Thursday, October 11, 2012

Find out which street corner produces the most CO2.

Resarchers from Arizona State have created a program that maps CO2 in cities. What is fascinating about this project is that they can map it down to the level of individual blocks and buildings. While this program is only currently focused on urban areas, global CO2 maps (and particularly maps of rural areas) could be pivotal in any programs related to carbon emissions. It could enable us to identify the heaviest producers and also perhaps assist in sequestration programs. They even made a cool video showing how it works. What a great tool for local governments.

Here is the citation and abstract:

Kevin R. Gurney, Igor Razlivanov, Yang Song, Yuyu Zhou, Bedrich Benes, & Michel Abdul-Massih, Quantification of Fossil Fuel CO2 Emissions on the Building/Street Scale for a Large U.S. City, Envtl Sci. & Tech. (August 15, 2012)

In order to advance the scientific understanding of carbon exchange with the land surface, build an effective carbon monitoring system, and contribute to quantitatively based U.S. climate change policy interests, fine spatial and temporal quantification of fossil fuel CO2 emissions, the primary greenhouse gas, is essential. Called the “Hestia Project”, this research effort is the first to use bottom-up methods to quantify all fossil fuel CO2 emissions down to the scale of individual buildings, road segments, and industrial/electricity production facilities on an hourly basis for an entire urban landscape. Here, we describe the methods used to quantify the on-site fossil fuel CO2 emissions across the city of Indianapolis, IN. This effort combines a series of data sets and simulation tools such as a building energy simulation model, traffic data, power production reporting, and local air pollution reporting. The system is general enough to be applied to any large U.S. city and holds tremendous potential as a key component of a carbon-monitoring system in addition to enabling efficient greenhouse gas mitigation and planning. We compare the natural gas component of our fossil fuel CO2 emissions estimate to consumption data provided by the local gas utility. At the zip code level, we achieve a bias-adjusted Pearson r correlation value of 0.92 (p < 0.001).

- Jessie Owley

October 11, 2012 in Climate, Downtown, Sustainability, Urbanism | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 10, 2012

Conservation Easements Again: Golf Courses as Natural Habitat?

Some of the most questionable conservation easements are those covering golf courses. A recent summary judgment ruling from the Tax Court highlights the concerns that arise. RP Golf LLC owns 277 acres in Platte County, Missouri where it has two private golf courses. It placed a conservation easement over the golf courses and claimed a $16,400,000 tax deduction (yep that’s $16.4 million to agree not to subdivide its golf courses).

To qualify for tax deductions, conservation easements must have a qualified “conservation purpose” as defined in § 170(h)(4)(A) of the Internal Revenue Code. RP Golf claims that its conservation easements meet two different purpose requirements: (1) open space and (2) natural habitat.

Deductions are allowed for conservation easements that protect open space where such preservation is pursuant to a clearly delineated Federal, State, or local governmental conservation policy. I.R.C. § 170(h)(4)(A)(iii)(II). Missouri does have a general policy to promote open space, but the policy enables counties and the state park board to acquire property rights to protect open space in counties where the population exceeds 200,000.  Mo. Ann. Stat. § 67.870. As Platte County has fewer than 100,000 residents, the court concluded the golf course conservation easements were not acquired pursuant to a conservation policy.

Deductions are also permissible where conservation easements protect relatively natural habitat of fish, wildlife or plants. Perhaps somewhat audaciously, RP Golf contends that its conservation easements protect “relatively natural habitat.” It is always a challenge to determine what is “natural” these days and the court found that there disputed material facts on this issue (thus making it inappropriate for summary judgment).

This little cases raises a lot of issues regarding what we protect for whom along with what we consider natural in our increasingly developed world.

- Jessie Owley

October 10, 2012 in Caselaw, Conservation Easements, Land Trust, Property, Property Rights | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 9, 2012

When Aesthetics ARE Health

In the famous 1954 case of Berman v. Parker, private property owners objected to the District of Columbia condemning their land for an urban renewal project “merely to develop a better balanced, more attractive community.” To which Justice Douglas famously replied:

. . . Miserable and disreputable housing conditions may do more than spread disease and crime and immorality. They may also suffocate the spirit by reducing the people who live there to the status of cattle. They may indeed make living an almost insufferable burden. They may also be an ugly sore, a blight on the community which robs it of charm, which makes it a place from which men turn. The misery of housing may despoil a community as an open sewer may ruin a river.

. . . The concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled. In the present case, the Congress and its authorized agencies have made determinations that take into account a wide variety of values. It is not for us to reappraise them. If those who govern the District of Columbia decide that the Nation's Capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way.

While Douglas’ language opened up great potential for aesthetic-based land use regulations,* not all community officials and judges have rushed to embrace his logic. I am certain we can all recall examples when aesthetic justifications have been met with skepticism.  Beauty can be perceived as subjective and arbitrary; and in many instances it is viewed as a lesser, more tenuous rationale than economic or human health impacts.  Indeed, I advise my own land use students that it is strategically better to couple aesthetic arguments with more traditional arguments based on public health and safety.

It was thus with fascination that I listened last week to an interview with Dr. Esther M. Sternberg, who has written a book that demonstrates, through empirical evidence, how the aesthetic design of public spaces such as schools and hospitals directly affects human health.  The book is called HEALING SPACES: The Science of Place and Well-Being, and is published by Harvard University Press.  In her book, Dr. Sternberg makes the case for architects and designers working hand-in-hand with health care workers to improve the health and healing of people.  One compelling example mentioned in her interview is the rate of recovery of patients with views of natural settings, compared to those with views of brick walls.  The interview with Dr. Sternberg can be found here:  http://www.esthersternberg.com/healingspaces.htm.

Justice Douglas thus appears to have been on the right track when he spoke of the correlates between aesthetics and overall human welfare.  Yet the connection may be stronger than even Justice Douglas suspected.  Dr. Sternberg’s work suggests that rather than two independent bases for land use regulation, aesthetics can in fact be an integral and necessary component of human health.

Michelle Bryan Mudd

* It should be noted that D.C’s urban renewal activities have been highly criticized for their race- and poverty-based impacts.  There has been much written on the urban renewal movement, but one recent, well-researched piece is Amy Lavine’s “Urban Renewal and the Story of Berman v. Parker,” 42 The Urban Lawyer 423 (2010).

October 9, 2012 in Aesthetic Regulation | Permalink | Comments (0) | TrackBack (0)

The True Value of Conservation Easements

As regular readers know, I am obsessed with fascinated by conservation easements. Lately, I have been particularly intrigued by valuation concerns. Where a landowner donates a conservation easement on her property, she can receive some favorable tax benefits at the local, state, and federal levels. On federal taxes, landowners can deduct the value of the conservation easement from their taxes in the same way they make deductions for other charitable contributions. This, of course, leads to valuation problems. Without an active conservation easement market, it is hard to figure out what their worth should be. Landowners want high appraisals because it increases the tax deductions. The IRS, however, has been increasingly skeptical of these deductions (especially following some 2003 Washington Post exposes about The Nature Conservancy).

This issue seems particularly salient where conservation easements (including historic facade easement) appear simply to replicate existing land use laws. In such cases, there is a strong argument that the value of the conservation easement should be zero and the landowner should not receive a tax break. Indeed, the landowner does not seem to have lost anything in the transaction. She does not change her behavior and property sales may not even be affected. The Tax Court seemed to agree with this reasoning in the recent Foster Case, where the IRS denied a tax deduction for a historic facade easement. The Tax Court upheld the IRS' finding because, inter alia, the restrictions on the property mirrored those already embodied in local law.

It is not uncommon for conservation easements to replicate or even to conflict with local zoning and land use laws. Proponents of conservation easements point out that conservation easements protect against future actions -- futures where land use codes or other laws could change but the restrictions would still remain in place. While I see there point, something still rubs me the wrong way when we pay people to do things they were going to do anyway. How can we figure out the best way to quantify the public benefit here?

- Jessie Owley

 

October 9, 2012 in Conservation Easements, Historic Preservation, Land Trust, Servitudes | Permalink | Comments (0) | TrackBack (0)

ABA Professor's Corner on Eminent Domain for Mortgage Modifications

This month's installment of the ABA Section on Real Property's "Professor's Corner"--a free monthly teleconference featuring scholars' takes on important new property cases and issues--will feature a really hot topic, the proposal for municipal governments to take property by eminent domain to combat the mortgage/foreclosure crisis.  The info, via David Reiss (who also recently posted a related public comment):

 FREE Professors’ Corner teleconference, sponsored by the ABA Real Property, Trust and Estate Law Section and its Legal Education and Uniform Laws Group.

The program is Wednesday, October 10, at 12:30 pm EDT; 11:30 am CDT; 10:30 am MDT; 9:30 am PDT.

Call-in number: 866-646-6488
Participant Passcode: 5577419753

This month’s topic is Can/Should Municipalities Use Eminent Domain to Take Mortgages to Facilitate Mortgage Modifications? This conference call will be moderated by Professor James Geoffrey Durham, University of Dayton School of Law. Professor Steven J. Eagle, Professor of Law, George Mason University School of Law, is one of the nation’s leading scholars on eminent domain and regulatory takings. Professor Eagle will discuss whether it is possible for local governments to use eminent domain to acquire notes secured by mortgages in order to resell them to a private party which will then modify them, both under the 5th Amendment to the U.S. Constitution and also under state constitution taking clauses as they have been limited by amendments and statutes seeking to define what is a public use. Professor Robert C. Hockett, Professor of Law, Cornell Law School, is the scholar who in June proposed that municipalities could use eminent domain to acquire mortgages, in order to facilitate mortgage modifications to benefit underwater homeowners, in his article: It Takes a Village: Municipal Condemnation Proceedings and Public/Private Partnerships for Mortgage Loan Modification, Value Preservation, and Local Economic Recovery (download paper). Professor Hockett will discuss his proposal, which has received widespread attention. Professor Dale A. Whitman, James E. Campbell Missouri Endowed Professor Emeritus of Law, University of Missouri, Columbia, School of Law, is one of the premier experts on American property law and one of the nation’s foremost mortgage law scholars. Professor Whitman will discuss the impact that implementation of Professor Hockett’s proposal might have on the mortgage markets.

Check out the free telecast on this very interesting and current issue.

Matt Festa

October 9, 2012 in Conferences, Eminent Domain, Financial Crisis, Housing, Local Government, Mortgage Crisis, Mortgages, Property, Real Estate Transactions, Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Brigham-Kanner 2012

The Ninth Annual Brigham-Kanner Property Rights Conference is taking place this week at William & Mary law school in Williamsburg, VA.  The conference, named for Toby Prince Brigham and Gideon Kanner, brings together many of the very top property scholars in the country as well as members of the bench and bar.  This year the Brigham-Kanner Prize will be presented to Professor James E. Krier (Michigan).

The conference will take place this Friday, Oct. 12, following a Thursday evening event.  The conference program looks fantastic and features many of the leading property scholars in the nation.  There is still time to register on-line, and I have also been informed that walk-ins are welcome.  If you can be there it looks to be a great event.

Matt Festa

October 9, 2012 in Conferences, Property, Property Rights, Scholarship | Permalink | Comments (0) | TrackBack (0)