Urban land management policies and land market operations have taken on greater status in the debate on urban public policy in Latin America, and they are given increased attention in academic research and the development agendas of many countries in the region. Over the past 10 years the Lincoln Institute’s Program on Latin America and the Caribbean has supported a network of Latin American scholars and practitioners who have developed seminars, promoted research, organized public debates, consulted with decision makers and published their findings on these timely issues. Members of this network met at a conference in Buenos Aires in April 2004 to assess their activities and prepare this summary declaration of core land policy issues crucial to the search for more sustainable urban development programs in the future.

Urban land policy in Latin America and the ways that land markets operate tend to produce cities that are economically unequal, politically and socially exclusionary, spatially segregated and environmentally unsustainable. The consequences of these policies can be seen in the high and often irrational prices for land, due in part to the absence of effective urban land management practices.

The Current Situation

Land markets are structurally imperfect. However, the functioning of urban land markets depends on social relations, just as the outcomes of land market operations affect those relations, making it both possible and necessary to influence the markets. Instead of removing the imperfections, many instruments and policies have in fact helped to distort urban land market operations even further. Moreover, many established policies have kept the “rules of the game” in urban real estate unchanged, and apparently untouchable.

A more comprehensive reading of the problem reveals that, rather than being the result of inconsistent rationalization, the current dysfunctional land market is the result of missed opportunities for socially sustainable development in Latin American cities. Yet there are promising and innovative alternatives that can overcome the existing bottlenecks evident in inadequate and destructive national government policies, the enduring difficulties in financing urban development, and poor management practices.

One of the most glaring negative outcomes of the current situation is the relative persistence, weight and importance of informal urban land markets dominated by many exclusionary practices, illegal titling, lack of urban services, and other problems. Deregulation in places that should be regulated (poor outlying areas on the urban fringe), overregulation of wealthy regulated areas, and privatization policies that disregard social criteria are factors that help to drive these negative processes, particularly the spatial concentration of the urban poor. Although the majority of regularization programs are well-intended, they instead cause perverse effects, including increased land costs for the poorest sectors.

Traditional urban planning processes and urban standards have lost importance and effectiveness as instruments for guiding urban development, especially the existing mechanisms for land management. Yet this situation offers opportunities to think about innovative ways to deal with land management and urban planning strategies. This opportunity has already been seized in some places, where new experiments and proposals are causing intense debates by questioning the predominant traditional approaches.

Creating new practices within this framework requires making one unavoidable step: rethinking urban land taxation by incorporating new methods and keeping an open mind regarding alternative fiscal instruments that must be intended as tools to redirect current urban development and discipline the operation of the urban land market. These new tools should not only collect funds in order to build infrastructure and provide urban services, but also contribute to a more equitable distribution of benefits and costs, especially those associated with the urbanization process and the return of recovered land value increments to the community.

Proposals for Action

Recognize the indispensable role of the government. It is critical that the government (from local to national levels) maintains an active role in promoting urban development. The local level should be more committed to structural changes in land management, while the national level should actively foster such local initiatives. Government must not ignore its responsibility to adopt urban land market policies that recognize the strategic value of land and the specific characteristics of how land markets operate, in order to promote the sustainable use of the land by incorporating both social and environmental objectives and benefiting the most vulnerable segments of the urban population.

Break the compartmentalization of fiscal, regulatory and legal authorities. Lack of cooperation among local authorities is responsible for major inefficiencies, ineffective policies, waste of scarce resources and inadequate public accountability. Furthermore, incongruent actions by different public authorities send misleading signals to private agents and create uncertainties if not opportunities for special interests to subvert government plans. The complexity and scale of the challenges posed by the urban social reality of Latin American cities require multilateral actions by numerous stakeholders to influence the operation of urban land markets (both formal and informal), thus insuring the achievement of joint objectives: promoting sustainable and fair use of land resources; reducing land prices; producing serviced land; recognizing the rights to land by the urban poor; and sharing the costs and benefits of urban investment more evenly.

These authorities must also coordinate urban development policies with land taxation policies. They should promote a new urban vision with legislation that recognizes the separation of building rights from land ownership rights, with the understanding that land value increments generated from building rights do not belong exclusively to landowners. Urban managers must also devise creative mechanisms whereby these land value increments may be mobilized or used to produce serviced land for low-income social sectors, thereby offsetting urban inequalities.

Recognize the limits of what is possible. Transforming the current regulatory framework that governs the use of urban land requires new legal and urbanistic thinking that recognizes that inequalities and socio-spatial exclusion are intrinsic to the predominant urban development model. Even within the current model there is substantial room for more socially responsible policies and government accountability. Urban regulations should consider the complexity of land appreciation processes and enforce effective traditional principles such as those that restrain the capacity of government agencies to dispose of public resources or proscribe the “unjustified enrichment” of private landowners.

Break vicious cycles. Alternatives to existing regularization programs are needed to break the vicious cycle of poverty that current programs help to perpetuate. It is important to recognize that these programs are only a stopgap measure and that urbanization, housing and land taxation policies must also be integrated into the process. Reliance on housing subsidy policies, although inevitable, can be nullified if there are no mechanisms to prevent these subsidies from being translated into an increase in land prices. City officials should give priority to the creation of more serviced land rather than new regularization programs, since the right to a home is a social right to occupy a viable “habitat” with dignity. It is also important to understand that the low production of serviced land per se contributes to withholding the supply and, therefore, to higher prices affecting all aspects of urban development.

Furthermore, individual solutions (such as plot-by-plot titling processes or case-by-case direct subsidies to individual families) ultimately result in more costs for society as a whole than broader, collective solutions that incorporate other aggregate values such as public spaces, infrastructure investment and other mechanisms to strengthen social integration. Many Latin American countries have witnessed subsidized housing programs, often supported by multilateral agencies, where the land component is overlooked or dismissed. Such programs seek readily available public land or simply occupy land in intersticial areas of the city. This disregard of a broader land policy compromises the replicability, expansion and sustainability of these housing programs on a larger scale.

Rethink the roles of public and private institutions. Land management within a wide range of urban actions, from large-scale production of serviced land for the poor to urban redevelopment through large projects, including facelift-type actions or environmental recovery projects, requires new thinking about how public institutions responsible for urban development can intervene through different types of public-private associations. Redeveloping vacant land and introducing more flexibility in the uses and levels of occupancy can play a crucial role here, provided such projects fall under the strategic guidelines of public institutions, are subject to monitoring by citizens, and incorporate a broadly shared and participatory vision of urban development.

Showcase projects such as El Urbanizador Social (The Social Urbanizer) in Porto Alegre, Brazil, the Nuevo Usme housing project in Bogotá, Colombia, and that country’s value capture legislation are examples of sensible and creative efforts that recognize the importance of adequate urban land management and new thinking on the role of land, particularly the potential of land value as an instrument for promoting more sustainable and equitable development for the poor in our cities. Creative and balanced new thinking is also exemplified by the joint ventures of public land and private capital in Havana, Cuba, with value increments captured for upgrading densely populated historic areas.

Empower the role of land taxation in public finance to promote urban development. National, state or provincial and local governments must share responsibility for promoting property taxation as an adequate and socially meaningful method of financing and fostering urban development. The property tax should be sensitive and responsive to Latin American cities that have a strong legacy of marked economic and socio-spatial differences. There may be good reasons to tax land at a higher rate than buildings, in a rational and differentiated manner, especially in outlying areas subject to urban speculation and lands offered ex ante to low-income sectors of society (making certain that paying the tax also helps to build citizenship in these sectors). As already noted, it is also critical to create innovative fiscal instruments appropriate to special situations and other methods for capturing the value generated.

Educate stakeholders in the promotion of new policies. All actors involved in these processes, from judges to journalists, from academics to public officials and their international mentors, need in-depth training and education in the operation of land markets and urban land management in order to achieve the above objectives. We must identify the “fields of mental resistance,” particularly in urban and economic thinking and in the legal doctrines that represent the obstacles to be overcome. We must recognize, for example, that an “informal right” exists and operates in many areas to legitimize land transactions socially, if not legally, and to create networks and spaces of solidarity and integration. It is urgent that we take steps to introduce these themes and proposals into political agendas at the various government levels, in political parties, social organizations, academia and the mass media.

Latin American Network

Pedro Abramo, Rio de Janeiro, Brasil

Oscar Borrero, Bogotá, Colombia

Gonzalo Cáceres, Santiago, Chile

Julio Calderón, Lima, Perú

Nora Clichevsky, Buenos Aires, Argentina

Claudia De Cesare, Porto Alegre, Brasil

Matilde de los Santos, Montevideo, Uruguay

Diego Erba, São Leopoldo, Brasil

Edésio Fernandes, London, England

Ana Raquel Flores, Asunción, Paraguay

Fernanda Furtado, Rio de Janeiro, Brasil

Alfredo Garay, Buenos Aires, Argentina

Silvia García Vettorazzi, Guatemala City, Guatemala

Ana Maria González del Valle, Lima, Perú

Samuel Jaramillo, Bogotá, ColombiaCarmen Ledo, Cochabamba, Bolivia

Mario Lungo, San Salvador, El Salvador

María Mercedes Maldonado, Bogotá, Colombia

Carlos Morales Schechinger, Mexico City, Mexico

Laura Mullahy, Cambridge, Massachusetts, USARicardo Núñez, Havana, Cuba

Sonia Rabello de Castro, Rio de Janeiro, Brasil

Eduardo Reese, Buenos Aires, Argentina

Francisco Sabatini, Santiago, Chile

Martim Smolka, Cambridge, Massachusetts, USA

Alvaro Uribe, Panama City, Panama

Ricardo Vanella, Córdoba, Argentina

Maria Clara Vejarano, Bogotá, Colombia

Isabel Viana, Montevideo, Uruguay

One of every three urban citizens lives in slum conditions across the world today. According to the United Nations Human Settlement Programme, in 2006 there were nearly 1 billion people who could find housing only in slum settlements in most cities of Latin America, Asia, and Africa, and a smaller number in the cities of Europe and North America (UN Habitat 2006).

The rapid and intense urbanization in Latin America over the last 50 years is often contrasted in the literature with an inadequate urban planning system as a way to explain many resulting social problems: high land prices and property speculation, rampant informality, extreme sociospatial segregation, inadequate urban infrastructure and services, environmental degradation, and the like. The literature is largely silent, however, on the role played by national legal systems, which have both contributed to this situation and reacted against it. The pivotal role of the legal order cannot be underestimated.

As coastal cities continue to face the potentially expensive threat of increasingly volatile weather, storm surge, and sea level rise associated with climate change, building resilience has become a top planning priority. But resilience has multiple dimensions. It means not only building things, like flood gates and hardened infrastructure, but also keeping natural systems such as wetlands free of development—and, in many cases, deciding not to rebuild in the most vulnerable places. Therein lies an evolving and complex issue affecting private property rights.

From at least the turn of the 20th century, the Supreme Court has wrestled with a basic question: When does land use regulation constitute a taking, requiring compensation for property owners under the 5th amendment of the U.S. Constitution (“ . . . nor shall private property be taken for public use without just compensation.”)? Since Pennsylvania Coal v. Mahon, 260 U.S. 393 (1922) and Euclid v. Amber Realty, 272 U.S. 365 (1926), the essence of the rulings has been that government has considerable leeway in its power to regulate land use. In Kelo v. City of New London, 545 U.S. 469 (2005), the high court affirmed the state’s power to use eminent domain for economic development in the 21st century.

In June 2013, however, a decision on a Florida development project seemed to indicate a subtle shift in another direction. In Koontz v. St. Johns River Water Management District, the justices ruled 5 to 4 that government was overzealous in imposing mitigation requirements on developers as conditions for building permits. Coy Koontz, Sr., who had wanted to build a small shopping center on his property, objected to a Florida water management district’s demands that he pay for off-site wetlands restoration to offset environmental damage caused by the construction. Citing two cases, Nollan v. California Coastal Commission, 483 U.S. 825 (1987) and Dolan v. City of Tigard, 512 U.S. 374 (1994), Koontz claimed that the requirements constituted a taking for exceeding a “rough proportionality” between the requirements and the scope of damages caused by the development. In 2011, the Florida Supreme Court rejected Koontz’s argument, but in June the high court ruled that the mitigation requirements on the builder went too far.

The ruling alarmed some environmentalists and groups such as the American Planning Association, who feared new limits on the government’s ability to control development and impose requirements to restore and conserve natural areas. The concern extended to coastal metropolitan regions preparing for the impacts of climate change, such as New York City, which in May proposed a model $20 billion plan that is a mix of strategies for living with water and keeping it out. Property rights experts speculated that developers could cite the Koontz case as justification to refuse to pay into a fund for such initiatives.

At a broader level, the question remains: After an event like Hurricane Sandy, is government within its rights to forbid rebuilding or to modify regulations in order to prevent new building? The legal answer is essentially yes, according to Jerold Kayden, an attorney and professor at Harvard University’s Graduate School of Design, who was part of the Lincoln Institute’s Journalists Forum on Land and the Built Environment, held in April.

Particularly as more data become available on sea level rise and storm surge, government has the legal right to restrict owners from building on a vacant lot that is subject to flooding and sea level rise, or from rebuilding a home that has been destroyed. But, Kayden said, “politically, it’s another story.”

New York and New Jersey represented two different approaches to post-Sandy reconstruction. New York Governor Andrew Cuomo and New York City Mayor Michael Bloomberg called for a mix of rebuilding and “strategic retreat,” while New Jersey Governor Chris Christie focused on allocating money to residents so they could rebuild on parcels battered by the storm—even when the property remained in harm’s way.

The City of Boston, meanwhile, has begun to require waterfront developers to prepare for rising seas and storm surge by relocating mechanicals from basements to higher floors, among other measures. As the Koontz case opens the door for heightened scrutiny of various measures imposed by local government as a condition for building, developers might sue over these expensive, climate-related requirements, arguing that they are too burdensome and may constitute a regulatory taking.

While property rights lawsuits over reconstruction and restrictions on new building in coastal areas will no doubt continue to proliferate, Pratap Talwar, principal at the Thompson Design Group, presented an alternative in long-range planning that could help prevent such conflicts from arising. He detailed for the journalists the case study of Long Branch, New Jersey, which overhauled its planning process several years ago to include tougher standards but also a fast-track process for development that satisfied the guidelines. Long Branch was the one mile of New Jersey shore that weathered Sandy relatively intact, Talwar said.

Journalists Forum on Land and the Built Environment: The Resilient City

Thirty-five leading writers and editors who cover urban issues attended the 6th Journalists Forum on Land and the Built Environment on April 20, 2013, at Lincoln House. The theme was The Resilient City, from coastal municipalities preparing for sea level rise and storm surge to legacy cities trying to evolve despite diminished populations and business activity.

Kai-Uwe Bergmann, principal at Bjarke Ingels Group, opened the forum with a look at urban design innovations that maximize efficiency in land, housing, and major infrastructure projects. Johanna Greenbaum from Kushner Companies, who helped run New York City Mayor Michael Bloomberg’s microhousing initiative, detailed that project as well as other similar efforts around the country to accom-modate singles and couples who can live in just 300 square feet.

Alan Mallach, co-author of the Lincoln Institute’s policy focus report Regenerating America’s Legacy Cities, noted signs of resurgence in places such as the Central West End in St. Louis or Over-the-Rhine neighborhood in Cincinnati, while acknowledging the challenges facing Camden, New Jersey; Flint and Detroit, Michigan; and Youngstown, Ohio. Antoine Belaieff, Innovation Director at MetroLinx, detailed the use of social media to gain citizen input on a $16 billion investment in resilient transportation infrastructure in the Toronto area.

John Macomber, from Harvard Business School, led a session on the global city by recognizing the hundreds of millions of people who continue to migrate from rural to urban areas, requiring large-scale planning for infrastructure. Martim Smolka, director of the Lincoln Institute’s Program on Latin America and the Caribbean, lamented widespread dislocations caused by preparations for the World Cup and the Olympics in Rio de Janeiro. Bing Wang, from Harvard University’s Graduate School of Design, noted that 11 cities in China have populations over 10 million—and yet the rapidly growing nation is only halfway to its expected urbanization.

John Werner, chief mobilizing officer at Citizens Schools, spelled out how urban school systems can ignite passion in students by bringing in outside professionals as teachers and mentors. Gordon Feller of Cisco Systems envisioned a completely connected world and an Internet of everything, joined by Washington Post investigative reporter Dan Keating, who shared his experiences extracting data from various levels of government.

The forum had to be shortened because of the manhunt for the Boston Marathon bombers in the Cambridge-Watertown area—but that event prompted dialogue about the “shelter in place” request by Massachusetts Governor Deval Patrick, security and public space, and another kind of resilience in the Boston area. Several participants wrote about the events, including Emily Badger at The Atlantic Cities, Donald Luzzatto at the Virginian Pilot, and Inga Saffron at The Philadelphia Inquirer.

The springtime gathering is a partnership of the Lincoln Institute, Harvard’s Graduate School of Design, and the Nieman Foundation for Journalism at Harvard University. The mission is to bring journalists together to share ideas and learn about cutting-edge trends in the coverage of cities, architecture, and urban planning. — AF

El crecimiento de la Red Internacional de Conservación de Suelo

Laura Johnson es abogada y conservacionista de toda la vida, con más de 30 años de experiencia en gerencia de organizaciones sin fines de lucro. En la actualidad es directora de la Red Internacional de Conservación de Suelo (International Land Conservation Network o ILCN), visiting fellow del Instituto Lincoln de Políticas de Suelo y presidente de la junta directiva de la Alianza de Fideicomisos de Suelo (Land Trust Alliance).

Laura fue presidente de Mass Audubon de 1999 a 2012. Anteriormente, trabajó durante 16 años como abogada en The Nature Conservancy desempeñando los cargos de directora de la delegación de Massachusetts y vicepresidente de la región noreste.

Laura obtuvo una licenciatura en Historia por la Universidad de Harvard y un doctorado en Jurisprudencia por la Facultad de Derecho de la Universidad de Nueva York. Entre 2013 y 2014 fue fellow Bullard de Harvard Forest, Universidad de Harvard, donde completó un estudio sobre las iniciativas de conservación de suelo privado alrededor del mundo.

LAND LINES: Su programa, la Red Internacional de Conservación de Suelo (ILCN), se ha creado este año, pero tiene antecedentes en el Instituto Lincoln. ¿Nos puede hablar sobre esta trayectoria?

LAURA JOHNSON: Hay algunas conexiones maravillosas entre esta red nueva y el apoyo brindado por el Instituto Lincoln en el pasado a los esfuerzos innovadores de construcción de capacidad dedicados a la conservación, que en última instancia dieron lugar a la Alianza de Fideicomisos de Suelo.

A comienzos de la década de 1980, Kingsbury Browne, un ilustre abogado de Boston, decidió tomarse un tiempo de licencia de su estudio de abogados y usó su año sabático en el Instituto Lincoln para explorar las necesidades y oportunidades de fideicomisos de suelo privado en los Estados Unidos. Hasta ese momento, no había existido una iniciativa nacional para descubrir los mejores ejemplos de actividades de protección de suelo, para poder compartir estas ideas y buenas prácticas, o incluso para mantenerse al tanto de lo que estaba ocurriendo en el ámbito de la conservación de suelo por todo el país. El estudio realizado por Kingsbury Browne lo llevó a fundar, junto con algunos otros líderes de fideicomisos de suelo de aquella época, una nueva organización llamada Bolsa de Fideicomisos de Suelo (Land Trust Exchange) para conectar a la comunidad de conservación del país, pequeña pero creciente, por medio de un boletín y algunas actividades básicas de investigación y capacitación. El Instituto Lincoln cumplió un papel crucial para ayudar a lanzar la Bolsa, que creció a lo largo del tiempo y cambió de nombre, para pasar a ser la Alianza de Fideicomisos de Suelo, con sede en Washington, D.C. En 1982, cuando se fundó la Bolsa, había menos de 400 fideicomisos de suelo en los Estados Unidos; ahora, la Alianza de Fideicomisos de Suelo comprende 1.200 fideicomisos en todo el país. La Bolsa comenzó como un boletín modesto en la década de 1980; ahora, la Alianza cuenta con un centro de aprendizaje en línea, un programa de estudios completo sobre conservación y gestión de riesgo; y más de 100 webinarios y 300 talleres en los que participaron cerca de 2.000 personas en 2014.

LL: A lo largo de casi toda su carrera profesional, se ha dedicado de lleno al trabajo de conservación de suelo en los EE.UU. ¿Qué la llevó a ampliar su trabajo a nivel internacional?

LJ: Cuando dejé la presidencia de Mass Audubon hace dos años, comencé a hablar con Jim Levitt, un fellow del Instituto Lincoln, director del Programa de Innovación en Conservación de Harvard Forest y exmiembro de la junta de Mass Audubon. Él tuvo la idea inicial de explorar cómo los conservacionistas fuera de los Estados Unidos estaban usando y adaptando las herramientas de conservación que se fueron desarrollando aquí a lo largo de los años. Jim se había involucrado de lleno en las iniciativas de conservación privada en Chile, y existía la oportunidad de fortalecer el movimiento incipiente en ese país compartiendo las medidas adoptadas en los EE.UU., como las servidumbres de conservación. Aproximadamente al mismo tiempo, Peter Stein recibió la beca Kingsbury Browne y una subvención de la Alianza de Fideicomisos de Suelo y el Instituto Lincoln, que le permitieron explorar también la envergadura de las organizaciones de conservación a nivel mundial. A través de estos proyectos distintos, Jim, Peter y yo llegamos a una conclusión similar: que había muchas personas en el resto del mundo que compartían un gran interés por conectarse entre sí y con otros conservacionistas en los EE.UU. Este deseo de una comunidad de practicantes parecía ser una oportunidad extraordinaria de ayudar a construir capacidad para proteger el suelo en forma privada.

LL: ¿Por qué es este rol el desafío más importante para usted en este momento?

LJ: He tenido la increíble buena fortuna de haber trabajado con algunas de las mejores organizaciones y con gente increíblemente talentosa. Como joven abogada que se iniciaba en The Nature Conservancy en la década de 1980, pude crecer profesionalmente en un momento crucial para el movimiento de conservación en los Estados Unidos. Si observamos las tendencias históricas, el movimiento de conservación de suelo en los EE.UU. comenzó a remontar vuelo en esa época, y era muy emocionante poder formar parte de este crecimiento. Después pasé a Mass Audubon en 1999, donde tuve el privilegio de gerenciar Audubon, la mayor organización estatal independiente del país, la cual cumplió un papel de liderazgo no sólo en conservación de suelo, sino también en educación medioambiental y política pública. Ahora tengo el honor de prestar servicio en la junta de la Alianza de Fideicomisos de Suelo, que realiza un trabajo extraordinario aquí, en los Estados Unidos, para generar una protección efectiva del suelo y los recursos. Mi capacitación como abogada fue sin duda útil en esta trayectoria, pero también he aprendido mucho sobre las características de organizaciones que son exitosas y que tienen un impacto positivo. Me siento muy afortunada de tener estos antecedentes y experiencias, y quiero contribuir con ellos a los desafíos que confronta la comunidad internacional para la conservación de suelo.

LL: Usted mencionó un par de veces la construcción de capacidad y creación de organizaciones exitosas. ¿Puede comentar qué significa esto en el contexto de la conservación de suelo?

LJ: Las organizaciones de conservación de suelo necesitan contar con todos los elementos de cualquier organización sin fines de lucro sólida: misión clara, visión y estrategias convincentes, planificación disciplinada y objetivos claros, recursos económicos suficientes y personas excelentes. Pero el trabajo de protección de suelo requiere una perspectiva de muy largo plazo. Para empezar, un fideicomiso de suelo necesita el conocimiento y los recursos necesarios para determinar qué tierras se deben proteger –ya sea su misión la de conservar recursos naturales o escénicos, o valores culturales o históricos– y qué herramientas legales y económicas son las mejores para lograr un buen resultado. Después, quizá haya que trabajar años con un propietario hasta llegar al punto en que todos están preparados para llegar a un acuerdo. Los fideicomisos de suelo necesitan contar con gente que tenga la capacitación, el conocimiento y la experiencia para realizar transacciones legal, económica y éticamente sólidas. Una vez que el suelo está protegido por un fideicomiso, esa organización se está comprometiendo a gestionar el suelo que posee o que está sujeto a restricciones permanentes. Los museos son una buena analogía, pero en vez de Rembrandts y Picassos, las organizaciones para la conservación de suelo custodian recursos vivos invaluables, y el suelo y el agua de los que todos dependemos para sobrevivir.

LL: ¿Por qué es particularmente importante ahora la conservación de suelo privado? ¿Por qué necesitamos una red internacional?

LJ: Nos encontramos en una encrucijada crítica, en la que las presiones del cambio climático, la conversión de suelo y la reducción de los recursos gubernamentales están creando más desafíos que nunca para proteger el suelo y el agua para beneficio público. Por lo tanto, la misión de la nueva Red Internacional de Conservación de Suelo pone énfasis en conectar con organizaciones y gente alrededor del mundo que están acelerando la acción privada voluntaria que protege y salvaguarda el suelo y los recursos hídricos. Nuestra premisa es que la construcción de capacidad y la promoción de conservación voluntaria de suelo privado fortalecerán el movimiento global de conservación de suelo y llevará a una protección de recursos más efectiva y duradera.

El respaldo para una mejor coordinación de la conservación internacional de suelo privado está surgiendo de muchas fuentes. Por ejemplo, la Unión Internacional para la Conservación de la Naturaleza (International Union for the Conservation of Nature, o IUCN) consideró el papel de la conservación de suelo privado en el contexto de las iniciativas globales en el Congreso de Parques Mundiales que tuvo lugar en Sidney, Australia, en noviembre de 2014. El informe Futuros de áreas protegidas privadamente, comisionado por IUCN y dado a conocer en este congreso, hizo una serie de recomendaciones sobre, por ejemplo, cómo desarrollar cursos de capacitación apropiados y mejorar los mecanismos para compartir conocimientos e información, que son sin duda objetivos importantes para la nueva red. Esperamos poder colaborar con socios como IUCN y con las redes regionales y nacionales ya existentes. Y, por supuesto, contamos con el poderoso ejemplo de la Alianza de Fideicomisos de Suelo y todo lo que ha logrado a lo largo de 30 años para construir la capacidad de fideicomisos de suelo en los Estados Unidos.

LL: ¿Qué tratará de lograr en el primer año para resolver estas necesidades?

LJ: Hemos tenido que organizarnos y resolver temas básicos, como nuestro nombre, identidad visual, declaración de misión, objetivos y estructura de gobierno. Vamos a diseñar y lanzar un sitio web que funcione como repositorio esencial de estudios de casos, investigación, buenas prácticas, eventos y conferencias. En última instancia, queremos poner a disposición de nuestros usuarios un continuo de educación, por medio de herramientas, como webinarios que traten una amplia gama de temas, desde instrumentos legales a buenas prácticas organizativas. También queremos hacer un censo de las redes existentes y organizaciones activas, para crear una línea de base de conocimientos sobre la protección de suelo privado que nos permita medir el progreso a lo largo del tiempo.

LL: ¿Cuáles son los principales desafíos para iniciar esta red?

LJ: Hay muchos. Por supuesto, el dinero es uno de los más importantes. Hemos recibido una subvención generosa para ponernos en marcha de la Fundación Packard, y contamos con el gran respaldo del Instituto Lincoln. Pero nos estamos esforzando por identificar fuentes de financiamiento adicionales, para poder hacer crecer la red y su impacto. Y, por supuesto, todavía tenemos que demostrar que la red brindará información y capacitación útil, importante y práctica para satisfacer una gran variedad de necesidades en la comunidad internacional de conservación de suelo. Sabemos que no podemos hacerlo todo, así que tenemos que ser estratégicos y elegir las actividades de mayor impacto. La escala global también presenta una serie de desafíos culturales y logísticos, y exige navegar por sistemas legales, idiomas, costumbres y husos horarios distintos.

Por el lado positivo, ya contamos con un grupo muy comprometido de practicantes de conservación de suelo que participaron en nuestra reunión organizativa de septiembre de 2014 y se comprometieron con entusiasmo a aportar a la red su “capital humano”: sus conocimientos, pericia, experiencia y sabio consejo. Me queda muy claro que este es un fantástico grupo de colegas que están realizando un trabajo de gran interés e importancia en todo el mundo. Será una aventura construir juntos esta red, y sé que aprenderé mucho.

Harvey M. Jacobs is on the faculty of the University of Wisconsin-Madison, where he holds a joint appointment as professor in the Department of Urban and Regional Planning and the Institute for Environmental Studies and serves as director of the Land Tenure Center. His research and teaching investigate public policy, theory and philosophy for land use and environmental management. During the last decade he has focused his domestic work on the impact of the private property rights movement. He wrote the book Who Owns America? Social Conflict over Property Rights and the Lincoln Institute policy focus report State Property Rights Laws: The Impacts of Those Laws on My Land, and his work has been published in academic and professional journals in the U.S. and Western Europe. Jacobs also has investigated international issues of land use policy formation by national ministries and new local governments in Eastern Europe and southern Africa, with a specific focus on peri-urban (urban fringe) land management and the definition of private property rights. He is particularly interested in how societies define property and the policy structures they develop to manage the public-private property relationship.

Jacobs is a faculty associate of the Lincoln Institute, where he teaches courses for policy makers and practitioners in land use planning and management. He developed a Lincoln course titled “Land Use in America,” originally designed for staff of the Environmental Protection Agency and now available through open enrollment, which he has taught several times in Cambridge. As part of his current education and research project with the Institute, he will lead a seminar in Cambridge in May on the future of private property rights in America, and he is working on another book to be titled Private Property in the 21st Century. This essay outlines his views on the uncertain future of the American ideal of private property rights.

Property Rights and Environmental Planning

Social conflict over property rights is at the center of all U.S. land and environmental planning and policy. One key source of this conflict is the differing interpretations of the so-called Takings Clause of the Fifth Amendment in the Constitution’s Bill of Rights: “. . . nor shall private property be taken for public use, without just compensation.”

Those who support the integrity of private property rights and stand against land use and environmental regulation by state and local governments can be understood as participants in one of the most significant U.S. land use and environmental movements of recent times. This movement is referred to by a variety of labels, including the private property rights movement, the land rights movement, the wise use movement and, by the environmental community, the anti-environmental movement. This movement’s leaders have succeeded in keeping their agenda before the U.S. Congress since the early 1990s, though as yet no action has resulted from their efforts. More significantly, they have succeeded in having bills reflecting their agenda introduced in all 50 states, and they have secured the passage of significant legislation in over half of the states. In addition, they have promoted significant parallel activity in over 300 counties. Perhaps most important, they have reshaped public debate on how the media communicates to the American public about issues of land and environmental management, and the balancing of the public good with individual property rights.

The potential power of the property rights movement became even more important after the 2000 elections. While governor of Texas, George W. Bush exhibited strong sympathies to the arguments of the property rights movement and supported state-based legislation in accordance with the movement’s goals. Among his most prominent initial appointments as president were the selection of a secretary of the interior and a solicitor general with explicit ties to the property rights movement and commitments to the property rights issue. These developments, together with renewed activity at the state level, indicate that the property rights movement seems to be alive and well in America. The passage of Measure 7 in the state of Oregon in the fall of 2000 is of particular interest, since this measure is one of the most stringent state property rights laws in what is considered one of the most progressive states in its land use and environmental management policies. The measure, passed by initiative, requires landowners to be compensated if the value of their property is reduced by a state or local law or regulation. It is under state constitutional challenge by land use and environmental groups, and its implementation is being held back until this challenge is settled by the Oregon courts.

Historical Context

Underlying the policy agenda of the property rights movement and the conflict with the land use and environmental movements is a fundamental debate about U.S. history, the cultural myths that inform our understanding of ourselves as a nation, and the intended meanings of selected provisions of the Bill of Rights. From the perspective of the property rights movement, strong individual private property rights are an integral component of our democratic society. Drawing from the writings of the nation’s founders such as John Adams, James Madison and Thomas Jefferson, these proponents argue that liberty, equality and citizenship in a democracy, in fact democracy itself, can not be secured and sustained without a robust set of property rights essentially unassailable by the power of the state. From this perspective, land use and environmental laws become a threat to the very nature of democratic way of life. Richard Epstein, one of the leading legal scholars articulating this view, has suggested that “the [entire] system of land use planning is a form of socialism in microcosm” (Epstein 1992, 202).

In opposition, the land use and environmental movements also draw from the writings of the founders, including Benjamin Franklin and Thomas Jefferson, to argue that property rights are created by the public sector to serve social ends, and that citizens’ rights in property have to bend and flex with society’s changing needs over time. Land use and environmental proponents tend to make arguments about rights and responsibilities in property, rather than to see individual rights as preexisting or standing before the rights of society, as expressed through the actions of government.

The historical challenge for this debate is the that private property has been subject to substantial local regulation even since colonial times, and it has been fundamentally reshaped at several times in American history, to reflect changing social values and changing technology. For example, in the 1860s the property ownership rights of slave-owning plantation farmers in the South and in the 1960s the commercial trespass rights of lunch-counter owners were significantly reshuffled to reflect changing social values about race relations. In the early part of the twentieth century it was necessary to reconceptualize the property rights bundle as a function of the invention of the airplane and the seeming nonsense of allowing individual owners to claim trespass for air travel above their property.

Changing Conditions

Social reformulation of private property to reflect changing conditions continues. During the 1990s resistance by male-only membership clubs and male-only colleges to the admission of women was prominent in the media and the courts. Like the prior slavery and civil rights situations, here, too, individuals lost their rights in property, absent compensation, to reflect changing social values.

Thus, we know that private property is not a static concept or entity. In America it has changed since its creation during colonial times, and there is every reason to believe it will continue changing in the future. In fact, for over fifty years some ecologists and land ethicists—most prominently and enduringly Aldo Leopold (1949)—have called for a fundamental reinvention of property, based on new scientific knowledge that is less individual-rights oriented and more oriented toward social and ecological responsibilities.

It is reasonable to say that both sides to this debate have legitimate concerns and perspectives on the issue. Some property rights reforms through land use and environmental planning and policy, when taken too far, do seem to violate fundamental American understandings about the social contract that underlies national life. On the other hand, unassailable bundles of private property rights seem to leave society in a place that does not allow for change through the integration of new technologies, new social values, or new concepts of ourselves and the land on which we live.

Social conflict over property rights is at the center of all U.S. land and environmental planning and policy. However, much of the current scholarly inquiry and legislative and judicial debate that occurs now is formalized posturing, with little real communication around an issue that is one of the most central to our democratic society. Too often, the well-known players trot out their already settled analyses and opinions and wave them at one another. Little real progress occurs, either in intellectual understanding of these matters or in policy innovation.

The goal of my current work is to get key actors to put aside their rancor and agree to talk with one another instead of at one another. Is it possible to move beyond the broad rhetoric in this debate to a determination of clear, specific areas of agreement and disagreement about the place and role of the property rights bundle and the concept of property rights in our American democratic-legal schema? The challenge is twofold: accepting that private property is fundamental to the American character and the design of American democracy, and acknowledging that private property has changed significantly through the centuries and thus will continue to change. The issue is not if private property will evolve, but how it will evolve.

As we seek to address this issue, many questions present themselves. How much will new ecological knowledge and social values transform our sense of what is mine to use (and misuse and abuse) as I please? Is the evolutionary transformation of private property a slippery slope that eventually undermines the viability of contemporary democratic forms of governance? Are the ideals and principles of the founding fathers about the relationship of land ownership to liberty and democracy irrelevant in a world of urban wage earners, in contrast to the world of farmers, foresters and ranchers for which they were formulated? These are among the challenges we face in trying to untangle a puzzle that is the key to the future of American (and increasingly global) land use and environmental planning.

References

Epstein, Richard. 1992. Property as a Fundamental Civil Right, California Western Law Review 29(1):187-207.

Jacobs, Harvey M. 1998. Who Owns America? Social Conflict over Property Rights. Madison, WI: University of Wisconsin Press.

——. 1999. Fighting Over Land: America’s Legacy . . . America’s Future? Journal of the American Planning Association 65(2):141-149.

——. 1999. State Property Rights Laws: The Impacts of Those Laws on My Land. Cambridge, MA: Lincoln Institute of Land Policy.

Leopold, Aldo. 1968 [1949]. A Sand County Almanac. London and New York: Oxford University Press.

My experience in attending the “Who Owns America? II” conference in Madison, Wisconsin, last June was like contemplating a landscape of ideas about land and people. From my perspective, this landscape had four salient features:

• the expansion of property rights;
• the challenge of the private/public dichotomy;
• the growing complexity of the physical world, which constitutes the ‘object’ of property rights;
• and the narrative approach as a methodological tool for better understanding property as a social relationship.

The most noticeable feature in U.S. legal thinking about land is the great importance of property rights. Latin American legal tradition, following French jurist Leon Duguit’s doctrine of the social function of property, tends to see property rights as something to be limited by government and law in order to meet social needs. So, it was a cultural shock for me to discover the popularity of Charles Reich’s theory about property, where egalitarian ideas are advanced by means of asserting individual property rights.

At the conference, one could see many different ways in which the notion of property rights was expanded to accommodate new social demands. Eric Freyfogle’s contention that property should have an honored place in society is one example. Of course, an idea does not have to be accepted unanimously in American legal thinking for it to be an important aspect of today’s landscape of ideas about property.

The second feature refers to the distinction between public and private-a distinction that is so essential to modern societies that it is usually taken for granted. We are used to recognizing the coexistence of two separate forms of social control over the same piece of land: that of private landowners and that of public government organizations. However, one has to remember that this separation is not eternal or universal; it is a historical product.

Urban studies have long shown that land use regulations constantly affect the relationships between public and private control. Planning powers and development rights have been shrinking and expanding since the inception of modern urban management, and that process is now seen as normal. A more profound challenge to the separation of public and private categories was raised at the conference by indigenous peoples’ claims to their territories in the United States.

Those claims refer to a third, not yet fully codified, form of social control over land. In general, indigenous peoples do not aim at controlling local governments, i.e. governing a territory through conventional means. They also reject being treated simply as private corporations who own land. They talk about rights of a different nature, with old and new elements, and they do so by challenging a series of treaties between the people and the state. A treaty is the typical form of legal relationship between a nation-state and an external force. Apparently, past treaties were supposed to ‘settle’ the territorial question. But those treaties are now being questioned both in terms of the public/private dichotomy and because the formation of a nation-state was not completed.

We must also recognize that classical legal thinking does not have the tools to give meaning to these developments, because it is the very foundation of that thinking that is being shaken. Clearly, these concerns are also being raised in Canada and Mexico, although under different forms and with different outcomes. Scholars and practitioners in legal theory, and particularly constitutional theory, in all three countries of North America can learn a lot from each other in this process.

We should not be surprised to see new forms of territorial control when there have been so many changes in the land itself. Thousands of books have been written about the transformation of the land, mainly from what we now call an environmental perspective. Land as the ‘object’ of property relations has become extremely complex, and this complexity is the third feature I see in this landscape of ideas. Territories have become very difficult to understand, and perhaps the most relevant development is the blurring of the urban/rural distinction. We do not have cities in the traditional sense of the word; what we have is a set of urbanization processes.

The heralds of cyberspace tell us that as distances are shortened through new technologies, space and distance have become irrelevant. The truth is that technological change, combined with demographic and social change, has only made land more complex. This is clear when we see, as in the papers presented at the conference, the great number of disciplines that describe, analyze and even sing about land. There is not a single discipline that can embrace land into one form of discourse.

Maybe the most interesting new way of looking at land is the narrative approach, the fourth feature in our landscape. Listening to stories about land throws more light on property relationships than many other empirical methods because it allows us to recognize the subjective aspects without getting too far from empirical social sciences. Compared to the rigidity of legal and economic approaches, personal accounts give us the fluidity of property as a social relationship, the changes that occur in that relationship as a result of many interactions, and the different meanings that a piece of land or a neighborhood can have for its dwellers, new settlers, visitors or others.

Recognizing the richness and vividness of people’s stories and contrasting this richness against the rigidity of legal categories does not require neglecting those categories. Indeed, this more subjective approach can be another way of taking the law seriously. There is hardly any social discourse about land, even in its most vernacular form, which does not have a normative connotation. When someone says ‘this land is (was or should be) mine,’ he or she is making a legal claim. Legal categories are important outside the professional circles of lawyers, judges and realtors precisely because they are part of people’s stories; moreover, their function is to give meaning to people’s experiences.

When legal categories are not able to embrace a people’s normative representations about land, the law has lost its meaning. If traditional legal thinking defines property as a bundle of rights, the narrative approach can teach us to see property rights as bundles of representations that can be used to help people give meaning to their relationship to the land. Maybe this is the main lesson I have learned from “Who Owns America?”: to use many lenses to look at the landscape and to explore comparative ideas about individual and community ownership, informal settlements and legal systems throughout North America.

Antonio Azuela is the Attorney General for Environmental Protection in the federal government of Mexico. A graduate of Universidad Iberoamericana (Mexico City) and the School of Law, University of Warwick (England), he has been the legal advisor to several state governments and federal government agencies on planning law. Mr. Azuela is author of La Ciudad la Propiedad. Privada y el Derecho-The City: Private Property and the Law (El Colegio de Mexico, 1989) and numerous other publications on urban and environmental law from a sociological perspective.

Editor’s Note: The “Who Owns America? II” conference in June 1998 was cosponsored by the Lincoln Institute and the North American Program of the Land Tenure Center at the University of Wisconsin-Madison.

The University of Wisconsin Press has recently published Who Owns America? Social Conflict over Property Rights, edited by Harvey M. Jacobs, and based on the first conference in 1995. Contact: www.wisc.edu/wisconsinpress

I am pleased to report that the Lincoln Institute has signed an agreement of understanding with the Ministry of Land and Resources in the People’s Republic of China (PRC) to work together on researching and teaching about land and tax policies. Many places in the world face fundamental problems in land allocation and land taxation, but it is difficult to imagine a place and time where the resources of the Lincoln Institute could be more influential and could help more people than in China during the early twenty-first century.

Land and tax policy makers in China are faced with enormous challenges as a result of the extraordinary urbanization of the past two decades. The number of established cities in China grew from 182 in 1982 to 324 in 1985, and reached 666 by 1996, and the average urban population grew by 227 percent between 1957 and 1995. Some cities grew by 200 percent from 1985 to 1995, and the urbanized area of Beijing doubled from 1985 to 1992. However, the extent of urbanization in the future will dwarf that of the recent past. Based on forecasts of population growth and migration, China must provide enough urban land and infrastructure to accommodate more than 450 million persons over the next 20 years. If all of the additional urban population were put in new cities of 10 million persons each, China would need to develop and finance 45 such cities.

China initiated fundamental and revolutionary land use reforms during the mid-1980s. The first reforms established privately held land use rights. The second set of reforms included multiple elements, such as land banking, land trusts, land readjustments, and development of land markets in both urban and rural areas. We believe that the Institute can make a real difference in assisting these reform measures by sponsoring education and training for government officials, supporting research and publications by U.S. and Chinese scholars, and facilitating more in-depth interactions through workshops and conferences.

Over the past two years the Institute has led two training programs in Beijing and participated in meetings between Chinese officials and scholars and Institute board members, faculty and staff. The Institute also sponsored several sessions on land and housing markets in the PRC at the First World Planning Congress in Shanghai in 2001. We anticipate several more training and exchange programs this year, but we believe this is still just the beginning of an expanded effort by the Institute to have a positive impact on land and tax policy in the world’s most populous country. In this issue, Institute faculty associates Chengri Ding and Gerrit Knaap examine some of the recent reforms and current trends in urban land policy in China.

Land value is determined primarily by external factors, mainly changes that occur in the neighborhood or other parts of the city rather than by direct actions of the landowner. This observation is especially valid for small lots whose form or type of occupancy do not generate sufficiently strong externalities to increase their own value retroactively; that is, a small lot generally does not have a significant impact on those very external factors that could affect its own value. However, large urban projects (grandes proyectos urbanos or GPUs) do influence those factors, and also the value of the land that supports them. Herein lies the essence the Lincoln Institute’s interest in such projects.

We propose two perspectives for analyzing GPUs that complement and contrast with others that formerly predominated in this debate. First, these projects can be a stimulating force for immediate urban change that is capable of affecting land values, and therefore land use, for large areas if not an entire city region. This view is focused more on urban design or urbanism and stresses the study of the physical, esthetic and symbolic dimensions of large urban projects. A second approach, covering the field of regulation, attempts to understand the land value appreciation generated by the implementation and operation of these projects as a potential means for self-support and economic feasibility. It analyzes the role of GPUs in providing a new function for certain areas of the city. Both perspectives require a more holistic understanding that includes the diversity and levels of complexity of the projects, their relation to the city plan, the type of regulatory framework they require, the role of the public and private sectors in managing and financing them, land taxation and fiscal policies, and other factors.

These large projects are not new to Latin America. In the early twentieth century, many cities were impacted by programs that used public-private management arrangements, including outside players (national and international) and complex financial structures. Some projects had the potential to trigger urban processes capable of transforming their surroundings or even the city as a whole, as well as accentuating the preexisting socio-spatial polarization. Often the projects were layered over existing regulations, contributing to questions about the urban planning strategies in force at the time. Large urban developers and utility companies (English, Canadian, French and others) coordinated the provision of services with complex real estate development operations in almost all the major cities of Latin America.

Today large projects attempt to intervene in especially sensitive places to reorient urban processes and create new urban identities on a symbolic level. They also aim to create new economic areas (sometimes territorial enclaves) able to foster an environment protected from urban poverty and violence, and more favorable to domestic or international private investment. When describing the motives that justify these programs, the rhetoric focuses on their instrumental role in strategic planning, their alleged contribution to urban productivity, and their effectiveness in boosting their intercity competitive position.

In a context marked by transformations due to globalization, economic reforms, deregulation and the introduction of a new focus on urban management, it is not surprising that these programs have been the subject of much controversy. Their scale and complexity often spur new social movements; redefine economic opportunities; put into question urban development regulatory frameworks and land use rules; strain local finances; and expand political arenas, thus altering the roles of urban stakeholders. An additional complication is the long time frame for executing large urban projects, which usually exceeds the terms of municipal governments and the limits of their territorial authority. This reality presents additional management challenges and formidable dilemmas within the public and academic debate.

The Lincoln Institute’s contribution to this debate is to underscore the land component in the structure of these large projects, specifically the processes associated with urban land management and the mechanisms for land value capture or the mobilization of land value increments for the benefit of the community. This article is part of a broader, ongoing effort to systematize recent Latin American experience with GPUs and to discuss the relevant aspects.

A Wide Range of Projects

As in other parts of the world, large urban projects in Latin America comprise a wide range of activities: restoration of historic downtown areas (Old Havana or Lima); renovation of neglected downtown areas (São Paulo or Montevideo); redevelopment of ports and waterfronts (Puerto Madero in Buenos Aires or Ribera Norte in Concepción, Chile); reuse of old airports or industrial zones (the Tamanduatehy artery in Santo Andre, Brazil, or the Cerrillos airport in Santiago, Chile); expansion zones (Santa Fé, Mexico, or the former Panama Canal zone); residential or neighborhood improvement projects (Nuevo Usme in Bogotá or Favela Bairro in Rio de Janeiro); and so on.

Land management is a key component in all of these projects, and it presents diverse sets of conditions (Lungo 2004; forthcoming). One common trait is that the projects are managed by a government authority as part of a city project or plan, even though they enjoy private participation in several respects. Thus exclusively private programs, such as shopping centers and gated communities, are a different category of development project not included in this discussion.

Scale and Complexity

The minimum threshold of scale, in terms of surface area or amount of financial investment, for a project to meet the GPU criteria depends on the size of the city, its economy, social structure and other factors, all of which help define the complexity of the project. In Latin America projects often combine large scale and a complex set of players associated with key roles in land policy and management, including various levels of government (national, provincial and municipal), private entities and community leaders from the affected area. Even relatively small upgrading projects are often formidably complex with regard to the land readjustment component.

There is obviously a huge difference between a project proposed by one or a few owners over a large area (such as ParLatino, an abandoned industrial site in São Paulo) and a project involving the cooperation of many owners of small areas. The latter requires a complex series of actions capable of generating synergies or sufficient external economies to make each action economically viable. Most projects fall between the two extremes. They often involve the prior acquisition of rights over smaller parcels by a few agents in order to centralize control over the type and management of the development.

The key to analysis and design of GPUs in Latin America lies in the ability of the institutional organization in charge of project management to incorporate and coordinate scale and complexity appropriately. Governmental corporations have been created in some cases, but they operate autonomously (as in Puerto Madero) or as special public agencies attached to the central or municipal governments (as in the housing program being developed in the city of Rosario, Argentina, or the Nuevo Usme program in Bogotá). The case of the failed project to build the new Mexico City airport demonstrates the negative consequences of not correctly defining this fundamental aspect of GPUs.

Relationship of GPUs to the City Plan

What is the point of developing GPUs when the city has no comprehensive urban development plan or socially shared vision? It is possible to find situations where execution of GPUs may stimulate, enhance or strengthen the city plan, but in practice many such projects are established without any plan. One of the main criticisms aimed at GPUs is that they become instruments for excluding citizen participation in decision making about individual elements of what is expected or supposed to be part of an integrated urban project, as is normally provided for in a city’s master plan or land use plan.

This is an interesting debate within the framework of urban policies in Latin America, since urban planning itself has been criticized as being elitist and exclusionary. Some authors have concluded that urban planning has been one if not the main cause of the excesses of social segregation typical of cities in the region. In this context the recent popularity of GPUs can be seen as a reaction of the elite to redemocratization and participatory urban planning. Others may view GPUs as an advanced (and perverse) form of traditional urban planning; a yielding to the failures or ineffectiveness of urban planning; or even a lesser evil because at least they ensure that something is done in some part of the city.

There are many challenges for GPUs regarding their relationship to a city plan. They can help build a city plan where none exists, alter traditional plans, or do what we might call “navigating through the urban fog” if the former paths are not viable. In any case, land management proves to be a critical factor, both for the plan and for the projects, because it refers to the fundamental role of the regulatory framework covering urban land use and expansion.

Regulatory Framework

The preferred regulatory solution would be a two-part intervention: on one hand, maintaining general regulations for the whole city but changing the conventional criteria to be more flexible in absorbing the constant change taking place in urban environments; and on the other, allowing specific regulations for certain projects but avoiding regulatory frameworks that may contradict the stated goals of the city plan. Urban Operations, a specific and ingenious instrument devised under the Brazilian urban development legislation (Statute of the City Act of 2001), has been used widely to accommodate these dual needs. The city of São Paulo alone has 16 such operations in effect. Another version of this instrument is the so-called “partial planning” provision to readjust large tracts of land, which is included in Colombia’s equally innovative Law 388 of 1997.

Again in practice we see that exceptions are often granted in an apparently arbitrary manner, and regulatory restrictions are frequently ignored. The point is that neither type of regulation is submitted to any assessment of its socioeconomic and environmental value, thus losing a significant portion of its justification. Given the financial and fiscal fragility of cities in Latin America, what prevails is an extremely low capacity for public discussion of the requests made by the proponents of GPUs. The absence of institutional mechanisms that would make these negotiations transparent makes them more venal, insofar as they expose the capacity to discuss other, less prosaic legal challenges.

Public or Private Management and Financing

What is the desirable combination of public and private management of these projects? To guarantee that public management of a large urban project fulfills its function, land use must be monitored and regulated, although the degree to which the control should be exercised, and on which specific components of land ownership rights, is unresolved. Ambiguity in the courts and the uncertainties associated with the development of GPUs often result in public frustration over unanticipated outcomes favoring private interests. The proper balance between effective ex ante (GPU formulation, negotiation and design) and ex post (GPU implementation, management, operation and impacts) controls over land uses and rights is at the heart of the problem. Typically in the Latin American experience with GPUs there is a huge gap between original promises and actual outcomes.

In recent years the management of GPUs has been confused with the utility and feasibility of public-private partnerships, such as those set up in many countries to carry out specific projects or programs. Some stakeholders even propose the possibility of privatizing urban development management in general. If the private sector has complete control over the land, however, GPUs are severely limited in their ability to contribute to socially sustainable urban development, despite the fact that in many cases the projects contribute significant taxes to the city (Polese and Stren 2000).

The preferred public management system should call on the greatest social participation possible and include the private sector in the financing and implementation of these projects. The large urban programs that seem to contribute the most to the development of a city are those based on public management of the land.

Land Value Appreciation

There is consensus around the fact that GPUs generate an appreciation in land value. Differences emerge when we try to assess the real amount of this appreciation, if it is to be redistributed and, if so, how it should be shared and whom it should benefit, both in social and territorial terms. Again we have the public-private conundrum, wherein this redistribution formula often leads to the appropriation of public resources by the private sector.

The appreciation of land value as a resource that can be mobilized for self-financing the GPU or transferred to other areas of the city could be a way to measure whether or not public management of these projects is a success. However, we rarely have an acceptable estimate of this land value increment. Even in the Puerto Madero project in Buenos Aires, which is considered to be a success, to date there is no evaluation of the land value increment associated with either the properties within the project itself or those in neighboring areas. As a result, the discussion of possible redistribution has not gone beyond a few educated guesses.

GPUs conceived as instruments for achieving certain strategic urban goals are generally registered as successes when they are executed according to plan. The question regarding to what extent these goals were actually reached is not fully answered, and it is often conveniently forgotten. The hypothesis that best seems to fit Latin American experiences with GPUs is that the apparent lack of interest in goals has little to do with any technical inability to make the source of the increased value transparent. Rather, this inattention comes from the need to hide the role of public management in facilitating the private sector’s capture of the land value increment in general, if not its capture of public resources used to develop the construction project itself.

We are not feigning ignorance of or trying to minimize the difficulties in advancing knowledge about how land value appreciation is formed and in measuring its size and circulation. Indeed, there are many technical obstacles to overcome when faced with complicated land rights, the vicissitudes or permanent flaws in cadastres and property registers, and the lack of an historical series of geo-referenced real estate values. Even the smallest plan must distinguish between the appreciation generated by the project itself and that generated by urban externalities that almost always exist despite the scale of the project, the different sources and rates of appreciation, and so forth. Some encouraging work has been done on measuring and evaluating the land value increment associated with development, but technical obstacles seem to be less relevant than the lack of political interest in knowing how these projects are being managed.

When land value increments are created, they are usually distributed in the immediate project area or nearby. This principle is based on the need to finance a specific project within the area, to offset certain negative impacts, or to implement actions such as relocating precarious housing sited on the land or its surroundings that may detract from the image of the new project. Given the socioeconomic conditions found in the typical Latin American city, it is not hard to see that the preferred use of the captured value is to earmark it for projects of a social nature in other parts of the city, such as housing complexes. In fact a significant part of the generated land value increment results exactly from the removal of negative externalities produced by the presence of low-income families in the area. Needless to say, this strategy raises conflicting opinions.

There is certainly a need to devise better legislation and instruments to overcome the trade-off between socially mobilized land value increment and gentrification through displacement. Despite the lack of hard empirical studies, there are reasons to believe that a broader understanding of the impacts of these projects will show that some of the compensatory intracity transfers may actually prove to be counterproductive. For example, the resulting higher land price differences and social residential segregation may involve higher social costs that will need to be addressed by additional public resources in the future (Smolka and Furtado 2001).

Positive and Negative Impacts

On the other hand, the negative impacts caused by GPUs often obscure the varied positive impacts. The challenge is how to reduce the negative impacts produced by this type of urban intervention. It soon becomes clear, whether directly or indirectly, that the role of land management is critical to understanding the effects of large interventions in urban development, planning, regulation, socio-spatial segregation, and the urban environment and culture. Scale and complexity have a role as well, depending on the type of impact. For example, scale is more relevant to environmental and urban development impacts, while complexity is more critical in terms of social impact and urban policy.

As already mentioned, the gentrification that these projects generally produce encourages the displacement of the existing, usually poor, inhabitants from the new project area. However, gentrification is a complex phenomenon that requires further analysis of its own negative aspects, as well as how it could help to raise living standards. It could be more useful to move on from simple mitigation of unwanted negative impacts to better management of the processes that create these risks.

Any GPU can have positive or negative effects, depending on the way urban development is managed, the role of the public sector, and the existing level of citizen participation. We have emphasized that one of the central issues is management of the land and of the land value increment associated with these projects. Large urban projects can not be analyzed in isolation from the entire development of the city. Likewise, the land component must be evaluated with respect to the combination of scale and complexity that is appropriate for each project.

Mario Lungo is a professor and researcher at the Central American University (UCA José Simeón Cañas) in San Salvador, El Salvador. He formerly served as executive director of the Office of Planning for the Metropolitan Area of San Salvador.

Martim O. Smolka is senior fellow of the Lincoln Institute of Land Policy, cochairman of the Department of International Studies and director of the Program on Latin America and the Caribbean.

References

Lungo, Mario, ed. 2004. Grandes proyectos urbanos (Large urban projects). San Salvador: Universidad Centroamericana José Simeón Cañas.

Lungo, Mario (forthcoming). Grandes proyectos urbanos. Una revisión de casos latinoamericanos (Large urban projects: A review of Latin American cases). San Salvador: Universidad Centroamericana José Simeón Cañas.

Smolka, Martim and Fernanda Furtado. 2001. Recuperación de plusvalías en América Latina (Value capture in Latin America). Santiago, Chile: EURE Libros.

Polese, Mario and Richard Stren. 2000. The social sustainability of cities. Toronto: University of Toronto Press.

That there is social conflict over property rights is clear to anyone with even passing attention to the national media.