Fracking, home rule and sports related development all rolled into one

In 2010 the City of Pittsburgh became the first municipality to ban fracking within its city limits. Gas companies had acquired subsurface mineral rights and had been poised to begin drilling throughout the city including under parks and cemeteries. The ordinance, which was drafted by the Community Environmental Legal Defense Fund (CELDF), takes the somewhat novel approach of enacting a bill of rights not only for the residents of Pittsburgh but also for “natural communities and ecosystems”. It goes beyond even that by stripping corporations of their “personhood” status under the Pennsylvania and U.S. Constitutions. The ordinance, which was passed unanimously, became effective despite the mayor’s refusal to sign the measure. It is worth nothing that Pittsburgh sits at the epicenter of the Marcellus Shale gas drilling frenzy.

Two years later numerous communities have enacted tracking bans though in most cases by way of zoning actions not the kind of rights-based ordinance that Pittsburgh and a few other communities have enacted. Recently the Pennsylvania Legislature adopted Act 13 which strips local governments of the authority to regulate or prohibit any gas drilling or related activities through zoning. This legislation was aimed at overturning a 2009 Pennsylvania Supreme Court opinion which held that local zoning could regulate gas drilling and such efforts were not in conflict with the state’s oil and gas laws.

Seven Pennsylvania municipalities have filed action to overturn the law, and Pittsburgh’s City Council has voted unanimously to support that legal challenge. A lower court has already issued a preliminary injunction delaying the implementation of Act 13 and at least for the moment leaving in place local fracking bans.

Back in Pittsburgh some developers are raising concerns about the possible impact of that city’s ban on downtown office development. The concern is that major energy and gas drilling companies will be reluctant to lease office space in a city that officially opposes their core business. Apparently, the mayor has tried to no avail to get the City Council to reconsider its ban. The Penguins’ 3 million square foot mixed-use project is one of those  that is potentially affected.

Since the Marcellus Shale formation does not extend into Vermont, I was only dimly aware of the controversy swirling around fracking in states to our west. However, since starting to follow the coverage of the issue, it is clear to me this is a matter of great significance not only in terms of exploiting a new, domestic source of energy but in terms of environmental protection and local versus state land use regulation.




Moosehead Lake conservation easement – who wins?

After years of negotiations, the Plum Creek timber company, The Nature Conservancy and the Forest Society of Maine announced the completion of a $30 million transaction that will create a 363,000 acre conservation easement aimed at protecting the area surrounding Moosehead Lake. The easement will allow continued logging operations and should provide a boon to the local tourism-based economy. The easement represents about 40% of Plum Creek’s holding in the area.

Moosehead Lake conservation easement and Plum Creek development

Concerns remain about the massive development project that Plum Creek won approval for several years ago after a lengthy regulatory process and court battle. That project rezoned nearly 17,000 acres for development including 821 residential units and two resorts with over 1200 rooms.

A local realtor points out that with land prices falling by up to 70% during the Great Recession development is likely years away as infrastructure costs cannot be recouped at current land value levels.

Among the benefits the Forest Society of Maine lists:

  • About 12% of the conserved lands will be managed as ecological reserves
  • The remainder (more than 365,000 acres) will be managed under third party-certification for a sustainable harvest of forest products to the benefit of the state and local economies
  • The newly conserved lands connect to already-conserved properties including 20 existing state parks, resulting in a network of conserved lands totaling nearly 2.25 million acres – three times the size of Rhode Island.

Moosehead Lake, Maine

This does appear on the surface at least to be a “win” for the public though one wonder whether Plum Creek would have been able to secure approvals for any development beyond that it had already obtained. I am curious why Plum Creek and the environmental groups did not negotiate the conservation easement concurrently with the development approval process. That would presumably have given the environmental groups more leverage in the negotiations. With the easement now in hand, will the Forest Society of Maine and The Nature Conservancy feel obligated to support Plum Creek’s future development efforts when the time comes for permitting specific projects?

When a conservation easement may not be enough

Five years ago The Nature Conservancy purchased 161,000 acres of land in the Adirondack Park. Subsequently New York State acquired conservation easements that will protect 92,000 of those acres but allow continued commercial logging. Another 65,000 acres is slated to be purchased by the state and added to the Park which is protected by the “forever wild” article in the state’s constitution and would preclude any commercial logging.

The final step in this complex preservation transaction is now being challenged by an on-line petition that urges the state to use a conservation easement rather than a fee purchase. From a preservation standpoint this would mean the lands would remain in private ownership and could be used for commercial logging and various hunting and fishing camps would not be displaced. The petition alleges that the cost of acquiring a conservation easement would be $18 million with no ongoing costs as opposed to a first year cost of $60 million and a total cost of $400 million over ten years taking into account lost taxes, management expenses and lost opportunity costs.

The petition is supported by the Local Government Review Board and the Adirondack Association of Towns and Villages. One argument that proponents of the petition make is that “forever wild” status could make dealing with invasive species more difficult if not impossible and put the private forest lands at risk as well.


Boreas Ponds

The tension between those living in the park and relying on its lands to make a living and those who seek to have it protected and preserved is a longstanding challenge to those responsible for making and implementing environmental and economic development policy in the state. The Adirondack Park is the largest park in the lower 48 states and is unique in having 130,000 permanent residents living within its boundaries. In many ways it is an ongoing experiment in what it means for humans to live in a fragile ecosystem on a sustainable basis.



Zoning and obesity – an American view

Over the past decade, academics and public health policymakers have begun to make the case for the connection between zoning and obesity. In 2003, three professors at the Georgetown University Law Center argued that many of public health’s greatest advances in the 19th century (e.g., public water and sewerage systems, building codes and the separation of noxious uses from residential neighborhoods) depended on changes in the built environment. But in the 20th century zoning has propelled a separation of uses and an almost complete reliance on the automobile to move people to wherever they need to go. This, in turn, has resulted in a sedentary lifestyle that is increasingly seen as a major contributing factor in the chronic ills (e.g., coronary disease, Type 2 diabetes, stroke, obesity) that are our most serious pubic health issue.

Another front in this debate is the so-called food deserts – areas where healthy, affordable food is difficult to obtain. Many poorer inner city neighborhoods have no chain supermarkets where the greatest variety of foods and lowest prices can be found. The same phenomenon can be found in isolated rural areas of the country. The USDA has even created a food desert locator website though some recent studies have called into question this thesis.

The respected Institute of Medicine, an arm of the National Academy of Sciences, just released a report entitled “Accelerating Progress in Obesity Prevention: Solving the Weight of the Nation”. The report outlines a comprehensive strategic plan to combat the underlying conditions that have given rise to the epidemic of obesity in the nation. One of the recommendations that has caught the media’s eye is to limit zoning for fast-food restaurants. The report identifies three features of the built environment that influence public health and specifically obesity: (i) transportation infrastructure, (ii) land use patterns, and (iii) urban design. Some of the policies that the report suggests local communities consider include:

  • Landscaping and lighting to improve the appearance and safety of pedestrian corridors;
  • Tax incentives to developers include sidewalks and trails;
  • Requiring pedestrian access to all uses;
  • Encouraging bicycling for recreation and commuting;
  • Increase proximity of residential areas to workplace and shopping so trips can be made on foot or by bicycle; and
  • Making school athletic facilities available to the public at large after school hours.
The report’s authors note that changes in the built environment take many years to get to the point where they will make a measurable difference in public health.
I’ll end with a recent local incident that highlights the collision between local zoning and our more recent interest in public health which includes not only exercise but also nutrition. Two years ago a Burlington, VT, couple built a homemade hoop-style greenhouse on their front to extend the growing season for their vegetable garden. All was well until a neighbor complained and now they have been cited because the hoop houses are a “stable structure” and the raised beds constitute a “retaining wall”. One of the enthusiastic gardeners responded, ”This is Vermont, for goodness sake . . . We’re all about sustainable living.”

Front yard green houses





The Green House Project

One of my current quests is to get a better handle on the looming senior housing crisis and, in particular, whether there is a better way to address the needs of elders who are currently housed in traditional nursing homes. During the course of my research I came across the Green House Project. Dr. William Thomas founded the movement which espouses a philosophy of providing small homes (no more than 12 residents), providing privacy with single rooms each with their own bath, and offering care that recognizes the individuality, autonomy and dignity of each resident.

I had the opportunity this past week to attend a two day workshop offered by NCB Capital Impact, which manages the Green House Project nationally. The workshop was held at the Lebanon Valley Brethren Home in Palmyra, Pennsylvania, where there are four operating Green Houses.

Green Houses, Palmyra, PA

The strategy is to combine an authentically residential rather than institutional design approach along with a fundamental refocusing of care from one in which the provider is at the center to one in which the elders are center stage. Designs must include a great room incorporating a communal dining table, a working fireplace, and an open kitchen where all meals are prepared.

Green House great room

Individual bedrooms each with their own bath are clustered around this great room.

Floor plan for Sheridan, WY, Green House

Perhaps even more striking is the way in which staffing is organized. Certified nursing assistants are called Shahbazim and are responsible not only for primary care of the residents but also perform all housekeeping and cooking duties. The combination of the small scale and these “jack of all trade” caregivers lead to extremely close relationships being developed between the elders and Shahbazim.

I have to admit that I was skeptical most nursing home patients would benefit from the Green House setting but based on the research done to date and the time I spent in an operating Green House visiting with residents and staff left me convinced that even the most compromised elder does indeed experience a significant improvement in his or her quality of life in this kind of home setting.

From a developer’s or operator’s standpoint, it is heartening to learn that operating costs for a Green House are almost identical to those for a traditional nursing home.

After a serious stroke, my mother spent the last several years of her life in a traditional nursing home. While it was a well run facility, my mother never felt comfortable there often complaining about the lack of privacy. Throughout the two day workshop, I kept wishing that Green Houses had appeared in time for my mother.

Visible impacts

I should start out by saying that while I have never lived near an array of wind turbines, I find their slowly rotating blades to be almost mesmerizing and not a blot on the landscape. I will admit that most of my experience with them comes from cross-country drives and seeing them spread across grazing lands in the Great Plains and farm fields in the Midwest. I understand that many find these wind farms objectionable on various grounds including aesthetic ones.

The Maine Land Use Regulation Commission recently unanimously denied a development permit for First Wind’s Bowers Mountain project. The project would have consisted of 27 wind turbines with a maximum height of 428 feet. They would have been located i along the Penobscot-Washington County line in an area that includes nine lakes - Pleasant, Shaw, Duck, Junior, Scraggly, Keg, Bottle, Sysladobsis and Pug.

The decision hinged on the project’s visual impact and its potential impact on the hunting, fishing and guide business that comprises much of the local economy. The commission appeared to rely heavily on testimony of those who worked in the tourism industry and their beliefs that the presence of an array of wind turbines would drive visitors away from the rural, pristine area.

Stetson Mountain, Maine

Since First Wind has already stated that it plans to resubmit a scaled down version of the project, we have almost certainly not hear the last of this particular fight. While I understand the need to consider the visual impact of such projects, I can’t help but wonder if we put too much weight on the visual impacts of projects in our immediate vicinity and too little weight on invisible impacts (i.e., the release of pollutants into the air and water) that nonetheless have a profound impact on the environment and human health.



A landowner’s right to frack

Since beginning this forum several months ago, one of the biggest surprises to me is the extent of the controversy over tapping into the Marcellus shale formations for trapped natural gas. The land rush to acquire drilling rights and the ensuing energy boom throughout much of the northern Appalachian region has generated concerns in the environmental community regarding the impact of tracking on water supplies and air quality. Approximately 25,000 wells are being cracked annually and 4 million gallons of fluid were injected under pressure into each of those wells.

Hydraulic fracturing

Regulators have been caught off-guard by the explosion of activity in this area and have sought to play catch up for the past several years.

EPA has just issued the first regulations regarding air pollution emissions at fracking sites. However, the agency is prevented from addressing the more serious concerns about fracking’s impact on water because in 2005 Congress at the urging of Vice President Cheney exempted gas drilling from the Clean Water Act.

Some 200 local governments have stepped into the regulatory void and banned fracking in their jurisdictions. This movement is likely to grow with the recent New York court decision upholding the Town of Dryden’s ban on tracking there. That decision in turn generated a reaction by the Joint Landowners Coalition of New York. The JLCNY’s Declaration of Landowner Rights calls for “a uniform standard for natural gas development” arguing that local bans such as the one in Dryden result in “a confusing legal patchwork that impedes private property rights, hinders progress and limits viable economic opportunity”.

It will be interesting to see how the struggle to manage this latest energy boom plays out among the local, state and federal levels of government. If history is any guide, the gas drilling industry will prefer the certainty and uniformity available only from the federal government.




Are sports facilities more like cars or houses?

This isn’t the first time I’ve discussed the useful life of sports facilities, but three recent articles have caused me to turn my attention in that direction once again. There has been wide ranging speculation about what the new owners of the Los Angeles Dodgers will do to recoup their $2+ billion investment. Some have raised the possibility that naming rights might be sold or that an NFL stadium could be built on the site. The most likely prospect is that the parking lots will be redeveloped for a large scale mixed use project like Mission Rock which was recently announced for a site next to AT&T Park in San Francisco. However, no one has suggested that it is time to replace the 50-year old stadium. In fact, until Frank McCourt’s disastrous reign it was widely considered one of the best stadiums from a fan’s standpoint.

Dodger Stadium

Conversely owners of facilities in Milwaukee and Atlanta that are less than half that age have recently raised the alarm that their buildings are obsolete and must be replaced (the Bradley Center is 24 years old and the Georgia Dome is 20 years old).

This raise the question of whether we ought to be treating our sports facilities like cars to be used up and traded regularly for a new model that has the latest bells and whistles or like a house to be maintained regularly and updated periodically so that it can be enjoyed by generations of owners. Clearly it is possible to do the latter successfully and the cost of doing so is far, far less than the “use up, throw away” philosophy.

We’ve made it easier for teams to get public funding for a new facility than to include funds in their own operating and capital budgets to put off the need for a new facility as long as possible. When teams and municipalities negotiate over the terms of funding a new facility and the use agreement, they rarely spend much time discussing maintenance and capital improvements. Rather than face this issue and the significant cost of it head on, they conspire to ignore it.

I have a simple suggestion that could go a long ways to reversing the trend of shorter and shorter lives for sports facilities. The public sector should insist that the initial funding plan and lease agreement with the primary tenant include a detailed plan for insuring that the facility have a useful life of at least fifty years. While it may appear to add to the cost of the project at the outset, over time it will save the taxpayers of the community many millions of dollars. It would seem that if the host city is willing to “give” a team 50-90% of the cost of a new building, the least the team can do is agree to be responsible for the lion’s share of the cost of treating the building like a house and not a car.

Can land trusts be a force for comprehensive planning?

Traditionally land trusts have operated on an opportunistic rather than strategic basis often acquiring conservation easements on parcels after being approached by the owners of such parcels. The Land Trust Alliance’s 2010 National Land Census found that land trusts who had adopted a strategic conservation plan preserved twice as much acreage as those that did not.

Critics of the land trust movement have pointed out that the acquisition of conservation easements depends in large part on tax incentives – a form of public expenditure. Yet, land trusts do not answer to the public at large or to elected officials and have no obligation to coordinate with public agencies tasked with planning for environmental and open space preservation. So in the absence of a strategic plan, there is a legitimate concern that land trust efforts will not amount to more than the sum of their parts.

An example of a successful strategic approach and one that was spearheaded by the Central Indiana Land Trust but also involved a myriad of other stakeholders is Greening the Crossroads. The plan aims to identify and preserve what it defines as a green infrastructure: “a strategically planned and managed network of natural lands and working landscapes that protects ecosystem functions and conservation values while providing associated benefits to human populations.”

By working with public planning agencies and a wide cross section of interested and affected parties, the land trust increases the likelihood that its efforts will not only preserve individual parcels but will serve to accomplish larger, overriding public policy objectives.


Green Infrastructure Network for Central Indiana


Are courts environmentally uninformed?

The recent Texas Supreme Court opinion dealing with beach erosion has gotten me thinking (again) about whether our courts have kept pace with our vastly increased knowledge of how various ecosystems work and are interrelated and how we continue to depend on them for our very existence. I question whether judges are giving adequate weight to the wealth of scientific knowledge that has appeared since the publication of Rachel Carson’s Silent Spring.

In this particular case, the majority in a sharply divided 5-3 decision tried to make a distinction between a shift in shoreline that occurs gradually (erosion) and one that occurs suddenly (avulsion). In the case of the former, the state’s easement for public access will move with the erosion; but now the court has held the easement will be extinguished in the case of avulsion.

Port Aransas, Texas

Geologists have been quick to point out that there is no bright line between erosion and avulsion (and that the latter is a concept typically used in riverine not coastal situations). James Gibeau, a coastal geologist with the Harte Institute, went even further accusing the justices of being “. . . way out of step with mainstream science”.

The aftermath in this instance is the significant weakening of Texas’ 53-year old Open Beaches Act and the potential for lengthy and costly legal disputes over whether a particular shoreline movement is the result of erosion or avulsion. More troubling, however, is a pattern in judicial decisions in which courts seem reluctant to embrace the most current scientific understanding of our natural world. That failure puts the environment and all of us who depend on it at unnecessary risk.