Expert answer:Property rights based on characteristics of divisi
Answer & Explanation:Recall that land use policy may be divided into four categories of property rights based on characteristics of divisibility and excludability as visually represented here:
Private property rights fall into the category of private goods (high divisibility and high excludability). However, as we have seen, most of the public controls
placed on land use (like zoning and regualtions prohibiting/limiting
development) are meant to deal with environmental problems that fall
within the common pool resource category of property
rights (low excludability with high divisibility). For example,
government prohibitions on development along coastal areas to protect
against sea level rise brought on by climate change is one use of land
that might result in regulatory takings claims. Considering the
issue of land use regulation from this property rights characteristic
perspective, please answer the following question:
How
might we go about reconcilling the need to control private land rights
in a way that might best avoid a substantial interference on those
rights? For example, can we think about the different property rights
characteristics described above and consider alternative
ways of defining property rights in order to meet environmental
objectives? Please share your thoughts on this difficult question that
crosses the boundaries of land use law and land use policy.lecture_8_landuse_privatecontrols.pdflecture_9_landuse_publiccontrols.pdf
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lecture_8_landuse_privatecontrols.pdf
lecture_9_landuse_publiccontrols.pdf
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DEPARTMENT OF PUBLIC POLICY
POL 661: Environmental Law
Lecture 8:
Land Use: Introduction and Private Controls
Introduction
Possibly one of the most important concepts in the modern era of human civilization is
the idea of private land ownership. If we consider democratic ideals as the distribution
of societal rights and responsibilities across an entire population within a social
institution, then we may begin to see the importance of property rights as they relate to
a fundamental resource: land. Recall our presumption about the relationship between the
environment, society, and economy reproduced here:
The environment sets the outer limits of our societal and economic prosperity under this
presumed relationship, and for purposes of our discussion of land use over the next two
modules, we can include our concept of land within the category of “environment” in
the figure. Thus, conceptually, we begin to see land as a constraining factor for our
societal development and economic prosperity. Because land becomes a constraining
factor, we are concerned with how land is utilized. The utilization of land is further
complicated by the concept of private property rights mentioned above; through the
distribution of land rights to private citizens (achieving a democratic ideal) there is the
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potential for competing uses of that land to arise. Consider the Boomer case in the
pollution section as one example. The cement factory and adjacent private landowners
were both owners of private property (“real property”) who ended up having competing
uses of their properties; the cement factory desired to use its property to manufacture
cement, while the private landowners desired to use their property for residential
purposes. The uses became competing (rival) when the full enjoyment of one use
(residential use) was frustrated by the full enjoyment of the other use (manufacturing
cement). When competing uses create conflict between landowners, there is a need for
intervention. Some, like Coase, might argue the best form of government intervention
is limited use of the court system to enforce well-defined property right; thus, the role of
government in such cases is to ensure property rights are established between the parties,
and then to offer a mechanism (courts) to resolve conflicts between the private parties.
Otherwise the private parties are in the best position to negotiate the superior use of the
adjacent properties between themselves.1
The alternative to a private negotiation of land use is for some kind of government
intervention, where government proactively creates rules that restrict what one can do
on their property and engaged in enforcement of those rules. In the next two modules we
will be reviewing both private and public controls on land use. This module will focus
on private controls (via common law), while the next section will focus on public
controls (via statutory law).2 However, prior to getting into the private and public
controls in detail, an overview of land use will be provided focusing on the relationship
between the distribution of rights between private citizens in land ownership and the
way in which property right characteristics can create situations that require
government intervention and thus forms the basis of environmental controls of land.
1
Using the Boomer example, Coase might argue the cement manufacturer and
homeowners were in the best position to negotiate an agreement between them based on
the relative values at-stake. For example, the residential property owners, if they
collectively valued the ‘residential’ nature of their properties more than the value created
by the cement factory, might pay for the cessation of the cement operation or (for a lesser
cost) pay for a technology that removes the dust from the air as part of the manufacturing
process (if such technology existed). Alternatively, the cement company might make an
offer to the homeowners to purchase their land outright as a way of mitigating impacts of
its manufacturing process on the surrounding area (at least the humans in the area). Or the
cement company and homeowners might come up with a solution similar to the one
identified by the court in the case; the cement company pays the homeowners for the
value of the disruption from the manufacturing operations. Once an agreement was
reached (like a contract) the government institution (the court) would only be called upon
to enforce the agreement if one of the parties breached their terms of the privately
negotiated agreement.
2
We should have a clear understanding of the difference between common law and
statutory law based on the previous modules dealing with pollution control.
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Land Use Overview
The introduction immediate above indicated that the distribution of ownership rights to
land is an important part of a democratic ideal. Thus, in the United States, we see that the
majority of the land is held privately, meaning ownership rights are distributed to private
entities (individuals, companies, trusts, etc.). With so many different ‘owners’ of land, it
is entire possible that conflicts in the way land is used will occur (as the Boomer and
Spur cases attest to). The question that is at the heart of environmental law regarding
conflicts in land use is how to best manage these conflicts? Categorically we will be
looking at the role of private controls later in this module, and then reviewing public
controls in the next module. Well, the fact that the law allows for both private and public
controls suggests there is no superior method of resolving conflict, at least amongst these
two categories. However, to better understand how these conflicts arise, particularly in
the environmental context, we can take a moment to think about property rights in
general and how different forms of property rights can lead to environmental problems (a
particular kind of conflict).
Recall earlier in this course we mentioned property right characteristics in trying to
understand how environmental problems arise, at least in terms of human-created
environmental issues. A visual categorization of property rights was offered based on two
characteristics: excludability and divisibility. The visual representation of these
categories is recreated here:
We can see from the figure that private land is categorized as a private good (yellow)
and thus contains the characteristics of high excludability and high divisibility. This
means that private land is divisible; once a piece of land is divided and made private, it is
not available simultaneously for some other use.3 This also means that private land is
3
An example might be the property owned for cement manufacturing purposes. Once the
property is put to this use, it cannot also be placed into another use at the same time.
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excludable; an entity owning private land has the right to exclude others from that land.4
These characteristics are important because they help us understand the property rights
at-stake in the regulation of land.5
Now that we have an understanding of how private land is categorized as a property
right, we can think about the need for regulation through conflicts in land use. Consider
that conflict in land use itself is directly related to the diffuse nature of land ownership;
lots of different people with different interests hold title to land and want to use that land
for different purposes. Land use regulation would be so much easier if all land was
owned by a single entity like the government; the government could choose the best
overall uses of land, divide the land into these different uses, and through this process
automatically manage the expectations of the rest of us as we ‘use’ the land (through
renting, leasing, or some other method of acceptable use). In many ways, the public
controls that are used on land like fundamental zoning regulations are a means by which
this large scale planning occurs; government divides inconsistent uses of land into zones
(say separating manufacturing and industrial uses from residential uses). Private entities
then purchase land subject to those generalized restrictions, limiting how that land can
be used.6
(This is not to suggest multiuse developments do not exist, they do. Rather, this is meant
to highlight land is not like gravity, where my use of gravity does not reduce your ability
to use gravity; this is the kind of ‘divisibility’ being explained here.
4
In American property law, the right to exclude others is seen as one of the most
fundamental rights of real property that exists. If we think about it, the right to exclude
others at your discretion is probably one of the most important reasons private property is
valued; it is a primary reason people pay the money they do to own real estate.
5
In addition, we might see how these property rights interact with other property
characteristics to create environmental problems. For example, in Boomer the basis of
the nuisance claim was the interference with the use and enjoyment of private property,
not the actual invasion (trespass for example) of some other person’s private property
right. Indeed, the medium for the invasion was the air in Boomer; the air brought the
cement dust over to the residential properties from the cement factory. And why did the
cement factory not care about ‘dirtying’ the air? Consider that no one owned the air and
thus the private rights (and benefits) that go along with ownership do not accrue to
anyone. Thus, the air (as a common pool resource based on our categorization figure
above – the blue rectangle) allows for one to externalize costs they would otherwise bear
by moving the dust away from the factory (private property) using the air (common
property) as a transport mechanism.
6
In ideal situations, this kind of public zoning can prevent situations like Boomer from
occurring, where the close proximity between inconsistent uses (industrial and
residential) allowed for the nuisance to develop. By moving inconsistent uses further
apart, the objectives of creating some consistency in uses (at least within zones) helps to
ensure an efficient utilization of land. (Of course, Coase might argue government
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While public controls do work in some ways as a planning instrument, they are far from
comprehensive. In addition, there are significant limitations on government’s ability to
comprehensively control private land use. The source of that limitation is the Fifth
Amendment of the United States Constitution, which in relevant part prohibits the
government from taking private property without meeting two requirements: (1) the
taking must be for a public purpose; and (2) the government must pay just compensation
(generally fair market value of the property at the time of the taking).7 The Fifth
Amendment prohibition applies not only to physical occupations (where the government
intends to physically occupy a property), but also to regulations (prohibitions on certain
activities like development of undeveloped private land) that have the legal effect of
‘taking’ private property.8 We will discuss the limitations on public controls, including
takings analysis, in greater detail in the next module. However, to help make the point
about the limitations of government in public land use planning, consider the following
figure:
The figure represents a spectrum where on the left side (in red) the Fifth Amendment
prohibition against a taking of private property exists. On the far right (in green) the
‘planning’ like this likely does not lead to the most efficient distribution of land uses; the
open market is a better means of determining superior distribution of uses between
properties over time.)
7
Remember our hierarchy of laws here. The government attempts to control land use
through public zoning measures, which would be at the “Laws” level of the hierarchy;
while the Fifth Amendment is at the “Constitution” level, meaning any public zoning
measure that met the requirements of a taking under the Fifth Amendment would be
deemed unconstitutional.
8
While specific public zoning measures are considered “Laws” in our hierarchy, the
source of power to regulate land by government is found in the Tenth Amendment of the
U.S. Constitution, sometimes referred to as the police power of the states.
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Tenth Amendment power of the state government to enact police power regulations
exists. The question raised here is when a government regulation of private land goes so
far as to result in a regulatory taking of the private property right? As noted in the figure,
there are instances where the government action is an obvious taking (far left in red) and
also instances where the government action is well supported under its police powers to
regulate for the health, safety, and welfare of the citizenry (far right in green). Then there
is the middle (yellow box) where the government action might either be considered a
taking of private rights or as a valid expression of government police power. We look to
judicial opinions and precedent (case law) in order to know exactly when the facts might
lean in one direction over another. Again, we will explore takings in greater detail in the
next module because the focus is really on public controls of land use.
So we should now be able to see that the idea of a singular owner of real property is not
realistic in our democratic system. What we have then is a diversity of individual
interests in the ownership of land that is regulated for general health and safety by our
governments (federal and state). Even with a good degree of public regulation, there are
still many instances where issues between and among private property owners must be
resolved. There is a rich history of common law doctrines and principles that apply to
land use that are employed by private individuals to manage conflicts and expectations
between landowners. Collectively these private land use controls are the focus of the
remainder of these lecture materials. As you consider the different private instruments
available to regulate land, think about their role in meeting environmental policy goals
generally, in a similar way as we contemplated private controls of pollution. What you
may find, similar to what we discovered in the pollution section, is that private controls
are helpful in managing the expectations between individuals and small groups.
However, such controls may lack the kinds of comprehensive impact that we may look
for when thinking about land use controls on larger scales, particularly scales that match
our objectives from an environmental perspective. Still, you may find that private
instruments are useful tools to fill in gaps that may exist in larger public land use
controls. In some cases these private instruments can be powerful in balancing the equity
principles of land use owners in order to provide outcomes that meet multiple criteria
objectives (both environmental concerns and individual property rights).
Private Controls of Land
There are a number of private controls that can be applied to land. From a policy
standpoint we can consider the benefits of private control mechanisms. For example,
private controls are generally voluntary in nature, meaning they are agreed upon between
the private parties (something Coase would deem an efficient means of determining the
superior value of land). In addition, these controls are mainly private, not only in terms
of the parties formulating the agreement, but also in the legal effect of the agreements.
Once an agreement has been established under the principles of law, they act like
contracts between the parties (or subject properties) and are enforceable as such in a
court of law. Finally, these private controls are dynamic, meaning they can be drafted in
ways that accommodate a variety of purposes contemplated between the parties;
agreements for different kinds of access, restrictions, and uses among and between
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private land are all possible under the various instruments described below. Thus, such
agreements offer significant potential in achieving the desires of land use between and
among individuals and groups of property owners. Of course this may also be a signal of
a limitation of private land use controls; while they are capable of adapting to the desires
of landowners, they are equally capable of failing to provide comprehensive and uniform
support for generalized environmental goals. Individual self-interest can often come into
conflict with environmental goals (particularly where the ability to externalize costs onto
others is available). This consequence of private land use control instruments should be
considered as one thinks about the role of these tools in achieving environmental goals.
Nuisance
The first private control discussed in the text is nuisance. We discussed nuisance in
some detail under our exploration of pollution. Remember, a private landowner can
prevent an activity that causes an unreasonable interference with the use and enjoyment
of the landowner’s property. There are many types of activities that can be controlled,
from actual physical invasions of smoke, dust, soot, chemicals (and maybe even water);
to more subtle activities including noise, view obstruction, and sunlight obstruction. If the
activity causing the disruption of a landowner’s use of land is deemed an unreasonable
interference, then a Court will generally issue an injunction preventing the offending
activity. Remember, however, the Boomer case, which stated the Courts generally use a
balancing test, and weigh the benefit of the offending activity against the harm it causes
to the landowner. So, an individual burning leaves on their property is more likely to be
enjoined from the activity than a manufacturing business that causes dust or noise to
invade another person’s property. Why? Because the manufacturing process is likely
considered a higher value than the individual burning leaves when balanced against the
harm being caused.9
Easements
Easements are another form of private control. Easements give a right to one individual
(A) to the use the land of another (B). There are two types of easements: easements
appurtenant and easements-in-gross. (There is a third kind of easement, a prescriptive
easement, which is a special kind we will also discuss). Easements, like all of these
9
We have already discussed at great length the way in which ‘value’ is being expressed
here, specifically the use of direct economic value as the basis for determining the
cement manufacturing is a ‘superior’ use of land in comparison to residential use. (Some
might also argue, contrary to a Lockean theory of land use, that allowing land to remain
open space (undeveloped by humans) is a ‘superior’ use of land because of the
ecological values under consideration. For example, a piece of land that is home to a
number of endangered species (critical habitat) might be important from a biodiversity
standpoint, and depending on how one values biodiversity, its value per unit (acre, etc.)
may be higher than it would be if converted to residential units and sold on the open
market.
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private land use control mechanisms, are based in common law and thus come from a
tradition where land control emanates mainly from the point-of-view of individual
landowner interests; often the larger interests of society and environment are not the basis
upon which the instruments are utilized (although they certainly have been used for
environmental purposes; conservation easements – an agreement to place a land in
preservation status – have been used to help maintain ecological functions and preserve
natural land in many areas).
Easement Appurtenant (EA)
As stated above, an easement gives you a right to use other land …
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