Monday, November 11, 2013
How can the Constitution protect landowners from government exploitation without disabling the machinery that protects landowners from each other? The Supreme Court left this central question unanswered — and indeed unasked — in Koontz v St. Johns River Water Management District. The Court’s exactions jurisprudence, set forth in Nollan v. California Coastal Commission, Dolan v. City of Tigard, and now Koontz, requires the government to satisfy demanding criteria for certain bargains — or proposed bargains — implicating the use of land. Yet because virtually every restriction, fee, or tax associated with the ownership or use of land can be cast as a bargain, the Court must find some way to hive off the domain of exactions from garden variety land use regulations. This it refused to do in Koontz, opting instead to reject boundary principles that it found normatively unstable. By beating back one form of exactions creep — the possibility that local governments will circumvent a too-narrowly drawn circle of heightened scrutiny — the Court left land use regulation vulnerable to the creeping expansion of heightened scrutiny under the auspices of its exactions jurisprudence. In this paper, we lay out this dilemma and suggest that it should lead the Court to rethink its exactions jurisprudence, and especially its grounding in the Takings Clause, rather than the Due Process Clause. The sort of skepticism about bargaining reflected in the Court’s exactions cases, we suggest, finds its most plausible roots in rule-of-law concerns implicated by land use dealmaking. With those concerns in mind, we consider alternatives that would attempt to reconcile the Court’s twin interests in reining in governmental power over property owners and in keeping the gears of ordinary land use regulation running in ways that protect the property interests of those owners.
Friday, November 1, 2013
Marie Boyd (South Carolina) has posted Zoning for Apartments: A Study of the Role of Law in the Control of Apartment Houses in New Haven, Connecticut 1912-1932, 33 Pace L. Rev. 600 (2013). In it, she reviews building records and Sanborn maps to give her reader a complete picture of the restrictions placed on apartment development before and after New Haven's first zoning ordinance in 1926. Here's the abstract:
This article seeks to contribute to the legal and policy debates over zoning by providing a more detailed examination of the impact of apartments on both pre-zoning land use patterns and the zoning process during the formative initial stages of zoning in the United States than has been provided in the literature to date. Specifically, this Article analyzes the impact of apartments on both pre-zoning land use patterns and the zoning process in New Haven, Connecticut. It focuses on the period beginning with the selection of New Haven’s first Zoning Commission in 1922, and concluding with the passage of New Haven’s first zoning ordinance in 1926. Through this detailed historical account of the realities of zoning, this Article demonstrates how — due to delays in the enactment of zoning — New Haven’s first zoning ordinance, rather than shaping the future growth of the regulated area, was instead shaped by existing land use patterns and political considerations.
Wednesday, October 30, 2013
So it's been quite awhile since my last post, but I felt compelled to share the end of the story about putting a Wal-Mart in downtown Athens, Georgia. If you're a longtime reader of the blog you may remember that an Atlanta based developer proposed a mixed-use development, anchored by a Wal-Mart, in the center of Athens. (See my previous post here.) Although Wal-Mart never expressed official interest in the project, many local residents were highly opposed to the idea.
Yesterday the local paper featured a story saying that the developer has now abandoned the project entirely, due to market conditions. The development featured student apartments as its residential component, and downtown Athens is already overbuilt in that category. However, the site, while topographically challenging, is prime real estate. I'm sure as market conditions improve something will eventually be built there.
Jamie Baker Roskie
Friday, September 20, 2013
A new paper on conservation development provides oodles of information about conservation development in the western United States while pinpointing shortfalls with current ordinances. Conservation development for the uninitiated is well... pretty much exactly what it sounds like. It is a land-se planning strategy that requires conservation measures for new development. It can take the form of conservation easements, cluster development, conservation-oriented planned development, etc. A common feature is setting aside some portion of land for conservation in a residential development project. Many counties and local governments have laws promoting conservation development (often pledging faster project review or bestowing density bonuses).
Although not yet available in print, you can get an early view of an article in the upcoming issue of Conservation Biology by Sarah Reed, Jodi Hilty, and David Theobald that examines conservation development ordinances in 11 western states. The authors did an impressive job of reviewing ordinance for 402 counties (97% response rate-- wowzers). As conservation biologists, the authors were interested to see if the county ordinances promoted sound ecological principles. A few interesting things coming out of the study:
- over 30% of the counties actually had conservation development ordinances
- most required protection in perpetuity, but not all
- most required conservation of some portion of the land, but set no minimum sizes on protected area, rarely required connection with other protected lands or even other lands within the site
- very few ordinances required ecological analysis
- only 8% required some type of consultation with an ecologist or conservation biologist
- few required management plans
These are just a few of the points that they make, and I recommend getting the full article to learn more. This is a good article for lawyers and planners to read because it highlights some of the problems we have communicating with each other. One thing they don't answer but I wondered about is how many conservation biologists were consulted when the counties actually wrote the ordinance.
Here is the full title and abstract:
Guidelines and Incentives for Conservation Development in Local Land-Use RegulationsSARAH E. REED, JODI A. HILTY, & DAVID M. THEOBALD
Article first published online: 3 SEP 2013
Effective conservation of biological diversity on private lands will require changes in land-use policy and development practice. Conservation development (CD) is an alternative form of residential development in which homes are built on smaller lots and clustered together and the remainder of the property is permanently protected for conservation purposes. We assessed the degree to which CD is permitted and encouraged by local land-use regulations in 414 counties in the western United States. Thirty-two percent of local planning jurisdictions have adopted CD ordinances, mostly within the past 10 years. CD ordinances were adopted in counties with human population densities that were 3.0 times greater and in counties with 2.5 times more land use at urban, suburban, and exurban densities than counties without CD ordinances. Despite strong economic incentives for CD (e.g., density bonuses, which allow for a mean of 66% more homes to be built per subdivision area), several issues may limit the effectiveness of CD for biological diversity conservation. Although most CD ordinances required a greater proportion of the site area be protected than in a typical residential development, just 13% (n = 17) of the ordinances required an ecological site analysis to identify and map features that should be protected. Few CD ordinances provided guidelines regarding the design and configuration of the protected lands, including specifying a minimum size for protected land parcels or encouraging contiguity with other protected lands within or near to the site. Eight percent (n =11) of CD ordinances encouraged consultation with a biological expert or compliance with a conservation plan. We recommend that conservation scientists help to improve the effectiveness of CD by educating planning staff and government officials regarding biological diversity conservation, volunteering for their local planning boards, or consulting on development reviews.
- Jessie Owley
Friday, August 23, 2013
Tim Iglesias (USF) has recently published Framing Inclusionary Zoning: Exploring the Legality of Local Inclusionary Zoning and its Potential to Meet Affordable Housing Needs, 36 No. 4 Zoning and Planning Law Report 1 (2013). The Report is a West publication, so even if you cannot find the piece on SSRN or bepress, it is available here at Westlaw (login required). Apart from clicking on the link, you can copy the citation above into the Find By Citation box on the Westlaw sidebar.
Tim's briefly examines how opponents and supporters have attempted to frame various kinds of inclusionary zoning ordinances as land use regulation, exactions, rent control or something distinct from all three. His review of leading cases on the validity of local inclusionary zoning measures looks at each of the three frames in turn, with the latter two involving state preemption as well as constitutional issues.
I don't plan on returning to the Land Use Planning course for a few semesters, but I recommend this piece as supplemental reading for students trying to get their heads around the legal vulnerability of inclusionary zoning ordinances, particularly in the wake of Koontz.
Wednesday, July 17, 2013
This past weekend I was in Southern California for a family wedding, and we had the chance to go over to the Getty Museum. It is a spectacular place for many reasons including land use and architecture. Right now, and through July 21, the Getty is featuring an incredibly interesting exhibit called Overdrive: LA Constructs the Future, 1940-1990. It tells the story of how LA was the archetype for American land use and development in the postwar era through the end of the 20th Century.
Amy Hardberger (St. Mary's) has posted World's Worst Game of Telephone: Attempting to Understand the Conversation between Texas's Legislature and Courts on Groundwater, forthcoming in the Texas Environmental Law Review. The abstract:
Groundwater is a critical component of Texas water resources. Currently, groundwater accounts for 60% of all water withdrawn in the state. Historically, the largest groundwater user was the agricultural sector; however, Texas cities are also increasingly reliant on these water sources. State water demands are projected to increase 22% in the next fifty years. Many of these demands will be in the groundwater sector. In addition to increasing demand, periodic and sometimes severe droughts challenge an already stressed system. Texas’s ability to provide sufficient resources depends in large part on their effective management.
This paper evaluates the Day decision through the lens of past court decisions and legislation in an effort to understand why the court ruled as it did. Part II introduces Texas’s groundwater resources, current uses of that water, and present concerns regarding sustainability. Part III chronicles the line of cases that established capture as the common law rule in Texas. Part IV traces the history of groundwater legislation after courts established rule of capture. This legislation created a regulatory overlay on the common law rule of capture through localized groundwater conservation districts and the statewide planning process. Part V describes the process through which the Edwards Aquifer Authority came into existence and why it is different from other groundwater districts in the state in that its strict pumping cap immediately raised property rights concerns. Part VI explains how groundwater litigation shifted from right of capture limitations to questions of when ownership vests. This change was a product of increased pressure on groundwater resources caused by additional regulations and growing population demands.
Finally, Part VII presents three hypotheses regarding why the court came to its decision in the Day case despite the case law history. The first theory is that delineation of property interests is an issue reserved for courts’ authority. Another alternative is that the holding in Day was a result of a statewide shift towards the protection of private property rights above other concerns. The final proposed alternative is that the Day holding was actually an effort to define the property right in such a way as to encourage more regulation or at least limit takings claims through the expansive of correlative rights to groundwater.
Interesting and important--Texas is a huge state with a growing economy and population and an energy boom, and water is going to be a critical issue in the immediate and long-term future.
July 17, 2013 in Caselaw, Environmentalism, Local Government, Oil & Gas, Planning, Property Rights, Scholarship, State Government, Sustainability, Texas, Water | Permalink | Comments (0) | TrackBack (0)
Sarah Schindler (Maine) has posted Banning Lawns, forthcoming in the George Washington Law Review (2014). The abstract:
Recognizing their role in sustainability efforts, many local governments are enacting climate change plans, mandatory green building ordinances, and sustainable procurement policies. But thus far, local governments have largely ignored one of the most pervasive threats to sustainability — lawns. This Article examines the trend toward sustainability mandates by considering the implications of a ban on lawns, the single largest irrigated crop in the United States.
Green yards are deeply seated in the American ethos of the sanctity of the single-family home. However, this psychological attachment to lawns results in significant environmental harms: conventional turfgrass is a non-native monocrop that contributes to a loss of biodiversity and typically requires vast amounts of water, pesticides, and gas-powered mowing.
In this Article, I consider municipal authority to ban or substantially limit pre-existing lawns and mandate their replacement with native plantings or productive fruit- or vegetable-bearing plants. Although this proposal would no doubt prove politically contentious, local governments — especially those in drought-prone areas — might be forced to consider such a mandate in the future. Furthering this practical reality, I address the legitimate zoning, police power, and nuisance rationales for the passage of lawn bans, as well as the likely challenges they would face. I also consider more nuanced regulatory approaches that a municipality could use to limit lawns and their attendant environmental harms, including norm change, market-based mechanisms such as progressive block pricing for water, and incentivizing the removal of lawns.
Prof. Schindler has been working on this project and presented it at ALPS previously-- it will serve as a foundational article on the debate that is going to happen (whether or not you knew it) on the future of the American Lawn!
Monday, July 15, 2013
William A. Fischel (Dartmouth-Economics; Lincoln Institute of Land Policy) has posted Fiscal Zoning and Economists' Views of the Property Tax. The abstract:
Fiscal zoning is the practice of using local land-use regulation to preserve and possibly enhance the local property tax base. Economists agree that if localities can conduct "perfect zoning," which effectively makes all real estate development decisions subject to a review that balances its benefits and costs to the community, then the local property tax can be converted into a benefit tax and lacks the deadweight loss of taxation. This essay argues that American zoning is closer to this ideal than many other economists think. The practice is often difficult to detect because zoning serves several objectives besides fiscal prudence.
Anything by Fischel is a must-read!
Saturday, June 15, 2013
Land Use Prof's own Ken Stahl (Chapman) has posted the final version of Neighborhood Empowerment and the Future of the City, 161 U. Pa. L. Rev. 939 (2013). (Who says Zoning can't go Ivy?!?) Matt notified us when the piece first was uploaded. Here's the abstract for the finished piece:
In any given metropolitan region,
scores of municipalities are locked in a zero-sum struggle for mobile sources
of jobs and tax revenue. This competition appears to benefit small, homogeneous
suburbs that can directly enact the uniform will of the electorate over large,
diverse cities that are often ensnarled in conflict between competing interest
groups. Cities can level the playing field with suburbs, however, by devolving
municipal power to smaller, more homogeneous subgroups, such as neighborhoods.
Indeed, many commentators have identified one such effort at neighborhood
empowerment, the “business improvement district” (BID), as a key factor in the
recent revitalization of many cities. The BID and the related “special
assessment district” devolve the financing of infrastructure and services to
landowners within a territorially designated area. Courts have widely upheld
BIDs and special assessment districts against constitutional challenges.
Cities remain hamstrung in competing with suburbs, however, because courts prohibit cities from delegating what is perhaps the most coveted power of all to neighborhood groups: zoning. Since an unusual series of Supreme Court cases in the early twentieth century, it has been largely settled that cities may not constitutionally delegate the zoning power to sub-municipal groups, at least where the power is delegated specifically to landowners within a certain distance from a proposed land use change (a scheme I designate a “neighborhood zoning district”).
This Article argues that the judicial prohibition on neighborhood zoning districts is inconsistent with the judiciary’s permissive attitude toward BIDs and special assessment districts. As I demonstrate, the neighborhood zoning district is conceptually identical to the special assessment district/BID. Both devices are designed to enable large, diverse cities to capture some of the governance advantages of small, homogeneous suburbs by providing landowners with the direct ability to manage local externalities. This Article attempts to make sense of the disparate treatment accorded these devices by examining several grounds upon which they could potentially be, and have been, distinguished. I find, however, that the only meaningful distinction between these mechanisms is that special assessment districts/BIDs actually raise far more troubling public policy concerns than neighborhood zoning districts, thus calling into question why the judiciary has been so much more deferential toward the former than the latter. I conclude that courts should broadly defer to municipal delegations of power to sub-local groups, so that cities can work out their own strategies for surviving in an era of intense interlocal competition.
Monday, June 10, 2013
Margaret F. Brinig (Notre Dame) and Nicole Stelle Garnett (Notre Dame) have posted A Room of One's Own? Accessory Dwelling Unit Reforms and Local Parochialism, forthcoming in The Urban Lawyer (2013). The abstract:
Over the past decade, a number of state and local governments have amended land use regulations to permit the accessory dwelling units (“ADUs”) on single-family lots. Measured by raw numbers of reforms, the campaign to secure legal reforms permitting ADUs appears to be a tremendous success. The question remains, however, whether these reforms overcome the well-documented land-use parochialism that has, for decades, represented a primary obstacle to increasing the supply of affordable housing. In order to understand more about their actual effects, this Article examines ADU reforms in a context which ought to predict a minimal level of local parochialism. In 2002, California enacted state-wide legislation mandating that local governments either amend their zoning laws to permit ADUs in single-family zones or accept the imposition of a state-dictated regulatory regime. We carefully examined the zoning law of all California cities with populations over 50,000 people (150 total cities) to determine how local governments actually implemented ADU reforms “on the ground” after the state legislation was enacted. Our analysis suggests that the seeming success story masks hidden local regulatory barriers. Local governments have responded to local political pressures by delaying the enactment of ADU legislation (and, in a few cases, simply refusing to do so despite the state mandate), imposing burdensome procedural requirements that are contrary to the spirit, if not the letter, of the state-law requirement that ADUs be permitted “as of right,” requiring multiple off-street parking spaces, and imposing substantive and procedural design requirements. Taken together, these details likely dramatically suppress the value of ADUs as a means of increasing affordable housing.
This looks really interesting. Here in Houston we have a significant number of ADUs--so-called "granny flats" because--stop me if you've heard this before--Houston has no zoning to make it illegal, as this article shows it has been in single-family residentail neighborhoods around the country. These ADUs provide an important supply of affordable "inside-the-Loop" (i.e. central city area) housing.
June 10, 2013 in Affordable Housing, California, History, Housing, Houston, Local Government, Planning, Politics, Property, Property Rights, Scholarship, State Government, Subdivision Regulations, Zoning | Permalink | Comments (0) | TrackBack (0)
Wednesday, May 1, 2013
I stumbled across a recent artcle in Applied Geography that I think may be of interest to our readers. I got even more excited when I realized the piece was from colleagues in SUNY Buffalo's Geography Department. Amy Frazier, Sharmistha Bagchi-Sen, and Jason Knight examine the effect of demolition on land-use patterns and changes in human-environment interactions.
While many cities are worried about smart growth and we land use profs spend a lot of time thinking about it, shrinking cities like Buffalo face another challenge: smart decline. The authors (and others) have convinced me that maintaining pro-growth policies in a shrinking city is ill-advised. Instead of thinking we're going to suddenly grow Buffalo, let's think about how we can grow smaller gracefully. Smart decline policies include things like land banks, urban farming, and green infrastructures.
Frazier et al. look at the smart decline policy of demolition. Earlier studies (as well as conventional wisdom) suggest that vacant buildings attract criminal activities (the broken window effect). This study examined a five-year demolition program in Buffalo to assess whether demolitions of vacant buildings actually lead to reduced crime. Their results are fascinating and like all of the best projects point out areas where more research is needed. The big take aways seem to be that there may be some local reductions in crime, but that likely means that the criminal activity is pushed elsewhere. This can have unanticipated impacts on surrounding areas, transportation needs, housing values etc. Such policies need to examine the way that demolitions will shift land uses and impact human-environment interactions. To do so in a successful way will necessarily include regional approaches.
Amy E. Frazier, Sharmistha Bagchi-Sen, & Jason Knight, The Spatio-temporal Impacts of Demolition Land Use Policy and Crime in a Shrinking City 41 Applied Geography 55 (2013)
ABSTRACT: Land use change, in the form of urbanization, is one of the most significant forms of global change, and most cities are experiencing a rapid increase in population and infrastructure growth. However, a subset of cities is experiencing a decline in population, which often manifests in the abandonment of residential structures. These vacant and abandoned structures pose a land use challenge to urban planners, and a key question has been how to manage these properties. Often times land use management of these structures takes the form of demolition, but the elimination of infrastructures and can have unknown and sometimes unintended effects on the human-environment interactions in urban areas. This paper examines the association between demolitions and crime, a human-environment interaction that is fostered by vacant and abandoned properties, through a comparative statistical analysis. A cluster analysis is performed to identify high and low hot spots of demolition and crime activity, specifically assault, drug arrests, and prostitution, over a 5-year period. Results show that there is an association between the area targeted for significant demolition activity and the migration of spatial patterns of certain crimes. The direction of crime movement toward the edges of the city limits and in the direction of the first ring suburbs highlights the importance of regional planning when implementing land use policies for smart decline in shrinking cities.
May 1, 2013 in Community Design, Crime, Density, Downtown, Environmental Justice, Housing, Local Government, New Urbanism, Planning, Scholarship, Smart Growth, Urbanism | Permalink | Comments (1) | TrackBack (0)
Monday, April 1, 2013
Happy Dyngus Day! As everyone surely knows, the Monday after Easter is celbrated as Dyngus Day in Poland and in some U.S. cities with Polish-American cultural history. At the Land Use Prof Blog we like to feature holdiays that have historical and cultural roots that also involve local politics, community events and neighborhood effects--and therefore, land-use tie-ins. So here's a link to last year's post on Dyngus Day and land use.
So today's the day to get a pussywillow branch to chase around that special someone--no April Foolin', even if CNN's Anderson Cooper thinks it's funny and stupid. If I lived in Buffalo or South Bend (e.g.), I'd drop everything today and get down to the Dyngus Day celebrations!
Friday, March 8, 2013
Michael N. Widener (Phoenix) has posted Moderating Citizen 'Visioning' in Town Comprehensive Planning: Deliberative Dialog Processes, forthcoming in the Wayne Law Review. The abstract:
This article describes opportunities in Comprehensive Plan (aka General Plan or Master Plan) initial adoption or subsequent amendment processes where stakeholders provide inputs on behalf of a diverse citizens community. The moderation process described here involves the City of Scottsdale, Arizona, currently engaged in developing its 2014 Plan which seeks to extend the city’s planning vision through 2045. Part II of this article provides a brief primer of a General Plan’s role in municipal police power exercise. Parts III and IV describe the history of the Scottsdale experience in amending its General Plan with citizen aid and rebellion. Part V delivers some observations about a citizen input method into planning matters that is subject to popular critique. Part VI summarizes the purpose of citizen inputs into a comprehensive plan, and how professional moderation of the stakeholders' inputs may appropriately channel public contributions to a municipality's land use vision without distortion or corruption of the process.
Thursday, March 7, 2013
We are pleased to share with you our latest fact brief: Sandy's Effects on Housing in New York City (PDF) Our report is the first independent, comprehensive analysis of the Superstorm's impact on housing in New York City.
The study revealed some surprising insights into the impacts of the Superstorm Sandy. It found that low-income renters were disproportionately impacted by the storm's surge; over half of the victims were renters, 61 percent of whom make less than $60,000 per year, instead of middle-class homeowners. It also exposed the age of the housing stock affected by the surge; 82% of the properties hit by Sandy were built before 1980, before the latest flood maps and building standards were established.
The report also summarizes newly available information about the characteristics of properties in the area in New York City flooded by Sandy's storm surge, as well as demographic characteristics of households that have registered to receive assistance from FEMA. The study was released in partnership with Enterprise Community Partners, who provided a similar analysis on Long Island and New Jersey.
Lots of interesting maps and data in this report, which should be of interest to anyone researching law, land, housing, and disaster planning
March 7, 2013 in Affordable Housing, Beaches, Coastal Regulation, Community Economic Development, Environmentalism, Federal Government, Housing, Local Government, New York, Property, Redevelopment, Scholarship, Water | Permalink | Comments (0) | TrackBack (0)
Wednesday, February 20, 2013
John R. Nolon (Pace) has posted Shifting Paradigms Transform Environmental and Land Use Law: The Emergence of the Law of Sustainable Development, forthcoming in the Pace Environmental Law Review (2013). The abstract:
We began these two decades reacting to the market’s interest in developing greenfields and coastal property and end it wondering how to prepare more urbanized places for a growing population of smaller households who seek the amenities of urban living and some protection from the storms ahead. This essay discusses this and nine other fundamental paradigm shifts in environmental and economic conditions that are reshaping the law and changing the way state and local governments control land use and order human settlements.
Prof. Nolon has spearheaded the scholarly movement toward framing land use as an area of law that incorporates local government mechanisms and the imperatives of environmental regulation, which he has led into a broader conception of sustainability. This essay provides a great overview of how our communities depend on land use law.
Elizabeth Plummer (Texas Christian) has posted The Effects of Property Tax Protests on the Assessment Uniformity of Residential Properties, forthcoming in Real Estate Economics. The abstract:
This study examines whether the appeals process improves assessment uniformity for residential properties. The sample includes all single family residential properties in Harris County, Texas, for 2006-2008. I use a hedonic pricing model and Heckman’s two stage approach to explain the assessed values of all properties before and after the appeals adjustments. Full sample results suggest that the appeals process increased assessment uniformity and that the value adjustments were appropriate in amount. I also present results across properties of different values (low, medium, high). The first stage probit model provides evidence on the factors that affect the likelihood that an owner will protest.
I'm personally excited to see this study of real estate value effects in my own backyard, here in The Unzoned City.
Wednesday, February 13, 2013
The University of Missouri School of Law is hosting a Symposium on February 22, 2013, called Promoting Sustainable Energy through Tax Policy. Sponsored by the Journal of Environmental and Sustainability Law and the Missouri Tax Law Society, the event will be introduced by Mizzou profs Michelle Arnopol Cecil and our own guest blogger Troy Rule, and features panels with Alexandra Klass (Minnesota), Steve Gaw (The Wind Coalition), Felix Mormann (Miami), Roberta Mann (Oregon), Robert Peroni (Texas), with a keynote by David Weisbach (Chicago). Here's the info and link:
Renewable energy and sustainable development are valuable means of combatting climate change and of reducing the nation’s reliance on foreign energy sources. Recognizing the importance of sustainable energy, state and federal policymakers have employed aggressive tax incentive programs to stimulate unprecedented growth in wind energy, solar energy, biomass, green building, and related industries in recent years. Unfortunately, shortfalls in many state budgets and growing concerns about the national debt are now creating pressure for governments to extinguish these tax programs — a move that could bring progress in the nation’s fledgling sustainable energy sector to a grinding halt.
This year’s Journal of Environmental and Sustainability Law symposium is being sponsored jointly with the University of Missouri Tax Law Society. The symposium explores questions about the long-term role of tax policy as a tool for promoting renewable energy and sustainability in the United States.
Cost and Registration
The symposium is free and open to the public.
Registration is suggested by Friday, February 15.
To register, please contact:
Journal of Environmental and Sustainability Law
University of Missouri School of Law
12E Hulston Hall
Columbia, MO 65211
February 13, 2013 in Clean Energy, Climate, Conferences, Environmental Law, Environmentalism, Federal Government, Local Government, Oil & Gas, Politics, Scholarship, State Government, Wind Energy | Permalink | Comments (0) | TrackBack (0)
Wednesday, January 23, 2013
When it comes to conservation easements, there are a lot of tax issues that arise. Yesterday, I referred to charitable tax deductions associated with donated conservation easements. Many conservation easements also result in reduced property taxes for landowners. This varies by state law and only occurs where the conservation easement reduces the property value. Generally, however, lands encumbered with conservation easements are still taxed. In fact, the fact that the land stays on the tax rolls has been touted as a benefit of conservation easements (when compared to government acquisition of the land). That is, tax revenue generated by the land may be reduced, but the landowner is still contributing to local services. A new case from a New Mexico Appeals Court holds that for some conserved property, no property taxes will be owed.
The court held that property owned by a conservation organization, subject to a conservation easement prohibiting all construction, for the purpose of open space conservation constitutes a “charitable use” that is exempt from property taxes under the New Mexico Constitution. The state Constitution provides that “all property used for educational or charitable purposes [among various other uses]… shall be exempt from taxation.”
The local government argued that it conservation should not be considered a charitable “use” because the “land that is idle, unimproved and not in actual use” and there “is no direct and immediate charitable use, and for which the claimed environmental benefit—even if construed to be a charitable purpose—is, at best, remote and consequential.” The court disagreed, explaining that “conservation benefits the public … through maintaining the Property for the public’s benefit in its natural, pristine state without any particular human activities or construction.” The court emphasized that not all conserved parcels would meet the charitable use criteria and a case-by-case analysis will be necessary. This will likely be a hard standard to meet for most conservation easements and it is not clear how important the identity of the underlying landowner was.
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)