Land Bank Strategies Alexander

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A rticle.s
Land Bank Strategies for Renewing Urban Land
Frank S. Alexander
Abstract Major urban areas are often hampered in their ability to deal with vacant, abandoned, and tax-delinquent properties. They encounter obstacles with inefficient tax foreclosure procedures and ineffective nuisance abatement codes. They face reluctance to add to public inventories the title to deteriorated properties and face restrictions upon the manner in which such properties can be transferred to private third parties. Land banks have emerged as effective tools for the renewal of urban land. With a perspective that vacant, abandoned, and tax-delinquent properties can become assets instead of liabilities, land banks serve to break the barriers to renewal of inner-city properties. Five land banks-beginning in St. Louis and then emerging in Cleveland, Louisville, Atlanta, and Flintdemonstrate how a land bank can operate as a local government authority to transcend the legal and structural impediments to conversion of these liabilities into assets. Introduction Land banking is the story of attention to vacant, abandoned, and usually tax-delinquent parcels of land in the inner cities of our metropolitan areas. It is the story of the relatively recent development (over the past thirty years) of a new program of local governments designed to break the barriers that create and are created by vacant and abandoned properties. Land banks are based on the premise that properties at the heart of "urban blight" can and should be viewed as assets for community development and redevelopment. They are designed to target the structural and systemic
Frank S. Alexander is Professor of Law, Emory Law School, and Director of the Project on Affordable Housing & Community Development. Research for this article was made possible by grants from the FannieMae Foundationand the Local Initiatives Support Corporation.Portions of this article appear in expanded form together with extensive appendices in FRANK S. ALEXANDER, LAND BANK AUTHORITIES: TOOLS FOR COMMUNITY DEVELOPMENT (forthcoming, 2005, the Local Initiatives Support Corporationand the Fannie Mae Foundation). The views expressed herein are solely the views of the author. I am indebted to Brian Moore (J.D., Emory, 2004) for his excellent assistance in the research and preparation of this article.
HeinOnline -- 14 J. Affordable Hous. & Cmty. Dev. L. 140 2004-2005
obstacles that encourage abandonment and that stand in the way of the return of the properties to productive use. Serving a variety of functions depending upon the needs and concerns of a particular community, a land bank's driving purpose is to convert the vacant and abandoned land of our central cities to assets contributing to the health and vitality of a community. The growth-and decline-of urban communities in the latter portion of the twentieth century is the context in which proposals for land banks first emerged. Although initially proposed as far-reaching land use planning techniques, when they were actually authorized at the state level and implemented at the local level, land banks were designed to address a much more immediate and specific purpose-the prevalence of these vacant and abandoned properties. The Context for Land Bank Strategies In the 1960s, sociologists and urban planners viewed urban sprawl as an ever-expanding and haphazard growth of a metropolitan area with development of most distant areas followed by infill development of areas closer to the core city.' The geographic growth of metropolitan areas was largely unregulated, and, to the extent that it was regulated, it was governed by zoning laws that reflected a premise of exclusionary land uses, with the preferred use being the single-family residence. The premise of this sprawl was preference for low-density land use, and the initial response to urban sprawl was primarily to increase the ability of local governments to control and plan ever-expanding areas. One of the proposed responses was a recommendation for large-scale assembly of lands by public entities-the creation of municipal "land reserve" programs in which land could be acquired and held for long-term control of the location and forms of future development. The earliest discussions of "land banks" as urban planning tools of local governments arose in this context. 2 At the same time that urban sprawl was occurring and gaining increased attention, the decline of the inner-city neighborhoods was the focus of massive public initiatives in the various programs of the Great Society-urban renewal and model cities. The urban renewal and model cities programs of the 1950s and 1960s were simply inadequate to deal with the social preferences for the seemingly infinite expanse of open land. The close ties between urban sprawl and inner-city redevelopment became evident a generation later as planners began to focus on "smart growth" techniques-city planning measures designed to break the patterns created by decades of exclusionary residential zoning. The focus by the late 1990s became a "new urbanism" based on the possibility of infill development permitting multiple uses in a given area (mixed use development) and higher population densities per acre. 3 The existence of vacant, abandoned, and tax-delinquent properties in the central cities of metropolitan areas became a key component of smart growth initiatives shortly 4 after the turn of the century.
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Land Bank Authorities Land banks have existed for only thirty years, and have played a key role in five major urban areas. In those cities land banks have served unique and unprecedented functions in the conversion of such properties into productive assets for community redevelopment. The first substantial land bank was created in the early 1970s in St. Louis, Missouri-the St. Louis Land Reutilization Authority-and the newest one created is in Flint, Michiganthe Genesee Land Bank. Between these two points land banks were created in Cleveland, Louisville, and Atlanta. Although they share common historical and doctrinal origins, land banks are not the same as redevelopment authorities. Industrial development authorities initially and urban redevelopment authorities subsequently usually have had as their dominant characteristics a specific and targeted geographic focus, the power to issue tax-exempt financing, and the power of eminent domain. They are designed to use these most significant of governmental powers in the development or redevelopment of a particular location for a particular purpose. In contrast, land banks arose from the recognition that an increasing number of parcels of land, whether privately owned or held by the local government as a result of foreclosure procedures, were not being reclaimed or redeveloped by market forces. Structural, legal, and financial barriers existed, and still exist, that inhibit the access of private markets and public entities to these stagnant properties. These vacant, abandoned, and tax-delinquent properties may be concentrated in certain areas but they are also scattered across neighborhoods and cities in random patterns simply as isolated parcels. There is no single form or function to land banks. Some land banks are actually separate legal entities that are independent authorities, while others exist as programs of municipal departments. Each land bank possesses a slightly different range of powers, and is based on differing legal and departmental structures. Each land bank has a different set of policies and priorities, and each focuses on different strategies for land use and reuse. Such variation is not problematic; it is essential. No two urban areas possess the same social and economic characteristics, and no two jurisdictions possess the same form of allocation of powers between state and local governments. A land bank is a governmental entity that focuses on the conversion of vacant, abandoned, and tax-delinquent properties into productive use. A land bank has two key terms and both give rise to potential confusion. With the exception of those who work within them, and those who work in conjunction with them, land banks are not often understood accurately. The two entities most commonly confused with land banks are Federal Land Banks 5 and various forms of land trusts. 6 Land banks as we know them today, however, bear no correlation to Federal Land Banks, and possess only distant connections to land trusts. When the term "land bank" is viewed as a reference to an entity that assembles and "banks" land for short- or long-term strategic purposes, the
understanding is a bit more accurate. The earliest proposals for land banks emphasized as a primary function the assemblage of large amounts of land as a form of local land use planning, and several of the key land banks today act as the owner of large volumes of publicly acquired tax-delinquent properties. Land Banks for Land Assembly In the midst of studies and proposals in the late 1960s for federal, state, 7 and local legislative reforms, the concept of a "land bank" began to emerge. These early proposals suggested a wide range of purposes and functions for a public land bank, all of which had as their core concept a public entity that would acquire large inventories of land to be held for future control and planning. During this period from roughly 1968 to 1974, land banks became synonymous with proposals for significant public "land reserve" programs. One perspective in the initial proposals argued for the large-scale assembly of public land on the peripheries of central cities as a method of controlling urban sprawl." A land bank would permit the "arrest and eradication of urban sprawl" by preempting the haphazard conversion of agricultural land into subdivisions.9 Another advocate suggested quite simply and directly that a "municipal land-reserve policy may be defined as a deliberate policy to acquire, hold, and dispose of land, where the principal motive of the policy is to provide for or regulate the future growth 0 of the municipality. ' 1 Others asserted that land banks are "public bodies which, by acquiring land in the path of anticipated urban expansion and keeping it free from premature development, can effectively control the pace and direction of growth."" Tied to the proposal of using a land bank for land use control was the argument that the land inventory could be used to impact directly the costs of land for private and public development.' 2 The range of social and cultural problems to be solved by the early visions of land banks was limited only by the creative imagination of the social and urban planners. In 1971, Charles Haar, Professor of Law at Harvard Law School and formerly Assistant Secretary for Housing and Urban Development, testified before a congressional committee and presented a broad proposal for the creation of a land bank.' 3 Set within the context of creating new tools for urban growth and planning, Haar proposed the enactment at the federal level of a metropolitan land bank act that would serve to facilitate and support local authorities in the management, control, and disposition of parcels of land. He envisioned public authorities that, by the acquisition of both strategically located parcels and key areas of undeveloped land, would directly impact the fluctuation of land values and enhance the ability of local governments to engage in land use planning and control. By acquiring such land, and making it available in a planned pattern that imparted more order to the whole process of urban growth, the bank would reduce uncertainty and confusion in the land market. This would be a sta-
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bilization of the market for land-much in the same way as a central bank, 4 such as the Federal Reserve Bank, stabilizes the money market. These ambitious proposals for public control of land as a method of market stabilization and urban planning were picked up by other proponents of the creation of land banks,'- but also were criticized as being overly ambitious and unworkable.', In the context of this tumultuous and creative period of reform lie the seeds for the connection between land banks and vacant and abandoned inner-city properties. In 1967, John Sanger argued that a land reserve policy, in the operational form of a land bank, should be viewed as "a tool for expediting urban redevelopment in declining areas of the city."1 7 With explicit reference to the efforts of the Model Cities Program in the RoxburyNorth Dorchester area of Boston, he suggested that "public ownership of presently vacant land and abandoned buildings could provide greater total returns than were being obtained because, in addition to eliminating their blighting influence, the city could put them to use for various purposes in connection with other programs." 8 William Letwin echoed this point two years later in concluding that "Municipal Land Banks could be very effective instruments for regenerating such decayed land near the center of cities. This land is already 'reserved' by its owners, but it is being reserved in a wrong and costly way."' 9 Charles Haar's own ambitious proposals of recognized that one of the pressures for reform was the "inadequacy 2 0 nuisance law, zoning and urban renewal to deal with urban problems." Project Land Banking With these broad-ranging proposals for multifunction land banks, the concept of advance land acquisition by public entities for specified strategic purposes began to take hold. The earliest variation on this theme was the creation of a specific limited-purpose public entity the function of which was to acquire and assemble tracts of land for a targeted purpose. The 2 creation in 1957 of the Philadelphia Industrial Development Corporation ' and the work of the Milwaukee Land Bank Program from 1964 to 197122 are but two examples of public entities that served as land banks in the sense of targeting, acquiring, assembling, and conveying land for a specific public purpose. Parallel functions can be found in the rapid growth over the course of the last third of the twentieth century in industrial development authorities, urban redevelopment authorities, recreational authorities, and similar local government agencies. In 1968, the Advisory Commission on Intergovernmental Relations identified as a key function of future land banks their role in advance land acquisition for specific projects such as industrial development. 23 The advance acquisition of land for purposes of the development of affordable housing has occurred in two very different contexts. The first was the creation of public housing authorities in the 1930s that have had as their mission throughout the remainder of the twentieth century the
development and operation of housing facilities for individuals and families of low to moderate income. The dominant model from 1935 to 1985 was the creation of large facilities in a single location, and as such the operational approach for land acquisition and assembly did not differ from the strategies and functions of industrial development authorities. A second and substantially different approach to land acquisition for affordable housing was the creation, beginning roughly in the early 1970s, of nonprofit housing development corporations. In contrast to the public-sector housing authorities, these corporations focused primarily on the acquisition and development of single, often geographically dispersed, tracts of land for single-unit or small-scale multifamily affordable housing. In the context of these nonprofit housing development corporations, the role of advance acquisition of parcels of land for future development of affordable housing is a form of land banking that combines elements of both the expansive proposals for land banking and the project-specific approach to land banking. In 1972, the Low Income Housing Development Corporation in North Carolina indicated that "[1hand banking, as a general concept, is not new. Basically, it is acquisition of land to be held for future use... [Wand banking by housing development corporations for the purpose of providing sites for homes for low and moderate income families is, however, a relatively 24
recent concept."
Land banking in the context of a specific project or targeted initiative differs in several critical and fundamental respects from the contemporary role of land bank authorities as tools to address vacant, abandoned, and tax-delinquent land in the inner cities of metropolitan areas. First, project land banking is usually tied to a single public purpose or goal, such as the development of an industrial facility, a recreational facility, or a transportation facility. Second, because it is targeted toward a single use, the efforts of project land banking tend to be focused on a single geographic area for the purpose of acquiring and assembling a sufficient tract of land for the desired activity. Third, adequate land assemblage in a single area is commonly not available through open-market acquisitions, so the power of eminent domain is delegated to or exercised on behalf of the project authority. Fourth, as inducements for the development of the desired activity, the project land bank or project authority provides public financial subsidies in the form of tax-exempt financing, low-interest loans, or tax abatements. The origins of contemporary land banks lie in part, but only in part, in these proposals and programs of the transformative era of the 1960s and 1970s. These initiatives provided a key conceptual foundation for the role of a public authority in land acquisition and assemblage. This role, however, has two different expressions that were new to this era. One is the role of public acquisition and holding of land as a form of land use planning and control. A second is the public acquisition of land for transfer to private third parties for use and development. Both of these expressions of roles became elements of land banks in subsequent decades.
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What was largely overlooked in the initial proposals for public land banking during this period of time was the growing inventory of vacant, abandoned, and tax-delinquent land in the inner cities. Hundreds and thousands of such parcels of land were not viewed as assets for a "bank," but as liabilities to the community. There are several reasons why the early proponents of land banking did not focus on these properties as resources. The geographical dispersion throughout a neighborhood or community of abandoned, tax-delinquent parcels rarely provides the opportunity for easy assemblage of sufficiently large sites for redevelopment. Such properties also tend to be characterized by numerous title defects that inhibit or impair the marketability of the property. The title defects are magnified by inadequate and inefficient legal enforcement proceedings to address code violations and tax delinquency. Finally, only the most romantic, idealistic, or naive of urban planners looks at abandoned structures as assets for the community. Emergence of Contemporary Land Banks Awareness of a significant and rapidly increasing number of abandoned, tax-delinquent properties in inner cities has led to the creation of land banks in five metropolitan areas: St. Louis, Cleveland, Louisville, Atlanta, and Flint. The earliest program, the St. Louis Land Reutilization Authority (the St. Louis Land Bank), emerged in 1971 precisely in the midst of the broad proposals around the use of land banks as tools for urban planning and community development. The distinctive feature behind the St. Louis program and its successors, however, was not as much a desire for longterm metropolitan planning through large-scale land assembly as it was simply a response to a crisis in property tax delinquency and abandonment. Each of these five cities confronted a large inventory of privately owned tax-delinquent properties, or properties acquired as a result of tax foreclosures, and searched for a proactive mechanism that would facilitate the conversion of these properties from neighborhood and community liabilities to long-term assets. The "lineage" of these five land bank authorities is relatively clear and direct?5 Following the formation and implementation of the St. Louis Land Bank during 1971 to 1973, enabling state legislation was approved in Ohio in 1976 that permitted the creation of the Cleveland Land Bank. A little more than a decade later, both Louisville (1989) and Atlanta (1991) created parallel land bank authorities with the approval of intergovernmental agreements. After fifteen years of economic decline triggered by industrial closings, the City of Flint and Genesee County, Michigan, created their own land reutilization council in 2002. In each succeeding instance the local governments examined the programs, priorities, structures, and policies of the preceding land bank authorities and then proceeded to adopt and to adapt a program designed to fit the particular needs of each community. Other cities across the United States have created variations of these land banks (such as Macon, Savannah, and Valdosta, Georgia, and Dallas, Texas)
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or created other structures designed to address similar issues (such as Omaha, Nebraska, and Kansas City, Missouri). These five major land banks have a common focus in addressing abandoned, tax-delinquent properties, and each serves primarily to foster the conversion of tax delinquent properties to productive use. No two of these land banks are identical, however. Because of wide variances in state constitutional law, and state and local allocations of authority, each local land bank is based upon a different underlying legal structure. Each jurisdiction follows a different property tax foreclosure procedure, and each land bank has adopted its own set of operating policies and priorities. While there is substantial overlap among the five major land banks, there are also substantial differences. The majority of the differences reflects the important adaptation of the concept of a land bank authority to fit the particular needs, requirements, and priorities of a given jurisdiction. In a pattern experienced in other metropolitan areas across the country, the City of St. Louis experienced a sharp population decline between 1950 26 and 1970; over 27 percent of its population moved out. By 1972, there were over 2,600 abandoned buildings within the city, with approximately 9 percent (over 12,000) of all parcels being tax delinquent. Because of serious constitutional and procedural defects in the tax foreclosure laws, a property tax foreclosure sale had not been conducted for twenty years. In the face of these problems the Missouri legislature enacted the Municipal Land Reutilization Law in 1971 .27 Building upon the success of a revised 28 land tax collection law applicable to other parts of the state the new statute authorized the use of the revised procedures in St. Louis and coupled it with the creation of the St. Louis Land Reutilization Authority. The concept of such an authority derived from the creation, as early as 1945, of a public entity in Jackson County (Kansas City), Missouri, that was des29 ignated to receive title to all properties not sold at public tax foreclosures. The Jackson County Land Trust has, since its creation, acquired and subsequently sold tax-delinquent parcels. 30 With this precedent, the St. Louis Land Bank began with the enactment of the local enabling ordinance on December 20, 1971. 31 Over the past thirty years of operations, the primary function of the St. Louis Land Bank has been to receive title to all properties that are not sold when a tax foreclosure sale is conducted and to properties that may be donated to the city. It presently functions as one of seven different operating subsidiaries of the St. Louis Development Corporation, and works in tandem with its sister real estate agencies-the Land Clearance for Redevelopment Authority and the Planned Industrial Expansion Authority. 32 At the end of 2001, the St. Louis Land Bank held title to almost 10,000 parcels of land, or 3 percent of the entire land area of the City of St. Louis.33 By 1974, the City of Cleveland, Ohio, found itself in a similar situation to that of St. Louis. It had lost over 18 percent of its population during the preceding two decades and was faced with over 11,000 tax-delinquent 3 4 parcels as well as ineffective and inefficient tax foreclosure laws. A com-
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prehensive study published in 1976 examined the prevalence of tax delinquency in Cleveland and the underlying causes and consequences of delinquency. It reported in detail on the Missouri reforms that had resulted in the creation of the St. Louis Land Bank.3 Partially as a result of this study, legislation was enacted in Ohio in October 1976 to reform the tax foreclosure laws and to authorize local governments to create a land reutilization program. 36 The Ohio legislation, based in large part on the Missouri legislation of 1971, was designed to serve several key goals. First, it modified the tax foreclosure procedure to provide that the foreclosure was an action against the property rather than a personal lawsuit against the owner (an in rem action as opposed to an in personam action). Second, it shortened the length of time required to initiate and complete a tax foreclosure. Third, it provided that properties that remained unsold at a tax foreclosure would be transferred to the land reutilization program. Fourth, it authorized land utilization programs to hold and manage the properties and to convey them to private third parties. 37 As is true of each of the five major land banks, the creation of a land bank was not a solution, in and of itself, to the rate of property abandonment or tax delinquency. In Cleveland, there was a 58 percent increase in vacant parcels between 1977 and 1987 and a 37 percent increase in residential tax delinquency.38 The statutory authority of the Cleveland Land Bank was enhanced by subsequent state legislation in 1988 that permitted the abatement of property taxes held by the land bank, the creation of a dedicated fund for the prosecution of delinquent taxes, and the revision of notice requirements in tax foreclosure 39
proceedings.
In 1988, the Commonwealth of Kentucky enacted legislation authorizing 0 local governments to create a land bank authority.4 In contrast to the approaches taken in Missouri and Ohio, the Kentucky legislation did not contemplate the creation of a land bank as an agency or authority within the structure of an existing local government. Instead, the legislation authorized the creation of new independent public corporations that would be created pursuant to interlocal agreements among key governmental entities. The primary reason for this approach is that in Kentucky as in many jurisdictions throughout the United States, property taxes are levied by a series of separate entities-the city, the county, and the school board. Any action to address outstanding property taxes, whether by tax foreclosure or waiver of delinquent taxes, directly impacts each of these governmental entities. The efforts of a land bank to acquire and convey clear title to abandoned, tax-delinquent properties would be severely impaired without the intergovernmental participation of each taxing entity. A second feature of the approach taken in the Kentucky legislation was that the land bank authority would be created as an independent public corporation, governed by its own board of directors pursuant to articles of incorporation and bylaws. The legal authority of a land bank in Kentucky thus derives from four sources: state land bank enabling legislation, the interlocal agreement, the land bank articles of incorporation, and the bylaws of the land
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bank authority. The Louisville Land Bank Intergovernmental Agreement was signed on February 14, 1989. 41 The local government consolidation of the City of Louisville and Jefferson County in 2002 triggered a technical amendment to the state enabling statute in 2003 to make clear that consolidation would not affect the underlying legal structure of the land bank 42 itself. Just two years after the Kentucky legislative initiative, the Georgia General Assembly in 1990 passed enabling legislation for local governmental 3 land bank authorities. 4 Prompted by the growing inventory of abandoned, tax-delinquent properties in the inner city of Atlanta, this statute was based in large measure on the form and substance of the Kentucky legislation. With a structure of local governments and taxing authorities similar to Kentucky's, the Georgia approach contemplates the execution of an interlocal cooperation agreement and the creation of an independent legal corporation. The Atlanta Land Bank Interlocal Cooperation Agreement was signed on June 12, 1991.44 One of the most significant features of the Atlanta Land Bank is that it possesses the power to waive and extinguish all delinquent property taxes on parcels of land that it acquires and conveys. 45 In contrast to the St. Louis and Cleveland Land Banks, the Atlanta Land Bank does not automatically receive title to properties that are not successfully sold at a tax foreclosure sale. It has the option to bid at such foreclosure sales but in practice the land bank exercises that option only when it anticipates an immediate reconveyance of the property to a developer." The fifth and most recently created major urban land bank in the United States was established in August 2002 by Genesee County, Michigan, and the Charter Township of Flint, Michigan. Unlike its four predecessor jurisdictions, Genesee County was initially not able to take advantage of state legislation expressly authorizing the creation of a land bank authority. Such legislation was under consideration in 2002, but was not signed into law until January 2004.47 In the absence of express statutory authority in 2002, the Michigan Urban Cooperation Act provided an adequate legal basis for creation of a new corporation pursuant to an interlocal agreement that would acquire, manage, and convey tax-delinquent properties." An Urban 49 Cooperation Agreement was executed on August 29, 2002. Unlike Louisville's and Atlanta's, this interlocal agreement expressly contemplated the addition of other cities and townships within the county as parties. In 2003 the City of Flint joined Flint Township and Genesee County in becoming a party to the agreement, and other local governments subsequently joined as parties. The impetus behind the creation of the Genesee Land Bank was the enactment in 1999 of a comprehensive reform of the property tax foreclosure laws. One immediate consequence of this reform statute is that a large number of tax delinquent properties can be foreclosed in a single judicial proceeding following numerous and extensive steps of notification to all interested parties.5 In the event that the property is not redeemed by an owner as part of the foreclosure proceedings, title to the property vests
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absolutely in the foreclosing governmental unit. At each of the first two such tax foreclosure proceedings in Genesee County in February 2002 and February 2003, title to over 1,200 parcels immediately vested in the Treasurer of Genesee County. The bulk of this inventory was subsequently transferred to the Genesee Land Bank. In January 2004, the most ambitious land bank authority statute in the country was enacted by the Michigan legislature.-1 Unlike other states that have enacted statutes permitting local governments to create a land bank, Michigan elected to create a "state land bank fast track authority" with broad-ranging powers. The primary motivation for the state authority was that, unlike other states, Michigan tax foreclosure procedures provided that tax foreclosure properties in many instances would become the property of the state, leaving the State of Michigan with a significant inventory of properties. Local governments in Michigan are granted the option to enter into intergovernmental agreements with the state authority for the creation, 52 at the local level, of land banks. Essential Powers of Land Banks The core legal authority essential for land bank operations is the power to acquire, manage, and dispose of property Related to such activities is the issue of financing the land bank's activities, and the extent to which it covers its operating costs by general budget allocations from the participating local governments, or recovers its costs through its own operations or from prospective tax revenues. The power of eminent domain is often suggested for land bank authorities, but rarely given. Other powers, such as the ability to extinguish delinquent taxes, may also be present.
Acquisition of Property
The acquisition, management, and disposition of vacant, abandoned, and tax-delinquent properties are the primary functions of a land bank. The statutes and interlocal agreements that underlie the existence of a land bank typically provide for a range of powers related to these functions. The acquisition of properties by land banks reflects different approaches, and this inevitably has a profound impact on the overall nature and extent of the operations of the five major land banks. Two of the land banks, the St. Louis Land Bank and the Louisville Land Bank, automatically receive title to all properties that are not sold at tax foreclosure sales for the statutory minimum bid.53 In each case the land bank is deemed to have submitted the minimum bid so that a foreclosure sale is completed and a deed executed. The Cleveland Land Bank similarly receives title to all properties not sold at foreclosure for the minimum bid, but there is a prior stage at which the local government can preselect the properties to be conveyed to the Cleveland Land Bank. 4 In each of these contexts, the land banks receive between 100 and 1,000 parcels of property each year. A different approach is taken under the Michigan legislation, with the land banks being authorized to receive, but not automatically given, properties forfeited to the state
as a result of the tax foreclosure proceeding.55 Part of the reason for this difference is that under Michigan law the tax foreclosure proceedings culminate in forfeiture of the property to the foreclosing governmental unit and not a tax sale as is the case in the other jurisdictions. Also under Michigan law all local governments are given the right to acquire the taxforfeited property prior to its conveyance to a land bank.9 The Genesee Land Bank in Michigan receives roughly 800 to 1,000 parcels of property each year. In contrast to each of these four land banks, the Atlanta Land Bank does not automatically receive title to any property as a result of tax foreclosures. The Atlanta Land Bank possesses the authority (but not the obligation) to tender the minimum bid at a tax foreclosure sale (by agreeing to assume responsibility for the amount of taxes that it subsequently extinguishes), and acquires the property only if there is no higher bid.57 The Atlanta Land Bank does possess the authority to direct the tax commissioner to initiate tax foreclosure proceedings on specific parcels of property.M Four of the five major land banks can receive title through tax foreclosure sales to any kind of property, whether vacant or improved, residential or commercial. The Cleveland Land Bank, however, is largely restricted to receiving title to either unimproved land or land with structures against which the local government has commenced demolition proceedings. It does possess authority to acquire improved properties through the foreclosure process if the local government first determines that the property is "necessary for implementation of an effective land reutilization program." 59 Although the bulk of the properties that are brought within the operations of land banks are properties resulting from tax foreclosures, it is key to a land bank's operations that it have the authority to acquire properties from three other possible sources. First, a land bank should have the ability to acquire from local governments other publicly owned properties, whether acquired years earlier as a result of foreclosure proceedings or properties that have become surplus properties. 60 The St. Louis Land Bank and the Louisville Land Bank appear to have adequate authority to receive from the local governments title to properties other than as a result of tax foreclosures, 61 but elect to focus on the tax-foreclosed properties since they are required to receive all such properties. The Atlanta Land Bank has authority to receive properties from the local governments acquired as the result of drug forfeitures. 62 In addition to tax-foreclosed properties, both the Atlanta Land Bank and the Genesee Land Bank are expressly authorized to receive from the participating local governments any and all properties that the local governments may elect to convey.63 Second, a land bank should have the discretion to acquire properties as a result of voluntary donations and transfers from private owners. For example, the Cleveland Land Bank has the ability to receive properties through a deed in lieu of tax foreclosure, and donative transfers are expressly authorized for the Atlanta Land Bank and the Genesee Land Bank.M The Genesee Land Bank is not required to accept all properties proceeding through the tax foreclosure process, and
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can exercise some discretion in identifying the properties that it seeks to acquire. A third potential source of properties for a land bank is by purchase or lease on the open market. The rationale for such authority is that a land bank could negotiate the purchase of property from a private owner in order to complete an assemblage of property for redevelopment. At present, the only major land bank that clearly possesses such a broad range of acquisition powers is the Genesee Land Bank, although the Louisville Land Bank and the Atlanta Land Bank possess the power to exchange properties for purposes of land assembly by the land bank.
Management of Property
Each of the five major land banks is required by law to maintain an inventory of all property held by the land bank, and to classify the properties according to their potential uses. 6- Ownership of a large volume of properties poses significant challenges reaching far beyond simply listing and classifying the property. The land banks become responsible for all aspects of property management and maintenance, which is not a simple task when the properties contain dilapidated and deteriorating structures. The St. Louis Land Bank is given all powers "necessary and incidental to the effective management, sale, transfer or other disposition of real estate," 66 and both the Louisville Land Bank and the Atlanta Land Bank are granted authority to "manage, maintain, protect, rent, lease, repair, insure, 67 alter, sale, trade, exchange or otherwise dispose of any property." The legislation contains the most extensive enumeration Michigan land bank of management powers and includes a provision that such powers are to be broadly construed to grant complete control to the land bank, "as if it represented a private property owner." 6 Although it may be implicit in the governance authority for the St. Louis Land Bank, the Louisville Land Bank, and the Atlanta Land Bank, the Michigan legislation expressly confers upon the Genesee Land Bank the authority to establish fees and collect rents-a recognition that the Genesee Land Bank can acquire occupied properties or rehabilitate and lease its properties to third parties.69 Among the five major land banks today, the Cleveland Land Bank is the only one that does not exist as a separate legal entity. Instead, as a program of the City of Cleveland, ownership of the properties resides in the city and the city possesses all existing local government powers with respect to the properties in this program. The evolution of land banks over the past twenty-five years has suggested the need to address two specific concerns related to the management of properties by a land bank. Given the number of properties being acquired by land banks as well as the range in the types of properties, recent land banks have express authority to enter into contracts with private third parties for the management and operation of portions of the inventory. The 7 0 Atlanta Land Bank can enter into contracts for "consulting services" and the Genesee Land Bank has the power to enter into management contracts
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and professional service agreements as it deems necessary.71 A second concern that led some proponents of early land banks to be cautious about automatically accepting all tax-foreclosed properties or accepting properties with improvements on them is fear of potential liability under federal or state law for the costs of environmental remediation. Governmental entities are granted limited immunity for environmental cleanup costs when ownership of the property is considered to be an "involuntary acquisition." To ensure that acquisitions by a land bank from local governments would still fall within this safe harbor of protection, the recent Michigan land bank legislation affirmatively provides that the governmental immunity for in72 voluntary acquisitions extends to the properties of the land bank. Disposition of Property One of the barriers to the transfer and transformation of vacant and abandoned properties in inner cities has been the existence of state and local laws regulating the disposition of publicly owned properties. With the majority of these properties being acquired as a result of tax foreclosure proceedings, local governments have found themselves with properties that they do not want, and cannot transfer. Part of the important function of a land bank is to recognize the special nature of these properties and to create a far greater degree of flexibility in the terms and conditions upon which the land bank can convey these assets to third parties. Both the St. Louis Land Bank and the Cleveland Land Bank have the authority to determine the terms and conditions of the sale or other disposition of properties, but with the significant caveat that sales to private third parties must be at fair market value. Created several years after the St. Louis Land Bank and the Cleveland Land Bank had begun operations, the Louisville Land Bank and the Atlanta Land Bank were created with a far broader range of discretion. In both instances the enabling state legislation expressly exempts the land banks from the property disposition requirements otherwise applicable to local governments and delegates to the local governments the ability to establish disposition policies in the interlocal agreements. 73 The Genesee Land Bank has complete authority to establish the terms and conditions for the transfers of its properties. 74 Financing Revenues from Operations With the exception of the Atlanta Land Bank, the primary source of financing for the operations of land banks tends to derive either from the budgets of parallel local government agencies or from the management and disposition of the properties. The St. Louis Land Bank, the Cleveland Land Bank, and the Louisville Land Bank all address questions of property maintenance and property management in tandem with "sister" agencies in the participating local governments. In both St. Louis and Cleveland, a Housing Trust Fund is available to support activities that relate to the transformation of land bank properties into affordable housing.
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When property is transferred by a land bank for more than nominal consideration, the proceeds of the sale are generally available to the land bank for purposes of recovery of costs and expenses and for the operations
of the land bank itself. 75 When a land bank is required to convey properties
at fair market value, there can be a substantial flow of funds from the properties for sustaining the operational budget. The Atlanta Land Bank, in contrast, is required to distribute proceeds from sales back to the participating governments to the extent of the original tax delinquency, with any excess being available for operational expenses. The reliance of the Atlanta Land Bank on annual appropriations for its operating costs, together with its inability to gain substantial funds from the sale and transfer of properties, reflects a policy decision that the activities of the Atlanta Land Bank should be focused on transfers of property at nominal prices as a way of facilitating the development of the properties in a manner most consistent with the stated goals of the Atlanta Land Bank, such as the creation of affordable housing. The Genesee Land Bank has the broadest discretion and authority with respect to its revenues. It is permitted to retain all income from all sources related to its property and operations, and is liable to its participating governments only in the event that it receives funds as payments of property
taxes.
76
Special Funding
Although there is debate as to whether the total operational costs of a land bank are consistent with the costs recovered by transforming the property,7 an economic analysis of the efficiency of a land bank needs to examine not just the "hard" costs of operations and taxes lost but also the costs of the status quo of leaving the land vacant and abandoned (the external costs imposed on surrounding properties as well as lost taxes) and the long-term benefits from returning the land to productive taxpaying status. In recognition of the close connection between the transformative work of the land bank and future property tax revenues, the Michigan legislature provides that 50 percent of property taxes for the five-year period commencing upon transfer to a private third party are returned to the 8 land bank. 7 The Michigan land bank legislation also goes further than any prior parallel initiatives in permitting a land bank to borrow money and issue tax-exempt financing.7
Waiver of Delinquent Taxes
The Atlanta Land Bank is unique among the five major land banks in the manner in which it focuses its statutory and contractual authority to facilitate the conversion of tax-delinquent properties into productive use. The core power utilized by the Atlanta Land Bank is its power "to extinguish all county and city or consolidated government taxes" at the time that the land bank sells or otherwise disposes of the property.8 It uses this power to encourage private third parties to acquire tax-delinquent property
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from existing owners and then engage in a "conduit transfer," in which the property is conveyed to the Atlanta Land Bank, the taxes are extinguished, 81 and the property is reconveyed by the land bank back to the new owner. Reliance on this power and the conduit transfer structure have several advantages. This program allows the private market, whether not-forprofit affordable housing developers or other entities, to identify and select the specific properties that they are willing to redevelop. This provides some assurance that the properties that pass through the land bank will in fact be redeveloped within a specific period of time. This conduit transfer program of the Atlanta Land Bank also has the advantage of not involving in any way the tax foreclosure process. It functionally uses the existence of delinquent taxes as a subsidy to encourage the private market transfers to take place.8 2 Prospective owners of the vacant, abandoned, and tax-delinquent properties are in a position to acquire (by option agreement) the properties they seek without having to be subject to the risk of bidding at foreclosure sales. Because the Atlanta Land Bank does not automatically receive title to all properties that are not sold at tax sales for minimum bids, it has a relatively small inventory of properties at any given time and these consist primarily of other properties conveyed to it by the participating governments. Conduit transfers are essentially simultaneous transfers to the land bank, and then from the land bank to the new owner, leaving the Atlanta Land Bank with no property management or maintenance responsibilities. Core Public Policies of Land Banks Disposition Priorities Disposition policies of land banks are structured both according to the identity of the future owner of the property as well as to the future use of the property. It is common in practice that a land bank will give a priority preference on property dispositions to local governments or other public agencies seeking to acquire the property. Public agencies in Missouri have the right to acquire properties classified by the land bank as "suitable for public use"83 and this is a permitted use, although not a priority use, for the Atlanta Land Bank. 84 The Louisville Land Bank is required to give advance notice to all public housing authorities of anticipated transfers of its property.85 In Michigan the local governments have a right of first refusal on the acquisition of tax-reverted property prior to the conveyance to the 86 land bank. The Atlanta Land Bank gives first priority to "neighborhood non-profit entities obtaining the property for the production or rehabilitation of housing for persons with low-incomes," with a second priority given to all other entities seeking to use the property for low-income housing.87 On a regular basis the Atlanta Land Bank establishes applicable definitions of low in88 come and moderate income to guide its preference for affordable housing. The top priority for the Louisville Land Bank is the transfer of properties
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for residential use,8 9 and priority in the Cleveland Land Bank is given "to those proposals which involve new construction or are necessary for an 0 established development to be retained and expanded." 9 The Genesee Land Bank has established six priorities to govern its disposition of properties: (1) homeownership and affordable housing; (2) neighborhood revitalization; (3) return of the property to productive tax-paying status; (4) land assemblage for economic development; (5) long-term "banking" of properties for future strategic uses; and (6) provision of financial resources for operating functions of the land bank.91 Strategic Banking of Properties The earliest proposals for land banking, originating in the 1960s, envisioned land banks as public entities that would acquire and hold for extended periods of time large amounts of land. 92 The rationale for these major "land reserve" initiatives was primarily that through public ownership of land the local governments could control more effectively land use patterns and development trends. The financial cost of such programs, the multiplicity of local government structures that insisted on autonomy, and constitutional questions about the use of eminent domain for such purposes kept these ideas simply in the proposal stage. What was not contemplated by these early land bank proposals was the large volume of properties within the inner areas of both large and small communities that would become vacant and abandoned in the last quarter of the twentieth century. While land banks were created to facilitate the transfer of ownership of these properties and their redevelopment, they have become-although not necessarily by design-entities that in fact hold significant inventories of properties for future use. This is particularly true in those instances in which a land bank automatically receives title to all properties that pass through a tax foreclosure proceeding without redemption by the owner or purchase by a third party. In its first two years of operation (2002-2003), the Genesee Land Bank became the owner of 2,000 parcels of property. In 2002, the St. Louis Land Bank and its sister agencies had almost 10,000 parcels in inventory, including 2,000 buildings, amounting to roughly 3 percent of the total land area of the City of St. Louis, and 7 percent of all of the parcels of land in the city 93 The inventory of the Cleveland Land Bank ranges from 4,000-6,000 parcels.9 4 The St. Louis Land Bank transfers approximately 500 parcels each year 95 and the Cleveland Land Bank has transferred as many as 500 parcels in certain years. 6 Both the Atlanta Land Bank 97 and the Louisville Land Bank 98 average 100 to 150 dispositions each year. If the primary function of a land bank is to facilitate the transformation of vacant, abandoned, and tax-delinquent properties into new productive uses, then the ultimate success of a land bank is best measured by its own demise. If a land bank is able to eliminate abandoned buildings that are harmful to a neighborhood and to attract new owners willing to invest new funds in development, the very process of abandonment is slowed, and
then halted. Tax delinquency declines and the private market are able to accomplish property rehabilitation and renovation. A community that has no vacant, abandoned, or tax-delinquent property has little need of a land bank. At least one jurisdiction, Cleveland, adopted this perspective as a matter of law by requiring that all land be conveyed from the land bank program within a fifteen-year period. 99 The original vision for land banks as land reserve entities remains relevant, however, in two ways. First, a continuing lack of demand in the private sector for properties within the inner city, as is the case when municipal population has declined significantly, simply means an inadequate number of potential transferees of the land bank properties. In this situation the land bank becomes by default the owner of properties for long periods of time. As owners of significant portions of the land area in their municipalities, the St. Louis Land Bank and the Genesee Land Bank necessarily become lead actors in community and land use planning. Their efforts and emphases inevitably require major policy decisions that will shape the character and culture of the community for decades to come. City and regional planning undertaken either by the land bank staff or in conjunction with sister departments and agencies becomes a major focus in planning for the future uses of their properties. The second aspect of the original vision for land banks that stands as an exception to the "successful demise" of a land bank is the possibility of intentional decisions to hold tracts of land for future uses. A land bank should evaluate its existing inventory of properties with an eye toward public or private uses of the land for which a demand emerges in the future. The easiest example is the identification of properties that could be held for future use as public spaces-parks, open spaces, recreation areaswhen and as the surrounding neighborhoods stabilize and revitalize. Another example would be for a land bank to hold properties pending the development of adequate capacity in the not-for-profit community development sector, or pending the possible expansion of industry, or of existing 00 institutions, such as educational or health care. 1 The Genesee Land Bank has adopted a policy expressly contemplating the transfer of ownership by not-for-profit entities to the land bank to be held pending future development. Governance of Land Banks The governance structure of a land bank reflects three important variables that are different for every city. First is the nature of the allocation of authority between the state government and the local governments. Second is the presence of multiple local governments with overlapping jurisdiction. Third is the set of socioeconomic conditions of the particular community.
Corporate Structure
The formal legal structure for a land bank is determined primarily by the allocation of powers and authority between the state and its local gov-
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ernments. Among the five major land banks, four of them-St. Louis, Louisville, Atlanta, and Genesee-exist as independent public legal entities. The St. Louis Land Bank is an independent authority authorized by stat0 ute.10' In Louisville 1 2 and Atlanta, 10 3 the land banks are authorized by state statute but created pursuant to an interlocal agreement. In Michigan, the land banks are created pursuant to an intergovernmental agreement between the local government and the state land bank authority.' 4 The Atlanta, Louisville, and Genesee Land Banks each has its own articles of incorporation and bylaws. The Cleveland Land Bank does not exist as a separate legal entity independent of the city. Instead, it operates as a program of the city authorized by state statute in which the city elected to participate. 5 The primary advantage of being an independent public legal corporation is a degree of autonomy and independence from the various levels of bureaucracy and from political considerations that may characterize a local government structure. As a separate legal corporation, it must have its own board of commissioners or directors, but these may consist of or be appointed by local government officials. Unless it is a separate land reutilization program expressly authorized by state statute as in the case of Cleveland, a separate legal corporation is necessary so that the entity have powers of property acquisition and disposition that are not subject to the disposition procedures of the local governments. The essential powers of a land bank for property management and disposition, for financing, and for waiver of delinquent taxes need to be specifically authorized by law for the independent corporation, or the program of the city. The existence of a land bank as an independent corporate entity possessing its own powers is a separate issue from whether a land bank can or should have its own independent staff. In the instance of the Louisville Land Bank, the local governments provided in the interlocal agreement that the land bank would not have any employees of its own and that all 6 work would be done by the staff of other local government departments."' As the Cleveland Land Bank is not a separate legal entity, the employees are all employees of the City of Cleveland. The Atlanta Land Bank provides for direct employment of the necessary staff, as do the St. Louis Land Bank and the Genesee Land Bank. Governing Board Whenever a land bank is a separate legal entity, it is by law governed by its own board of directors or board of commissioners. In each of the four major land banks in which this is the case, members of the governing board may be either private citizens or employees of one of the local governments. In all cases they serve without compensation. In St. Louis, the land bank board is composed of three commissioners appointed by the mayor, the comptroller, and the superintendent of the public schools. 1 7 In Louisville, each participating local government appoints one member of the authority, the local school district appoints one member, and the gov-
ernor has one appointment.'08 A similar approach is taken in Georgia, where participating local governments each appoint two members. Under the Georgia structure, a land bank authority may consist of one or more municipalities in a county, together with the county in which they are located, so the size of the board is limited only by the number of parties to the interlocal agreement.' 9 In the Atlanta Land Bank, the city and county school districts may appoint a representative to the board who serves in an advisory capacity" Local land banks in Michigan determine the size, composition, and method of appointment of board members in the intergovernmental agreement, with the statute requiring only that the board consist of an odd number of members and that the country treasurer serve as one of the members."' Administrative Policies of Land Banks Setting Categoriesof Propertiesfor Disposition With a goal of transforming vacant, abandoned, and tax-delinquent properties into productive use, each land bank is faced with the challenge of establishing criteria for the future use of the property and in many instances the identity of the future users of the property. When the inventory available to a land bank has been classified and evaluated, the land bank turns its focus to the disposition of the property. For some land banks, the primary goal is simply to return the property to private ownership that will be responsible in future years for payment of property taxes and for maintaining the property in compliance with building and housing codes. With this overriding purpose, the land bank sets few, if any, preferences or priorities for future use of the land. Any use is permitted by any party so long as it is otherwise consistent with local zoning. The Louisville Land Bank follows a broad standard of evaluating potential uses based on a determination of what is the highest and best use of property for the city." 2 Other jurisdictions, in contrast, have established preferred future uses of properties that are indicative of specific needs of the community. Special disposition programs for the conveyance of "side lots" to the adjoining property owners for nominal consideration have been created by the St. Louis, Cleveland, and Genesee Land Banks. The Atlanta Land Bank is required to adhere to a first-priority use for its properties in the development of affordable housing." 3 The land bank regularly adopts definitions for income eligibility as the operating guideline for what constitutes "affordable" housing."4 A second priority is given to the proposed use of the property for "community improvement or other public purposes." These uses include community gardens, playgrounds, and parking for schools and cultural centers. In order to qualify for this second-priority use, the transferee must demonstrate that no alternative tax-generating use is available and that the proposed use is consistent with area redevelopment plans.
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Both because it is the most recent land bank to be created and thus able to build upon the experiences of the other cities and because of the sheer magnitude of the number of its properties, the Genesee Land Bank has adopted three different categories for evaluating proposed dispositions of property: (1) priorities for the use of the property, (2) priorities as to the nature of the transferee, and (3) priorities concerning neighborhood and community development.1 5 The ranking of priority as to use begins with homeownership and affordable housing, followed by neighborhood revitalization and returning the property to taxpaying status. A total of six potential uses are identified. The priorities as to the nature of the transferee reflect a preference for nonprofit corporations but include a range of five different forms of transferees. The priorities concerning neighborhood and community development essentially serve as guidelines for directing the efforts of the land bank across neighborhoods throughout the entire community.
Identifying Eligible PropertyOwners
Developer Proposals: All land banks require that an individual or entity seeking to obtain property from the land bank submit a written proposal. The written proposal is then used to evaluate both the transferee and the proposed use of the property to make sure that it meets the minimum criteria. There is a wide range in the extent of information that is required by land banks in the development proposal. The Louisville Land Bank requires a letter stating the proposed use of the land, a building plan, and evidence of financial backing. 1 6 The Genesee Land Bank requires an extensive application for commercial land transfers containing the essential information that would normally be required for an application for development financing.' 7 In light of the length of time that may be required to assemble all of the components for a complete development proposal, several of the land banks have an express policy permitting a transferee to acquire an option on the property held by the land bank. The St. Louis Land Bank permits options ranging from three to twelve months."8 The Genesee Land Bank permits a transferee to obtain an option to acquire the property upon payment of 10 percent of the anticipated price. The option is valid for one year and subject to compliance with all other policies." 9 In all jurisdictions both corporations and individuals may apply to acquire property from the land bank. The Atlanta and Genesee Land Banks give preference to not-for-profit corporations planning to use the properties for affordable housing, and the largest transferee of properties from the Cleveland Land Bank has been a not-for-profit housing developer. If it appears that no not-for-profit corporation is interested in or perhaps capable of developing the property, it can be made available to any other private corporation. The St. Louis Land Bank establishes a sales price for land sold to nonprofit entities or entities that will use the property for "a strong public purpose" at 50 percent of the standard price.
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Although all of the land banks seek to have properties returned to productive use and become tax-generating properties once again, most of the land banks are concerned about the possibility of transferees of the properties being individuals or entities whose primary goal is to hold ownership of the land for future resale. The acquisition of land bank properties for long-term speculation may indeed accomplish the goal of placing ownership in a new entity that will pay property taxes. It will fail, however, to meet the parallel goals of revitalization and redevelopment. To address this concern most land banks require not only that the requests for properties set forth specific development plans but also that the development occur within a specific period of time. The Louisville Land Bank is expressly prohibited by statute from conveying property to any entity that plans to hold it "for investment purposes only and with no intent to use the property other than to transfer the property at a future date for monetary 120 gain." Requirements for Owner-Occupied Properties: Both in form and in function, a major result of land bank programs has been the creation of new homeownership opportunities. Land banks that deal only with vacant land accomplish this by transfers to residential developers for sale to new homeowners, or occasionally by transfers directly to an individual who builds and occupies a new residence. Land banks that also deal with properties having residential structures on them transfer these properties to new owners who undertake the structural rehabilitation necessary for occupancy. Properties in these single-family homeownership programs are subject to the same eligibility requirements applicable to other programs. There can be no prior or existing tax delinquency, no existing code violations on other properties, and the proposed development must be completed within a specific period of time. In order to avoid the potential problem of transferees acquiring property solely for purposes of resale, both the Atlanta Land Bank and the Genesee Land Bank require that the transferee occupy the property as his or her principal residence for a period of five years following the date of the transfer.121 Breach of this contractual obligation renders the transferee liable to the land bank for the full value of subsidy provided by the land bank. Establishing the Price: One advantage of possessing tax-foreclosed properties, land acquired by local governments from other liens or sales, or other surplus lands is, at least theoretically, the flexibility of pricing policies. The most significant differences, however, among existing land banks occur in the prices that they charge for the properties they convey. These differences reflect profound differences in state laws and local policies and in the function of the land bank itself. At one end of this spectrum is the classic position of local government law that publicly owned properties must be sold at fair market value. At the other end of this spectrum is the position that the properties should be conveyed to transferees for little or no cash consideration as a way of subsidizing the long-term goals of the land bank.
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There are four primary justifications for requiring that property be transferred for fair market value. The first is that the value received from the transfers can provide revenues both to cover land bank operational costs and to generate possible general revenues to the local government. The second is that transfer of property for less than fair market value confers a benefit on the transferee-a form of gratuity or gift of public assets to private parties. The third justification arises from a concern that transfers for less than full value can result in inconsistent transactions with different parties and the appearance of favoritism. A fourth justification is that properties obtained by a land bank have very little fair market value so there is no obstacle to conveyances. A requirement that full fair market value be obtained for all transfers by a land bank creates, however, a number of problems. The most significant one is that many of the properties end up in the land bank precisely because there is no clear private market for their sale, or no clear market value. A fair market value requirement can ironically undercut one of the goals of the land bank and leave large inventories of properties remaining in public ownership generating no tax revenues. Equally significant is that fair market value transactions often must be based on professional appraisals, which themselves create additional transaction costs for transfers. When the underlying property has little if any development potential, an appraisal requirement is counterproductive. If approval of transfers is required not just by the land bank staff and board but also by the governing body of the local government, the land bank ends up serving little function. Both the St. Louis Land Bank 122 and its predecessor the Jackson County Land Trust (Kansas City, Missouri) 123 have presumptions that property suitable for private use must be conveyed at full fair market value. The St. Louis Land Bank publishes standard selling prices for properties as determined by the land bank based upon its own analysis of the neighborhood conditions and specific property attributes. Properties in certain locations and properties involving commercial, industrial, and riverfront locations require appraisals, as do occupied residential buildings and buildings capable of occupancy. Every deed must indicate whether the property is being sold for an amount equal to or less than two-thirds of fair market value, and, if less than two-thirds, the separate approval of the local governments is required. Property that is suitable for public use or not usable in its present condition can be transferred at no cost. The Louisville Land Bank establishes a minimum price of $300 per parcel for properties to be used as new single-family homes and in all other 1 24 cases sets the minimum price as the tax-assessed value of the property. The Cleveland Land Bank is required to obtain fair market value, but it takes the simple and perhaps most time-efficient approach by selling nonproductive land at its fair market value (which presumably is minimal) and all buildable lots at $100 per lot.25 A land bank has maximum flexibility to meet a range of public goals and policies when the land bank has discretion either to set the selling price
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for the property or to agree that the value of the consideration can be met through the development commitments of the transferee. The Atlanta Land6 1 Bank has complete discretion in establishing the sale price for its property and, as a routine matter, does not require that any cash consideration be paid at the time of property transfers. This approach enables the Atlanta Land Bank to utilize the value of the property as a subsidy to the transferee to assist it in accomplishing the primary purpose of providing affordable housing. With the broadest range of types of properties in its inventory of all land banks, the Genesee Land Bank has adopted a multitiered structure for pricing and payment of consideration, depending primarily on the types of property involved and the nature of the intended uses. 27 Except with respect to its Side Lot Program, the minimum consideration is set at the lower of fair market value or "Project Costs." Project Costs are defined as "the aggregate costs and expenses of the Land Bank attributable to the specific property in question, including costs. of acquisition, maintenance, repair, demolition, marketing of the property and indirect costs of the operations 28 of the Land Bank allocable to the property."'1 Key to the pricing policies of the Genesee Land Bank is its authority to determine when and how the consideration is "paid" by the transferee. When properties are transferred to not-for-profit entities for affordable housing, the amount of consideration is determined both by the value of the property and by the level of indirect subsidy required for the housing to be affordable. The consideration can be provided by annual performance of the commitment to provide affordable housing. Correspondingly, when the Genesee Land Bank elects to transfer property, whether unimproved land, parcels with residential structures ready for occupancy, or commercial tracts, without any restrictions or requirements that the property be used to achieve specific public goals, the consideration is set at fair market value and must be fully paid at the time of the transfer. Possessing a Right to Reacquire Properties: When a land bank transfers properties, it normally does so in anticipation that the transferee will undertake certain commitments concerning development and future use of the property. The initial approach taken to provide assurance of performance of the written commitments was the St. Louis Land Bank requirement that it retain a right of reentry for an eighteen-month period following 13 0 closing. 129 This concept was carried forward to the Louisville Land Bank. The procedures for the Atlanta Land Bank require that all conveyances provide that "title will revert" to the land bank if construction or rehabilitation is not commenced within three years of the conveyance.' 3' The Genesee Land Bank expressly provides that both restrictive real covenants and 1 32 secured financing may be used to enforce the obligations. Conclusion Cities that are confronting significant inventories of vacant, abandoned, and tax-delinquent properties can benefit from the creation of a land bank
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that has as its primary purpose the transformation of these properties into productive uses under new ownership. The work of land banks in St. Louis, Cleveland, Louisville, Atlanta, and Flint over the past twenty-five years demonstrates a range of approaches in overcoming the barriers to renewing urban land. With adequate enabling statutes, land banks can be created in any jurisdiction and adapted to meet the particular needs, concerns, and priorities of each specific jurisdiction. Land banks have become essential tools in the hands of local governments to convert abandoned properties from liabilities into assets.
1. See FRED P. BOSSELMAN, ALTERNATIVES TO URBAN SPRAWL: LEGAL GUIDELINES FOR GOVERNMENTAL ACTION (1968). 2. See, e.g., WILLIAM L. LETWIN, MUNICIPAL LAND BANKS: LAND-RESERVE
POLICY FOR URBAN DEVELOPMENT (1969); SYLVAN KAMM, LAND BANKING: PUBLIC POLICY ALTERNATIVES AND DILEMMAS (1970).
3. See, e.g., Peter A. Buchsbaum,.Old Wine in New Bottles: Redevelopment Tales of a City, Suburb, and a State, 30 URB. LAW. 745 (1998); Rick Cole et al., Building Livable Communities:New Strategiesfor PromotingUrban Landfill, 55 URB. LAND 37 (1996). This included recommendations for zoning and other regulatory requirements for mixed-income residential neighborhoods. See DAVID
RUSK, INSIDE GAME/OUTSIDE GAME: WINNING STRATEGIES FOR SAVING URBAN
AMERICA (1999). 4. See J. M. Schilling, The Revitalization of Vacant Properties: Where Broken
Windows Meet Smart Growth (International City/County Management Ass'n 2002). The National Vacant Properties Campaign of Smart Growth America, Local Initiatives Support Corporation, and International City/County Management Association were launched in July 2003, available at www.vacant properties.org (last visited Nov. 23, 2004). 5. Early in the twentieth century, Congress created a system of federal land banks for the purpose of providing long-term agricultural loans. See Federal Farm Loan Act, Pub. L. No. 64-158, 245, 39 Stat. 360 (1916). In many ways a forerunner to the creation of the federal home loan banks in the 1930s and the gradual emergence of the secondary mortgage market for residential loans, the Federal Land Banks and their sister agencies, the Federal Intermediate Credit Banks, were reorganized and renamed Farm Credit Banks by Congress in 1987. See The Agricultural Credit Act of 1987, Pub. L. No. 100-233, 101 Stat. 568-1718 (1988). These Federal Land Banks did not acquire, convey, or hold property for assemblage or for long-term development. They were (and are) banks in the conventional sense of providing liquidity. 6. The original, and dominant, use of land trusts has been for environmental preservation with millions of acres of land now being held by national and local land trusts for ecological and environmental purposes. See Itzchak E.
Kornfeld, Conserving Natural Resources and Open Spaces: A Primer on Individual Giving Options, 23 ENVTL. L. 185 (1993). See also Randee Gorin Fenner, Land Trusts: An Alternative Method of Preserving Open Space, 33 VAND. L. REV. 1039
(1980). The Institute for Community Economics defines a community land trust as "a private non-profit corporation created to acquire and hold land for the benefit of a community and provide secure affordable access to land and hous-
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ing for community residents." Institute for Community Economics, availableat www.iceclt.org/clt (last visited Nov. 23, 2004). 7. Sylvan Kamm suggests that the earliest reference to a public land bank authority can be traced to a 1937 proposal of the National Resources Committee. See KAMM, supra note 2, at 2, n.6. 8. See BOSSELMAN, supra note 1, at 44-45. 9. David L. Callies, Commonwealth of Puerto Rico v. Rosso: Land Banking and an Expanded Concept of Public Use, 2 LAND USE CONTROLS: A QUARTERLY REVIEW 17, 18 (1968). 10. LETWIN, supra note 2, at 3. Letwin identified fourteen separate functions for the municipal land reserve policies of a land bank. Id. at 19. 11. Richard P. Fishman & Robert D. Gross, Public Land Banking: A New Praxis for Urban Growth, 23 CASE W. RES. L. REV. 897, 899 (1972). 12. See LETWIN, supra note 2, at 19 (one objective may be "to reduce the price of land on the open market"). 13. See Charles M. Haar, Wanted: Two Federal Levers for Urban Land UseLand Banks and Urbank, U.S. Congress, House Committee on Banking and Currency; Papers submitted to Subcommittee on Housing; Panels on Housing Production, Housing Demand, and Developing a Suitable Living Environment 927-40 (June 1971). 14. Id. at 935. 15. See Vance Hartke, Toward a National Growth Policy, 22 CATH. U. L. REV. 231 (1973); Sylvan Kamm, Land Availabilityfor Housing and Urban Growth, Subcommittee on Housing; Panels of the House Committee on Banking and Currency, 92d Congress 263-86 (June, 1971). 16. See KAMM, LAND BANKING, supra note 2; HARVEY L. FLECHNER, LAND BANKING IN THE CONTROL OF URBAN DEVELOPMENT (1974).
17.
JOHN SANGER, LAND BANKS FOR PLANNING AND CONTROL: SOME GEN-
ERAL PRINCIPLES AND A SPECIFIC APPLICATION IV-10 (1967).
18. Id. at IV-18. 19. LETWIN, supra note 2, at 182 ("A municipal land bank should have as its secondary function to assemble, redevelop, and reparcel land in decayed areas within the city, so as to correct and reduce decay within the developed areas."); id. at 235. 20. Haar, supra note 13, at 933. 21. See FLECHNER, supra note 16. 22. See MILWAUKEE DEP'T OF CITY DEV., DIV. OF ECON. DEV., THE LAND BANK: EIGHT YEARS OF INDUSTRIAL DEVELOPMENT PROGRESS, 1964-1971 (1972). 23. See ADVISORY COMM'N ON INTERGOVERNMENTAL RELATIONS, URBAN AND RURAL AMERICA: POLICIES FOR FUTURE GROWTH 110, 161 (1968). 24. LAND BANK HANDBOOK: ADVANCE ACQUISITION OF SITES FOR LOW AND MODERATE INCOME HOUSING A-1 (Carol Van Alstyne ed., 1972). 25. For purposes of simplicity and clarity, this article refers to the land bank programs and activities of these five cities with shorthand references. The formal identities of the programs, and the references as used herein, are: (i) the St. Louis Land Reutilization Authority-the St. Louis Land Bank; (ii) the Cleveland Land Reutilization Program-the Cleveland Land Bank; (iii) the Louisville and Jefferson County Landbank Authority, Inc.-the Louisville Land Bank; (iv) the Fulton County/City of Atlanta Land Bank Authority, Inc.-the Atlanta Land Bank; and (v) the Genesee County Land Bank, Inc.-the Genesee Land Bank.
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26. Kenneth R. Langsdorf, Urban Decay, Property Tax Delinquency: A Solution in St. Louis, 5 URB. LAW. 729 (1973). 27. Mo. REv. STAT. 92.700-92.920. The Missouri initiative was quickly replicated in Nebraska, with the adoption in 1973 of the Land Reutilization Act authorizing the creation of land reutilization authorities throughout the state. NEB. REv. STAT. 77-3201. 28. Mo. REv. STAT. 141.760. 29. See generally www.jacksoncountylandtrust.org (last visited Nov. 23, 2004). 30. See SUSAN OLSON & M. LEANNE LACHMAN, TAX DELINQUENCY IN THE INNER CITY: THE PROBLEMS AND ITS POSSIBLE SOLUTIONS 1 (1976); Langsdorf, supra note 26, at 738. 31. See Langsdorf, supra note 26, at 745. 32. City of St. Louis, St. Louis Development Corporation, available at stlouis. missouri.org/development/realestate (last visited Nov. 23, 2004). 33. City of St. Louis, St. Louis Development Corporation. Summary of 2001 Accomplishments, availableat stlouis.missouri.org/sldc/sldcOl.pdf (last visited Oct. 1, 2003). 34. OLSON & LACHMAN, supra note 30, at 1. 35. See OLSON & LACHMAN, supra note 30. 36. OHIO REv. CODE ANN. 5722.01. See Patricia A. Hemann, Land Banking Tax Delinquent Property:Reform and Revitalization, 27 CLEV. ST. L. REv. 517 (1978). 37. Id. at 526-30. 38. Abandonment of Cleveland's Housing Stock and Potentialfor Redevelopment of Vacant Land, at iii (The Urban Center at Maxine Goodman Levin College of Urban Affairs, Cleveland State University 1990). 39. 1988 Ohio Legis. House Bill 603 (Amended Substitute), approved June 24, 1988. 40. Presently codified as Ky. REv. STAT. ANN. 65.350-65.375. 41. Interlocal Cooperative Agreement Authorizing the Establishment of the Louisville and Jefferson County Landbank Authority, Inc., February 14, 1989 [hereinafter Louisville Land Bank Interlocal Agreement]. 42. See 2003 Ky. LEGIS. Ch. 171 (House Bill 468), amending Ky. REV. STAT. 65.350, 65.355, and 65.360. 43. See GA. LAws 1990, p. 1875, codified as GA. CODE ANN. 48-4-60-65. 44. The original Interlocal Agreement, dated June 12, 1991, was superseded by the Interlocal Cooperation Agreement Establishing the Fulton County/City of Atlanta Land Bank Authority, Inc., dated January 9, 1994 [hereinafter Atlanta Land Bank Interlocal Agreement]. See Frank S. Alexander, The Fulton County! City of Atlanta Land Bank Authority, Inc.: Problems and Promises, (The Atlanta Project, 1994). 45. GA. CODE ANN. 48-4-64(c). 46. See Larry Keating & David Sjoquist, Strengthening a Valuable Resource: The Fulton County/City of Atlanta Land Bank Authority (2001). 47. 2003 Mich. Pub. Act 258; MICH. COMP. LAWS 124.751 et seq. 48. MICH. CONST. Art. III, 5, and Art. VII, 27, 28, and 34; 1951 Mich. Pub. Act 35; MICH. COMP. LAws 124.1, 124.2; 1967 Mich. Pub. Act 7; MICH. COMP. LAWS 124.501 et seq. 49. See Urban Cooperation Agreement between Genesee County, Michigan, and Flint Township, Michigan, for the Genesee County Land Reutilization Council, Inc. (Aug. 29, 2002).
Land Bank Strategiesfor Renewing Urban Land
50. See 1893 Mich. Pub. Act 206, as amended by 1999 Mich. Pub. Act 123; MICH. COMP. LAWS 211.1 et seq. 51. See 2003 Mich. Pub. Act 258; MICH. COMP. LAWS 124.751. 52. See MICH. COMP. LAWS 124.773(4). Pursuant to this legislation, the Intergovernmental Agreement between the Michigan Land Bank Fast Track Authority and the Treasurer of the County of Genesee, Michigan, creating the Genesee County Land Bank was signed December 7, 2004. The land bank created by this agreement is designed to serve as the successor to the initial Genesee Land Bank. 53. See Mo. REV. STAT. 92.830; Ky. REV. STAT. ANN. 65.375(1). 54. See OHIO REV. CODE ANN. 5722.04. 55. See MICH. COMP. LAWS 124.755(3)(b). 56. See id. LAWS 124.755(6). 57. See GA. CODE ANN. 48-4-64(a). 58. See Atlanta Land Bank Interlocal Agreement, supra note 44, at VII.B. 59. OHIO REV. CODE ANN. 5722.01(E)(2). 60. See generally Frank S. Alexander, Renewing Public Assets for Community Development (2000). 61. Mo. REV. STAT. 92.875(1); Ky. REv. STAT. ANN. 65.370(1). 62. GA. CODE ANN. 48-4-61(b), 16-13-49(u)(2.1). 63. See Atlanta Land Bank Interlocal Agreement, supra note 44, at IV.B; MICH. COMP. LAWS 124.755(4). 64. OHIO REv. CODE ANN. 5722.10; Atlanta Land Bank Interlocal Agreement, supra note 44, at IX.A.4; MICH. COMP. LAWS 124.756(3). 65. See GA. CODE ANN. 48-4-63(b); Ky. REv. STAT. ANN. 65.370(2); MICH. COMP. LAWS 124.757(2); Mo. REv. STAT. 92.900(1), 92.910; OHIO REV. CODE ANN. 5722.06(B), (C). 66. Mo. REv. STAT. 92.875(1). 67. Ky. REV. STAT. ANN. 65.370(2)(d); Atlanta Land Bank Interlocal Agreement, supra note 44, at VI.C.4. 68. MICH. COMP. LAWS 124.764(1). 69. Id. 124.756(1)(b). 70. Atlanta Land Bank Interlocal Agreement, supra note 44, at VII.C. 71. See MICH. COMP. LAWS 124.754(1). 72. See id. 124.765(4). 73. GA. CODE ANN. 48-4-63(c); Atlanta Land Bank Interlocal Agreement, supra note 44, at VI.C.4.; Ky. REv. STAT. ANN. 65.370(7); Louisville Land Bank Interlocal Agreement, supra note 41, at V. 74. MICH. COMP. LAWS 124.757(1). 75. See Mo. REV. STAT. 92.915(2) (sales proceeds applied to payment of expenses); OHIO REv. CODE ANN. 5722.08 (sales proceeds applied first to reimbursement of expenses). 76. MICH. COMP. LAWS 124.758. 77. Robert Simons & Dean Thomas Hall, Strategies for More Efficient Utilization of Non-Productive Land (1993). 78. 2003 Mich. Public Acts 260,261; MICH. COMP. LAWS 211.7gg, 211.1021. 79. MICH. COMP. LAWS 124.774. 80. GA. CODE ANN. 48-4-64(c). 81. See Larry Keating & David Sjoquist, The Fulton County/City of Atlanta Land Bank Authority: Program Overview and Application (2001); Lisa Mueller, Atlanta Case Study: Model Practicesin Tax Foreclosureand PropertyDisposition(2003).
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82. See Keating & Sjoquist, supra note 46. 83. Mo. REV. STAT. 92.900(3). 84. See Atlanta Land Bank Interlocal Agreement, supra note 44, at IX.B.2. 85. See Ky. REV. STAT. ANN. 65.365(1). The statute does not require, however, that the Louisville Land Bank convey the properties to housing authorities upon request. 86. See MICH. COMP. LAWS 124.755(6). 87. Atlanta Land Bank Interlocal Agreement, supra note 44, at IX.B.1. The Dallas Land Transfer Program was similarly created to permit the "transfer of tax-foreclosed, seized and surplus properties to an entity or land bank for the purpose of creating or preserving affordable housing." Resolution of the City Council, City of Dallas, Resolution 971504 (approved May 14, 1997). 88. See Atlanta Land Bank Interlocal Agreement, supra note 44, at VI.D. 89. See Louisville and Jefferson County Landbank Authority, Inc., Marketing and Sales Policiesfor Taxable Developments (2002) [hereinafter Louisville Land Bank Policies and Procedures]. 90. City of Cleveland Land Bank Disposition Policy, Gift in Lieu of Foreclosure Procedure(Oct. 1992). 91. PRIORITIES, POLICIES AND PROCEDURES 2 (Genesee Land Bank, Inc., March 2004) [hereinafter Genesee Land Bank Policies and Procedures]. 92. See LETWIN, supra note 2; BOSSELMAN, supra note 1, at 44-45. 93. St. Louis Development Corporation, SLDC Real Estate Fact Sheet, LRAI LCRA/PIEA (Mar. 5, 2003). 94. THE PHILADELPHIA INQUIRER, Cleveland Revives Blighted Neighborhoods by Easing Bureaucracy on Vacant Land (Dec. 3, 2001); Keri Blackwell, Cleveland Case Study: Model Practicesin Tax Foreclosureand Property Disposition (2003). 95. See supra note 93. 96. Norman Krumholz, Land Banking and Neighborhood Revitalization in Cleveland, PLANNER'S CASEBOOK, AMERICAN INSTITUTE OF CERTIFIED PLANNERS (Summer 2002); Cleveland Revives Blighted Neighborhoods by Easing Bureaucracy on Vacant Land, PHILADELPHIA INQUIRER (Dec. 3, 2001); Larry Keating & David Sjoquist, Bottom Fishing: Emergent Policy Regarding Tax Delinquent Properties, 3 (1) HOUSING FACTS & FINDINGS 1 (2001). 97. Keating & Sjoquist, Bottom Fishing,supra note 96. 98. Darla Carter, Abandoned lots get new life: City halts sales to catch its breath, LOUISVILLE COURIER-JOURNAL, June 26, 2001. 99. OHIO REv. CODE ANN. 5722.13. 100. See Keating & Sjoquist, supra note 46, at 48-49. 101. See Mo. REV. STAT. 92.875. 102. See Ky. REV. STAT. ANN. 65.355(1). 103. See GA. CODE ANN. 48-4-61(a). 104. See MICH. COMP. LAWS 124.773(4). 105. See OHIO REv. CODE ANN. 5722.02. 106. See Louisville Land Bank Interlocal Agreement, supra note 41, at IV. 107. See Mo. REV. STAT. 92.885. 108. See Ky. REV. STAT. ANN. 65.360(1). 109. See GA. CODE ANN. 48-4-62(a). 110. See Atlanta Land Bank Interlocal Agreement, supra note 44, at V.A.I.a. 111. See MICH. COMP. LAWS 124.774(4), (5). 112. See Louisville Land Bank Policies and Procedures, supra note 89, 20.
Land Bank Strategiesfor Renewing Urban Land
113. See Atlanta Land Bank Interlocal Agreement, supra note 44, at IX.B. 114. Atlanta Land Bank Interlocal Agreement, supra note 44, at VI.D.2. 115. See Genesee Land Bank Policies and Procedures, supra note 91, at 2. 116. See Louisville Land Bank Policies and Procedures, supra note 89, 19. 117. See Genesee Land Bank Policies and Procedures, supra note 91, at 6.B. 118. See St. Louis Land Bank Policies, available at stlouis.missouri.org/ development/realestate (last visited Jan. 26, 2004). 119. See Genesee Land Bank Policies and Procedures, supra note 91, at 5.A.8, 6.A.8. 120. Ky. REV. STAT. ANN. 65.370(5). 121. See Atlanta Land Bank Owner Occupant Policy (revised Nov. 23, 1998); Genesee Land Bank Policies and Procedures, supra note 91, at 5.A.17. 122. See Mo. REV. STAT. 92.900(3). 123. See Jackson County Land Trust, available at www.jacksoncountyland trust.org (last visited Nov. 23, 2004). 124. See Mo. REV. STAT. 92.895(2). This same approach is followed by the land reutilization commissions in Nebraska. See NEB. REV. STAT. 77.3205. 125. See OHIO REV. CODE ANN. 5722.07; Cleveland Land Bank Policies, available at www.city.cleveland.oh.us/government/departemtns/commdev/ edneihdev/cdndlandbank.html (last visited Nov. 23, 2004). The Dallas, Texas, land transfer program is authorized by statute to transfer tax-foreclosed land at a fixed price of $1,000 for up to 7,500 square feet of land, and an additional $0.133 for each additional foot. TEX. TAX CODE 34.015. 126. See GA. CODE ANN. 48-4-64(e). 127. See MICH. COMP. LAWS 124.755(1), 124.757(1); Genesee Land Bank Policies and Procedures, supra note 91, at 3. 128. Genesee Land Bank Policies and Procedures, supra note 91, at 3. 129. See St. Louis Land Bank Policies, available at stlouis.missouri.org/ development/realestate (last visited Jan. 26, 2004). 130. See Louisville Land Bank Policies and Procedures, supra note 89, 1 22, 25. 131. Atlanta Land Bank Interlocal Agreement, supra note 44, at XI.B. 132. See Genesee Land Bank Policies and Procedures, supra note 91, at 5.A.10.

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Land Bank Strategies for Renewing Urban Land

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Journal of Affordable Housing

Volume 14, Number 2

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Journal of Affordable Housing

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Land Bank Strategies for Renewing Urban Land

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Journal of Affordable Housing

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Journal of Affordable Housing

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ERAL PRINCIPLES AND A SPECIFIC APPLICATION IV-10 (1967).

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