Thursday, March 7, 2013
Dave Owen (Maine) has posted Taking Groundwater. The abstract:
In February, 2012, in a case called Edwards Aquifer Authority v. Day, the Texas Supreme Court held that landowners hold property rights to the groundwater beneath their land, and that a regulatory restriction on groundwater use could constitute a taking of private property. The decision provoked strong reactions, both positive and negative, throughout the world of water law, for it signaled the possibility of severe restrictions on governmental ability to regulate groundwater use.
This Article considers the deeper issue that confronted the Texas Supreme Court, and that has confronted other courts across the country: how should the Takings Clause of the Fifth Amendment, and parallel clauses of state constitutions, apply to groundwater use regulation? Initially, this Article explains why this issue is exceedingly and increasingly important. It then reviews all of the groundwater/takings decisions from federal and state courts in the United States. Finally, the Article considers the implications of foundational property theories for the application of takings doctrine to groundwater use.
The analysis supports two key conclusions. First, it undermines arguments against treating water rights as “constitutional property” — that is, property protected by federal and state takings clauses. Proponents of those arguments generally assert that treating water rights as property has uneven support from prior caselaw and that such treatment will be prevent sensible governance. A review of groundwater caselaw demonstrates that the former assertion runs counter to the weight of authority, and that the fears underlying the latter argument are overstated. Second, and more importantly, the analysis undermines arguments for granting groundwater use rights heightened protection against regulatory takings. Recently, litigants and commentators skeptical of government regulatory authority have widely advanced those arguments. But they find no support in past groundwater/takings caselaw, and no property theory justifies adopting such an approach.
An important issue, and a reminder that state supreme courts continue to play a crucial role in shaping modern property law.
March 7, 2013 in Caselaw, Constitutional Law, Environmental Law, Property, Property Rights, Scholarship, State Government, Sustainability, Takings, Texas, 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.
Friday, November 23, 2012
Tony Arnold (Louisville) sends word that he has co-authored a chapter with Lance Gunderson (Emory--Environmental Studies) called Adaptive Law, forthcoming in the book Resilience and Law, Craig R. Allen & Ahjond S. Garmestani, eds., Columbia University Press, 2013. The abstract:
This book chapter proposes a bold sweeping set of characteristics of "adaptive law": features of the legal system that promote the resilience and adaptive capacity of both social systems and ecosystems. Law, particularly U.S. law, has been characterized as ill-suited to management of natural resources and the environment for resilience and sustainability. The maladaptive features of U.S. law include narrow systemic goals, mononcentric, unimodal, and fragmented structure, inflexible methods, and rational, linear, legal-centralist processes. This book chapter proposes four fundamental features of an adaptive legal system: 1) multiplicty of articulated goals; 2) polycentric, multimodal, and integrationist structure; 3) adaptive methods based on standards, flexibility, discretion, and regard for context; and 4) iterative legal-pluralist proceses with feedback loops and accountability. It then discusses these four features in the context of several socio-ecological issues and identifies needs for future study and development of adaptive law, particularly in light of panarchy theory about how complex, adaptive, interconnected systems change over time.
As many land use lawyers already know, Prof. Arnold is one of the leading scholars in establishing the emerging area of adaptive law; this collaboration with Prof. Gunderson looks to be a very helpful starting point for comparing ecosystems and social systems with respect to adaptation to changing circumstances.
Thursday, October 11, 2012
Resarchers from Arizona State have created a program that maps CO2 in cities. What is fascinating about this project is that they can map it down to the level of individual blocks and buildings. While this program is only currently focused on urban areas, global CO2 maps (and particularly maps of rural areas) could be pivotal in any programs related to carbon emissions. It could enable us to identify the heaviest producers and also perhaps assist in sequestration programs. They even made a cool video showing how it works. What a great tool for local governments.
Here is the citation and abstract:
Kevin R. Gurney, Igor Razlivanov, Yang Song, Yuyu Zhou, Bedrich Benes, & Michel Abdul-Massih, Quantification of Fossil Fuel CO2 Emissions on the Building/Street Scale for a Large U.S. City, Envtl Sci. & Tech. (August 15, 2012)
In order to advance the scientific understanding of carbon exchange with the land surface, build an effective carbon monitoring system, and contribute to quantitatively based U.S. climate change policy interests, fine spatial and temporal quantification of fossil fuel CO2 emissions, the primary greenhouse gas, is essential. Called the “Hestia Project”, this research effort is the first to use bottom-up methods to quantify all fossil fuel CO2 emissions down to the scale of individual buildings, road segments, and industrial/electricity production facilities on an hourly basis for an entire urban landscape. Here, we describe the methods used to quantify the on-site fossil fuel CO2 emissions across the city of Indianapolis, IN. This effort combines a series of data sets and simulation tools such as a building energy simulation model, traffic data, power production reporting, and local air pollution reporting. The system is general enough to be applied to any large U.S. city and holds tremendous potential as a key component of a carbon-monitoring system in addition to enabling efficient greenhouse gas mitigation and planning. We compare the natural gas component of our fossil fuel CO2 emissions estimate to consumption data provided by the local gas utility. At the zip code level, we achieve a bias-adjusted Pearson r correlation value of 0.92 (p < 0.001).
- Jessie Owley
Thursday, October 4, 2012
Hari M. Osofsky (Minnesota) has posted Suburban Climate Change Efforts: Possibilities for Small and Nimble Cities Participating in State, Regional, National, and International Networks, forthcoming in the Cornell Journal of Law & Public Policy. The abstract:
This Article provides a novel analysis of the capacity of suburbs to play a constructive role in addressing climate change. Small suburban cities represent the majority of metropolitan populations and emissions; encouraging their mitigation efforts, in addition to those of large center cities, is critical. In contrast to the conventional critique of suburbs as an undifferentiated group of sprawling emitters, the Article analyzes pathways for different types of small, nimble, suburban governments to learn from other localities and find cost-effective approaches to reducing emissions. It intertwines scholarship on (1) cities, suburbs, and climate change, (2) the complex demography of suburbs, (3) the role of climate change networks in transnational governance, and (4) more inclusive multi-level climate change governance to describe the limits of the current discourse on suburbs and climate change and to propose a new model for encouraging more suburban action. Using the Twin Cities metropolitan region as an initial case example, the Article considers what steps different types of leader suburbs are taking and how they are participating in voluntary multi-level climate change and sustainability networks. It argues that, especially in the absence of top-down mandates requiring cities to mitigate their emissions, these voluntary networks play an important role in fostering local action and connecting that action to international climate change treaties. It proposes that these networks could have a greater impact, however, through strategies that reflect the differences among types of suburban cities and foster more cross-network interaction.
Tuesday, September 18, 2012
Keith Hirokawa (Albany) has posted his latest interesting piece, Urban Forests as Green Infrastructure, a chapter from his book with Patricia Salkin GREENING LOCAL GOVERNMENT: LEGAL STRATEGIES FOR PROMOTING SUSTAINABILITY, EFFICIENCY, AND FISCAL SAVINGS, p. 257, Keith H. Hirokawa and Patricia Salkin, eds., American Bar Association, 2012. The abstract:
Urban forests capture air and water pollutants as they provide shade, habitat, and social value. The health and character of urban forests are determined by the priorities that communities place on them, the local regulations that direct land use choices, and the extent to which local governments address resource shortages through zoning, resource planning, and resource regulation. Local governments can plan and regulate urban forests to benefit (economically, socially, and environmentally) from the services that trees can provide to communities. This essay explores the role of urban forests in the local provision of local green infrastructure and the ways that local governments capture of the benefits of urban forests by planning and implementing tree protections.
Thursday, September 6, 2012
Patricia Salkin (Touro Law Center) has posted Key to Unlocking the Power of Small Scale Renewable Energy: Local Land Use Regulation, Journal of Land Use & Environmental Law No. 27 (2012). The abstract:
This article provides an overview of some of the strategies that have been used to increase the use of small-scale renewables, focusing on non-commercial renewable energy systems installed at the home or business level. The article begins in Part II with a discussion of various renewable energy incentives offered by the federal and state governments to promote the use of these alternative sources of electricity, including financial and permitting incentives. Part III continues with a detailed examination of how the land use regulatory system can be used to promote small-scale renewable energy by employing traditional zoning techniques, asserting that without an appropriate local land use regime, the incentives reviewed in Part II cannot be effectively utilized. Part IV concludes with a warning to local governments that if they fail to accommodate the emerging federal and state policies supporting the siting of renewable energy sources, they may face preemptive statutory measures in the area of land use regulation. This creates perhaps the greatest incentive for local governments to plan and regulate responsibly for promoting the appropriate use of small-scale renewable energy.
Wednesday, August 22, 2012
The University of San Diego School of Law will host the Fourth Annual Climate & Energy Law Symposium on Friday, Nov. 9, 2012. This year's title is Law in a Distributed Energy Future. Here is the symposium overview:
The University of San Diego School of Law's fourth annual Climate and Energy Law Symposium will examine emerging law and policy approaches to encourage and accommodate distributed energy solutions. Historically, electricity has been generated by large power plants located far from consumers and delivered via long transmission lines. While that model remains largely intact, a gradual shift is occurring toward more localized energy production.
The symposium will bring together legal and policy experts from across the country to address a variety of key issues including the latest developments in the rules that govern the electricity grid change to incorporate distributed generation, possibilities for generating energy at the neighborhood and community levels, the legal and policy innovations at the federal, state and local levels that are most needed to usher in a distributed energy future.
Keynote addresses will be given by Commissioner Carla Peterman of the California Energy Commission, and Ken Alex, senior policy advisor to California Governor Jerry Brown and director of the Office of Planning and Research. The program and registration info are at the website.
Sunday, August 5, 2012
We had a torrential downpout here in Buffalo today. Many people were happy about the rain because it has been very hot here of late, and weeks without rain has led to the death of many lawns and gardens. I was excited for a different reason. It was the first big test of our new street! I am lucky enough to live on the first test block for porous asphalt in Buffalo. My neighbors and I are quite excited about it even though it took two months for them to install it. The difference was pretty awesome. My three year old and I ran around in the rain, and watcedh it all just seep into the street. Rumor has it that we will also be getting free rain barrels.
There are a lot of exciting green infrastructure projects around the country. Having lived through one of them, I think there is a lot of potential. But it took 2 months for them to do one block here in Buffalo. Wonder how much time and money it would take to do a significant part of the city?
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)
Friday, July 13, 2012
I am just returning to Buffalo after three days at a retreat center in Connecticut for the first gathering of the Environmental Law Collaborative.
Besides my participation in this blog of course, helping to found the ELC (with Mike Burger, Betsey Burleson, and Keith Hirokawa) has been one of the most rewarding aspects of my young academic career. The ELC seeks to foster progress toward an adaptive, conscious, and equitable governance of actions that impact local and global ecologies by engaging the contemporary discourse. The goal of the ELC is to facilitate dialog among thought leaders on sustainable policy priorities, practical implementation strategies, assessment mechanisms, and cooperative analysis of science, economics, and ethics (which is frankly a fancy way of saying we’re going to get together to talk about cool and exciting stuff). We’re also attempting to create a venue for collaborative research and analysis.
With a plan for 10-15 of us to meet every other year to discuss different themes (and perhaps to periodically revisit earlier ones), this year we tried to tackle the daunting topic of re-conceptualizing sustainability in the age of climate change. As climate change continues to dominate dialogues in many fields of research including land use, sustainability is at a critical moment that challenges its conceptual coherence. Sustainability has never been free from disputes over its meaning and has long struggled with the difficulties of simultaneously implementing the “triple-bottom line” components of environmental, economic, and social well-being. Climate change, however, suggests that the context for sustainable decision-making is shifting.
Over three days, 13 of us (yes it is a lucky number) gathered at a retreat center in Chester, CT where we grappled with these issues while sitting outside under a sprawling maple tree and listening to traffic driving by frogs croaking in the pond behind us. Importantly, there was also swimming, hiking, and yarn shopping. We did not figure out the magical way to solve our climate problems or make the world more sustainable but the conversations really pushed the thinking of many of us and we’re planning to figure out a good way to share our thoughts with others. I have a sneaking suspicion that land use issues will crop up in any writing that comes out of this group.
Sunday, June 17, 2012
Riley Smith, Arnim Wiek from Environment and Planning C: Government and Policy contents vol 29
The concept of urban sustainability governance has developed as an institutional guiding concept to holistically address the vitality of cities under a long-term perspective and is based on the collaborative efforts of government, administration, business, science, and the civil society. Yet, the initiation and implementation of this guiding concept faces a variety of barriers, including deficient conceptualization, unfamiliarity, detrimental organizational structures, and inertia. We examine the initiation of urban sustainability governance in the City of Richmond, British Columbia, Canada. On the basis of the reviews of administrative documents and interviews with staff across various administrative levels and units, we reflect on achievements and shortcomings against guidelines of urban sustainability governance spelled out in the literature. Our study indicates accomplishments in the conceptualization of a vision and overall framework to operate from, but also a number of deficits in specifying sustainability targets, applying governance principles, and evaluating impacts. Additionally, we discuss how administrative structures influence how urban sustainability governance is being implemented. We draw conclusions regarding general factors for succeeding in the initiation and implementation of urban sustainability governance.
Keywords: sustainable governance, principles, guidelines, governance implementation, evaluation
Friday, June 15, 2012
Via Congress for the New Urbanism, I came across this link to what looks like a great panel discussion hosted by the Cato Institute and cosponsored by Next American City, called "The Death and Life of Affordable Housing." Here is the link to the video. The session features a terrific lineup of thoughtful commentators. From the event description:
Featuring Ryan Avent, Author of The Gated City; Adam Gordon, Staff Attorney, Fair Share Housing; Randal O'Toole, Senior Fellow, Cato Institute, and author of American Nightmare: How Government Undermines the Dream of Homeownership; Matthew Yglesias, author of The Rent Is Too Damn High; moderated by Diana Lind, Executive Director and Editor-in-Chief, Next American City. . . .
The Cato Institute and Next American City will jointly host a panel discussion about housing and development policy in American cities. For several decades, U.S. policymakers have grappled with how to make housing more affordable for more people. In the past year, several new books have claimed that various government tools, such as zoning and subsidies, have limited people's access to desirable, affordable housing—while other leading thinkers have suggested that markets alone will not create socially, economically, and environmentally sustainable communities. With a shared goal of creating livable, affordable communities for all people—but diverging ideas of how to get there—the panel will give voice to a range of perspectives on the hotly debated issue of how to shape 21st-century American cities.
I plan to check it out this weekend. Enjoy,
June 15, 2012 in Affordable Housing, Books, Conferences, Development, Environmentalism, Housing, Lectures, Planning, Scholarship, Sustainability, Urbanism, Zoning | Permalink | Comments (0) | TrackBack (0)
Wednesday, June 6, 2012
Christopher Leinberger (Brookings) and Mariela Alfonso have published Walk this Way:The Economic Promise of Walkable Places in Metropolitan Washington, D.C., an economic analysis of certain DC neighborhoods using walkability measures. The study offers four findings:
--More walkable places perform better economically.
--Walkable places benefit from being near other walkable places.
--Residents of more walkable places have lower transportation costs and higher transit access, but also higher housing costs.
--Residents of places with poor walkability are generally less affluent and have lower educational attainment than places with good walkability.
The authors urge inclusion of walkability measures into lender underwriting criteria, developer feasability analyses, and private foundation sustainability metrics. In a brief article on TheAtlanticCities.com, Leinberger argues that walkability in neighborhoods has become a price benefit and that cities need to meet the growing demand. (Hat tip to my NDLS colleague Chris O'Byrne for sharing TheAtlanticCities.com piece)
Thursday, May 31, 2012
Robin Kundis Craig (Utah) has posted The Clean Water Act, Climate Change, and Energy Production: A Call for Principled Flexibility Regarding 'Existing Uses,' forthcoming in the George Washington Journal of Energy & Environmental Law. The abstract:
Numerous provisions of the Clean Water Act affect electricity generation, from potential siting restrictions that arise as a result of Section 404’s restrictions on discharges of dredged or fill material to effluent limitations that require power plants to cool their spent cooling water before returning it to streams, rivers, and lakes. This article focuses on two aspects of the Clean Water Act that directly raise — and, in a climate change era — will increasingly force — confrontations between electricity production, on the one hand, and water quality and aquatic ecosystem protections, on the other: (1) water quality standards, including both the Act’s antidegradation policy and states’ implementation of their standards through Section 401’s requirement that states certify federally-controlled discharges within their borders; and (2) Section 316’s requirement for cooling water intake protections, which — together with thermal discharge requirements to comply with water quality standards — is becoming increasingly important for thermoelectric plants.
After reviewing the history and import of the Clean Water Act for electricity production, this article discusses how climate change impacts on both water quality and electricity demand and production are likely to sharpen the perceived conflicts between the Act’s water quality requirements and goals and future energy policy. Applying the paradigm of principled flexibility, this article concludes that a key component of future energy and water quality policy should be the recognition that stationarity is dead on both sides of the equation — that is, while energy demands and production capability will be changing in response to climate change, so will aquatic ecosystems and the relevance of existing water quality standards. As a result, different kinds of decisions may be warranted for electricity production in and near aquatic ecosystems that climate change is fairly clearly destroying than for electricity production in and near aquatic ecosystems where strict enforcement of the Clean Water Act’s “existing use” requirements is likely to enhance the ecosystem’s ability to adapt to — and survive — climate change.
Thursday, May 24, 2012
John R. Nolon (Pace) has posted Regulatory Takings and Property Rights Confront Sea Level Rise: How Do They Roll. The abstract:
Under the Beach and Shore Preservation Act, the State of Florida is authorized to conduct extraordinarily expensive beach renourishment projects to restore damaged coastal properties. The statute advances the State’s interest in repairing the damage to the coastal ecosystem and economy caused by hurricanes, high winds, and storm surges. The effect of a renourishment project conducted under the statute is to fix the legal boundary of the littoral property owner at an Erosion Control Line. Plaintiffs in Walton County v. Stop the Beach Renourishment, Inc. claimed that the statute took their common law property rights to their boundary, which would, but for the Act, move gradually landward or seaward, maintaining contact with the water. The Florida Supreme Court disagreed and the U.S. Supreme Court granted certiorari in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection to determine whether the state court reinterpreted Florida’s common law as a pretext for upholding the statute against the plaintiffs’ taking claim and, if so, whether that reinterpretation constituted a “judicial taking.” The Court ultimately decided that the Florida court’s interpretation was correct and that there was no regulatory taking. A majority of the Court could not agree as to whether a state court’s interpretation of state common law could constitute a “judicial taking.”
This article discusses greenhouse gas emissions, global warming, sea level rise, and the ferocity of coastal storms associated with climate change. It explores the tension between these movements in nature and the policy of the State of Florida to fix property boundaries, which under common law would move landward as sea level rises. The property rights and title to land of littoral landowners are described and the effect of the Beach and Shore Preservation Act on them discussed. The article contrasts the Florida coastal policy regarding beach and shore protection with the policies and programs of federal, state, and local governments that use other approaches such as accommodating rolling easements, prohibiting shoreline armoring, requiring removal of buildings, purchasing development rights or the land itself, and imposing moratoria on rebuilding after storm events. These may be less expensive and more realistic approaches to long-term coastal erosion and avulsive events and the inevitability of sea level rise as the climate warms and worsens. The article concludes with a recommendation that the framework for federal, state, and local cooperation in coastal management be revisited and strengthened so that the critical resources and knowledge are brought to bear on this critical issue. It suggests that strengthening those ties, rather than radically restructuring the relationship between state and federal courts, is a more productive method of meeting the needs of a changing society.
This is the latest in a series of articles by Prof. Nolon addressing how local land use law can be used to manage climate change, including The Land Use Stabilization Wedge Strategy: Shifting Ground to Mitigate Climate Change; Land Use for Energy Conservation: A Local Strategy for Climate Change Mitigation; and Managing Climate Change through Biological Sequestration: Open Space Law Redux. The article also discusses Stop the Beach and our favorite Texas Open Beaches Act "rolling easement" case Severance v. Patterson, and offers some solutions toward an integrated federal-state-local framework for coastal management.
May 24, 2012 in Beaches, Caselaw, Climate, Coastal Regulation, Conservation Easements, Constitutional Law, Environmental Law, Environmentalism, Federal Government, History, Judicial Review, Local Government, Property Rights, Scholarship, State Government, Supreme Court, Sustainability, Takings, Texas, Water | Permalink | Comments (0) | TrackBack (0)
Friday, May 18, 2012
The Big Apple is now greener than ever. On April 30, the New York City Council adopted some significant changes to its zoning code designed to promote distributed renewable energy and green building practices. These Green Zone Amendments will make it easier for New Yorkers to gain city approvals for small wind turbines, green rooftops, solar energy installations, skylights, and similar sustainable land uses on their properties. The NYC Department of City Planning has posted some short descriptions of the amendments on its website.
Among these new amendments are provisions that encourage rooftop wind turbines on tall buildings and that relax height and other restrictions for solar panels. It will be interesting to see whether the amendments are able to spur a major increase in small-scale wind and solar energy development in New York City in the coming years.
To read a New York Times interview of an NYC city planning official and real estate developer on the potential impact of these new amendments, click here.
Lisa Grow Sun posted this paper last year. It should be of great interest to land users: Smart Growth in Dumb Places: Sustainability, Disaster, and the Future of the American City. The abstract:
One of the many lessons of the recent earthquake and tsunami in Japan is that we cannot mitigate disaster risk through building codes and other structural solutions alone. Location is key to a community’s natural hazard vulnerability. Consequently, the most far-reaching and important question for disaster mitigation today is where we will channel the growth that will be needed to accommodate our expanding population. Yet, both environmental scholars and policymakers are promoting sustainability initiatives that will channel our country’s future growth into existing urban areas that are already extremely vulnerable to disaster. Indeed, many of these policies - and the legal tools used to implement them - are channeling growth, not only into particularly vulnerable cities, but into the riskiest areas of those cities. This Article is the first to identify and explore this critical tension between disaster mitigation and current sustainability policies.
The impact of current and future disasters on land use is a very important policy issue. Sun offers a different take on the conventional wisdom--which I have indulged in too--that more urbanism is always better. Sun suggests that we should be more discerning with our prescriptions.
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 7, 2012
Robert J. Aalberts and Darren A. Prum have posted an interesting new article on the use of CC&Rs to promote sustainable development. Their article, Our Own Private Sustainable Community, features case studies of specific communities in Oregon and Maine that have written aggressive green building and other sustainability-focused provisions into their CC&Rs. The last major section of the article describes some of the benefits and potential challenges of such an approach. Here's the abstract:
Residential and commercial property owners have sought for centuries to develop and enrich their physical environment through private land use planning. In more recent decades, residential owners residing in community interest communities (CICs) have been particularly active in crafting an evolving array of deed restrictions contained in Covenants, Conditions and Restrictions (CC&Rs). CC&Rs, which are generally created by the CIC developer, are mutually binding and enforceable against all those who live or conduct business in self-selected residential subdivisions or commercial developments. Importantly, CC&Rs are monitored sometimes quite forcefully, under the watchful eye of an empowered planned development association.
Although the typical post World War II CC&Rs were often mundane, governing setbacks, parking and vehicular restrictions, architectural requirements, non-household animals, sight and smell nuisances, trash containment and landscaping and plants, more recent CC&Rs are venturing into new and generally uncharted waters by promoting environmental sustainability. More specifically, a growing number of CICs are establishing green building goals, such as those certified by the United States Green Building Council’s (USGBC) which maintains its now familiar Leadership in Energy and Environmental Design or LEED rating system. Initial attempts at promoting environmental sustainability ratings, even while opposed by some, have placed an emphasis on improved water usage and environmentally compatible landscaping, but are now expanding in ever greater directions, including architectural design requirements. This article evaluates some of the potential problems green developments likely will face in this emerging approach to private regulation through an extensive discussion of our two case studies.
The use of CC&Rs as a tool for promoting sustainable development is likely to continue to evolve in the coming years, so this article makes for a timely and thought-provoking read.