Wednesday, August 20, 2014
Posting from New Orleans (No. 3) -- Forging Successful Non-Profit Partnerships Following Crisis and Disaster: O.C. Haley Boulevard's Story
This blog post follows-up a pair of August 5th and August 12th New Orleans posts. Although I’m home in Atlanta getting ready to begin the new school year, I’m continuing an observance of Katrina’s 9th anniversary by ‘walking’ O.C. Haley Boulevard and looking at one of the city’s emerging post-storm neighborhood revitalization stories.
At the outset of this post, it is important to note that there are many more neighborhood stories that deserved to be told, ranging from stretches of St. Claude, Carrollton, and Claiborne Avenues to Freret and lower Magazine Streets. There are also many neighborhood corridors still struggling to come back all over the city, but particularly neighborhoods lying generally east and a little north of the French Quarter, including the vast area of New Orleans East as well as the Upper Ninth Ward and the Lower Ninth Ward.
As the son of an architect, I’m always ready to begin discussion of any neighborhood transformation by flashing slides of the ‘bricks and mortar’ improvements. Those are also the improvements that we as lawyers are most directly involved in supporting: the land acquisitions, the tax credit financings, the bridge loans, the condo documents, the parking easements. But to get any neighborhood to the point where it can provide the social and economic buttressing to support significant private market transactions, there’s often a foundation of community activism and advocacy. O.C. Haley Boulevard is no exception.
Very rarely is any one individual or organization the sole ‘mover’ behind a neighborhood’s re-emergence. Long before the levees and flood walls breached, non-profit, business owner, and neighborhood advocacy groups were working to lay the groundwork for O.C. Haley Boulevard’s resurgence. Carol Bebelle, co-founder of the Ashé Cultural Arts Center, moved the Center onto the Boulevard in 1998 in order to sustain and nurture the stories and traditions of New Orleans’ African American community. The Cultural Arts Center’s historic building, an adaptive use of a former department store, became a foothold for the Boulevard’s resurgence, supporting non-profit office space, exhibit and meeting space, and 29 apartments.
About the same time, O.C. Haley Boulevard Merchants and Business Association gathered local businesses to spearhead creation of a strategic plan for the Boulevard’s revitalization.
A couple of years later, in 2000, Café Reconcile opened across the street as an adaptive use of another large historic commercial building, housing a full-service restaurant dedicated to providing culinary training and life skills development to young men and women from the surrounding neighborhoods.
Along the way, the Boulevard attracted key regional community development partners, and led them to call the Boulevard ‘home.’ These partners included Hope Federal Credit Union (http://www.hopecu.org/) and Good Work Network (http://www.goodworknetwork.org/), both of which concentrate their resources on serving low and moderate income families and developing opportunities for minority and women-owned businesses.
In short, the Boulevard’s momentum had already been triggered when Katrina’s storm surge filled-up 80 percent of city, leaving the Boulevard and only a handful of other major corridors navigable by car as opposed to boat. (A relatively current map of the businesses that have grown-up on the Boulevard in the last fifteen years is found on the Merchants and Business Association’s website, http://ochaleyblvd.org/?page_id=5).
Lawyers – often community development lawyers – figure critically in these first stages of a neighborhood’s redevelopment, well before building projects begin ‘going vertical.’ Lawyers are counseling neighborhood groups and businesses on drafting their articles of incorporation and their bylaws or preparing their Form 1029 to seek IRS 501(c)(3) status. They are helping review applications seeking funding from foundations for planning and predevelopment award monies. They may be advising their clients to seek funds for a market study to help give current and future businesses a sense of where and how they might invest their capital and other resources. Or, they may be advocating at city hall for stricter enforcement of health and safety code violations affecting vacant or abandoned properties. Law students interested in pursuing urban and community development work should gain an appreciation in law school of these critical supporting and counseling roles that lawyers play for community groups.
Earlier this month, I visited with Kathy Laborde, President and CEO of the non-profit Gulf Coast Housing Partnership (GCHP). Laborde, who has worked on the Boulevard for almost two decades, described the factors that convinced her and the neighborhood’s stakeholders that they could turn around the Boulevard’s fortunes. GCHP has been a main driver of redevelopment on and around the corridor since Katrina. In sharing her thoughts and recollections concerning the Boulevard’s rebirth, Laborde described not only the last nine years’ key redevelopment projects, but at the same time she highlighted additional pieces of the urban redevelopment ‘puzzle’ that successful urban and community development lawyers need to appreciate to serve their clients well.
(Photo: Gulf Coast Housing Partnership offices (gray building) at 1610 O.C. Haley Blvd.)
Location is an essential consideration for any urban redevelopment project. Against the essential backdrop of an engaged group of neighborhood stakeholders, Laborde outlined the following factors as critical:
- The O.C. Haley corridor’s historic status as the one of the chief commercial centers for the city’s African American community;
- The corridor’s proximity to New Orleans’ Central Business District (separated only by the elevated U.S. 90, The Pontchartrain Expressway);
- The corridor’s proximity to St. Charles Avenue, one of nation’s great historic streets, which runs just 3 blocks to the corridor’s southeast; and
- The presence of historic commercial buildings fronting O.C. Haley Boulevard and stakeholders’ initial investment in rehabilitation of those structures.
These four areas of strength formed a sort of superstructure for the corridor’s redevelopment; however, by themselves, these four factors were not sufficient to draw significant investment to the corridor. The challenge for GCHP and the corridor’s stakeholders was how to connect O.C. Haley’s assets to the city’s surrounding areas of strength and investment while maintaining the corridor’s character. It was at this juncture, nine years ago, Hurricane Katrina unleashed its destructive forces.
Katrina fundamentally altered the way those inside and outside New Orleans viewed the city. To those living in New Orleans, the telltale watermark stains left by the epic flooding clearly distinguished O.C. Haley Boulevard as ‘high ground’ that did not flood. To those outside New Orleans, particularly local and national foundations and philanthropies, O.C. Haley Boulevard bordered one of the city’s toughest neighborhoods with one of its deepest pockets of poverty. Outsiders also appreciated that the Boulevard was surrounded by areas of significant strength, including the city’s wealthier Uptown neighborhoods, the Central Business District, St. Charles Avenue, and the former C.J. Peete (Magnolia) development which was a 1930s-era public housing development then-slated to receive millions of dollars in HUD funds for complete redevelopment into the new mixed-income Harmony Oaks community.
Outside funders immediately saw the Boulevard in a new way. It stood out not only as a neighborhood where the private foundations and philanthropic funders saw they could achieve programmatic goals of creating more equitable, inclusive, and prosperous inner-city neighborhoods, but also these private funders were buoyed by the fact that high levels of investment were occurring all around the Boulevard. Further, just as foundations and philanthropies were looking to leverage their investments, so too was the New Orleans Redevelopment Authority (NORA), which was responsible for making decisions about deployment of a tranche of federal disaster block grant monies for commercial corridor investments. It was a ‘no brainer’ for NORA to join the catalytic investments of the Greater New Orleans Foundation, Kellogg, Rockefeller, Ford, Surdna, and the J.P. Morgan Chase Foundations.
Make no mistake – even with this level of interest, the Boulevard was hardly awash in cash. In a post-Lehman Brothers world, banks had a low temperature for risk, and in post-Katrina New Orleans where the levee and flood control system rebuilding was not yet complete, caution was the rule for commercial lenders. But what the philanthropic and government funding accomplished was to make the development ‘math’ work for deals dependent on tax credits and tax exempt bonds. A non-profit developer could run a development pro forma that now yielded at least a sliver of a development fee. The challenge for those developers and their clients was to complete successful residential and commercial development projects that would help New Orleanians and visitors alike see O.C. Haley Boulevard as a safe place to live and work. As Laborde explains, this was the “show me stage” of the corridor’s redevelopment. Beginning in 2007, this is exactly what the Boulevard’s stakeholders began to do.
Over the last seven years, GCHP and the Boulevard’s other stakeholders have completed a steady stream of housing, restaurant, office and retail projects. The first pivotal project was GCHP’s completion of The Muses, a 263-unit mixed-income apartment community, which opened in 2009. This project brought hundreds of new residents to the Boulevard and helped bridge the three-block real estate market 'canyon' between St. Charles Avenue and the Boulevard.
The tipping point project may have been GCHP’s redevelopment of almost an entire city block between Martin Luther King, Jr., Boulevard, Thalia Street, O.C. Haley, and Rampart Street. GCHP convinced the New Orleans Redevelopment Authority to move its 45 employees from its downtown rented office space to become the anchor tenant of an office building with ground floor commercial space. This office and retail building were funded with New Markets Tax Credits, NORA’s investment of $2 Million in disaster Community Development Block Grant (dCDBG) funds, and private financing. The office building, in turn, helped secure financing for an adjacent 75-unit affordable senior housing development.
Another important project was Café Reconcile’s expansion and rehabilitation of its existing restaurant and training space.
Café Reconcile’s $6.5 Million expansion was funded by private donations, NORA dCDBG funds, and state and federal tax credits.
“Success in community development,” Laborde stresses, “is about getting people to follow.” And they are doing so on the Boulevard. More projects are just weeks and months from completion, including the adaptive use of an historic school as a grocery store and offices, the renovation of two large retail buildings into the Southern Food and Beverage Museum (SoFAB), including The Museum of the American Cocktail, as well as the first home of the New Orleans Jazz Orchestra (NOJO), including its 360-seat performance venue. The projects soon coming on-line include:
The school’s $17 million renovation is financed by New Markets Tax Credits, historic tax credits, $1 Million from the City’s dCDBG-funded Fresh Food Retailer Initiative, $900k from the New Orleans Redevelopment Authority, and $300k from the Foundation for Louisiana.
The NOJO Market and SoFAB redevelopment projects critically anchor two separate O.C. Haley Boulevard blocks where the Boulevard meets Martin Luther King, Jr., Boulevard. NOJO’s development is financed by State of Louisiana historic tax credits, State of Louisiana theater, musical, and theatrical production tax credits, $10 Million from Goldman Sachs’ Urban Investment Fund, an $800k loan from NORA’s commercial revitalization gap loan fund, and a bridge loan from Prudential Insurance Company. NOJO will open in the spring of 2015. A ribbon cutting for the SoFAB redevelopment is set for September 29, 2014.
Next week we will wrap-up our discussion of O.C. Haley and Katrina’s 9th anniversary with a discussion of what urban redevelopment professionals are looking for in the attorneys they hire.
John Travis Marshall, Georgia State University College of Law
August 20, 2014 in Affordable Housing, Architecture, Community Economic Development, Development, Downtown, Federal Government, Financial Crisis, Historic Preservation, Housing, HUD, Redevelopment, Teaching | Permalink | Comments (0)
Monday, August 11, 2014
Posting from New Orleans (No. 2) -- Reviving Inner-City Neighborhoods: the Challenges of Teaching and Doing Urban Revitalization Work
This is the second in a series of posts from New Orleans. The first appeared last Monday, August 4th. As I promised in that first piece, today we’re just beginning to take a walk down one of New Orleans’ historic commercial corridors, Oretha Castle Haley Boulevard (O.C. Haley Blvd.), which is named after a leading local civil rights activist. Today’s post looks at the fortuitous intersection between post-Katrina federally-funded long-term recovery programs and the extensive pre-storm efforts of O.C. Haley Boulevard activists and stakeholders to reclaim this historic corridor.
Photo (2014): O.C. Haley Boulevard looking northwest toward the Central Business District (CBD)
In the decades leading up to the 1960s, O.C. Haley Boulevard (formerly known as Dryades Street) was one of the principal shopping destinations for black families and also a pre-Civil Rights Era hub for the City’s best black musicians. During the 50 years since the mid-1960s, O.C. Haley withered a little more each passing year. First, the corridor lost in increasing numbers its shoppers; then its businesses began to close; and then families in surrounding blocks began to move away. Finally, in the years leading up to Hurricane Katrina, the Boulevard started losing its architecturally distinguished commercial structures – one by one.
Earlier this spring, in his CityLab article, The Overwhelming Persistence of Neighborhood Poverty, Richard Florida tacitly suggests that O.C. Haley’s fate has been the fate of our oldest urban neighborhoods all across the country. Florida’s article, citing a May 2014 study by Joseph Cortright and Dillon Mahmoudi, disclosed a number of fascinating tidbits about cities, but the statistic that really jumped out is this one: since 1970 “for every single gentrified [urban] neighborhood, 12 once-stable neighborhoods have slipped into concentrated disadvantage.”
That statistic about declining inner city neighborhoods stopped me in my tracks. As long as I can remember, I’ve been fascinated by two things: old inner city neighborhoods (my dad is a preservation architect) and the Red Sox (born and raised in Boston). This is to say that I'm easily captivated by box score style statistics, such as the one Florida cites. I'm also no stranger to extended periods of adversity for the teams I love. But I clearly did not have an accurate idea of the extent to which so many inner city neighborhoods had faced such long odds for so long a period of time.
The statistic Florida cites concerning the decline of inner city neighborhoods got me to thinking about what I taught my land use students last semester. If our land use, local government, real estate finance, and community and economic development clinic students aim to work in cities, Richard Florida is telling us that they have their work cut out for them. The data suggests there are many hundreds of O.C. Haley-like Boulevards across the country.
Of course the problem of distressed inner city communities is not new. As we all know, lawyers have for years played critical roles in representing community groups, developers, banks, philanthropic funders, and local government clients on every side of urban revitalization deals. But Florida’s article reminded me how large the challenge of neighborhood revitalization looms for cities. There’s a lot of ground to cover in a basic land use class, but I found myself asking what my students and I learned this past semester that would help them do this work better or smarter. The short answer is that we squeezed in as much time as we could to study the redevelopment ‘tool box’ a city and its neighborhood organizations can use to stabilize and revitalize neighborhoods: land trusts, land banks, eminent domain, code lien enforcement, tax credits, etc. But thinking about Florida’s article reminded me that this approach is missing a key element. After all, most of these stabilization and revitalization tools were available to young lawyers and planners and community groups for the better part of the 45-year period that Florida observes the rapid evaporation of inner-city neighborhood vitality.
In thinking about the statistics Florida discusses and about the long decline of O.C. Haley Boulevard, it struck me that the conversation that I didn’t have this spring with the land use students is about the nature of urban revitalization work. It is often a slog. Some describe the work as being as slow and painfully incremental as ‘trench warfare.’ I prefer how some describe it as caring for a patient recovering from a debilitating life-threatening injury. That is, urban revitalization work concerns much more than strategic deployment of those redevelopment “tools.” It goes far beyond helping your client close on tax credit financing for a major catalytic redevelopment project. Rather, it also depends on the patient persistence of a diverse team of ‘caregivers’ over a long period of time. Some of those ‘caregivers’ are internal to the community. They are the local merchants associations and neighborhood advocacy groups. They are also the local community development corporations, code enforcement staff, city councilpersons, assistant city attorneys, philanthropic foundation program officers, and the law school clinics with neighborhood organization clients. Neighborhood revitalization ordinarily requires keeping at least part of these diverse teams together for years – often more than a decade. In other words, it is worth discussing with our students that while they need to know the law and understand the nuances of the ‘tools’, the work of revitalizing a neighborhood is not usually just a transactional matter, but it is much more an organic process.
Kathy Laborde, is President and CEO of Gulf Coast Housing Partnership, one of Louisiana’s leading developers of commercial and residential projects serving low and moderate income communities. Beginning in the late 1990s as a community development banker, Laborde has worked with representatives of the O.C. Haley Boulevard neighborhood on redevelopment projects. Prior to Hurricane Katrina she also moved her development firm’s offices onto the Boulevard. Like the neighborhood merchants association and local community groups, Laborde knew O.C. Haley Boulevard had enormous potential to rebound – even as most New Orleanians ignored the corridor and consciously avoided it for fear of encountering the crime for which the Boulevard had become known. Together with a strong and cohesive band of neighborhood advocates, she has long been a steadfast proponent of revitalizing the Boulevard. In a meeting in her office earlier this month, I asked her why, in the late 1990s, she and neighborhood leaders believed that they could turn around the Boulevard’s fortunes.
In the next blog post, we look at snapshots of the Boulevard's challenging 15 year journey through and beyond Hurricane Katrina to an active neighborhood renaissance that continues to catch the attention of both the city's visitors and long-time residents.
John Travis Marshall, Georgia State University College of Law
Monday, August 4, 2014
This August marks the ninth anniversary of Hurricane Katrina’s devastating collision with the Gulf Coast. New Orleans, of course, did not suffer the direct hit that submerged and leveled the Mississippi Gulf Coast, but the hurricane’s historic tidal surge overwhelmed a poorly maintained and engineered Orleans Parish flood protection system. Lake Pontchartrain’s brackish muddy waters poured through gaping holes in flood walls and levees and submerged 80 percent of the city.
The disaster’s immediate aftermath has been described in thousands of blogs, maps, documentaries, songs, books, articles, and deeply disturbing pictures that are seared into the collective American consciousness. The shockingly poor government agency response at every level has earned “Katrina” a place not only in the American political lexicon, but also in international discourse, alongside “Waterloo”, “Watergate”, and “9.11.” For the past nine years, however, an equally compelling but far less “photogenic” story of long-term recovery has unfolded – glacially at first, then haltingly, and over the past four years at a steadier pace. The flood waters inundated the city in just hours, but the long-term recovery has proceeded as a kind of community development ‘trench warfare’, advancing one street and one block at a time.
Nine years later there are still neighborhoods that show only a faint pulse of life amid boarded houses, car-eating potholes, and jungle-like yards. These are particularly the lower income neighborhoods with pre-storm populations that were predominantly African American. These include neighborhoods such as the Upper Ninth Ward and the Lower Ninth Ward. At the same time, the redevelopment slog that has characterized the long-term recovery has been the catalyst for instances of remarkable investment in, and revitalization of, moribund neighborhood commercial corridors.
Many of the law teachers and development practitioners reading this entry have one or more former students or protégés who have sought out opportunities over the past twenty years in New Orleans or Gulfport, Cedar Rapids or Grand Forks, Tuscaloosa or Galveston, or most recently New York City, New Jersey and Detroit to work with federal, state, and local government agencies and, perhaps even more important, with non-profit and philanthropic organizations who often spearhead long-term recovery and revitalization efforts. The next couple of New Orleans dispatches are intended to serve less as a land use travel log than as a discussion of what
happens during a community's long-term recovery as well as the key skills and proficiencies that our students must have in order to contribute to rebuilding cities. It is no coincidence that non-profit and local government executives point to legal capacity and sophistication as critical and also troublesome components of New Orleans’ long-term recovery. The refrain not infrequently heard is that ‘we lost thousands of dollars’ or ‘weeks of time’ because a developer did not challenge an informal government interpretation of a federal regulation that turned out to be incomplete or based solely on anecdotal experience from a disaster in another jurisdiction. There is no substitute for learning how to read and carefully analyze agreements, local code provisions, or federal regulations.
Over the next few weeks, there will be at least two more dispatches from New Orleans. The first dispatch will be from the Oretha Castle Haley Boulevard (“O.C. Haley”), which begins just a football field’s length from the edge of the New Orleans' Central Business District (CBD) and travels southwest towards the Central City neighborhood, which prior to Katrina reported some of the city’s highest poverty and crime rates. You can follow along by entering the intersection of Martin Luther King, Jr., Boulevard and O.C. Haley Boulevard into your favorite mapping application.
Thursday, June 26, 2014
No one is more surprised than I with how much time I spend reading about tax law these days, but I wanted to alert folks to another case regarding the valuation of historic conservation easements. This time, we are talking about Maison Blanche - a fancy former department store now an even fancier Ritz Carlton on Canal Street in New Orleans.
In 1997, the Whitehouse Hotel Ltd. (owner of the property) donated an historic preservation conservation easement to protect the facade to the Preservation Resource Center. Whitehouse's appraiser estimated the value of the conservation easement at $7.445 million (not $7,445 million as the 5th Circuit opinion mistates). The IRS cried foul and valued the conservation easement at $1.15 million and also dinged Whitehouse for an extra 40% for underpaying by more than 400%.
Unsurprisingly, litigation ensued. Whitehouse v. CIR, 2014 WL 2609866 (5th Cir. 2014), decided on June 11th is the second time the case has made it up to the 5th Circuit. The disputes have generally been battles of appraisals and valuation methods. I am not going to express any opinion about the appraisal methods but thought I'd point out a few things.
What does the conservation easement allow?
There was a big dispute here as to whether the conservation easement actually had any value. One of the appraisers suggested that because the conservation easement would not actually prevent Ritz Carlton from building what it want to build, the value should be zero. The highest and best use of the property is unchanged by the conservation easement. This conclusion turned in part on the language of the conservation easement and whether it actually prohibited the potential building of 60 additional rooms on part of the hotel complex. The Tax Court agreed with the appraiser that the conservation easement did not have such a prohibition. Whitehouse I, 131 T.C. 112 (Tax Ct. 2010). The Fifth Circuit disagreed. Whitehouse II, 615 F.3d 321 (5th Cir. 2010). On remand to the same judge, the Tax Court reviewed Louisiana servitude law and again stated its belief that the conservation easement did not restrict the additional building and should not have value BUT the Tax Court acknowledged that it was bound by the 5th Circuit's precedent and estimated the conservation easement value based on that assumption (coming up with as the 5th Circuit said "merely $1,867,716"). Whitehouse III, 139 T.C. 304 (Tax Ct. 2012).
Undoubtedly feeling that it got a raw deal from an unbiased judge, Whitehouse appealed but the 5th Circuit upheld the Tax Court stating that even though the Tax Court went out of its way to voice its disagreement with the 5th Circuit that was allowed as long as it actually followed the 5th Circuit.
Can you rely on tax professionals' assessments of your conservation easements?
Well, at first blush the answer to this question looks like "no" because the appraiser was so wrong. But the key question to consider for this case is whether Whitehouse's reliance on its appraiser and other professional should protect it from the penalty for gross underpayment (the 400% thing I mention above). There is a reasonable cause exception that allows taxpayers to get out from under this rather steep penalty. This issue is important for people interested in conservation easements because we see over and over again how far apart the private appraisals can be from those the IRS calculates. How much should we penalize landowners for their underpayments made in reliance on qualified professionals? The Tax Court imposed a 40% gross underpayment penalty, holding that Whitehouse had not done enough to demonstrate that it had reasonable cause to believe the appraisal. The court may have been particularly persuaded by the fact that the appraisal of the conservation easement exceeded the price actually paid for the property. The 5th Circuit reversed on this issue because Whitehouse had consulted with more than one appraiser and consulted other tax professionals. The 5th Circuit found this to be adequate.
I am really torn on this one. We want landowners to be able to rely on qualified appraisers and to impose a 40% tax penalty could be particularly painful to small landowners. But there have been repeated examples of bad appraisals around and it seems like there has got to be some type of smell test. Where a conservation easement is valued so much higher than the purchase price of the property, I hesitate too. Of course, I understand that the purchase price doesn't really tell you the value of the property and the value of what an entity like Ritz Carlton can get out of a property, but at the end of the day as a taxpayer, I don't even like the fact that the landowners here got a $1.8 million dollar charitable tax credit to build a big fancy hotel and condo complex that will make them oodles of dollars. Arguing that they lost $1.8 million because they couldn't make it as absolutely big as they might have just leaves a bad taste in my mouth.
June 26, 2014 in Architecture, Caselaw, Conservation Easements, Development, Economic Development, Federal Government, Historic Preservation, Land Trust, Real Estate Transactions | Permalink | Comments (1)
Monday, June 23, 2014
As long-time readers know, I have an obsession with interest in conservation easements. In particular, I have been intrigued with a category I call "exacted conservation easements," which I view as any conservation easements that have been created in exchange for some type of land-use permit or development benefit.
Many conservation easements are donated to land trusts and government entities. Those landowners are then able to seek deductions for charitable contributions on their federal tax returns based on the fair market value of the conservation easement. Of course, calculating the fair market value of a conservation easement may not be a simple task, but we can leave that discussion for another day. Today, I want to talk about the potential for tax deductions on exacted conservation easements.
Exacted conservation easements exist because a landowner is seeking the right to develop or change her land in a way currently restricted by law. For example, where a landowner wants to convert endangered species habitat into a residential development, the landowner often agrees to burden other land with conservation easements in exchange for an incidental take permit. Now, in what I hope is an uncontroversial statement, I often assert that such conservation easements should not garner landowners any charitable tax benefits. Unfortunately, I heard many stories of landowners seeking and obtaining tax deductions for such properties.
In a recent tax court opinion, we see an example from Colorado. In Seventeen Seventy Sherman Street, LLC [SSSS] v. CIR, T.C. Memo 2014-124, the Tax Court examined the deductibility of historic facade and interior conservation easements. SSSS wanted to develop an historic site (the Mosque of the El Jebel Shrine of the Ancient Arabic Order of Nobles of the Mystic Shrine) in Denver into condos. Because the property is a designated landmark, the architect proposed building in the parking lot and preserving the shrine "as leverage to induce the city of Denver to modify the zoning restrictions governing the use and development of the [property,]" which at that time was not zoned for residential development (T.C. Memo at 5-6). SSSS then entered into negotiations with the city's Community Planning and Development Agency regarding changes to the Planned Unit Development (PUD) for the area, the conservation easements, height variance, etc. The Agency asserted that it would not recommend any changes to the PUD or granting of the height variances without the conservation easements.
Hopefully, you see quickly why I label these exacted conservation easements (or I sometimes call them "coerced conservation easements") and why they differ from the vision most folks have of conservation easements protecting the family homestead and helping farmers keep the property in the family. Here, we have a developer with no emotional connection to the property simply making a deal to obtain the development rights that the developer sets as its goal. This doesn't mean that the developer doesn't value the historic, scenic, and cultural benefits of this property. Indeed, a developer may purchase an important or beautiful site exactly because it believes those features are important, BUT we may not have the same ideas of freedom of contract or donative intent involved. We might want to view such conservation easements differently, more critically.
So what kind of tax break should SSSS be able to get here? My initial take on these has always just been zero. The conservation easements were exchanged for a varaince and favorable development measures; they are not donations. But as the Tax Court points out, we may be able to find some instances where some of an exacted conservation easement was done in exchange for a permit or some other benefit, but the value of the restriction actually exceeds the value of the permit. Frankly, while I agree generally with that sentiment, I have trouble picturing where that might occur. How do we calculate that? Without the conservation easements here, we know there would have been no permit. So can we really say that the value of the conservation easements exceeds the value of the permit? If so, are there ways to confine the conservation easement to bring it in line with the value of the permit? They have to be perpetual, so we could only change other characteristics. Suddenly I feel like we are immersed in some Dolan-like analysis of value and proportionality.
The conservation easements in this case were first valued at over $7 million. On its tax forms, SSSS did not indicate that it had received anything of value in exchange for the conveyance of the conservation easements (to Historic Denver). The IRS responded that SSSS had failed to meet some filing and appraisal requirements and asserted that the conservation easements should only be valued at a little over $2 million but claimed that the interior CEs were not deductible at all, leaving the potentially deductible amount at $400,000. Here, the Tax Court did not need to determine the value of the conservation easements or the value of the development benefits SSSS received in exchange for them because SSSS failed to identify that it received consideration for the CEs as required by the Tax Code. The court continued to explain that the exchange sure looked like a quid pro quo one with SSSS agreeing to the CEs (whatever their value) in exchange for the Planning Agency's support (whatever its value).
I am glad to see the IRS taking a careful look at these conservation easements. Generally, I think we should be wary of any conservation easements emerging from development schemes.
Wednesday, December 11, 2013
Nowadays I usually get inspired to post on this blog by things that appear in my Facebook feed. Due to my long association with UGA Law many of my friends are in Georgia, and Georgia-related news gets lots of play. Recently a few land use savvy friends have posted this article from Slate, "Why Cul-de-Sacs Are Bad for Your Health."
My first thought - "Isn't this something the New Urbanists have been telling us for, oh, 20 years or so?" Andres Duany has certainly been on the topic for a long time - his book Suburban Nation came out in 2001.
But, this article supports the truth many of us have known for awhile - that living in the suburbs and commuting by car has a negative impact on one's health. This is being confirmed by a recent study at Georgia Tech. The article makes for interesting reading, regardless of where you live.
Jamie Baker Roskie
Friday, November 15, 2013
I no longer follow Georgia news closely, but recently my Facebook feed lit up with multiple article postings and opinions about the Atlanta Braves' plan to build a new stadium in suburban Cobb County, abandoning Turner Field, which they've occupied for only 16 years. Sentiment amongst my friends is running about 20 to 1 against the move. It even merited national attention from a Huffington Post blogger. He brings up the not-unfamiliar criticism that Cobb County has no business spending $450 million on a new stadium when they're furloughing teachers:
Now it seems that Cobb County is one of the 100th wealthiest counties in America, and the 12th most educated. So $450 million must be chump change -- it's not like they're Philadelphia, slashing public school teachers in the face of massive budget cuts. Oh, wait... actually they are sort of like that: "Cobb County's school board approved a 2013-14 budget Thursday night that will result in five furlough days for all employees, the loss of 182 teachers through attrition and a slimmer central administration staff."
The cuts are the result of reduced state aid and lower property tax revenues -- although apparently the lower property tax revenues that are low enough to mean fewer teachers aren't so low that they can't BUILD A NEW BASEBALL STADIUM! For a team that already has what you and I might, sanely, consider a pretty new baseball stadium.
I'm friends with several local government lawyers, and my friend, law school classmate, and former member of the Georgia legislature Rob Teilhet rightly pointed out that building the stadium has no direct relationship to school funding. But, as Land Use Prof chief blogger Matt Festa noted in a blog post he wrote in 2009 on stadium controversies generally, claims are often made that the overall economic development caused by the stadium will benefit the community generally. This project is no exception.
Jamie Baker Roskie
Friday, November 1, 2013
Marie Boyd (South Carolina) has posted Zoning for Apartments: A Study of the Role of Law in the Control of Apartment Houses in New Haven, Connecticut 1912-1932, 33 Pace L. Rev. 600 (2013). In it, she reviews building records and Sanborn maps to give her reader a complete picture of the restrictions placed on apartment development before and after New Haven's first zoning ordinance in 1926. Here's the abstract:
This article seeks to contribute to the legal and policy debates over zoning by providing a more detailed examination of the impact of apartments on both pre-zoning land use patterns and the zoning process during the formative initial stages of zoning in the United States than has been provided in the literature to date. Specifically, this Article analyzes the impact of apartments on both pre-zoning land use patterns and the zoning process in New Haven, Connecticut. It focuses on the period beginning with the selection of New Haven’s first Zoning Commission in 1922, and concluding with the passage of New Haven’s first zoning ordinance in 1926. Through this detailed historical account of the realities of zoning, this Article demonstrates how — due to delays in the enactment of zoning — New Haven’s first zoning ordinance, rather than shaping the future growth of the regulated area, was instead shaped by existing land use patterns and political considerations.
Wednesday, October 30, 2013
So it's been quite awhile since my last post, but I felt compelled to share the end of the story about putting a Wal-Mart in downtown Athens, Georgia. If you're a longtime reader of the blog you may remember that an Atlanta based developer proposed a mixed-use development, anchored by a Wal-Mart, in the center of Athens. (See my previous post here.) Although Wal-Mart never expressed official interest in the project, many local residents were highly opposed to the idea.
Yesterday the local paper featured a story saying that the developer has now abandoned the project entirely, due to market conditions. The development featured student apartments as its residential component, and downtown Athens is already overbuilt in that category. However, the site, while topographically challenging, is prime real estate. I'm sure as market conditions improve something will eventually be built there.
Jamie Baker Roskie
Tuesday, July 23, 2013
I am not sure how many of you are readers of High Country News, but it is of course the go to source for news about the West (especially if you are interested in land use, conservation, or rural peoples). I get it in hard copy because even though you can get it electronically, it is hard to beat seeing their large format magazine with awesome images. An article by Ray Ring from the June 10th issue caught my eye and I thought might be interesting to some of you.
In Paradise at a Price, Ring examines how conservation goals collide with affordable housing. He uses Jackson, Wyoming to tell his tale but it is a story we have seen in many towns. Jackson has some special challenges because of its high percentage of publicly owned land, but we see similar patterns in several resort communities. The story is a simple one. Beautiful areas attract people. Beautiful areas with recreation opportunities in particular end up with communties dominated by fancy vacation homes and amenities for tourists. Real estate prices are high. But all those tourists and Californians with second homes still need goods and services. The problem is that employees of the stores, the ski resorts, the hotels, and the grocery stores can't afford to live in Jackson. This means we need afforable housing projects. Unfortunately, in areas like Jackson the affordable housing projects compete not only with other private residential development but also with conservation efforts.
This article was not about conservation easements, but its description of conservation easements in Jackson illuminated two somewhat conflicting concerns with conservation easements. I'll give you the facts and then explain my concerns.
- More than 97% of Teton County's land is public (owned by federal, state, or local government)
- This leaves only 78,000 acres of private land for development
- Much of this private land is covered by vacation homes for the wealthy
- 1964 local planning laws established overlay districts, protecting wildlife habitat and scenic views. This restricts development on 48,000 acres (leaving only 30,000 unrestricted acres).
- Conservation easements prevent development on 22,000 acres. Most (but not all) of the conservation easements are within the overlay districts
- 20,000 acres are too steep to build on (I think this may leave 10,000 unrestricted developable acres but I am not exactly sure what category these 20,000 acres fall into)
- Restrictions throughout the county limit things like building height (usually nothing over 2 stores) and include specific rules limiting construction near things like spawning areas and swan nests
Okay, so now my concerns. Note, there are many concerns here about affordable housing which are obviously just from looking at the facts above and are well explained in Ring's article, so let me just look to the conservation easement issue.
- Conservation easements are part of the problem on the affordable housing front. The restrictions on development puts up obstacles for people trying to build needed housing. Depending on your goals, you may be okay with that outcome but most of these conservation easements are ways for wealthy people to protect their views and open space (often with receiving attractive tax breaks). I know protecting these beautiful areas is important, but when we let private individuals make all the decisions about what to protect ... it makes me nervous.
- Conservation easements may not get you a lot of bang for your buck. The article states that most of the conservation easements in the community are in areas already protected by overlay districts. This makes me really curious about what type of compensation or development permit the landowners got in exchange for the conservation easements. What are they worth if land use was restricted without them. Admittedly, the conservation easements may have additional restrictions and will remain even if the County changes the contours and rules for the overlay districts. I don't have information about these individual conservation easements, and I am sure the Jackson Hole Land Trust would be pissed at perturbed by my claims but I have seen several examples from conservation easements I have dealt with directly where the landowner receives a large benefit for agreeing not to do something she never intended to do.
Just some food for thought
Wednesday, July 17, 2013
This past weekend I was in Southern California for a family wedding, and we had the chance to go over to the Getty Museum. It is a spectacular place for many reasons including land use and architecture. Right now, and through July 21, the Getty is featuring an incredibly interesting exhibit called Overdrive: LA Constructs the Future, 1940-1990. It tells the story of how LA was the archetype for American land use and development in the postwar era through the end of the 20th Century.
Tuesday, July 16, 2013
Darren A. Plum (Flordia State) and Tetsuo Kobayashi (Florida State-Geography) have posted Green Building Geography Across the United States: Does Governmental Incentives or Economic Growth Stimulate Construction? The abstract:
As green building activity continues to rise across the country, some state governments decided to create incentives that would motivate developers to voluntarily pursue third party certification for their real estate projects in order to assist in meeting sustainability and environmental goals. Despite the growing number of studies in green buildings, the geography of green buildings and sustainable construction only includes a few studies, which emphasize the lack of green building research from the spatial perspective and their relevance to public policies. This study analyses spatial distributions of certified green buildings in relation to governmental incentives deemed necessary to further environmentally friendly public policies that embrace sustainable construction practices while applying a regression analysis over time to determine the impact of such a course of action in relation to economic growth. This study focuses on each of the six states that applied tax incentives. The regression analysis between the number of certified green buildings and Gross Domestic Product in each state shows positive correlation between the two indicating an economic growth is a significant factor to explain the growth in green buildings.
Sunday, March 24, 2013
For those of you who just cannot get enough of Richard Florida, the Daily Beast this week features an exchange between Joel Kotkin and Richard Florida on whether Florida's evolution as a proponent of cities being geared toward the "creative class" constitutes a full-scale retreat from his emphasis on this group as a generator of local and regional economic growth. Florida's installment references a related piece on the importance of urban design that promotes personal interaction that he published in the Wall Street Journal back in July.
HT, Chris O'Byrne.
Tuesday, January 22, 2013
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.
Friday, January 4, 2013
Living in Pennsylvania (as I now do) I feel compelled to see the new Matt Damon movie "Promised Land," which opened in local theaters yesterday. The movie is about fracking, and the trailers look very intriguing. (I saw the trailer while seeing Tom Cruise's new movie "Jack Reacher" which, while most notable for multiple visceral fight sceens and car chases, also has a land use angle - SPOILER ALERT the villians are developers trying to get an advantage in a development project in downtown Pittsburgh.)
Today I was searching for a review of Promised Land and I stumbled across this article on NPR.org, which had an interesting critique of a scene where local citizens vote on whether fracking would happen in their town.
The film remains in the realm of fiction as the town debates an upcoming vote on whether drilling and fracking should be allowed. In the real world, there's almost never a vote.
"In Pennsylvania, where this film was made, municipalities have very little authority over what happens," says Kate Sinding, senior attorney and deputy director of the Natural Resources Defense Council. "They certainly don't get an up-and-down vote."
Still, I think this movie is a "don't miss" for land use afficianados, and I plan to see it soon.
Jamie Baker Roskie
January 4, 2013 in Clean Energy, Community Economic Development, Development, Economic Development, Environmental Justice, Environmental Law, Environmentalism, Local Government, Oil & Gas | Permalink | Comments (0) | TrackBack (0)
Saturday, August 25, 2012
The Philadelphia Inquirer has an article providing an overview of the city's new zoning code, which replaces its 1962 code. The new code allows high-rises to be built more easily in the city's central commercial district and along its waterfront as-of-right. (See map of new zoning districts.) It also "assumes the city's population will grow in the future, and it encourages higher density buildings to accommodate the newcomers." (Note: Philly's population has declined from slightly over 2 million in 1960 to slightly over 1.5 million today.)
According to the article:
Because the previous code was so outmoded, the Zoning Board of Adjustment had gotten in the habit of handing out variances almost at whim, even when a project deviated dramatically from the neighborhood context. The haphazard process invited abuse from powerful gatekeepers, most of them Council members. It often seemed you only needed to make a campaign contribution to obtain a variance in Philadelphia.
Developers advocated for a more predictable development process, which would enable the city to better compete for residents and jobs. The new code is approximately 200 pages shorter than its predecessor.
Two thoughts come to mind after reading this article. First, the discussion surrounding the new zoning code echoes the considerations raised in relation to tax reform, particularly the desire for simplicity and predictability and the concern that a code laden with amendments, overlays, and other complexities favors sophisticated actors. Second, as Philadelphia pushes greater density and potential population growth in Center City, what will become of outlying city neighborhoods, which have seen substantial population declines (and a significant number of vacant properties) in recent decades? In May the city launched a website mapping its inventory of 9,000 vacant properties, approximately one-quarter of the estimated 40,000 abandoned buildings in the city.
Thursday, August 23, 2012
“I can say this is the same as the crisis in Thailand in 1997,” said Hua Ngoc Thuan, the vice chairman of the People’s Committee of Ho Chi Minh City, the city’s top executive body. “Property investors pushed the prices so high. They bought for speculation — not for use.”
The article describes a Vietnam that sounds similar in many ways to the US and other places: a real estate bubble fueled by overpromotion; a recession that has left land development projects uncompleted; a disproportionate impact on younger workers; hard times for certain sectors of the economy, while others are relatively unscathed. Of course with Vietnam having dived in to the global economy in the past generation, the American recession and the European debt crisis are also having effects in Vietnam. But it's still quite interesting that the trigger seems to be a real estate bubble.
Sunday, August 19, 2012
Mark D. Bauer (Stetson) has posted ‘Peter Pan’ as Public Policy: Should Fifty-Five-Plus Age-Restricted Communities Continue to Be Exempt from Civil Rights Laws and Substantive Federal Regulation? The abstract:
Although millions of Americans live in 55-plus age-restricted housing, little research has been done to determine whether these communities benefit their residents, or the nation as a whole. This is particularly ironic because these communities exist in contravention to anti-discrimination laws by virtue of a specific exemption granted to real estate developers by an Act of Congress. Ordinarily age discrimination is prohibited by the Fair Housing Act, Title VIII of the Civil Rights Act of 1968. Successful lobbying by special interest groups carved out an exemption for 55-plus housing.
The original exemption required developers to offer elders special services and facilities in these communities in return for the exemption. Over time, those requirements were eliminated and now the only requirement is that these communities exclude families and children.
While lifestyles focused on golf and tennis may be attractive to younger retirees, older Americans often find themselves in communities bereft of the services and facilities they need for basic life activities and safety. The very nature of these communities result in elders left with depreciating homes, and many are without the financial means to retrofit their 55-plus home or to move into a community better adapted for their needs. This Article explores a popular form of “senior housing” that is unsuitable for most older Americans.
August 19, 2012 in Community Design, Constitutional Law, Development, Federal Government, History, Homeowners Associations, Housing, HUD, Real Estate Transactions, Scholarship, Sun Belt | Permalink | Comments (0) | TrackBack (0)
Friday, August 17, 2012
Martin D. Heintzelman (Clarkson--Business), Patrick J. Walsh, and Dustin J. Grzeskowiak (Clarkson--Business) have posted Explaining the Appearance and Success of Open Space Referenda. The abstract:
To guard against urban sprawl, many communities in the United States have begun enacting policies to preserve open space, often through local voter referenda. New Jersey sponsors such municipal action through the Green Acres Program by providing funding and low interest loans to towns that choose, through a referendum, to increase property taxes and spend the money raised on open space preservation for the purposes of conservation and/or recreation. Understanding which factors contribute to the appearance and success of these measures is important for policy makers and conservation advocates, not only in New Jersey, but across the United States. Although previous literature has examined this issue, this is the first study to account for spatial dependence/spatial autocorrelation and to explore dynamic issues through survival analysis. The traditional two stage model from the literature is extended by incorporating a Bayesian spatial probit for the first stage and a maximum-likelihood spatial error model in the second stage. A Cox – proportional hazard model is used to examine the timing of referenda appearance. Spatial dependence is found in the second stage of the analysis, indicating future studies should account for its influence. There is not strong evidence for spatial dependence or correlation in the first stage. The survival model is found to be a useful complement to the traditional probit analysis of the first stage.
Thursday, August 16, 2012
Foreign Policy recently has published its Special Report "Cities Issue." While the issue is themed on urban affairs generally, its articles coalesce around the amazing urban development taking place in China. From the website intro:
Our special issue dedicated to the cities of the future has its eye squarely toward China, because the cities of the future are increasingly going to be speaking Mandarin -- even more than you realize. It's no longer news that China has embarked on the largest mass urbanization in history, a monumental migration from country to city that will leave China with nearly a billion urbanites by 2025 and an astonishing 221 cities with populations over 1 million. But this isn't just about size: It's about global heft. And that's where the scale of China's transformation into a world leader is truly astonishing. In an exclusive index for FP, the McKinsey Global Institute has run the numbers to produce what we're calling The 75 Most Dynamic Cities of 2025 -- an extraordinary 29 of which are in China. Some are already global powers, from top-ranked Shanghai to manufacturing dynamo Shenzhen; others, from Fuzhou to Xiamen, were little more than provincial backwaters in the 20th century but look to be household names in the 21st, powering the global economy not just through their sheer size but also through their urban innovation and pulsing drive. Europe, meanwhile, will manage only three cities on the list by 2025; the United States finishes second to China -- a very distant second -- with 13. Still think that debate about Western decline is overblown?
There are a whole bunch of interesting articles at the website. Just one that I'll highlight is New Urbanism pioneer Peter Calthorpe's Weapons of Mass Urban Destruction: China's Cities are Making the Same Mistake America Made on the Path to Superpower Status. Again, there's a whole lot of interesting analysis at the FP Cities Issue website.