Land Use Prof Blog

Malheur Occupation/Sagebrush Rebellion Continue

When Stephen Miller blogged a week ago about the implications of the occupation at the Malheur National Wildlife Refuge in Oregon, it seemed like things were winding to a close. Ammon Bundy and the other organizers had been arrested and LaVoy Finicum killed in a confrontation with federal law enforcement personnel, and many of the other occupiers had scattered.  But today, the occupation enters day 35, as four hold-outs remain at the sanctuary.

Whatever the outcome of the occupation, this action has sparked a national examination of the pressures facing ranchers, federal control of land, and the implications to the Western way of life.  However, other writers have noted that Malheur is actually at the center of a collaborative approach to land management that balances the concerns of environmentalists, conservationists, and local land owners, and that the occupiers were completely out of line in their attempt to make the refuge a symbol of federal overreach.

On both sides of my family, I come from stock that is deeply tied to the land and interested in the outcome of these disputes.  My maternal grandfather joined the US Forest Service in the early part of the last century, and spent his career (and his days in the Montana Senate after his retirement) implementing the "Multiple Use" philosophy, which attempted to balance conservation and resource extraction. And my paternal grandparents were ranchers in Eastern Montana until the 1980s, when they lost the ranch due to the collapse of the beef cattle market.

So I've always felt conflicting loyalties in any discussion over management of federal lands in the West.  On the one hand, I recognize that the settlement of the West and the continued viability of the Western economy was and is extremely dependent on federal largess.  It's difficult to find unbiased analysis of whether that largess is a necessary part of the ranching economy, or simply "welfare ranching." There's also the issue that small time ranch owners may be increasingly pushed out by billionaire land owners like the Koch Brothers.  There does seem to be a consensus that absentee ownership of farm and ranchland is on the rise. And some pretty extreme political actors have risen to fill the vacuum.

Some of the best reporting on the Malheur standoff and related issues is being done by High Country News.  In addition to their close coverage of the day-to-day developments, they've also provided a platform for Westerners voices both sympathetic and unsympathetic to the Bundys' concerns. And HCN is doing a terrific series of stories on the revived Sagebrush Rebellion and the complex interplay of politicians, "Constitutional sheriffs" and other players in the drama. You can check it out here.

Jamie Baker Roskie

 

Online Professional Development Course in Adaptive Planning & Resilience

Land Use Prof colleagues -- please share the following information about an online self-paced course in adaptive planning and resilience as broadly as possible.  It's especially relevant for professionals who are engaged in planning and would benefit from skills to make their planning processes more adaptive and resilience-oriented.  Students, professors, and other professionals are welcome too.  Thanks for your interest and help!  All best wishes, Tony Arnold

I’m writing to let you know about an online self-paced professional development course in adaptive planning and resilience.  This course is aimed at any professional who engages in planning under conditions of uncertainty, complexity, or unstable conditions, whether in the public sector, private sector, local community, or multi-stakeholder partnerships. 

The course is ideal for professionals in sectors such as urban planning, community development water supply, water quality, disasters/hazards, environmental protection, land management, forestry, natural resources management, ecosystem restoration, climate change, public infrastructure, housing, sustainability, community resilience, energy, and many others.  I hope that you and the employees and/or members of your organization will consider enrolling in this course.

 The 12-hour course is offered by the University of Louisville for a cost of $150 and is taught by Professor Tony Arnold, a national expert in adaptive planning and resilience, and a team of professionals engaged in various aspects of adaptive planning.  The online lectures are asynchronous, and the course is self-paced; this offering will last until November 22.

 More information is provided below and at the registration web page: http://louisville.edu/law/flex-courses/adaptive-planning.  This offering of the course begins October 12 but registration will be accepted through November 15 due to the self-pacing of the course.  We are seeking AICP CM credits for the course in partnership with the Kentucky Chapter of the American Planning Association, but cannot make any representations or promises until our application is reviewed. 

Please share this blog post or information with anyone who might be interested.  Please contact me at [email protected], if you have any questions. 

Adaptive Planning and Resilience

Online and self-paced

Oct. 12 – Nov. 22, 2015

Adaptive Planning and Resilience is a professional development course in which professionals will develop the knowledge and skills to design and implement planning processes that will enable their governance systems, organizations, and/or communities to adapt to changing conditions and sudden shocks or disturbances.

Adaptive planning is more flexible and continuous than conventional planning processes, yet involves a greater amount of goal and strategy development than adaptive management methods. It helps communities, organizations, and governance systems to develop resilience and adaptive capacity: the capacity to resist disturbances, bounce back from disasters, and transform themselves under changing and uncertain conditions. Adaptive planning is needed most when systems or communities are vulnerable to surprise catastrophes, unprecedented conditions, or complex and difficult-to-resolve policy choices.

The course will cover the elements of adaptive planning and resilient systems, the legal issues in adaptive planning, how to design and implement adaptive planning processes, and case studies (including guest speakers) from various communities and organizations that are employing adaptive planning methods.  Enrollees will have the opportunity to design or redesign an adaptive planning process for their own professional situation and get feedback from course instructors.

The six-week course totals about 12 hours broken into 30-minute segments. It is conducted online and is asynchronous. Cost is $150.

 About Professor Tony Arnold

Professor Craig Anthony (Tony) Arnold is the Boehl Chair in Property and Land Use at the University of Louisville, where he teaches in both the Brandeis School of Law and the Department of Urban and Public Affairs and directs the interdisciplinary Center for Land Use and Environmental Responsibility. Professor Arnold is an internationally renowned and highly-cited scholar who studies how governance systems and institutions – including planning, law, policy, and resource management – can adapt to changing conditions and disturbances in order to improve social-ecological resilience. He has won numerous teaching awards, including the 2013 Trustee’s Award, the highest award for a faculty member at the University of Louisville.

Professor Arnold has clerked for a federal appellate judge on the 10th Circuit and practiced law in Texas, including serving as a city attorney and representing water districts. He served as Chairman of the Planning Commission of Anaheim, California, and on numerous government task forces and nonprofit boards. He had a land use planning internship with the Boston Redevelopment Authority, did rural poverty work in Kansas, and worked for two members of Congress. Professor Arnold received his Bachelor of Arts, with Highest Distinction, Phi Beta Kappa, in 1987 from the University of Kansas. He received his Doctor of Jurisprudence, with Distinction, in 1990 from Stanford University, where he co-founded the Stanford Law & Policy Review and was a Graduate Student Fellow in the Stanford Center for Conflict and Negotiation. He has affiliations with interdisciplinary research centers at six major universities nationwide and is a part of an interdisciplinary collaboration of scholars studying adaptive governance and resilience.

 Professor Arnold will be joined in co-teaching the course by a team of his former students who are

professionals knowledgeable in adaptive planning. They include:

• Brian      O’Neill, an aquatic ecologist and environmental planner in Chicago
• Heather      Kenny, a local-government and land-use lawyer in California and adjunct      professor at Lincoln Law School of Sacramento
• Sherry      Fuller, a business manager at the Irvine Ranch Conservancy in Orange      County, California, and former community redevelopment project manager
• Andrew      Black, who is Associate Dean of Career Planning and Applied Learning at      Eckerd College in St. Petersburg, Florida, and a former field      representative for two U.S. Senators in New Mexico
• Andrea      Pompei Lacy, AICP, who directs the Center for Hazards Research and Policy      Development at the University of Louisville
• Jennifer-Grace      Ewa, a Postdoctoral Fellow in Inequality and the Provision of Open Space      at the University of Denver
• Alexandra      Chase, a recent graduate of the Brandeis School of Law who has worked on      watershed and urban resilience issues with the Center for Land Use and      Environmental Responsibility and now lives in St. Petersburg, Florida.

Dates

October 12 – November 22, 2015,

Online, asynchronous, and self-paced

Cost

$150

For more information

Visit louisville.edu/law/flex-courses.

 

"Basic Human Right" to Farm Your Lawn?

A bill has been introduced into the Michigan legislature to allow urban dwellers to keep a "reasonable" number of livestock on their property. This article refers to the bill as guaranteeing the "basic human right" to farm your lawn. Really?

As many of you are probably aware, many cities across the country are confronting the dilemma of what to about allowing "urban agriculture" (an oxymoron in my mind- perhaps "urban gardening" is more appropriate) in light of state right to farm laws. Each of the 50 states have right to farm laws, prompted by the decision by the Supreme Court of Arizona in Spur v. Del Webb, 108 Ariz. 178, 494 P.2d 700 (1972). These laws were enacted to address housing developments leapfrogging, or even slowly growing, out into rural areas and basically makes "coming to the nuisance" a true defense, in certain circumstances.

There are many health and planning reasons to bar livestock in urban areas. However, there are also many very passionate fans of keeping livestock in urban areas. I come down on the side of banning livestock in urban areas, but allowing vegetable gardens. I hope I don't receive any threats. Should I mention raw milk to evoke more emotional responses?

Right to Farm laws, already heavily criticized and having been found to be a taking of private property for private use by at least two courts (Iowa and Washington) need to be amended to exclude urban agriculture from the protections of the act. The acts were passed to address a totally different context.

Jesse Richardson

Growth Management In Canada - by Deborah Curran

The municipal elections concluded in British Columbia on Saturday night. As I watched the results roll in for my region of Greater Victoria where we have 13 municipalities and a large unincorporated rural area I was unconsciously tallying what kind of leadership would be at the table over the next four years (this will be the first four year local government election cycle in B.C.) to champion the adoption and implementation of the new Regional Growth Strategy (RGS). The current regional plan, renamed for the current process as the Regional Sustainability Strategy, has been surprisingly successful over the past decade - over 90 percent of new development has occurred within the awkwardly named Regional Urban Containment and Servicing Area - due to a number of factors that include a relatively low rate of growth (just over 1 percent), a provincial agricultural land protection regime that limits development on farmland, rural areas that want to stay rural, urban areas that agree to densify to an extent, and available land within the urban containment boundary for a variety of new uses. Metro Vancouver's Livable Region Strategic Plan and new plan Metro Vancouver 2040: Shaping Our Future mirrors this success in a much faster growing region that is more significantly geographically constrained by oceans, mountains and the agricultural land reserve.  

Part 25 of the Local Government Act, enables the local government growth management regime in B.C., the centrepiece of which are these RGS's. As I describe the purpose and effect of RGS I am sure you have heard if before: a regional board may adopt a RGS to guide decisions on growth, change and development. The purpose of a RGS is to “promote human settlement that is socially, economically, and environmentally healthy and make efficient use of public facilities and services, land and other resources” (section 849). A RGS must cover a twenty-year period and must include a comprehensive statement on the future of the region, including the economic, social, and environmental objectives of the governing board in relation to projected population requirements for housing, transportation, regional district services, parks and natural areas, and economic development. It is an agreement between the local governments (municipal and regional) in a region and should work towards a wish list of smart growth goals: avoiding urban sprawl, ensuring development takes place where adequate facilities exist, settlement patterns that minimize the use of the automobile and encourage walking, bicycling and public transit, protecting environmentally sensitive areas, etc. (s.849). Individual municipalities bring their comprehensive plans, called official community plans (OCP), into conformance with a RGS by including a regional context statement in the OCP stating how it will become consistent with the RGS over time (s.866). The bottom line is that these are voluntary plans that have a circuitous impact on local comprehensive plans, which means they are tenuously binding. [And I will not go into the courts' recent treatment of whether or not bylaws are consistent with local and regional plans in this post. I will save that for my next post on the Death of Community Plans].

However, interestingly last time I looked all RGS' in B.C. have urban growth boundaries. They may not be in the right place from a planning perspective, they may simply follow the lines of our provincial agricultural land protection zone, or they may mirror the jurisdictional boundary between private and Crown land, but it seems that the language of urban containment is alive and well in B.C. A line on the regional map that is adopted into each municipal official community plan is also the best type of policy to have in the RGS because it is clear and there is no discretion in its interpretation. Municipalities agree not to extend water or sewer service beyond that urban containment line except where needed to address public health or fire suppression needs.

In contrast, the relatively recent Ontario regime called "Places to Grow" involves provincially-imposed land use plans that were motivated by untenable increases in infrastructure, primarily road, costs in the Greater Toronto region around Lake Ontario. The foundation is the Places to Grow Act, 2005 that allows for the identification and designation of growth plan areas and the development of strategic growth plans. The Growth Plan for the Greater Golden Horseshoe 2006 establishes the modest goal of 40 percent of all residential development occurring annually within designated built up areas, and meeting intensification targets for density based on predicted growth rates for each municipality. Municipalities must achieve intensification and meet intensification targets through their official plans and other documents. The Minister of Public Infrastructure Renewal has established a built boundary for each municipality, and urban growth centres are identified to take much of the new growth. 

The growth management regimes in B.C. and Ontario are an interesting long term study in different legal approaches. In B.C. each RGS is an awkward negotiation between urban and rural municipalities that is facilitated by a regional government. One could argue that such a structure would lead to agreement on the lowest common policies. However, whether unwittingly or not, several of the RGS have proven to be remarkably effective in relation to urban containment. In Ontario the provincial government controversially imposes intensification targets and built boundaries in very large regional plans (the Greater Golden Horseshoe is many hundreds of kilometres deep and wide). Although mandatory and imposed by the provincial government, which raises the ire of local councils, the growth management targets are modest. Perhaps I am spoiled with our 90 percent urban containment rate here in Greater Victoria, but in a North American context intensification of 40 percent is seen as a gold standard as evidenced by the American Planning Association awarding the Daniel Burnham Award for a Comprehensive Plan to the Growth Plan for the Greater Golden Horseshoe (apparently the first time the award has been presented to an organization outside the United States).

 

 

Reactions to the Lower Platte River Summit - by Jessica A. Shoemaker

Following up on my introductory post, I was fortunate to get to help facilitate the biannual summit of the Lower Platte River Corridor Alliance (LPRCA) last week. The Alliance is a unique organization composed of three Natural Resource Districts and six state agencies in Nebraska. It aims to work “with people to protect the long-term vitality of the Lower Platte River Corridor” (an area that includes “the Lower Platte River, the bluffs, and adjoining public and private lands located within the floodplain” for approximately 100 miles along the river from Columbus to Plattsmouth). The Lower Platte faces both supply and water quality issues. The river traverses unique rural landscapes and also bisects the expanding Omaha-Lincoln metropolitan areas. It provides water for important agricultural and mining uses in the region, and it is also supplies drinking water for over half of Nebraska’s population. (For more information, look here.)

For me, one of the most unique and important aspects of the Alliance is its focus on supporting locally drawn solutions and strategies to protect the river and the surrounding landscape, especially in the face of great demographic changes. My experience at the summit has me thinking more about my ongoing interest in the role of public participation in complex land use and resource management issues, like planning for the long-term sustainability of this important watershed.

Getting out of the office and elbow deep into some of the real-world debates about the future of the Corridor (where I not only work but also live) was invaluable to me. In many respects, I learned more in one day discussing shelter belts, crop insurance, trail development, Main Street facade improvements, property tax systems, and various potential models for valuing ecosystem services with such a diverse group of landowners, agricultural producers, conservationists, advocates, and government officials, than I probably could have from many days in a library. Somewhat unexpectedly, the primary takeaway for me was some renewed perspective about the role of legal solutions in what are often really ecosystem-level social problems. Although I spend most of my days analyzing and trying to craft legal solutions to real-world problems, back on the ground things looked a little different.

For example, Chuck Schroeder, Executive Director of the Rural Futures Institute (RFI), started the day with a keynote about the resiliency of rural communities within the Corridor and beyond. At one point, he told a story about a small town community working hard on some marketing and revitalization efforts that had struggled to address a blighted property located right at the entrance to the downtown area. The mayor, according to Chuck, complained to two undergraduate students interns (there for the summer as part of an RFI-funded teaching grant for service learning) about this eyesore house and how all their town’s marketing efforts might be undercut if a visitor’s first impression was this dilapidated house and junk-filled yard. Chuck said the mayor and town had tried “everything” to address the house to no avail, but my ever-legal lawyer mind immediately started ticking off other possible legal solutions to the problem: nuisance claims, aesthetic zoning regulations, condemnation, code enforcement, tax enforcement, etc.  My issue-spotting lawyer brain was so occupied checking off possible legal procedures that I almost missed the punchline of Chuck’s story. Although the mayor and the town had not had success communicating with the home’s owner about the issue in the past, Chuck said the two student interns took it upon themselves to walk up to the landowner’s door and offer to help him sell the stacks of tires on his  lawn and recover some cash for them…. The homeowner, pleased with the result and liking the student interns who helped put some money in his pocket, then proceeded to let the interns and some other community volunteers engage in additional clean up work around the house. Problem almost immediately solved.

It’s a simple story, but for me an important reminder. In my rush to legal analysis, my instinct was not to consider first what might motivate the landowner to fix the problem himself or what may be standing in the way of him doing so. Or how public engagement in the clean up process might be the most efficient and simple solution, while also likely creating a host of other intangible community benefits.

I was also struck at the summit by how many examples there were from stakeholders actively working on land use challenges within the Corridor of the law working more as an obstacle to progress than as an opportunity or useful tool. These people who do the daily work of trying to make the Corridor a better place seemed incredibly competent and intelligent, but in many cases, they described to me very specific instances where well intentioned laws were getting in the way of actually achieving the desired results (e.g, too much bureaucracy, cumbersome procedures, agency rules that didn't make sense).  I heard complaints of the persistent problem of top-down policies and priorities being implemented in ways that are not fully matched up on the ground or that create unintended inefficiencies or obstacles.

This isn’t universally the case. For example, we visited a family farm along the river outside of Omaha where an innovative conservation easement has been created in coordination with the Nebraska Land Trust. The family, at least, said they felt very satisfied that the legal tool of the easement had satisfactorily addressed their concerns in the face of “houses coming over the hills.”

(Photo: Dave Sands, Executive Director of the Nebraska Land Trust, discusses his organization’s conservation easement work within the Corridor at the site of one of these easements.)

However, the theme that there are limits on the ability of the law to respond perfectly or exclusively to the complex land use challenges in the Corridor--including how we will value and protect a range of ecosystem services in the face of growing populations and a changing climate--lingers.  Of course, these watershed issues are more complex than one junked property with too many tires in the lawn and more difficult to respond to than the threat of new development around a historic farm that an entire family agrees should be preserved. However, after this summit experience, I look forward to more thinking and engagement around the issues of (1) how law and policy can be better designed with real feedback from, and attention to, the on-the-ground realities of the people working in the trenches and (2) the proper mix of legal and non-legal responses to challenges like the longterm vitality a fragile ecosystem, and especially the role of public participation in designing and implementing these varied solutions.

- Jessica A. Shoemaker

Greetings from Nebraska!

Thank you for the chance to guest post here on the Land Use Prof Blog. As Jessie mentioned, my current research agenda is focused primarily on the intersection of property law and federal Indian law. I’m actively exploring how the unique property frameworks that have been applied in a top-down fashion to American Indian lands over the years have disproportionately limited the abilities of Indian landowners and tribal governments to make flexible and efficient uses of their own resources and how this, in turn, is negatively impacting the health and vibrancy of many indigenous communities today. I’m really looking forward to sharing more of my work on these American Indian land tenure issues and how this all relates to the broader land use theme of this blog over the next month.

In the meantime, though, I’m also just this week participating in some real boots-to-the-ground land use planning work here in Nebraska that may also be of interest to this group (and that I would love comments and feedback on as we go). As Jessie also mentioned, in addition to my more traditional law professor responsibilities at Nebraska, I get to participate in some outreach-oriented work with an actively expanding university-wide effort here called the Rural Futures Institute ("RFI" or the “Institute”). This Institute, though new, has done some really interesting things in a short time (see, for example, recent grant awards and conference proceedings) and is working to be a local, state, regional, and even global leader “for increasing community capacity as well as the confidence of rural people to address their challenges and opportunities, resulting in resilient and sustainable rural futures.” You can read more about RFI’s official mission, vision, and core values here. In my own words, though, I see the Institute as charting new territory in really re-committing to the University’s original land grant purpose and working to create a two-way bridge between the resources of the University as a powerful teaching and research institution and the resources of rural communities, with their own invaluable local knowledge and expertise about both challenges in need of innovative solutions and opportunities that may be expanded and from which important learning can come. RFI focuses on being as community-driven as possible and defines community success broadly (i.e., not just economic indicators but also looking to other critical elements of community life, such as art, culture, health, education, and longterm security and sustainability).

My own view is that land use—and all the complex factors that influence how individual landowners make decisions about using their land and natural resources—is at the crux of a lot of the issues around how we create positive futures for rural landscapes and rural communities. This week I will be exploring that theme directly as I moderate a plenary panel at the Lower Platte River Summit, an event sponsored biannually by the Lower Platte River Corridor Alliance, on Thursday. The theme this year is “Urban Grown – Rural Resiliency.” I’m looking forward to talking to a variety of experts about balancing growth and sustainability along the Lower Platte, with its unique resource issues and mix of urban and rural places. The panel includes local landowners, a water quality and public health professor, a real estate developer, agricultural producers, and a National Park Service program director who helps communities develop recreational trails in places like the Lower Platte River Corridor. I'm also looking forward to the Summit's afternoon bus tour of real properties along the Corridor that raise interesting land use issues, including a farm with a unique set of conservation easements in place and a small town doing its best to bridge its historical traditions with modern development in light of some encroachment pressure from the Omaha metro.

I expect it will all be fantastic fodder for further work and thought, and I look forward to sharing some observations and reactions to the discussions around land use at the Summit this week. However, I also plan to tell you about one other project that I’ve been doing with RFI and that I’ll be using as a discussion tool and interactive exercise at the Summit: a land use simulation “game” we’ve developed called Plainsopoly. Plainsopoly is experienced truly as a game in which participants engage around a large game board image of a hypothetical landscape and roll dice to answer a series of real-world (but still hypothetical) land use visioning challenges. An interdisciplinary group of students and professors from across the University, including from law, natural resources, applied ecology, business, and agricultural economics, helped me develop this as a discussion tool last year, and we worked in conjunction with a group from Birmingham City University in the United Kingdom to adapt Professor Alister Scott's original idea for this kind of planning game (what they call RUFopoly for its focus on the Rural Urban Fringe (i.e., RUF) space in Europe). So far, I’ve only piloted Plainsopoly for the purpose it will be used again this Thursday: as a discussion facilitator at conference-type events. However, it has gotten very positive feedback for its potential to improve stakeholders’ engagement around land use issues, open civil dialogue, and speed participants’ learning around land use management challenges and opportunities. Like my colleagues in the UK, I'm interested in thinking further about whether this kind of tool may have future applications for conflict resolution, consensus building, or even real-world planning and policy development.

I’ll look forward to telling you more about the Summit and about this Plainsopoly exercise over the next week or so and then also to turning to the Indian land tenure issues later in the month.

- Jessica A. Shoemaker

Mayors Clean Drinking Water Summit

In early August, microcystin from toxic algal blooms in Lake Erie forced officials to issue a “do not drink” order for all municipal water users in Toledo.  The drinking-and-cooking ban affected nearly 400,000 people and lasted for two days, leaving residents scrambling for bottled water.  Given that some 40 million people in the U.S. and Canada rely on the Great Lakes for drinking water, Toledo’s experience was something of a wake-up call for leaders throughout the region.

Last week, mayors and officials from cities throughout the Great Lakes and St. Lawrence watersheds met  at the Mayors Drinking Water Summit in Chicago to discuss measures needed to prevent the kind of pollution that poisoned the water in Toledo.  A biggest culprit in polluting the water is excess phosphorus loads in runoff, which feeds toxic algal blooms.  The mayors called for concrete steps to address both agricultural and urban sources of runoff:

• For the EPA to establish a common limit and an emergency response protocol for microcystin in drinking water for the Great Lakes and St. Lawrence region; 
• For Great Lakes states to establish a phosphorus open lake water quality standard;
• For agriculture to further reduce the runoff from farms into Lake Erie, including better nutrient management and application of the ‘4R Nutrient Stewardship’ program; 
• For municipalities to further reduce phosphorus loadings through more green infrastructure, better treatment plant operations, and pollution prevention measures.

One aggravating factor in the spikes the increasing prevalence of high-precipitation rain storms occasioned by climate change.  Heavy storms strip fertilizer from fields and cause municipal sewer systems to overflow, causing large spikes of excess phosphorus to flow into the Great Lakes.  Cities sorely need upgrades to antiquated sewer systems that overflow during heavy rain events.  In the meantime, cities can better prepare for these intense storms by working to increase the amount of green infrastructure—green roofs, wetlands, and vegetation—to capture rainfall as it occurs and filter runoff.

Last week municipal leaders and environmental groups stood together in calling for swift and sensible action.  What happens from here remains to be seen, but if there is one environmental issue that pretty much everyone can get behind quickly it’s that the water that flows from the tap should be safe enough to drink.

On another note: this is my last guest post here at Land Use Prof Blog.  Many thanks to Jess Owley and Stephen Miller for inviting me into the conversation.

~Celeste B. Pagano, DePaul University College of Law

Medical Marijuana: Illinois Land Use Edition

    As the implementation phase of last year’s Illinois medical marijuana statute gets underway, the real action now is happening at zoning boards and city councils around the state. Famously the nation’s strictest medical cannabis law of the twenty-four enacted to date, Illinois’ statute allows for the licensing of up to 22 marijuana cultivation sites and up to 60 dispensaries, distributed among specified geographic regions throughout the state through a competitive licensing process. Applications for cannabis entrepreneurs became available on August 14 and are due next week.

    Among the application requirements are a showing that the proposed cultivation facility or dispensary complies with all local building and zoning codes. In addition, an applicant can earn bonus points for putting in place a Community Benefits Plan and for a showing of local support for the proposed location.  While municipalities cannot ban cannabis facilities outright, they may limit them to specific districts or impose reasonable conditions on their permits. The State’s own prohibition on dispensaries within 1,000 feet of a school or nursery renders it very unlikely that tony chiefly-residential suburbs will ever see cannabis facilities in their towns; nevertheless, these towns (reluctantly) amended their zoning codes to allow for the possibility.  Other jurisdictions allow cultivation facilities as of right in agricultural areas but subject dispensaries to permit conditions—measures typically aimed at addressing the additional security concerns of businesses potentially housing large quantities of drugs and cash. In Chicago, despite some initial efforts on the part of at least one alderman to confine dispensaries to manufacturing districts, dispensaries are now allowed in almost any business, commercial, mixed use, or downtown service district.

    Now that the fierce competition for licenses is genuinely underway, municipalities are busy approving those special use permits. Local hostility towards the facilities appears to be reversing as authorities consider the economic benefits that medical cannabis might bring to their cities and towns. As explained by Joliet Mayor Tom Giarrante and reported in the Joliet Herald News, “It’s kind of like gambling. If it's going to happen, I want it in Joliet so we get the sales tax and jobs." Some savvy jurisdictions are negotiating with cannabis entrepreneurs to offer a letter of support in exchange for benefits to the city. The far-northern Illinois city of McHenry has negotiated a Contribution Agreement with one grower, under which the mayor will write a letter of support of the grower’s license application in exchange for payments to the city of at least $20,000 per year, should that grower win the coveted state cultivator’s license.  Not to be outdone, last night the City Council of Batavia unanimously authorized that town’s mayor to send a letter of support in favor of another applicant for a proposed cultivation facility there. McHenry and Batavia are both located in the same 5-county district in Northern Illinois, which under the legislation will house only one such facility. Similar rivalries are taking place all over the state, including in counties that have hedged their bets by amending zoning in such a way as two approve two facilities, even though no more than one of those will win the coveted license. (Among those, Will County, home of the City of Joliet, whose optimistic mayor is quoted above.)

    Wherever Illinois' 60 medical marijuana dispensaries and 22 cultivation facilities are eventually located, it looks like patients will not be the only ones to benefit. Medical cannabis will be a boon to business in Illinois—not to mention a boon to government. The non-refundable state application fee for a cultivation facility license is $25,000; operating fees for successful licensees will total in the hundreds of thousands annually. And due to a little local clout in the decision-making process, counties and municipalities may end up benefitting as well.

~Celeste Pagano, DePaul University College of Law

Food law symposium notice and call for articles/speakers

Duke Environmental Law and Policy Forum has issued a call for articles and presenters for a symposium on the national food system, which will be at Duke Law school on Friday, January 23, 2015. The working title is  "Carrots and Sticks: Moving the U.S. National Food System Toward a Sustainable Future." According to the announcement I received today, the students are in the final stages of soliciting articles and speakers, and are particularly interested in contributions on food safety and labeling.

 

If you're interested in contributing an article or participating in some way, you can contact Editor-in-Chief Francesca Bochner at [email protected], or Managing Editor Gordon Sommers at [email protected].   

 

According to Michelle Nowlin, Supervising Attorney and Senior Lecturing Fellow at Duke Environmental Law and Policy Clinic, Durham boasts pleasant January weather, an exceptional year-round Farmers' Market, many fine farm-to-table restaurants, has received many awards for its dedication to the modern food movement, and supports several independent food aggregators who are working to rebuild the regional food system. Duke also has an excellent campus farm that encourages visitors from other academic institutions. For more information on Durham, visit:  http://www.durham-nc.com/dining/, www.carolinafarmstewards.org, http://www.cefs.ncsu.edu/, www.firsthandfoods.com,  www.easterncarolinaorganics.com, http://www.cccc.edu/curriculum/majors/sustainableagriculture/. 

Oregon County Bans GMO Crops

In an interesting election twist, organic farmers in Jackson County, Oregon, spearheaded a county-wide ban on crops containing genetically modified organisms. You can read more in the Idaho Statesman, and on the environmental blog Grist.

Jamie Baker Roskie

McLaughlin on Perpetual Conservation Easements in the 21st Century

Nancy McLaughlin (Utah) has posted Perpetual Conservation Easements in the 21st Century: What Have We Learned and Where Should We Go from Here?, 2013 Utah L. Rev. 687.  Here's the abstract:

The public is investing billions of dollars in conservation easements, which now protect an estimated 40 million acres throughout the United States. But all is not well. Uncertainties in the law and abusive practices threaten to undermine public confidence in and the effectiveness of conservation easements as a land protection tool. This short article is part of a series of articles published in the law review discussing conservation easements, with a focus on what we have learned thus far and where we should go from here. This article sets the stage by describing the dramatic growth in the use of conservation easements, the various laws that impact easement creation and administration, a timeline of important legal and policy developments, and the recent surprising lack of certainty and consensus regarding what it means to protect land “in perpetuity” or “forever” with a conservation easement. The article concludes by discussing how the perpetuity issue might be productively resolved.

 

Jim K.

Call for Presenters at 2014 Urban Agriculture Law Conference

Community Law Center, Inc. and University of Maryland Francis King Carey School of Law are hosting the 2014 Urban Agriculture Law Conference on September 19, 2014 in Baltimore to share information and best practices in urban agriculture laws, policies and practices across the country. We are currently accepting proposals for conference papers, presentations, and workshops. Click here for the Call for Papers and Presentations.  To download the application, you need to click here.

Located in the heart of Baltimore, the 2014 Urban Agriculture Law Conference  will bring together national and local leaders, legal practitioners, and scholars who are addressing the diverse roles of urban agriculture in the renewal of urban communities.

All proposals must be submitted by June 15, 2014.  Community Law Center will notify all selected speakers by July 15, 2014 of their acceptance and time slot.

Jim K.

Schindler on Unpermitted Urban Agriculture

Sarah Schindler (Maine) has posted Unpermitted Urban Agriculture: Transgressive Actions, Changing Norms and the Local Food Movement, 2014 Wisc. L. Rev __ (forthcoming).  Just in time for the finalizing of my presentation on unauthorized vacant property use for next month's ALPS conference (in Vancouver!).  Here's the abstract:

It is becoming more common in many urban and suburban areas to see chickens in backyards, vegetable gardens growing on vacant, forclosed-upon, bank-owned property, and pop-up restaurants operating out of retail or industrial spaces. The common thread tying all of these actions together is that they are unauthorized; they are being undertaken in violation of existing laws, and often norms. In this essay, I explore ideas surrounding the overlap between food policy and land use law, and specifically the transgressive actions that people living in urban and suburban communities are undertaking in order to further their local food-related goals. I assert that while governmental and societal acceptance and normalization of currently illegal local food actions is likely needed for the broader goals of the local food movement to succeed, there are some limited benefits to the currently unauthorized nature of these activities. These include transgression serving as a catalyst for change and as an enticement to participate.

Jim K.

 

 

Conservation easements and charitable trusts

There has long been debate fluttering around about whether conservation easements are charitable trusts. A recent opinion from Wyoming has me thinking about charitable trusts and conservation easements from a different viewpoint.

In Davis Foundation v. Colorado State University Research Foundation, the Supreme Court of Wyoming examined a transfer of property from the Davis Foundation and family jointly to CSU and University of Wyoming. The working ranchland was donated to the school as a way to provide a living laboratory for students to learn ranching and to provide revenue for the programs (through ranching revenues). In the process of conveying the land, the Davis Foundation also conveyed a conservation easement over  the property to The Nature Conservancy. The conservation easement purports to protect the scenic and historical resources of the property and restricts possible property uses to ranching, farming, and education.

Putting aside whether the conservation easement itself was a charitable trust (and without information about whether it was sold or donated to TNC I am not gonna make a call on that one), the court found the existence of the conservation easement integral in its analysis of whether the Davis Foundation created a trust when donating the property to the educational institutions. Basically, the schools now want to sell the land (subject to the conservation easement). If the donation was a gift to the schools, they have the ability to do with the land as they see fit (within their limits as state organizations or non-profits) BUT if it is a charitable trust, the schools actions with respect to the land are more limited. The Wyoming Supreme Court held that no trust was created. It reached that conclusion in part because of the existence of the conservation easements. The court explained that the conservation easement limited what the land would be used for, not the gift to the schools. Structures of donations like this are not unusual. We see examples in many states of landowners donating fee to one entity and a conservation easement to another. This may be particularly common where the fee is donated to a government entity. This case indicates that the presence of the conservation easement may serve as evidence that the donation did not create a trust. Of course, there are no blanket rules here and one would have to look at each conveyance to determine whether a trust was intended. I find this fascinating. If you donate parkland to a city but also put a conservation easement on the land because you don't totally trust the city, you may have made the donation look more like a gift than a trust (which may not have been your intention!).

 

Maloney on the Promotion of Urban Agriculture through Zoning

Stephanie Maloney (Notre Dame Law Review) has posted her note entitled Putting Paradise in the Parking Lot: Using Zoning to Promote Urban Agriculture, 88 Notre Dame L. Rev. 101 (2013).  Here's the abstract:

This Note explores municipal zoning regulations related to urban agriculture and evaluates specific zoning mechanisms that can be implemented to efficiently promote the accommodation of urban agriculture and access to locally grown food. Consideration of the benefits and costs of urban agriculture, alongside the zoning practices of leading cities, will assist in developing zoning laws that meet the needs of American cities and citizens. Part I of this Note introduces the concept and history of urban agriculture, providing an overview of its benefits and challenges. Part II examines municipal zoning and the principle zoning restrictions that impact farming and gardening in a city. Part III reviews the varied efforts of municipalities to support urban agriculture by incorporating it into local zoning codes. Part IV concludes by offering recommendations for the municipal integration of agriculture into the urban fabric, with particular attentiveness to participatory policy-making in the form of food policy councils.

Jim K.

Land Use Tourism: Norwegian Dairy Farms

As mentioned in my previous post, I have already done a lot of traveling this summer. Like most nerds people, I always keep my eye out for interesting land use patterns whereever I go. When I travel to Norway, I eschew the typical tourist locales and staying with my friends and family from when I was a high school exchange student there over 20 years ago. This puts me in the county of Ostfold and usually in the town of Rygge. Norway's mainland is made up of 19 counties, and Ostfold is one of the smaller counties (ranked 17... about the size of Rhode Island) and one of the densest (ranked 4 ... roughly as dense as Minnesota). I think of Ostfold as an area of rolling hills and small farms. Norwegians see that but also characterize it as an area of dense population with big towns (big in Norwegian terms is over 20,000 people).  I love the look of the place and enjoy the result of rules protecting both agriculture and environmental amenities (doesn't hurt that the state has a lot of money and has kept out of the EU).

As with much of the developed world, there has been a push in Norway to buy local goods -- especially food products. Some of the food companies have therefore started advertising campaigns highlighting the use of local products and even using images of local farms and farmers on the packaging. (I am particularly fond of the norwgian-style sauerkraut that bears the image of my host brother.) I was looking at a similar style advertizement on the back of the milk carton one morning and the difference in land use and agricultural practices hit home. Tine, the cooperative that produces most of the milk in the country, was boasting that the milk I was drinking came from cows right there in Ostfold (and profiled one of the farms). What was notable about the statement is that it said there were over 2,400 dairy farms in Ostfold. That's right, 2,400 dairy farms in one of the most densely populated smallest counties where dairy farms are not even a dominant land use. Having grown up in Wisconsin and lived in California (USA's top producing dairy states), this shocked me. I am used to dairy farms averaging 135 cows (with this number steadily growing as farms consolidate) and hundreds of acres. While I couldn't find any data on Norwegian dairy farms, my family there was unsurprised by the statistic explaining that dairy farms only have 5 or 6 cows. Admittedly, I know nothing about dairy farming or agriculture economics but from a land use stand point, it makes a landscape that is fun to look at.

- Jessie Owley

 

 

Talking Energy at GW

Greetings from George Washington Law School where the 2013 J.B. and Maurice C. Shapiro Conference is wrapping up. Entitled Laying the Foundation for a Sustainable Energy Future: Legal and Policy Challenges, there has been an impressive array of panelists from industry, governements, NGOs, and academia.

My co-athour Amy Morris (of Aspen Environmental Group) and I presented some of our work on the land use tradeoffs involved in renewable energy projects. We have been looking at these issues through the lens of solar projects in California, but the issues come up in many contexts. To give you some broad strokes of the project: In California, we see development of main types of projects--utility scale and distrbuted generation. The large utility-scale solar facilities in the California desert have been under heavy scrutiny and criticized for their potential impacts on environmental and cultural values. In an effort to avoid pristine desert ecosystems, agencies and environmental groups have been championed the use of distrubed lands. Such lands are not completely controversy-free either. As a threshold question, we have to figure out what lands should qualify as "distrurbed." In some cases, it may be that we are too quick to label something as disturbed. Generally though the big categories are brownfields, former landfills and mines, hardscapes (parking lots and rooftops), and marginal agricultural lands. I won't get into here, but trust me each of those categories has a host of issues surrounding its use.

I've been feeling a little out of my league as the land use lawyer in the midst of the energy experts but have learned a lot and have been impressed with GW's organization of the conference. I also really enjoy attending conferences in Washington DC where the audience is always filled with a great mix of people from agencies and nonprofits.

- Jessie Owley

Tourism May Increase Ecosystem Services

A new article in Landscape and Urban Planning demonstrates that tourism can play a strong role in shaping landscape, indeed more so than local residents might realize. What I find interesting about the study is that it also shows conversion of land from agriculture to tourism resulting in an increase in economic benefit and ecosystem services. It may be hard to apply these findings outside of the Italian Island where the research was conducted, but the lessons about perceptions and planning models extend elsewhere.

Roberta Aretano, Irene Petrosillo, Nicola Zaccarelli, Teodoro Semeraro, Giovanni Zurlini, People Perception of Landscape Change Effects on Ecosystem Services in Small Mediterranean Islands: A Combination of Subjective and Objective Assessments, 112 Landscape and Urban Planning 63 (2013).

ABSTRACT:  Humans constantly modify their environment to better fit their needs. These changes are even more important in small Mediterranean islands, where the flow and type of ecosystem services (ES) is constrained by insularity and heavily exploited by economic activities. We evaluated the dynamics of ES from 1954 to 2007 linked to the changes of the landscape of the Vulcano Island (southern Italy) and related such transformation to the perception of the local communities. We estimated the changes in the total economic value of ES and we coupled this objective assessment with a survey among inhabitants to measure the perception of driving forces and ES. The results show that agriculture was replaced by tourism, which simultaneously has profoundly affected the landscape and brought economic benefits to local population. Despite the urban-sprawl related to tourism development there is an increase of the flow of ES over time because of the conversion of some land-cover classes into others that provide a greater amount of ES. Local communities are aware of landscape and ES dynamics, but they do not perceive tourism as a driving force, which affects the natural attractiveness and cultural identity of their island. This approach integrates a commonly accepted objective technique to assign value to ES, with a subjective assessment taking into account how local people value the flow of ES. Effective strategies for ES management and governance need to address and incorporate local population expectations so to empower local stakeholders in the achievement of higher level of quality of life.

Jessica Owley

Prevent Deforestation and You Get Reforestation

Sometimes it is the studies with obvious sounding results that are the most helpful. A recent study of protected forest areas in Costa Rica examined levels of regrowth in those areas. Previously studies had really only assessed whether protecting areas prevented degradation. Happily, the study reveals that not only do you prevent deforestation and degradation by setting up protection areas, you also get some reforestation and improved forest health. Interestingly, the results did not vary by level or method of protection. Just setting aside the land made reforestation more likely. (Unless you are at a university or employer with access, you may have to pay for the article, which will appear in the next edition of Conservation Letters.) Abstract Below --

Kwaw S. Andam, Paul J. Ferraro, & Merlin M. Hanauer, The Effects of Protected Area Systems on Ecosystem Restoration: a quasi-experimental design to estimate the impact of Costa Rica's protected area system on forest regrowth, CONSSERVATION LETTERS (2012)

Global efforts to protect forest biodiversity and ecosystem services rely heavily on protected areas.   Although these areas primarily aim to prevent losses from deforestation and degradation, they can also contribute to restoration. Previous evaluations of protected area impacts focus on avoided deforestation and fires. In contrast, we focus on the additional regrowth induced by Costa Rica's renowned system of parks and reserves. We use a quasi-experimental empirical design to control for confounding baseline characteristics that affect both regrowth and the assignment of protection. Between 1960 and 1997, an estimated 13.5% of previously unforested lands inside protected areas reforested because they were afforded protection. The level of additional regrowth does not vary by the strictness of protection. As in previous studies of protected area impacts on avoided deforestation, estimators that do not account for non-random assignment of protection can overstate protected areas’ impacts on regrowth by nearly double.

 

- Jessie Owley

More than enough farmland?

Apparently, new studies are arguing that we have more than enough farmland worldwide to feed everyone. The conclusion then becomes that we can start converting some of that farmland to protected natural space. Perhaps it is because the study is assessing farmland worldwide (instead of considering its distribution), but these numbers seem hard to accept. (also unclear if the report fully considers climate change implications). If this assessment is correct, what should that mean for all the programs across the nation working to protect ag land?

by the way, the UN has reached a very different conclusion assessing the need for many millions of addition acres.

Jessie Owley