Green Development: Why Developers and End-users Benefit from Smart-growth Practices such as Urban Agriculture

  • By Terrence Rubino
  • 23 Sep, 2015
Zoning may serve as an intermediary between eager horticulture enthusiasts and skeptical property owners and residents in urban areas.  Because of some of the risks, or perceived nuisances, created by urban agriculture, the vast majority of American cities and towns set limits on urban agriculture through their respective zoning codes.  Zoning dates back to the early 1900s, as local governments tried to ensure that humans and industry could comfortably coexist in rapidly urbanizing areas.[32]  Many cities created restrictions by “use,” which prevented the mixing of different land uses, such as residential, commercial, and industrial.[33]  When property owners challenged such restrictions on their property in the case of Village of Euclid v. Amber Realty Co., the Supreme Court held that municipal planning is a constitutional use of state police powers.[34] 
There are several catalysts at play that promote more environmentally conscious urban development. Such development, surely, is partially a response to local governments that are requiring more environmentally friendly practices for land use approvals, especially to secure discretionary approvals. [1]   Some states, for example, have open space requirements, while others encourage such requirements by offering a more intensive use approval in exchange for conservation space. [2]   States have broad authority to grant development only conditionally, and parameters to such authority are established in Nollan v. California Coastal Commission and Dolan v. City of Tigard . [3]   To exercise a taking as a condition to development, there must be, first, a direct relationship between the taking imposed and a legitimate governmental goal, and, second, a proportionality between the taking and the impact of the proposed development. [4]   These conditional takings are limited by the case law and the Constitution.
While many cities have mandated mitigation of environmental impacts through takings, many others mandate impact mitigation through green building practices. The principles of green building are well stated by the principles of Leadership in Energy and Environmental Design (LEED) standards created by the U.S. Green Building Council (USGBC; a private nonprofit providing standardized guidelines for green building). [5]   Such practices take into account the environmental impacts of developments in multiple categories: site selection; water use; energy use; materials (including sustainable sourcing); indoor environmental quality; and design. [6]   Some municipalities and states place more of an emphasis on green building practices than others. Therefore, municipalities’ open space and green building requirements can explain only some of the environmentally responsible practices of development. 
In recent years, many developers are leaning toward green development exceeding the minimum standards required by municipalities or state governments. One incentive may certainly be straightforward monetary advantages. The federal government offers multiple tax credits for developers who decrease the heating and cooling energy required for residences, as well as incentives for those who create energy efficient commercial buildings. [7]   States and municipalities may also waive application fees or expedite reviews of green projects, as well as offer tax increment funding. [8]   Moreover, when local government officials are involved in the design review process or land use decision-making, developers may use better environmental practices to appeal to abutters and local constituents who have grown to value the environment in recent years. And end users have also found increases in the productivity and attendance of workers inside green buildings in comparison with those in traditional buildings, perhaps in large part due to the improvements in interior environmental quality that are a part of LEED certification. [9]   Such improvements in productivity can save significant amounts of money for businesses. These financial incentives, along with requirements and conditional use incentives and green building standards promulgated by local governments, help explain why developers have chosen to go green.  Still unexplained, though, is that developers and community organizations have vastly promoted urban agriculture in recent years despite the difficulty in making direct profit from such development.
An increase in urban agriculture is caused, in part, by an increase in public demand for local food. [10]   Indeed, consumers are increasingly supporting local agriculture at farmers markets—between 2011 and 2012, there was a nationwide increase of 9.6 percent in the number of farmers markets. [11]  Consumers have an interest in the healthfulness and quality of their food that can only be sated by local food production, which minimizes the use of fossil fuels and other transportation pollution. It appears that urban dwellers, many of whom have been negatively affected by insufficient access to healthy food, are becoming increasingly receptive to healthful, local food options.
Urban agriculture can take many different forms and include the production of plant or animal life for human consumption in the urban context instead of in more traditional, rural farming areas. [12]   Urban agriculture relies on resources such as space and nutritious soil, services such as financing and cultivation workers, and products such as tools and vending spaces, to create consumable goods that serve members of the urban area in which they are grown. [13]   The methods of cultivating goods are highly variable, and can include street level plots on small urban lots, on rooftops, or hydroponic growing on contaminated urban lots. [14]
Rooftops provide a particularly green option. When cities are densely developed, there is less urban sprawl and less need for transportation and roadways that cause greenhouse gases, waste water management problems, and other harmful environmental effects. Rooftops make up at least 30% of a typical city’s total land area. [15]   By utilizing these areas for agriculture, buildings can be better insulated from cold and heat to reduce energy consumption, thus decreasing monetary and energy expenses and greenhouse emissions. [16]   The buildings can also be closer together and house more individuals and businesses, which reduces transportation needs and preserves conservation land in suburban and rural areas. And the amount of food that can be produced in these small urban plots is both surprising and socially sustainable. By way of example, Havana, Cuba is able to produce one half of all vegetables consumed in the city within city limits. [17]
There are, however, multiple risks to urban agriculture. Pesticides might be overused or misused. [18]   Livestock on urban parcels can increase the risk of zoonotic diseases, i.e., diseases transferable from animals to humans. [19]   Unsightly or un-maintained agricultural areas may detract from property values, lowering investment in urban areas and decreasing the urban tax base. [20]   There is also a risk that the food itself will become contaminated, particularly when situated near heavy industrial areas or roadways with heavy automobile traffic. [21]   But many of these risks are mitigated by careful zoning regulations, such as those prohibiting farm animals in densely populated areas. [22]
Brownfields pose a particularly interesting combination of challenge and opportunity for developers considering urban agriculture. Brownfields sites are plots on old industrial areas, sometimes marked by substantial contamination. [23]   The type and extent of contamination dictates the cost of a clean-up. [24]   Financial incentives to clean up brownfields are often available to developers, but brownfields sites are often located in areas that, although urban, are not in demand for development. [25]   Moreover, the federal government established the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), which held “potentially responsible parties” accountable to fund clean-up expenses on contaminated sites. [26]   This act stalled development of brownfields sites as developers feared extreme financial liability should they purchase such a site. [27]  
In 2002, Congress amended the CERCLA statute with the Small Business Liability Relief and the Brownfields Revitalization Acts. [28]   Indeed, these acts reduced liability of investors who participated in a cooperative cleanup plan. [29]   States simultaneously created incentives for brownfields development; many states offer voluntary cleanup programs that do not require the stringent standards of CERCLA, but rather allow for less thorough soil remediation when the site is limited to industrial or commercial use. [30]   State programs are problematic for the urban horticulturist, however, because they rely on redevelopment of brownfields for commercial or industrial uses instead of producing clean, environmentally sound plots that can produce safe food. [31]   Brownfields sites present a unique opportunity for urban agriculture. If cleaning the site is economically feasible, agriculture may be a great use that will reduce blight on vacant sites which would otherwise not be desirable to commercial or industrial developers. But there are also risks that these contaminated parcels cannot or will not be adequately remediated prior to use.
Zoning may serve as an intermediary between eager horticulture enthusiasts and skeptical property owners and residents in urban areas. Because of some of the risks, or perceived nuisances, created by urban agriculture, the vast majority of American cities and towns set limits on urban agriculture through their respective zoning codes. Zoning dates back to the early 1900s, as local governments tried to ensure that humans and industry could comfortably coexist in rapidly urbanizing areas. [32]   Many cities created restrictions by “use,” which prevented the mixing of different land uses, such as residential, commercial, and industrial. [33]   When property owners challenged such restrictions on their property in the case of Village of Euclid v. Amber Realty Co. , the Supreme Court held that municipal planning is a constitutional use of state police powers. [34]
If you have further questions about zoning, urban agriculture, green development, or land use matters, please contact one of GSK&G’s real estate attorneys at (508) 756-6206.
 
[1] Matthew J. Parlow, Greenwashed?: Developers, Environmental Consciousness, and the Case of Playa Vista , 35 B.C. Envtl. Aff. L. Rev. 513, 514-517 (2008). . [2] Id . at 517. [3] Id . [4] Id . [5] Id . at 519. [6] Id . [7] Id . at 521. [8] Id . at 521. [9] Id . at 522. [10] Stephanie A. Maloney, Putting Paradise in the Parking Lot: Using Zoning to Promote Urban Agriculture , 88 Notre Dame L. Rev. 2551 (2013). [11] Id . at 2560. [12] Kate A. Voigt, Pigs in the Backyard or the Barnyard: Removing Zoning Impediments to Urban Agriculture , 38 B.C. Envtl. Aff. L. Rev. 537, 540 (2011). [13] Id . [14] Id . [15] See Adrienne Lyles-Chockley, Building Livable Places: The Importance of Landscape in Urban Land Use, Planning, and Development , 16 Buff. Envtl. L.J. 95, 114 (2009). . [16] Id . [17] Id . [18] See Voigt, supra note 12, at 545. [19] Id . [20] Id . at 546. [21] See Maloney, supra note 10, at 2561. [22] See Voigt, supra note 12, at 549. [23] Catherine J. LaCroix, Urban Agriculture and Other Green Uses: Remaking the Shrinking City , 42 Urb. Law. 225, 276 (2010).  [24] Id. [25] Id . [26] Id . at 277. [27] Id . [28] Id . at 278. [29] Id . [30] Id . at 279. [31] Id . at 280. [32] Maloney, supra note 10, at 2569. [33] Id . [34] Id .
 

GSK&G Legal News

By Darren Griffis 06 Nov, 2017

In a decision that will significantly impact the evidence that can be used against defendants charged with driving under the influence of marijuana (or, as they say in Massachusetts, operating under the influence or “OUI”), The Massachusetts Supreme Judicial Court recently restricted the extent to which field sobriety tests (FSTs) can be used as evidence of marijuana intoxication at trial. In Massachusetts, if a defendant is charged with OUI for allegedly being under the influence of alcohol, a police officer can testify about the person’s level of intoxication based on how they perform on the FSTs. However, the Court found that police officers may not use their observations of a defendant’s performance on these tests as a basis for drawing a conclusion about whether the defendant was under the influence of marijuana.

The case, Commonwealth v. Gerhardt , stems from a 2013 traffic stop in which the defendant, Thomas Gerhardt, allegedly “failed” multiple FSTs after being pulled over by a state trooper. Based on the defendant’s inability to adequately perform the tasks involved in these FSTs, the officer testified that he came to the conclusion that the defendant was “high” after smoking marijuana. Mr. Gerhardt’s attorney argued that such tests were designed to test one’s alcohol intoxication level and that they do not directly translate to the context of marijuana use. Fortunately for Mr. Gerhardt, the SJC agreed with that argument.

 While standard FSTs are generally accepted by courts as reliable representations of a person’s intoxication from alcohol consumption, there is no scientific consensus about whether the tests are indicative of marijuana impairment. According to the SJC’s decision in Gerhardt , scientists have found that, unlike alcohol, which has a relatively predictable effect on most people, marijuana can affect different people in vastly different ways. Because of this variation, the court concluded that the FSTs do not necessarily predict whether a defendant is under the influence of marijuana. Thus, the court concluded that an officer may only testify as to his or her observations of a defendant’s performance on the tests and not about whether he or she concluded that a defendant was under the influence of marijuana based on the defendant’s ability to complete the administered tasks. 

Furthermore, after the court’s decision in Gerhardt , an officer may not testify that a defendant “passed” or “failed” any FST, since that language “improperly implies that the FST is a definitive test of marijuana use or impairment.” The court also instructed that officers should avoid calling the FSTs “tests” in these types of cases and should instead refer to the tests as “roadside assessments” to prevent a jury from impropely jumping to a conclusion that the tests are scientific evidence of a defendant’s sobriety or intoxication. Finally, the court included model jury instructions for future trials that will tell juries that evidence of performance on FSTs alone is not sufficient to support a finding that a defendant’s ability to drive safely was impaired due to the consumption of marijuana.

If you are facing criminal charges, including charges that you drove a car while under the influence of marijiuana, please contact James Gribouski or Darren Griffis at Glickman, Sugarman, Kneeland & Gribouski for more information about how they can put their legal knowledge to work for you.

By Darren Griffis 01 Nov, 2017

November 1, 2017, East Brookfield District Court, East Brookfield, Massachusetts

Attorney James J. Gribouski’s client, a twenty-two year old Webster, Massachusetts woman was stopped by a Dudley, Massachusetts police officer for allegedly crossing the middle lines on the roadway. After the client performed standardized field sobriety tests, including the walk and turn and one-legged stand, the officer arrested her for OUI.

Attorney Gribouski obtained the police reports and booking video, and after reviewing that evidence, recommended that his client proceed to trial. At trial, Attorney Gribouski cross-examined the police officer on his observations of the client and presented a copy of the booking video in his client’s defense. After the judge heard the cross-examination of the officer and watched the booking video, Attorney Gribouski's client was acquitted of the OUI charge.

By Darren Griffis 31 Oct, 2017

October 27, 2017, Central District Court of Worcester, Worcester, Massachusetts

Attorney James J. Gribouski’s client, a twenty-seven year old native of Revere, Massachusetts, was happily cruising down Route 146 at 94 miles per hour in Uxbridge, Massachusetts, smoking a bowl of marijuana when a Massachusetts State Trooper pulled him over. After the client admitted that he had just smoked the marijuana, the Trooper requested that he perform field sobriety tests and then charged the client with OUI marijuana.

During the pendency of the case, the Massachusetts Supreme Judicial Court issued an important decision in  Commonwealth v. Gerhardt .  In that case, the SJC ruled that police can no longer offer an opinion as to whether a person was impaired by marijuana based on field sobriety tests (which are now to be referred to as "roadside assessments). Based on that recent ruling and his evaluation of the facts in the trooper's report, Attorney Gribouski recommended that his client proceed to trial, and the client was quickly acquitted.

By Darren Griffis 26 Oct, 2017

October 26, 2017, Concord District Court, Concord, Massachusetts

Attorney James J. Gribouski’s client was stopped at a Massachusetts State Police Sobriety Checkpoint in Concord, Massachusetts. After performing field sobriety tests he was arrested for OUI. After carefully reviewing the police reports that he obtained, Attorney Gribouski recommended that his client proceed to trial.

At trial, Attorney Gribouski was able to point out several issues with the prosecution's case during cross-examination of the arresting officer. For example, he established that she did not observe that his client had slurred speech or was unsteady on his feet. Additionally, the officer testified that she did not see the client drive in an erratic manner.  After establishing these favorable facts, Attorney Gribouski was able to rest his case without calling any witnesses. The judge then found his client not guilty of OUI.  


By Darren Griffis 23 Oct, 2017

In a landmark recent decision, Brangan v. Commonwealth , the Massachusetts Supreme Judicial Court held that judges must take a defendant’s financial resources into consideration when setting bail in a criminal case. Moreover, the SJC made it clear that, where the amount of bail appears to exceed a defendant’s financial resources, a judge must provide written or oral findings of fact and a statement of reasons for the bail decision.

This ruling is the result of a challenge to a lower court’s refusal to lower a $50,000 cash bail for a defendant who was confined for three-and-a-half years in Hampden County pending armed robbery charges. In reversing the Superior Court’s denials of the defendant’s requests for a lower bail, the SJC ruled that the judges failed to properly account for the defendant’s financial resources when in setting the amount of bail in the case.

According to the court, judges violate defendants’ due process and equal protection rights when they set bail amounts that have the effect of confining indigent defendants while charges are pending without regard for their financial constraints. Defendants who cannot afford to post bail suffer a loss of liberty during a period when they are supposed to enjoy a presumption of innocence and also lose the ability to fully participate in the preparation of their defense. While the court unfortunately stopped short of requiring judges to set a bail in an amount a defendant can afford, the decision in Brangan made it clear that judges must more clearly delineate the reasons for setting a bail that a defendant will not be able to pay.

Although judges were already required to consider a defendant’s financial resources in setting bail, this ruling should require judges to more carefully weigh that particular consideration, as well as requires judges to provide a statement of reasons when the bail amount exceeds the defendant’s resources.

If you are facing criminal charges, please contact James Gribouski and Darren Griffis at Glickman, Sugarman, Kneeland & Gribouski for more information about how they can put their legal expertise to work for you.


By Darren Griffis 23 Oct, 2017

In August, Massachusetts’ Executive Office of Public Safety and Security (the “EOPSS”) launched an investigation into the Office of Alcohol Testing (the “OAT”), the agency responsible for ensuring the reliability of breath test machines used by police officers in drunk driving investigations. The EOPSS recently released its summary of that investigation, which concluded that the OAT systematically withheld documents from defense attorneys during the pendency of a lawsuit challenging the reliability of breathalyzer test results because of an “unwritten policy not to turn these documents over to any requester.”  The documents that were withheld contained evidence that some of the breathalyzer machines were not properly calibrated during the process used to certify the devices.  

As a result of the investigation, the head of the OAT was fired. The EOPSS report laid the blame for the failure to provide the potentially exculpatory evidence squarely on the leadership of OAT, concluding that the agency committed “serious errors of judgment in its responses to court-ordered discovery, errors which were enabled by a longstanding and insular institutional culture that was reflexively guarded . . . and which was inattentive to the legal obligations borne by those whose work facilitates criminal prosecutions.” OAT’s failure to turn over documents allowed prosecutors handling the cases in which defense attorneys were challenging the breath test machines’ reliability to incorrectly represent that the state had complied with its discovery obligations.

Questions about the reliability of the particular breathalyzer (the Draeger 9510) were initially raised in 2015, but were ultimately dismissed by prosecutors, who maintained that any flaws in test results were because of mistakes made by officers in calibrating the machines and not because the machines themselves were malfunctioning. Defense attorneys again raised suspicions about the tests in July after a judge ordered the State to hand over roughly 400 worksheets that accompany breathalyzer calibration checks performed by state chemists, which had strangely not been disclosed by the State. When the missing worksheets were finally turned over, defense attorneys discovered that they documented serious flaws with the results that OAT obtained during the certification process.

The investigation raises series questions about over 58,000 drunk-driving prosecutions in which the Draeger 9510 machines were used. These cases date back to 2011 that and could impact more than 750 defendants over that time period.  A further hearing on the problems with the breath test machines is scheduled for mid-November.

Massachusetts has been involved in a series of scandals involving state laboratories’ failure to properly maintain and analyze evidence. The convictions of two state chemists, Annie Dookhan and Sonia Farak, resulted in the dismissal of more than 21,000 charges against defendants who had drug cases. This investigation by EOPSS and the ongoing litigation regarding the state’s use of the breathalyzer machines is especially critical given that the OAT is the only agency in the state that performs scientific testing that is not audited by an independent accrediting organization.

If you pleaded guilty to, or were convicted of, driving under the influence of alcohol or OUI as the result of breath test results, you may have grounds to challenge your conviction. Although this post does not constitute legal advice, you should contact Attorneys James Gribouski and Darren Griffis at Glickman, Sugarman, Kneeland & Gribouski to find out whether your case may be impacted by the pending investigation.

By gskandg 29 Sep, 2017
September 28, 2017, Central District Court of Worcester, Worcester, Massachusetts Attorney James J. Gribouski’s client, a thirty-two year old Worcester, Massachusetts man was stopped in Auburn, Massachusetts by an Auburn police officer for operating without headlights.  After speaking with the client and detecting a strong odor of fresh marijuana, the client was requested to perform […]
By gskandg 27 Sep, 2017
September 26, 2017, Central District Court of Massachusetts, Worcester, Massachusetts Attorney James J. Gribouski’s client, a twenty year old Assumption College student was stopped by an Assumption College campus police officer for not having any taillights.  After giving him field sobriety tests, the officer arrested the client for OUI/DWI. Attorney Gribouski recognized that the roads […]
By gskandg 27 Sep, 2017
September 26, 2017, Central District Court of Worcester, Worcester, Massachusetts Attorney James J. Gribouski’s client, a twenty-six year old Worcester, Massachusetts woman was stopped by a Massachusetts State Trooper on Harding Street in Worcester, Massachusetts.  After giving the client field sobriety tests, the trooper arrested the client for OUI/DWI. Attorney Gribouski obtained the police reports […]
By gskandg 27 Sep, 2017
Operating a motor vehicle while under the influence (OUI) is a serious offense no matter where you live. But in Massachusetts, the repercussions you may face if you are convicted of this offense can be particularly harsh. A first conviction can get you up to two-and-a-half years in jail, a year-long driver’s license suspension, and […]
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