The current economic recession has been the single worst in the United States since the Great Depression. In 2010, 46.2 million people were living at or below the poverty level. As a result of the nation's economic downturn and unemployment rates, there has been an onslaught of municipal decay and abandoned buildings. Nonseasonal vacant properties increased from 7 million in the year 2000 to 10 million in the year 2010. Texas, in particular, experienced a 41% to 50% increase in the number of vacant properties in its cities. Public nuisances such as deteriorating buildings, pest infestations, and overgrown vegetation commonly result from these neglected properties. Their presence has a negative effect on the quality of life of people living in communities nationwide. In the wake of the recession more than ever, Texas has been faced with the need to abate public nuisances in an effort to keep its communities safe and to rehabilitate its cities.
{"title":"Texas after City of Dallas v. Stewart: Police Nuisances Or City Police Power Abated","authors":"L. Matthews","doi":"10.37419/twjrpl.v1.i1.8","DOIUrl":"https://doi.org/10.37419/twjrpl.v1.i1.8","url":null,"abstract":"The current economic recession has been the single worst in the United States since the Great Depression. In 2010, 46.2 million people were living at or below the poverty level. As a result of the nation's economic downturn and unemployment rates, there has been an onslaught of municipal decay and abandoned buildings. Nonseasonal vacant properties increased from 7 million in the year 2000 to 10 million in the year 2010. Texas, in particular, experienced a 41% to 50% increase in the number of vacant properties in its cities. Public nuisances such as deteriorating buildings, pest infestations, and overgrown vegetation commonly result from these neglected properties. Their presence has a negative effect on the quality of life of people living in communities nationwide. In the wake of the recession more than ever, Texas has been faced with the need to abate public nuisances in an effort to keep its communities safe and to rehabilitate its cities.","PeriodicalId":394996,"journal":{"name":"Texas Wesleyan Journal of Real Property Law","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116853418","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Part II of this Comment discusses the origins and development of eminent domain in the United States and Texas as well as briefly exploring the judicial developments in the interpretation of public use in the United States and Texas. As discussed below, case law has articulated the breadth of the public use definition to include utility and development plans that are for public purposes. This breadth and delegation of authority encompasses a wider range of property that may be taken than originally conceived without any sort of balancing growth in protection for landowners. Part II also discusses the origins, modern development and process of compensating landowners for their condemned property. Part III analyzes the fair market value calculation of just compensation and its failure to adequately compensate landowners. It then suggests methods that Texas could employ to establish an improved balance between the power of the state to condemn land and the financial well-being of targeted property owners. This comment recommends legislation to include relocation costs to a comparable dwelling as part of a displaced homeowners "adequate compensation" to put them in the same pecuniary position they were in before the condemnation proceedings. This comment also suggests Texas tax legislation to roll the effective date of a residence property tax exemption designed to freeze elderly or disabled landowner's property taxes to the landowner's new residence after eminent domain displacement. This would not only provide calculable, subjective compensation not available by fair market value but also maintain stable economic circumstances for a particularly susceptible group of citizens. This Comment then also recommends harkening back to the early American Mill Acts, which granted private entities the ability to use another's land for a public purpose but required the landowners to be compensated an additional fifty percent of their damages. This extra (or debatably equal) compensation is a way to restrain private eminent domain authorities since they do not have public oversight of their actions and work as a tax on the coercive ability to take the land of another. Re- quiring private entities to pay more for land they take will reduce the number of private entity takings, while still allowing for productive development. Additionally, providing more than fair market value to condemnees would more accurately compensate for the true costs of a forced relocation and thus reduce the incentives of the property owner to litigate or otherwise oppose the taking. All three recommendations focus on the just compensation needed to place landowners in the same pecuniary position they would have been prior to condemnation and serve as a meaningful safeguard to rebalance the equity of eminent domain to its origins.
{"title":"Condemning Fair Market Value: An Appraisal of Eminent Domain's Just Compensation","authors":"Paige Boldt","doi":"10.37419/twjrpl.v1.i1.6","DOIUrl":"https://doi.org/10.37419/twjrpl.v1.i1.6","url":null,"abstract":"Part II of this Comment discusses the origins and development of eminent domain in the United States and Texas as well as briefly exploring the judicial developments in the interpretation of public use in the United States and Texas. As discussed below, case law has articulated the breadth of the public use definition to include utility and development plans that are for public purposes. This breadth and delegation of authority encompasses a wider range of property that may be taken than originally conceived without any sort of balancing growth in protection for landowners. Part II also discusses the origins, modern development and process of compensating landowners for their condemned property.\u0000Part III analyzes the fair market value calculation of just compensation and its failure to adequately compensate landowners. It then suggests methods that Texas could employ to establish an improved balance between the power of the state to condemn land and the financial well-being of targeted property owners. This comment recommends legislation to include relocation costs to a comparable dwelling as part of a displaced homeowners \"adequate compensation\" to put them in the same pecuniary position they were in before the condemnation proceedings. This comment also suggests Texas tax legislation to roll the effective date of a residence property tax exemption designed to freeze elderly or disabled landowner's property taxes to the landowner's new residence after eminent domain displacement. This would not only provide calculable, subjective compensation not available by fair market value but also maintain stable economic circumstances for a particularly susceptible group of citizens. This Comment then also recommends harkening back to the early American Mill Acts, which granted private entities the ability to use another's land for a public purpose but required the landowners to be compensated an additional fifty percent of their damages. This extra (or debatably equal) compensation is a way to restrain private eminent domain authorities since they do not have public oversight of their actions and work as a tax on the coercive ability to take the land of another. Re- quiring private entities to pay more for land they take will reduce the number of private entity takings, while still allowing for productive development. Additionally, providing more than fair market value to condemnees would more accurately compensate for the true costs of a forced relocation and thus reduce the incentives of the property owner to litigate or otherwise oppose the taking.\u0000All three recommendations focus on the just compensation needed to place landowners in the same pecuniary position they would have been prior to condemnation and serve as a meaningful safeguard to rebalance the equity of eminent domain to its origins.","PeriodicalId":394996,"journal":{"name":"Texas Wesleyan Journal of Real Property Law","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128873042","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This essay will first briefly review the evolution of federal wildfire law and policy. It will then examine the relationship between climate change and wildfire, including potential legal and policy implications. Next, it will identify and explore how adaptation and mitigation strategies might be employed to address the growing climate-related wildfire risk. This entails reviewing the wildland-urban interface problem and risk reduction policies designed to protect human lives and property. It also entails examining the impact climate change and enhanced fire regimes will have on natural resource management policy and strategy. The essay concludes with brief observations on how law and policy might better address and accommodate the fire-related challenges that loom as the climate continues to warm.
{"title":"Wildfire Policy, Climate Change, and the Law","authors":"R. Keiter","doi":"10.37419/twjrpl.v1.i1.4","DOIUrl":"https://doi.org/10.37419/twjrpl.v1.i1.4","url":null,"abstract":"This essay will first briefly review the evolution of federal wildfire law and policy. It will then examine the relationship between climate change and wildfire, including potential legal and policy implications. Next, it will identify and explore how adaptation and mitigation strategies might be employed to address the growing climate-related wildfire risk. This entails reviewing the wildland-urban interface problem and risk reduction policies designed to protect human lives and property. It also entails examining the impact climate change and enhanced fire regimes will have on natural resource management policy and strategy. The essay concludes with brief observations on how law and policy might better address and accommodate the fire-related challenges that loom as the climate continues to warm.","PeriodicalId":394996,"journal":{"name":"Texas Wesleyan Journal of Real Property Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128293798","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
A mortgage is a double-edged sword. To most, a mortgage signifies yet another new stage in life; responsibility and the ultimate adult goal of home ownership. Unfortunately the economic downturn of 2008 drastically increased the hardship of attaining this goal, and the effects have been wide-felt, displacing both homeowners and renters from their abodes. In particular, and of primary concern to this article, renters have been suddenly evicted as a result of landlords defaulting on mortgages. Many of these renters-dutiful rent payers-are low-income tenants who receive little to no notice prior to their eviction, and who do not have the savings nor income level to afford a sudden move.
{"title":"Protecting Tenants at Foreclosure: Federal Expansion of Tenant Rights and the Unintended Consequences","authors":"Lauren Lynn","doi":"10.37419/twjrpl.v1.i1.5","DOIUrl":"https://doi.org/10.37419/twjrpl.v1.i1.5","url":null,"abstract":"A mortgage is a double-edged sword. To most, a mortgage signifies yet another new stage in life; responsibility and the ultimate adult goal of home ownership. Unfortunately the economic downturn of 2008 drastically increased the hardship of attaining this goal, and the effects have been wide-felt, displacing both homeowners and renters from their abodes. In particular, and of primary concern to this article, renters have been suddenly evicted as a result of landlords defaulting on mortgages. Many of these renters-dutiful rent payers-are low-income tenants who receive little to no notice prior to their eviction, and who do not have the savings nor income level to afford a sudden move.","PeriodicalId":394996,"journal":{"name":"Texas Wesleyan Journal of Real Property Law","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123858709","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This essay has two purposes. First, it is designed to highlight some of the issues and principles that have influenced historically whether state and federal courts will order property insurers to indemnify insureds after a fire destroys the latter's commercial and/or residential property. The second purpose is to find a plausible answer to the implied, duty-to-pay question that appears in Ryan v. New York Central R.R. Company: whether liability insurers must pay proceeds to cover third-party, fire-loss claims, if a fire (1) ignites on an insured's property, (2) spreads, (3) evolves into a "wildfire," and (4) eviscerates third-party claimants' structures and personalty.
{"title":"Fire Losses and Conflicting Judicial Rulings Over Whether Property Insurers Must Indemnify Insureds and Pay Third-Party Claims - Some Implications for Wildfire Litigation in Texas's Courts","authors":"W. E. Rice","doi":"10.37419/twjrpl.v1.i1.2","DOIUrl":"https://doi.org/10.37419/twjrpl.v1.i1.2","url":null,"abstract":"This essay has two purposes. First, it is designed to highlight some of the issues and principles that have influenced historically whether state and federal courts will order property insurers to indemnify insureds after a fire destroys the latter's commercial and/or residential property. The second purpose is to find a plausible answer to the implied, duty-to-pay question that appears in Ryan v. New York Central R.R. Company: whether liability insurers must pay proceeds to cover third-party, fire-loss claims, if a fire (1) ignites on an insured's property, (2) spreads, (3) evolves into a \"wildfire,\" and (4) eviscerates third-party claimants' structures and personalty.","PeriodicalId":394996,"journal":{"name":"Texas Wesleyan Journal of Real Property Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129082063","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The major federal lands laws, the National Environmental Policy Act ("NEPA"), the Endangered Species Act ("ESA"), the Federal Advisory Committee Act ("FACA"), and the traditional principles of administrative law have all combined to set a status quo with which public lands lawyers and conservationists are familiar. But wildfire has just as surely made each of our four compass points into its own special sort of paradox and is now undermining the very norms that defined this field. Whatever happens next, fire is one force among several poised to remake public lands law into a wholly unprecedented collection of institutional and normative forms still in their infancy-challenging anyone who would call it an "architecture" to explain and justify it. One way or another, in the face of mounting ecological disturbance, risk, and political turmoil, public lands law as we know it is either going to adapt or be marginalized. I conclude with some suggestions for how we might bring the values that gave rise to the field of public lands law into a future of assessing and managing multiple-scale risks like wildfire across our intermixed landscape. Part II first sketches the fire problem and the intermixture of our land use systems. Part III then introduces the new normative and organizational forms wildfire has prompted into existence. And Part IV seeks to reconcile what we know about fire and these innovations with our hopes for land and local autonomy as they intermix in the WUI.
{"title":"Declaring Disaster","authors":"J. Colburn","doi":"10.37419/twjrpl.v1.i1.1","DOIUrl":"https://doi.org/10.37419/twjrpl.v1.i1.1","url":null,"abstract":"The major federal lands laws, the National Environmental Policy Act (\"NEPA\"), the Endangered Species Act (\"ESA\"), the Federal Advisory Committee Act (\"FACA\"), and the traditional principles of administrative law have all combined to set a status quo with which public lands lawyers and conservationists are familiar. But wildfire has just as surely made each of our four compass points into its own special sort of paradox and is now undermining the very norms that defined this field. Whatever happens next, fire is one force among several poised to remake public lands law into a wholly unprecedented collection of institutional and normative forms still in their infancy-challenging anyone who would call it an \"architecture\" to explain and justify it. One way or another, in the face of mounting ecological disturbance, risk, and political turmoil, public lands law as we know it is either going to adapt or be marginalized. I conclude with some suggestions for how we might bring the values that gave rise to the field of public lands law into a future of assessing and managing multiple-scale risks like wildfire across our intermixed landscape. Part II first sketches the fire problem and the intermixture of our land use systems. Part III then introduces the new normative and organizational forms wildfire has prompted into existence. And Part IV seeks to reconcile what we know about fire and these innovations with our hopes for land and local autonomy as they intermix in the WUI.","PeriodicalId":394996,"journal":{"name":"Texas Wesleyan Journal of Real Property Law","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130178816","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
With the ever-increasing desire to produce and use energy from renewable sources, electricity-producing wind turbines have sprung up throughout the country. Since the companies that erect these turbines rarely own the land the turbines are built upon, land must typically be leased from landowners-often farmers and ranchers that own a large amount of open, unobstructed property. These normally long-termed leases, however, may hamper the estate plans of such landowners. A court has recently ruled that the right to payments under leases where the lessor has the right to receive lease payments and right to own the property in fee after the term of the lease are includable in a decedent's gross estate. Additionally, an executed "wind lease" can interfere with a decedent's personal representative's ability to make an election under section 2032A of the Internal Revenue Code ("IRC"), as the use of leased portions of the property are not likely "qualified" and the value of the decedent's qualified real property in relation to the decedent's total estate is decreased. Additionally, if such election has been made and an heir of the decedent's estate executes a wind lease, the Internal Revenue Service ("IRS") may be able to recapture portions of the tax savings attained through section 2032A. These results are inconsistent with the United States' policy to support agriculture and section 2032A's legislative history that sought to limit or avoid taxing illiquid estates of farmers and ranchers. This Comment recommends a statutory amendment that would, in certain instances, allow the value of a wind lease and the property burdened by such lease to be specially valued, and disallow the IRS to recapture tax savings when a wind lease is executed by an heir of the estate.
{"title":"Benefits Blown Away: Farmers and Ranchers, Wind Energy Leases, and the Estate Tax","authors":"Jordan Veurink","doi":"10.37419/twjrpl.v1.i1.7","DOIUrl":"https://doi.org/10.37419/twjrpl.v1.i1.7","url":null,"abstract":"With the ever-increasing desire to produce and use energy from renewable sources, electricity-producing wind turbines have sprung up throughout the country. Since the companies that erect these turbines rarely own the land the turbines are built upon, land must typically be leased from landowners-often farmers and ranchers that own a large amount of open, unobstructed property. These normally long-termed leases, however, may hamper the estate plans of such landowners. A court has recently ruled that the right to payments under leases where the lessor has the right to receive lease payments and right to own the property in fee after the term of the lease are includable in a decedent's gross estate. Additionally, an executed \"wind lease\" can interfere with a decedent's personal representative's ability to make an election under section 2032A of the Internal Revenue Code (\"IRC\"), as the use of leased portions of the property are not likely \"qualified\" and the value of the decedent's qualified real property in relation to the decedent's total estate is decreased. Additionally, if such election has been made and an heir of the decedent's estate executes a wind lease, the Internal Revenue Service (\"IRS\") may be able to recapture portions of the tax savings attained through section 2032A. These results are inconsistent with the United States' policy to support agriculture and section 2032A's legislative history that sought to limit or avoid taxing illiquid estates of farmers and ranchers. This Comment recommends a statutory amendment that would, in certain instances, allow the value of a wind lease and the property burdened by such lease to be specially valued, and disallow the IRS to recapture tax savings when a wind lease is executed by an heir of the estate.","PeriodicalId":394996,"journal":{"name":"Texas Wesleyan Journal of Real Property Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125824841","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In this essay I explore how the Healthy Forests Restoration Act 2003 ("HFRA") and development of a National Cohesive Wildland Fire Management Strategy pursuant to the Federal Land Assistance, Management and Enhancement Act 2009 ("FLAME") purchased peace with WUI landowners. These laws emphasized "fire-adapted communities" and potentially signaled acceptance of (or normalizing) development in areas of high fire danger. By emphasizing risk reduction narrowly, we may have missed an opportunity to advance broader restoration objectives connected to bringing fire back to fire-adapted landscapes.
{"title":"The Tension Between Transparency and Public Appeasement in the Formulation of Wildfire Management Strategies and the Use of Wildfire as a Restoration Tool","authors":"Rachael E. Salcido","doi":"10.37419/twjrpl.v1.i1.3","DOIUrl":"https://doi.org/10.37419/twjrpl.v1.i1.3","url":null,"abstract":"In this essay I explore how the Healthy Forests Restoration Act 2003 (\"HFRA\") and development of a National Cohesive Wildland Fire Management Strategy pursuant to the Federal Land Assistance, Management and Enhancement Act 2009 (\"FLAME\") purchased peace with WUI landowners. These laws emphasized \"fire-adapted communities\" and potentially signaled acceptance of (or normalizing) development in areas of high fire danger. By emphasizing risk reduction narrowly, we may have missed an opportunity to advance broader restoration objectives connected to bringing fire back to fire-adapted landscapes.","PeriodicalId":394996,"journal":{"name":"Texas Wesleyan Journal of Real Property Law","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127165736","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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