Monday, December 20, 2010
The common law has long encouraged the use and development of land.
This policy favoring land use and development certainly made sense during America's infancy, when the country boasted seemingly inexhaustible stretches of land. But today you cannot find property that is not subject to zoning restrictions. What seemed unlimited is now increasingly scarce. Over-develpment generates multiple problems ranging from pollution to species endangerment. Forty million acres of land - larger than the state of Florida - were newly developed between 1992 and 2007.
One of the reactions to perceived over-development and receeding "wild" lands is the conservation easement, which is (generally speaking) a voluntary agreement to refrain from developing land. Much has been written about the effectiveness of this legal tool, but the arguments in this recent online publication seem disingenuous. The article characterizes the conservation easement as a clever tool wielded by a surreptitious government. The article warns private landowners to be wary of the conservation easement and the government's desire to restrict their rights.
Land trusts exist to remove private property from production.
They do this by acquiring ranch, farm, forest, or other private land either through donation, purchase, or by acquiring CEs to property as well as water. They act as unofficial arms of government agencies—third party intermediaries or ‘land agents’—and routinely flip (sell) donated as well as purchased land and CEs to these government agencies. When they do, they’re paid with tax dollars which, in turn, are used to purchase more private property.
The Conservation Easement is vulnerable to many legitimate criticisms; that it is a tool enabling a government conspiracy to rob private landowners should not be among them.
Thursday, November 4, 2010
Craig Anthony (Tony) Arnold (Louisville) has posted Legal Castles in the Sand: The Evolution of Property Law, Culture, and Ecology in Coastal Lands, forthcoming in Syracuse Law Review, Vol. 61, No. 2 (2010-11). The abstract:
U.S. society frequently turns to property law to mediate the various social and ecological dynamics of complex and evolving environments like coastal areas, which are places of transition subject to both natural and human changes. Furthermore, U.S. society frequently turns to constitutional takings doctrines to mediate the dynamics of property law. However, property law and takings cases can be maladaptive to the evolutionary dynamics of coastal lands when they fail to contemplate the ecological and social conditions and dynamics of the objects of property rights and takings claims. In particular, legal abstractions, such as the metaphor of property as a “bundle of rights,” disconnect property and takings law from its context and real-world functions.
An example of three maladaptive responses to coastal land management can be found in the three opinions of the U.S. Supreme Court in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection. In the case, all eight participating Justices agreed that the Florida Supreme Court’s validation of the State of Florida’s establishment of a boundary-fixing “erosion control line” was not a radical departure from Florida precedent on coastal land ownership rights. However, the Court split 4-4 over whether the Takings Clause of the U.S. Constitution creates a potential claim of a “judicial taking,” producing three different opinions about judicial takings and the relationships of federal courts to state judicial changes in property law. In each of the three opinions in Stop the Beach Renourishment, the Justices have built “legal castles in the sand”: artificial constructs that will not stand up to the inevitability of change. Each opinion is poorly suited for mediating property issues in coastal lands because it is built on a legal-centric abstraction mismatched to the complex realities of coastal land use.
This article argues that courts should shape property doctrines and decide takings cases with regard for the concrete context in which those doctrines and cases arise, particularly ecological and socio-cultural dynamics. A strong theory of judicial takings, just like many sweeping and aggressive protections of private property autonomy and power, is likely to over-protect private property. However, a weak theory of judicial takings, just like many sweeping and aggressive protections of government or public authority and power, is likely to under-protect private property. In both cases, serious harms to both ecological health and integrity and socio-cultural health and integrity are likely, even if the specific harms vary. The issue is not resistance to change versus unconstrained and rapid change. Instead, the issue is about identifying and facilitating change that is right for and adaptive to the particular evolving context in which the tensions over property interests, land uses, and legal institutions arise. In particular, the object-regarding and context-considering concept of property as a “web of interests” is likely to be more adaptive to change within complex and interconnected ecological and social systems, particularly in sensitive environments like coastal lands, than property concepts that rely on legal-centric abstractions.
November 4, 2010 in Beaches, Caselaw, Coastal Regulation, Constitutional Law, Environmental Law, History, Judicial Review, Land Trust, Property Rights, Property Theory, Scholarship, Takings | Permalink | Comments (1) | TrackBack (0)
Sunday, August 8, 2010
James J. Kelly, Jr., of Baltimore Law and intrepid Land Use Prof guest blogger, has posted Homes Affordable for Good: Covenants and Ground Leases as Long-Term Resale Restriction Devices, a symposium piece in the St. Louis University Public Law Journal, Vol. 29, p. 9 (2009). The abstract:
August 8, 2010 in Affordable Housing, Housing, Inclusionary Zoning, Land Trust, Landlord-Tenant, Local Government, Real Estate Transactions, Scholarship, Servitudes, Zoning | Permalink | Comments (0) | TrackBack (0)
Wednesday, May 19, 2010
From the folks at the National Community Land Trust:
A new collection of essays, assembled for the first time, traces the roots, evolution, and prospects of the community land trust -- an innovative model of affordable housing shaped by the likes of Henry George and Ebenezer Howard, and flourishing today in hundreds of U.S. communities.
The Community Land Trust Reader, published by the Lincoln Institute of Land Policy and edited by John Emmeus Davis, brings together the seminal texts that inspired and defined the community land trust movement. The essays - many of which have never before appeared in print, and others written expressly for this volume -- trace the intellectual origins of an eclectic model of tenure that was shaped by the social theories of Henry George, Ebenezer Howard, Ralph Borsodi, and Arthur Morgan, and by social experiments like the Garden Cities of England and the Gramdan villages of India.
For more information about The Community Land Trust Reader, go to www.cltnetwork.org.
Sounds pretty interesting, although if I bought it I'd have to add it to my huge stack of professional reading that never gets done...
Jamie Baker Roskie
Sunday, May 9, 2010
Tuesday, October 27, 2009
This week the National Community Land Trust Network is having its annual conference here in Athens, Georgia. Here's their mission statement from their website:
NCLTN provides technical and other support to community land trusts who are providing affordable housing. Community land trusts market affordable homes to low to moderate income clients. The homeowners hold title to the improvements on the land, while the land trust holds title to the land and leases it to the homeowner through a renewable 99 year ground lease. This allows the land trust to keep the housing permanently affordable. NCLTN is different from the Land Trust Alliance, which provides support to land trusts engaged in land conservation activities around the country.
Some colleagues and I are giving a presentation Thursday on land use issues faced by communities where community land trusts operate. I'll blog more about that later this week.
Jamie Baker Roskie
Tuesday, October 13, 2009
Many of you have already read the recent compelling piece in The New York Times about beef safety. The article chronicles the devastating story of a young dance instructor paralyzed by a virulent strain of E. Coli in a patty of ground beef packaged by Cargill.
Interesting, but why am I posting about this on the Land Use Prof blog? It's because of a follow up piece on Grist about why ground meat is so prevalently infected with this strain of bacteria. The author's conclusion is that in industrial food production, cows are consistently fed corn, which they cannot easily digest. His advice, therefore, is to eat locally-grown, grass fed beef. And there's your land use issue - how can we ensure there is enough agricultural land capable of sustaining enough grass-fed beef production to satisfy local demand? I know that here in Athens our organic farmers and local meat suppliers struggle with capacity issues. And even in this recession, productive agricultural land continues to be eaten up by sprawl. Organizations like the American Farmland Trust are working hard to reverse that trend, by encouraging agricultural land conservation and changes in federal farmland policy. What is your locality doing on this issue?
Jamie Baker Roskie