Don’t be a flat earth fanatic!

As land developers we are conditioned to think horizontally, in other words to be flat earth thinkers. We consider the land as being a horizontal surface and start thinking about our layout for the project. Sometimes we put effort into subsurface thinking, particularly as it relates to soil conditions and how they would affect utility installation and drainage. But how often do we think of the air above our land holdings as a development opportunity? I don’t know about you, but I didn’t for years until I saw something that made me see the unrealized potential!

Let’s have some fun first!

What is an axis and why should I care?

As a private pilot I had to learn about three different ways to spatially control an airplane. When airborne, a pilot has to control rotation of the airplane in three separate axes during flight to maintain control. An axis, (or axes - plural) is an imaginary line running through the airplane that references its spatial position.

The axes of rotation:

To keep an airplane in controlled flight it must be rotated along 3 axes:

Horizontal axis - the imaginary line running from wing tip to wing tip
Longitudinal axis - a second imaginary line running from nose to tail
Vertical axis - the third imaginary line running up and down through the top and bottom of the aircraft

The vertical axis can be an opportunity for land developers:

I’ve subdivided a lot of dirt surfaces over the years. I’ve also altered subsurface conditions during construction, but I’ve never capitalized on the potential that lies in the air above me, except to breath it. That could have been a mistake.

Vertical airspace use - cell site land lease:

There are cell sites with masts and towers almost everywhere I look. What follows is an example of a super clever use of airspace above a steep slope on top of a hill. A hill that could not be used for much else…except this:

There’s gold in them ‘thar hills!

There was land owned by another guy near one of my projects and it was ideally situated for a cell tower site. This was primarily because of location and elevation. The location was ideal since the proposed cellular mast would triangulate perfectly with the existing cell sites in the area, and there was a natural high spot from which the tower’s dish antennae would angle downward to interconnect radio waves between neighboring cell sites.

A cellular provider had approached the nearby land owner, who up to that point was completely unaware of the potential gold mine he owned. I was not directly involved in this transaction, but my reliable understanding of the negotiated deal was that the parties executed a long-term land lease to place a cell site mast, along with suitable easements in favor of the cellular provider for access, utilities, inspections, repair and maintenance. All permitting and construction costs were to be borne by the cellular company and they indemnified and held harmless the landowner from liabilities related to their improvements, maintenance and operational activities. Should the cellular site be decommissioned in the future, the provider would demo the site and reclaim it largely to its original state. There were probably other provisions in the agreement, but as I mentioned earlier this wasn’t one my personal deals. A project manager friend of mine that knew the land owner told me that the end-result was a $15,000 per month long-term lease agreement with the landowner on a portion of his land that could probably never be used for any other purpose!

Why didn’t I think of that? Especially since I had similar high spots on my nearby project that were otherwise UNUSABLE!!

Ahh, if I only had a nickel for every opportunity I have missed in land development…

Use of airspace:

Most developers rarely think about it, but we all know about it! Think of skyscrapers in New York City. With proper permitting, the air above might be subdivided and sold independently of the land, with subsequent construction going vertical. Likewise, remember that landowners may have subsurface rights for the mining of minerals. The main point is to avoid being a flat earth thinker. Always remember that the ownership of real property extends below the surface to the earth’s center and above it in the air to infinity. Of course infinity is somewhat theoretical because there is only so far up or down that one could realistically go. An example would be the Federal Aviation Administration’s authority over airspace for air traffic, which would place a practical limit on proposed development at a defined altitude.

Just as surface, subsurface and air rights should be considered for opportunity, the bundle of property rights identified in the deed and on title should be too. Rights and restrictions can offer opportunities and also define limitations that every property owner should know. The distinction between real estate and real property (including the bundle of rights) is made in the following article:

The Difference Between Real Estate and Real Property: The Difference Between Real Estate and Real Property — Land Development Realities .

Subdivision of airspace:

Just as with the development of a traditional subdivision on the surface of the land, airspace subdivision requires proper planning, applications, review and approval. To begin with, there must be proper zoning and plans for compliance with all the technical requirements, including the building code. Air subdivisions must have approved access to public rights of way, common spaces, ingress and egress, parking and other areas of common use. CC&R’s and the management documents will cover ownership entitlements along with conditions and restrictions. Easements and legal descriptions are also necessary. A typical end product might be subsurface parking, retail on the surface, and residential going vertical. This is true mixed-use development. Clearly, almost none of us will be subdividing in this fashion, including me, but the Land Development Realities Blog is designed to get you to think not just inside of the box, but also outside of the box. That, while fully complying with all governing laws.

In fact, my first post was about this very point, as described in the article below:

Non-Traditional Ways to Increase Land Value: - Non-Traditional Ways to Increase Land Value — Land Development Realities

What is Vertical Thinking in Land Development?

My suggestion is to view the potential of land in all spatial dimensions. Up and down / front to back / side to side. One way to do that is to consider the airspace above the land for potential opportunity. Can an easement be granted for overhead improvements? Is there otherwise unusable land, where on the surface a cell mast or cell tower can be placed with a land lease to the cell provider? Is there some form of mixed use where subsurface, surface and airspace can be used for additional profit?

Everyone in business always emphasizes creative thinking and I do too. Beyond that is alternative thinking. If one knows the rights and restrictions in the deed and on title, understands development code for the property, understands zoning and allowable conditional uses, then there may be alternate opportunities for maximizing the profitability of a project. Good luck!

(P.S. - Below is another form of vertical thinking. Interesting, but not recommended)!