The first conservation land development term a legal professional should grasp is an economic one: market failure. The Importance of Conservation Land Development Terminology Fully grasping conservation land development terminology, such as market failure, starts with the context in which conservation land development principles are applied: the economy. The economic marketplace and government are society’s two primary mechanisms for coordinating economic activity. Conservation land development is one of the countless economic organizing principles that operate within society’s sphere of economic activity. The economic marketplace’s and the government’s operative mechanisms each play a determinative role in delivering to society both private…

As an interdisciplinary specialty, conservation land development requires integrating knowledge and methods from different disciplines and then harmonizing links between the disciplines into a coordinated and coherent whole.  Among those disciplines, ecology and economic principles unconsciously can be minimized during the crafting and implementation of conservation land development projects, in favor of an overemphasis on-site planning and landscape architecture.  That occurs because site planning and landscape architecture have historically been the focal point of land development.  As a result, typically, there is a pre-existing comfort by those in the legal profession with site planning and landscape architecture terminology. Conversely, for…

This post advocates greater consideration of conservation development techniques at the wildland-housing interface in California’s fire-prone areas to reduce housing destruction risk.  For land use planning to become more effective in mitigating fire destruction risk, it needs to be based on a comprehensive understanding of where and how to locate and arrange new homes within the landscape they are placed. As discussed in my recent post Fire Policy at the Wildland-Housing Interface: The Unsolved Problem Land Use Lawyers Are Well-Positioned to Help Solve, in those parts of California with a Mediterranean climate, land use decisions play a significant factor…

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…

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…

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…

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…