Friday, January 25, 2013
A new article in Landscape and Urban Planning demonstrates that tourism can play a strong role in shaping landscape, indeed more so than local residents might realize. What I find interesting about the study is that it also shows conversion of land from agriculture to tourism resulting in an increase in economic benefit and ecosystem services. It may be hard to apply these findings outside of the Italian Island where the research was conducted, but the lessons about perceptions and planning models extend elsewhere.
Roberta Aretano, Irene Petrosillo, Nicola Zaccarelli, Teodoro Semeraro, Giovanni Zurlini, People Perception of Landscape Change Effects on Ecosystem Services in Small Mediterranean Islands: A Combination of Subjective and Objective Assessments, 112 Landscape and Urban Planning 63 (2013).
ABSTRACT: Humans constantly modify their environment to better fit their needs. These changes are even more important in small Mediterranean islands, where the flow and type of ecosystem services (ES) is constrained by insularity and heavily exploited by economic activities. We evaluated the dynamics of ES from 1954 to 2007 linked to the changes of the landscape of the Vulcano Island (southern Italy) and related such transformation to the perception of the local communities. We estimated the changes in the total economic value of ES and we coupled this objective assessment with a survey among inhabitants to measure the perception of driving forces and ES. The results show that agriculture was replaced by tourism, which simultaneously has profoundly affected the landscape and brought economic benefits to local population. Despite the urban-sprawl related to tourism development there is an increase of the flow of ES over time because of the conversion of some land-cover classes into others that provide a greater amount of ES. Local communities are aware of landscape and ES dynamics, but they do not perceive tourism as a driving force, which affects the natural attractiveness and cultural identity of their island. This approach integrates a commonly accepted objective technique to assign value to ES, with a subjective assessment taking into account how local people value the flow of ES. Effective strategies for ES management and governance need to address and incorporate local population expectations so to empower local stakeholders in the achievement of higher level of quality of life.
Thursday, January 24, 2013
For more than two years, a number of us (Ken, Jamie, Matt, and Chad) have blogged about food trucks (usually just around lunchtime). Here are some articles updating the situation in Chicago and other cities.
Earlier this month, the Chicago Tribune published a story on dissatisfaction among the portable vendors with the food truck ordinance Chicago enacted last year.
I am bummed I can't make it out to Salt Lake City for what looks to be a fascinating half-day symposium on conservation easements. But organizer Nancy McLaughlin tells me that we can watch remotely. Right now, Utah will enable folks to watch the conference while it is happening. If they can get the presenters to agree, they will also record the presentations and make them available. Details below:
February 15, 2013, 12:00-5:00 p.m. MST
University of Utah S.J. Quinney College of Law
The public is investing billions of dollars in conservation easements, which now protect more than 18 million acres throughout the United States. But uncertainties in the law and abusive practices threaten to undermine public confidence in and the effectiveness of conservation easements as land protection tools. This conference will explore these issues, with the goal of minimizing abuse and helping to ensure that conservation easements actually provide the promised conservation benefits to the public over the long term. Leaders in their respective fields will address (i) the federal tax incentives offered with respect to easements donated as charitable gifts to certain qualified holders, (ii) the state conservation easement enabling statutes, (iii) federal and state oversight of charities, and (iv) the role of state attorney general offices in the charitable sector and in the protection of charitable assets on behalf of the public.
Nancy A. McLaughlin, Robert W.
Swenson Professor of Law,
University of Utah S.J. Quinney College of Law
Federal Tax Incentives
- History - Theodore S. Sims, Professor of Law, Boston University School of Law; Formerly with the Treasury Department
- IRS Response to Abuses - Karin Gross, Supervisory Attorney, IRS Office of Chief Counsel
- Proposed Reforms - Roger Colinvaux, Associate Professor of Law, The Catholic University of America, Columbus School of Law; Former Counsel to the Joint Committee on Taxation
State Enabling Statutes
- History - K. King Burnett, Uniform Law Commissioner, Member of Uniform Conservation Easement Drafting Committee
- Unintended Consequences of “Easement” Terminology - Michael Allan Wolf, Professor of Law and Richard E. Nelson Chair in Local Government Law, University of Florida Levin College of Law, University of Florida Levin College of Law; Editor of Powell on Real Property
- Reforms - Jeffrey Pidot, Former Chief of the Natural Resources Division of the Maine Attorney General’s Office (retired); Originator of Maine’s Enabling Statute Reforms
- Cases and Controversies - Nancy A. McLaughlin, Robert W. Swenson Professor of Law, University of Utah S.J. Quinney College of Law
- History - Marion R. Fremont-Smith, Senior Research Fellow, Hauser Center for Nonprofit Organizations, Harvard University
- Limits of Self-Regulation - Melanie B. Leslie, Professor of Law, Cardozo Law School
Working With State Attorney General Offices
- Overview of Attorney General’s Role in Charitable Sector - Mark A. Pacella, Chief Deputy Attorney General, Charitable Trusts and Organizations Section, Pennsylvania Office of the Attorney General
- Working With the Attorney General’s Office in New Hampshire - Terry M. Knowles, Assistant Director, Charitable Trusts Unit, Department of Attorney General of New Hampshire
- Working With the Attorney General’s Office in California - Darla Guenzler, Executive Director, California Council of Land Trusts
Concluding Remarks—Taking The Long View
Wendy Fisher, Executive Director, Utah Open Lands Conservation Association
Wednesday, January 23, 2013
The Association for Law, Property, and Society (ALPS) has quicky become THE place to be each year for the leading conference on property, land use, and real estate, as well as environmental law and local government. Hari Osofsky has posted the Call for Papers for this year's 4th Annual Meeting in Minneapolis in April.
The ALPS 4th Annual Meeting, http://www.alps.syr.edu/meetingsandconferences.aspx, will be
held at University of Minnesota Law School, April 26-27, 2013. Our annual meetings attract
over 100 participants, approximately one third of whom come from outside of North America and
a number of whom do interdisciplinary work.
Registration and paper/panel submission is available through the conference website or directly at
http://www.regonline.com/Register/Checkin.aspx?EventID=1158517. The deadline for
submitting papers and panels is March 1, 2013, but registration for the conference will continue
to be available after that date. Please do not submit papers and panels after March 1, 2013 as part
of your registration without having emailed Hari Osofsky, firstname.lastname@example.org for permission to
submit late. We will do our best to accommodate late submission requests, but can only
guarantee that proposals submitted by the March 1, 2013 deadline will be able to be considered
for the conference.
This year’s registration includes an option to register to attend without presenting and an option
to submit complete panels in addition to individual papers. As in previous years, we will have
both draft paper panels and early works-in-progress panels dedicated to brainstorming scholarship
at its beginning stages. We also plan to support early-career scholars in their development and in
connecting to mentors through the conference events. A discounted early registration rate of
$145 is available until March 1, 2013; after that date, the registration rate is $175.
We welcome papers on any subject related to property law and from a diversity of viewpoints.
Property related topics areas can include but are not limited to:
· Civil Rights & Inequality (including Race, Gender, Religion, Income, Disability,
etc)/Critical Legal Studies
· Economics and Property Law
· Energy/Environment/Climate Change
· History of Property
· Housing/Urban Development/Mortgages and Foreclosure
· Indian Law/Indigenous Rights Law
· Intellectual Property
· International Property Law/Human Rights and Property/Cultural Property
· Land Use Planning/Real Estate/Entrepreneurship
· Property and Personhood/Concept of Home
· Property Theory
· Takings and Eminent Domain
· Teaching Property
The ALPS 4th Annual Meeting has been planned to immediately follow a conference on Legal
and Policy Pathways for Energy Innovation on April 24 and 25, 2013,
http://www.lawvalue.umn.edu/newsevents/conferences/lppei/home.html, sponsored by the
University of Minnesota’s Consortium on Law and Values in Health, Environment & the Life
Sciences. That conference also is currently accepting paper and panel proposals and offers
discounted registration to ALPS conference participants.
We look forward to welcoming you to Minnesota!
ALPS really is the place to be for any scholar connected with property and land use. On behalf of the membership & outreach committee, we hope to see all of you there!
The right to hunt, the right to fish: Just another wedge issue, a threat—or maybe a boon—to conservation?
There is a newly discovered, “ancient” right making its way into state constitutions across the country these days. It is alternatively packaged as the “right to hunt,” the “right to fish,” the “right to trap” or all three. I became aware of this issue when my state, Idaho, overwhelmingly passed such a constitutional amendment last November. Initially, I thought this was just another “only in Idaho” story: people here are gun-happy, hunting and fishing-loving souls. (For the record, I am an occasional fisher, and am not opposed to hunting or fishing). But then I began to look into it, and it turns out that seventeen—yes, seventeen—states have amended their constitutions with one of these right to hunt-fish-trap provisions.
Apparently these provisions are being pushed by the National Rifle Association (NRA) and related sports groups who believe that latte-sipping liberals in cities won’t stop at trying to get rid of assault rifles, but will also try to eliminate the right to hunt anything—even deer,pheasant, you name it. Perhaps that is truly the origin of these provisions, but if so, I wonder how much this strategy was thought through. As I’ve read the provisions, I can’t help but wonder if some court won’t end up using these newly proclaimed rights as tools for conservation. Here is a quick look at how that might play out.
Vermont—that bastion of liberalism—was the first state to grant the right to hunt way back in 1777. According to the National Conference of State Legislatures, other states realized the necessity for the right to hunt-fish-trap much later: Alabama (1996); Minnesota (1998); North Dakota (2000); Virginia (2000); Wisconsin (2003); Louisiana (2004); Montana (2004); Georgia (2006); Oklahoma (2008); Arkansas (2010); South Carolina (2010); Tennessee (2010); Idaho (2012); Kentucky (2012); Nebraska (2012); and Wyoming (2012).
Several sites have already collected the text of the right to hunt-fish-trap constitutional provisions, such as this collection by the National Shooting Sports Foundation. They are worth reviewing in their entirety as, to my eye, they reflect a surprising diversity of language given the fact that there appears to be a major group like the NRA behind this. I do want to highlight just a couple of the provisions, however, to illustrate what I think may be unintended effects of these provisions. First, let’s look at Alabama’s provision passed in 1996:
All persons shall have the right to hunt and fish in this state in accordance with law and regulations.
Short and sweet. Compare that to the provision recently passed in Idaho:
The rights to hunt, fish and trap, including by the use of traditional methods, are a valued part of the heritage of the State of Idaho and shall forever be preserved for the people and managed through the laws, rules and proclamations that preserve the future of hunting, fishing and trapping. Public hunting, fishing and trapping of wildlife shall be a preferred means of managing wildlife. The rights set forth herein do not create a right to trespass on private property, shall not affect rights to divert, appropriate and use water, or establish any minimum amount of water in any water body, shall not lead to a diminution of other private rights, and shall not prevent the suspension or revocation, pursuant to statute enacted by the Legislature, of an individual's hunting, fishing or trapping license.
What’s interesting about the Idaho provision is that what the first sentence giveth, the subsequent sentences taketh away. Yes, the Idaho provision explicitly states that “hunting, fishing, and trapping shall be a preferred means of wildlife management.” But, the Idaho provision also states that this does not otherwise provide a right of trespass on private property; that the provision cannot be used to, essentially, lessen any water right or guarantee an in-stream flow; and that it does not “lead . . . to the diminution of other private rights.”
Now, go back to the Alabama provision, which has none of the explicit “take backs” of the Idaho provision. Does that mean that the Alabama provision could potentially affect trespass on private property; affect water rights; guarantee in-stream flows; or lead to the “diminution of other private rights”? Take a look at Minnesota’s provision and ask the same questions:
Hunting and fishing and the taking of game and fish are a valued part of our heritage that shall be forever preserved for the people and shall be managed by law and regulation for the public good.
And now ask those questions of North Dakota:
Hunting, trapping, and fishing and the taking of game and fish are a valued part of our heritage and will be forever preserved for the people and managed by law and regulation for the public good.
Do these provisions that don’t “taketh away” like the Idaho provisions potentially affect private rights or water rights? I don’t have the answers, only questions, because in my (admittedly, very brief) research I found no cases that actually applied any of these newly minted right to hunt-fish-trap provisions. Nonetheless, I think many might have viewed these provisions as anti-conservation, or anti-environmentalist in nature. It might play out that way, but I’m not sure it is necessarily destined to.
Several arguments. First, ostensibly the right to hunt-fish-trap imbues not just to this generation, but also to subsequent generations, as do all other constitutional rights. As such, we would seemingly have an obligation to take care of those wildlife resources in a manner that would maintain the right to hunt-fish-trap in perpetuity not just for state residents today, but for those of tomorrow. This is squarely in line with traditional notions of sustainability: using resources today in a manner that does not diminish their use for future generations. Second, many of the animals that would be covered by a right to hunt-fish-trap would seemingly include those that are exposed to climate change. Maintaining this right to hunt-fish-trap in perpetuity would seemingly also require adaptive management strategies to ensure that changes to habitat ranges would be studied and that the state would act to ensure that such animals are protected in these new habitats so that hunters of future generations could exercise their hunting-fishing-trapping rights.
Finally, it could be that even a state’s failure to address climate change in other capacities could be susceptible to a right to hunt-fish-trap challenge. After all, failure to address climate change will affect those animals that hunters-fishers-trappers need for their sport through changes to habitat, etc. If the state does not act in ways that would mitigate climate change’s effects, they would necessarily be impacting future generation’s ability to hunt, fish, and trap.
Of course, all of these arguments are highly speculative, and I’m guessing, far from the minds of those who put these rights to hunt-fish-trip in place. But I don’t know. Maybe not. And maybe these thoughts were in the minds of the voters that overwhelmingly passed these provisions. As we all know, the broad language of many constitutional provisions can open up interpretations not anticipated by those who pushed for the initial provision. That may just be the case with right to hunt-fish-trap provisions.
When it comes to conservation easements, there are a lot of tax issues that arise. Yesterday, I referred to charitable tax deductions associated with donated conservation easements. Many conservation easements also result in reduced property taxes for landowners. This varies by state law and only occurs where the conservation easement reduces the property value. Generally, however, lands encumbered with conservation easements are still taxed. In fact, the fact that the land stays on the tax rolls has been touted as a benefit of conservation easements (when compared to government acquisition of the land). That is, tax revenue generated by the land may be reduced, but the landowner is still contributing to local services. A new case from a New Mexico Appeals Court holds that for some conserved property, no property taxes will be owed.
The court held that property owned by a conservation organization, subject to a conservation easement prohibiting all construction, for the purpose of open space conservation constitutes a “charitable use” that is exempt from property taxes under the New Mexico Constitution. The state Constitution provides that “all property used for educational or charitable purposes [among various other uses]… shall be exempt from taxation.”
The local government argued that it conservation should not be considered a charitable “use” because the “land that is idle, unimproved and not in actual use” and there “is no direct and immediate charitable use, and for which the claimed environmental benefit—even if construed to be a charitable purpose—is, at best, remote and consequential.” The court disagreed, explaining that “conservation benefits the public … through maintaining the Property for the public’s benefit in its natural, pristine state without any particular human activities or construction.” The court emphasized that not all conserved parcels would meet the charitable use criteria and a case-by-case analysis will be necessary. This will likely be a hard standard to meet for most conservation easements and it is not clear how important the identity of the underlying landowner was.
Tuesday, January 22, 2013
NDLS colleague and super-mom Nicole Stelle Garnett (Notre Dame) has recently posted Redeeming Transect Zoning?, 78 Brook. L. Rev. ____ (forthcoming). In it, she continues the skeptical evaluation of New Urbanists as successors to Jane Jacobs' response to bad planning that she set out in her book Ordering the City (2010). This brief article takes a look at actual form-based zoning code reforms gaining currency in U.S. localities. Here's the abstract:
Thanks to the growing influence of the new urbanists, transect zoning” is becoming the zoning reform du jour. This alternative to zoning traces its origins to architect Andrés Duany’s 2003 SmartCode, which proceeds upon the assumption that urban development naturally proceeds from more-dense areas to less-dense ones. Duany calls this progression the “transect” and urges cities to replace traditional use zoning with regulations on building form appropriate to the various “transect zones” along the progression. Over the last decade, increasing numbers of jurisdictions (large and small) have adopted “transect zoning” laws and the “form-based” codes that accompany and supplement them. Theoretically, transect zoning embraces a relatively simple conception of how to regulate urban development: buildings that are appropriate for the city center should go in the city center (regardless of their use), and suburban buildings should look suburban (again, regardless of their use). In its implementation, however, transect zoning is anything but simple. As a practical matter, the new urbanists favor meticulous and exhaustive aesthetic regulations, found in the form-based codes that represent the ubiquitous gap-fillers in transect-zoning regimes. This Essay begins by briefly describing the rapidly evolving phenomenon of transect zoning and its companion, form-based coding. It then discusses four concerns raised by the current uses of both devices as public land-use-regulatory devices. The Essay concludes by suggesting that form-based codes may be most appropriate in situations approximating the private-development context rather than as a public regulatory.
For those of you interested in conservation easements (particularly historic façade easements), you may have been following the Scheidelman saga.The next installment is now out.
In Scheidelman v. Comissioner, T.C. Memo. 2010-151 [Scheidelman I], the landowner sought a deduction for a façade easement burdening her Brooklyn brownstone. The Tax Court disqualified an appraisal because it viewed the method of calculating the easement’s value inadequate. Appraisals must include the method of valuation used as well as the specific basis for the valuation. The appraiser applied a percentage to the fair market value of the property before conveyance of the conservation easement. The Tax Court found that the appraiser had insufficiently explained the method (i.e., the percentage approach) and basis of the valuation (i.e., the specific data used).
The landowner appealed to the Second Circuit. The Second Circuit [Scheidelman II, 682 F.3d 189 (2d Cir. 2012)] reversed the Tax Court, saying that the shortcomings of the approach should not disqualify the appraisal.
On remand [Scheidelman III, T.C. Memo. 2013-18 ], the Tax Court accepted the Second Circuit's assessment that the appraisal was “qualified” but still thought it was crappy was not credible. You can check out the case if you want to delve into the nitty gritty of appraisal methods. The most problematic issue appeared to be the fact that the appraisal just picked a number between 10 and 12% of the fair market value of the home when trying to determine the value of the conservation easement. The appraiser's reasoned that those are the numbers that courts and the IRS seem to like instead of actually looking at the property and making an assessment.
I am enamored of this case though because in the end the Tax Court said no tax deduction is warranted. The evidence demonstrates that façade easements actually increase the value of homes in this area. Additionally, the landowner herself admitted that she was seeking a tax deduction for something she would have done anyway. Here is my favorite quote from the landowner:
"Well, I was primarily interested in preserving my house itself in light of the dramatic development that was occurring in and around Fort Greene during those years and still is. I was also intrigued by the tax benefit of preserving the facade which I had intended to do anyway. …I also wanted to benefit tax wise. I didn't know how much I would benefit, but I wanted to benefit from what I was already intended to be committed to doing."
I have been disturbed fascinated by conservation easement tax deductions that pay owners not to do things they never planned on doing. In understand that there can be some value to the conservation easements becuase perhaps future landowners would have other desires, but it is hard for me to reconcile that worth with the high value of tax deductions current landowners receive. I am glad to see the IRS and Tax Court calling these landowners out. Maybe if a landowner seeks to claim a tax decuction for a conservation easement and we see that the conservation easement increased the value of their land, they should have to pay that difference to the treasury.