Saturday, June 23, 2012

New report on west coast sea-level rise

The National Research Council has just released a major report on sea-level rise along the California, Oregon, and Washington coasts. From the news release:

The sea level off most of California is expected to rise about one meter over the next century, an amount slightly higher than projected for global sea levels, and will likely increase damage to the state's coast from storm surges and high waves, says a new report from the National Research Council.  Sea levels off Washington, Oregon, and northern California will likely rise less, about 60 centimeters over the same period of time.  However, an earthquake magnitude 8 or larger in this region could cause sea level to rise suddenly by an additional meter or more. 

Global sea level rose during the 20th century, and projections suggest it will rise at a higher rate during the 21st century.  A warming climate causes sea level to rise primarily by warming the oceans -- which causes the water to expand -- and melting land ice, which transfers water to the ocean.  However, sea-level rise is uneven and varies from place to place.  Along the U.S. west coast it depends on the global mean sea-level rise and regional factors, such as ocean and atmospheric circulation patterns, melting of modern and ancient ice sheets, and tectonic plate movements.  

. . .  

The committee that wrote the report projected that global sea level will rise 8 to 23 centimeters by 2030, relative to the 2000 level, 18 to 48 centimeters by 2050, and 50 to 140 centimeters by 2100.  The 2100 estimate is substantially higher than the United Nation's Intergovernmental Panel on Climate Change's projection made in 2007 of 18 to 59 centimeters with a possible additional 17 centimeters if rapid changes in ice flow are included. 

For the California coast south of Cape Mendocino, the committee projected that sea level will rise 4 to 30 centimeters by 2030, 12 to 61 centimeters by 2050, and 42 to 167 centimeters by 2100.  For the Washington, Oregon, and California coast north of Cape Mendocino, sea level is projected to change between falling 4 centimeters to rising 23 centimeters by 2030, falling 3 centimeters to rising 48 centimeters by 2050, and rising between 10 to 143 centimeters by 2100.  The committee noted that as the projection period lengthens, uncertainties, and thus ranges, increase. 

The committee's projections for the California coast south of Cape Mendocino are slightly higher than its global projections because much of the coastline is subsiding.  The lower sea levels projected for northern California, Washington, and Oregon coasts are because the land is rising largely due to plate tectonics.  In this region, the ocean plate is descending below the continental plate at the Cascadia Subduction Zone, pushing up the coast. 

Extreme events could raise sea level much faster than the rates projected by the committee.  For example, an earthquake magnitude 8 or greater north of Cape Mendocino, which occurs in this area every several hundred to 1,000 years with the most recent in 1700, could cause parts of the coast to subside immediately and the relative sea level to rise suddenly by a meter or more. 

"As the average sea level rises, the number and duration of extreme storm surges and high waves are expected to escalate, and this increases the risk of flooding, coastal erosion, and wetland loss," said Robert Dalrymple, committee chair and Willard and Lillian Hackerman Professor of Civil Engineering at Johns Hopkins University. 

Most of the damage along the west coast is caused by storms, particularly the confluence of large waves, storm surges, and high tides during El Niño events.  Significant development along the coast -- such as airports, naval air stations, freeways, sports stadiums, and housing developments -- has been built only a few feet above the highest tides.  For example, the San Francisco International Airport could flood with as little as 40 centimeters of sea-level rise, a value that could be reached in several decades.  The committee also ran a simulation that suggested sea-level rise could cause the incidence of extreme water heights in the San Francisco Bay area to increase from about 9 hours per decade, to hundreds of hours per decade by 2050, and to several thousand hours per decade by 2100. 

You can view a video produced by the Council below.

 Stephen R. Miller

June 23, 2012 in Beaches, California, Climate, Coastal Regulation, Water | Permalink | Comments (0) | TrackBack (0)

Friday, June 22, 2012

New TDR Handbook

For those interested in transfer of development rights (TDR), you'll want to check out a great TDR Handbook image book I recently came across called The TDR Handbook:  Designing and Implementing Successful Transfer of Development Rights Programs (Island Press 2011).  This substantial work provides a background on how TDRs work, steps to follow in implementing a TDR scheme, reviews some of the larger TDR regimes already out there, and addresses legal issues and state statutes on TDRs.  I found the guide very useful in assisting one of my Clinic clients this spring.

Stephen R. Miller

June 22, 2012 | Permalink | Comments (0) | TrackBack (0)

Thursday, June 21, 2012

In the Conservation Easement versus Mortgage Battle...

the mortgage wins. Because I am a conservation easement nerd savvy academic, I have Westlaw alert me every time a case mentions the term "conservation easement." For years, this yielded very few cases and I only received alerts once a month or so. Lately, I have been getting them daily. Many of these cases come from the tax court and have to do with valuation issues, one line of cases however explores mortgage subordination.

Conservation easements are nonpossessory interests in land that restrict a landowner's use of her property with a goal of yielding a conservation benefit. Many landowners donate conservation easements (i.e. voluntarily restrict the use of their property). Such donations can yield significant federal tax deductions. For a conservation easement (or historic preservation easement) to qualify for a charitable tax break, the restriction must be perpetual. The IRS, Tax Court, and others have acknowledged that it is well nigh impossible to ensure perpetuity of these things. Instead, the IRS has explained that it will consider a restriction to be perpetual if when the restriction is terminated, the beneficiary gets the proceeds. Basically, when a conservation easement is terminated (for any variety of reasons/methods), the holder of the conservation easement will get cash for its porportionate value. Ideally, the holder then uses that money to protect other lands. If your conservation easement doesn't have a provision detailing this procedure, the IRS (in theory) will disallow your deduction. To ensure that the holder will be able to get the proceeds from a land sale, the conservation easement holder must have primary rights to the proceeds. That is, other restrictions on the land must be subordinated (everyone else gets in line behind the conservation easement holder when proceeds from the sale are passed out). This is why the IRS requires any mortgages on the land to be subordinate to the conservation easement.

There have been a few cases from the tax court exploring this issue and most of them seem to involve historic facade easements. In Kaufman v. Commissioner (134 T.C. 182 Apr. 2010), the Tax Court concluded that a facade easement did not qualify for a tax deduction because it wasn't really perpetual because there was a non-subordinated mortgage encumbering the property. The landowners argued that the lack of subordination did not necessarily mean that the holder would not get its proceeds, but the court didn't care. There was a possibility that the facade easement holder would  not be able to receive the proportionate share.

Last week in Wall v. Commissioner (T.C. Memo. 2012-169, June 2012), the Tax Court reached a similar result even though the conservation easement (again a facade preservation easement) declared that it all exisiting mortgages were subordinate. The court did not take the conservation easement at its word and instead looked at the text of the mortgage subordination. The two banks involved executed documents appearing to subordinate the mortgages (based on the title and opening provisions of the documents), but a closer reading revealed that the banks still were claiming that they had "prior claims" in the event of any foreclosures or eminent domain proceedings. The presumption that the mortgages get first dibs at the moola stems mostly from the fact that they encumbered the land prior to the facade easement.

However, I think the main lesson here is that there is almost a presumption against the restrictions being perpetual and any possibility that the proportionate proceeds won't get paid to the conservation easement holder mean no tax deduction.

Jessica Owley

June 21, 2012 in Caselaw, Conservation Easements, Historic Preservation, Land Trust, Mortgages, Property, Real Estate Transactions, Servitudes | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 19, 2012

Newsgathering in public forums: a personal encounter with the Daily Show

A couple weeks ago I had the opportunity to watch Daily Show “correspondent” Aasif Mandvi at work here in Boise.  Apparently he was in Boise for a piece that recently aired on the Daily Show about a two-headed fish.  No joke. The clip is here.

My interest in Mandvi, however, has nothing to do with the substance of his story (which is potentially Team_mandvi_200 blog-worthy another day), but how he went about some of his “reporting.”  Namely, he did so by accosting me, my wife, and a lot of others, while we were trying to have lunch in outdoor seating along a street on one of the first beautiful spring days here.  Here is how it went down:  I’m eating my veggie burger, my wife is eating her salad, and out of the blue, Mandvi was in our faces, asking my wife where she worked, two television cameras behind him and rolling.  When I asked him who he was, he refused to identify himself or state that he was with the Daily Show (I figured it out a few minutes later because, well, I watch the Daily Show).  He aggressively asked me who I worked for, I said I’d tell him when he told me who he worked for, we went around a little like that, and eventually he left.  We then watched Mandvi do this all up and down the street for about an hour.  The basic approach is that Mandvi huddles with his crew, they pick out a victim, then they all charge the person at once with the cameras on.  The goal, of course, is to elicit a remark that, when taken out of context, will be funny on the show and most likely show the person interviewed to be less than informed about the world.  Any watcher of the Daily Show knows what I’m talking about (I admit, I’ve laughed at plenty of these “gotcha” moments).  If not, watch the clip, and you’ll see what I mean.  Apparently my confrontation with Mandvi was not deemed funny enough, as I am not in the clip, nor is my wife.

I did find myself reflecting back on Mandvi in action.  I have always enjoyed the Daily Show, but that afternoon was one of those “when you see the sausage being made” moments.  As my mind inevitably does, my mind turned to the law, and I wondered whether there was anything out there on situations like this.  Could it really be that it’s okay for someone to badger an entire street for an hour, and then broadcast comments of those people out of context?  Since Mandvi goes up to people with cameras rolling, there is no meaningful way to opt out of the “interview.”  Can Mandvi really just take a person by surprise and broadcast it nationally?  It just seemed bizarre to me.  Could you really call what Mandvi was doing “newsgathering” and thus protected speech under the First Amendment?

Well, rather than working on the articles I am trying to write this summer, I found myself researching obscure aspects of the First Amendment.  One interesting issue is whether what Mandvi does is “newsgathering” at all or, is the Daily Show just an entertainment product (i.e., what is the First Amendment standard for “truthiness”?).  That question aside, it seems the best legal claims against what Mandvi is doing, if one were the litigious sort, would be one of the several privacy torts.  However, my cursory review of these didn’t yield any cases that seemed particularly like a slam-dunk. 

For a refresher on these torts, here are several of the most relevant.  The Restatement (Second) of Torts § 652B defines the tort of “Intrusion Upon Seclusion” as:

One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.

The Restatement (Second) of Torts § 652C defines the tort of “Appropriation Of Name Or Likeness” as :

One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of privacy.

The Restatement (Third) of Unfair Competition § 46 states:

One who appropriates the commercial value of a person’s identity by using without consent the person’s name, likeness, or other indicia of identity for purposes of trade is subject to liability. . . .

As I say, my cursory review of these torts didn’t really seem to fit the situation. What did seem apropos was the following excerpt from Grant v. Esq., Inc., 367 F. Supp. 876, 884 (S.D.N.Y. 1973):

Taggart v. Wadleigh-Maurice, supra (3d Cir. September 21, 1973) presents an interesting illustration of the problem here involved. Plaintiff in that case had been an employee of a company which had contracted to provide portable latrines to the now famous Woodstock music festival. Plaintiff's job had been to empty the latrines. In the course of shooting film for their documentary “Woodstock”, defendant movie makers: (a) shot pictures of plaintiff going about his task; and (b) engaged him in conversation, producing comic effects which defendants included in their final product, to great critical acclaim. Plaintiff sued under § 51. In reversing a grant of summary judgment for defendant, the Third Circuit Court of Appeals found that an issue of fact was presented by the question whether plaintiff had been “drawn out as a performer” rather than merely “photographed as a participant in a newsworthy event”. Although the Court articulated the question in slightly different language, the message of Taggart appears to be that the First Amendment does not absolve movie companies-or publishers-from the obligation of paying their help. They are entitled to photograph newsworthy events, but they are not entitled to convert unsuspecting citizens into unpaid professional actors.

This analysis rang true to how I saw Mandvi work.  In other words, if what Mandvi is doing is drawing people out as performers—singling them out in advance, not giving them fair warning, refusing to identify himself, trying to get them to say something dumb—rather than merely engaging the person on the street in a newsworthy event, then First Amendment protections may not apply.  It’s an interesting question to me about the nature of public spaces and the media (and one I happen to have lived!)  It seems especially relevant in this era obsessed with “reality,” and also especially for an enterprise like the Daily Show, which openly plays with the distinctions between news and entertainment. Our public forums increasingly have to address these issues of privacy when everywhere there are media outlets, and even You Tube-savvy individuals, looking to capture, and profit off of “reality.”  How should the law respond, or should it?    

Stephen R. Miller

June 19, 2012 in First Amendment | Permalink | Comments (0) | TrackBack (0)

Monday, June 18, 2012

Bustic, Gaeta & Radeloff on Using Zoning and Land Acquisition to Increase Property Values and Help Fish

The ability of zoning and land acquisition to increase property values and maintain largemouth bass growth rates in an amenity rich region

Source:Landscape and Urban Planning, Volume 107, Issue 1
Van Butsic, Jereme W. Gaeta, Volker Radeloff
Land use change is a leading cause of environmental degradation in amenity rich rural areas. Numerous policies have been used to combat these negative effects, including zoning and land acquisition. The empirical effects of these policies on the environment and land markets are still debated. Using a coupled economic–ecological model in conjunction with landscape simulations we investigate the effect of zoning and land acquisition on property prices and largemouth bass (Micropterus salmoides) growth in Vilas County, WI, an amenity rich region with growing rural development. Using econometric models of land use change and property prices, we simulate four alternative land use scenarios: a baseline simulation, a zoning change simulation, a land acquisition program simulation, and a land acquisition program+zoning simulation. Each scenario is simulated over 82 separate lakes. For each scenario we calculate the length of a 20-year old largemouth bass, property prices, and number of new residences at simulation years 20, 40 and 60. The policies have small effects on largemouth bass size and property prices on most lakes, although the effects are more pronounced on some. We also test if the increased property values due to land acquisitions are greater than the cost of the land acquisition program and find that in our case, land acquisition does not “pay for itself”. Our methodology provides a means to untangle the complex interactions between policy, land markets, and the environment. Empirically, our results indicate zoning and land acquisition are likely most effective when targeted to particular lakes.

 

Jessie Owley

June 18, 2012 in Property, Scholarship, Zoning | Permalink | Comments (0) | TrackBack (0)

Craig on Oceans and Place-Based Management

The ever prolific Robin Kundis Craig has a new book out:

Comparative Ocean Governance Place-Based Protections in an Era of Climate Change

Comparative Ocean Governance examines the world’s attempts to improve ocean governance through place-based management – marine protected areas, ocean zoning, marine spatial planning – and evaluates this growing trend in light of the advent of climate change and its impacts on the seas.This monograph opens with an explanation of the economics of the oceans and their value to the global environment and the earth’s population, the long-term stressors that have impacted oceans, and the new threats to ocean sustainability that climate change poses. It then examines the international framework for ocean management and coastal nations’ increasing adoption of place-based governance regimes. The final section explores how these place-based management regimes intersect with climate change adaptation efforts, either accidentally or intentionally. It then offers suggestions for making place-based marine management even more flexible and responsive for the future. Environmental law scholars, legislators and policymakers, marine scientists, and all those concerned for the welfare of the world’s oceans will find this book of great value.

 

Jessie Owley

June 18, 2012 in Books, Climate, Environmental Law, Scholarship, Water | Permalink | Comments (0) | TrackBack (0)

LEED's inevitable politicization

The U.S. Green Building Council's Leadership in Energy and Environmental Design (LEED) rating system for green building is updated every several years to reflect changes in the building industry and green technologies.  This is similar to most other building codes, such as the International Building Code, which forms the backbone of many state and local building codes, and which has historically been updated every three years but will be phased in future years.

In past updates, LEED's changes have been relatively arcane matters left to the green building technocrats.  Perhaps the biggest battle in LEED previously was the battle over whether reduction in use of PVC piping in household plumbing should warrant a credit.  But with LEED's rise to prominence as the most important of the green building rating systems, and in particular its adoption by the U.S. General Services Administration (GSA) as a building standard for new government buildings and by numerous local governments for both public and private buildings, its standards have become a hot topic in the building industry.  And apparently, now also a hot topic of industry lobbyists on Capitol Hill. 

On May 18, 2012, a group of eight House Democrats and 48 House Republicans sent a letter to GSA expressing concerns about LEED's proposed new standards, and in particular, several standards related to plastics and chemicals.  In response, LEED's new rating system, previously dubbed LEED 2012, has scrapped a vote on the system's adoption.  Instead, the new system, now dubbed LEED v4, will delay balloting on its adoption by its members until June, 2013 (i.e., not an election year).  You can read the letter from the House representatives here.  You can read the letter from LEED's president, Rick Fedrizzi, on the delay here

Stephen R. Miller

June 18, 2012 | Permalink | Comments (0) | TrackBack (0)

Sunday, June 17, 2012

Smith and Wiek on Achievements and Opportunities in Initiating Governance for Urban Sustainability

Achievements and opportunities in initiating governance for urban sustainability.

Riley Smith, Arnim Wiek from Environment and Planning C: Government and Policy contents vol 29

2012 volume 30(3) pages 429 – 447

The concept of urban sustainability governance has developed as an institutional guiding concept to holistically address the vitality of cities under a long-term perspective and is based on the collaborative efforts of government, administration, business, science, and the civil society. Yet, the initiation and implementation of this guiding concept faces a variety of barriers, including deficient conceptualization, unfamiliarity, detrimental organizational structures, and inertia. We examine the initiation of urban sustainability governance in the City of Richmond, British Columbia, Canada. On the basis of the reviews of administrative documents and interviews with staff across various administrative levels and units, we reflect on achievements and shortcomings against guidelines of urban sustainability governance spelled out in the literature. Our study indicates accomplishments in the conceptualization of a vision and overall framework to operate from, but also a number of deficits in specifying sustainability targets, applying governance principles, and evaluating impacts. Additionally, we discuss how administrative structures influence how urban sustainability governance is being implemented. We draw conclusions regarding general factors for succeeding in the initiation and implementation of urban sustainability governance.

Keywords: sustainable governance, principles, guidelines, governance implementation, evaluation

 

Jessie Owley

June 17, 2012 in Scholarship, Sustainability, Urbanism | Permalink | Comments (0) | TrackBack (0)