January 27, 2012
Land use at the “Oscars”
The Oscars nominations for Best Picture came out this week, and it’s time to determine which of them has the best chances of winning . . . presuming, as we are to do, that land use will be the primary concern in the judges’ minds.
Some urbanists may argue that Hugo will win for its transit-oriented development themes associated with a young boy living in a train station. Others may argue that Midnight In Paris will win for its historic preservation-inspired romp through Twenties’ Parisian streets. But I think the hands down land use Oscars favorite has to be The Descendants, in which George Clooney plays a lawyer who, along with a large divided family, must decide whether to sell a large plot of Hawaiian lands to a developer or preserve them in an undeveloped state.
Other than Al Gore’s An Inconvenient Truth, when was the last time a land use issue played such a pivotal role in an Oscar-nominated film? I can’t recall of one.
And perhaps of greater issue: could The Descendants be nominated for the Oscar if the family had decided to sell the land? I think not. Part of the redemptive nature of the story is not choosing greed over family, a storyline that would get too muddy if Clooney’s character started negotiating deal points in the wake of his wife's death, no matter what the economic or environmental result was. Has an Oscar ever gone to a film where the protagonist was a developer, for that matter? Or a land use professor?
Something to think about when the stars start walking down the red carpet in a couple weeks.
January 26, 2012
Owley on Exacted Conservation Easements and Enforcement Concerns
Jessica Owley (Buffalo) has posted Exacted Conservation Easements: Emerging Concerns with Enforcement, Probate & Property, Vol. 26, No. 1, p. 51, 2012. The abstract:
Enforceability of exacted conservation easements is uncertain. Legislators, activists, and academics did not contemplate the proliferation of exacted conservation easements when enacting, advocating for, and writing about state conservation easement statutes. Despite this early oversight, exaction has become one of the most common ways that conservation easements come into being. Enforceability of exacted conservation easements is a threshold question of analysis for the continued use of the tool. Assessing the validity, and thus legal enforceability, of the exacted conservation easements involves examining the state’s conservation-easement statutes and state servitude law as well as the underlying permit scheme.
This article presents a roadmap for investigating the enforceability of exacted conservation easements and makes three suggestions for improvement. First, states should address exaction in their state conservation-easement acts. Second, drafters should increase the precision and detail of the agreements, acknowledging and explaining the nature of the exaction and the underlying permitting law. Third, to clarify the elements and uses of exacted conservation easements to both agencies and citizens, government agencies that use exacted conservation easements should promulgate regulations related to their use. Such regulations should include ensuring that permit issuers retain third-party right of enforcements. This will keep the permitting agency involved even if it is not the holder of the exacted conservation easement.
Uncertainty in enforceability of exacted conservation easements calls into question their use as a method of land conservation. Furthermore, the questionable validity of exacted conservation easements indicates that the permits relying upon such exactions could be ill advised and potentially in jeopardy.
This accessible piece builds on some of the concerns outlined in her recent Vermont Law Review piece, The Enforceability of Exacted Conservation Easements.
January 25, 2012
Fast Food, Religion, and Land Use: The Case of Loma Linda
This recent article in the Los Angeles Times details a controversy in the town of Loma Linda, California over the city council's approval of a new McDonald's (some sort of fast-food chain). Voters are contemplating a ballot measure to limit the number of fast food joints and threatening retaliation against the city council come election time. Yawn, right? By now, we've all seen our share of local land use/fast-food dust-ups. But check this out: Loma Linda is the heartland of the Seventh-Day Adventist faith, which preaches the value of a healthy lifestyle. Most Adventists are vegetarians. Importantly, every member of the city council of Loma Linda is Adventist. So I wonder: assuming a ban on fast-food were otherwise appropriate (an open question, in my view), does it become an unconstitutional Establishment of religion if a city's motivation for enacting the ban were its religious beliefs that a vegetarian lifestyle should be encouraged? I'm not aware of too much precedent on this issue, but one relevant case may be Kiryas Joel v. Grumet, 512 U.S. 687 (1994), in which the Supreme Court implied that the incorporation of a village by a religious commune because it wanted to use the zoning power in order to effectuate the religious goals of the commune (there, the traditional preference among Satmar Hasidim for high-density living accommodations) was permissible. Hardly compelling authority, though.
My favorite part of the Loma Linda story is that apparently the town already has a Carl's Jr. and Del Taco. McDonald's appears to have been singled out, perhaps because of its iconic stature. I smell an equal protection issue there. The Times reporter even interviewed a diner at Carl's Jr. who, in the midst of scarfing down some artery-clogging cuisine, declared her opposition to McDonald's because she thought people should be encouraged to eat healthier. For Loma Linda's sake, I hope she's not on the city council!
San Francisco may supplement public art fee with public arts trust fund
San Francisco has long required major development in or near its downtown Financial District to provide on-site public art. The art fee is generally popular, though unfortunately, much of the art produced by the fee is not. For instance, CurbedSF recently invited readers to vote for their least favorite piece of public art in the city. It's hard to choose.
Now the city is looking to restructure that public arts program in a way that would channel money into a public arts trust fund. While the proposed changes are still being worked out by the city's Board of Supervisors, the idea makes perfect sense. The reality is that the reason so much public art is bland is that developers are not in the business of making art, and so what they want is art that has no negative impact on the development either now or in the long-term. The result is typically a bland mass, often with a quasi-whimsical edge.
The public, on the other hand, should not be wedded to massive, permanent art sculptures as the only form of art they see downtown. Rather, the public arts trust fund gives the city the chance to fund art experiences and installations that more actively engage workers, residents, and tourists. For instance, dance companies in some cities have taken to impromptu street performances, acts that provide an invitation to engage traditional arts in unexpected ways. A trust fund approach would allow the city to support such performances. One could also imagine the trust fund supporting the work of other groups of artists, such as conceptual artists like Christo or even Hans Haacke, whose work may not be suitable for permanent installation in the city, but might prove powerful in a three- or four-month installation.
Let's hope San Francisco moves forward with this public arts trust fund approach; it will be one for other cities to watch, too.
CNU Booklet on Sustainable Street Network Principles
The Congress for the New Urbanism has published a booklet called Sustainable Street Network Principles. From the press release:
The Congress for the New Urbanism has long recognized that the street network is a fundamental part of human civilization because it serves as the setting for both commerce and culture. For the first time, the CNU has compiled a set of principles and key characteristics of the sustainable street network into a document that is practical, inspirational, and beautifully illustrated.
The CNU Sustainable Street Network Principles, a product of the CNU Project for Transportation Reform, is being released to coincide with the Transportation Research Board’s annual event in Washington D.C. on January 22, 2011. The Principles have been crafted through nearly a decade of CNU member discussion, research, and involvement. The Principles are a must-have for every traffic engineer, urban designer, urban planner, and engaged urban citizen. They outline not only why sustainable street networks are essential to a vibrant and healthy society, but also what makes a street network sustainable in the first place.
January 24, 2012
Urban Land Institute launches new ULI Greenprint Center for Building Performance
Last week the Urban Land Institute (ULI) announced that the Greenprint Foundation has become a part of ULI's larger environmental initiative. Greenprint assembles voluntarily disclosed information from owners on the greenhouse gas emissions (GHG) performance of buildings. As I have written about previously, buildings consitute a considerable portion of worldwide GHG emissions, and reducing GHG emissions from buildings is the proverbial low-hanging fruit in global efforts to reduce such emissions.
So-called "Class A" building owners, especially in urban markets, have been among the quickest adopters of green building. There are at least two reasons. First, they often are chasing a market segment for whom being "green" is part of an image for which the tenant will pay. Second, the scale of large office and industrial buildings is such that it makes financial sense to invest in green building. Owners of "Class B" and "Class C" buildings have not rushed to the fore because they typically are seeking value-oriented tenants, which they do not believe will pay for green improvements.
One issue with long-term green building investments for commercial spaces, then, has been how to "monetize" such improvements. Part of the difficulty in doing so is that there has not been great comparative data on how a building should perform. As a result, it has been difficult to bring the "greening" of a large commercial space into a transaction. California has sought to do just this through mandatory energy disclosures. But with no federal climate change legislation on the horizon, property owners in other states may have trouble convincing buyers to pay them for green improvements. That is where voluntary disclosures, and programs like Greenprint, make a lot of sense to me. With data provided by the industry voluntarily on a wide number of buildings, the industry has a better gauge for how buildings perform under given conditions, and the relative merit of green improvements can begin to be monetized as a part of market transactions, not simply just as meeting regulatory requirements.
I'm excited to see where this goes. Here is an excerpt from the ULI press release, which can be viewed in its entirety here:
The ULI Greenprint Center will be incorporated into ULI’s broader Climate, Land Use and Energy (CLUE) initiative. The center will carry on the Greenprint Foundation’s mission, which is to lead the global real estate community in the use of greenhouse gas reduction strategies that support the Intergovernmental Panel on Climate Change (IPCC) goals for global greenhouse gas stabilization by 2030. The ULI Greenprint Center will continue to advance the Greenprint Foundation’s goal of a 50-percent reduction in building emissions by that date. Currently, the energy used in buildings represents one-third of all global energy consumption.
ULI, with nearly 30,000 members worldwide, is a 75-year-old research and education institute dedicated to leadership in the responsible use of land and building sustainable, thriving communities. The Greenprint Foundation, currently based in New York City, was founded in 2009 by longtime ULI member Ronald P. Weidner as a worldwide alliance of real estate owners, investors, financial institutions and other industry stakeholders committed to reducing greenhouse gas emissions across the global property industry. To date, the Greenprint Foundation’s member organizations are: Aetos Capital; AvalonBay; Beacon Capital Partners; Blackstone Group; DEXUS Property Group; Douglas Emmett; Equity Office Properties; GE Capital Real Estate; GLL Real Estate Partners; Hines; Jones Lang LaSalle; LaSalle Investment Management; Paramount Group; PATRIZIA Immobilien; Prologis; Prudential Real Estate Investors; RREEF, a member of the Deutsche Bank Group; Sonae Sierra; and TIAA-CREF.
“With the support and resources of ULI, the ULI Greenprint Center will lead the global property markets in reducing greenhouse gas emissions in a meaningful and measurable way. More importantly, it can help change the behavior of the population at large,” said Weidner, the founder of the Greenprint Foundation.
The flagship product of the Greenprint Foundation is its Greenprint Performance Report™, which includes the Greenprint Carbon Index™ (GCX), a tool used by Greenprint Foundation members to gauge relative progress in reducing greenhouse gas emissions over time. The first volume of the report, issued in 2010, contained results obtained from performance during 2009 as a baseline measurement. The second volume, issued in 2011, had results for 2010 that included 1,623 properties in the Americas, Europe and Asia, and which covered a total of 31 million square meters of commercial space. It showed a 0.6 percent reduction in greenhouse gas emissions from the previous year on the like-for-like portfolio of submitted properties.
The international scope and size of the report, including the GCX, make it one of the real estate industry’s largest, most verifiable, transparent and comprehensive energy benchmarking tools. It is unique in that it provides an open standard for measuring, benchmarking and tracking energy usage and resulting emissions on a building or portfolio basis.
Kudos and thanks to my former colleague, Jared Eigerman, who had a role in shaping Greenprint, and who tipped me off to this development.
January 23, 2012
Farmers Take Back Land Slated For Housing
On Morning Edition today, NPR ran a story about farmers who sold land for development repurchasing it for agriculural use. Here's the summary:
Over the past half-century more than 20 million acres of U.S. farmland were transformed into housing developments. With new home construction all but stopped, farmers in many areas are buying or leasing land once slated for development and planting crops on it.
January 22, 2012
Tekle on Lawns and Watershed Law
American's long love affair with the evergreen, crew-cut, weed and pest free "Industrial" front lawn has resulted in untold costs on some of the nation's most cherished waterways, including Puget Sound, the Great Lakes, and the Chesapeake Bay. While this Article examines the legal regimes, primarily public law and neighborhood or community norms, that arguably have helped to "brown" the front lawn and make it environmentally unsustainable, it also argues that law can be a force to "green" it. By virtue of its effects on the watershed and marine ecosystems, the front lawn links water and land. This Article ultimately suggests that localities consider the front lawn’s effects on marine ecosystems and water management as a starting point for crafting land use law and policy. Arguably, therefore, land use law governing the front lawn has become part of the new watershed law.
This is a very interesting paper from my fellow Houston land use prof. I saw Asmara present this at ALPS (there's still a grace period to register, I think!) and as an invited presenter at South Texas. Understanding the normative place of the lawn in American society is absolutely crucial when you draw the connection to the watershed health of big places like Puget Sound, the Great Lakes, and the Chesapeake; and smaller watersheds all over. Check it out.