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.




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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





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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.



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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.




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One man’s quest to save California’s coast

An article about California’s coast that caught my eye recently turned out to be a remembrance of Peter Douglas, who was responsible for writing and helping pass the measure that created the California Coastal Commission and then served as its executive director for 25 years. I did not know Mr. Douglas personally, and I am not going to recite his accomplishments on behalf of that spectacular coast; but I will share my personal memories of it.

I grew up in northern New York as far from sunny beaches as one could be. Never a strong swimmer and with fair skin that burned from even short exposure to the sun, when I moved to Los Angeles in 1982 it was not for the siren song of Malibu beach! But like many before me I soon found myself making a regular trek to the coast. Los Angeles seemed to have no end to it or at least not one that didn’t require a couple of hours of driving. From my west LA apartment a 45 minute Sunday morning drive not only got me to the beach but well up the coast to what became my favorite haunt – Westward Beach in Malibu. Adjacent to the better known Zuma Beach, what attracted me to it was its relative isolation and solitude. I would arrive early – always before eight – and leave early as well just as the crowds were starting to build. I was usually covered from head to toe in clothing for sun protection and rarely did more than dip a toe in the water. Nonetheless the beach became for me my retreat from the city and something I looked forward to all week long.

As I read about Mr. Douglas’ advocacy on behalf of the public’s right to access and enjoy California’s coastline, I thought about those Sunday mornings and was grateful for his efforts and those of so many other who recognized the incomparable gift that the state’s coast is. It became a bit of a game over the years as I traveled the coast to spot the coastal access signs that were result of the Commission’s work (and all too often in the face of dogged opposition by the privileged and wealthy who are fortunate enough to own a piece of that coast and somehow feel that their enjoyment of it will be lost if it must be shared with the public). I can think of no better memorial to Mr. Douglas than to insure those signs remain forever and grow in numbers over the years.

California coastal access


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Regulatory takings – and givings

One of the favorite targets of those who are concerned with protecting private property rights is so-call regulatory takings. In Lucas v. South Carolina Costal Council, 505 U.S. 1003 (1992), the U.S. Supreme Court held that a land use regulation which eliminates all economically beneficial uses of a parcel constitutes a taking and just compensation must be paid to the landowner by the jurisdiction that enacted the regulation.

Lots that were the subject of the Lucas case

For property rights advocates the Court did not go far enough; so they have resorted to legislative efforts in numerous states. Some of the more noteworthy measures include those in Oregon, Florida, Arizona, and Texas have enacted measures either legislatively or by referendum that require compensation be paid when a regulation reduces the value of a parcel of property by a state amount (e.g., 25% diminution in Texas). There is a wealth of literature about the effectiveness of these measures, their impact on land use regulation and the lawsuits they have spawned.

Most recently this issues has been raised in Maine where the legislature is wrestling with a proposed regulatory takings bill that would required compensation when 50% or more of a parcel’s value is lost due to regulation.

Delving into all of that is not the purpose of this post. I simply want to ask if landowners should be compensated when a land use regulation diminishes the value of their property, should the state or local jurisdiction be compensated by landowners when they increase zoning densities or construct infrastructure at public cost that increases the value of a private party’s property?

The truth of the matter is that in its natural state the value of most land is attributable to one’s ability to raise crops, harvest timber, harness water power, and extract minerals. In order to make use of land for anything other than extremely low density residential development requires a combination of infrastructure that is usually publicly funded (e.g., roads, sewer, storm water, water, electricity, telecommunications, schools) and regulations that bestow the right to make use of this infrastructure for various land uses and at various densities. All of this focus on how land use regulation may reduce the value (though not render it without economic value) of individual parcels of land loses sight of the forest for the trees as it ignores the fact that much of the value that remains is in fact the result of public investment and public regulation.

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Is Agenda 21 really evil?

For those of you who wonder what happened as a result of the U.N.’s Earth Summit in Rio in 1992, Tea Parties will tell you that it launched a global conspiracy against property rights in the form of Agenda 21, a set of policy and program recommendations for national and regional governments to implement to protect the environmental and promote sustainable development. Like all too many well meaning U.N. documents, this one has been largely ignored in the ensuing years though sustainable development remains a favorite approach of planners and environmental advocates around the world.

Michael Shaw is one of those credited with first raising the alarm about Agenda 21 back in the 1990s. More recently the Tea Party has latched on to this issue and has been making appearances at zoning and land use hearings around the country (see examples in TennesseeVirginia and Florida) and to warn of the insidious affect of Agenda 21. Specifically, Tea Party members see a link between Agenda 21 and local actions regarding bike paths, public transit, zoning, conservation easements and smart growth as steps towards undermining private property rights.

The Arizona Legislature, which can always be counted on to be in the forefront on matters like this, has introduced a billthat would prohibit state and local governments from implementing “the creed, doctrine, principles or any tenet” of Agenda 21. One wonders what would be left of land use and environmental planning and regulation in Arizona if this bill were to pass.

This might seem like a tempest in a teapot if you will but recently the Republican National Committee at its 2012 winter meeting adopted a resolution condemning Agenda 21. This resolution will be offered as part of the Republican Party’s platform at its upcoming convention. You ought to take a moment to read it in its entirety but the following passage will give you an idea of the underlying sentiment:

“WHEREAS, this United Nations Agenda 21 plan of radical so-called “sustainable development” views the American way of life of private property ownership, single family homes, private car ownership and individual travel choices, and privately owned farms; all as destructive to the environment . . .”

It’s difficult to know where to begin commenting on something like this. I think it is fair to say this is another reflection of the deep divide there is in this country on a broad spectrum of fundamental issues. As is the case with many of these issues, those in the Tea Party and an increasingly large portion of the GOP would like to return to an earlier, simpler era such as the 1950s. In the case of land use regulation this means ignoring all we have learned about the nature of ecosystems and their relationship to human health and well being. Yet there is a clear track record throughout U.S. history that property rights have been a malleable concept that have adapted to new scientific and technical knowledge in areas such as hydrology, oil and gas geology, air travel, and telecommunications. If it had not, airlines would have been required to purchase air rights easements from each landowner over whose property a plane flew.

The nature of property was at the heart of this country’s founding (though not necessarily in the way popularly imagined) and has been at the foundation of our two greatest failings as a nation – the unwillingness to recognize the very different property regimes of Native Americans and the institution of slavery. It should be no surprise that we continue to struggle as a society with the property balance to strike between individual and collective property rights.

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Where the buffalo roam

An interesting land use and property rights dispute has arisen in Montana where the state began “allowing” bison to roam beyond the boundaries of Yellowstone National Park. State officials argue that bison are “free roaming animals that the state manages but cannot not control”. This is, of course, the case for other types of wildlife including deer, elk, bears and the like. The Montana Farm Bureau Federation is adamantly opposed to this new policy and has intervened in a case initially filed by Park County. The MFBF’s position is that bison are more akin to cattle than to deer or elk. They consider free roaming bison to be a threat to the property rights of their members.

Further complicating the politics of this issue is that one of the primary objectives of the new policy is to allow tribes in Montana to reestablish free roaming herds of bison on reservation land.

Traditionally wildlife in the United States is considered to be “owned” by all of us and held in trust by state and federal governments for their citizens. So what we have here is actually a collision of property rights – those of the private landowners on whose land the bison are roaming and those of the rest of us who have a collective ownership interest in the bison. Oftentimes these sorts of disputes are inaccurately described as an effort by government to regulate the exercise of private property rights.

As we have come to better understand the complexity and interrelatedness of ecosystems and the importance of them to human health and well being, these disputes are become more common. Those who support protection of public trust resources must be careful not to allow private property advocates to frame the debate as whether government has overstepped its regulatory bounds. Instead they must insist that the disputes be analyzed and resolved as conflicts between two sets of property rights.



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Development and conservation easements

After a seven year struggle, the Supreme Judicial Court of Maine has paved the way for Plum Creek which calls itself the largest and most geographically diverse private landowner in the nation to proceed with a rezoning of 400,000 acres of Northern Forest land. Ultimately 16,000 of those acres will be developed for 975 residential lots and two large resorts.

A variety of environmental groups found themselves on both sides of this battle depending on whether or not they were purchasing conservation easements from Plum Creek. The Nature Conservancy and The Appalachian Mountain Club purchased conservation easements over 307,500 acres in order to complete a 2 million acre “preserved” corridor that is the size of Yellowstone National Park.

Despite this, other environmental groups including the National Resources Council of Maine, RESTORE: The North Woods, and the Forest Ecology Network waged a lengthy and costly campaign against the project.

One wonders if conservation easements have eroded the public’s right to strictly regulate development on wild lands. Is it realistic to think that Plum Creek or any other landowner would be able to develop large portions of this land? Could a similar outcome have been achieved with an exclusively regulatory approach? By being willing to pay private landowners to preserve their land, are environmental groups establishing an expectation that similarly situated landowners are entitled to be paid if the public wishes to limit or even prohibit development of wild lands?

Note: You can access a full copy of the Court’s opinion at

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