Land Use Prof Blog

Kearney & Merrill on Private Rights in Public Lands

Joseph D. Kearney (Marquette) and Thomas W. Merrill (Columbia) have posted Private Rights in Public Lands: The Chicago Lakefront, Montgomery Ward, and the Public Dedication Doctrine, 105 Northwestern University Law Review (2011).  The abstract:

The Chicago Lakefront, along Grant Park, is internationally regarded as an urban gem. Its development - or, perhaps more accurately, lack of development - has been the result of a series of legal challenges and court rulings, most famously involving the landmark U.S. Supreme Court decision, Illinois Central R.R. v. Illinois (1892), and four decisions of the Illinois Supreme Court, from 1897 to 1910, involving Aaron Montgomery Ward. The former invented the modern public trust doctrine, which continues as much the favorite of environmental groups; the latter involved the now largely forgotten public dedication doctrine.

This article begins with a description of the evolution of what is now known as Grant Park. After tracing the origins of the public dedication doctrine in the nineteenth century, the article describes how the doctrine was invoked in controversies over the use of the Chicago lakefront before Montgomery Ward came on the scene. The article then details Ward’s remarkable crusade to save Grant Park as an unencumbered open space, which created a powerful body of precedent having a lasting impact on the use of the park. Next, the article describes the limits of the public dedication doctrine that was recognized in the Ward precedents. The article concludes with some brief observations about why the public trust doctrine eclipsed the public dedication doctrine, a comparison of the efficacy of the two doctrines in the context of the Chicago lakefront, and by offering general reflections about what this history tells us about the promises and pitfalls of recognizing 'antiproperty' rights to contest development of public spaces.

A terrific example of how legal history and land use case studies can illuminate important issues of legal doctrine.

Matt Festa

Superheroes and Zoning

Yesterday I took my kids to see The Avengers, the ensemble superhero movie featuring Ironman, Thor, Captain America, and The Hulk.  But before all the world-saving action started up, I caught a throwaway line from the Gwyneth Paltrow character who plays Robert Downey Jr.'s assistant/girlfriend-- referring to their "Stark Tower" skyscraper in midtown Manhattan (powered by some futuristic sustainable energy source, natch) and their plans to build several more, she notes that she was planning to spend the next day "working on the zoning" for the other towers.  I made a mental note that this could be a humorous, quick blog post reaffirming my theory that there is a land use angle to everything, and then proceeded to watch the superheroes smash it out with the bad guys to my son's delight.

But just now, the majesty of the Internet has shown me how badly I've been beaten to the punch.  Via our Network colleagues at the Administrative Law Prof Blog, I found a link to a blog called Law and the Multiverse: Superheroes, Supervillans, and the Law, which has a blog post--nay, a 1,500+ word essay!--on this very subject called The Avengers: Arc Reactors and NYC Zoning Laws.  This is unbelievable--from the same offhand script line that set off my land-use radar, the author delves deep into the New York City zoning code, citing chapter and verse of the regulations; identifies where Stark Tower is on the maps (all with copious linkage); and then explains the legal options available to our developer/hero:

I. Stark Tower’s Zoning District

As it happens, we know exactly where Stark Tower is meant to be located within New York: it’s built on the site of the MetLife building at 200 Park Ave.

(Update: Early on some sources indicated that it was built on the site of the MetLife building and now others indicate that Stark built the tower on top of the preexisting building. This doesn’t change the analysis. Whatever the zoning status of the MetLife building, the construction of Stark Tower was likely a “structural alteration” of the building that would disallow a grandfathered nonconforming use. It certainly exceeded the kind of “repair or incidental alteration” that would preserve the nonconforming use.)

Here’s a zoning map of the area. As you can see, it’s in a C5-3 commercial district in the Special Midtown District, which means Stark Tower has a maximum Floor Area Ratio of 18 (3 of that comes from the special district). Basically this means that if the building takes up its entire lot then it can only have 18 full-size floors (or the equivalent). There are various ways to increase the FAR, such as having a public plaza on the lot. The sloped, tapering structure of Stark Tower means that it can have more floors without exceeding its FAR because the upper floors are much smaller than the lower ones. Given the size of the 200 Park Ave lot, it’s believable that Stark Tower could be that tall, given its shape and the various means of increasing the FAR.

Stark mentions that the top ten floors (excluding his personal penthouse, presumably) are “all R&D.” Is that allowed in a C5-3?

Apart from residential uses, the permitted commercial uses in a C5 are use groups 5 (hotels), 6, 9 and 10 (retail shops and business services) and 11 (custom manufacturing). Unfortunately, research and development is not allowed as a permitted or conditional use in this district. In fact, scientific research and development is specifically allowed in a C6 as a conditional use, which requires a special permit and approval from the City Planning Commission.

So Stark needs some kind of special dispensation. How can he get it? There are many possible ways.

The essay goes on to analyze the options for rezoning, variances, and the related issues of electrical power generation permits and FAA approval, again chock full o' links to the statutes, regs, and caselaw.  The author, James Daily, concludes that "while Pepper Potts may indeed have to do some work to get the next few buildings approved, it’s not far-fetched from a legal perspective."  Read the whole thing, it's wild, and quite sophisticated too. 

But I will draw this even more compelling conclusion: Even the world's greatest Superheroes are no match for the awesome power of the Zoning Code and the Planning Commission.

Matt Festa

Strong Towns

Today I was listening to a podcast from the Congress for the New Urbanism's annual meeting last week (more on CNU 20 to come . . . ), and I heard a talk by Charles L. Marohn, Jr., the Executive Director of a nonprofit called Strong Towns.  The organization is dedicated to improving community life at the town and neighborhood level.  Here's a link to its ten Placemaking Principles for Strong Towns.

What looks like the best feature is the excellent Strong Towns Blog, which posts in-depth original analyses three times per week.  Recent posts are on topics such as "The Micro City Beautiful"; Low-Impact Development (LID) vs. New Urbanism; and weekly news digests of interesting land use and planning stories.  Check it out.

Matt Festa

Blocks Where No One Has Fun: Salon on Urban Entertainment Districts

Will Doig has an interesting article in Salon called Urban Entertainment Districts: Blocks Where no one has Fun.  Subtitle: "Cities keep trying to create downtown cool with dull nightlife districts. But who wants to hang out at the mall?"  The article starts with a criticism of Dallas' Victory Park, moves to Kansas City's Power & Light District, and generally paints a negative picture of big-project attempts to create "entertainement districts"--or "districts" of any kind, including "arts districts."  It's a well-written article with a good general critique, so read the whole thing.  Let me tease out one of the sub-themes here: the problem of comprehensive urban development projects.

What could be wrong with a district where nightclubs and galleries are encouraged to thrive? Nothing, necessarily; done right, a city can help foster these scenes with a gentle guiding hand. Constructing an entire milieu from whole cloth, however, is where cities get into trouble. “The problem with these created-overnight districts is that you’re trying to create a culture as opposed to letting one grow,” says Nathaniel Hood, a Minneapolis-based transportation planner. “You’re getting the culture that one developer or city council member thinks the city needs, as opposed to the ground-up culture that comes from multiple players.” . . .

“A district inherently becomes a single-use idea,” says [studio owner Patrick] Kennedy. “Everything [in the "arts district"] has to be ‘art.’ You end up with a bunch of performing arts spaces and when they’re not in use it becomes a vacuum.” This vacuum has made the district itself a museum of sorts, something impressive to observe but strangely inert. (The Chicago Tribune called the area “the dullest arts district money can buy.”) . . .

So it seems like there are two problems with the "let's-create-a-cool-urban-district" impulse: (1) the practical (and cultural) limitations of comprehensive development projects, and (2) the inherent tendency towards single-use separation that comes with large scale "districting" plans:

That’s a defeatist choice to have to make, but the monocultures created by urban districting make it almost inevitable. At last week’s 20th annual Congress for the New Urbanism, Hood spoke about the folly that is Kansas City’s Power & Light District, an $850 million entertainment district whose neon signage is as blinding as its eagerness to be hip. . . .

It’s not just that the developers are boring people — the economics of single-owner districts incentivize blandness. Chain stores and restaurants can afford to pay higher rent, so they get first dibs. To boost rents even higher, tenants are sometimes promised that no competition will be allowed nearby. “Starbucks will be willing to pay the higher rent if [the developer doesn't] let other cafes into the area,” says Hood. . . .

He contrasts these contrived districts with the more organic development of an entertainment scene at Boston's Kenmore Square: "it shows that these districts work better without all the bureaucratic attachment parenting."

Let's not forget that these grand schemes usually come from good intentions, which combine economic incentive with a genuine desire to create attractive places.  But there are some limitations that inhibit these grand schemes.  I think that the biggest challenge for the intermediate-term urban planning future will be to figure out how to make legal and incentivize the creation of public spaces through an incremental but still realizable process.

I'm going to Dallas for a bar lecture in a couple of weeks, so I'll try to check out Victory Park.  Thanks to Jason Rowe for the pointer.

Matt Festa

Strategic “Blight” Designation in Missouri

As most land use professors are well aware, having land declared “blighted” isn’t always such a bad thing.    

The potential disadvantages of official “blight” designation are obvious.  Properties in declared “blighted” areas can be particularly susceptible to takings by eminent domain, as famously highlighted in Berman v. Parker, 348 U.S. 26 (1954).  Official designations of blight can also depress property values in some situations due to a perceived stigma commonly associated with blighted land.  

Why, then, would anyone want their real property to be declared “blighted”?  The reason, of course, is that officially blighted property can qualify for special tax benefits or programs in many jurisdictions.  If parcels are eligible for huge tax breaks only if they are officially labeled as “blighted,” then getting that label can suddenly be more a blessing than a curse.

An ongoing political debate in Columbia, Missouri, showcases this ironic aspect of redevelopment policy.  Missouri statutory law provides that new real property improvements in “enhanced enterprise zones” (EEZs) can qualify for generous property tax reductions.   Companies that invest in redevelopment within an EEZ can also receive state income tax breaks.  A group of government officials in Columbia have thus been seeking to have nearly half of the city designated an EEZ.  Unfortunately, EEZ designation requires that the entire EEZ area be declared blighted.  In Columbia, the proposed blighted area would encompass vast portions of the city where retail outlets are succeeding and businesses appear to be thriving. 

Sadly, those in favor of the EEZ proposal in Columbia argue that declaring half of the city to be blighted is necessary to enable it to compete statewide for new manufacturing and other jobs.  At least 118 Missouri communities--comprising one third of the land area of the state--have already declared themselves blighted to take advantage of the EEZ statute, giving them a leg up in attracting private redevelopment dollars. 

Should state redevelopment policies be structured such that local officials must declare large amounts of their communities to be blighted to have any chance of competing for private investment? 

Those interested in exploring this topic from an academic perspective will find plenty of published scholarship on LexisNexis or Westlaw to distract them from grading final exams for at least a few hours.  For a convenient launching point, consider Colin Gordon, Blighting the Way:  Urban Renewal, Economic Development, and the Elusive Definition of Blight, 31 Fordham Urb. L. J. 305 (2004).

Troy Rule

Schindler on the Future of Abandoned Big Box Stores

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.

Matt Festa

Things are (Literally) Looking Up

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.

Troy Rule

"The Descendants" and the Rule Against Perpetuities: Hooray for Aristocracy

In search of a relaxing diversion after another hard day mulling the intricacies of land use and real property law, I sat down last night with my wife to enjoy a quirky, Oscar-nominated film called "The Descendants."  You can imagine my surprise and indignation when a key plot point hinged on the rule against perpetuities!  Although the intricacies of the rule were irrelevant, my enjoyment of the film was greatly diminished as I found myself attempting to mentally sort out how the rule would apply in this situation and whether the movie had gotten the rule right rather than paying attention to the poignant tale that was unfolding. 

Fortunately for you, I am not going to spend this post saying whether the movie got the rule against perpetuities right because, frankly, that would just reveal my ignorance about the rule.  Rather, the movie's treatment of the rule against perpetuities communicated an interesting and somewhat disturbing message about dead hand control in property law.    

To summarize ever so briefly, the protagonist Matt King is a real estate lawyer in Hawaii who, along with innumerable cousins similarly garbed in garish Hawaiian shirts, has inherited an interest in 25,000 acres of pristine Hawaii land from a native Hawaiian ancestor.  The land is held in a trust administered by our hero, who tells us at the outset that because of the rule against perpetuities, the trust is set to expire in seven years (thus beginning my confusion, as I had thought trusts were exempt from the rule).  The entire local community is greatly interested in the fate of the land, which now rests in the hands of Mr. King along with several other weighty personal matters which will be resolved in the following 2 hours.  SPOILER ALERT AHEAD: 

Most of the cousins wish to sell the land now to a real estate developer before the trust expires.  Our hero seems set to agree with them, but then dramatically changes his mind in the movie's conclusion, asserting that he and the family have an obligation to their ancestors, their descendants, and to the Hawaiian people at large to maintain the land in its pristine state.  When his cousins question him about how he's going to get around the RAP problem, he says that he's got seven more years to figure that out.  They seem convinced. 

So what's the message for property lawyers?  The movie interprets the RAP as a heartless legal formality that operates to remove land from its sentimental roots and convert it into a market commodity that can be exploited by rapacious real estate developers (it is no coincidence that the nearest thing the movie has to a villain is a real estate broker).   This is, to say the least, an interpretation of the RAP that property profs will find novel.  I have always understood the purpose of the RAP to be the prevention of a landed aristocracy: no longer can a landowner ensure that the source of his or her wealth stay in the family for all time.  The dramatic conclusion of "The Descendants," by contrast, asks us to cheer for the protagonist as he attempts to perpetuate his family's landed aristocracy into perpetuity.  The movie accomplishes this through a clever trick: we do not see the protagonist as an aristocrat, but as someone whose wealth and privilege is a burden because he is so conscious of the monumental social impact of his great fortune.  And it's easy to look good when your adversary is a developer.  The movie practically makes one nostalgic for the days when society was ruled by a patrician class with an acute sense of social responsibility.  After Citizens United, we still have the patrician class, but without the social responsibility. 

In short, I could not enjoy the movie.

Ken Stahl

NYU's Controversial Expansion Plans

Property Prof Blogger extraordinaire and official Land Use Prof Blog Buddy Steve Clowney draws attention to an interesting recent column from NY Times architecture critic Michael Kimmelman about NYU's plans to expand within Greenwhich Village.  I agree with Steve's assessment that the column focuses too much attention on the effect the expansion would have on a little used plot of park space.  It is curious that Kimmelman opens the column describing NYU's expansion plans as "acrimonious" but then immediately pivots away from describing any of the actual acrimony to an issue that only he seems to care about, to wit, this "underrated" park that nobody know exists.  

Kimmelman's main argument appears to be that NYU itself is responsible for the park space in question falling into disuse, and so the city should leverage its zoning power to force NYU to make the park more accessible.  At this point, I was running for my land use casebook to consult the Supreme Court's exactions jurisprudence (For land use newbies: governments are generally not allowed to leverage their zoning power for concessions absent an "essential nexus" between the concession sought and the land use approval requested).

In any event, I can't say Kimmelman is wrong as a policy matter.  He may be right that the village needs more open space and that NYU's plan is antithetical to that need.  To me, the most interesting part of Kimmelman's piece was his contention that the original Modernist "tower-in-the-park" design that spawned the endangered park space had actually done a good job of bringing much-needed open space to the village before NYU messed it all up.  This is at odds with the conventional wisdom that the tower-in-the-park idea was a monstrosity that necessarily brought about extremely alienating public spaces (wisdom made conventional, of course, by a previous crusader against Greenwhich Village construction plans, Jane Jacobs).  For an example of such an alienating space, check this out:

For those wondering, this is Empire State Plaza in Albany, New York, a gift of Modernist-loving governor Nelson Rockefeller. 

I see an interesting parallel between Kimmelman's affection for Modernist park design in this column and his paean to the virtues of Modernist housing complexes in another column about which I blogged previously.  Kimmelman seems committed to resuscitating a form of urban design that has been largely relegated to the dustbin of bad planning ideas. For that, I commend him!

Ken Stahl 

The Greatest Grid: New Exhibit at the Museum of the City of New York

While visiting New York City recently for the Association of American Geographers' annual meeting, I took in a great exhibit at the Museum of the City of New York entitled The Greatest Grid: The Master Plan of Manhattan 1811-2011.  The exhibit coincides with the 200th anniversary of the adoption of the famous street grid for the island of Manhattan.  It is a fascinating exploration of one of the most significant urban planning endeavors in American history.  You can see an overview of the exhibit here, and the New York Times Review of the exhibit here.  My thoughts on the exhibit, with pictures, are below:

Continue reading

Byrne on the Contemporary Role of Preservation Law in Urban Development

J. Peter Byrne (Georgetown) has posted Historic Preservation and its Cultured Despisers: Reflections on the Contemporary Role of Preservation Law in Urban Development, George Mason Law Review, Vol. 19 (2012).  The abstract:

The past years have seen widely noticed critiques of historic preservation by “one of our leading urban economists,” Edward Glaeser, and by star architect Rem Koolhaas. Glaeser, an academic economist specializing in urban development, admits that preservation has value. But he argues in his invigorating book, Triumph of the City, and in a contemporaneous article, Preservation Follies, that historic preservation restricts too much development, raises prices, and undermines the vitality of the cities. Koolhaas is a Pritzker Prize-winning architect and oracular theorist of the relation between architecture and culture. In his New York exhibit, Cronocaos, he argued that preservation lacks an organizing theory, imposes inauthentic consumer-friendly glosses on older structures, and inhibits architectural creativity. Although these critiques are as different as the cultural spaces inhabited by their authors (although both are professors at Harvard), both seemed to strike nerves, suggesting an underlying unease about how large a role preservation has come to play in urban development. This article assesses these critiques as part of an ongoing effort to make sense of historic preservation law.

This article proceeds as follows: First, it presents Glaeser’s critique in detail, placing it within the context of his larger argument about what makes cities attractive and dynamic. Grappling with the strengths and weaknesses of Glaeser’s critique leads to a discussion of how preservation regulation actually works and clarification of some of the benefits it confers. Second, this Article will attempt to specify Koolhaas’s critique, connecting it to similar complaints about preservation by more linear thinkers. Weighing objections to the coherence or authenticity of preservation leads to further discussion of the role that preservation plays in the larger culture. This article concludes with a call for future research.

Matt Festa

Mandelker on the Design Problem in Planned Communities

Here's another new SSRN paper from Daniel R. Mandelker (Washington U): The Design Problem in Planned Communities.  The abstract:

Planned communities are a dominant form of development, both in suburban areas and as infill in urban settings. Planned communities can be clusters of homes with common open space or master-planned communities covering thousands of acres, but in any form they provide opportunities for excellent design. This is the first chapter in a book that reviews the concepts and ideas that go into the design of planned communities, and explores how local governments can encourage and provide for their good design through land-use regulation.

The book is Designing Planned Communities, which Chad posted about last year.  It's a concise, highly-readable introduction to the issues with lots of really helpful maps, diagrams, and images. 

Matt Festa

Walmart in Athens: Now in Salon Magazine

The possibility of Walmart coming to Athens, GA has now made the mainstream (albiet on-line) media with this story in Salon:

The Athens, Ga., soul-food joint Weaver D’s has barely changed in the 20 years since its slogan, “Automatic for the People,” supplied the name of a groundbreaking R.E.M. album.

You could say the same about Athens itself. After businesses fled in the ’80s, downtown Athens rebounded as an alt-rock mecca that spawned the soundtrack of Generation X. R.E.M., the B-52s, Widespread Panic and thousands of other musicians and artists helped create what is, in many ways, today a dream city: a mixed-use, walkable urban core filled with small businesses, plenty of green space — and a music scene that rivals that of cities 10 times its size.

Cue “The End of the World as We Know It.” A multi-building mall-like shopping complex, likely to include the dreaded Walmart, has set its sights on downtown Athens. Renderings by the Atlanta-based developer Selig Enterprises show a bricked concourse surrounded by large-scale retail, including a 94,000-square-foot superstore, topped with apartments. It also includes three restaurants — two of which are over 10,000 square feet — and 1,150 parking spaces. This is new for downtown Athens, which unlike most college towns, has largely kept chains away.

“There’s an Athens style,” says Willow Meyer, a 37-year-old lawyer who moved here with her husband [UGA law prof Tim Meyer] two years ago, “and if you just import this kind of ‘Anywhere, USA’ development, the city loses something.”

Another group in metro Atlanta is also fighting a Walmart, proposed by the same company behind the Athens development.

My previous posts on this issue can be found here, here and here.

Jamie Baker Roskie

Changed Circumstances and Conservation Easements in New Jersey

 

Conservation easements are an important tool in the conservationist’s toolkit—created by state legislation and supported by substantial federal and local tax benefits to encourage private lands to be used for conservation purposes in perpetuity.  Nevertheless, developers have asked courts to release conservation easement based on various legal principles including that of changed circumstances. These perpetual easements have been conveyed voluntarily and the benefits of the conveyance have accrued to the donor, and any successors in interest, which include expansive federal and state tax benefits as well as potential vested zoning rights.

Developers are asking courts to ignore the independent enforceability of the contractual agreement that established these conservation easements.  These easements are contractually created enforceable property rights, independent of any additional consideration. See e.g.  N.J.S.A. 18:B-3. Conservation easements are supported by valid consideration, entirely separate from more traditional municipal grants of development rights.  In exchange for donating the conservation easement to a municipality or charitable land trust, the landowners receive above mentioned substantial tax benefits from both the federal and state governments.  A changed circumstances claim is insufficient to nullify this independently created contract obligation.

In New Jersey the legislature created the statutory backstop for conservation easements in 1979 via the Conservation Restriction and Historic Preservation Restriction Act. Prior to this legislative enactment conservation easements were of dubious enforceability given the common law’s hostility to perpetual negative easements in gross (a.k.a. conservation easements). See Restatement (Third) of Property (Servitudes) § 1.6.  The New Jersey statute established a framework for enactment as well as removal of such encumberments. N.J.S.A. 13:8B-1 et seq. These removal procedures are clearly set forth in the Act; the release of a conservation easement may only be accomplished (1) under the statute; (2) with a public hearing; (3) after providing notice by publication; (4) with the Commissioner of New Jersey Department of Environmental Protection’s approval; (5) if it is in the public interest; and (6) recognizing the negotiated terms of the conservation easement itself.

Despite the independent enforceability of individual conservation easement contracts and various state statutory frameworks, developers are asking courts to be released from these easements—resulting in an economic windfall for the developer.  These developers actively entered into, or purchased the land subject to, conservation easement and its limited provisions for extinguishment. They have also benefitted from generous local and federal tax deductions.  Conservation easements—and the proper channels for their release—must be upheld as tools of conservation as intended by legislatures and traditional contract law and not used as an economic subsidy for developers when circumstances change.

 Susan Kraham

Land Use Planning in a Recession - Newton County, Georgia

During his excellent stint as a guest blogger, Stephen Miller posed the question, "Does the best planning happen in a recession?"  Like him, I tend to think that currently most jurisdictions are focused on crisis management rather than forward thinking.

However, one exception is Newton County, Georgia - a community that just happens to be a UGA Land Use Clinic client since we began assisting them in 2003 with sprawl reduction tools like infrastructure planning, agricultural land conservation, and transferable development rights. Newton's forward thinking planning processes are highlighted in a four part series on CoLab Radio.  The first of the series is entitled "Planning for Growth in a Recession."

Jamie Baker Roskie

 

 

The Opposition Heats Up or Wal-Mart in Athens Part III

Late last year I posted twice (here and here) about a proposal to put a mixed-use development, anchored by a 100K square foot Wal-Mart, into downtown Athens.  Today things heated up in a very Athens way, with Patterson Hood of the Drive-By Truckers unveiling a protest song and a group called "Protect Downtown Athens" launching an incredibly thorough website analyzing many aspects of the development.  This group is supported by members and management of R.E.M., and other local movers and shakers. Release of the song has already increased coverage of this issue in the national blogosphere and MSM.  This just keeps getting more interesting!

Jamie Baker Roskie

Farmers Take Back Land Slated For Housing

On Morning Edition today, NPR ran a story about farmers who sold land for development repurchasing it for agriculural use.  Here's the summary:

Over the past half-century more than 20 million acres of U.S. farmland were transformed into housing developments. With new home construction all but stopped, farmers in many areas are buying or leasing land once slated for development and planting crops on it.

Jim K.

State & Local Government section--Cities in Recession program

From an email sent by Rick Su (Buffalo), the Chair of the AALS Section on State & Local Government Law, here is something that may be of interest to land users.  The Section is already planning for the 2013 AALS meeting in New Orleans:

The tentative title is Cities in Recession. The program will look into the many ways that cities have not only been affected by, but are also responding to, the current economic downturn. This should provide a timely lens for exploring a wide range of local government issues, from municipal finance to education to economic development. In addition, it offers an opportunity to look at both distressed and resilient cities. The planning for this panel is in its early stages; I eagerly welcome any comments or suggestions that you might have ([email protected]).

Matt Festa

City Journal's take on the California Redevlopment decision

I've been enjoying the outstanding posts on last week's landmark California Supreme Court ruling by Ken Stahl (here and here) and guest-blogger Stephen Miller (here and here) (I smell a great panel or symposium topic in the making).  Just now I came a cross an early analysis by Stephen Greenhut at City Journal, the always-interesting center-right urban affairs journal.  Greenhut has a strongly positive take on the decision in Crony Capitalism Rebuked California’s supreme court strikes a blow for property rights and fiscal sanity:

On December 29, the California Supreme Court handed down what the state’s urban redevelopment agencies (RDAs) and their supporters called a “worst of all worlds” ruling—first upholding a law that eliminates the agencies, then striking down a second law that would have allowed them to buy their way back into power. This was great news for critics who had spent years calling attention to the ways modern urban-renewal projects distorted city land-use decisions, abused eminent-domain policies, and diverted about 12 percent of the state budget from traditional public services to subsidies for developers, who would build tax-producing shopping centers and other projects sought by city bureaucrats. As of now, the agencies are history, though the redevelopment industry is working to craft new legislation that would resurrect them in some limited form.

Matt Festa

Saying No to Wal-Mart Downtown

Apparently Athens, Georgia isn't the only Georgia community facing controversy over a downtown Wal-Mart (see my previous posts here and here).  The City of Sandy Springs, in metro Atlanta, just placed a moratorium on big box development in its downtown in light of rumors that Wal-Mart wants to place a store there. As Chad Emerson blogged last year, Wal-Mart has been eyeing the urban market for awhile.  It seems now they're getting some pushback.

Jamie Baker Roskie