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Rights

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  1. Rights • We all possess rights to behave in certain ways • What the rights are • What possession is • And the ways we can behave – exercise our rights • are defined by law

  2. Rights • We all possess rights to behave in certain ways • What the rights are • What possession is • And the ways we can behave – exercise our rights • are defined by law • Bill of Rights • Coerced into behaving in appropriate ways - in an iterative manner – by law that embodies • Goals based on assumptions about • Empirical knowledge about the earth and its inhabitants • Technological capacity • Evaluation

  3. Coercion • Prohibition – zoning, subdivision controls, lot requirements • fines, confiscation, imprisonment • Financial Incentive • taxation – income, property • loans, grants • Risk assumption – mortgages • Public Infrastructure – construction • water treatment, sewers, roads, schools, airports and airways, waterways, recreation areas • Collecting and disseminating statistics • public record • others

  4. United States Law • Minnesota Law • Dakota County Law • West St. Paul Law • Sunfish Lake Law

  5. Real Property • A physical component (with spatial characteristics and a unique location) • Land surface, used in some way – residences, commercial, industrial, agriculture, forestry, wetlands, parks, scientific and natural areas, highway rights-of-way • Subsurface – minerals, iron ore, copper-nickel • Supersurface (air) – building space, airspace, sunshine, wind, scenery, odor • Wildlife – exotic, game, non-game, pests, endangered • Surface water – navigable, non-navigable

  6. Real Property • A behavioral component – A legal entity with legal rights • Entity – joint tenants possessing fee simple • Legal Rights – spatial dimension guaranteed by warranty deed • to acquire and convey any or all rights • to use and “quiet enjoyment" • to exclude • The exercise of which is usually limited • A physical component (with spatial characteristics and a unique location) • Land surface, used in some way – residences, commercial, industrial, agriculture, forestry, wetlands, parks, scientific and natural areas, highway rights-of-way • Subsurface – minerals, iron ore, copper-nickel • Supersurface (air) – building space, airspace, sunshine, wind, scenery, odor • Wildlife – exotic, game, non-game, pests, endangered • Surface water – navigable, non-navigable

  7. Governments possess the power to define, to promote, to protect and to enforce • Both the legal rights and the legal entities that possess them • how such rights can be acquired • how such rights can be possessed • how such rights can be exercised • how such rights can be conveyed • A vast body of law, not always consistent and/or compatible, has been developed • defining real property rights • coercing landowners to behave in particular ways • resolving and preventing conflicts between landowners exercising those rights

  8. The law defines both physical and behavioral component

  9. The law defines both physical and behavioral componentLaw is a social construct to define and promote appropriate behavior

  10. The law defines both physical and behavioral componentLaw is a social construct to define and promote appropriate behavior • Federal Statutory Law (Library of Congress) • Basic Overview on How Federal Laws Are Published, Organized and Cited • Federal Administrative Law (Justia) • Federal Laws and Regulations (USA.gov) • Federal Case Law (Justia) • American Jurisprudence 2d (LexisNexis Academic) <Source Directory Browse> <Treatises & Analytical Material>

  11. The law defines both physical and behavioral componentLaw is a social construct to define and promote appropriate behavior • Federal Statutory Law (Library of Congress) • Basic Overview on How Federal Laws Are Published, Organized and Cited • Federal Administrative Law (Justia) • Federal Laws and Regulations (USA.gov) • Federal Case Law (Justia) • American Jurisprudence 2d (LexisNexis Academic) <Source Directory Browse> <Treatises & Analytical Material> • Minnesota Statutory and Administrative Law (Office of Revisor of Statutes) • Minnesota Case Law (Minnesota State Law Library) • Dunnell Minnesota Digest (LexisNexis Academic) <Source Directory Browse> <Treatises & Analytical Material> • Minnesota Law (Justia) • Minnesota (Library of Congress)

  12. Lobbying Legislature Legislative Mandate Lobbying Statutory Law Agency Administrative Law Courts Case Law Law Law embodies a process and an outcome

  13. Personal Data • My wife and I used to possess fee title, • as joint tenants, to a single family dwelling* on a 4.7acre parcel adjoining • Hornbeam Lake in the City of • Sunfish Lake, Dakota County, MN

  14. Ownership and Jurisdiction • What legal rights we possess defined by • the deed with which we acquired that title • backed up by evidence in the public record • How we may use those rights defined in various ways by • United States • Minnesota • Dakota County • Sunfish Lake • Metropolitan Council • Wells Fargo which held the mortgage

  15. Two Maxims • Details, many of them quite trivial, matter

  16. All are products of disjointed incrementalism • We “muddle through”

  17. Air

  18. Owning rights to use the and surface involves the right to use the space above the property – at least in theory • "To whomever owns the land, shall own the earth to its center and up to the heavens"

  19. Resources • Air rights (Wikipedia • Kids to U.S. court: Who owns the air? • If Oregon Owns The Rain, Then Who Owns The Air?  • Andrea Polli - "Who Owns The Air?" • Who owns airspace, and why can't they charge? • Who owns the air? • Who Owns The Air? Who Owns the Atmosphere? • Who Owns the Air? • Who Owns the Sky? • Who Owns the Air: Unscrambling the Satellite Viewing Rights Dilemma

  20. Minnesota Statutes 360.012 Sovereignty(1943 c 653 s 20; 1986 c 444) • The ownership of the space above the lands and waters of this state is declared to be vested in the several owners of the surface beneath,

  21. Minnesota Statutes 360.012 Sovereignty(1943 c 653 s 20; 1986 c 444) • The ownership of the space above the lands and waters of this state is declared to be vested in the several owners of the surface beneath, subject to the right of flight

  22. Minnesota Statutes 360.012 Sovereignty(1943 c 653 s 20; 1986 c 444) • The ownership of the space above the lands and waters of this state is declared to be vested in the several owners of the surface beneath, subject to the right of flight • Sovereignty in the space above the lands and waters of this state is declared to rest in the state, except where granted to and assumed by the United States pursuant to a constitutional grant from the people of this state

  23. Minnesota Statutes 360.012 Sovereignty(1943 c 653 s 20; 1986 c 444) • The ownership of the space above the lands and waters of this state is declared to be vested in the several owners of the surface beneath, subject to the right of flight • Sovereignty in the space above the lands and waters of this state is declared to rest in the state, except where granted to and assumed by the United States pursuant to a constitutional grant from the people of this state • Flight in aircraft over the lands and water of this state is lawful, • unless at such low altitude as to interfere with the then-existing use to which the land or water, or the space above the land or water, is put by the owner, or • unless so conducted as to be imminently dangerous or damaging to persons or property lawfully in the land or water beneath

  24. Minnesota Statutes 360.012 Sovereignty • Landing  an aircraft on the lands or waters of another, without the other's consent is unlawful, except in the case of a forced landing • For damages caused by the forced landing, however, the owner or lessee of the aircraft or the pilot shall be liable as provided • The owner of every aircraft which is operated over the lands or waters of this state is absolutely liable for injury or damage to persons or property on the land or water beneath, caused by the ascent, descent, or flight of the aircraft, or the dropping or falling of any object therefrom, whether such owner was negligent or not, unless the injury or damage is caused in whole or in part by the negligence of the person injured, or of the owner of the property damaged

  25. Landowners possess title – i.e. have a right to use - the airspace above their land • But this right, like most other real property rights, is not exclusive • Airspace can be used by others • if you build a house you have the right not to be subject to any physical interference from aircrafts • aircrafts do have the right to use airspace for flights as long as they don’t interfere with the rights of the landowners. • The law is clear that an owner is entitled to freedom from excessive noise and passage by airborne carriers. • If an aircraft is in flight so low that it is unreasonably disturbing to the landowner, the aircraft could be held liable for trespassing on your property • If the aircraft or airport is government-owned, such flights might constitute a "taking" of your property

  26. Minnesota Statutes 360.011 (1945 c 303 s 2; 1978 c 674 s 58; 1985 c 248 s 70) • To further the public interest and aeronautical progress • by providing for the protection and promotion of safety in aeronautics • by cooperating in effecting a uniformity of the laws relating to the development and regulation of aeronautics in the several states • by revising existing statutes relative to the development and regulation of aeronautics so as to grant to a state agency such powers and impose upon it such duties that the state • may properly perform its functions relative to aeronautics and effectively exercise its jurisdiction over persons and property within such jurisdiction, • may assist in the promotion of a statewide system of airports, • may cooperate with and assist the political subdivisions of this state and others engaged in aeronautics, and may encourage and develop aeronautics

  27. Minnesota Statutes 360.011 • To further the public interest and aeronautical progress • by establishing uniform rules, consistent with federal regulations and those of other states, in order that those engaged in aeronautics of every character may so engage with the least possible restriction, consistent with the safety and the rights of others • by providing for cooperation with the federal authorities in the development of a national system of civil aviation and for coordination of the aeronautical activities of those authorities and the authorities of this state by assisting in accomplishing the purposes of federal legislation and eliminating costly and unnecessary duplication  of functions properly in the province of federal agencies

  28. 360.018 Regulating aircraft, airmen, airports, instructors • The general public interest and safety, the safety of persons receiving instruction concerning or operating, using, or traveling in aircraft and of persons and property on the ground, and the interest of aeronautical progress requiring that aircraft operated within this state should be airworthy, that airmen and those engaged in air instruction should be properly qualified, and that airports, restricted landing areas, and air navigation facilities should be suitable for the purposes for which they are designed; … the advantages of uniform regulation making it desirable that aircraft operated within this state should conform with respect to design, construction, and airworthiness to the standards prescribed by the United States government with respect to civil aircraft subject to its jurisdiction and that persons engaging in aeronautics within this state should have the qualifications necessary for obtaining and holding appropriate airman certificates of the United States ….

  29. Minnesota Statutes 360.012 Sovereignty • All crimes, torts, and other wrongs committed by or against a pilot, passenger, or other person while in flight over this state shall be governed by the laws of this state; and the question whether damage occasioned by or to an aircraft while in flight over this state constitutes a tort, crime, or other wrong by or against the owner of such aircraft shall be determined by the laws of this state

  30. Minnesota Statutes 360.012 Sovereignty • All crimes, torts, and other wrongs committed by or against a pilot, passenger, or other person while in flight over this state shall be governed by the laws of this state; and the question whether damage occasioned by or to an aircraft while in flight over this state constitutes a tort, crime, or other wrong by or against the owner of such aircraft shall be determined by the laws of this state • The liability of the owner of one aircraft to the owner of another aircraft, or to pilots or passengers or other persons on either aircraft, for damages caused by collision on land or in the air shall be determined by the rules of law applicable to torts occurring on land • All contractual and other legal relations entered into by pilots, passengers, or other persons while in flight over this state shall have the same effect as if entered into on the land or water beneath

  31. Minnesota Statutes 360.012 Sovereignty • If the aircraft is leased at the time of the injury or damage to person or property, both the owner and lessee shall be liable, and they may be sued jointly, or either or both of them may be sued separately • A pilot who is not the owner or lessee shall be liable only for the consequences of personal negligence

  32. Minnesota Statutes 360.015 Commissioner; powers and duties • The Commissioner of Transportation shall cooperate with and assist the federal government, the municipalities of this state, and others engaged in aeronautics or the promotion of aeronautics and shall seek to coordinate the aeronautical activities of these bodies • The Commissioner shall report to the appropriate federal agency all accidents in aeronautics in this state of which the commissioner is informed • MNDoT Aviation • Aeronautics (Dunnell Minnesota Digest) LexisNexis Academic <Source Directory Browse> <Treatises & Analytical Material>

  33. a • Sale of liquor while flying over Wisconsin p.11

  34. BUT • Possibly the biggest tax obstacle of the professional athlete is the potential requirement to file a separate state tax return for each state the taxpayer earns income • Each state has its own tax system and tax laws which may or may not require the taxpayer to file a tax return and pay that state’s income tax on the income earned while in the state • On the other hand, some states do not have an income tax (Texas and Florida, for example) • Each player must generally pay tax in the state the income is earned. • For example, if a Missouri resident plays a game in Wisconsin and receives game day pay, the player will owe income tax to Wisconsin on the earnings from that game — while all other income is not taxed in Wisconsin http://blogs.hrblock.com/2013/09/05/paying-taxes-in-every-state-taxes-the-pro-athlete/

  35. Air Use defined by law • Means of transportation – airplanes, avigation easements – navigable airspace • Resource – wind, breathable air, weather modification, solar access • Medium of transmission (communications) – radio, tv, satellite • Amenity – visibility – scenery, solar access, odor, noise • Solar and wind easements • Buildable airspace • Skyways • Health – odor, noise

  36. Unmanned Aerial Vehicles (Wikipedia) • Unmanned Aerial Vehicles  (US Department of State) • Federal Aviation Administration <Unmanned Aerial Vehicles) • Spies in the sky signal new age of surveillance – Unmanned Aerial Vehicles

  37. Buildable Airspace • Originally, airspace was considered to be a form of land inseparable from the soil owned by the surface landowner • Over time law has allowed airspace to be severed from the soil, enabling the surface landowner to alienate the airspace while retaining title to the soil • Airspace above the surface that can be occupied by a structure – how many stories may be a function of zoning • Variation on Ground rent – money paid to the entity owning the land on which a structure sits • Florida firm puts down deposit on IDS Center (Star Tribune April 5, 2013)

  38. Buildable Airspace – Air Rights • Railroads were the first companies to realize the potential of making money from their air rights • Grand Central Terminal in New York City – current owner • At first, the railroad simply constructed a terminal on a platform over the tracks • By the 1950s, Penn Central began to realize it could sell its air rights and let other companies construct buildings over the tracks – 1978 Supreme Court case • Building over railroad tracks is still potentially very profitable, especially in New York • The Metropolitan Transportation Authority attempted to sell air rights to the New York Jets so that they could build a stadium over rail yards near Penn Station as part of the Hudson Yards Redevelopment Project • Builders of highways have proposed selling air rights • Mn/DOT conveyed easement over parts of I 394 for the new Twins Ballpark • Boston is currently doing this in connection with the Big Dig

  39. Condominiums • Condominium Law - United States (Wikipedia) • Minnesota State Law • Owners of units do not own the land on which the building occupying the units is built • Condominium and Townhouse Associations • Minnesota.gov <condominium>

  40. Restrictions on building heights in certain locations • Building around airports • St. Paul airport safety zone proposal draws criticism at hearing Star Tribune July 23 2009) • Airport Zoning (MNDoT) • Minneapolis Height • Minneapolis' Linden Hills pushes to limit building heights (Star Tribune Dec. 2013) • City Ordinance Restricts Building Height Around City Lakes • Fence Code Minneapolis MN

  41. Skyways in the Twin Cities • Minneapolis Skyway is private - owned by adjacent property owners • The first skyway in Minneapolis was built in 1962 • The adjacent property owners own most skyways – one is generally in charge of maintaining the skyway while the other pays for half the costs • Approximately one third of skyways are city-owned, linking municipal parking garages, the Convention Center, and the City Hall • Design is determined by the owners, who consult with the Skyway Advisory Committee of the Minneapolis Downtown Council • To build across a street, owners must get an encroachment permit and post $500,000 bond to provide for future removal • New skyway called ‘game changer’ for Accenture Tower (Finance & Commerce Nov. 2011)

  42. Skyways in the Twin Cities • St. Paul skyway is a public right-of way-easement through privately-owned buildings and across public roads • Chapter 3 Movement Networks • Skyway for sale • St. Paul: Groups call for dismantling of 'skyway to nowhere • The privatization of downtown public space: the emerging grade-separated city in North America

  43. Scenery • Minnesota Department of Transportation • Minnesota Department of Natural Resources • "Scenic easement" means an interest in land, less than the fee title, which limits the use of the land for the purpose of protecting the scenic, recreational, or natural characteristics of wild, scenic, or recreational river areas • Unless otherwise expressly and specifically provided by the parties, such easement shall be • perpetually held for the benefit of the people of Minnesota • specifically enforceable by its holder or any beneficiary • binding on the holder of the servient estate, the holder's heirs, successors, and assigns • Unless specifically provided by the parties, no such easement shall give the holder or any beneficiary the right to enter on the land except to enforce the easement • Wild and Scenic Rivers Program

  44. St. Croix National Scenic River • 97,000 acres included in the land management unit - up to a quarter mile wide on either side of the river • This riverway is protected by a combination of state public lands, construction standards and zoning administered by local governments, and scenic easements • Construction standards along the ¼ mile riverway to preserve natural views from the water, control erosion, and protect water quality • lot size and width, structure setbacks and height, and sanitary system requirements - administered through local zoning ordinances • maximum structure height is 35 feet and impervious surfaces limited to 20 percent of a lot. • color of new or remodeled structures must be earth tones or summer vegetation tones

  45. St. Croix National Scenic River • NPS only owns 25% of the land in the riverway but has close to 400 “scenic easements” with private landowners • The easements were purchased from the landowners to preserve the view from the river and along it • 25% of all the scenic easements held by the National Park Service • Lower St. Croix • Zoning case may ripple across St. Croix Valley (Star Tribune October 2013) • Minnesota DNR won't challenge plans for St. Croix River (Nov. 2013)

  46. Regulating Visibility • Visibility (EPA) • 40 CFR 51-- Subpart P. Protection of Visibility • Authority: Secs. 110, 114, 121, 160-169, 169A, and 301 of the Clean Air Act, (42 U.S.C. 7410, 7414, 7421, 7470-7479, and 7601) • “The primary purposes of this subpart are to require States to develop programs to assure reasonable progress toward meeting the national goal of preventing any future, and remedying any existing, impairment of visibility in mandatory Class I Federal areas which impairment results from manmade air pollution; and to establish necessary additional procedures for new source permit applicants, States and Federal Land Managers to use in conducting the visibility impact analysis required for new sources ….”

  47. Court allows AT&T cell tower near BWCA (MPR June 2012) • AT&T completes cell tower near BWCA  (MPR April 2012)

  48. Right to sunlight and wind • Solar and wind access is not considered an automatic right-state law is meant to prohibit unreasonable infringement on access • 52 U. Cin. L. Rev. 208 1983 AN OWNER OF A SOLARHEATED RESIDENCE HAS A CAUSE OF ACTION UNDER WISCONSIN PRIVATE NUISANCE LAW FOR AN UNREASONABLE OBSTRUCTION OF HIS ACCESS TO SUNLIGHT BY AN ADJOINING LANDOWNER'S HOME. -- Prah v. Maretti, 108 Wis. 2d 223, 321 N.W.2d 182 (1982) access via LexisNexis Academic • Many states have enacted statutes to protect a landowner's access to wind and/or sunlight • Some states allow landowners to establish solar and wind easements • Other states have laws that prohibit neighborhoods from establishing covenants explicitly restricting the installation or use of solar equipment

  49. Solar Easement • "Solar easement" means a right, whether or not stated in the form of a restriction, easement, covenant, or condition, in any deed, will, or other instrument executed by or on behalf of any owner of land or solar skyspace for the purpose of ensuring adequate exposure of a solar energy system as defined in section 216C.06, subdivision 17, to solar energy