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)
Sunday, May 6, 2012
Sarah Schindler (Maine) has posted The Future of Abandoned Big Box Stores: Legal Solutions to the Legacies of Poor Planning Decisions, 83 Universtiy of Colorado Law Review 471 (2012). The abstract:
Big box stores, the defining retail shopping location for the majority of American suburbs, are being abandoned at alarming rates, due in part to the economic downturn. These empty stores impose numerous negative externalities on the communities in which they are located, including blight, reduced property values, loss of tax revenue, environmental problems, and a decrease in social capital. While scholars have generated and critiqued prospective solutions to prevent abandonment of big box stores, this Article asserts that local zoning ordinances can alleviate the harms imposed by the thousands of existing, vacant big boxes. Because local governments control land use decisions and thus made deliberate determinations allowing big box development, this Article argues that those same local governments now have both an economic incentive and a civic responsibility to find alternative uses for these “ghostboxes.” With an eye toward sustainable development, the Article proposes and evaluates four possible alternative uses: retail reuse, adaptive reuse, demolition and redevelopment, and demolition and regreening. It then devises a framework and a series of metrics that local governments can use in deciding which of the possible solutions would be best suited for their communities. The Article concludes by considering issues of property acquisition and management.
Prof. Schindler's article addresses an important problem in communities across the U.S., and offers some innovative solutions.
May 6, 2012 in Architecture, Development, Economic Development, Green Building, Local Government, Planning, Redevelopment, Scholarship, Suburbs, Sustainability, Zoning | Permalink | Comments (0) | TrackBack (0)
Monday, March 26, 2012
Property Prof Blogger extraordinaire and official Land Use Prof Blog Buddy Steve Clowney draws attention to an interesting recent column from NY Times architecture critic Michael Kimmelman about NYU's plans to expand within Greenwhich Village. I agree with Steve's assessment that the column focuses too much attention on the effect the expansion would have on a little used plot of park space. It is curious that Kimmelman opens the column describing NYU's expansion plans as "acrimonious" but then immediately pivots away from describing any of the actual acrimony to an issue that only he seems to care about, to wit, this "underrated" park that nobody know exists.
Kimmelman's main argument appears to be that NYU itself is responsible for the park space in question falling into disuse, and so the city should leverage its zoning power to force NYU to make the park more accessible. At this point, I was running for my land use casebook to consult the Supreme Court's exactions jurisprudence (For land use newbies: governments are generally not allowed to leverage their zoning power for concessions absent an "essential nexus" between the concession sought and the land use approval requested).
In any event, I can't say Kimmelman is wrong as a policy matter. He may be right that the village needs more open space and that NYU's plan is antithetical to that need. To me, the most interesting part of Kimmelman's piece was his contention that the original Modernist "tower-in-the-park" design that spawned the endangered park space had actually done a good job of bringing much-needed open space to the village before NYU messed it all up. This is at odds with the conventional wisdom that the tower-in-the-park idea was a monstrosity that necessarily brought about extremely alienating public spaces (wisdom made conventional, of course, by a previous crusader against Greenwhich Village construction plans, Jane Jacobs). For an example of such an alienating space, check this out:
For those wondering, this is Empire State Plaza in Albany, New York, a gift of Modernist-loving governor Nelson Rockefeller.
I see an interesting parallel between Kimmelman's affection for Modernist park design in this column and his paean to the virtues of Modernist housing complexes in another column about which I blogged previously. Kimmelman seems committed to resuscitating a form of urban design that has been largely relegated to the dustbin of bad planning ideas. For that, I commend him!
Monday, February 27, 2012
The possibility of Walmart coming to Athens, GA has now made the mainstream (albiet on-line) media with this story in Salon:
The Athens, Ga., soul-food joint Weaver D’s has barely changed in the 20 years since its slogan, “Automatic for the People,” supplied the name of a groundbreaking R.E.M. album.
You could say the same about Athens itself. After businesses fled in the ’80s, downtown Athens rebounded as an alt-rock mecca that spawned the soundtrack of Generation X. R.E.M., the B-52s, Widespread Panic and thousands of other musicians and artists helped create what is, in many ways, today a dream city: a mixed-use, walkable urban core filled with small businesses, plenty of green space — and a music scene that rivals that of cities 10 times its size.
Cue “The End of the World as We Know It.” A multi-building mall-like shopping complex, likely to include the dreaded Walmart, has set its sights on downtown Athens. Renderings by the Atlanta-based developer Selig Enterprises show a bricked concourse surrounded by large-scale retail, including a 94,000-square-foot superstore, topped with apartments. It also includes three restaurants — two of which are over 10,000 square feet — and 1,150 parking spaces. This is new for downtown Athens, which unlike most college towns, has largely kept chains away.
“There’s an Athens style,” says Willow Meyer, a 37-year-old lawyer who moved here with her husband [UGA law prof Tim Meyer] two years ago, “and if you just import this kind of ‘Anywhere, USA’ development, the city loses something.”
Another group in metro Atlanta is also fighting a Walmart, proposed by the same company behind the Athens development.
Jamie Baker Roskie
February 27, 2012 in Community Design, Community Economic Development, Development, Downtown, Economic Development, Georgia, Local Government, Planning, Politics, Redevelopment, Smart Growth, Urbanism | Permalink | Comments (1) | TrackBack (0)
Monday, February 20, 2012
Ilya Somin (George Mason) has a post on the Volokh Conspiracy called Another Chance at Federal Eminent Domain Reform:
In the aftermath of the Supreme Court’s controversial Kelo decision, which allowed the condemnation of private property for economic development, some 44 states have passed eminent domain reform laws. Although many of those laws are likely to be ineffective, overall a good deal of progress has been made at the state level in curbing abusive condemnations, including by state courts enforcing the property rights provisions of their state constitutions.
Unfortunately, very little has been achieved at the federal level during that time. On the third anniversary of Kelo in 2008, I summed up federal reform efforts as follows:
[Insert sound of crickets chirping, grass growing, and paint drying].
Somin cites an op-ed by Christina Walsh of the Institute of Justice:
A bipartisan bill, H.R. 1433, making its way through the House would strip a city of federal economic development funding for two years if the city takes private property to give to someone else for their private use. Cities that want to keep their funding will have to be more circumspect in using eminent domain.
This bill undoubtedly will pass the House as it did in 2005, and likely will get stalled in the Senate Judiciary Committee, headed by Sen. Patrick J. Leahy, Vermont Democrat, where it has gone to die in years past.
It'll be interesting to see if this goes anywhere, but I suspect there's probably too much political noise this year.
Wednesday, February 1, 2012
Late last year I posted twice (here and here) about a proposal to put a mixed-use development, anchored by a 100K square foot Wal-Mart, into downtown Athens. Today things heated up in a very Athens way, with Patterson Hood of the Drive-By Truckers unveiling a protest song and a group called "Protect Downtown Athens" launching an incredibly thorough website analyzing many aspects of the development. This group is supported by members and management of R.E.M., and other local movers and shakers. Release of the song has already increased coverage of this issue in the national blogosphere and MSM. This just keeps getting more interesting!
Jamie Baker Roskie
February 1, 2012 in Community Economic Development, Development, Downtown, Economic Development, Georgia, Local Government, Redevelopment, Smart Growth, Urbanism | Permalink | Comments (0) | TrackBack (0)