The recent catastrophic fires in southern California have, again, raised concern about growth in the wildland-urban fringe.

The astute words above are not from September 2020, as wildfires currently ravage across the western United States, but from 2008.  Such remarks reflect the crucial role land use lawyers should have been playing to address what is suitably described as “a home ignition problem, not a fire suppression problem in wind-driven wildfires.”  As the debate over the appropriate solution continues, the opportunity is there for land use lawyers to provide the missing piece to a much-needed solution: how to comprehensively reduce fire risk for housing built at the wildland-housing interface.

Case Study: California’s Chaparral Regions

There is no fire-prone landscape more in need of land use law revisions for housing development at the wildland-housing interface (or exurban fringe) than California’s vast chaparral areas.  The following map, showing the chaparral dominate ecosystems, reveals the magnitude of the challenge:

[1]

The California Chaparral Institute is one of the most vocal advocates for changing fire policy in California to reflect the ecosystem in which housing is placed.  The institute is very vocal that “most of California’s most devastating fires have been far from any forest.”  The most destructive fires occur where the largest number of home buyers want to live: those parts of California with a Mediterranean-type climate with their characteristic mildly wet and mildly cool winters and warm and dry summers.  The problem is that the ecosystems of Mediterranean-type climate zones are highly fire-prone.  The following 2007 map, courtesy of Cal Fire, reveals a striking overlay with the chaparral dominate areas identified in the map above:

The Critical Fire Policy Question

As indicated by the 2008 quote above, the critical fire policy question has been around for some time.  That question is: to what extent is the destruction of housing by wildland fires at the wildland-housing interface a function of land use planning decisions?  Specifically, to what extent is the placement and arrangement of housing relative to the spatial landscape patterns of wildland fire hazards the driving cause of housing destroyed by fire when compared to fuel buildup and a warming climate?

Crafting an effective solution to address the above questions is as much a legal challenge as it is a science challenge.  The absence of land use lawyers in tackling the complex question is undoubtedly a contributing factor to why a solution remains elusive.  However, the lack of land use lawyers at the table is not surprising since the fire policy and fire management debate, especially in the media, has focused primarily on the issue of climate change and the ill-fated fire management policy of fuel suppression.  The buildup of native vegetation fuels due to fire suppression policies, combined with a drier climate, does contribute to the severity of fires in the areas identified and discussed herein.  The point is that such factors are not the underlying cause driving the destructiveness of fires over the past twenty years when the destruction level is calculated based on housing units destroyed.

Non-Legal Works Make Obvious the Need for Land Use Attorney Involvement

The absence of land use lawyers in the discussion is not for the lack of selected non-legal experts raising what are – at the core – land use law questions.  A thorough article addressing the role of land use decisions on the fire impacts was a collaborative effort of ecologists, urban planners, habitat preservation advocates (and from which the opening quote above came).  Titled It’s the Land Use Not the Fuels: Fires and Land Development in Southern California, the authors persuasively articulate how fire in California’s wind-driven chaparral and scrubland terrestrial ecosystems is driven primarily by past land use decisions.[2]  These land use decisions placed too many fire-susceptible housing configurations in highly flammable landscapes.

It’s the Land Use Not the Fuels’ authors argue that the prevailing pattern of land use development at southern California’s the exurban fringe – traditional master-planned communities and large-lot ranchettes that have disproportionately expanded into naturally fire-prone ecosystems to meet housing demand – creates a volatile mix.[3]  The increase in fire severity for communities located at the wildland interface is a reflection of that mix.[4]

Housing Development Designs Need to Fit the Ecosystem in which they are Placed

Taking the research, arguments, and conclusions set forth in It’s the Land Use Not the Fuels and similar articles, I contend that the root of the problem is that housing development designs – a reflection of the underlying land use law – have not fit the ecosystems in which such developments were placed.

The suboptimal fit of development designs is best reflected in the common practice of traditionally built housing communities at southern California’s exurban fringe simply converting large areas of native chaparral and shrublands into significantly more flammable alien vegetation such as alien-dominated grasslands.[5]  Such habitat conversion has broader ecosystem impacts.  Native chaparral and shrubland-based ecosystems – to many peoples’ surprise – are characterized by high biodiversity.  Such ecosystems also serve vital watershed protection and soil erosion preventative functions.  When such ecosystem alternations occur, it then creates a feedback loop that further erodes the ecosystem’s natural fire regulation cycle.

The reality for exurban development in southern California is that large-acreage, fast-moving, high-intensity wildfires have historically been part of southern California’s landscape.  The challenge for public land use decision-makers is developing a strategy to reduce the risk of catastrophic wildland fires in conjunction with the private sector real estate developer community.  The solution lies in crafting and revising land use laws to fit the fire-prone chaparral and shrubland dominate ecosystems where housing at the wildland-housing interface is being developed.  I will layout out the specifics of a proposed solution in a future post.

[1] V. Thomas Parker, Chaparral of California, in ENCYCLOPEDIA OF THE WORLD’S BIOMES 457-472 (Michael Goldstein & Dominick DellaSala, eds., 2019), 1-14 (2019).

[2] Stephanie Pincetl et al., It’s the Land Use Not the Fuels: Fires and Land Development In Southern California, 37 REAL ESTATE REVIEW 1, 25-42 (2008).

[3] Id.

[4] Id.

[5] See generally Jon E. Keeley et al., Alien Plant Dynamics Following Fire in Mediterranean‐Climate California Shrublands, 15(6) ECOLOGICAL APPLICATIONS 1849, 2109-2125 (2005).

Legal advisors to both environmental organizations and land developers must never lose sight of the principle that when dealing with administrative agencies, their client’s run the risk of the regulatory agency’s decision not being the final say.  The risk often arises from the differing ways the application of statutory construction can occur.  Statutory construction is the process of determining what a particular statute means for the purpose of accurately applying the statute to a given situation.  Montana’s long-simmering exempt well dispute is an instructive example that winning an administrative battle over statutory construction does not mean you ultimately win the judicial or legislative battle over those branches ’ construction of the same statute.

Ten years ago, on August 10, 2010, the New York Times ran an article titled Mont. Homebuilders Win Battle in Long-Running Well War.  The land developer’s win arose from Montana’s Department of Natural Resources and Conservation (“DNRC”) declining to close a 1993 administrative rule loophole.  The loophole arose from a statutory exemption to the permitting process revolving around the term “combined appropriation.”  By 2010, land developers were increasingly using the loophole to develop subdivisions without obtaining a DNRC water permit.  Land developers took the position that that single-use wells dug for each new home were not a part of a “combined appropriation.”  As a result, such wells were statutorily exempt from the permitting process; if such single-use wells were deemed part of a combined appropriation, then the statutory exemption would not apply.  The use of the loophole allowed developers to avoid incurring the significant additional infrastructure expenses that followed if single-use exempted wells were not used.  However, the homebuilders 2010 win at the administrative agency level was relatively short-lived; the Montana Supreme Court rejected the land developers’ position in a definitive decision in The Clark Fork Coalition v. Tubbs, 384 Mont. 503, 380 P.3d 771 (Mont. 2016).

Tension Across Multiple Stakeholder Groups: The Origin of Competing Statutory Constructions

Two of the primary constituency groups involved in the exempt well dispute include stakeholders that I frequently contend are more often than not best served by working together to find collaborative, long-term solutions – land developers and environmental advocacy organizations.  However, Montana’s exempt well dispute also involves ranchers and farmers who have experienced lower waterway flows that are believed to be compounded by exempt wells.  Laura Ziemer, then and still the head of Trout Unlimited’s Montana Water Project, aptly characterized the legal source of the battle: “tension between new development and protection of senior water rights.”  The ecological implications of the dispute were plainly illustrated by one Montana state legislator, who operates the same water rights that his great-grandfather claimed in 1865: “a few [of the exempt wells] isn’t that bad, but all of a sudden its death by a thousand straws.”

Regulatory Background of Homebuilders’ Use (i.e., Construction) of the Exempt Well Loophole

Beginning in the late 1990s, land developers discovered that the 1993 rule’s language created a loophole.  This loophole allowed land developers to claim that if each new home in a subdivision had a single groundwater well, then the entire development project was exempt from obtaining a new water use permit from the DNRC permit.  As a result, land developers across Montana began bypassing the water permitting process by drilling up to hundreds of alleged exempt wells in new subdivision projects rather than applying to the DNRC for a new water use permit for such subdivisions.

Statutory Construction:  The Root of the Short-Lived Nature of Land Developer’s 2010 Administrative Win and 2016 Judicial Defeat

The undoing of land developer’s 2010 administrative agency win was the six-justice majority’s application of statutory construction over the single dissenting justice’s application of statutory construction in The Clark Fork Coalition v. Tubbs.  The court’s opinion, its analysis of the DNRC’s 1993 rule, and its discussion of the various stakeholders’ legal argument was a full display of the “art of statutory construction.”

The term “combined appropriation” is not defined in Montana’s statutory system by which water rights are acquired, administered, and adjudicated: the Montana Water Use Act, § 85-1-101, MCA, et seq.  The Montana Water Use Act requires a permit for new appropriations of water.  Section 85-2-301, MCA.  Such a permit is obtained through the permitting process administered by the DNRC.  Section 85-2-301, MCA.  The act also includes an “exempt well” provision authorizing landowners to drill a small groundwater well and obtain water without obtaining a permit from the DNRC.  Montana farmers and ranchers long relied on the “exempt well” provision.

Whether a landowner, be it a homeowner in a new subdivision, a rancher, or a farmer, can utilize a groundwater well in lieu of obtaining a DNRC permit has long revolved around the DNRC’s definition of a “combined appropriation.”  The 1993 administrative rule adopted by the DNRC stated that “combined appropriation” meant “groundwater developments, that are physically manifold into the same system.”  Very few – if any — subdivision developments utilizing groundwater wells were ever connected in that manner.  Therefore, by altering the definition of “combined appropriation,” the narrow exemption to the Montana Water Use Act’s permitting process that had previously existed under a 1987 DNRC rule was expanded.  As a result, only groundwater wells physically plumbed together on a new subdivision – which single-use wells were not — would be deemed a “combined appropriation” under the 1993 rule that required a DNRC permit.

Before the Montana Supreme Court, land developers put forth a statutory construction of the Montana Water Use Act that fit within the wording of the 1993 rule, arguing “‘combined appropriation’ plainly denotes a ‘physical connection’ between two or more groundwater developments.”  The Clark Fork Coalition v. Tubbs, 384 Mont. at 521.  However, the Montana Supreme Court rejected the land developer’s construction.  Utilizing various canons of statutory construction, the Montana Supreme Court determined that 1993 rule’s construction of “combined appropriation” was inconsistent the “plain language” and the stated statutory purpose of the Montana Water Use Act.  Id. at 515.  Central to the Montana Supreme Court’s ruling was its determination that the 1993 rule directly contradicts the Montana Water Use Act’s statutory language “by adding a connectivity requirement to the wells or developed springs, effectively swallowing up the underlying exception that the Legislature created.”  Id.  Ultimately, the Montana Supreme Court’s ruling was a recognition of what the then-in-place statutory regime intended to do: provide a “permit based system [for] the protection of senior water rights from encroachment by prospective junior appropriators adversely affecting those rights.”  Id. at 507.

The Current Status of Single-Use Wells in New Subdivisions

The Clark Fork Coalition decision did not end the battle.  The Montana Supreme Court ordered that the 1987 rule be reinstated.  That reinstatement effectively closed the loophole that land developers had been relying on to bypass the water permitting process for new subdivisions.  Montana’s legislature responded to the Clark Fork Coalition by doing what the Montana Supreme Court stated the legislature had the power to do: amend the statutory language at issue, thereby requiring a new statutory construction consistent with such new language.  During the 2017 legislative session, Montana’s legislature passed HB 339.  HB 339 added a statutory definition of “combined appropriation” to the Montana Water Use Act, defining “combined appropriation” as “an appropriation of water from the same source aquifer by two or more groundwater developments that are physically manifold into the same system.”  Such statutory language essentially mirrored the 1993 rules definition of “combined appropriation”: “groundwater developments, that are physically manifold into the same system.”  However, Montana’s governor vetoed HB 339.  As a result, the exempt well issue remains open and unresolved.  However, the issue’s lessons in the role of statutory construction in land development matters are worth remembering.

On July 30, 2020, I attended the State Bar of Montana’s one-day Montana Law Seminar.  One of the Montana-specific presentations covered water rights – and the opening slide below aptly captured the topic:

One of Montana’s most prominent water challenges arises from many of its basins being “over-appropriated,” whereby claims filed exceed the available water.  Much has thus been written about Montana land developers utilizing “exempt wells” to meet the water requirement of the residential home development boom that has occurred across the state since 1990.  That fact should not be a surprise since the dispute has the elements of a Shakespearian political drama; it involves:

  • all three branches of government (and a fourth branch if you consider administrative agencies a separate branch, as many argue it often is),
  • water rights (as under the Montana Constitution, all water is owned by the state), and
  • the natural pitting of a traditional way of life and the rights established to support that way of life (ranching and farming) versus the economic pressures to accommodate changing ways-of-life (the subdividing of ranches and farmlands for residential housing).

Origins and Current Status of the Exempt Well Dispute

In the residential land development sphere, the exempt well legal dispute has its origin in a  heavily disputed administrative rule issued in 1993 by the Montana Department of Natural Resources and Conservation, Admin. R. M. 36.12.101(13).  A loophole in the rule that residential land developers began relying on beginning in the late 1990s was litigated to the Montana Supreme Court.  In The Clark Fork Coalition v. Tubbs, 384 Mont. 503, 380 P.3d 771 (Mont. 2016), the Montana Supreme Court ruled the loophole invalid because it conflicted with the underlying statute on which the administrative rule was based.  The state legislature responded by passing legislation that overturned the Montana Supreme Court decision by codifying language the Montana Supreme Court rejected.  Montana’s governor then vetoed the legislation.  The result of this peculiar ping-ponging across Montana’s branches of government  is that the exempt well issue is, as stated by Montana Farm Bureau Federation, “back in the same old, familiar boat; where do we go from here?,” where it remains today.  At its core, the dispute remains about the amount of water diverted by current and potential appropriators.

The Bigger-Picture Environmental Issue: The Loss of Open Space to Residential Land Development and its Ripple Effect

A simple online search reveals significant attention has been given to the competing interests at stake if residential home builders can develop homes utilizing single groundwater wells.  Specifically, the public, academic, and legal debate appears to fall into one or two categories:

  • The public policy and legal tension between accommodating new residential land development and protecting Montana’s long-established system of protecting holders of senior water rights; and
  • The environmental impact of widespread single groundwater wells on the ongoing ecological health of the water source from which water is diverted.

However, as many groups seek a long-term, collaborative solution, more attention needs to be given to the impact of open space loss across Montana on what underlies the exempt-well – not enough water to go around to satisfy all stakeholders’ preferences.  My reasoning is this: the loss of open space impacts water sources, usually reducing available water to be appropriated downstream; fewer water sources and less water to be appropriated downstream puts further strain on Montana’s already tense water rights legal and public policy state of affairs.

Recommendation: Greater Attention to the Loss of Open Space on Available Water.

More scientific research needs to be conducted accessing the ripple effect of the loss of open space on the water ultimately available to divvy up by Montana’s water rights system.  The exempt-well dispute cannot be allowed to be narrowed down to just being about the amount of water diverted or the cause of the diversion – although those will always be points of contention between current and future appropriators.  What also requires equal attention is what land use changes are impacting the gross availability of water to be allocated to all stakeholders.  Nonprofit research organizations, such as Headwaters Economics, have already raised the issue of the accelerating loss of open space and its impact on water policies and concerns.  The next step is increased research into and policy focus on the ripple effect of the loss of open space.  Whether parties can reach a collaborative solution or the matter is resolved by adversarial legislation or litigation, the information generated by the recommended scientific research will be beneficial to all parties.

Unlike a Rose By Any Other Name, Conservation Development Does Not Always Smell Sweet.

One of conservation development advocates’ core claims is that utilization of the land development technique results in a more environmentally-friendly finished product when compared to conventional land development techniques.  Such a claim is typically true.  It is true because conventional development land use laws do not require the identification and protection of the natural resources of the land to be developed.  However, just because conservation development is typically more environmentally friendly than conventional land development does not mean that its end-result environmental protection sufficiently maintains biodiversity by protecting, cornerstones of biodiversity, such as conserving essential habitat areas or ecosystem functions.  To put it in basic logic terms: just because option A is better than option B does not mean option A is adequate to achieve an objective.  The pertinent question is whether the substance of conservation development land use laws and ordinances adopted by a local jurisdiction leads to the actual maintenance of biodiversity.

Biodiversity is ecosystem focused.  Biodiversity can be succinctly defined as the “variability among living organisms on the earth, including the variability within and between species and within and between ecosystems.”  I recently read a 2012 article titled Do subdivisions designed for conservation actually help wildlife published in the always insightful High Country News.  The article touched on the issue of how effective are conservation development projects at maintaining biodiversity.

The answer to the question is, it depends.  Many conservation development projects built in the last decade have helped preserve biodiversity (including projects discussed in 2012 article).  However, many projects have not lived up to the label “conservation development” as commonly understood by ecologists.  Scientific research has revealed that the end result of many so-called conservation development projects is a natural landscape that has been left ecologically degraded and impaired without meaningful differences to historic checkerboard conventional developments.  For conservation development projects to successfully satisfy its underlying objectives post-completion, maintaining biodiversity can be broken up into three steps.

Step 1: An Ecological Site Analysis of the Ecological Attributes of the Proposed Project’s Land

As correctly explained by Armando Carbonell of the Lincoln Institute of Land Policy, private sector land developers and public sector local land planners must “understand both the ecosystem context and the ecological consequences of their actions.”  The prerequisite to such collaborative understanding is a thorough site analysis of the ecological characteristics of the proposed development project’s land.  The ecological site analysis must assess the four main ecological characteristics of land that are necessary to maintain biodiversity, or as I prefer for land development projects, its “ecological integrity”:

(a) composition,

(b) structure,

(c) function, and

(d) ecological processes.

Land is said to have ecological integrity/biodiversity when the four primary ecological characteristics exist within their natural ranges of variation and can withstand and recover from most perturbations that result from natural environmental dynamics or human disruptions.

Accordingly, as step one, local land use laws and ordinances must mandate a pre-design, site analysis of the ecological attributes of the proposed project’s land.  It cannot be optional.  The entire project must be surveyed to identify such features as the land’s essential ecosystem functions, its critical wildlife habitat, and the indispensable wildlife corridors between habitat areas.  Disappointingly, a 2014 study co-authored by Sarah Reed, an associate conservation scientist with the Wildlife Conservation Society and a leading researched in the field, found only thirteen percent of adopted conservation development laws required an ecological site analysis prior to a development’s design and planning.

Step 2: Project Design and Planning Around Critical Habitat and Ecological Functions

Once the ecological site analysis is completed, development must be designed and planned around the site analysis’ results.  Mr. Carbonell correctly emphasizes that “[i]ts important (for planners and developers) to start interacting before a design gets finalized.  In the absence of understanding how watersheds work, or how an ecosystem works, you can get development patterns that are not terribly functional.”

At the same time, it is vital to recognize that there is no single way to design a conservation development project.  A conservation development’s design is site-dependent, as well as dependent on the larger scale natural areas in which the site resides.

For meaningful biodiversity protection to occur in a conservation development project requires ecosystem-level protection at a sufficiently large scale.  Therefore, the best designs set aside large areas of high-quality natural open space, strategically connecting the set-aside land across the project’s landscape and, to the fullest extent possible, to any adjacent national forests, state parks, local nature preserves, and conservation easements.  Preexisting wildlife movement corridors must also be retained.  The internal project layout of the housing lots and infrastructure must then be laid out around the preceding requirements.  By doing so should minimize the fragmentation of ecosystems prevalent in conventional land developments, and, unfortunately, present in too many projects labeled as conservation development projects.

Step 3: Ongoing Stewardship of the Land

The final step to maintaining biodiversity is for the development, once completed, to be subject to a long-term stewardship plan.  At a procedural level, such a plan must be enforceable and not mere guidelines or aspirations.  At the substantive level, the stewardship plan must focus on what is necessary to preserve biodiversity post-project completion.  That requires ongoing monitoring of the set-aside lands’ ecological characteristics.  Whenever identified, action must be taken to avoid the introduction of invasive plant species and to restore habitat if any disturbance, natural or human-caused, detrimentally alters the ecosystem.

Key Takeaways

  • When a thorough ecological attribute study is not conducted, a collaborative understanding between private sector developers and public sector planners (as well as third party stakeholders) will not be reached concerning the proposed land development project’s ecosystem context and the ecological consequences of the proposal.
  • Where such a collaborative understanding does not occur, the physical manifestation of a conservation development’s open space will almost certainly not help maintain the developed land’s biodiversity.
  • The term “open space” used in conservation development laws and ordinances is often not synonymous with the conservation of ecosystem functions. The term “open space” is too commonly used to describe human-designed and “made green” spaces, such as pocket parks, soccer fields, and open fields that – although often well-meaning – are nothing more than extremely large lawns.  None of those “open spaces” provide meaningful biodiversity protection and are hardly an improvement over golf courses.
  • Ecologists must have an ongoing role during all of the above-described three steps. Doing so will best ensure that a locality obtains the scientific input necessary to realize the environmental objectives conservation development is intended to achieve.

An insightful academic article on this topic, which is one among many and on which this post relied, is Liba Pejchar et al., Evaluating the Potential for Conservation Development: Biophysical, Economic, and Institutional Perspectives, 21 Conservation Biology 69 (2007).

Since this blog’s focus is on land development principles and practices labeled “conservation development,” it is important for readers to know what conservation development is not.  Generally speaking, true conservation development connects land development to land conservation — in a manner that assures meaningful natural resource protection.

The Label “Conservation Development” Is Often Misused

Not every development project labeled a conservation development project is a conservation development project (e.g., one that provides for meaningful natural resource protection).  The primary reason for the mislabeling of land development projects as conservation development projects is the variation in requirements local jurisdictions require for a project to be considered a conservation development project under local land use laws.

For example, reducing the quality of the developed land’s functioning ecosystem and biodiversity and replacing it with a patchwork of green lawns for outdoor recreation does not serve the essential objective of conservation development.  Hence, the key determinative factor of whether a land development project is a true conservation development project is twofold:

  • First, the project’s design must significantly outperform conventional subdivisions and baseline scenarios in terms of protecting biodiversity and associated ecosystem functions.
  • Second, the project’s design must not reduce biodiversity and concomitant ecosystem functions below what they would be if the land is not developed.

Conservation Development is not Incompatible with Private Developer Profit Motives

Far from limiting profitability, conservation development projects provide a development approach through which developers can generate financial returns competitive with, and oftentimes above, financial returns that would be generated if a traditional land development approach was.  Not widely discussed in academic literature on the subject, the ability of conservation development to align with the profit making objectives of developers is a strong means by which sustainable development can be achieved with the help of the private sector.  On the project revenue side, homebuyers are willing to pay a premium to live in a more natural environment with a higher amount of intact natural green space and uninhibited local wildlife.  On the project cost side, capital costs can be lower than conventional land development for traditional new infrastructure such as roads, as well as green infrastructure — to protect against environmental hazards such as flooding and water pollution.

Conservation Development Is Not a Device that Stops Growth

The exurban and rural landscape continues to see rapid growth.  Conservation development will not stop growth from occurring.  Both natural condition land, as well as working lands such as large agriculture plots and forest districts, will be altered by conservation development projects.  As is the case with all development forms, conservation development is about how to develop the land.  As Kris Larson of the Minnesota Land Trust put it, conservation development does not save all land, “but it’s a great tool in the right circumstances.”  What true conservation development can do is prevent unnecessary destruction of — and negative impacts on — the ecosystem and “ecosystem services”on the land where development occurs.

Conservation Development is not Green Building

Green building focuses on the planning, design, construction, and operations of the vertical aspects of a development project’s built environment.  The central concerns are energy efficiency, water use, indoor environmental quality such as air quality, use of natural light, waste reduction, reuse, and recycling, and the use of environmentally sustainable materials.  Conservation development focuses on the horizontal aspects of a development project’s site.  The central concerns are ecological mapping at the outset and identification of ecological resources to be preserved, site planning and design around the area’s ecosystem (and other corresponding land planning actions).  The good news is that conservation development and green building standards are not mutually exclusive and indeed often complement one another in a mutually beneficial way.  This is because green building recognizes and is premised upon the vertical built environment having profound effects, both positive and negative, on the natural environment.

Conservation Development is not Mandatory Low Density Development

Conservation development is far too often mistakenly viewed as synonymous with low density development.  While low density conservation development projects occur, where they occur is typically a function of the preexisting landscape in which the conservation development is built.  A typical example is rural areas where the land had previously been subdivided into large farms or ranches.

Conservation Development is not “Cluster” Development

Conservation development and cluster development are commonly misperceived as synonymous.  They are not, although conservation developments can incorporate clustering concepts and occasionally do.  Cluster development congregates residential units into abutting smaller lots in one area (or just a few areas) of a development footprint, which significantly reduces the residential dwelling development footprint.  Cluster development then designates the now more expansive non-lot areas for recreation, common open space, or as natural areas.  It typically connects such areas with pedestrian paths, which can help minimize the infrastructure needs of the development.  However, cluster development does not require the preservation of the development area’s functioning ecosystem and biodiversity, or even site planning and design that preserves some of the area’s natural resources.

Conservation Development is not for only High-Income Homebuyers

Conservation development design principles apply to a wide range of development projects.  This includes projects targeted at middle-income homebuyers.  Also, conservation development projects are increasingly incorporating housing set-asides for lower-income households.  One noteworthy example is Beacon Hill Lane on Block Island, Rhode Island, where seven affordable single-family homes were built for year-round residents next to a natural open space that was permanently preserved.

The recent case of Williamson County, Tennessee, provides useful insight into how even well-meaning conservation development laws run the risk of unintended consequences if the land use planning focus is too myopic.  Focusing on the size of the pieces and creating artificial development boundaries in contrast to planning across the entire landscape– increases the likelihood of a distorted development footprint, thereby minimizing the benefits local jurisdictions can obtain by adding conservation development principles to its planning toolbox.

Williamson County, Tennessee – A Historical Rural County Facing Spillover Development Pressures from Nashville’s Booming Economy

Williamson County, Tennessee, sits just south of Nashville, Tennessee, as is part of the Nashville metropolitan area.  From 2015-2019, the Nashville metropolitan area had the fifth-highest population growth in the United States — at 9.6%.  It is expected that this trend will continue, especially with both Amazon and Facebook in the process of establishing a significant presence in the area.  Facebook is believed to be making a $750 million investment in a data center on the outskirts of Nashville.  Amazon is in the process of building two corporate office towers to house its Operations Center of Excellence, which is expected to create 5,000 new jobs in the area in what is the largest jobs deal in Tennessee’s history.  Williamson County currently has 226,000 residents, but due to the metropolitan area’s economic growth, its population is anticipated to add another 100,000 residents in just the next ten years.

Williamson County’s Land Use Plan’s Unintended Consequences

Unintended development patterns have arisen in Williamson County, notwithstanding the adoption of a land-use plan with the concept of conservation development a critical component.  In 2007, the county adopted a comprehensive land-use plan update.  As a quick refresher, comprehensive land use plans are formal policy documents adopted by local jurisdictions but implemented through zoning regulations, and other ordinances, laws, and actions.

A primary goal of Williamson County’s 2007 plan update was to encourage higher-density growth in suburban infill within a municipal growth boundary (MGB) while boosting conservation development projects outside of the MGB.  The 2007 plan update explicitly stated that “[g]rowth will generally be directed toward existing or planned service areas and pushed away from rural areas with rural levels of services.”

The 2007 plan update had two core tenets that revolved around the sprawl-inducing aspects of decentralized sewer systems:

  • No development could occur inside the MGB that utilized an alternative sewer system unless the land had been annexed into a city, and the development project is subject to the additional requirements of the city’s planning and land use regulation system.
  • Conservation development projects outside the MGB could utilize alternative sewer systems.

The 2007 plan update concurrently approved higher rural zoning density in unincorporated portions of one residential dwelling unit per acre instead of one residential dwelling unit per five acres — as initially proposed.  The combination of the preceding factors led to the unintended consequences of disproportionate growth in the rural area.  This occurred because developers skipped over undeveloped land within the MGB and instead focused on development projects in unincorporated rural areas they had previously not been able to develop using conservation design principles.

Recent Adoption of a new Comprehensive Land Use Plan was a Missed Opportunity

On March 12, 2020, Williamson County adopted a new land-use plan where the debate was cast in the far too common, but mistaken, “rural character preservation versus maximizing land value” dichotomy.  The county decided to down-zone the rural areas from one home per acre zoning to one home per five acres zoning.  Williamson County Planning Director Mike Matteson best captured the sentiment behind the change.  Matteson stated that the 2007 land use plan conflicted with the county’s vision for rural preservation because there was a “disconnect between the [2007] plan and the county’s ability to implement the plan’s central theme of preserving rural character.”  The down-zoning debate sharply divided local citizens.  Those in favor of retaining the current one residence per acre zoning argued that down-zoning would decrease rural property owners’ land values because of the lower density allowance for new homes.  Those in favor of the down-zoning argued it was necessary to control growth and preserve the rural character of the impacted areas.

Rural Preservation vs. Land Value is not a Zero-Sum Game

My critique of Williamson County’s approach to updating its comprehensive plan is that it approached the unintended consequences of the 2007 approval of one dwelling per acre incorrectly.  The debate should not have been between five acres and one acre.  Instead, the discussion should have focused on larger-scale comprehensive conservation planning on private lands that identifies the best natural resource areas to protect and then envision the best spatial configuration to accommodate future growth.  Once that is determined, strategic placement of housing developments and well-coordinated open space stewardship can occur where both the preserved open space and the housing development serve as complementary functional parts of protected area networks.  The appropriate housing density, be it one dwelling per acre, one dwelling per five acres, something in between, or a combination of the preceding, would then be based on how the pieces best configured with the strategically set and coordinated large-scale landscape-based plan.  Such an approach, if done correctly, can enhance land values in the long-term, while also preserving the natural and rural character of areas like Williamson County.  An informative academic article on the concept of strategic placement of housing developments and the coordination and stewardship of open spaces is a 2015 article in Landscape and Urban Planning entitled “Balancing housing growth and land conservation: Conservation development preserves private lands near protected areas.”

A Recent USC Lusk Perspectives Online Discussion

On July 14, 2020, the weekly Lusk Perspectives hosted an online discussion that, likely unbeknownst to the presenter, provided indirect but sound support for my newfound professional conviction.  This conviction is that there is growing consumer demand for residential homes at the exurban fringe built according to real estate development principles that better preserve the land area’s surrounding ecosystems and natural environment.  Such conviction was the topic of my LL.M. thesis, completed in 2018.

The guest presenter was Bird Anderson, the Executive Vice President, Homebuilder Banking, Well Fargo Commercial Real Estate.  The discussion’s primary focus was on the United States homebuilding market since the COVID-19 outbreak, specifically looking at what’s changed and what’s here to stay.  A key market observation of the presenter is one that is now widely accepted: that business shutdowns are permanently altering the ability for buyers to consider residential markets further out from urban office hubs.  This is due to the work from home phenomenon, which is becoming commonly known as merely WFH.  Workers across the income and job spectrum now believe that significant “work from home” structures are here to stay.  This outlook for the future significantly alters the opportunity cost equation that home buyers will now consider due to WFH’s reduction or even elimination of long commutes from further out exurbs.

Home Buyers Now Want Wide-Open Spaces

Urban vs Rural / Exurbs ContrastThe combination of the WFH phenomenon combined with the two other COVID-19 major everyday living disruptions (sudden consumer goods shortages and the need for social distancing) has sharply increased the desire of home buyers to live in wide-open spaces.  Almost by definition, wide-open spaces means those exurban areas that preserve their wildland character, which is best done by preserving the large-scale ecosystem in which the exurban area exists.  Mere cosmetically landscaped “open spaces” or “green spaces” commonly found in master-planned suburban communities will no longer suffice.

Opportunity for More Ecologically-Based Land Use Laws

Looking ahead, the increased demand for housing at the exurban fringe provides an unintended opportunity for both private sector developers and local public agencies and officials to reboot their local land use laws to capture the benefits that can come with this increased consumer demand.  To be successful, the reboot of local land use laws must integrate the consideration of ecosystem-level conservation into the entire land use process, from comprehensive planning by the local decision-makers to the specific subdivision design plans pursued by developers.

Unknown Dangers of Housing Density in COVID19 Transmissions May Provide a Catalyst for Exurban Migration

There is also a proverbial large unknown elephant in the room.  The migration of WFH workers out of urban areas, even suburban areas, to the exurbs — will rapidly accelerate if future research reveals that higher housing density had a correlation to the spread of the highly contagious infectious disease that the current coronavirus is.

New York Governor Andrew Cuomo tweeted on March 22, 2020 that “[t]here is a density level in NYC that is destructive.”  Researchers at Children’s Hospital of Philadelphia and the University of Pennsylvania developed a model, known as COVID-Lab: Mapping COVID-19 in Your Community, which supports the notion that population density is one of the two most important factors driving the spread of the coronavirus.  Currently, there is insufficient scientific studies to definitively support the proposition that housing density is a significant factor in the spread of the coronavirus.  However, given the scientific uncertainty, it is no surprise that recent articles from the largest newspapers in the United States’ two largest cities – New York and Los Angeles – each raised such a prospect.

High-Density Developments May Fall Victim to Concerns about Future Pandemics

On April 26, 2020, the L.A. Times ran an article “Building dense cities was California’s cure for the housing crisis. Then came coronavirus.”  Two weeks later, the New York Times ran a similarly themed article “Coronavirus Crisis Threatens Push for Denser Housing.”  Across the United States a large portion of the population is already fearful of being vulnerable to another pandemic occurring in the near future.  If it turns out to be the case that higher housing density led to a disproportionate greater number of coronavirus infections, then the decades-long push for higher density housing in urban — and more recently suburban – areas, faces an unknown and potentially dark future.  At the same time, the exurbs will face the flip-side of that problem in the form of an imposing opportunity for positive change.

“What you see and hear depends a good deal on where you are standing”

-C.S. Lewis, The Magician’s Nephew

This post might seem a little “off topic” from the declared focus of this blog — “Insight & Commentary On Complex Business &Financial Law Topics.”  But I believe no matter how much “insight” we download as professionals, if we become too overwhelmed in life, both our professional excellence and personal lives will suffer.

So the proposition I put forward here is that professional excellence does not have to be sacrificed on the altar of the very amorphous concept of “work-life” balance.  Further, for those professionals that want to make being a “super professional” a priority in life, they can do so while also having a “balanced life.”  But that involves identifying priorities and making difficult choices as no one can have it all (indeed, the acceptance in professional circles over the past few decades that we can have it all is what has caused all the imbalance that exists — usually unknowingly — in many professional’s lives).

Before proceeding, I want to make clear I believe that there are truly different strokes for different folks.  Therefore, there is nothing wrong with those that choose to make their professional career the primary focus of their life …. as long as it does not come at the expense of others who never signed up for that.

Launching Point

The launching point for the discussion below is that all professionals must step back and start with the question: what is truly meant by the commonly used phrase “work-life balance”?

As the eminent Jack Welch stated a few years ago:

There’s no such thing as work-life balance. There are work-life choices, and you make them, and they have consequences.”

I agree (with it equally applying to both men and women professionals)

In pondering this post over the last 24 hours, I came across numerous spot-on pieces written from personal experience who discuss the need to make choices, such as:

Then, as you will learn below, last fall @rashkenas Ron Ashkenas wrote a thoughtful article “Forget Work-Life Balance: It’s Time for Work-Life Blend” where he touched on many truths that I revisited first-hand just yesterday and which propelled me to write this piece:

“The reality for many of us these days is that our professional lives bleed into our personal lives. The boundaries are increasingly permeable and movable. We check our emails in the evenings and weekends. We delay or miss family events because we can’t leave the office. And when we do, we take our communications devices with us so that we can stay connected to work.”

I assume most of you reading this have “been there, done that.”  However, just becauseit is a commonly accepted practice to let our professional lives bleed into our personal lives does not make it right.  I think what often happens is that many professionals convince themselves for the sake of survival in an overly “marginless” world that letting our professional and personal lives bleed together is OK.  Yes, there are times and places where that will occur.  But it should be the exception – it is not a fait accompli.

My Personal Mea Culpa

So all of the above leads up to the following: yesterday, May 23, 2013, was my son’s yearly “Cardinal Field Day” at St. John’s Episcopal School, which is a day of fun-focused track and field events in a carnival atmosphere.  The school is split up between yellow, blue and red teams.  Parents and other adult family members are not only welcome, but encouraged to come and enjoy the spirited atmosphere.  As with years past and most of his school events, I made sure to attend.  But this year’s Cardinal Field Day was different for all the right reasons.

Last year, I was 100% physically present at Cardinal Field Day but sadly, in retrospect, spent most of the time trying to “balance” watching my son participate from just far enough away that the noise coming from the field would not be heard on the concurrent multi-party conference call I was participating on via my cell phone.  At the time that seemed like a perfect equilibrium since my son was definitely more interested in hanging out with his friends just far enough away from “Dad”.  But later that night it was emotionally divulged to me by him of how he interpreted things, specifically that to him “all I did was talk on the phone.”  The message was loud and clear: I might have been physically present, but I was not really “there” as he wanted me to be.

My first reaction, as if pulling from some “Better Something Than Nothing” handbook for lawyers, was a “IRAC”, legalist and presumably logically response to my son: “most dads do not attend Cardinal Field Day; … I was there watching you all the time.”  In my mind, the easy justification for that response was “work like this pays for you to attend St. Johns.”  However, that response was truly an “exercise in missing the point,” even if factually accurate.

What mattered was that my son had hit on the foundational point raised in a very enlightening post by @Ju_Summerhayes entitled “The Minimalist Lawyer”, which is that “[e]verthing has its place.”  For my son, my cell phone did not have a place during those 90 minutes of Cardinal Field Day.

That experience caused me to revisit the difficult question: even though I was a name partner at a small law firm I help found and thus controlled where I was for my conference call, was my perceived “equilibrium” really a work-life balance?  I thought it was and in most respects I feel that I have identified the right priorities and made the right choices with respect to balancing the professional excellence I seek to deliver with the personal life that I cherish.  But like so many things in life, and what is especially true for attorneys like me who spent most of their formative years in “Big Firm” environments (which can still haunt us even long after we left the halls of “Big Firm” life), is staying on top of:

  • what is meant by “everything has its place” for me and my family, each day as well as in the long run, and
  • once that is figured out, how do we put that into practice with respect to my professional life (as well as my wife’s professional life) and our family and personal lives?

Undoubtedly, these questions are very dynamic, perpetually changing moment to moment.  Fortunately, this year at Cardinal Field Day I 100% “got it” by putting away the cell-phone other than to take a few pictures of my son and post them to Facebook, like the one below. …. And I still was able to complete my legal work at the standard of “professional excellence” I set for myself.

As put bluntly by Kevin O’Keefe, an expert in the legal marketing field, a lot has changed since he graduated from law school 30 years ago.  A recent post by John Grimley of International Business Development accurately assessed the current reality that “law firms need to end the internal culture of seeing clients as purely a source of revenue, and instead … align their services to advance the commercial objectives of clients – one of which is to reduce their clients legal fees” (If you have not been reading John Grimley’s posts on this subject matter, you really must start).

How to best align professional legal services with companies’ business objectives goes to the heart of the inside‐outside relationship “crossroads” law firms and in-house legal departments face:

  • What is the division of professional legal services as between in-house legal departments and outside law firm?; and
  • How is the professional legal services predominately managed (i.e. project management)?

As general background, I use the title “Chief Legal Officer” in this post as opposed to “General Counsel” because I believe that title more accurately describes the role discussed in this post, but many in-house attorneys with the title “General Counsel” have also taken on the same substantive role.

THE SOPHISTICATED CHIEF LEGAL OFFICER’S NEW MANDATE

This new reality for law firms is being significantly impacted by a concurrent development that has also evolved since Mr. O’Keefe and Mr. Grimley graduated law school: the emergence of sophisticated and empowered Chief Legal Officers with in-house legal teams who far more often have skills equal to their peers in outside law firms than they historically have had.  I believe the empowered Chief Legal Officer trend has been accelerating these past few years and is not only here to stay, but is an advantageous development for the legal profession meeting the needs of businesses.  As put in an excellent “Blue Paper” titled “The General Counsel As Lawyer-Statesman,” “in the course of a generation, General Counsels’ prestige, status, compensation, power and position at the core of major transnational corporations have been transformed.”  The author also aptly characterized the growing role of the sophisticated and empowered Chief Legal Officer and other in-house lawyers as “extremely broad, involving three distinct functions: acute technical lawyer, wise counselor and lawyer as leader.”  The end result is that Chief Legal Officers are not only being authorized to do so, but are being directed as one of their “Key Result Areas” to manage the direction of a wider range of sophisticated legal and business matters as well as perform and execute upon a greater share of the company’s substantive legal service needs.  This development is one that law firms need to understand and respond by adjusting their business model and “marketing” approach.

PERSONAL CONFIRMATION: MY BARCLAYS NORTH, INC. EXPERIENCE

I became convinced of the wide-ranging value of an “inner circle” Chief Legal Officer during my experience in 2007-2008 when I left a “Big Firm” job to serve one client — real estate developer Barclays North, Inc. — as its Interim General Counsel and Chief Restructuring Advisor during the real estate crisis.  I experienced firsthand the contrast in the value-added proposition that sophisticated in-house legal counsel can create when it comes to furthering a company’s business objectives, as compared to outside counsel (especially when it came to the delegation and execution of legal tasks that involved ongoing third-party business relationships).  This is because by being a part of the inner circle of the company and its day-to-day business flow, the empowered and sophisticated Chief Legal Officer has a “constant pulse” on a company’s rhythms and peculiarities.  This is turn results in superior legal guidance, more effective management of and practical solutions to complex business and legal situations.

The lessons from my Barclays North experience hold true even more today: at a time many law firms are undertaking internal “survival tactics”, as a result of being empowered by the above-described three distinct functions, forward-looking Chief Legal Officers are driving a redefinition of the role outside law firms play and how a company’s legal affairs are handled.  By doing so, new structures of true strategic partnerships are taking shape.

THE HISTORICAL BIFURCATION OF THE ROLES OF IN-HOUSE COUNSEL AND OUTSIDE LAW FIRMS

The rise of the empowered Chief Legal Officer has been and continues to be driven by many factors.  The most significant factor is the “Work-Role” Gap that has led far-to-often to an inefficient over-bifurcation in the delivery of professional legal services between the:

  • In-house “company attorney”, whose primary role became farming out the challenging and complex legal work to outside counsel while focusing on internal legal risk management instead of first and foremost being a strategic “business law advisor” to the company; and
  • Law firm “situation-specific attorney”, who in the over-specialized legal world has taken on the role of delivering myopic deal-specific documents or taking near full-ownership of litigation matters, without in either situation providing the long-term “big picture” legal guidance that a properly empowered strategic “business law advisor” should continuously delivering.

The ideal situation is one where the Chief Legal Officer can serve both sides of the “business law advisor” and “situation-specific attorney” equation for a company, delegating and managing internally what can best be performed in-house, with outside counsel serving as a supplemental or situational-specific resource when appropriate.

BEYOND LEGAL COST REDUCTIONS: INCREASED LEGAL AND INTERNAL BUSINESS OPERATING PERFORMANCE

Surely the pre-recession hourly rate “bubble” driven by the increased focus on “Profits Per Partner” caused many companies to re-evaluate the budgetary impact of the over-bifurcation of inside-outside roles.  But the impact of this over-bifurcation goes beyond mere budgetary costs and instead gave a major boost to the new Chief Legal Officer legal paradigm, whereby:

  1. The CLO is now more often the “go-to” legal strategic advisor to a company’s top management instead of a senior partner at the company’s historic outside law firm;
  2. The CLO is a core member of senior leadership and helps shape the debate and has a voice as to the company’s current and future business affairs; and
  3. The CLO has the power (and financial leverage) to redefine the company’s relationship with preferred outside counsel by addressing the “Work-Role” gap.

In many ways, the rise of the empowered Chief Legal Officer and its legal team may most accurately viewed as simply a market-driven corrective response that serves the company’s best business and budgetary interests.  Whatever the reasons and driving factors, the rise of the empowered in-house legal counsel was long overdue.  This is because the business value of a strong in-house legal team working closely with top management has been an underutilized source of tangible and intangible operating efficiencies, beyond just substituting cheaper inside legal resources for what had become increasingly expensive outside legal services.  If properly utilized, the result is that a company’s legal needs are delivered:

  1. More cost-effectively; and
  2. With the same or greater level of high-performance that top law firms claim only they can always provide.

Achieving one of the above does not have to come at the expense of the other (this is where better project management of an entire legal project comes into play by the Chief Legal Officer and its team leveraging the most appropriate professional resource for a particular project task or undertaking).  Moreover, the risk of unexpected legal troubles can be better planned for and – if and when they arise – can be addressed earlier and more effectively managed in a way that usually reduces higher litigation costs down the road.  This does not mean that outside law firms will no longer provide ongoing and substantial professional legal services for companies — as that need will continue, albeit with new dynamics.

FINAL TAKE-WAY

The end result for in-house legal teams, if led by an empowered and sophisticated Chief Legal Officer, is the opportunity for that team to add value in more ways to their company’s distinctive business objectives than historically has been the case.  Law firms, as businesses that also operate in a market system, who fail to adjust to this trend will find themselves truly left on the outside.