Land Use Prof Blog

Teaching Outside the Box

We're now entering week 4 of the spring semester at Buffalo. I'm very excited about my classes this e. Both of which are firsts for me.

I am teaching Natural Resources Law. This is a fun course and I have a great group of students. I was a bit taken aback when I learned how many of my students are from Buffalo. Place matters for many reasons, but it is especially strange feeling to teach a public lands class without one person in the room from west of the Mississippi.

I am also teaching a distributed graduate seminar called Land Conservation in a Changing Climate. "A distributed what?" you say? Yep, a distributed graduate seminar. I believe it is the first seminar of its type in the legal academy. A group of eight professors at six different schools (Buffalo, Denver, Indiana,South Carolina, Stanford, Wisconsin) are all teaching a course with roughly the same title at the same time. We have similar but not identical syllabi and take slightly different approaches to our classes. Although law students probably dominate the classes, we have opened up our classes to graduate students in other departments. All students are examining case studies, collecting data, and inputting results of interviews and research into a joint system. At the end of the semester, both the faculty and students will have access to the collected data. I am excited about this project for many reasons. First, our students are learning how to work with social scientists and understand scientific reports and papers. Second, students are actually collecting data and interviewing people who are conserving land. Third, the data collection will enable us to think both about our own states and do comparative work. Studying conservation easements is often challenged by the lack of available data. We are specifically examining how conservation easements will react (or not) to climate change. I think this project will be good for the students of course, but I also hope they learn things that will help others.

I will be speaking more about this project in May at Pace's Practically Grounded Conference (and elsewhere). If any of you are engaged in (or know of) similar projects, please let me know!

- Jessica Owley

 

Virtual Speaker Series

One of the many exciting things I am engaged in this month is Mercer's Environmental Law Virtual Guest Speaker Series. Students at Mercer and elsewhere listen to recorded presentations on different topics by law professors across the country. Unsurprisingly, my presentation is about conservation easements. Starting Monday February 21, my lecture was available to the students. All week students are asking me questions in an online discussion format. This is a great project by Mercer, giving students access to law professors across the country with different specialties and creating a flexible learning environment that takes advantages of new technologies.  [I gave my presentation using powerpoint's new narration function which I found alternatively straightforward and infuriating.]

The discussion is a bit harder than answering questions after a talk because writing down answers in a public forum always requires a bit more thinking than the off-the-cuff answers we give when answering live questions immediately following a talk. BUT the format also lends itself to a higher caliber of questions. When students have the opportunity to think about a presentation and write questions at their leisure, the questions are intriguing and thoughtful. Almost every questions so far has pushed me more than I generally expect from students. Kudos to Mercer  and Steve Johnson for this annual program.

- Jessica Owley

Landowners Ignorant About Encumberances on Their Land

It is perhaps not surprising to many of us that landowners don't understand the encumberances on their land. If someone has never heard the term "conservation easement" before, it's not surprising that they don't understand what it means when they see it with their deed. One would hope, however, that you would find out before buying the property.

An article in yesterday's Washington Post gives examples of landowners who are uninformed about the nature of the restrictions on their land. Although the Post writer doesn't place blame, the official at the County Planning Office quoted in the article is not hesitant about pointing the finger at real estate agents.

Although this article doesn't present heartening news for the land conservation community, I was glad to see this in print. I have been hearing stories like this from landowners for a few years now (folks who just didn't realize there were encumberances on their land). While our land recording systems appear to ensure landowners will get notice of the restrictions on their land, we see that it doesn't always happen. This article highlights that such notice may not be meaningful if purchasers don't understand the deeds they are reading.

Not sure what the answer is to concerns like this. Fewer deed restrictions perhaps, but that is not very satisfying. We could require real estate agents to clearly explain all the provisions in a deed, but it doesn't look like it would have helped here. The couple that the story focuses on read and signed the conservation easement indicating that they had reviewed it. Looks like this couple may turn to the courts for relief. Hope their lawyer is better than their real estate agent.

UPDATE ON 02/21:

The Washington Post has added (or maybe it was there all along but I didn't see it) a great graphic showing where the conserevation easement was. This case has sparked an interesting debate in the land conservation community about the appropriateness of protecting backyards in this way.

 

- Jessica Owley

Land Trust Sued Over Conservation Easement Enforcement (or lack thereof)

Those of us who study conservation easements don't have a wealth of case law to debate and scrutinize (query whether that is a bad or good thing). So perhaps it is understandable that we  get excitable when there is even a hint of litigation. According to a local newspaper, a couple in Pennsylvania has just sued a local land trust for failing to enforce a conservation easement. In this case, the landowner allegedly violated the conservation easement by clearing woodlands, building a stable, and keeping horses. The plaintiffs claim that the land trust has not adequately enforced the conservation easement.

There are several interesting issues here including two big ones:

(1) Who has standing to bring challenges regarding enforcement of a conservation easement? Here, the plaintiffs own adjoining land. Could the township intervene?

(2) what are a land trusts' enforcement obligations? Did create of the conservation easement create a charitable trust? Can they choose not to enforce a conservation easement? How much discretion do land trusts have in negotiating settlements or conservation easement amendments?

I'm sure the land trust community will be watching this one closely.

- Jessica Owley

Callison on the LIHTC and Geographic Desegregation

Bill Callison (Faegre & Benson, LLP; also ABA Forum on Aff. Housing and Comm. Dev. Law) has posted Achieving Our Country: Geographic Desegregation and the Low-Income Housing Tax Credit, 19 S. Cal. Rev. L. & Soc. Just. 213 (2010).  Here's the abstract:

This Article, which blends educational policy, housing policy, and tax policy, argues that one path down the precipice of racial inequality is to reverse a path that led us to where this problem began; namely, the racial segregation of the places where we live. This Article examines the country’s most important subsidy for creating affordable housing, the Federal Low-Income Housing Tax Credit (“LIHTC”), and considers whether the tax credit program has served as a tool for desegregating metropolitan neighborhoods. After concluding that the LIHTC program has not been an effective tool for reducing or eliminating continuing patterns of racial segregation and poverty concentration, this Article proposes numerous programmatic changes that could allow the tax credit program to promote greater geographic desegregation. Others have considered the impact of fair-housing laws on the LIHTC program. This Article contributes to that literature by going beyond fair housing to examine both the “cooperative federalism” concepts embedded in the program and the economic structure of tax credits, and by making practical suggestions on how the program can be improved to obtain racial integration. It takes a two-prong approach: First, this Article encourages more robust national guidance in order to encourage states to use credits to foster desegregation. Second, this Article considers changes to the economic structure of the program to provide incentives to developers and investors who undertake to provide affordable housing that results in desegregation.

Jim K.

Tax Breaks For Conservation Easements May Get Even Sweeter

As some of you may know, I am obsessed with intrigued by conservation easements. A strong motivator for some conservation easements (but not all or even necessarily most) is the availability of federal income tax deductions. A current bill in the senate would make such donations even more alluring. 

The Rural Heritage Conservation Extension Act of 2011 would allow landowners to deduct up to 50% of the adjusted gross income for such donations (right now it is only a mere 30%).

- Jessica Owley

Connecticut vs. American Power

Kermit Lind just alerted me to a case the rest of you are probably already following, Connecticut vs. American Electric Power.  Following is a synopsis from the Climate Change and Clean Technology Blog.

On December 6, 2010, the Supreme Court granted certiorari in American Electric Power Co. v. Connecticut, a federal nuisance case on appeal from the Second Circuit. Plaintiffs -- eight states, the City of New York and three non-profit land trusts -- seek abatement and reduction of greenhouse gas emissions from defendants, who include some of the United States’ largest electric utility companies. The Second Circuit ruled that: (1) the case did not present a non-justiciable political question, (2) the plaintiffs have standing, (3) the plaintiffs stated claims under the federal common law of nuisance, (4) the plaintiffs' claims are not displaced by the Clean Air Act ("CAA"), and, finally, (5) the Tennessee Valley Authority (“TVA”), a quasi-governmental defendant, is not immune from the suit. See Connecticut v. American Electric Power Co., 582 F.3d 309 (2nd Cir. 2009).

This is a case to watch out for during this Supreme Court term.

Read more here.

Jamie Baker Roskie

CSU Clinic Helps Rescue Distressed Houses

News from Kermit Lind at Cleveland State:

An Associated Press story on how nonprofits are collaborating with banks to rescue distressed houses for productive use and owner-occupancy shows what the UDLC's clients are doing in Cleveland.  Nonprofits of various types all around the country are finding ways to make deals with banks to acquire houses before the market of absentee investors and speculators can abuse them. 

The Detroit Shoreway Community Development Organization rescued more than 72 houses on Cleveland's west side.  It and other neighborhood-based nonprofit clients of the UDLC have been leaders in this effort for several years.   The nonprofit Cuyahoga County Land Reutilization Corporation is raising the capacity for recycling housing all over the county.  

Students in clinical practice are providing legal services to facilitate these transactions and the rehabilitation work.  They also participate in the development and advocacy of public policies and programs needed to stem the tide of abandonment and nuisance conditions that threaten the beneficial results of the good work described in the news report.  

Here is a link to the report. 

Thanks for the update, Kermit!

Jamie Baker Roskie

Introducing Jim Kelly

We are very glad to announce that Prof. James J. Kelly, Jr. is joining us as an Editor of the Land Use Prof Blog.  Jim has been an Assistant Professor and the Director of the Community Development Clinic at the University of Baltimore School of Law.  In the Spring of 2011, he will be a Visiting Professor at Washington & Lee.  I'm also pleased to announce that Jim has accepted a permanent position beginning in the Fall of 2011 as a Clinical Professor of Law at Notre Dame Law School, where he will direct a new community development project.  I'm really glad to see that Notre Dame will be bringing Jim on board--to the campus where his now brother-in-law was my freshman roomate back in 1991 (small world dept.). 

Jim is an expert in community development law and practice, and has written extensively on the topic of land trusts for affordable housing: see his pieces Homes Affordable for Good and Land Trusts that Conserve Communities.  He went to UVa and Columbia and has extensive experience with community-based nonprofits.  As we mentioned last week, Jim and his clinic played an important role in the recent passage of Maryland's Affordable Housing Land Trust Act.  Jim guest-blogged with us last summer, and it's great to have him here in 2011. 

Matt Festa

Kelly on Maryland's Affordable Housing Land Trust Act

James J. Kelly, Jr. (Baltimore; Washington & Lee (visiting)) has posted Maryland's Affordable Housing Land Trust Act, recently published in the Journal of Affordable Housing and Community Development Law, Vol. 19, p. 345, Spring/Summer 2010.  The abstract:

On May 20, 2010, Maryland’s governor, Martin O’Malley, signed the Affordable Housing Land Trust Act (AHLT Act) into law. Its enactment marked the culmination of six years of advocacy by the University of Baltimore Community Development Clinic and by the Maryland Asset Building and Community Development Network. The AHLT Act authorizes a new method of creating and sustaining permanently affordable homeownership. By using the affordable housing land trust agreements outlined in the legislation, Maryland nonprofits and governmental agencies may now enter into enforceable long-term agreements with publicly subsidized low- and moderate-income homeowners to ensure that their homes remain affordable to other income-qualified homebuyers in the future. With the development of this essential tool for the creation of permanently affordable homes, Maryland has addressed key obstacles to preserving the affordable housing gains it has made through its pioneering efforts in community-based nonprofit housing development and inclusionary zoning.

This article will explore the legal obstacles that advocates of permanently affordable homeownership in Maryland faced prior to this year’s statutory amendments, the dialogue that produced the final bill, and the way forward for permanently affordable housing in Maryland and elsewhere. Part I will give background about efforts to create permanently affordable homes and the difficulties presented by several legal doctrines common to many states and one unique to Maryland. Focusing on the legislation itself, Part II will describe the advocacy effort and stakeholder dialogue as well as the resulting bill that addressed a variety of concerns raised by the indefinite dedication of land to affordable homeownership. Part III will discuss how existing models of resale restrictions used by community land trust and inclusionary zoning programs can be adapted to meet the affordable housing land trust approach outlined in the statute. The article concludes with a discussion about the value of possible changes in the law of other states to support stewardship of housing affordability.

This is a significant real world legislative achievement, and is due in large part to the efforts of Prof. Kelly and his University of Baltimore Community Development Clinic, so be sure to check out the article.  You may remember Jim's excellent guest-blogging for us last summer; we might be hearing more from him very soon (hint, hint).  

Matt Festa

Conservation Easements - The view from the other side

The common law has long encouraged the use and development of land.

This policy favoring land use and development certainly made sense during America's infancy, when the country boasted seemingly inexhaustible stretches of land. But today you cannot find property that is not subject to zoning restrictions. What seemed unlimited is now increasingly scarce. Over-develpment generates multiple problems ranging from pollution to species endangerment. Forty million acres of land - larger than the state of Florida - were newly developed between 1992 and 2007.

One of the reactions to perceived over-development and receeding "wild" lands is the conservation easement, which is (generally speaking) a voluntary agreement to refrain from developing land. Much has been written about the effectiveness of this legal tool, but the arguments in this recent online publication seem disingenuous. The article characterizes the conservation easement as a clever tool wielded by a surreptitious government. The article warns private landowners to be wary of the conservation easement and the government's desire to restrict their rights.

Land trusts exist to remove private property from production.
They do this by acquiring ranch, farm, forest, or other private land either through donation, purchase, or by acquiring CEs to property as well as water. They act as unofficial arms of government agencies—third party intermediaries or ‘land agents’—and routinely flip (sell) donated as well as purchased land and CEs to these government agencies. When they do, they’re paid with tax dollars which, in turn, are used to purchase more private property.

The Conservation Easement is vulnerable to many legitimate criticisms; that it is a tool enabling a government conspiracy to rob private landowners should not be among them.

-McKay Cunningham

  

 

Arnold on The Evolution of Property Law, Culture, and Ecology in Coastal Lands

Craig Anthony (Tony) Arnold (Louisville) has posted Legal Castles in the Sand: The Evolution of Property Law, Culture, and Ecology in Coastal Lands, forthcoming in Syracuse Law Review, Vol. 61, No. 2 (2010-11).  The abstract:

U.S. society frequently turns to property law to mediate the various social and ecological dynamics of complex and evolving environments like coastal areas, which are places of transition subject to both natural and human changes. Furthermore, U.S. society frequently turns to constitutional takings doctrines to mediate the dynamics of property law. However, property law and takings cases can be maladaptive to the evolutionary dynamics of coastal lands when they fail to contemplate the ecological and social conditions and dynamics of the objects of property rights and takings claims. In particular, legal abstractions, such as the metaphor of property as a “bundle of rights,” disconnect property and takings law from its context and real-world functions. 

An example of three maladaptive responses to coastal land management can be found in the three opinions of the U.S. Supreme Court in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection. In the case, all eight participating Justices agreed that the Florida Supreme Court’s validation of the State of Florida’s establishment of a boundary-fixing “erosion control line” was not a radical departure from Florida precedent on coastal land ownership rights. However, the Court split 4-4 over whether the Takings Clause of the U.S. Constitution creates a potential claim of a “judicial taking,” producing three different opinions about judicial takings and the relationships of federal courts to state judicial changes in property law. In each of the three opinions in Stop the Beach Renourishment, the Justices have built “legal castles in the sand”: artificial constructs that will not stand up to the inevitability of change. Each opinion is poorly suited for mediating property issues in coastal lands because it is built on a legal-centric abstraction mismatched to the complex realities of coastal land use. 

This article argues that courts should shape property doctrines and decide takings cases with regard for the concrete context in which those doctrines and cases arise, particularly ecological and socio-cultural dynamics. A strong theory of judicial takings, just like many sweeping and aggressive protections of private property autonomy and power, is likely to over-protect private property. However, a weak theory of judicial takings, just like many sweeping and aggressive protections of government or public authority and power, is likely to under-protect private property. In both cases, serious harms to both ecological health and integrity and socio-cultural health and integrity are likely, even if the specific harms vary. The issue is not resistance to change versus unconstrained and rapid change. Instead, the issue is about identifying and facilitating change that is right for and adaptive to the particular evolving context in which the tensions over property interests, land uses, and legal institutions arise. In particular, the object-regarding and context-considering concept of property as a “web of interests” is likely to be more adaptive to change within complex and interconnected ecological and social systems, particularly in sensitive environments like coastal lands, than property concepts that rely on legal-centric abstractions.

Matt Festa

Kelly on Homes Affordable for Good

James J. Kelly, Jr., of Baltimore Law and intrepid Land Use Prof guest blogger, has posted Homes Affordable for Good: Covenants and Ground Leases as Long-Term Resale Restriction Devices, a symposium piece in the St. Louis University Public Law Journal, Vol. 29, p. 9 (2009).  The abstract:

Covenants and ground leases have been, and continue to be, used to create shared spaces that are fundamentally, and often invidiously, exclusive. Famously made a dead letter in the case of Shelley v. Kraemer, covenants banning resale to nonwhite households put the force of law behind the segregated birth of America’s suburbs. Today, gated residential communities and shopping malls assure a degree of class exclusivity through covenants and commercial ground leases, respectively. These same legal mechanisms, however, are now deployed to assure long-term inclusion as well. 

Developers of affordable housing are creating homes that are not only beneficial to the original homeowners but also available for future generations of qualified home buyers. When selling the newly developed homes, they are having subsidized homeowners promise to pass the good deals on to future home buyers. These resale restrictions allow single-family homes to be sold, and later resold, to low and moderate-income households in neighborhoods that would otherwise be unavailable to them. Affordability protections of 15 years or less are relatively common and can be achieved through a number of legal arrangements. Common law and statutory hostility to long-term private arrangements that limit alienability, however, have made the search for perpetual affordability more challenging. Those seeking to sustain economic diversity in residential communities over multiple generations of homeowners have turned to covenants authorized by statute and ground leases as the vehicles by which these promises can be enforced. 

As stand-alone enforceable promises that run with land, covenants have become the primary vehicle for Inclusionary Zoning programs that seek to preserve the mixed-income nature of affected for-profit housing developments for the long haul. Community Land Trusts have generally preferred the ground lease, a standard device for shopping mall creation, to ensure that subsidized single-family homes developed by nonprofit housing organizations can remain affordable forever. As economic diversity in communities is given its proper place as a long-term goal for America’s metropolitan areas, 21st century real estate law will need to integrate both covenants and ground lease reversion interests as stable, effective means of enforcing affordability-preserving resale restrictions. In addition to arguing for the importance of both covenants and ground leases as affordability conservation mechanisms, this article will analyze and evaluate each device as to its effectiveness in achieving the development goal of creating and sustaining economically diverse communities of choice.

Matt Festa

The Community Land Trust Reader

From the folks at the National Community Land Trust:

THE COMMUNITY LAND TRUST READER

A new collection of essays, assembled for the first time, traces the roots, evolution, and prospects of the community land trust -- an innovative model of affordable housing shaped by the likes of Henry George and Ebenezer Howard, and flourishing today in hundreds of U.S. communities.

The Community Land Trust Reader, published by the Lincoln Institute of Land Policy and edited by John Emmeus Davis, brings together the seminal texts that inspired and defined the community land trust movement.  The essays - many of which have never before appeared in print, and others written expressly for this volume -- trace the intellectual origins of an eclectic model of tenure that was shaped by the social theories of Henry George, Ebenezer Howard, Ralph Borsodi, and Arthur Morgan, and by social experiments like the Garden Cities of England and the Gramdan villages of India.

For more information about The Community Land Trust Reader, go to www.cltnetwork.org.

Sounds pretty interesting, although if I bought it I'd have to add it to my huge stack of professional reading that never gets done...

Jamie Baker Roskie

Kelly on Land Trusts that Conserve Communities

James J. Kelly, Jr. (Baltimore) has posted Land Trusts that Conserve Communities, DePaul Law Review, Vol. 59, p. 69 (2009).  The abstract:

Much has been written about land trusts that conserve wilderness, agriculture or other environmentally beneficial uses that would be threatened by unfettered development. In the context of inner-cities, Community Land Trusts (CLTs) conserve neighborhoods. Like their environmental and agricultural counterparts, CLTs employ use restrictions to prioritize communally beneficial development. Conserving communities, however, requires other legal tools as well. CLTs create and sustain permanently affordable homes to break the market’s bias toward socioeconomic homogeneity. CLTs also make room, literally, for green space, sites of shared culture and other productive activities that the market tends to commercialize or marginalize. By sustaining a range of housing opportunities, CLTs decommodify community membership. By managing commons land with a light touch, they allow that diverse population to celebrate and deepen personal creativity even while promoting cohesion. Most importantly, as democratically controlled organizations, CLTs and their community partner organizations do not offer these primary goods as gifts but instead give community members only the opportunities to fight for them and continually discern good and better ways of retaining them. The process of sustaining community by owning land itself sustains community. If adjustment of alienability and commons management comprise the substance of community stewardship, then the development and the governance of the land trust itself is its transformative process.

The substance and process of connecting community and land evoke an understanding of human flourishing that challenges conventional welfare economics approaches. This article argues that Community Land Trusts are better appreciated, evaluated and guided by neo-Aristotelian social philosophies that appreciate the importance of the community and land in the urban neighborhood context. As an advocate for policies focused on human capabilities, Amartya Sen returns market economics to its roots in a moral philosophy of the human good and demonstrates the need for holistic, broad-based development, albeit one that is thoroughly committed to personal freedom. Alasdair MacIntyre insists that popularly controlled, community institutions are needed to foster and sustain the networks of giving and receiving that will inculcate the “virtues of acknowledged dependence” essential to an authentic and productive politics. While Sen’s writings develop a broader information base for judging the gains of CLTs, MacIntyre’s work finds indispensable communal institutions like CLTs that preserve the gains of citizens continually contending with both the state and the market. 

Drawing upon the actual struggles and achievements of communities in Boston, Los Angeles and Syracuse, this article will show how land trusts conserve communities and the significance of long-term community control of neighborhood land resources for the stable growth of inner-city communities and the people who make them up. Part II will discuss how short-term investment thinking is harming inner-city neighborhoods and the measures three community land trusts have taken to conserve their communities. Part III of the article will examine the neo-Aristotelian thought of Amartya Sen and Alasdair MacIntyre as providing a rationale for community conservation institutions in a world divided between the market and the state. The article will conclude by showing how a theoretical awareness of the significance of local communities in human flourishing informs the precise corporate and property relationships inner-city neighborhoods should look to for creating and sustaining economically diverse communities of choice.

This is a fascinating paper, and Prof. Kelly has done some innovative and significant work on the subject of affordable housing land trusts, both academically and in the policy world.  I will hint to blog readers that we might be hearing more about it soon.

Matt Festa

Community Land Trusts in Athens

This week the National Community Land Trust Network is having its annual conference here in Athens, Georgia.  Here's their mission statement from their website:

The National Community Land Trust Network provides training, advocacy and resources for its member organizations which nurture and sustain healthy and economically diverse communities by providing permanently affordable access to land, homes, and related resources.

NCLTN provides technical and other support to community land trusts who are providing affordable housing.  Community land trusts market affordable homes to low to moderate income clients.  The homeowners hold title to the improvements on the land, while the land trust holds title to the land and leases it to the homeowner through a renewable 99 year ground lease.  This allows the land trust to keep the housing permanently affordable. NCLTN is different from the Land Trust Alliance, which provides support to land trusts engaged in land conservation activities around the country.

Some colleagues and I are giving a presentation Thursday on land use issues faced by communities where community land trusts operate.  I'll blog more about that later this week.

Jamie Baker Roskie

How Food Safety Affects Land Use

Many of you have already read the recent compelling piece in The New York Times about beef safety.  The article chronicles the devastating story of a young dance instructor paralyzed by a virulent strain of E. Coli in a patty of ground beef packaged by Cargill.

Interesting, but why am I posting about this on the Land Use Prof blog?  It's because of a follow up piece  on Grist about why ground meat is so prevalently infected with this strain of bacteria. The author's conclusion is that in industrial food production, cows are consistently fed corn, which they cannot easily digest.  His advice, therefore, is to eat locally-grown, grass fed beef.  And there's your land use issue - how can we ensure there is enough agricultural land capable of sustaining enough grass-fed beef production to satisfy local demand?  I know that here in Athens our organic farmers and local meat suppliers struggle with capacity issues.  And even in this recession, productive agricultural land continues to be eaten up by sprawl.  Organizations like the American Farmland Trust are working hard to reverse that trend, by encouraging agricultural land conservation and changes in federal farmland policy.  What is your locality doing on this issue?

Jamie Baker Roskie