Property: Land Use, With Professor Molly Brady

so we are in the middle of our unit on land use controls right so we've been talking about a couple different mechanisms we've been talking about a tort law mechanism for managing land use conflicts that was our piece on nuisance law I've been talking about contract law mechanisms for constraining land uses so we started with easements right one of the types of servitudes the one that is more property like and then we moved last class to covenants so we talked a lot about the different tests for covenants how you make a covenant how you enforce a covenant either as a real covenant so seeking damages or as an equitable servitude so seeking an injunction we talked about some of the meanings of those different pieces of the test like the touch and concern piece right which was the most complicated piece we talked about the spectrum for evaluating that but today we're moving to the regulatory mechanism that is used to control conflicting land uses and that is the law of Zoning as I've mentioned to you this unit is the subject of an entire upper level class taught here either by me or by Professor Cannon so to the extent you find any of this interesting there is a lot more where that comes from but I'll move to today's question so it's why is America divided into zoning districts and what do they do so we have two objectives first will identify the basics and question the wisdom of conservation easements so one sort of regulatory form it's kind of a hybrid of regulation and private land use control and we're also going to talk about the history and general structure of zoning law so I'm going to take those in reverse order so we'll start actually with an introduction to zoning a bit on the history of zoning and then we will move to conservation easements so introduction to zoning your book gave you a little bit of a picture of sort of where zoning comes from this is a relatively modern institution at least relatively modern compared to some of the things from the 1200 s that we're usually talking about in property but modern land use regulation conventionally is thought of as originating in the 19th century it's really a function of technology right we're starting to get higher buildings we're starting to get new types of land-uses that our noxious with new technology so early land use controls start to emerge in about the 1880s so in the 1880s new york city grows interested in restricting building heights move this down a little so actually they establish a committee delightfully titled the height of buildings commissioned my dream would be to be on such a thing but they grow interested in restricting building Heights and so they start sort of evaluating how to do this specifically with respect to tenements it's the bottom left lots of crowded places that are getting taller and taller they're thinking about how to constrain that also certain types of uses start to be restricted so the text in the top left is an 1885 ordinance from Modesto California it's an ordinance banning washed houses or laundries and ostensibly the reason for these controls is safety so we're in the era of great fires right so tenements in particular are worrisome they're often shoddily built there's a lot of people cramped into a space with a single stairwell so we want to restrict the height of these things to prevent sort of loss in great fires laundries to wash houses things like that they actually involve boiling water on really hot stoves and so laundry fire is fairly common often resulted in the destruction of adjoining buildings or entire neighborhoods so this is sort of what's giving rise to the need for land use control interest in regulating both the height of buildings and the use of buildings leads to two early Supreme Court cases so the first comes from this scenario there's a case called Welch versus Swayze it's 1909 what had happened was this Boston had restricted the heights of buildings throughout Boston to about a hundred and twenty-five feet but they'd restricted the buildings around Copley Square this is the predecessor to Copley Square some of you might recognize the Boston Public Library there they restricted the heights of buildings there to about 90 feet as you can see there's a non-conforming use as we might charitably call it which is Old South Church tower 246 feet high the sort of astonishing incongruity there is also maybe what gives rise to the need to limit Heights we're seeing sort of big buildings starting to crop up in Boston decides to take control of this so anyway this makes its way a building owner who is trying to build a taller building a building taller than 90 feet Suz and this challenge makes its way to the Supreme Court in this case of Welch and they're weirdly enough he actually conceded that limiting the heights of buildings was legitimate but said as applied to me it's unreasonable thus in this particular instance classic strategy but the court totally deferred to the Massachusetts legislators and court's judgment and it actually noted fire issues the availability of water in Boston as potentially being an issue and so said this is a reasonable height restriction as I mentioned cities are also trying to do use restrictions at this time so Los Angeles for example splits cities into districts limits one to residences and it bans brick yards in some of these districts and again someone with a Brickyard is upset about this and decides to take it all the way to the Supreme Court is asked again to weigh in on an ordinance as applied to that specific landowner it's unreasonable to prevent my Brickyard in particular and the Supreme Court again upholds the city's ability to do that and that is a case called how to check versus Sebastian which is from 1915 where modern zoning is born though he is really in New York City and it's motivated by this monstrosity like that my text is in the middle of the slides there but this is the equitable building so this building is at 120 Broadway it's built and completed in 1914 it was 48 storeys tall and it cast a seven-acre shadow so try to imagine yourself as a person in 1914 right we're in the era of hoop skirts they've just started taking cocaine out of coca-cola seven acre seven acre shadow is pretty terrifying I've tried to give you a sense of kind of how imposing this might have looked right from sort of underneath it so this building terrifies everyone and they decide the legislators in New York decide to try to ban this sort of thing from happening again with law what we get is the 1916 zoning resolution which is really the first predecessor to the full-blown modern zoning ordinance so this ordinance does a few things it splits the city into three districts residential business and unrestricted or industrial and this was in response to garment factories which were actually starting to creep up Fifth Avenue they're trying to prevent those from encroaching on residential parts of New York it also restricted Heights so once you built to a certain height that was set by the width of the street you then had to set the floors of the building back a bit from the street so you could build up and then once you got to that height you build in up and then you'd have to build in again and so a lot of architects sort of made their money on maximizing building volumes in conjunction with this law so if you've ever wondered why New York has a lot of buildings that look like staircases this is pretty much a function of the 1916 zoning law because it's requiring people to go in a little bit once they've reached a certain height so again architects make a lot of money designing buildings that comply with this with this set of rules there's a lot of interest in this 1916 act and that led then Commerce Secretary Herbert Hoover to actually create a subcommittee to draft laws that would permit states to enable localities to zone so remember we've talked about before local governments have to be enabled to do things by the state government they have to have authority from the state that's that Dillon's rule stuff and the home rule stuff that we've talked about in past classes so Hoover's Committee drafts something called the standard zoning enabling Act or the SCEA this is basically a piece of legislation that states can enact that will allow localities to do the sorts of rulemaking that New York City did the SSA EA does four important things so first it delegates the power to zone so again authorizes localities to zone it also establishes procedures for things like amending your zoning code or making exceptions from it or variances basically declining to enforce it against particular owners so a set of procedural rules come from the SE EA as well it creates a little local administrative body called the Board of Zoning Appeals to actually administer this law and again decide whether to grant exceptions or not and finally it requires localities to Zone in accordance with a comprehensive plan the history of this language is kind of interesting I've talked a lot about it in land use because somehow it is read not to require a plan at all so localities don't even really have to have a plan it can be sort of implied from general policy statements or just sort of implicit in the text of the zoning code itself but some localities do have a comprehensive plan and actually here in Charlottesville we are in the process of revising ours right now so I'll show you just a little bit of that which I find kind of entertaining so there's often a lot of sort of community engagement as they're thinking about the plan which is essentially sort of an assessment of strengths weaknesses that the city has ideas about how it should grow what areas we need to constrain development or really encourage development and housing it often contains a lot of exciting plans sort of policy statements trying to find some of them here so sort of like the values of the city will be considered the places where we live are important it's often pretty broad language so when we see in accordance with a comprehensive plan that might not be a very toothy requirement let's say as I mentioned in 2018 this is happening here in Charlottesville so you might see sort of fliers around town about community engagement meaning says they're thinking about redrafting this all right so to get back into my slides there we go of course zoning doesn't say sort of as quaint as height restrictions and use restrictions forever zoning takes off very quickly so actually by 1930 just a few years after this Hoover Commission already 35 states have passed the SCEA of course now it's pretty much everywhere but modern zoning is now a lot more complicated so again not as quaint as sort of you can only build two stories or whatever instead we have lots of different really fine-grained use definitions lots of different types of uses I think at last count or at least when the book was published there are over a hundred and seventy six different uses in New York things like set backs how far you have to be from the street things like side yards so how far you have to be from your lot line some ordinances say you can only take up a particular area on your Lots a lot coverage and there's a lot of other things so things like overlay zones or Planned Unit development so actually they just sort of impose specific zoning rules for one little area this is all stuff again I talk about a lot more in land use but zoning is sort of obvious to us now right we've all sort of grown up with it we're quite used to it but at the outset its future was actually quite uncertain um so I like to look it because I'm strange old newspaper advertisements about zoning so this is a publication by the city of seattle like did you want this next year property Horror Story one-story homes but also a lot of news coverage is sort of challenges to zoning of which there were many so in its early years lots of people are suing in the state courts saying this is an unreasonable restriction on property it's a violation of conv of the Constitution and a number of states upheld zoning has a valid use of the police power something that localities and states could do but a number also said this was unconstitutional there was no valid purpose behind his owning and so this is the split that leads to the court case you read which is Euclid versus Ambler Realty probably one of the most important cases in land use law so I'll talk a bit about this diagram in a second but let's just run through the facts so Euclid is a municipality in the Cleveland area in 1922 the village council adopts an ordinance that establishes a comprehensive zoning plan dividing the city into six use districts u13 you six three height districts h1 through H think four area districts so a1 through a4 they're really predictable in their naming of the districts types in this in this municipality this is a cumulative zoning so what do I mean by that cumulative zoning means that in a zone of a given level you can have uses of that level or any higher use so specifically with those use districts you one only permits single-family residences you two permits slightly more intensive uses slightly more people all the way down to u6 which permits industrial uses heavy intensive but in a you for for example you could do any of the things permitted and use one through three so that's what we mean by cumulative it actually encompasses everything that is less intensive this is sometimes also called Euclidean zoning after this case Ambler Realty owns sixty eight acres of undeveloped land at the West End of Euclid between the nickel plate railroad and Euclid Avenue note from this map that you one uses so those residential uses are all around the Ambler tract so on sort of definitely one side of it and right across the street on Euclid Avenue and so under the zoning scheme what would happen is that industrial uses essentially would only be permitted if the zoning law was put into effect in that u-6 area and so this is devaluing their property because those areas that are now zoned u2 and u3 they can't have industry there so they're less valuable as a result note that probably what Euclid is trying to do is put in a buffer zone right between the residential neighborhood across the street and more intensive uses toward the railroad tracks Ambler Realty claims that the diminution in value here was about seventy five percent as a result of the imposition of the zoning ordinance so they challenged of the zoning law on both due process and equal protection grounds they want an injunction against its enforcement this was a challenge to the zoning ordinance as a whole not as applied so they actually hadn't really applied for exceptions or anything like that yet instead they were saying this ordinance as a whole has no legitimate purpose behind it they wanted a broad ruling here a very broad ruling that zoning was itself unconstitutional remember those earlier rulings Welch and had a check they had said that height restrictions were legitimate they had said that may be banning offensive uses like brick yards is legitimate but here there were some other things banned right so apartment buildings not allowed in some areas industrial uses that are not in and of themselves offensive not allowed in some areas and so that's what this case is about is really is zoning itself allowed or unconstitutional and here in the opinion you read which is by Justice Sutherland they uphold the zoning ordinance has both valid under the equal protection and the due process clauses and they apply a rational basis test under that version of the rational basis test zoning ordinance must only be donee ordinances rather must only be rationally related to a legitimate state interest and so here promotion of safety and security maybe some other things note that they rely on an extensive analogy here to your nuisance law right that makes this seem less radical oh this is nuisance we're used to doing this localities are used to regulating this so they're kind of analogizing the nuisance law as a way of making zoning look less radical than it actually is court essentially ends up holding that zoning ordinances are constitutional as long as they're not arbitrary or unreasonable which is another way of saying that they're substantially related to public health safety morals or general welfare some legitimate police power purpose so health safety welfare the traditional police power justifications and this is still the general test this is still the general rational basis test for talking about zoning ordinances is the ordinance rationally related to a state interest safety health welfare we're gonna get more into sort of the reasons behind the holding in a second and how the court kind of comes to the justification it does but first I want to give you three little side notes on Euclid so with one exception what's really interesting for people who study land use is that the supreme where it has not heard a case about sort of the legitimacy of Zoning since your takings cases often but about the legitimacy of zoning as an equal protection or due process matter writ large instead the state Supreme Court's have really exercised control in this area so the Supreme Court sort of makes this landmark Euclid decision they weigh in one more time and then they back away from it for now almost a hundred years so state courts are really where they're the most of the law and this is made second interesting sidenote an article by Professor dan tarrlok reports that actually after the oral argument in this case the justices voted 5-4 the other way so to strike down zoning as unconstitutional and what's amazing is sort of a procedural matter is that one of the authors of the New York City zoning law in 1916 was named Alfred Bettman and he was actually friends with Chief Justice Taft from back in the day and so he urged EF to allow the case to be reorg you'd and alt to allow him to submit an amicus brief on behalf of Zoning and he did in which he heavily drew on nuisance principles and so that amicus brief is viewed as having changed the whole history of land use really without zoning we don't have a land use class and so when they reorder the case that changes the outcome we come out the other way so it's always amazing sort of how close we came to not having this thing that we all assume is sort of foundational third the the history of the Ambler site so comically enough this whole site ended up being condemned by the federal government and so they end up using it during World War two to build a factory that made aircraft engines and landing gear subsequently it became sort of a division of GM and now I comment on canvas noted this they have a lovely plaque on site as of 2016 commemorating the Euclid versus Ambler Realty decision I have not gotten there yet I will I love property field trips will rent a bus we'll all go together but just interesting post history that actually Ambler really never builded any ended up building anything on the site at all alright so I would like to do a little exercise here to sort of think about the courts of reasoning so here's what I'd like you to do so on your note sheet there is a paragraph passage one it's also part of the case please only read that passage for now and what I'd like you to do is kind of circle three to five words or phrases that strike you as important reasons that the court is upholding zoning so reasons from that paragraph that seem to be motivating the court in finding that there are interests here and again these can be legitimate or not so you don't have to agree with what the courts saying or think it's a good thing just sort of what is motivating the court so three to five things and then I'm gonna have you weigh in with one of our polls so here's my handy poll everywhere so if you could just do that let's say three minutes to read and kind of mark it up and then another couple minutes I'll watch the results come in and then we will see what you generate as the reasons why the court is reaching its conclusion here excellent all right so this is a word cloud of what's going on in Euclid right so it's always interesting to see I you know do this in a bunch of different classes sort of which things become bigger as we go on so let's talk about some of the reasoning here so bring up this board quietly so reasons for upholding zoning all right so I'm seeing safety is the biggest one so someone who puts safety what is the court talking about there Maggie right so fire safety maybe in particular and so this kind of makes sense right that if a lot of the motivation for his or zoning rather originally it was about fire it makes sense that they would sort of continue it right that this would be an important motivating factor the court had talked about fire in both Welch and had a check so maybe felt like they were on strong ground there so we've got fire is kind of the smaller thing there but safety definitely being really important how about children what is going on with zoning and children here Rachel right so children need to play and if we don't sort of protect to them with zoning they're all just be sort of cars running around running them over so we're trying to do this for the children zoning for the children to protect them in their play let's see so security sort of related to safety I think I don't know why this the word cloud keeps shifting but but how about environment what's going on with environment so what are they trying to protect when they're talking about the environment Jack rearing children also in the residential character of neighborhood yeah right so we're trying to preserve the residential character the environment is about preserving the existing surrounding space so that's what they're talking about when they're talking about environment preserving the residences preserving the character of the community what else anything else up there if it struck any of you Ethan noise right so what were they talking about with noise yeah so traffic industry apartments this connects to Jeff's point I think which is that we change the character of the neighborhood we're suddenly going to start to have you know industry traffic loud noise in this beautiful blissful residential environment anything else Christian they're very like comprehensive in painstaking work yeah painstaking deliberation as I always say I think the words institutional capacity are gonna be on my grave because this is an institutional capacity point right like they've deliberated they've drafted this ordinance they've deliberated over it they've considered it and so we should not sort of disturb that painstaking deliberation I'm gonna abbreviate it I see institutional capacity point what else arena apparently in right ere son ah this looks familiar right to things for which we've historically allowed contractual land use restrictions right easements of light easements of air like you said exactly trying to make this look sort of less radical they're just trying to preserve things that we've already let people do for a very long time what else how about parasite I see that fairly large up there so what are they talking about when they're talking about parasites Jesse yeah right so parasite this idea I think you're right that people are sort of taking in or rather enjoying things that they're not paying for right parasites benefit from other people's activities other people's work sort of the biological definition there's sort of hangers-on right and so parasite here I think exactly they're talking about about the sort of lower classes enjoying amenities for which they have not paid some other things I think that are important here how about women in their nervous disorders I can't believe no one mentioned that one women and their nervous disorders this is a particular view right especially in conjunction with children right we're sort of harkening to the vulnerable people like the women and children get in the lifeboats first the women and children will be saved by the zoning right it will prevent them from having panic attacks in response to things like traffic just I'm still having panic attacks but that's me so I think that's another thing that is kind of important the apartment as well right is definitely the problem here the apartment industry - but they know sort of how an apartment is restricting the growth of residential communities they notice as well this is elsewhere in the opinion but they say a pig belongs in a barnyard not a parlor they're talking about apartments and they're talking about what the pig is and so this idea that apartments are inherently negative that also has class connotations right okay so I think that's mostly what I wanted to talk about protection of property values - so protection of property values being sort of a a legitimate goal although that also must entail exclusion right so if we're going to include for higher property values is something that's definitely going to restrict people being able to enter so I think that is a part of what's going on here as well all right since you're so well behaved with the word cloud [Laughter] all right so remember here so we haven't talked about this yet but we've mentioned class but another element of what's going on although it's not sort of as explicit in this opinion is race so class is maybe a bit more obvious from that paragraph but another element of what's going on is race so let's think back to that 1885 ordinance that I opened with right so Modesto California banning laundries some of you may have had a thought when I said Modesto California is banning laundries because who is operating laundries in California Chinese immigrants right this is a way it literally is pretty astonishing in this it literally constrains Chinese laundries to across the tracks right this is forcing them to go across the set of railroad tracks so the earliest zoning ordinance is already about race zoning gets even more explicitly racial in its early history the first attempt at it just sort of naked ly discriminatory zoning ordinance is 1910 comes out of Baltimore this is a newspaper article about it up on the slide the ordinance I'll show you the text in one second essentially established separate neighborhoods for whites and blacks and the way it did that was by preventing whites from moving to majority black blocks and preventing blacks from moving to majority white blocks and so similar ordinances end up being passed by 11 states mostly southern including Virginia the Baltimore ordinance in particular has an interesting history because it was motivated by a single person which is George mcmechen was on the right-hand part of the slide he's a lawyer in Baltimore he actually graduated from Yale Law School in the 1890s and the mcmechen family moves into a upper scale white neighborhood upper-class rather and they're subject to constant threats violence harassment vandalism from intolerant neighbors who are angry because they're not there having to share the block and the mcmechen family refuses to cower or leave their residences and so this ordinance ends up past so as you can see from the news article it mentions here that McMackin the segregation ordinance pretty directly so they respond to this conflict by passing this discriminatory ordinance and mcmechen in his own words again he's a lawyer so he gets interviewed by the New York Times and says my opinion as a lawyer is that this sort of zoning is clearly unconstitutional although on its face it appears equally fair to white and black but there never has been and there never will be any houses erected in Baltimore exclusively for black occupancy so in other words nobody is building majority black blocks nobody is building majority black box and he says essentially we who desire comfortable quarters have the ability to pay for them we have to seek houses abandoned by whites that's all we have and these are sort of prescient words in light of the subsequent history of residential segregation mcmechen is pretty inspirational but there's something else pretty amazing and surprising and you had a little bit of reading on this but these types of ordinances get killed very quickly so again the book notes this briefly it's a testament to creative lawyering so remember I said that zoning really takes off circa 1916 it's actually in 1917 that racial zoning gets struck down by the Supreme Court in a case called Buchanan versus Worley this case invalidated Louisville Kentucky's ordinance it was exactly like Baltimore's so prohibited essentially The Tipping of blocks creative lawyering was this and the book notes this quickly but I want to make sure you hear it so this was a due process claim based on the deprivation of the white owners right to sell his property it was sort of a setup so in 1915 Worley has a prospective black buyer he makes an offer to Buchanan for his property in a predominantly white neighborhood Buchanan appears to have been sympathetic to civil rights causes and so he accepts the offer but Worley says he can't complete the transaction because it would force him to violate the law so Buchanan sues Worley to force Worley to complete the purchase but really they were kind of on the same side and Buchanan notes that the racial ordinance is depriving him of his right to sell or lease the property so violates the due process clause indeed according to one scholar actually Justice Holmes would have thrown the case out because he's viewed it as manufactured not really a real case about the issue but he ended up shredding a draft that would have found as much insides what the majority says that racial zoning is unconstitutional violates the due process clause after this decision in Buchanan zoning ordinances for the most part no longer explicitly require segregations they're not drafted explicitly like this but there are other ways that segregation is maintained so we've encountered one of them already right so private racially restrictive covenants Shelley versus Kramer until Shelley versus Kramer between 1917 and 1948 those are really effective and they even persist as we noted after that although they're not enforceable as a signaling mechanism and in addition to private covenants modern land use controls sort of indirectly perpetuate segregation this becomes very effective as race and class dynamics overlap so if you require giant Lots with particular types of housing on them you can functionally price lower income individuals out of a neighborhood and so this as again recent class dynamics overlap perpetuates segregated patterns one thing that's interesting is that this purpose I don't think was distant from the lower courts mind in Euclid so this is a long wall of text but the important part is in bold so this is the the lower court opinion in Luke in Euclid where the court says the result to be accomplished by zoning is to classify the population and segregate them according to their income and situation in life so they view zoning as segregation just a way of perpetuating segregation and it as being problematic for that reason and so I think again what's interesting we've put up all these reasons why zoning is legitimate but the lower court sort of recognized them as well and just thought that the nefarious ones outweighed the potentially positive ones I call this mixed motives and zoning so zoning is having had mixed motives basically since its outset so there are lots of things again on the list that you generated that I think is you know sort of valid zoning purposes right fire safety probably want localities to regulate to prevent the drastic costs of fires might be worried about traffic we might actually be worried about traffic accidents even though maybe the language about children at play being sort of moaned down by model T's is a little bit overblown but the stuff about class more negative right so I think the mix of motives is there even in that paragraph in Euclid which is why I like to have you do that exercise they said this mix of motives still present in zoning and definitely present across its history I like this again these sorts of newspaper ads about zoning this one comes from Houston in the 1940s you can't really read it but here are some of the things that says in the middle there where it's addressing sort of why you should vote for zoning if you're any of these types of people says mrs. housewife keep honky-tonks away from your home your church and the school your children attend hockey talks are bars although i liked to imagine they were like musicians that were out of control but no they're in fact bars so keep bars away from your kids mothers protect your children against blighted slum areas that destroy both character and health so again even in that sentence character growing up near low-income people and will cause you to lose some character but then also the legitimate purpose health right mister homeowner your home is your most important investment protect its value which again has an implicitly exclusionary purpose again mix of Moto's president not just through the 40s but also today and the reasons why particular land uses are undesirable so you may have heard this term before NIMBY right not in my backyard it's a term for people who you know a spouse sort of egalitarian values but then are like oh I want more housing just not next door to me not in my backyard and so it can be difficult to distinguish legitimate concerns so I'm worried about traffic I'm worried about sort of the capacity of the streets to handle more people from prejudices which is that I'm worried the apartment building is going to change the character of my neighborhood in some way that I don't like we're going to talk a lot more about zoning policy and exclusionary zoning next class but just a brief note on Euclid before we move on so the test room Euclid is a new test for constitutionality so does a zoning ordinance substantially advance a legitimate public purpose so does it advance health safety general welfare purposes seems like being able to claim things like safety you're in good good spot one that raises difficult questions is actually aesthetics so whether zoning for appearance is legitimate seems like usually yes although it's much stronger if you can claim both an aesthetic purpose like we want to preserve a community's appearance and a more traditional police power justification like safety so that's one that often raises questions questions on Euclid or zoning generally Carter yes you can try to tie to economic value exactly although you're again safer when you're talking about the best police power purpose from a courts perspective is health and safety no question so even sort of yeah more sort of property value protection is your shakey er ground I think health and safety if you can tie it to traffic fire risk anything like that that looks like real traditional police power concern anything else all right exceptional so now I want to talk about conservation easements for a second helpful sign here indicating the existence of a conservation easement and I just want to walk through some basics we'll probably end up talking a bit more about this next class so conservation easements are kind of odd they're a little bit of a hybrid between the sort of contractual land use restrictions we've seen and sort of full-blown regulatory instruments because they couldn't emerge from the common law the common law wouldn't recognize these kinds of things because they were sort of engross right they're assigned to a particular person as opposed to being attached to land at least of the beneficiary and so there are agreements they're legally binding agreements between a property owner and typically either a nonprofit organization like a land trust or a government agency and these are agreements that restrict development on land covered by the easement the property owner who donates the easement predictably called the grantor they retain ownership of the property but they relinquish their rights to develop it any further or in ways that are inconsistent with the easement as drafted the organization that receives or buys the easement is called the grantee again pretty predictable they just hold on to that interest in the property and they're usually the ones who are enforcing it so monitoring the property to make sure that the landowner remains in compliance primarily for tax reasons these easements are donated in perpetuity so they are forever can't be time limited and that's again for tax reasons as I mentioned there are a bit hybrid so there is like an underlying contract that applies but these programs have to be enabled by state law so there's state law that will set out things like who can hold an easement what sorts of organizations are qualified local governments nonprofits etc there is now enabling legislation in all 50 states for these particularly since the 80s the number of land Trust's and also the acres of land held under easements has really just exploded so land Trust's control about 37 million acres of land throughout the US large land Trust's like the Nature Conservancy account for most of this and state and local governments also hold a lot of these easements so I think about 6.2 million acres at last count so a lot of land is held under conservation easements they're prolific proliferating rather fast so even since 2000 the amount has tripled at least with respect to the amount of holdings by local governments so they're growing quickly so why we put land under easements I'll talk about this from the grandtourist perspective and then from the grantees perspective so pretty clearly tax incentives right so this can be sometimes income tax incentives sometimes estate tax associated with inheritance sometimes you get estate tax benefits sometimes property tax benefits so texts benefits the main reason the grantor will give these easements and from the grantees perspective there are a variety of reasons why grantees want easements so this is better than nothing right this is a way of preserving the land on a sort of volunteer basis in the absence of regulation and as a result of that it might be sort of more politically expedient so imagine you have the option to either engage in an easement program or to just prevent people from building probably going to be more politically palatable to create a voluntary easement program than to just tell people they can't build talk about kind of pros and cons of these things as well so these myths are pretty cost effective right the Grand Tour typically gets a tax benefit but sometimes it doesn't require an outright purchase so if you have limited conservation dollars sort of an easement is a way to extend those dollars by sort of reserving your funds for purchasing outright purchasing land and you just sort of accept easements as a way of doing doing the sorts of preservation these also are particularly useful for preserving farming and ranching uses so can preserve land use that's kind of under threat at the border of development and one of the reasons it's appealing in a lot of places again politically is that small family farmers and ranchers can take advantage of easements to kind of protect those entities against encroaching development can also be used to control sprawl alright so this is the idea that especially in the West cities have just expanded at a pretty unsustainable rate out from their centers you can use easements to sort of constrain to create a boundary between a city and the surrounding countryside cons of easements we'll talk about some of those so the terms of easements again these are agreements so each agreement will vary but the terms of easements can seem kind of arbitrary or difficult to enforce I teach a case in land use about an easement that would not permit a swimming pool but would it allow them to sort of create a man-made lake in the middle of their property and so the terms of that easement whether that was kind of a reasonable way to draw the lines very kind of unclear can seem kind of arbitrary their perpetual nature is probably the biggest con to the easement so we've talked a lot in property about how we generally favor a disfavor rather debt hand control right people sort of restricting their property and this absolutely permanently restricts property there in perpetuity in fact they are quite challenging to terminate so state law may restrict who can have them or their transfer and also judges often can only change them if sort of impossibility is a factor so it's really difficult to even amend an easement and less sort of there's an impossibility associated with it or a local government has to condemn it and actually pay for it they're very difficult to terminate to change to transfer again sort of dead hand control writ large I'll talk about this more in a second but enforcement of these can sometimes also seem draconian so the grantee is the person who has to make sure that landowner is actually not developing or is complying with the terms of the easement and this can be kind of invasive for a landowner depending on how aggressive the group is kind of enforcing them we'll talk about a real example of that in a second how we were surrounded in a place here in central Virginia where there are a lot of conservation easements so Albemarle County has an easement program that some of you may be familiar with they're also controversies associated with them so one I'll mention close to here and then one a bit farther away and then I'm trying to think but I think we might have time to show a little clip associated with the second controversy so first the Trump winery area Trump Golf Course is a proposed use here near the Trump winery that would violate the terms of the conservation easement and so again you have people trying to work around this easement to amend it it's very difficult and here I believe the Virginia outdoors foundation is a group that actually holds the easement and doesn't view a golf course is sort of consistent with that original easement so there's often controversies about golf courses about these wide open spaces wineries farm uses and sort of what's permitted how many people can come onto the property so this is one that I think is going this is what I may show you a clip of it's the Martha Benita situations this happened in Northern Virginia but here's kind of the facts that gave rise to it I think actually it's Boneta I always want to say Benita but Martha Boneta so she owned a farm up near DC closer to DC in the village of Paris Virginia and it was part of a farm surrounding kind of historic house a lot of open space and so the land was sold by actually her predecessor an easement on the land was sold with pretty protective terms so it allowed very few changes to the exterior appearance of the farm it allowed one apartment in a barn complex but no more it allowed also strict limits or rather put strict limits on the number of people who could visit the property each day so that is maybe sort of a more unconventional easement term than you might think of but as a result the property was sold to well below market price so we've talked before about how sometimes it seems that that some of these restrictions are capitalized into property value so the idea was while Martha paid less for the property as a result of restrictions on the number of people that she could have visit as well as all these other things about exterior appearance and the sorts of uses she could have but what ended up happening was that Martha got fined about $5,000 a day after someone saw a picture on facebook of a birthday party a child's birthday party where they were violating the terms of the number of people that could be on the property and so there was a birthday celebration on her farm and as I mentioned maybe draconian enforcement so I will now show you I guess a couple minutes of this because we have a little time so we'll watch just the first 12 minutes so this goes on for a while again it documents also this birthday party which again the the PUC was notified about through Facebook has a violation of the terms but also as you can see they're very worried about residential use of course P EC as I mentioned this has perspective right sort of the people they found have a particular perspective and view on the situation P EC for their part has their own view which is that they had some reason to believe there might have been residential uses they also mentioned again that what I said earlier that this was capitalized into the purchase price right so she paid a lower price for the property as a result of all these restrictions and so even though it does seem draconian you could have been aware based on the fact the document was publicly filed available before your purchase of the property what's interesting about the Boneta situation again raises an institutional capacity argument because after this film after Martha got a bunch of publicity from it and from this dispute with Piedmont the Boneta bill was actually put forward so this is a piece of legislation that prevents local regulation of some our agricultural operations and specifically farm sales Agri tourism activities as well and so when we think about sort of how how to control land uses even though this seems like a private sort of partially private way that people agree on land use conservation easements as a whole turns out that even there we're seeing a lot of legislation that is meant to sort of constrain the application of them and their terms when it comes to particular uses like farming as I mentioned these sorts of easements are really proliferating and so I think this is an issue for your lifetime as attorneys so we might think again that their perpetual nature is a good thing that you know preserving open space is important that controlling urban growth preventing sprawl is important but they are really difficult to terminate and as more and more of them get put into place I think that we're going to start to see development come into head-to-head conflict with them again they can be terminated through condemnation but or sort of changed circumstances impossible but it is pretty difficult to modify them do we have any questions on conservation easements we'll talk a bit more about them on next Monday but pression yeah so I think that's kind of built into the idea that this is a bargain which is that that groups like land Trust's will only seek to get easements that are actually beneficial or that do pose some sort of development risk so there's no sort of affirmative requirement but it's kind of built into the bargain right oh sorry question you call up yeah yeah so another problem that these pose that I didn't mention is valuation so valuation sort of like how we should view the extent of the tax break and that's really difficult to calculate right and it can be really difficult to calculate particularly for luxury uses like golf courses worth sort of like well obviously this is valuable maybe it could be developed but it probably wouldn't be because probably it's there because a lot of folks want it and so should you be able to get these huge million-dollar tax deductions for putting an easement on your golf course again we hope that built into the process you know that the folks like the Nature Conservancy are only going to take easements on golf courses if there really is some sort of development risk but the valuation issue is a huge one Ryan do you still have a question or was that similar Yeah right so not no explicit restriction but we hope the bargain takes care of it Jesse is the guy he got the tax break and we think that she's benefited by paying a lower price exactly so he got that the sort of lost value of the property in kind other questions irena yeah right yeah that's interesting so it usually is phrases like qualified local government organization or qualified land trust and whether there's restrictions on sort of what counts as the Land Trust is an interesting point I mean I think of things that count as land Trust's often fail to enforce so I had a student a few years ago who wrote a paper about whether sort of Connecticut land trusts were actually monitoring what was going on with their easements and found some disturbing things like oh there wasn't supposed to be a building and now there's a five-story apartment building there so something must have happened along the way and at that point you know if you ask a court to enforce it they might say something like well it's impossible to enforce because they've invested this much money in it it's kind of the ship has sailed so I don't think we've yet seen that sort of thing where a land Trust's are formed for like nefarious purposes but we definitely see land trust on the spectrum from very trustworthy and good at enforcing two very sort of lacks about enforcement which is another reason that sort of their efficacy and preservation is questionable another thing I should mention is that one of the other problems your book notes this that has come up with conservation easements is that they're patchwork right so again is we're thinking about them as an alternative to regulation these are sort of going to lead to a patchwork of protection that may not sort of comprehensively protect for example the land along a river or something like that so their patchwork nature is another part of this part of this calculation about whether they're on the whole good or not Bava right this is definitely a huge sort of the Democratic perception is a huge another big critique of these sorts of things so again particularly when it's a Land Trust so when it's a local government we might think that at least indirectly we elect our local government officials we hope that they're representing us in the easements that they're receiving but when it's a Nature Conservancy we haven't had any say over whether they're going to take an easement from the golf course so this is the mean I would say sort of more left critique of conservation easements is that in fact they don't enable sort of Democratic participation about what gets preserved and they're sort of not transparent about who gets negotiated with or what the terms are and that they're problematic for this reason any other questions Carter Oh interesting so I don't know that they go into that fine-grained of detail but even in like the Boneta easement you saw that there was like no apartments so they can kind of start to get at some real use based restrictions rather than kind of broad you know no development they can talk about the number of people on property they can talk about you know what sorts of uses are permitted how many residents you can have how many structures I don't know that I've seen resource specific ones like the one that you mentioned about sort of the amount of deforestation you could do but one could imagine it I mean in that sense they are kind of private agreements so depend on the terms of the enabling statute and whether that would kind of be within the scope of what you know schools could be negotiated over any other questions great all right so a few takeaways today first conservation easements these as I mentioned are a problem for your lifetime as attorneys there are a lot of them we might think about whether they're good or bad on balance you might like them because they're voluntary right they accomplish good aims they enable preservation but they're really difficult to terminate there may not be democratically participatory there may be valuation issues and so just kind of thinking about these well I think serve you well second we talked about Euclid the beginning so Euclid is the case very important it up holds the constitutionality of zoning and sets the stage for modern urban development zoning ordinances are permissible if they substantially advance a legitimate public purpose ie health safety morals is in their general welfare morals it's sort of the most questionable one we've sort of moved toward aesthetics from morals so health safety and general welfare being the big three as I mentioned as well Euclid sets the stage for a lot of the key conflicts in land use and property law so there's a lot of mixed motives in that decision and in land use and property regulation generally we also talked about nuisance law being a role or having a role here right and making zoning seem less radical than it might have been in this history of zoning foreshadows it's later problems so that's what we'll turn to on Monday we'll talk about zoning policy again and we'll also talk about exclusionary zoning and some more modern rulings that have tried to remedy some of the exclusionary potential some of the exclusionary potential of Zoning itself that is it for today I'll see you next week

Channel: University of Virginia School of Law

Views: 10,654

Rating: 4.8809524 out of 5

Keywords: UVA, Law Schol, UVA Law, Law Class, Inside The Classroom, Molly Brady, Law School classes, University of Virginia

Id: -Z15ocYXtzA

Length: 61min 55sec (3715 seconds)

Published: Thu Apr 12 2018