Tuesday, June 23, 2015
First off, thanks to Stephen Miller for shepherding the blog for the last year-plus. We co- and contributing editors have been off on various adventures, but Stephen has asked us to recommit to regular blogging and I know we're all excited to do so.
Back before I became a land use lawyer in private practice in Colorado, I was the Managing Attorney of the Land Use Clinic at the University of Georgia. We did a fair amount of work around big box development, including maintaining a guidebook for Georgia local governments. So, I continue to follow news about big box stores with some interest. Recently, the Institute for Local Self-Reliance published a piece, "For Cities, Big-Box Stores Are Becoming Even More of a Terrible Deal." The story outlines the efforts of chains like Lowes to avoid local property taxes by an ingenious method:
From the story:
Figuring out the value of a property can be a complicated business. In Michigan, town and county assessors typically use a property’s construction costs, minus depreciation, as a primary metric to determine its fair market value; taxable value is half that amount. Property owners sometimes prefer, instead, to use the sale prices of comparable properties. This was the approach that Lowe’s took—with a catch. Lowe’s looked at the definition of the word “comparable,” and decided to stretch it. It said that, because big-box stores are designed to be functionally obsolescent, that comparable stores are those that have been closed and are sitting empty—the “dark stores” behind this method’s name.
“Unlike many other commercial properties,” the assessor hired by Lowe’s argued in court, “free standing ‘big-box’ stores like the subject [property] are not constructed for the purpose of thereafter selling or leasing the property in the marketplace.”
It’s an established part of the big-box retail model that the boxes themselves be custom-built, cheaply constructed, and disposable. If retailers decide that they need a bigger space, it’s cheaper for them to leave the old one behind and build a new one. When Walmart, for instance, opened its wave of new, twice-the-size Supercenters across the country in 2007, it left hundreds of vacant stores behind it. This means that new, successful stores like the Marquette Lowe’s are rarely the locations that are up for sale, and that when big-box stores do come on the market, it’s because they’ve already failed or been abandoned by the retailer that built them. In other words, Lowe’s was saying, it had built a property that, despite generating roughly $30 million in annual sales for the company, had very little value, and because of that, it should get a break in its property taxes.
According to the report, this is part of a larger scheme by large chains to avoid property tax implications, which has significant ramifications for local governments:
As one example, take Walmart, the largest among them, which looks for tax loopholes wherever it can find them. “For every kind of tax that a retail company would normally pay or remit to support public services, Walmart has engineered an aggressive scheme to pay less and keep more,” found a 2011 report by the non-profit research organization Good Jobs First. These include using its fleet of lawyers to systematically challenge its property tax assessments, and gimmicks such as deducting rent payments made to itself through captive real estate investment trusts. Good Jobs First calculated that these tactics cost state and local governments more than $400 million a year in lost revenue, and concluded, “Walmart may be more of a fiscal burden than a benefit to many of the communities in which it operates.”
There’s also the other side of a local government’s ledger. Big-box retail is expensive to maintain. Because these stores are located outside of town centers and designed for car culture, they require local governments to extend and bolster public services and infrastructure like sewers, roads, and police forces. They also rely on these services heavily. When eight communities in central Ohio looked at the fiscal impacts of big-box retail, they found that the stores actually demanded more public services than they generated in revenue, and created a drain on municipal budgets to the tune of a net annual loss of $0.44 per square foot, or about $80,000 for a typical Walmart supercenter.
Here at LUPB we've blogged a great deal about big box stores (a search of the site generates over 200 hits) and really, rarely is it good news. But, we'll keep our eyes open for future developments.
Jamie Baker Roskie
Sunday, February 1, 2015
The Land Use and Sustainable Development Law Clinic at the West Virginia University College of Law is pleased to announce its new program, West Virginia Legal Education to Address Abandoned/Neglected Properties (“WV LEAP”). WV LEAP involves a multi-pronged effort to identify common legal challenges related to neglected properties in West Virginia, and to research and disseminate information on effective legal solutions. Abandoned and neglected properties often become complicated burdens for counties and municipalities to address because of lack of clarity on applicable laws, impediments to locating problem property owners, and legal complexities related to property titles. Many communities are also not aware of effective tools and strategies available to them for addressing blight.
WV LEAP was started in collaboration with the Northern WV Brownfields Assistance Center (NBAC), through a generous grant from the Benedum Foundation. To date, the Clinic has conducted “listening sessions” with eight participating West Virginia communities in order to gather data from local stakeholders, such as building inspectors, city attorneys, developers, bankers, and concerned citizens, on the common legal challenges communities face in attempting to address abandoned and neglected buildings.
Clinic staff and law students will spend the first half of 2015 continuing to gather data and conduct legal research, in addition to the Clinic’s activities facilitating community planning and land conservation initiatives. The WV LEAP research will ultimately be incorporated into a “legal toolkit,” which will be made available to municipal attorneys and other stakeholders as a resource on specific steps communities can utilize to combat blight. The toolkit will include guidance such as model ordinances, case studies on effective approaches, and accessible summaries of relevant legal authorities.
The Clinic will also engage in education and outreach on abandoned buildings in the spring and summer of 2015. In particular, the WV LEAP team will conduct a Continuing Legal Education session From Liability to Viability for West Virginia attorneys on May 14 in Charleston, and will also collaborate with the West Virginia Chapter of the American Planning Association, to conduct educational sessions for planners to earn Certification Maintenance credits.
The efforts of West Virginia’s Abandoned Properties Coalition (APC) are another important initiative formed to combat the problem of blight in West Virginia, complementing the Clinic’s work through WV LEAP. The Clinic is a member of the APC, alongside the WV Community Development Hub, NBAC, the Coalfield Development Corporation, the WV Municipal League, the Preservation Alliance of WV, and multiple individual communities. While WV LEAP is geared toward identifying legal tools and strategies currently available in West Virginia, the APC is tasked with advocating statewide policy solutions for streamlining blight redemption. The Clinic’s ongoing research provides important insights into gaps in West Virginia law, highlighting areas requiring reform and legislative advocacy.
Blight—i.e., the prevalence of buildings that are falling into decay, abandoned, or uninhabitable—is a problem nationwide, hampering economic development for many regions. But the problem is particularly egregious in West Virginia, where there are hundreds of neglected properties across the state. The Clinic is pleased to continue to provide technical legal assistance to West Virginia communities, many of which have expressed that neglected properties are their number one concern.
WV LEAP is also central to pushing this matter into the mainstream discourse of WV stakeholders. Blight redemption, in turn, will help community beautification initiatives, redevelopment programs, and economic revitalization throughout the state.
Friday, December 12, 2014
Lee Fennell (Chicago) has posted Agglomerama, __ BYU L. Rev __ (forthcoming). In it, she examines how cities attract the right mix of residents and businesses to maximize social value. She takes a look at a number of possible ways in which cities might incentivize and manage positive spillover effects, including a proposal by Gideon Parchomovsky and Peter Sieglman to emulate shopping mall developer coordination between anchor and satellite tenants, which proposal can be found in their Cities, Property and Positive Externalities, 54 Wm. & Mary L.Rev. 211 (2012). Here's the abstract for the Fennell piece:
Urbanization presents students of commons dilemmas with a pressing challenge: how to achieve the benefits of proximity among people and land uses while curbing the negative effects of that same proximity. This piece, written for the 2014 BYU Law Review Symposium on the Global Commons, focuses on the role of location decisions. It casts urban interaction space as a commons that presents the threat of overgrazing but that also poses the risk of undercultivation if it fails to attract the right mix of economic actors. Because heterogeneous households and firms asymmetrically generate and absorb agglomeration benefits and congestion costs, cities embed an interesting collective action problem — that of assembling complementary firms and households into groupings that will maximize social value. After examining the nature of this participant assembly problem, I consider a range of approaches to resolving it, from minor modifications of existing approaches to larger revisions of property rights.
Sunday, November 30, 2014
For my last guest post this month, I want to return to my primary area of research to date: American Indian land tenure. As I’ve written about here already, one of my primary interests is in thinking broadly about the many varied factors that influence landowners’ decision-making about how they use their lands. Our essential land tenure institutions are foundational in this sense and directly impact land use decision-making before anything like zoning or other direct regulation of land use even has a chance to take effect. Nowhere is the influence of the design of foundational property rights more apparent than in the land tenure relationships in the modern American Indian reservation, where significant swaths of Indian-owned lands are currently not used by Indian landowners themselves but instead sit idle or are leased to non-Indian users. In fact, I have a hard time imagining a property system better designed to discourage Indian prosperity on Indian land than the top-down system of property imposed on indigenous people in this country today.
In this post, I want to give at least an overview of some of what I think are the most important and influential aspects of American Indian land tenure and then talk just a bit about why I think further scholarly engagement in this arena would be incredibly valuable in a range of settings.
I. The Indian Land Tenure Challenge
To start, I appreciate that there is a wide spectrum of knowledge regarding the nuances of modern American Indian land tenure. For some of us, it’s just a mystery how land is owned and held within reservation boundaries. For others, the system is so complex that once we start to study it at all, conversations and work regarding indigenous land rights devolve into a level of generality that isn’t as productive as it could be. Thus, a significant part of my current research agenda is trying to do the deep work required to develop a really rigorous understanding of the modern property rights framework within this very complex reservation setting. This post won’t be able to do all of this work justice. Nonetheless, here is a brief overview.
Two of the biggest and most widely recognized challenges for Indian landowners are the federal trust status on many Indian-owned lands and the fractionation (or extreme co-ownership) conditions within many of those same properties.
Many, but not all, Indian-owned lands within federal Indian reservations are held in a special trust status over which the federal government acts as trustee for the benefit of the individual or tribal landowner. This trust status’s history is complex, but the important point for this purpose is that the trust status has been extended indefinitely and, to many eyes, appears to be perpetual.
This federal trust status certainly has some legal advantages—as evidenced, for example, by ongoing efforts by many Indian tribes to have additional lands taken into trust. The primary benefits include cementing a stronger case for exclusive federal/tribal (as opposed to state) jurisdiction over the space and also clarifying that state property taxes may not be imposed on that trust land. (The property tax issue is not quite that black and white. Many tribes still make special payments in lieu of taxes to state and local government in exchange for services and to help eliminate conflicts over fee-to-trust conversions.)
The trust status, however, also has significant disadvantages for Indian landowners. It is restrictive and extremely bureaucratic. The federal government exercises significant land management control, and most Indian-owned trust lands cannot be sold, mortgaged, leased, or otherwise developed or used without a formal approval from the Department of Interior after a cumbersome process of appraisals, oversight, and multi-level review. This trust system very dramatically increases the transaction costs for any land use and is often inefficient and even demoralizing for Indian landowners (not to mention extremely expensive for the federal government to maintain).
The second problem, fractionation, is closely related to the trust status issues. Fractionation refers to the fact that many individually owned Indian trust lands (often called allotments) are now jointly owned by many, many co-owners—sometimes as many as several hundred or more. Fractionation makes any kind of coordinated decision-making among all of these co-owners practically difficult and, as an individual co-owner’s interest size diminishes, reduces the likelihood that the co-owners will so cooperate. This then increases co-owners’ reliance on the federal government’s ongoing trust management role over these lands. All of these tiny interests, in turn, overwhelm the federal trust system, as evidenced by the recent Cobell class action litigation which uncovered the federal government’s gross inability even to account accurately for all of these small interests.
The federal government has explicitly acknowledged that this fractionation problem is a direct consequence of its own failed federal policies on Indian lands. For example, historic prohibitions on will writing for Indian landowners and the modern alienation restraints on Indian trust land have all exacerbated fractionation. Implementing any kind of solution to consolidate these small interests has been exceedingly difficult. This is true both because of the general idea that it’s much harder to reassemble property than it is to disassemble it and because of a host of other political, legal, economic, and even moral issues. Possible solutions do exist, and part of the Cobell settlement funds are currently going to fund a limited buy-back program that will purchase some individual small interests from willing sellers and re-consolidate them in tribal ownership. However, the general trend has been that any such effort at a solution moves so slowly and addresses such a small proportion of the problem that new tiers of fractionation outpace any improvements, with exponentially more small interests continually being created through further subdivision of already small interests over new generations of heirs.
While these two issues—the federal trust status and the fractionated ownership patterns—are complex enough, I don’t think they give a complete picture of all of the issues going on in American Indian land tenure. For example, in a piece called No Sticks in My Bundle: Rethinking the American Indian Land Tenure Problem that I’m currently wrapping up edits on for the Kansas Law Review, I argue that a third significant problem for Indian land use is the gradual elimination over time of any informal use and possession right for co-owners of Indian trust land. Although co-owners in any non-Indian tenancy in common would have a default right to use and possess their own jointly owned land presumptively and informally and without any prior permission from their other co-owners, that is not the case in fractionated Indian lands. Modern federal regulations have recently evolved to require Indian co-owners to get permission or a formal lease from co-owners before taking possession of their own land and also to pay those co-owners rent. I think preserving some route for direct owner’s use of jointly owned land is important and valuable, even in highly fractionated properties, and as noted, I am writing about this more here.
In addition, in another piece I’m currently writing and calling Emulsified Property, I am exploring the problem of uncertain and sometimes overlapping jurisdictional authorities within Indian Country as it relates to land use. This piece explores new dimensions of these property-related jurisdictional issues, but at a high level, the fact is that modern Indian reservation are uniquely plagued by a mind boggling array of unsettled, case-specific, or otherwise unresolved jurisdictional questions. Part of this stems from the fact that most reservations include not only Indian-owned trust lands but also fee lands, which might be owned by non-Indians, Indians of another tribe, tribal citizens, or the governing tribe itself. The state or local government is likely to assert jurisdiction at least over the non-Indian fee properties, but where that state and local jurisdiction ends, and when and if it overlaps with tribal or federal jurisdiction as well, turns on a complex balancing of multiple factors, depending on the type of jurisdiction being asserted. It continually shocks me (and my research assistants) how many unresolved questions there are in terms of who governs what in Indian Country. In my property law class, we often talk about the importance of certainty in property rules. So many of our social and economic institutions rely on having clearly established, easily communicated entitlements and responsibilities with respect to a given thing. In Indian law, there is often very, very little of that certainty.
This just scratches the surface of the American Indian land tenure paradigm, but it is already easy to see why land use is such a challenge in Indian Country. Despite significant reserved lands and natural resources, Indian people suffer some of the worst poverty in the United States.
II. Why It Matters
Now for my plug for why I think more of us should be engaging in this important work around Indian property and land use. Of course, immediately and most importantly, there is the compelling problem of justice and fairness for indigenous people, who suffer the consequences of these failed property systems most directly. The Harvard Project on American Indian Economic Development has found repeatedly that Indian people having the power and the liberty to make their own decisions with respect to their resources and their futures is the best and most effective solution to the persistent problems, including persistent poverty, in Indian Country. In many respects, it is the law that stands most in the way of this, and it will take legal minds to dismantle the current ineffective system. And legal minds who are uniquely interested in the transformative potential of property institutions are especially well suited to begin this task.
On another practical note, the problem of American Indian land tenure also matters economically for all of us. The federal government has acknowledged again and again that it using (wasting) incredible resources continuing to maintain this broken property system.
However, as land use legal scholars, there are other important reasons to work in this rich area. I believe a sustained and careful understanding of these unique Indian property institutions, and the evolution of these property relationships through various federal land reforms over time, can help us address property and land use challenges not only in Indian Country but in other venues as well. Other scholars have sometimes analogized to Indian land tenure issues for this kind of purpose, but that work has sometimes lacked a real detailed and deep understanding of how complex Indian land tenure issues actually are. However, with more careful analysis, there could be very fruitful comparative work. Let me give just two immediate examples, both of which I'm just beginning to work on.
First, the co-ownership institutions in Indian Country are unique, but the fractionation (or heir property) issues are not. Paying attention to the default co-ownership rules for individually owned Indian lands can help us learn about and address co-ownership challenges in other settings—such as the role of default co-tenancy rules in balancing flexible use arrangements with land preservation strategies for at-risk communities. It can also inform property theory and practice on how co-ownership institutions can best be designed to promote coowner cooperation and efficient use of resources more generally, how anticommons properties actually work, and what methods are most useful to re-aggregate overly fractionated property rights.
Second, I am also excited about how learning from indigenous land planning practices across multiple potential stakeholder jurisdictions within a given reservation (i.e., local municipalities and county governments, state governments, federal governments, and the tribe itself) may translate to inform other work on moving land use planning more generally to more regional, cross-jurisdictional models. Cooperation among multiple levels of government is a persistent challenge in efforts to plan more broadly on a regional, resource-based, or ecosystem level, and yet almost any natural resources or planning person would tell us that this is the kind of decision-making we must do. These kinds of jurisdictional conflicts are being addressed at the reservation level on an ongoing basis, and work on indigenous planning may teach us a lot about how we can plan across jurisdictional boundaries in wider settings. (This is not to suggest that there is a broad literature on indigenous planning or land use issues within reservation legal settings that already exists. There is not. However, for anyone looking to start to review the literature, I recently read an interesting dissertation on comprehensive planning on American Indian reservations and on the Oneida reservation in Wisconsin specifically by Dr. Rebecca Webster, a former law school classmate of mine, that provides a nice place to start and can be found here.) The challenges of planning within a reservation are different and, in some ways, arguably even more complex than the challenges of regional planning generally. Notably, within reservation boundaries, jurisdictional uncertainty may increase concerns about any decision that would jeopardize a future case for asserting jurisdiction, and there are long conflicted histories between neighboring sovereigns. Still, it is a comparison I hope to continue to explore.
This long post only barely skims the surface of all the rich and fascinating land use issues at play in American Indian land tenure. Please consider this an invitation to reach out any time for further discussions on this subject. I would love to continue to engage with more colleagues in this critical subject area and to build more critical learning connections across subject areas and disciplines.
Thanks again for the opportunity to discuss this and other issues here this month.
- Jessica A. Shoemaker
November 30, 2014 in Community Economic Development, Comparative Land Use, Comprehensive Plans, Economic Development, Federal Government, History, Local Government, Planning, Property, Property Rights, Property Theory, Race, State Government, Zoning | 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
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)
Wednesday, June 11, 2014
Last week, Buffalo hosted the 22nd Congress for New Urbanism. With a constrained conference budget, I was planning on just scoping out the (numerous) public events. Then conference funding came through from a surprising source. I actually won free conference registration via Yelp! (yes it pays to be elite). I am not sure what it says about academia when we have to look to social media to help with our research funding but I was happy to get in the door!
CNU 22 was a mixture of the inspirational and the mundane. It was amazing to see people from all over the country (and particularly so many from Buffalo) coming together to think about how to improve your communities. I bathed in the local pride (feeling the Buffalove as we say around here) and heard inspiring tales about efforts in Toronto, Minneapolis, DC, and Milwaukee. But nothing was actually radical. In some ways this is an encouraging story. It no longer seems crazy to argue that suburban sprawl is destroying community. I really didn't need convincing that we should have more walkable or bikable cities. There seems to be general agreement on what elements make for a thriving urban environment and largely agreement from the attendees on how to get there (community involvement, form based codes, economic development). Thus, while I enjoyed myself and met some fascinating folks I left the conference with an empty notebook. Maybe I just attended the wrong sessions, but I wonder what types of legal changes we might need, what type of property tools we can use, and of course who is gonna fund it all. Any suggestions?
June 11, 2014 in Community Design, Community Economic Development, Conferences, Downtown, Economic Development, Form-Based Codes, New Urbanism, Pedestrian, Planning, Smart Growth, Sprawl, Urbanism | Permalink | Comments (2)
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
Tuesday, August 13, 2013
Hanoch Dagan (Tel Aviv) has posted Property Theory, Essential Resources, and the Global Land Rush. The abstract:
Recent large scale transnational transfers of land threaten members of rural communities in the developing world who rely for food and shelter on access to land they lack formal title to. Contrary to some of the conventional wisdom, this Essay argues that liberal property theory provides important inroads for addressing this challenge. Properly interpreted, property requires an ongoing (albeit properly cautious) redefinition of existing property institutions as well as the design of new ones, in light of changing circumstances and in response to the liberal property values of personal independence, labor, personhood, aggregate welfare, community, and distributive justice. These property values imply that the new, transnational land market must accommodate a property institution for essential resources that secures the individual and collective rights of pre-existing users. Securing these rights does not require that we reject the logic of competitive markets. Quite the contrary. One promising path for realizing these rights is to strengthen competition through properly designed auctions that ensure the members of local communities choices between outright sale offers and equity investment in local cooperatives.
Looks like another must-read for property theorists!
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)
Monday, September 24, 2012
Alexandra B. Klass (Minnesota) has posted Takings and Transmission, forthcoming in the North Carolina Law Review. The abstract:
Ever since the Supreme Court’s controversial 2005 decision in Kelo v. City of New London, courts, state legislatures, and the public have scrutinized eminent domain actions like never before. Such scrutiny has focused, for the most part, on the now-controversial “economic development” or “public purpose” takings involved in the Kelo case itself, where government takes private property for a redevelopment project that will benefit another private party as well as increase the tax base, create new jobs, assist in urban renewal, or otherwise provide economic or social benefits to the public. By contrast, until recently, there has been little change in law or public opinion with regard to takings involving publicly-owned projects such as hospitals or post offices or “use by the public” takings that involve condemnation for railroad lines, electric transmission lines, or other infrastructure projects. However, recent changes in electricity markets and the development of the country’s electric transmission system have raised new questions about the validity of “use by the public” takings in the context of electric transmission lines. With some transmission lines now being built by private, “merchant” companies rather than by publicly-regulated utilities, and with the push to build more interstate transmission lines to transport renewable energy to meet state renewable portfolio standards, what was once a classic public use is now subject to new statutory and constitutional challenges. This Article explores the potential impact of these developments on the use of eminent domain for electric transmission lines. Ultimately, it suggests that states should ensure that their eminent domain laws governing transmission lines are consistent with their policy preferences surrounding energy development in the state, and it outlines some ways for states to accomplish this goal.
I think you could make some analogous analysis about the newly-hot issue of eminent domain and pipelines, for example the controversy over the acquisition of rights of way for the Keystone Pipeline. Interesting issues.
Sunday, August 12, 2012
Eduardo M. Penalver (Cornell) has posted The Costs of Regulation or the Consequences of Poverty? Progressive Lessons from De Soto, which is a chapter from the book Hernando de Soto and Property in a Market Economy, (D. Benjamin Barros ed.), Ashgate, 2010. Penalver's abstract:
Commentators have often characterized Hernando de Soto's advocacy of formalization of title for landless squatters as right-wing. And de Soto seems to understand himself as an advocate of individual property rights and free markets. But his analysis of informality and redistribution has a subtext with potentially progressive implications. Although de Soto sometimes reflexively attributes informality to overregulation, informality can always also be characterized as the consequence of being too poor to afford regulated goods. Indeed, for any particular regulation that puts the regulated good out of reach of the poor, we can either attribute this consequence to the cost of the regulation or to the consequences of a distribution of wealth that makes the regulated good unaffordable to those at the bottom. Thus, if the regulation is a good one, its effect on price, and therefore on informality, may argue in favor of keeping the regulation but redistributing purchasing power to blunt its pernicious impact on informality. What we need is a way of evaluating regulations that goes beyond merely observing their impact on the cost of goods and, indirectly, on the prevalence of informality. Specifically, we need to be able to evaluate four different possibilities: (1) regulation with redistribution to offset the impact of the regulation on the poor; (2) regulation without redistribution with its attendant increase in informality; (3) redistribution without regulation; and (4) no redistribution and no regulation. Choosing among these options is the domain of applied political theory. The choice is a far more complicated and demanding task than merely observing that regulation without redistribution increases informality.
All of the contributions to the 2010 Barros-edited volume on DeSoto are extremely interesting and thought-provoking. Penalver's essay, just now posted on SSRN, pushes us to consider the property theory beyond the traditional political characterizations of DeSoto's ideas.
Monday, August 6, 2012
Over at Next American City there is a five-part series of interviews being conducted with staffers from New York City’s Department of City Planning, discussing changes to city zoning. The first two installments provide some interesting insights into two innovations to the zoning code.
The first installment looks at the FRESH program, a combination of zoning and tax incentives that are intended to encourage the entry of grocery stores into underserved neighborhoods throughout the city. The zoning incentives include a bonus allowing the construction of a larger mixed-use building if a developer includes a ground-floor grocery store as well as the easing of parking requirements.
The second installment looks at Zone Green, a set of changes to the zoning code that relax barriers to adding more environmentally friendly features to new and existing buildings. Installing such features can often require lengthy approval processes to allow elements not permitted by the building code. Both posts are worth checking out.
On an unrelated note, following up on Stephen’s recommendation of the Pruitt-Igoe Myth, which I strongly second, I wanted to mention a proposed design for the current site, much of which remains empty, that I came across a while back. It offers a neo-classical approach that tries to link the site back with the surrounding grid.
Saturday, July 14, 2012
There is a lot of exciting stuff going on at CUNY these days. Not only have they got themselves a shiny new campus in Long Island City, the just inaugurated their new Center for Urban and Environmental Reform (CUER –pronounced “cure”). Headed up by Rebecca Bratspies, this new center is one of the few places engaging specifically with urban environmental issues. Such an endeavor necessarily involves land use issues. I was lucky enough to be invited to CUER’s inaugural scholar workshop. Titled a “Scholar’s Workshop on Regulating the Urban Environment,” the event brought together scholars from multiple disciplines as well as activists and policy makers. It was an interesting format for an event and I enjoyed hearing from architects, historians, geographers and others. I think we’ll be seeing a lot of interesting events and endeavors from this new center. I know I will be keeping my eye on it.
July 14, 2012 in Community Economic Development, Density, Development, Downtown, Economic Development, Green Building, Historic Preservation, Housing, Local Government, New Urbanism, New York, Planning, Sustainability, Urbanism | Permalink | Comments (1) | TrackBack (0)
Thursday, July 12, 2012
I’ve just returned from several weeks of travel, and thought I’d post on several items I saw along the way. The first of these was a utopian community in Copenhagen, Denmark, called Christiana. Christiana is on an island, Christianhavn, adjacent to the central city of Copenhagen that had been used for military purposes for centuries. When the Danish military closed a base on the island in the Sixties, some freedom-loving hippies and other radicals set up shop by squatting on the land, declared their independence from the Danish state (adverse possession is for sissies, apparently), refused to pay taxes, and otherwise have engaged in community- and ganja-based decision-making ever since. About 1,000 residents now call Christiana home.
There are several aspects of Christiana that I think land use folks will find interesting. First, after four decades of tolerating open rebellion in its midsts, the Danish government finally decided that it needed to do something about Christiana. You might be anticipating a “throw the bums out” approach; but remember, this is Denmark, not Rudy Giuliani’s New York City. Instead of mounting riot troops at Christiana’s borders, the Danish government sent in their lawyers with an ultimatum: Christiana’s residents could stay, but they would have to buy the land from the Danish government. But the Danish government did not demand the market price for the property; instead, they offered the property to Christiana’s residents for a song. In a sense, all the Danish government is seeking to do is to legitimate the ownership of the land; in other words, if Christian’s residents “own” the land, there is some acknowledgment of the government’s control and sovereignty over that land. But, of course, the Christiana residents disdain this idea of ownership even though they need to raise capital to purchase the land.
The result has been one of the most peculiar of solutions: a stock offering of nominal ownership that investors can purchase.
As the New York Times described it:
[Christiana's residents] decided to start selling shares in Christiania. Pieces of paper, hand-printed on site, the shares can be had for amounts from $3.50 to $1,750. Shareholders are entitled to a symbolic sense of ownership in Christiania and the promise of an invitation to a planned annual shareholder party. “Christiania belongs to everyone,” Mr. Manghezi said. “We’re trying to put ownership in an abstract form.”
Since the shares were first offered in the fall, about $1.25 million worth have been sold in Denmark and abroad. The money raised will go toward the purchase of the land from the government.
I found this struggle over the idea of ownership to be fascinating. After all, the amount the Danish government is seeking from Christiana is far below the market price of the land in the now trendy area of Christianhavn. However, what the government is doing is forcing the utopian community out of its stance of declaring “independence” from the Danish state, while Christiana’s residents attempt to use arcane legal structures to avoid sullying their hands with the prospect of “ownership.” Am I the only one who thinks of Johnson v. M'Intosh on these facts?
The second interesting issue in Christiana was a poster located on the community’s main meeting room, which establishes the community’s “common law.” A picture is to the right. Now, at first blush, this will not look much like common law, but rather a visual statutory scheme, or maybe even something like the Ten Commandments if written for a biker gang. But it was the kind of rules that interested me: they speak, I think, to the kinds of problems that must have evolved in Christiana over time: hard drugs, biker’s colors, firearms, and so on. Each of these rules, you can imagine, resulted from a particular incident, and so a “common law” evolved in this place where all decisions are made collectively. Such a common law speaks to the potentially rough nature of standing as a state independent from the protection of the sovereign. It made me think of the devolution of all of the United States’ utopian communities, from New Harmony on down. Is such a slide into anarchy, or the fight against anarchy, inevitable in such utopian movements? I don’t know, but Christiana remains, and it seems to continue to thrive despite its troubles. It eeks out a living on the sale of rasta trinkets and “green light district” paraphernalia. And even in this space where there is supposedly no sovereign, there is still some law, borne of hard experience, common to all. Its future, cast somewhere between lawfully-abiding property owner and anti-property ownership crusaders, between freedom and the "common law's" protections, will be interesting to watch in the coming decades.
July 12, 2012 in Aesthetic Regulation, Architecture, Community Economic Development, Comparative Land Use, Constitutional Law, Development, Economic Development, Eminent Domain, Globalism, Planning, Property, Property Rights | Permalink | Comments (0) | TrackBack (0)
Tuesday, July 3, 2012
James G. Dwyer (William & Mary) has posted No Place for Children: Addressing Urban Blight and Its Impact on Children Through Child Protection Law, Domestic Relations Law, and 'Adult-Only' Residential Zoning, Alabama Law Review, vol. 62 (2011). The abstract:
For any child, residential location is a large determinant of well-being. At the negative extreme, a neighborhood can pose threats to children's well-being far exceeding those present within the home in typical cases of child protection removal. The worst neighborhoods pose direct threats to children's physical and psychological well-being, and they also adversely affect children indirectly by creating stressors that undermine parents' abilities to care for children. Pervasive crime and substance abuse, in particular, substantially elevate risks to children beyond those created just by less capable or less motivated parents. Given that a relatively high percentage of adults who live in the worst neighborhoods are marginal to begin with, in terms of their inherent capacities for giving care and maintaining safe and healthy homes, the additional threats present in the larger residential environment push the experience of most children in such neighborhoods below what most people -- including those who live in the neighborhoods -- would regard as a minimally acceptable quality of life. Because such neighborhoods are also likely to have inadequate -- even dangerous -- schools and few legal employment opportunities, living in them severely diminishes the life prospects of children forced to grow up in them.
To date, government efforts to improve the lives of these children, and scholarly writing on the topic, have focused on urban renewal and criminal law enforcement in these neighborhoods. These have mostly been unsuccessful, where they do succeed they typically do so by simply relocating the dysfunction to another neighborhood, and even if renewal efforts undertaken today might ultimately be successful that is of no help to a child born today into dangerous urban blight. The only way to ensure that children do not suffer the effects of growing up in deeply dysfunctional communities is to get them out now. Policy should shift to a strategy of separating children as early as possible from the adults who are creating toxic social environments in impoverished areas. In fact, programs that have assisted parents who wished to relocate with their children from high-poverty, inner-city neighborhoods to low-poverty areas have greatly improved the children's well-being and longterm life prospects. This Article presents a novel argument for expanding such relocation programs, an argument founded upon basic rights of children -- not rights against private actors who might harm them, though children certainly possess such rights, but rather rights against the state. I argue that the state violates basic rights of children by making certain decisions about children's lives that effectively consign many of them to living in hellish conditions. To remedy this violation of children's rights, the state should now institute reforms such as giving children first priority in distribution of housing vouchers and in provision of relocation assistance and, most controversially, making relocation out of the most dangerous neighborhoods mandatory rather than voluntary for parents who have and wish to retain custody of children. The state should no more permit parents to house children in apartments where stray bullets come through windows and drug addicts clutter the hallways outside than permit parents to take children into casinos and nightclubs. This Article argues that the state is legally free, and in fact morally and legally obligated, to adopt new legal rules and policies aimed at ensuring that no children live in the horrible neighborhoods that exist, and likely will always exist, in our society. It also presents a constitutional lever for overcoming political and community resistance to taking the necessary measures. These measures would entail changes to the law in three broad areas -- child maltreatment, domestic relations, and zoning.
Thursday, June 14, 2012
I recently came across several studies that answer a long-running question of mine: what is the carbon footprint of goods traveling from China to that big box store down the road? The answer also planted a more perplexing question: could it be possible that the carbon footprint of goods in China, if built and assembled in China (or some other distant country) and shipped in a particular eco-sensitive way, could be less than goods "made in the USA"?
The issue of goods transportation and carbon footprints seems to me one of the most important, but potentially counter-intuitive, aspects of land use policy. Independent of economic concerns, which of course is a huge issue of its own, we might presume that a consumer good "made in the USA" has a lower carbon footprint than one made in China. But what if the "American" good is made from parts manufacturers around the world and simply assembled in the United States? For instance, just 40% of the Ford Focus in made in the USA, and just 15% of that car is made in Mexico, with the remainder coming from non-North American parts suppliers. Most "American" cars are really smorgasbords of parts suppliers shipped from the world over to a factory in the US. At the very least, that provides factory assemply jobs for US workers. But if we just consider the environmental impact for a minute, would the carbon footprints of those cars be lower if all the parts were made in one place in China, assembled in China, and then those cars were shipped to their US destinations?
While I can't answer that question directly, a really interesting November, 2011 paper, Moving Containers Efficiently with Less Impact: Modeling and Decision-Support Architecture for Clean Port Technologies, by Josh Newell and Mansour Rahimi at USC's School of Policy Planning and Development, traces the important steps in answering carbon footprint issues in the supply chain. In particular, Chapter 2 in the report models the emissions from real container shipments of an undisclosed toy manufacturer from manufacturing destinations in China to various retail destinations across the US.
The report noted that there were three main contributors to carbon footprints, each of which were potential variables:
The first is the land contribution, which is partitioned into China and United States segments, and is further partitioned into truck and rail segments. The second contribution comes from the sea, which is portioned into cruising speed, and slow speed segments. The third contribution comes from port operations for loading and unloading containers.
In general, the report concluded:
For the average container shipped from China to various U.S. destination zip codes, a carbon footprint of 2,821 kilograms per container per trip was determined. Transport by container ship is the most efficient in terms of CO2 burned per mile. So it is possible for a container to travel a greater distance, yet have a smaller carbon footprint than one that uses land transportation (train/truck) for a greater portion of the distance.
So there you have it: 2,821 kilograms per container on average. And the further the container goes by ship, the lower the CO2 emissions. A similar NRDC study studying retail apparel shipments from China to Denver compared air to ship transit and concluded:
[T]he truck-air-truck pathway emits over 5 times more soot (particulates) and 35 times more greenhouse gases than rail-ship-rail, sending an additional 99 tonnes [sic] of greenhouse gases into the air. On the ocean leg alone, a retailer would reduce GHG emissions by 99% sending cargo by ship instead of plane. Using this method, a retailer could send 101 full containers by ship and still emit fewer GHGs than one container sent by plane.
So ships are cleaner than air transit, too. And what if we could make ship transit cleaner, with greener fuels and such?
All of this brings me back to my new question. If ship transport is relatively green (and we could likely make it greener), and we can run ships all around the world and ship things in containers for relatively low costs, would it be better from a carbon emissions perspective to build all the parts near an assembly site for a product in China and ship it here, or build parts around the world and assemble it in the US? This presumes, of course, that we cannot convince manufacturers to both build the parts and assemble them in the US, which seems to be an industrial model that has gone the way of the dodo bird for economic reasons.
The implications seem vast to me for our industrial areas, both for how we conceive of them in economic and environmental terms in this global age. If the shipping container has changed the economics of manufacturing (anyone interested in this must read Marc Levinson's excellent The Box: How the Shipping Container Made the World Smaller and the World Economy Bigger), might it also change the environmental aspects of manufacturing, too? And if so, what might this mean for our city's industrial areas, and in particular, how we contemplate their environmental footprints? I'd be curious if anyone has studied this particular issue.
Stephen R. Miller
Wednesday, May 16, 2012
Up until now the Keystone Pipeline issue has been cast mainly as a contest between an economic development imperative and environmental conservation. Legal commentators have analyzed it as an environmental issue. As most people can infer, though, the notion of building an "infrastructure" project from Canada to the Gulf of Mexico will require some land rights. Perhaps only in Texas can we see the underlying tension between two principles that are very often in direct conflict: the exploitation of oil and gas resources, and the property owner's rights to her land. The New York Times last week did a fascinating story on one Texas landowner's fight against the eminent domain authority of the Keystone Pipeline, An Old Texas Tale Retold: The Farmer versus the Oil Company.
Ms. Crawford is worried about the possible contamination of her creek. She pointed out that the Keystone 1, TransCanada’s first pipeline, had a dozen spills in its first year of operation.
“I called my farm insurance agent and asked what happens if there’s a spill, I can’t water my crops, and my corn dies,” she said. “He said my insurance won’t cover that. I’d have to sue TransCanada for damages.”
The Crawfords are the last holdouts in Lamar County. (It is unclear how many are left in Texas; the company says it has 99 percent of the rights of way secured.) TransCanada asserts that it has used eminent domain only as “an absolute last resort” in an estimated 19 out of 1,452 land tracts in Texas. Critics dispute this number. . . .
Asked if she would take TransCanada’s offer now — if it meant the full $21,000, with all of her conditions met — she did not hesitate. “No,” she said. “There’s a $20,000 check sitting in the courthouse waiting for us,” she said. “But if we touch it, game over. We lose the use of our land, and we admit what they’re doing is right.”
This is a longstanding issue, both historically and today, but it often gets overlooked when people conflate Texas stereotypes about both property rights and solicitude for oil and gas. Ilya Somin commented on the article at the Volokh Conspiracy, noting correctly that despite its pro-property rights reputation and cosmetic legislation, Texas law still empowers quite a bit of eminent domain for economic development purposes:
Such efforts are unlikely to succeed in Texas. As I described in this article, Texas is one of many states that have passed post-Kelo reform laws that pretend to constrain economic development takings without actually doing so. They might have a better chance in one of the other states through which the pipeline must pass.
The larger question that he poses is whether and how environmental concerns will play a part in future discussions about eminent domain and the never-ending debate over the essentially contested concepts of property rights and the common good. In the real world of land use, the alignment of stakeholders, interests, policy preferences, and legal interpretations isn't always as easy to predict as the cartoon versions might imply.
May 16, 2012 in Agriculture, Economic Development, Eminent Domain, Environmental Law, Environmentalism, History, Houston, Judicial Review, Oil & Gas, Property Rights, Scholarship, State Government, Takings, Texas | Permalink | Comments (1) | TrackBack (0)
Tuesday, May 15, 2012
If you're hanging around the United Nations tomorrow, consider attending this interesting panel that Dean-elect Patricia Salkin will be moderating on Sustainability in Developing Nations: Opportunity for Public-Private Partnerships.
On behalf of the Government Law Center of Albany Law School, please consider joining us for a special program at the United Nations on May 16, 2012 that focuses on sustainability and public private partnerships.
The afternoon program includes Professor John Dernbach from Widener Law School (and his forthcoming book on sustainability will be released at the program), Professor John Nolon from Pace Law School and Professors Keith Hirokawa, James Gathii and Alexandra Harrington from Albany Law School.
The program is free and open to the public but an RSVP is required for security purposes. The announcement is here: http://www.albanylaw.edu/media/user/glc/upcoming_events/051612_UN_Sustainability_Program_Flyerv2.pdf
Sounds fascinating. Both property law and sustainability are among the keys to global progress over the next decades. Thanks to Keith Hirokawa for the pointer.
Monday, May 14, 2012
As most land use professors are well aware, having land declared “blighted” isn’t always such a bad thing.
The potential disadvantages of official “blight” designation are obvious. Properties in declared “blighted” areas can be particularly susceptible to takings by eminent domain, as famously highlighted in Berman v. Parker, 348 U.S. 26 (1954). Official designations of blight can also depress property values in some situations due to a perceived stigma commonly associated with blighted land.
Why, then, would anyone want their real property to be declared “blighted”? The reason, of course, is that officially blighted property can qualify for special tax benefits or programs in many jurisdictions. If parcels are eligible for huge tax breaks only if they are officially labeled as “blighted,” then getting that label can suddenly be more a blessing than a curse.
An ongoing political debate in Columbia, Missouri, showcases this ironic aspect of redevelopment policy. Missouri statutory law provides that new real property improvements in “enhanced enterprise zones” (EEZs) can qualify for generous property tax reductions. Companies that invest in redevelopment within an EEZ can also receive state income tax breaks. A group of government officials in Columbia have thus been seeking to have nearly half of the city designated an EEZ. Unfortunately, EEZ designation requires that the entire EEZ area be declared blighted. In Columbia, the proposed blighted area would encompass vast portions of the city where retail outlets are succeeding and businesses appear to be thriving.
Sadly, those in favor of the EEZ proposal in Columbia argue that declaring half of the city to be blighted is necessary to enable it to compete statewide for new manufacturing and other jobs. At least 118 Missouri communities--comprising one third of the land area of the state--have already declared themselves blighted to take advantage of the EEZ statute, giving them a leg up in attracting private redevelopment dollars.
Should state redevelopment policies be structured such that local officials must declare large amounts of their communities to be blighted to have any chance of competing for private investment?
Those interested in exploring this topic from an academic perspective will find plenty of published scholarship on LexisNexis or Westlaw to distract them from grading final exams for at least a few hours. For a convenient launching point, consider Colin Gordon, Blighting the Way: Urban Renewal, Economic Development, and the Elusive Definition of Blight, 31 Fordham Urb. L. J. 305 (2004).
May 14, 2012 in Community Economic Development, Development, Economic Development, Eminent Domain, Local Government, Politics, Redevelopment, State Government | Permalink | Comments (0) | TrackBack (0)