Legally restructuring land

June 28, 2020 5:35 PM

I legally restructure land to make it saleable or usable. I've been asked to investigate an area of unprotected mainly wetland, about 500Ha (1250acres) here in NZ. I have some ideas but wonder if any of you area aware of interesting examples from across Earth - I find metafilter opens my mind even to things in my backyard, and ideas hiding in plain sight.

The whole point of parceling land is to have freedom to treat parcels differently and I expect to have multiple parallel solutions. Some of my previous sites are brownfield, some undeveloped, some very degraded, others in need of protection (not a mutually exclusive list) - and the end use includes a lot of options: subdivisions - residential, industrial, mixed-use; conservation / amenity; development buffers; shared use...

Your examples will be from multiple jurisdictions so deeper aspects of legality/ethics are probably not helpful as these vary so much; I'm really just hoping for several interesting cases I might be able to read more deeply on and hopefully be inspired. My question is somewhat similar to an early mefi Q Managed Retreat from Floodzones

Apart from leases and direct sales land change can involve'
Carbon schemes
Wildlife protection
Transitional arrangements
Buybacks
Tribal agreements
Service easements
Land swaps in all their varieties

But there are many, many others, many of which I will not have heard of...

posted by unearthed to Law & Government (12 answers total)

Considering that 90 percent of New Zealand’s wetlands have already been destroyed, it seems like a bad idea to develop it.

Things that have been done to preserve wetlands that I know of include protecting them for their ecosystem services, such as flood control and water filtration, endangered species habitat, etc. There is also carbon banking(wetlands tend to be carbon sinks, draining them releases lots of carbon). Preserving viewsheds for tourism and cultural heritage is another land preservation approach that I have seen.
posted by rockindata at 6:10 PM on June 28, 2020 [1 favorite]

Is this deal by Nature Conservancy the kind of thing you are looking for? It includes a mix of forestry, carbon credits and tourism.
posted by metahawk at 6:13 PM on June 28, 2020 [1 favorite]

Response by poster: Thanks metahawk, yes, that's a perfect example

Hmmm, 'viewshed preservation' that's a useful argument rockindata. No, I don't want to contribute to any further wetland loss either. NZ conservation until about 10 years ago had a sole focus on iconic (mainly mountainous and therefore unfarmable, and so it was politically neutral). This is changing a bit but not nearly enough.
posted by unearthed at 6:31 PM on June 28, 2020

You might be interested in the concept of a cultural landscape; a variety of 'heritage' in legal protection/conservation, for places which aren't confined to a single location or item, and where there's an important element of human/natural interaction. As per ICOMOS:

Cultural landscapes are increasingly understood as complex systems where cultural relationships are developed within an ecological context, recognizing the mutual and reciprocal influence of nature and culture.

As an example: Budj Bim, in Victoria, was recently designated a UNESCO world heritage cultural landscape.
posted by Fiasco da Gama at 7:36 PM on June 28, 2020 [1 favorite]

Here, you are allowed to impact wetlands, but you have to mitigate for that impact. So all the similar projects I have seen involved finding, designing, and implementing features that are intended to provide equivalent or greater ecosystem functions, but in a different location. If your jurisdiction is similar and you are wanting to develop these parcels, then finding suitable mitigation locations is going to be a key step.

Conversely, this means that if you have property that already has wetlands on it (but perhaps not in pristine shape), it potentially has value for developers who need to find a way to mitigate for their impacts elsewhere. Here, your site would potentially have economic value as part of a wetland mitigation bank; possibly more value than it would with low-intensity development.

Personally, regardless of the economics, I feel strongly that wetlands shouldn't be developed because their ecosystem functions are so critical and most have already been lost by conversion to agriculture and/or development. But realistically, if development of these is part of what you are being hired to do, then I would suggest designs that concentrate impacts in a small part of the total area, with preservation and/or restoration of the majority of the area.
posted by Dip Flash at 10:31 PM on June 28, 2020 [1 favorite]

Response by poster: Thanks DipFlash, I totally agree with you re development. I also have serious personal dislike (and robust professional arguments against) of anything involving offsetting as it treats nature as fungible/exchangeable and NZers are very bad (auto-open pdf from NZ J Ecology) at implementing these.

Agree that wetlands should not be developed but many, like this one, are already in private hands; they are owned and so mortgages and returns come into play. Farmers usually can't just up-sticks and move (unlike townspeople) and conservationists demands can make their lives and livelihoods untenable - hence my involvement to try and join some dots - and probably make some new dots, and reinvent the concept of the dot if I have to.

Not all of what I'm looking at is pristine; about 380Ha is wetland (remainder is mostly good pasture), probably two-thirds of wetland is near-pristine, the remainder degraded but recoverable. Right now this land probably lacks any protection that I am aware of.
posted by unearthed at 2:03 AM on June 29, 2020

Farmers usually can't just up-sticks and move (unlike townspeople) and conservationists demands can make their lives and livelihoods untenable

In the US (so again, all the usual caveats about specific jurisdictions and legal structures), this issue is often solved with one version or another of transfer of development rights, often via a Land Trust. Simplifying, the landowner gives up certain rights on specified parts of the land, and in exchange gets money (or, the landowner may choose to simply donate this as part of ensuring protection of conservation values on their land). What is and is not included in the agreement takes all kinds of forms -- often, specific areas are identified for future development (say, the farmer wants to preserve the option of building a house for their kid on the other side of the property); some areas might be specified as remaining in agriculture (potentially with some restrictions) but never developed; and some areas might be designated as reserved for conservation and restoration.

For development, some jurisdictions allow (or even sometimes require) what is called "cluster development," where the houses are clustered in a relatively tight area leaving the majority of the site for other purposes such as conservation. This can allow economically-viable development of parcels that otherwise could not be broken out in traditional large-lot zoning, with less ecological impact.
posted by Dip Flash at 6:30 AM on June 29, 2020

There is a very famous development from the early 20th century here in Denmark, called Tibirke Bakker. It is now listed. This link is to a description of the area (in Danish) with a map, where you can see how there is a preserved wetland area and another part which was developed with very specific esthetic guidelines. No fences allowed, the land had to be managed in a very specific way that seemed "natural" but is rigorously maintained. The buildings have to be in specific materials (wood, brick and thatched roofs). In this link, you can scroll down to see how the plots were distributed with deep consideration for the landscape.
When I was at architecture school, it was part of the basic curriculum in the architecture, landscape and planning departments and it was even quite well known by lay people, so it became a model for generations of planners. The land prices there are sky high, and AFAIK, the original developers and first buyers lived to see the succes.

At a point, my gran had to sell the remaining non-agricultural part of our farm because of taxes, after trying to get it under a land grant. This had been expected for years, so already in the 1970's my grandparents had a plan drawn up based on similar principles to Tibirke Bakker (it's the same type of land, a mix of overgrown sandy dunes and wetlands). The difference is that here, the sites are quite small and there is a lot of common area, where the Tibirke Bakker project has huge plots (where people often trespass). If I'd known what I know today, I would have worked in something about maintenance in the plan for the area, but in spite of some ugly houses and lack of general maintenance of the commons, I think it works very well and the owners love it. It's interesting to talk to people who feel that the common areas, which they co-own, create more value for their individual plots.

Another reference we were introduced to at architecture school was a book: The Anatomy of the Village by Thomas Sharp. I particularly remember the description of Milton Abbas, which I'm thinking of because you say some of the land is pasture, I feel what they did in Milton Abbas is very inspiring for any sort of development on pasture: again there is a clear division of the commons and the private land, and some regulation for maintenance of the commons which create a future landscape - if well designed, that landscape will increase the value of the land significantly over time.

This plan was probably inspired by both Tibirke Bakker and Sharp's book. It is owned entirely by a housing association, so not exactly what you are looking for, but I feel you can see how the subdivisions around a common could be made if it was for a private development. (There are several images, on of them a plan of the entire development)
posted by mumimor at 8:45 AM on June 29, 2020 [2 favorites]

Response by poster: Hi Dip Flash yes a multiple designation / reparcelling is sort of like one approach I'm pondering - it won't be simple. Yes, there's some cluster developments here too, haven't seen a very successful one yet - may work better in a larger country; here all the players know each other and this leads to dysfunction.

Amazing mummimor! Sondergard looks interesting. I hadn't heard of Thomas Sharp - thanks for the .pdf links - very, very helpful, I love the language "... most English roadside villages seem somehow to contain their road rather than to be merely a string of buildings pushed aside by it." and the simple drawings are great for thinking.

"not exactly what you are looking for" I'll never get exactly but the series of new jumping off points you're all giving me is what will help me solve this - These things are always bespoke - here's a plan outline of an earlier industrial project, some buildings date from 1870's, fitting old and new helps preserve character.
posted by unearthed at 4:27 PM on June 29, 2020 [1 favorite]

Mostly repeating what others have said, but here a major form of land conservation is the conservation easement, in which a subset of the development rights to a property are transferred to either a land trust or a state agency, while the owner retains the title and the remainder of the rights. On projects I work with, the owner usually retains farming and/or grazing rights, depending on the property. The funding sources for these easements are usually either competitive government grants offered through various jurisdictions, or mitigation funds offered as a set-aside for impacts made elsewhere. There are a variety of criteria by which these grants may be awarded, including endangered species, wetlands, riparian/fish habitat, carbon capture/storage/release prevention, connectivity between other conserved lands, and public access. Easement funds may also be offered through private grants. Mitigation funding here also offers significantly larger amounts per acre for habitat creation/restoration/enhancement, and also usually includes conserving the land as part of the deal. Habitat creation/restoration/enhancement tends to require a much larger and longer up-front investment and project development timeline.

Energy development of one kind or another is also a common way for landowners to maintain control of most of their land while impacting a part of it. Whether wind, oil, gas, or solar, these always include some level of impact to the surrounding lands, so they aren't pure "conservation", but they do afford an opportunity for a grazing operation or other low-margin business to subsidize itself. I think wind energy may be the lowest impact (assuming your site is windy!), but it still has major impacts from the need to build all the access roads and footings for the windmills.

There is a whole category of land use here where someone is producing large amounts of material and has nowhere to put it, and so a landowner can make money by accepting that material. Landfills are an obvious example, but there are other options that can be more environmentally palatable.

One of these schemes is biosolid placement, where agriculturalists accept the processed solid output from wastewater treatment plants and spread it on their land as fertilizer. In some cases this may enhance carbon sequestration in the soil, too. This also causes significant changes to the landscape and probably wouldn't be appropriate for a wetland. The financial viability of it tends to depend largely on transport costs for the biosolids, so it is most likely to work if you are very near a wastewater plant, a railroad, or a port.

A very similar scheme here is to accept dredge material and use it to re-grade previously drained and subsided wetland.

Similarly to biosolid placement, some farmers are able to accept treated wastewater from a plant and use it as irrigation water while receiving a small fee from the treatment plant.

I don't know how water rights work in New Zealand, but here there are many potentially profitable games to be played with water rights, including selling surface water, selling groundwater pumping rights, or creating a "water bank" whereby surface water on the property is stored in underground aquifers and pumped back out for sale in drought years.
posted by agentofselection at 6:16 PM on June 29, 2020 [2 favorites]

Ooh, just thought of one more interesting land conservation scheme--the grass bank. Check out the Malpai Borderlands Group. NPR did a segment on them several years back, you can listen here: https://www.npr.org/templates/story/story.php?storyId=4464777
posted by agentofselection at 6:19 PM on June 29, 2020 [1 favorite]

Response by poster: agentofselection! thanks for your long response - We do have some similar mechanisms, one of which is QE2 and there are about 30 other frameworks, and yes a whole slew of different funding routes. " connectivity between other conserved lands", yes that is likely to be part of my package, as is a land-swap or similar. Public-lands conservation funding here has become a political football.

The Malpai agreement is very interesting and helpful. In some parts of NZ there is a very bad relationship between government land managers, land-owners and environmentalists. Divisive politicians of all sides find it a handy football every few years and this area is ground zero for that kind of thing.

The land does have unusual geography as it's an ancient terminal moraine (but not yet a protected feature), and in planform (and from distant eye views) is very different from the hundreds of adjacent valleys. I've since found a thesis (from 1967) which includes my site and the author is now someone important which may help.
posted by unearthed at 1:23 AM on July 3, 2020