Wednesday, February 29, 2012
Hey everyone, it's February 29th, and that doesn't happen every year. So Happy Leap Day!
Some of you who follow the blog might recall that we like to do a holiday post now and then about the land use angles of the tradition-- like on Christmas, Thanksgiving, Halloween, Columbus Day, St. Patrick's Day, Veterans Day, Martin Luther King Day, and even Groundhog Day. Today is the first chance I've had since relaunching the blog in 2009 to consider Leap Day, so it's time to add Feb. 29 to the list. I must admit, however, that coming up with a land use angle for Feb. 29 looked like a bit of a challenge. But I take pride in my skill at the game my students call "What Can't Festa Turn into a Land Use Story," so here goes:
First, it's an Irish tradition (supposedly), going back to the times of St. Patrick and St. Bridget, that on the quadrennial occurrence of Leap Day, the women get to make marriage proposals to the men (the legend is probably the progenitor of Sadie Hawkins Day). In a traditional feudal society with a land-based economy and social structure, with primogeniture and entailments controlling the land, this social inversion could have a significant effect on how feudal power and family wealth get organized. If it ever actually happened, that is . . . I'm skeptical, but the legend seems to have enough purchase to back the 2010 Amy Adams movie Leap Year.
A second land use tie-in is related to the appellation "Leap" Day/Year. LEAP is also an acronym that stands for "Land-use Effects on Amphibian Populations." It's a multi-regional collaboration sponsored by the National Science Foundation. Academic research programs were established at Missouri, Maine, and South Carolina. And lest you think that I'm stretching here, many organizations today are using the occasion of Leap Day to celebrate Amphibians. Amphibian Ark has rolled out an international campaign for Leap Day:
To coincide with Leap Day (February 29th) 2012, Amphibian Ark is launching a new international event, Leaping Ahead of Extinction: A celebration of good news for amphibians in 2012.
The event’s been timed to coincide with Leap Day (29th February) 2012, and will promote the great successes in the conservation of amphibians in captivity and in the wild. The focus will be on institutions that are managing amphibian rescue or supplementation programs, recommended either during an AArk conservation needs assessment, or by national governments or field experts.
Once again, a special day with a land use angle! Kind wishes to our amphibian friends, especially if a princess proposes to one.
UPDATE: The "Leap Day" observance is broader than I had thought, and implicitly with the amphibian connection too-- I'm getting emails imploring me to take advantage of the Leap Day discounts from the excellent LeapFrog brand of learning toys that my son enjoys. You know you've arrived as an American holiday when businessess try to commemorate it by selling stuff. Like the old "life, liberty, and no money down!" type of sales promotions.
UPDATE 2: For yet another land use angle, DOT Secretary Ray LaHood tells us that we should "Leap Into Safety" today by investigating our states' pipeline profiles.
Wednesday, February 15, 2012
Hot off the wire, the 2012 John D. and Catherine T. MacArthur Awards for Creative and Effective Institutions have just been announced. Among the big winners were our friends at the NYU Furman Center:
We are delighted to announce that the John D. and Catherine T. MacArthur Foundation just named NYU's Furman Center for Real Estate and Urban Policy a recipient of the MacArthur Award for Creative and Effective Institutions. This distinguished award recognizes the Furman Center's excellence in providing objective, policy-relevant research to address the challenges facing neighborhoods in New York City and across the nation.
The award also is an investment into the Furman Center's future. It comes with a grant of $1 million, which we will use to build data and research partnerships that will allow us to broaden the geographic scope of our research; strengthen and expand our policy analysis; and improve our communications and data management infrastructure. This provides us with a remarkable opportunity to expand our research beyond New York City to help policymakers in Washington and across the nation make more effective housing and community development investments and policies.
By my rough count, about 6 of the 15 awards went to groups for land use, housing, or environmental projects. Here are some of the others:
Albertine Rift Conservation Society – Kampala, Uganda ($350,000) champions collaborative conservation initiatives in one of the world’s most important ecosystems;
Business and Professional People for the Public Interest – Chicago, Illinois ($750,000) works to strengthen impoverished communities, preserve and increase affordable housing, improve Chicago schools and promote open, honest government in Illinois;
Center for Responsible Lending – Durham, North Carolina ($2 million) protects homeownership and family assets by working to eliminate abusive financial practices and consumer products;
Community Investment Corporation – Chicago, Illinois ($2 million) provided assistance to developers of rental housing in low- and moderate-income neighborhoods in Chicago
Conservation Strategy Fund – Sebastopol, California ($750,000) trains conservation professionals in economics and policy analysis to strengthen and protect the environment;
Congratulations to the winners; and thanks to Hattaway Communications for the heads-up.
Thursday, February 9, 2012
While environmentalists and avant-garde artists are sometimes assumed to be political bedfellows, it turns out that they are not always cut from the same cloth. There's a controversy over a famous artist's plans to drape the Arkansas River in copious amounts of textile product. From the New York Times story Note to Christo: Don't Start Hanging the Fabric Yet:
CAÑON CITY, Colo. — The shouting isn’t over for “Over the River.”
The $50 million project by the artist Christo, who hopes to drape nearly six miles of the Arkansas River here in southern Colorado with suspended bank-to-bank fabric, received approval from federal land managers late last year.
But on Wednesday, a new battlefield emerged in law and local politics: in Denver, opponents filed a federal lawsuit aiming to block construction, which Christo had hoped to begin this summer. The suit argues that land managers violated federal law in approving the plan and gauging its environmental impacts.
And there are some intrepid law students involved in the case.
The lawsuit, filed on ROAR’s behalf by a group of students at the University of Denver’s Sturm College of Law, argues that land managers did not adequately address the long-term effects of the project on wildlife, especially the bighorn sheep that clamber about on the canyon’s cliffs.
An interesting issue, with both sides clothed in good intentions. Understandably, no one wants to pull the wool over the eyes of any interested party, least of all the wildlife. Hopefully the project is not a wolf in sheep's clothing. I hope it doesn't irreparably tear at the fabric of the regional community.
Monday, January 9, 2012
Uma Outka (Kansas) has posted an essay called The Energy-Land Use Nexus, forthcoming in the Journal of Land Use & Environmental Law, 2012. The abstract:
This Symposium Essay explores the contours of the “energy-land use nexus” – the rich set of interrelationships between land use and energy production and consumption. This underexplored nexus encapsulates barriers and opportunities as the trajectory of U.S. energy policy tilts away from fossil fuels. The Essay argues that the energy-land use nexus provides a useful frame for approaching policy to minimize points of conflict between energy goals on the one hand and land conservation on the other.
Saturday, December 31, 2011
As we head into the New Year, The Urban Land Institute has also been looking ahead at the future of land use. ULI recently issued its report What's Next? Real Estate in the New Economy. From the press release:
A new economy is unfolding over the course of this decade, driven by an extraordinary convergence of demographic, financial, technological and environmental trends. Taken together, these trends will dramatically change urban planning, design and development through 2020, according to a new report from the Urban Land Institute (ULI).
What’s Next? Real Estate in the New Economy outlines how every aspect of living, working and connecting will change in major ways, driven in large part by the values, preferences and work ethic of Generation Y, the largest generation in American history. . . .
Among the report’s findings:
- Technology will reshape work places. Office tenants will decrease space per employee, and new office environments will need to promote interaction and dialogue. Offices will be transforming into meeting places more than work places, with an emphasis on conference rooms, break areas and open configurations. Developers will craft attractive environments to attract young, talented workers.
- Major companies will value space that enables innovation. They will continue to pay more for space in a global gateway served by a major international airport, or in 24-hour urban centers. Hard-to-reach suburban work places will be less in demand.
- The influx of Generation Y, now in their teens through early thirties, will change housing demand. They are comfortable with smaller homes and will happily trade living space for an easier commute and better lifestyle. They will drive up the number of single households and prompt a surge in demand for rentals, causing rents to escalate.
- For most people, finances will still be constrained, leading to more shared housing and multi-generational households. Immigration will support that trend, as many immigrants come from places where it is common for extended families to share housing. This may be the one group that continues to drive demand for large, suburban homes.
- The senior population will grow fastest, but financial constraints could limit demand for adult housing developments. Many will age in place or move in with relatives to conserve money. Developers may want to recast retirement communities into amenity-laden “age friendly” residences. Homes near hospitals and medical offices will be popular, especially if integrated into mixed-use neighborhoods with shops, restaurants and services.
- Energy and infrastructure take on greater importance. Businesses cannot afford to have their network connections down, and more will consider self-generated power or onsite generator capacity. Developers, owners and investors are realizing that the slightly higher costs of energy- and water-saving technologies can pay for themselves quickly, creating more marketable and valuable assets. Ignoring sustainability issues speeds property obsolescence.
You can download the full report here.
December 31, 2011 in Architecture, Clean Energy, Density, Development, Downtown, Environmentalism, Finance, Green Building, Housing, Planning, Property, Real Estate Transactions, Redevelopment, Scholarship, Smart Growth, Suburbs, Sustainability, Transportation, Urbanism, Water | Permalink | Comments (0) | TrackBack (0)
Friday, December 30, 2011
Michael Allan Wolf (Florida) has a new book out called The Supreme Court and the Environment: The Reluctant Protector (CQ Press, 2012). Here's the Amazon blurb:
Silent Spring (1962) can arguable be cited as one of the most influential books of the modern era. This book, along with 1960's rampant activism reacting to high-profile ecological calamities, helped create the modern environmental movement. The Supreme Court and the Environment, written by Michael Wolf, discusses one of this movement's most important legacies, namely the body of federal statutory law amassed to fight pollution and conserve natural resources that began with the enactment of the National Environmental Policy Act of 1969. Instead of taking the more traditional route of listing court decisions, The Supreme Court and the Environment puts the actual cases in a subsidiary position, as part of a larger set of documents paired with incisive introductions that illustrate the fascinating and sometimes surprising give-and-take with Congress, federal administrative agencies, state and local governments, environmental organizations and private companies and industry trade groups that have helped define modern environmental policy.
And for a preview, Prof. Wolf has posted the introduction on SSRN. The abstract:
This document contains the Introduction and Contents for The Supreme Court and the Environment: The Reluctant Protector (CQ Press/Sage 2012). When one views the body of modern environmental law — the decisions and the other key documents — the picture that emerges is not one of Supreme Court dominance. In this legal drama, the justices have most often played supporting roles. While we can find the occasional, memorable soliloquy in a Supreme Court majority, concurring, or dissenting opinion, the leading men and women are more likely found in Congress, administrative agencies, state and local legislatures, nongovernmental organizations, private industry, and state and lower federal courts.
What one learns from studying the Supreme Court’s environmental law output is that the justices for the most part seem more concerned about more general issues of deference to administrative agencies, the rules of statutory interpretation, the role of legislative history, the requisites for standing, and the nature of the Takings Clause than the narrow issues of entitlement to a clean environment, the notion of an environmental ethic that underlies written statutes and regulations, and concerns about ecological diversity and other environmental values. When we widen the lens, however, and focus on the other documents that make up essential parts of the story of the Supreme Court and the environment — complaints by litigants, briefs by parties and by friends of the court, oral argument transcripts, the occasional stirring dissent, lower court decisions, presidential signing statements and press conference transcripts, media reports and editorials, and legislative responses to high court decisions — we discover what is often missing in the body of Supreme Court decisions.
Looks fascinating, and is a very original take that situates the cases themselves within a broader context of Supreme Court jurisprudence and goes beyond to the larger networks of actors that shape law.
December 30, 2011 in Books, Caselaw, Coastal Regulation, Constitutional Law, Environmental Law, Environmentalism, Federal Government, History, Judicial Review, Politics, Property Rights, Scholarship, Supreme Court, Takings, Wetlands | Permalink | Comments (0) | TrackBack (0)
Monday, November 14, 2011
Daniel I. Halperin (Harvard) has posted Incentives for Conservation Easements: The Charitable Deduction or a Better Way, Law & Contemporary Problems, Vol. 74, p. 29, Fall 2011. The abstract:
Therefore, to give greater assurance that the public benefit of the gift will be consistent with the claimed deduction, the donee should be required to certify that it has selected the easement consistent with its mission and it has both the resources to manage and enforce the restriction and a commitment to do so. Moreover, it is inappropriate to measure the charitable deduction by the supposed loss in value to the donor from the imposition of the easement. The focus should be on actual benefit to charity. Therefore, eligibility for a charitable deduction for a conservation easement should be contingent on certification – by a public agency or, possibly, an IRS-accredited land trust – that the public benefit from the contribution is equivalent to the claimed deduction.
In fact, the recent changes to various tax-expenditure programs – placing caps on the expenditures and requiring the participation of expert agencies – indicates that Congress is less enamored than it once was with open-ended tax expenditures administered solely by the Treasury Department. This suggests a cap on tax credits for the contribution of conservation easements. Even if the program is open-ended, Congress should mandate participation of an expert agency such as the Bureau of Land Management, which is more capable of evaluating the public value of an easement.
This article from the L.A. Times discusses recent changes to California's stringent environmental review statute (CEQA) that permit the governor to "fast-track" certain development projects through the review process. The merits of CEQA are certainly subject to debate, with business and development groups claiming the law is a job-killer and environmental groups crediting it with preserving important natural resources. I have not read enough to opine on the merits of CEQA, but if there's one thing I do know it's that giving elected officials discretionary authority to decide what gets fast-tracked and what does not is a recipe for trouble. As the article notes ominously, there are already complaints that only politically-connected parties are qualifying for special treatment.
Tuesday, November 8, 2011
Even though the media is obsessed with the 2012 elections, it is the first Tuesday after the first Monday in November, and as land use folks well know, a lot of important law is made at the state and local level during off-year elections. Today in Texas there are ten state constitutional amendments on the ballot for voter approval, generated by the 2011 legislative session (Texas' legislature still meets only bienially--one of four remaining states to do so, and the only major state).
I'm generally not a fan of constant new constitutional amendments, for two reasons, one structural and one democratic. First, many state constitutions--like Texas'--are already bloated. I printed it out once--all 80,806 words of it (sorry environmental profs)--and I make the point in class by comparing the massive document to a pocket U.S. Constitution. In general, I don't think that most mundane policy issues should be entrenched in fundamental law. On the other hand, this structural critique can be countered somewhat by the argument that while the federal constitution enables the Congress to do a certain range of things, state legislatures already have plenary power, so state constitutions largely exist to limit the legislature--and then they need to be amended often to adjust those limits. But still . . . 80,806 words?
My second beef with the practice of placing a slew of state constitutional amendments is has more to do with the theory of state and local elections, and I don't like it for the same reason I'm skeptical of the overuse of initiative and referendum. What could be more democratic than letting the people vote, you ask? The problem is informational. I usually ask my upper-level state & local government students--a sample of pretty well educated and informed voters--which way they voted on certain amendments or referenda from prior years. Almost universally I get two responses; either (a) no recollection whatsoever; or, occasionally, (b) they voted with their gut based on a cursory reading of the ballot text in the voting booth. And if they remember which way they voted, it was usually "yes" because the text sounded like "good things," or "no" because the text sounded like "spending more money."
There in turn at least two reasons why even smart voters end up voting with their gut on these important measures. First, the ballot language is usually vague and fuzzy, and often is quite different from the actual text of the law that will go on the books. I don't think this is usually done to confuse the voters, I think it's the opposite intent--but regardless, the ballot language in my experience is usually so general that it fails to communicate what the proposal is really about. Another major reason, of course, is that with a few exceptions, these items don't get very much media exposure. So most Texans probably know a lot more about, e.g., the latest in sexual harrassment allegations against national candidates, than they do about the 10 items they are probably going to add to the state constitution today. The info is out there, but it's up to the individual voter to burn some calories and go find and read information such as the analysis by the Texas Legislative Council.
Now in class, we talk about whatever amendments and referenda are on the ballot, and it's a lot of fun. Students do class presentations, we have guest speakers, and so on. And it often turns out that a lot of these state constitutional amendments (and local referenda) are substantively about land use--from eminent domain to land sales, zoning, conservation, and more (which was going to be the original point of this post, before I got off on my rant). So I do my part to create a group of 40 or 50 educated voters.
But if that's what it takes, is democracy really served by putting all this stuff on the ballot, and in such a vague manner? I find more and more that people in general really do care about land use in their communities and their region. A lot. Yet in the cases where they actually have a say in the matter, it gets translated so poorly that most votes actually cast are probably not informed ones. So it's the people behind the scenes in and around legislative bodies that end up making all the rules.
November 8, 2011 in Constitutional Law, Eminent Domain, Environmentalism, History, Local Government, Politics, Property Rights, State Government, Texas, Zoning | Permalink | Comments (0) | TrackBack (0)
Monday, November 7, 2011
John R. Nolon (Pace) has posted Land Use for Energy Conservation and Sustainable Development: A New Path Toward Climate Change Mitigation. The abstract:
Land use tools and techniques have impressive potential to reduce energy consumption, improve the economy, and mitigate climate change. This article explores the little understood influence of local land use decision-making on energy conservation and sustainable development and how it can mitigate climate change if properly assisted by the federal and state governments. The construction and use of buildings combined with extensive vehicular travel throughout the nation’s human settlements consume large amounts of energy, and much of that consumption is highly inefficient. By enforcing and enhancing energy codes, encouraging the use of combined heat and power and district energy systems, properly orienting and commissioning buildings, incorporating renewable energy resources, and promoting transit and other methods of reducing vehicle miles travelled, local land use law’s potential to achieve energy conservation and sustainable development can be unlocked. These techniques can be organized at the neighborhood level and aggregated by adopting local Energy Conservation Zoning Districts in neighborhoods where significant energy conservation can be achieved. The article proposes federal and state policies, combining features of both the Coastal Zone Management Act and the Enterprise Zone initiative, that can facilitate local land use initiatives that will shape human settlements and control the built environment as a new path toward energy efficiency and climate change mitigation.
In the footnotes, Prof. Nolon notes that this is part of a trilogy:
FN.1. This article is one of three that examine how local land use law that can be used as an effective strategy to mitigate climate change. See John R. Nolon, The Land Use Stabilization Wedge Strategy: Shifting Gound to Mitigate Climate Change, 34 WM. & MARY ENVTL. L. & POL’Y REV. 1 (2009) [hereinafter Land Use Stablization Wedge] and John R. Nolon, Mitigating Climate Change through Biological Sequestration: Open Space Law Redux, 31 STAN. ENVTL. L.J. (forthcoming Winter 2011) [hereinafter Open Space Law Redux].
This is a great set of articles for anyone interested in the subject from one of the leaders in land use and local environmental law.
November 7, 2011 in Climate, Coastal Regulation, Environmental Law, Environmentalism, Federal Government, Green Building, Local Government, Planning, Scholarship, State Government, Sustainability, Zoning | Permalink | Comments (0) | TrackBack (0)
Friday, November 4, 2011
As the cleanup in Joplin continues, another potentially deadly hazard has been uncovered, dangerously high levels of lead. According to an article in the Los Angeles Times, “In tests of 43 properties, 18 showed high levels of lead, prompting the city’s mayor to ask the U.S. Environmental Protection Agency and the Missouri Department of Natural Resources for help in testing for, and cleaning up, the element.”
For more than 100 years, beginning in the mid-19th century, Jasper County was at the worldwide forefront of lead and zinc mining. The area included town names like Leadville Hollow and Minersville.
According to Dan Pekarek, director of the Joplin Health Department, a waste product from lead mining called “chat” was dumped in several spots around the city of Joplin, and simply covered with soil. Those sites we likely exposed when the F-5 tornado ripped through the city.
Additionally, in an interview with the Joplin Globe, Pekarek said “Chat was pretty readily available around here, and they used it. It was used as fill for voids around footings and foundations, and to level out crawl spaces.”
As if the poor folks in Joplin haven't been through enough! According to this news release the EPA is offering to enter a cooperative agreement with the city to test for and remediate the lead contamination.
Jamie Baker Roskie
Thursday, November 3, 2011
From the "You Must Hear This" Dept., we have a really interesting NPR report this morning on attempts by some citizens of the town of Dryden, NY to zone out hydraulic fracturing ("hydrofracking") as a means of removing oil and gas from local shale deposits. The report features commentary on crucial state preemption issues by Eduardo Peñalver (Cornell).
I think siting of hydraulic fracturing operations is a terrific subject for discussion in a Land Use, Environmental or Property law class. I even used a hydraulic fracturing hypothetical on my Property final last Spring to test on inquiry notice and reciprocal servitudes. Focusing on public rather than private land use regulation, this story frames the state and local government issues nicely. Enjoy.
Tuesday, October 11, 2011
Ashira Ostrow (Hofstra) has posted Land Law Federalism, 61 Emory L.J. ___ (forthcoming 2012). A must-read, this foundational work explores the theoretical framework for appropriate federal intervention in the state/local-dominated area of land use regulation. Here's the abstract:
In modern society, capital, information and resources pass seamlessly across increasingly porous jurisdictional boundaries; land does not. Perhaps because of its immobility, the dominant descriptive and normative account of land use law is premised upon local control. Yet, land exhibits a unique duality. Each parcel is at once absolutely fixed in location but inextricably linked to a complex array of interconnected systems, natural and man-made. Ecosystems spanning vast geographic areas sustain human life; interstate highways, railways and airports physically connect remote areas; networks of buildings, homes, offices and factories, create communities and provide the physical context in which most human interaction takes place.
Given the traditional commitment to localism, scholars and policymakers often reflexively dismiss the potential for an increased federal role in land use law. Yet, modern land use law already involves a significant federal dimension resulting, in part, from the enactment of federal statutes that have varying degrees of preemptive effect on local authority. Moreover, this Article maintains that federal intervention in land use law is warranted where the cumulative impact of local land use decisions interferes with national regulatory objectives (such as developing nationwide energy or telecommunications infrastructure).
Finally, this Article advances an interjurisdictional framework for federal land law that harnesses (a) the capacity of the federal government, with its distance from local politics and economic pressures, to coordinate land use on a national scale and (b) the capacity of local officials, who have detailed knowledge of the land and are politically accountable to the local community, to implement land use policies.
October 11, 2011 in Climate, Development, Environmental Law, Environmentalism, Federal Government, Globalism, Green Building, Inclusionary Zoning, Local Government, NIMBY, Planning, Scholarship, Smart Growth, Sprawl, Subdivision Regulations, Sustainability, Transportation, Wetlands, Zoning | Permalink | Comments (1) | TrackBack (0)
Friday, October 7, 2011
Anthony B. Schutz (Nebraska) has posted Toward a More Multi-Functional Rural Landscape: Community Approaches to Rural Land Stewardship, forthcoming in the Fordham Environmental Law Journal. The abstract:
This Article how farms and ranches can adapt to meet consumer demand for outdoor activities like hunting, wildlife viewing, hiking, or simply enjoying the solace of spending time in rural places. These places hold breathtaking landscapes, but they are often privately owned, relatively inaccessible to the general public, and have not been managed to produce the ecosystem services that support these activities, despite strong evidence of consumer demand. Historically, farms and ranches have been managed for a single dominant use, undertaken wholly upon an individual’s landholdings. Entering the emerging market for nature-based experiences requires that farms and ranches adapt from fragmented single-use businesses to multi-functional enterprises that cooperatively operate at larger spatial scales.
This Article explains how lawyers can help farmers and ranchers make such a move. It uses existing private law and Ostrom's principles of collective action to illustrate how these communities should be designed. It also offers some preliminary thoughts on possible areas for legal reform that would facilitate the development of these enterprises.
It also explores the relationships these enterprises have with the emerging local-food movement. As with traditional producers, the multi-functionality these institutions bring to individual farmers can be used as a diversification strategy for local-food producers. The income from these activities, in turn, helps stem the environmental consequences of using land for food production. In addition, the communities that may emerge within the foodshed and those that may emerge to support nature-based entrepreneurship are complimentary. Each may foster, and profit from, the sort of communitarian thinking that is necessary to the other, resulting in a more multi-functional and sustainable rural landscape.
Wednesday, October 5, 2011
Uma Outka (Kansa) and Richard C. Feiock (Florida State--Public Administration) have posted Local Promise for Climate Mitigation: An Empirical Assessment. The abstract:
This interdisciplinary work contributes empirical grounding to the growing literature in law and public policy on local governments and climate mitigation. Much of the recent scholarship presents an optimistic view of the potential in local climate action. Here, we refine the optimism for local governments’ impact with new performance data that probes local progress and capacity for climate governance. Our analysis – based on a new study measuring policy choice, implementation, and influences – calls into question a number of assumptions undergirding this scholarship. At the same time, it provides direction and support for targeted investment and research.
Tuesday, October 4, 2011
Jessica Owley (Buffalo), one of our excellent erstwhile guest bloggers, has posted The Enforceability of Exacted Conservation Easements, forthcoming in 36 Vermont Law Review (2011). The abstract:
The use of exacted conservation easements is widespread. Yet, the study of the implications of their use has been minimal. Conservation easements are nonpossessory interests in land restricting a landowner’s ability to use her land in an otherwise permissible way, with the goal of yielding a conservation benefit. Exacted conservation easements arise in permitting contexts where, in exchange for a government benefit, landowners either create conservation easements on their own property or arrange for conservation easements on other land.
To explore the concern associated with the enforceability of exacted conservation easements in a concrete way, this article examines exacted conservation easements in California, demonstrating that despite their frequent use in the state, their enforceability is uncertain. The three California statutes governing conservation easements limit the ability to exact conservation easements. California caselaw, although thin, indicates that courts may be willing to uphold exacted conservation easements even when they conflict with the state statutes. This examination of the California situation highlights California-specific concerns while providing a framework for examining exacted conservation easements in other states.
This article illustrates not only challenges of enforceability that arise with exacted conservation easements, but uncertainty in their fundamental validity and concerns about public accountability. This exploration illustrates that enforceability is not straightforward. This raises significant concerns about using exacted conservation easements to promote conservation goals, calling into question specifically the use of conservation easements as exactions.
October 4, 2011 in Conservation Easements, Environmental Law, Environmentalism, Local Government, Property Rights, Scholarship, Servitudes, State Government, Sustainability | Permalink | Comments (0) | TrackBack (0)
Tuesday, September 27, 2011
I am saddened to hear news of the death of Wangari Maathai, a Kenyan who was the first African woman to win the Nobel Peace Prize. Maathai won the prize for founding the Green Belt movement, which empowered Kenyan women to plant more than 40 million trees. Although I haven't been to Kenya in 15 years, I follow events there closely. Having seen first hand the challenges women face in traditional Kenyan society - spending hours of their day walking for water, struggling for control over their lives and bodies - I have been so gratified to see Maathai's success over the years. She will be tremendously missed.
Jamie Baker Roskie
Wednesday, September 14, 2011
Patricia E. Salkin (Albany) and Amy Lavine (Albany) have posted Regional Foodsheds: Are Our Local Zoning and Land Use Regulations Healthy?, Fordham Environmental Law Journal, Vol. XXII (2011). The abstract:
Governments at all levels have become increasingly interested in fostering healthy eating habits and sustainable agricultural production. Promoting access to locally grown produce is an important part of many policy goals seeking to address these concerns, and the concept of regional foodsheds has risen in popularity as one method to achieve these goals. Research indicates that community based food systems have the potential to address food security, public health, social justice, and ecological health. Food production and consumption patterns are influenced by a range of federal, state, and municipal policies, but meaningful change in regional food system policies is likely to start with state and local governments, which can take proactive measures to strengthen their regional foodsheds through a variety of land use planning and regulatory actions. This Article focuses on how existing land use plans and regulations can promote healthier and more sustainable communities through the foodshed movement. In particular, this Article discusses specific land use strategies that can be implemented in urban and suburban settings to facilitate local and regional food production and distribution that go beyond farmland preservation strategies and examine, among other things, smaller-scale community gardens, residential agricultural uses and farmers markets.
Friday, September 2, 2011
Keith H. Hirokawa (Albany) and Charles Gottlieb have posted Sustainable Habitat Restoration: Fish, Farms, and Ecosystem Services. The abstract:
The conversion of estuarine marshes and floodplains to agricultural uses through diking, draining, and filling has left little adequate salmon habitat and, as a result, has been a critical factor in the decline of salmon populations. Current efforts to restore salmon by reestablishing ecosystem functionality. In particular, it has become more common to include dam and dike breaches as feasible solutions. Of course, there is a cost involved in habitat restoration, even if it is not an obvious environmental cost.
This article examines the dialogue on salmon valuation by contrasting the historical view of salmon-as-commodity with insights from "ecosystem services." This emerging trend in ecological economics will play a critical role in justifying restoration projects and formulating sustainability strategies; ecosystem services valuation is showing that investments in natural capital can provide substantial returns. This article also provides a case study of the Smith Island Habitat Restoration Project in Snohomish County, Washington. Smith Island, which was converted to farmland a century ago, exhibits enormous potential value for habitat restoration and begs for an inclusive process that considers the voices for economic, human, and ecosystem well-being. The resolution of the Smith Island controversy provides an insightful example of how a sustainability framework can be useful in showing that restoration strategies can offer substantial benefits to other lands uses and interests.
Saturday, August 27, 2011
Looks like as I write this on Saturday, Hurricane Irene has hit North Carolina and is poised to strike the Northeast tonight or tomorrow. It's not particularly strong (as hurricanes go) but it's incredibly wide, so a lot of people will be affected. I'm currently looking at a baseball game that was moved up a day for a doubleheader. Major hurricanes and their aftermaths bring all sorts of land use and other legal issues into focus (see, e.g., Robin Paul Malloy, ed., Law and Recovery from Disaster: Hurricane Katrina (Ashgate 2009).
But right now I'll just offer a few basic observations from experience living on the Gulf Coast. Growing up in New York I had no experience with hurricanes. Since living here I've been through the storm or the aftermath of Tropical Storm Allison and Hurricanes Katrina, Rita, and Ike.
The most important decision is whether to stay or go. On this question you should really trust the authorities. In 2005, Houston was the major evacuation center from New Orleans for Hurricane Katrina. Having volunteered to help with the 100,000+ refugees in person and being well tuned-in to the scenes of the destruction, suffering, and lawlessness in the aftermath, many Houstonians instinctively decided to evacuate several weeks later when Hurricane Rita bore down on the Southeast Texas coast. But the mass evacuation turned out to be miserable--or worse--for most. The entire state's highways were gridlocked, all the gas stations were sucked dry, and the majority of evacuees either spent 24+ hours on the road (in 100 degree heat) or got stranded.
Most local governments now have fairly sophisticated data on where storm surges (which are the most dangerous parts of hurricanes) are going to hit. During Hurricane Ike in 2008, the civil authorities did an outstanding job in communicating exactly which low-lying areas needed to evacuate, while the word of the day to everyone else was to "hunker down." This turned out to be quite effective. You can see that New York City has something similar with it's pre-planned hurricane zones and it's order as of this writing to evacuate Zone A. Ike devastated Galveston but loss of life was kept down and the 4+ million in Houston handled it much better than Rita.
If you rely on public transportation, prepare for it to be shut down. New York has already closed the subway. Don't plan to drive unless you have to. In fact, if you do "hunker down," get your hands on as much stuff as possible, particularly water, ice, batteries. Gas up and get cash now. Get some food that will last a week or more. Tie down or move indoors anything that could become a projectile. There are lots of hurricane-preparedness websites out there (even Louisianan James Carville has chimed in) so I won't repeat everything you'll find there. Prepare to be without electricity, internet, or cell phone service. If you have relatives or friends in the interior, it's a good idea to contact them now and ask them to serve as a "rally point" for communications or even to meet up with family in case power and communications go out for a while after the storm.
Bottom line, take it seriously. Don't assume that the danger is linked to the "cat" number--Allison was downgraded to a Tropical Storm before it hit Houston, and did more damage than any of the other hurricanes (just ask my friends at the University of Houston Law Center). But don't overreact by fleeing if you don't need to or without proper supplies. Go ahead and have that hurricane party, and bond with neighbors in the cleanup, but not until after you've done everything you can to prepare. Remember, it it turns out to be not as bad as you thought, that's a good thing. Prepare for the worst and hope for the best. Hopefully you'll all safely bid Goodnight Irene.
UPDATE: Looks like the storm has moved into New England towards Canada, and it turned out to be not as bad as anticipated. Great news. Some pundits will predictably complain that it was overhyped, but that's doing a disservice to everyone involved, and hopefully will not cause excessive underreaction next time. These are incredibly dangerous and destructive events, and once people start dying it's too late to change your mind and start taking it seriously. Better safe than sorry, and it doesn't hurt to have a dress rehearsal in an area of the country that doesn't have as much experience responding to this particular type of emergency.