Property Law

Of Backyard Chickens and Front Yard Gardens: The Conflict Between Local Governments and Locavores

By Thegreenj (Own work) [GFDL or CC-BY-SA-3.0], via Wikimedia Commons“Locavores” aim to source their food locally. Many locavores are also more broadly concerned with living sustainably and decreasing reliance on industrial agriculture. As more people have joined the locavore movement, including many who reside in urban and suburban areas, conflict has emerged between the locavores’ desires to use their private property to produce food—for personal use and for sale—and municipal zoning ordinances that seek to separate agriculture from residential uses. In this Article, I consider the evolution of this conflict and its implications for our systems of land use, local government, and environmental law. Specifically, I investigate the police power rationales for the existence of ordinances that disallow urban homesteading in urban and suburban communities. I then demonstrate that public health, civic virtue, and free market principles can be used to justify the passage of ordinances that would expressly permit these behaviors. Central to this analysis is a discussion of the problems caused by industrial agriculture and the lack of access to locally produced foods—food insecurity, food deserts, obesity tied to processed foods, monoculture-induced environmental catastrophes, harm to animals, and greenhouse gas emissions—all of which could be alleviated, at least in part, through urban agriculture. In recognition of these changing conceptions of harm, some local governments have begun to pass ordinances expressly allowing gardens, chickens, and the sale of produce in residential areas. I conclude by considering what this movement toward loosening restrictions on the use of private property says more broadly about the decline of Euclidean zoning controls and the future of land use law.

Localism and Involuntary Annexation: Reconsidering Approaches to New Regionalism

“Involuntary” annexation—the ability of cities to expand their territory unilaterally by extending their boundaries—is one of the most controversial devices in land use law. It is under attack in virtually every state where it exists. Involuntary annexation is a direct threat to “localism,” the belief in small, autonomous units of government as the optimum forum for expressing democratic freedom, fostering community, and organizing local government. Localism has been justifiably faulted with spurring metropolitan fragmentation and the attendant challenges it creates for regional governance. This critique is at the center of “New Regionalism,” a movement of scholars and policy makers focused on promoting regional governance structures that respect the cultural draw of localism while correcting for its deficiencies. New Regionalism emphasizes bottom-up, voluntary governance structures and dismisses approaches like involuntary annexation as politically infeasible. Both types of approaches face considerable political challenges, but there are arguably more examples of well-functioning involuntary annexation regimes than there are successful models of New Regionalism. While involuntary annexation has been critical to the success of metropolitan regions in Texas and North Carolina, many regard it as a violation of the liberty and freedom that comes with property rights. Property rights are rooted in instinctive and culturally reinforced notions of personal identity and the inviolability of ownership. Localism extends this logic to municipal identity. The hostility toward involuntary annexation, therefore, can be understood as a response to the taking of a person’s perceived right to express individual identity, group identity, status, and ownership through municipal identity. This notion of municipal identity as property threatens to undermine both existing involuntary annexation regimes as well as future New Regionalist proposals. While New Regionalism has well-reasoned justifications for focusing on more-voluntary, bottom-up governance structures, involuntary annexation remains a potent tool for facilitating regional governance and is worthy of defense and preservation.

Which the Deader Hand? A Counter to the American Law Institute's Proposed Revival of Dying Perpetuities Rules

Encouraged primarily by a fluke in federal estate and gift tax law, more than half of the states have either effectively or entirely abolished their rules against perpetuities in the past two decades. The American Law Institute, deeply troubled by this development, has adopted for its Third Restatement a proposed rule against perpetuities that would essentially prohibit conditional gifts to continue for the benefit of parties born more than two generations after the transferor.
The ALI's efforts are misguided. The rule against perpetuities was the product of a legal, political, and social age very different than our own. It was designed in large part to address concerns, such as inalienability conditions, that do not effectively exist in modern law, either because the evolution of property structures has dealt with these problems by other means, or because changes in political and social structure have lessened the concerns. While some of the old concerns do remain, in modified form, the Rule Against Perpetuities provides a poor response to them. It offers a medieval barber's amputation saw where the job demands a modern surgeon's scalpel. Though both may save the patient from the illness, the scalpel will do a more exact and reliable job, with far less collateral damage.
This Article demonstrates where the ALI went wrong and fashions the scalpel required to deal with modern iterations of dead-hand control issues and related problems.

The Usufruct Revisions: The Power to Dispose of Nonconsumables Now Expressly Includes Alienation, Lease, and Encumbrance; Has the Louisiana Legislature Fundamentally Altered the Nature of Usufruct?

This Comment discusses the 2010 Louisiana Civil Code revisions to the law of usufruct and critically analyzes whether the revisions to the power to dispose of nonconsumables upset the usufructuary's and naked owner's perilous balance of rights inherent in the law of usufruct. It begins by laying out the foundations of ownership and usufruct in the Louisiana civil law system. After exploring the contours of these general principles, the Comment tracks the development of the power to dispose of nonconsumables from jurisprudential beginnings, through initial legislative codification, and up to the 2010 revision under Act 881. Delving deeper, this Comment examines Act 881's division of former article 568 into articles 568, 568.1, 568.2, and 568.3 and explores the issues of whether the revision expands the power to dispose and whether such an expansion constitutes a substantive or procedural change in the law. Lastly, the Comment raises several legal complications brought about by the recent revision and argues that further legislative action is necessary to retain the equitable division of rights that the Louisiana Civil Code seeks to instill in its default approach the law of usufruct.