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.
Sunday, May 6, 2012
No, that's not what Prof. Tim Mulvaney eats while traveling. It's a land use concept that he discusses in a very interesting post on the Environmental Law Prof Blog. An excerpt:
The neighborhood associations of Mistletoe Heights and Berkeley Place, both part of a historic preservation district in the city of Fort Worth, Texas, recently passed measures encouraging the city to consider a “road diet” for the four-lane road that transects these neighborhoods. Planners Dan Burden and Peter Lagerway coined the phrase “road diet” in the 1990s to refer to the transportation planning technique of reallocating existing roadway space that is providing excessive carrying capacity in a manner that results in a reduction in the number of vehicle lanes. For example, a road diet might involve the conversion of a four-lane, undivided road to a three lane road, whereby the land previously used for the fourth lane can be employed for other purposes, such as the creation of a two-way left turn lane and either defined bicycle lanes (image A below), wider sidewalks and landscaping (image B), or angled/parallel parking (image C), or some combination thereof.
Check out the full post to see the illustrative diagrams and additional pictures and anaylsis. I hadn't heard the term before, but the concept makes sense.
Sarah Schindler (Maine) has posted The Future of Abandoned Big Box Stores: Legal Solutions to the Legacies of Poor Planning Decisions, 83 Universtiy of Colorado Law Review 471 (2012). The abstract:
Big box stores, the defining retail shopping location for the majority of American suburbs, are being abandoned at alarming rates, due in part to the economic downturn. These empty stores impose numerous negative externalities on the communities in which they are located, including blight, reduced property values, loss of tax revenue, environmental problems, and a decrease in social capital. While scholars have generated and critiqued prospective solutions to prevent abandonment of big box stores, this Article asserts that local zoning ordinances can alleviate the harms imposed by the thousands of existing, vacant big boxes. Because local governments control land use decisions and thus made deliberate determinations allowing big box development, this Article argues that those same local governments now have both an economic incentive and a civic responsibility to find alternative uses for these “ghostboxes.” With an eye toward sustainable development, the Article proposes and evaluates four possible alternative uses: retail reuse, adaptive reuse, demolition and redevelopment, and demolition and regreening. It then devises a framework and a series of metrics that local governments can use in deciding which of the possible solutions would be best suited for their communities. The Article concludes by considering issues of property acquisition and management.
Prof. Schindler's article addresses an important problem in communities across the U.S., and offers some innovative solutions.
May 6, 2012 in Architecture, Development, Economic Development, Green Building, Local Government, Planning, Redevelopment, Scholarship, Suburbs, Sustainability, Zoning | Permalink | Comments (0) | TrackBack (0)
Wednesday, May 2, 2012
Many thanks to Matt for inviting me back as a guest blogger! If nothing else, a bit of blogging will provide me a productive distraction this month from grading spring semester exams. Matt and the entire team of editors continue to do an outstanding job with the blog, and it’s absolutely one of my favorite morning reads.
I’ll use my first post to respond to Matt’s half-joking question: why should a land use prof spend time thinking about the space above land? After all, airspace rights receive scant attention in most land use casebooks. Discussions of airspace rights might seem better suited for a course on aviation law. Land use profs should stay down in the dirt, right?
Not necessarily. Over the past few years, I've managed to convince myself that some of the most perplexing and unsettled land use conflicts of the day involve the oft-forgotten space just above the surface of land.
For me, it all began while I was still practicing at a large law firm in Seattle. Our wind energy developer client approached us with a puzzling question: can a landowner be liable for stealing a neighbor’s wind? The client and a competing developer had leased adjacent parcels for wind farms. Our client wanted to install a wind turbine immediately upwind of one of the competitor’s turbine sites that was situated just on the other side of their common property boundary line. If both turbines were installed, the turbulent “wake” from the upwind turbine would render the downwind turbine largely ineffective. Only one of these two prime turbine sites could be profitably developed. Under the law, who should prevail in this dispute over wind – the upwind party or the downwind party?
While I was wrestling with that question, I stumbled upon the topic of solar access--a similar sort of airspace use conflict that involves solar energy devices instead of wind turbines. Should landowners be liable when trees or buildings on their parcels shade a neighbor’s solar panels? Laws Wyoming and New Mexico effectively give solar energy users strong legal protections against shading—“solar rights”—drawing analogies to water law’s prior appropriation doctrine. But these analogies to water law are misguided, ignoring neighbors’ longstanding rights in the airspace above their land. Better governance rules are needed for these conflicts that are capable of balancing policymakers’ general interest in promoting solar energy with the existing airspace rights of neighbors.
These wind and solar energy disputes over airspace are just two examples of how airspace is playing an increasingly crucial role in the sustainability movement. Vertical construction and infill development that occupy additional airspace continue to be significant strategies for curbing suburban sprawl, and city-based tree planting programs are occupying more urban airspace as well. At the same time, planners and sustainability advocates are pushing other strategies that require that more airspace be kept open. For example, city-sponsored urban gardens need significant amounts of un-shaded sunlight to thrive, and even LEED certification standards award points for natural lighting designs that often rely on skylights, windows, and minimal shade. When combined with the solar and wind energy uses of airspace mentioned above, these developments are collectively generating an unprecedented level of competition for scarce airspace.
In summary, I think that airspace is very much a topic worth covering in a land use course. There is reason to believe that the challenge of crafting policies that can fairly and efficiently govern airspace conflicts is only beginning and will continue to vex policymakers and legal scholars well into the future.
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
There is a growing trend of Tea Party activism against the idea of sustainable energy. Whilst many claim to support environmental protection, Tea Partiers object to what they see as attempts by foreign international bodies, coordinating with local environmental groups and the government, to restrict private property rights. Concerned Tea party members often refer to the UN’s “Agenda 21” and what they see as its attempts to subordinate the rights of man to the needs of the environment.
Agenda 21 is comprehensive plan of action that calls for the integration of developmental and environmental concerns to fulfil basic needs and improve living standards for all. It has been adopted but never ratified in the United States. The Tea Party appears to be very concerned with Section I chapter 7 which refers to sustainable human settlements. The stated goals are promoting housing for all and promoting sustainable construction, amongst other things. Even without considering the fact that “promoting” is a somewhat passive word that certainly does not evoke the idea that there will be “enforcement” of these objectives, the provision seems harmless.
Yet the agitated tea party members object to the plan whose method of implementation includes broad concepts such as, education on patterns of consumption that do not completely deplete natural resources, one member sees the plan as “caging the humans whilst the animals run free.” Some tea party members see the non-binding UN resolution as merely a hoax to redistribute wealth. Others have gone so far as to liken the mandate of Agenda 21 to communism. Claiming it will result in government rationing of food and water a concept that they believe is at its core, Un-American.
Proponents of the movement use striking images of crowded houses and maps of the United States with nary a trace of the human population to demonstrate what they believe is the end goal of Agenda 21. Opponents to sustainable development claim, without evidence, that the program is already being implemented in states like New Jersey as part of a broader conspiracy theory, despite the fact that the sustainability in New Jersey does not indicate any ties to international or federal efforts to attain sustainability.
In New Jersey, Tea Partiers oppose the State’s proposed Strategic Plan and efforts by an organization called Sustainable New Jersey which offers municipalities monetary grants conditioned on certain actions, ranging from innocuous energy audits and waste reductions to contested sustainable community planning, collaborative land preservation programs, and carbon reduction targets. The Tea Party finds fault with Sustainable New Jersey’s mission to embrace social justice and fairness. Among their chief complaints is a recommended ordinance reducing lot size and placing homes closer together. Criticism varies from the “mild” allegation that such programs transfer America’s wealth to developing countries to more extreme charges that the government is clearing the way for insider businesses to exploit the land’s natural resources. The program is entirely voluntary and the New Jersey State government and Wal-Mart are its two largest benefactors.
Perhaps the concerns of the Tea Party would be more convincing were they grounded in pertinent law. If even some states choose to conform to international environmental standards the United States is, after all, based on a federal system that allows this. Even a cursory glance anywhere indicates that Agenda 21, which as an example demands huge new sources of material wealth to developing countries, has had little if any impact in the United States and the concept of sustainable development appears much less sinister than its opponents, who believe it is a cover up, would have you believe. In this world, a world of limited resources, it is probably a good idea for us all to be more considerate of our consumption patterns both in terms of resources and space as opposed to clinging to the idea that the world is trying to dupe us into giving up our land.
Thursday, January 26, 2012
Jessica Owley (Buffalo) has posted Exacted Conservation Easements: Emerging Concerns with Enforcement, Probate & Property, Vol. 26, No. 1, p. 51, 2012. The abstract:
Enforceability of exacted conservation easements is uncertain. Legislators, activists, and academics did not contemplate the proliferation of exacted conservation easements when enacting, advocating for, and writing about state conservation easement statutes. Despite this early oversight, exaction has become one of the most common ways that conservation easements come into being. Enforceability of exacted conservation easements is a threshold question of analysis for the continued use of the tool. Assessing the validity, and thus legal enforceability, of the exacted conservation easements involves examining the state’s conservation-easement statutes and state servitude law as well as the underlying permit scheme.
This article presents a roadmap for investigating the enforceability of exacted conservation easements and makes three suggestions for improvement. First, states should address exaction in their state conservation-easement acts. Second, drafters should increase the precision and detail of the agreements, acknowledging and explaining the nature of the exaction and the underlying permitting law. Third, to clarify the elements and uses of exacted conservation easements to both agencies and citizens, government agencies that use exacted conservation easements should promulgate regulations related to their use. Such regulations should include ensuring that permit issuers retain third-party right of enforcements. This will keep the permitting agency involved even if it is not the holder of the exacted conservation easement.
Uncertainty in enforceability of exacted conservation easements calls into question their use as a method of land conservation. Furthermore, the questionable validity of exacted conservation easements indicates that the permits relying upon such exactions could be ill advised and potentially in jeopardy.
This accessible piece builds on some of the concerns outlined in her recent Vermont Law Review piece, The Enforceability of Exacted Conservation Easements.
Tuesday, January 17, 2012
Last year I posted about the Houston Marathon, and my observations about how the route did a good job of taking the runners through a diverse set of neighborhoods, from older to newer, urban to suburban, residential to business. This year I am even more impressed with another land use angle: the incredible amount of planning it must have taken to pull off the events in town this past weekend--
First, on Saturday Houston hosted the U.S. Olympic Marathon Trials. The race route was designed to simulate the Marathon route planned for London, including a gratuitous hairpin turn. Congrats to Meb and Flanagan!
On Sunday was the regular Marathon--on a different course--for the other 26,000 of us who didn't qualify for the Trials, plus over 250,000 volunteers and spectators.
And between Saturday and Monday, there were five separate Martin Luther King Day parades.
Planning for the street closures alone must have been an enormous task (check out the 11-page spreadsheet), let alone the interagency and public-private cooperation that's necessary for a weekend like this. It requires organization, community involvement, and a great deal of technical planning expertise. These things have huge impacts on traffic, transit, facilities, sanitation, sustainability, policing, budgets, and a great array of other local planning issues.
We often take having "big events" for granted in a big city, but as a former logistician I'm always impressed by all the behind-the-scenes work that it takes to pull these things off. And as land use lawyers we should appreciate the very hard work and the professionalism that our colleagues in city planning, local government, and community organizations bring to improve civic life.
So, good job everyone, and please pass the ibuprofen.
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
The New Year brings us to a new month to introduce a new guest blogger, Prof. Stephen Miller. Stephen is an Associate Professor and Director of the Economic Development Clinic at the University of Idaho College of Law. From his faculty bio:
Stephen R. Miller joined the faculty of the University of Idaho College of Law in 2011. Miller received his undergraduate degree from Brown University, and a master’s degree in city and regional planning from the University of California, Berkeley. In 2006, he graduated from the University of California, Hastings College of Law, where he was senior articles editor of the Constitutional Law Quarterly, and was a research assistant to Professor Joel Paul. Miller also worked for a land use and environmental law firm in San Francisco, California prior to joining the faculty. His research interests include economic development, sustainable development, land use, environmental law, and local government law.
Welcome aboard! Stephen gives us an auspicious start to 2012.
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.
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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)