimination.

In the essay, Wilson asserts that, just as formerly whites-only municipalities are “places” imbued with racial violence, history, and meaning, so too are the school district boundary lines that mirror those municipal boundaries. She explains that these boundary lines both serve to exclude those who live outside, and recruit those who are attracted to the schools that are created by these boundaries. These functions combine to “entrench the district . . . enabling it to capitalize on its racially exclusionary origins.”

And yet law and policy treat school district boundaries as mere race-neutral geographic spaces, failing to account for this history in determining whether it should be constitutional or normatively acceptable to maintain district boundaries that match the boundaries of formerly all-white cities.

The essay begins by considering how law and norms helped to create white-only suburbs. She notes that these whites-only cities were associated with higher status, and that in addition to zoning, and federal mortgage policies that encouraged and even required the use of racially restrictive covenants, the whiteness of these areas was often enforced with violence, which was justified as a way to protect property values.

And, as Wilson notes, having a reputation as a whites-only city that was enforced by violence “continues to make Black residents wary of locating to these municipalities long after the use of legal and extralegal means to exclude them has ended.” (P. 1234.) Thus, this historic racial violence is tied to the geographic space, as well as to its present conditions. These spaces are thus understood as racialized places, where this history continues to exclude and alienate Black people, while granting access to and making white people feel welcomed or safe.

The essay then considers the case study of Grosse Point, Michigan, which was a “sundown town” in which nonwhite people could not live or remain after dark. Wilson discusses the points-based systems that realtors used to exclude people from purchasing homes in the area, as well as threats and acts of violence.

She also points out that the state and local government failed to act to stop these behaviors. Even today, wealthy Grosse Point is still predominantly white, due both to this history of racial violence, and due to financial barriers and the racial wealth gap.

Here, Wilson turns to the modern-day Grosse Point Public School District, a “white island district” the boundaries of which encompass local governments that excluded nonwhite people (and which are still over 80% white). Indeed, this school district includes suburbs at issue in Milliken v. Bradley,1 an important case that many of us teach in our State and Local Government classes.

In that case, the Court held that while the city of Detroit had purposefully segregated within its school system, the surrounding suburbs had not engaged in the same type of de jure segregation; thus, the Court would not allow an interdistrict remedy that crossed district lines and affected the suburbs to alleviate the segregation. But, as Wilson points out, 13 of the 53 suburbs involved in that case “had roots as formerly whites-only, sundown municipalities.”

Wilson goes on to explain how even today, the Grosse Point Public School District polices its borders to keep non-residents out of the Grosse Point schools, and how in contrast, the adjacent Detroit public school district is predominantly Black and “suffers from a lack of funding, lack of high-quality and fully certified teachers, and dilapidated facilities.”

Finally, Wilson looks more broadly at the boundaries around school districts, and the reasons and ways that they can be reconfigured. The problem, Wilson points out, is that despite the fact that law and policy cement school district boundary lines, and those boundary lines contain and separate places with racial advantage from those without, our Equal Protection jurisprudence is generally insufficient to address these problems.

Local government literature explains that local control over school district boundaries—and especially parental control—is offered protection under the law. Thus, the laws and policies that protect and reify these school district boundaries effectively protect racial segregation; Equal Protection jurisprudence today views issues of geography and boundaries as results of individual decision-making, rather than state-facilitated race-based exclusion.

Thus, the essay concludes by offering suggestions to change the status quo, including rethinking our Equal Protection jurisprudence, and encouraging states to reconsider their policies pertaining to school district boundary line changes. Wilson’s essay does a great job of bringing together disparate discussions that are happening in property, local government, law and geography, and education law, and is a must-read for anyone interested in these fields as they pertain to racial discrimination.

  1. Milliken v. Bradley, 418 U.S. 717 (1974).
Cite as: Sarah Schindler, Spatial Inequality: The Reproduction of Racial Segregation Through School District Boundaries, JOTWELL (November 23, 2023) (reviewing Erika Wilson, White Cities, White Schools, 123 Colum. L. Rev. 1221 (2023)), https://property.jotwell.com/spatial-inequality-the-reproduction-of-racial-segregation-through-school-district-boundaries/.

Bounties for Animal Eradication as a Private Property Subsidy

Jack H.L. Whiteley, Property in Wolves, 108 Cornell L. Rev. 617 (2023).

It is easy to forget that until recently, states paid bounties on the killing of a whole range of animals. In Property in Wolves, Professor Jack H.L. Whiteley explores the history of such bounties and of the ways such bounties subsidized particular forms of property ownership. His work is both eye-opening and provocative.

Anyone who has lived in rural parts of the mountainous west has witnessed the phenomena of a line of cars pulled onto the shoulder of the road, with excited occupants craning their necks or pulling out cameras to capture the sight of a wild animal walking nearby. Usually such sightings are limited to moose, elk, or bighorn sheep, but occasionally one can see a coyote, bobcat, or even a wolf. Such animals, joined by mountain lions, foxes, lynxes, and jaguars, among others, today are celebrated, painted onto the tail fin of Frontier Airlines’ planes, and often legally protected.

The central insight animating Property in Wolves is that state bounty practices incentivized property owners to engage in particular uses of property. To some, the title may suggest that the article is another contribution into the large literature on animal capture and the “poor reynard” of Pierson v. Post fame. To the contrary, Professor Whiteley’s focus is broader than individual capture.

The article’s lens is trained on state-supported efforts to eradicate wild animals. As Professor Whiteley explains, “[b]eginning in colonial America and ending in the middle of the twentieth century, state legislatures set bounties on wolves and other animals they deemed ‘noxious,’ a category which included most large predatory mammals.” (P. 618.) The rise in environmental awareness changed things starting in the 1970s, as the country moved from hunting to protecting many of these now endangered wild animals.

Focusing on wolves in particular, Professor Whiteley lays out some of the explanations given for the change in attitude towards such animals. (Pp. 630-32.) But even as late as 1970, “twenty states still had laws offering bounties on wolves.” (P. 630.) As Property in Wolves shows, over several centuries, the country engaged in a sustained, state-subsidized, effort to deal with the threat, primarily to domesticated animals, posed by wolves and other wild animals.

State bounty statutes were grounded on the need to protect livestock—sheep and cattle—and, later, wild game, from wolf predation. Readers interested in the details of these programs will appreciate Professor Whiteley’s rich discussion of the ways states responded to the possibility of fraudulent claims by, among other things, cutting off the ears of pelts and requiring disposal of the bodies of animals submitted by hunters for payment. (Pp. 644-49.)

As the article observes, “[b]y creating incentives to extirpate particular wild animals in order to spur livestock raising, [bounty statutes] subsidized livestock over other uses.” (P. 652.) Ranchers not only got the direct advantage of payment of such bounties coming out of the public purse, rather than being a cost borne by affected ranchers, but they also made other, more profitable, uses of the land from which such wild animals were removed. (Pp. 653-57.)

To a considerable extent, the bounty statutes accomplished their goals. In Montana alone, 80,000 bounty payments for wolf carcasses were paid over four decades, and the eastern cougar was entirely killed off. (P. 658.) Agriculture and livestock, aided by these bounties as well as technological improvements such as barbed wire and railroad transportation, spread across the continent, eating away at former forestland. Professor Whiteley tells the story of these bounties in a way that draws the reader in and that shows the heavy roll of the state in “taming” the wilderness.

For property professors, the article’s final section, in which Professor Whiteley ties his presentation of bounty history to Professor Robert Ellickson’s theory of how property rights regimes emerge, is probably the most provocative part. After presenting Professor Ellickson’s account, which emphasizes the importance of group cohesion and the privatization of ownership as risks of ownership diminish, Property in Wolves makes a fairly big claim. “The theory suggests that bounty statutes on predatory animals encouraged not just specific uses of land, but the development of private property in land itself.” (P. 663.)

Even for readers not fully convinced by either the theory or its application to bounty statutes (couldn’t diminished numbers of predators be used to explain the continued prevalence of federal lands in the West rather than providing an explanation for privatization), there is still a lot of value in having to think through how bounty statutes altered land use patterns as the nation expanded. Professor Whiteley does a good job responding to alternative theories regarding the impact of these statutes on property development. More importantly though, the article highlights the difficulty of conceptualizing this history absent such state subsidies for agriculture.

Overall, Property in Wolves tells a fascinating story that forces readers to recognize the myriad ways—including through wilderness bounties—that state policies shape property norms and property formation.

Cite as: Ezra Rosser, Bounties for Animal Eradication as a Private Property Subsidy, JOTWELL (October 20, 2023) (reviewing Jack H.L. Whiteley, Property in Wolves, 108 Cornell L. Rev. 617 (2023)), https://property.jotwell.com/bounties-for-animal-eradication-as-a-private-property-subsidy/.

A Different Kind of Landlord

Brandon M. Weiss, Corporate Consolidation of Rental Housing & The Case for National Rent Stabilization, 101 Wash. U. L.R. __ (forthcoming, 2023), available at SSRN (May 27, 2023).

Professor Brandon Weiss in his article, Corporate Consolidation of Rental Housing & The Case for National Rent Stabilization, posits that the increasing ownership of rental units by corporate landlords will only worsen an uncertain rental market, with more tenants threatened with eviction or living in poor quality units.   As one policy option, he argues for federal incentives to promote the passage of rent stabilization laws.

When signing a lease, a tenant may initially believe that a landlord is a landlord – that it does not matter whether the rental unit is owned by an individual or by a corporate entity.  The rent must be paid regardless of who is receiving it.  However, that perception may not be accurate.  Corporate landlords may more often seek to defer maintenance, raise the rent, or evict tenants.

Corporate ownership of rental housing is nothing new, particularly the ownership of large properties.  According to Weiss, what is changing is the increasing ownership of single-family home rentals by institutional investors and hedge funds.

While the tenant may believe a landlord is a landlord, Weiss presents evidence that the corporate owner of rental homes is “a different kind of landlord.” The corporate owner has economic incentives and priorities, such as returns to investors, which often lead to cost-saving measures, ultimately resulting in tactics such as deferred maintenance and rent increases.

Weiss highlights another issue – how modern ownership forms are altering the landlord/tenant relationship.  For example, the use of LLCs as a form of property ownership can make it difficult for tenants to identify their landlords.  Landlords may be able to maintain some degree of anonymity and avoid accountability for their actions that affect tenants individually and the housing market more broadly.

Real estate investment trusts also can make it difficult to hold landlords accountable.  With REITs, the rental unit could be owned by numerous investors who will never manage the property themselves.

According to Weiss, the increasing ownership of rental units by corporate landlords, many with rental projects in multiple states and evidence of their adverse actions towards tenants are reasons for federal government intervention.  The particular intervention that he argues for is federal incentives for state and local governments to enact rent stabilization laws.

He notes that the federal government has played a role in housing markets through federal laws such as the Fair Housing Act and the Community Reinvestment Act as well as through the statutes and regulations governing subsidized housing.  Thus, federal action on rent regulation would not be unprecedented.

Weiss briefly reviews some of the critiques of rent stabilization.  Landlords may argue that the state has no right to limit their property rights.  States may incur costs when implementing the laws, such as setting up rent assessment boards.

He responds to the critiques and to the discussion of increasing corporate ownership of rental units.  Weiss contends that “if reasonable limits on rent increases or evictions deter some prospective new landlords, those measures can serve as a filter to limit entry into a market in which an investor is also a steward of the home of another.” Id. At 21.

The phrase “a steward of the home of another” encapsulates the fundamental concern that Weiss raises in this essay.  The individual landlord, the corporate landlord, the investor landlord: all are stewards of the home of another.  However, if the increasing number of corporate and investor landlords is leading to greater housing insecurity for tenants, then federal, state, and local governments must respond to this “different kind of landlord,” that is by nature a different kind of steward.

Weiss has presented one policy response by arguing for rent stabilization laws and for federal incentives to state and local governments to enact such laws.  However, the first step may be to convince federal, state, and local governments of the challenges to the rental housing market that arise from landowners using modern ownership forms to become landlords.

Cite as: Serena Williams, A Different Kind of Landlord, JOTWELL (September 26, 2023) (reviewing Brandon M. Weiss, Corporate Consolidation of Rental Housing & The Case for National Rent Stabilization, 101 Wash. U. L.R. __ (forthcoming, 2023), available at SSRN (May 27, 2023)), https://property.jotwell.com/a-different-kind-of-landlord/.

Rurality for All: Reconceptualizing America

Ann Eisenberg, Rural America as a Commons, 57 Univ. of Richmond L. Rev. 769 (2023).

Today’s dominant narratives of American advancement present urbanization as progress and rural America as a wasteland. The misconception of rural decay helps rationalize rampant labor and resource exploitation and slows the nation’s ability to respond to national challenges including climate change, housing inequality, and finite natural resources.

In Rural America as a Commons, Ann Eisenberg advocates reconceptualizing rural America as a common resource (“the commons”), belonging to everyone in America, including the urban majority. She adeptly centers key questions at the heart of this contentious relationship: Does rural distress warrant urban intervention and why should urbanites care?

Eisenberg defines the commons broadly as a collectively important resource that is both consumed in some fashion as well as challenged by competing users. This characterization implies that competing users must account for different levels of proximity to, embeddedness in, entitlement to, cost-bearing for, and stewardship of the commons. Thus, collective reliance on rural America’s rich resources and labor force necessitates shared responsibility.

Eisenberg highlights the role of centuries of legal policies in perpetuating the continued misuse and neglect of rural America. She offers property law, agricultural policy, and environmental regulations as examples of “culprit[s]” that facilitate the private sector’s hoarding, abuse, and waste of the commons.

For example, agriculture and agricultural land can be considered a rural amenity with collective import. Agricultural policies directly influence public health and have contributed to obesity, “toxic food culture,” and food insecurity across the entire country. Similarly, the agricultural system yields far-reaching consequences for climate change, the economy, pollution, and water waste. Despite the immeasurable scope of influence, the legal system has permitted private interests to co-opt the agricultural system to pursue private benefit as opposed to the public good.

Rethinking rural America as a commons can promote better governance practices by offering guidance to help redistribute the social and financial burdens of caring for the commons. The commons frame upends the often adversarial characterization of the rural/urban divide, situating these two sides instead as neighbors in the shared project of survival, not as competitors.

Eisenberg interrogates how rural America and its resources affirm both rural significance and urban entitlement. She situates the urban relationship to rural resources as firmly interdependent and simultaneously suffering from collective abuses enabled by law and legal policies.

In doing so, she reassigns the significance of caring for the commons to all who benefit from it. She posits that rural America has collective amenities that transcend regional uses. These amenities, including agriculture, energy, and infrastructure, reveal the symbiotic, yet paradoxically invisible, reliance of the urban on the rural.

Eisenberg illustrates the connectedness between urban and rural America with two other major rural resources: energy production and infrastructure. These resources take on all the more significance in light of the impending climate catastrophe arising from the depletion and disregard of rural amenities. Rural America bears the environmental brunt of extractive industries with minimal local, state, or federal legislative support.

The failure of state or federal actors to protect rural amenities has cosigned their quickly coming devastation, a reality that implicates urban regions just as significantly as rural regions. Unless urbanites mobilize to assist, the commons faces continued destruction.

Eisenberg cautions against the urban majority seeking to govern the rural commons without centering rural needs and their proximity to the amenities being stewarded. She affirms that governance is not a matter of lordship over resources for either side. Rather, she advocates reconciling these competing relationships and interests by affirming urban entitlement to the rural commons. But in the context of this entitlement, importantly, the urban bears responsibility for the rural.

Ultimately, Eisenberg’s work is forward-thinking and necessary. A time is coming when climate change may make middle America a more desirable place to live than coastal cities, which are expected to experience more extreme weather patterns and the consequences of sea level rise. Rural America is situated to be central to renewable energy efforts, which necessitate sound governance. Without robust and competent governing frameworks, private interests will prioritize their financial interests.

Eisenberg’s work reflects a truth too many resist, especially in this era of heightened geographic polarization: urban and rural are more connected than we perceive. While the essay dives into some detail on the legal regulation of rural resources, ultimately, Eisenberg’s message is simple. We must learn to care about each other. We must learn to care for each other. Our collective survival depends on it.

Cite as: Geovanna Medel, Rurality for All: Reconceptualizing America, JOTWELL (August 31, 2023) (reviewing Ann Eisenberg, Rural America as a Commons, 57 Univ. of Richmond L. Rev. 769 (2023)), https://property.jotwell.com/rurality-for-all-reconceptualizing-america/.

Can Property Law Protect Indigenous Sacred Sites?

Patrick E. Reidy, C.S.C., Sacred Easements, __ Va. L. Rev. __ (forthcoming), available at SSRN (June 26, 2023).

Patrick Reidy’s forthcoming article, Sacred Easements, explores whether private law—and in particular the law of property, rather than public law, might provide a more effective means of protecting indigenous sacred sites. In particular, he explores whether tribes employ the law of servitudes—specifically easements—and common law rules respecting custom to secure access to (and protection) of their sacred sites.

Native Americans’ efforts to employ the traditional public law tools of religious liberty protection—for example, the First Amendment’s Free Exercise Clause, the Religious Freedom Restoration Act,1 and the Religious Land Use and Institutionalized Persons Act2—to shield their sacred sites from desecration usually fall short.3

In a sense this is understandable. Usually, the property where the sacred sites are located does not belong to the tribes or tribal members seeking the protection. Indeed, often these sites are on government land. And, as the Supreme Court observed in Lyng v. Northwest Indian Cemetery Protective Association, “The Constitution does not, and courts cannot, offer to reconcile the various competing demands on government, many of them rooted in sincere religious belief.”4

In another sense, however, this reality is deeply unjust: After all, the reasons that the tribes do not have an ownership interest in (even right to access) this land is that they, and their ancestors, were forcibly dispossessed of their property, including their sacred sites.

Reidy’s article offers an outside-the-box, partial solution to this problem.

As students of property law know, easements are nonpossessory interests that allow the holder to use (but not possess) property. Easements can be created expressly, and usually are. But they also can arise by force of law: Prescriptive easements, for example, arise from uninterrupted, non-permissive use of property.

And implied easements arise, under certain circumstances, when a single parcel of property is severed. For example, if an owner has historically used one part of their property to access another, say via an established path or road, then the law assumes that the prior use was a “quasi-easement” that transforms into an easement by implication if the property is divided. If the division of the property “landlocks” an owner, preventing her from accessing her property altogether, then an easement by necessity may arise by force of law.5

In certain circumstances, courts have also recognized that uninterrupted customary use can create an easement-like right of access as well.6 As Reidy observes, “Before the federal government severed their ancestral lands—by force, sale, or broken treaty—tribes used certain, inherently sacred parts of their territory, regularly and necessarily, to benefit other parts of that territory. Insofar as these historic land uses may be conceived as quasi-easements, property law affirms the possibility of use rights in sacred sites, a kind of ‘sacred easement’ over government land.”

This is not entirely without precedent. As he observes, many treaties divesting tribes of their possessory interests in property reserved their rights to access certain natural resources even after their right to possession ended.7

Reidy’s insight is that the dispossession of Native American lands—including especially lands upon which sacred sites are located—might have created circumstances under which an easement arises by force of law. In this case, the claim that the access-rights that tribes would be asserting would not be the right to use someone else’s land but instead the right to exercise their ownership interest in that land.

If he’s right, then tribes asserting access rights would be asserting their own access rights, rather than asking a court to balance their interest in access against an encroachment or infringement on another owner’s right to exclude. If a tribe has an easement, the owner of the property burdened by the easement does not have the right to exclude them.

Reidy further argues that, even when resort to the private law of easements is impossible, Congress can, and should, create a statutory property right for tribes to claim an explicit ownership interest in their sacred sites, corresponding to their sacred land use. Modeled on conservation easements, these interests would preserve sacred sites for Native American religious practice, giving the tribes granted “sacred easements” the ability to monitor, and constrain, if necessary, both present and future uses of government-owned lands, ensuring compliance with the needs of their religious practice without barring public access to sacred sites.

Of course, as Reidy acknowledges, the common law of easements is limited in a variety of ways. For example, prescriptive easements over government land are typically impermissible; easements have a “scope” that is limited, perhaps too limited to provide in many cases sufficient protection of indigenous religious practices; and, importantly, easements can be abandoned by disuse – and many tribes were dispossessed well over a century ago. And, while, as he argues, Congress could step in to fill the gaps, there is no reason to expect that it will, given political realities.

That said, Reidy’s suggestion that the traditional tools of property law can and should be employed to advance the religious liberty rights of indigenous peoples is both thought provoking and, in my view, groundbreaking.

Private law and public law schools far too often talk past one another, or do not talk at all. While Reidy’s solution to the dispossession of indigenous sacred sites is only a partial one, his effort to bridge the two worlds to address what we can all acknowledge was a deep injustice and a shameful remnant of our nation’s history ought to be welcomed and embraced by private and public law scholars alike.

  1. 42 U.S.C. §§ 2000bb-2000bb-4 (2018).
  2. 42 U.S.C. §§ 2000cc-2000cc-5 (2018).
  3. See generally Stephanie Hall Barclay & Michalyn Steele, Rethinking Protections for Indigenous Sacred Sites, 134 Harv. L. Rev. 1294 (2021).
  4. 485 U.S. 439, 452-53 (1988).
  5. See Thomas Merrill & Henry Smith, Property: Principles and Policies 979-1005 (3rd Ed. 2017).
  6. State ex rel Thornton v. Hay, 462 P.2d 671 (Or. 1969).
  7. See United States v. Winans, 198 U.S. 371, 380-81 (1905).
Cite as: Nicole Stelle Garnett, Can Property Law Protect Indigenous Sacred Sites?, JOTWELL (July 24, 2023) (reviewing Patrick E. Reidy, C.S.C., Sacred Easements, __ Va. L. Rev. __ (forthcoming), available at SSRN (June 26, 2023)), https://property.jotwell.com/can-property-law-protect-indigenous-sacred-sites/.

What Property Makes Us

Timothy M. Mulvaney and Joseph William Singer, Essential Property, 107 Minn. L Rev. 101 (2022).

Society is impossible without inequality.
–Napoleon Bonaparte, Emperor of the French

Is it personal choice or the society in which we live that creates unequal distributions of wealth? In Essential Property, Timothy M. Mulvaney and Joseph William Singer agree with the Emperor of the French: the source of inequality lies in the state, or, more precisely, its laws, including private property.

This observation confirms an intuitive sense that in its very essence, private property is both inequality and, that fact notwithstanding, it is not soon to disappear. Too much depends on it. And, frankly, not only is it deeply ingrained in our liberal world, but also very possibly in our DNA. While eliminating private property’s inequality might be impossible, Mulvaney and Singer argue that we can look for ways to reconfigure it so as to reduce its unequal distributions.

Mulvaney and Singer suggest that inequality results from four key facts: (i) human vulnerability resides in our basic needs; (ii) fulfilling basic needs requires resources sufficient to meet the necessities of human life—including housing, food, medical care, childcare, and educational training; (iii) these necessities are provided by others; and (iv) for many of us, our wealth is either insufficient, or entirely absent, making it difficult or impossible to acquire from others these necessities.

The result? A “mismatch between property resources—which consist of both incomes and wealth-creating opportunities—and the expense of securing what is essential to living a dignified and comfortable life.” (P. 607.)

Those of us who come out on the short end of the mismatch are told: get a job and work hard. In other words, inequality is entirely due to personal choice. Mulvaney and Singer name and shame this tired trope for the fantasy it is, albeit deeply ingrained “because [people] have been repeatedly told it is so. Those who are the purveyors of this myth have gone to a lot of effort to make us believe that ‘the system works’ and that opportunity is there for the taking.” (P. 654.)

The real culprit, of course, resides in the structure of private property itself, which allows those with capital the freedom to generate more, which includes deciding how much property to give to employees as wages. By restricting such freedom, “the owner has no guarantee of being able to manufacture any profit, let alone to maximize profits.” (P. 624.) Mulvaney and Singer thus confirm that what Marx wrote in the first volume of Capital almost 200 years ago is still true today.

Law facilitates the capitalist’s wealth maximization in two ways. First, by attempting to reduce regulation that constrains profit maximization. Second, by reliance on freedom of contract—that “the state…should not limit the subjects on which private parties can voluntarily contract, regulate the terms of any contracts, or establish conditions for the development of contractual relations in the marketplace.” (P. 626.) Both rely upon the pseudo-moral rationale that “through a combination of talent and hard work—or the lack of one or both—people on all sides of the inequality divide deserve their fate.” (P. 627.)

In a legal-realist inspired response, Mulvaney and Singer argue that it is not the market, but the system of property that allocates land and capital, and that those allocations allow the capitalist to exercise power over employees by undervaluing and expropriating their labour. Correction requires “structural reconfigurations that shape the economic and social relations that connect and constitute us…emphasiz[ing] solidarity and mutual obligation.” (P. 637.)

It is not beyond a liberal democratic system to do this. Writing about the United States, Mulvaney and Singer conclude that “we have engaged in this type of reform by reallocating and redefining property rights to outlaw relationships characterized by the likes of feudalism, oligarchism, aristocratism, enslavement, and apartheid.” (P. 638.) Their reconfigurations can do the same to relationships characterized by economic oppression and exploitation.

Four principles of justice must underpin the reconfiguration of property. First, circumstance sensitivity asks us to pay attention to how things are rather than how we imagine them to be. Second, an antidiscrimination norm that treats people with equal dignity will focus our attention on whether real conditions are acceptable as a matter of social justice. Third, we must create a realistic opportunity to “ensure that it is readily possible for [people] to earn a dignified living.” (P. 647.)

And, finally, because living together means our lives are intertwined, the traditional law of property and contract cannot, on their own, match incomes and wealth to a dignified life’s expenses. Doctrinal components of law—“property-adjacent laws and institutional structures”—cannot be seen in isolation; rather, matching income and necessities requires looking at the full range of laws and their interaction.

All property theory, of course, faces the difficulty of justification. Whatever property might do by way of good, in the end, it must always result in an unequal outcome. Some will have more, and some less. If that were not so, we would have no need of property. Everyone would agree with the allocation of goods and resources, whatever it was, without the need to resort to a concept and system of property that would explain—read “justify”—that outcome.

So, if one were to take issue with Mulvaney and Singer at all, it would be to ask how a system that allows for the continued peddling of the “you make your own way, so get a job and work hard” fantasy to the great detriment of so many people can be justified at all, even if it is reconfigured using the suggested justice principles. While Essential Property makes a deeply significant contribution to the scholarship on property theory, Mulvaney and Singer never tackle justification head on.

Nonetheless, because private property is, as I said at the outset, here to stay, we must agree with Mulvaney and Singer that “it becomes incumbent upon us to adopt norms to guide reshaping [private property’s] rules to ensure that every person has access to essential property.” (P. 653.) This piece contains essential reading, for it reveals what private property makes us—unequal—and how we can change.

Cite as: P. T. Babie, What Property Makes Us, JOTWELL (June 16, 2023) (reviewing Timothy M. Mulvaney and Joseph William Singer, Essential Property, 107 Minn. L Rev. 101 (2022)), https://property.jotwell.com/what-property-makes-us/.

Land Value Capture in the Modern Context

Professor Gerald Korngold has written a useful, thorough, and persuasive argument for the expanded use of land value capture, or LVC. His report is published by the Lincoln Institute of Land Policy, an organization that has long supported the economic work of Henry George.

George argued that real estate investors should profit from the fruits of their own labors but not those of the community. This means that these investors may benefit from the increased value of their improvements and additions to the land but not from land appreciation brought about by external factors. Increases in land value caused by the community should be recaptured by the community.

In the opening section of the report, Professor Korngold defines his terms, noting that “LVC enables communities to recover and reinvest land value increases resulting from public investment and other government actions.” (P. 6.)

For example, if a municipality constructs a subway station that causes neighboring property values to rise, owners should share some of that unearned gain with the public, thereby allowing the community to make further infrastructure investments. More controversially, a community might take a similar approach to regulatory changes that enhance property values, such as upzonings that permit greater density.

Subsequent chapters of the report systematically examine a range of LVC tools. Those arising from infrastructure investments include exactions, impact fees, linkage fees, special assessments, and mandates for inclusionary housing. Landowners who benefit from a municipal project might be required to transfer some of the unearned gain back to the community that paid for these boosts in value.

When regulatory changes benefit an owner, by contrast, the municipality might demand contributions of infrastructure or cash in exchange. For example, an urban owner that receives permission to build above otherwise applicable height limits might be required to fund improvements to a nearby subway station that will be burdened by the increased traffic the enlarged building will attract or might be required to build those improvements itself.

In either case, the community provides a tangible benefit to the landowner that increases the value of the owner’s land, and the owner must reciprocate at least partially. Outcomes such as these are both efficient and fair, as they expand overall land value while internalizing economic externalities. They also provide another funding option for stressed municipalities that desperately need infrastructure enhancements.

There are, of course, impediments and counterarguments. LVC must be permitted by applicable enabling legislation, and some states flat-out prohibit one or more of these devices. LVC can cause cash-flow problems for owners whose increased land value leads to imposition of a tax or other mandatory payment, as they may not have the cash on hand to pay for the augmented value of their land. There are line-drawing problems: How close to the subway station must a lot be for it to be included within the class of beneficiaries? There are also valuation problems, such as how to appraise a required donation of open space for use by the public.

Some landowners view LVC as contrary to their property rights. Several LVC devices raise regulatory takings issues, not all of which have been addressed by the Supreme Court.

Moreover, once LVC contributions arrive, how should they be spent? These payments might be used to benefit the neighborhood immediately surrounding the project, the residents of which may be enduring in-kind costs such as increased density or traffic. Alternatively, the funds might be spent more broadly to enhance equity throughout the community.

Perhaps most important is the question of who should make these decisions. Many land use bodies are subject to capture by real estate interests. Historically under-represented groups may not have a seat at the table when these difficult choices are being debated.

Professor Korngold makes a compelling case for the expanded use of LVC. There are ever-increasing needs for infrastructure. The more the country urbanizes, the greater the demand and need for amenities. As incomes grow, residents expect higher levels of service from their communities. In addition, the expansion of regulations such as environmental laws leads to the need for upgrades.

He notes that ad valorem property taxes indirectly import some aspects of LVC. As a new public project increases land values nearby, assessed valuations increase in tandem, and the owner’s taxes rise as well. But property tax increases are capped in many jurisdictions, in some instances as a direct response to past tax increases that resulted from infrastructure upgrades. “Some would argue that LVC charges for benefited properties should be distinct from the property tax and instead become analogous to a fund for initial capital investments. The property tax could then be used for ongoing operational municipal expenses.” (P. 10.)

One question the work does not directly address is the extent to which it might be wise to mitigate LVC concepts in some circumstances to enhance housing affordability (though it does discuss the use of funds raised in this way to build lower-cost housing elsewhere). The internalization of externalities causes homebuyers to bear the full cost of their homes. This may seem fair – you should pay for what you use – but it elevates housing costs. When might a community forego this type of internalization to reduce home prices?

Whatever the benefits of LVC, perhaps it needs to be balanced against other considerations in cases like these. Professor Korngold makes a compelling case for the wider use of LVC; perhaps a longer work might also examine which settings are best suited to these wider uses.

While this scholarly work is billed as a “Policy Focus Report,” it reads like a law review article. It is thoroughly researched, informative, well-documented, persuasive, and enjoyable to read.

It does differ from a traditional journal article in one regard, though, namely the manner in which it is presented. This report is published in full color, with photographs, drawings, graphs, and tables deployed throughout to illustrate key points. It is laid out in two columns, is broken into small sections, and makes ample use of sidebar comments. All of these features make it far easier to read than the typical journal article and, in many ways, more useful. (Law review editors and online database services, take note!) It thus pairs the academic features of a journal article with the readability of lighter material.

Professor Korngold’s Policy Focus Report is a valuable and thought-provoking addition to the literature. It addresses an old and useful device that might be used more frequently to solve several related municipal problems. To the extent that local leaders are already using this device, Professor Korngold’s report encourages them to expand that use. To the extent that they are not, it inspires them to consider it and to urge state legislatures to allow them to use it more frequently.

Cite as: Gregory M. Stein, Land Value Capture in the Modern Context, JOTWELL (May 17, 2023) (reviewing Gerald Korngold, Land Value Capture in the United States: Funding Infrastructure and Local Government Services (2022)), https://property.jotwell.com/land-value-capture-in-the-modern-context/.