Law Commons^™

Soil Governance And Private Property, Sarah J. Fox

Utah Law Review

This is an Article about soil. In consequence, it is also an Article about our relationship to land, and about how that relationship can and must change to confront the many environmental crises facing the United States. Questions about our relationship with the physical environment around us necessarily come to the fore in conversations about soil because of its several identities. It is one of Earth’s most precious resources—the substance responsible for allowing plants to grow, filtering pollutants out of water, providing habitat to countless organisms, sequestering carbon, and providing many other valuable functions. Soil also, however, makes up the …

Brigham-Kanner Property Rights Journal, Volume 12, William & Mary Law School

Brigham-Kanner Property Rights Journal

The Importance of Property Rights

September 29-30, 2022

Panel 1: The Importance of Property Rights: A Tribute to James S. Burling

Panel 3: Roundtable: Emerging Issues in Takings and Property Rights Litigation

Featured Authors (Burling, Kanner, and Valois)

Variances: A Canary In The Coal Mine For Zoning Reform?, John J. Infranca, Ronnie M. Farr

Pepperdine Law Review

There is perhaps no area of land use law where practice departs more from legal doctrine than the realm of zoning variances. According to the legal doctrine, variances are to be granted sparingly, providing a “safety valve” that alleviates unique hardships encountered by a property owner. In practice, variances are granted at high rates—often around ninety percent of applications are approved—and, in some jurisdictions, in high volumes. In such cases, variances effectively serve as a rezoning, enabling jurisdictions to permit otherwise prohibited uses and allow growth and development to occur without addressing needed zoning reforms. By allowing neighbors the opportunity …

Measuring Local Policy To Advance Fair Housing And Climate Goals Through A Comprehensive Assessment Of Land Use Entitlements, Moira O'Neill, Eric Biber, Nicholas J. Marantz

Pepperdine Law Review

California’s legislature has passed several laws that intervene in local land-use regulation in order to increase desperately needed housing production—particularly affordable housing production. Some of these new laws expand local reporting requirements concerning zoning and planning laws, and the application of those laws apply to proposed housing development. This emphasis on measurement requires the state to develop a housing data strategy to support both enforcement of existing law and effective policymaking in the future. Our Comprehensive Assessment of Land Use Entitlements Study (CALES) predates, but aligns with and supports, this state-led effort to improve local reporting. For the cities that …

Brigham-Kanner Property Rights Journal, Volume 11, William & Mary Law School

Brigham-Kanner Property Rights Journal

The Role of Empirical Research

September 30-October 1, 2021

Panel 1: The Role of Empirical Research in Defining the Scope of Constitutionally Protected Property Rights: A Tribute to Been

Panel 2: The Relationship Between Eminent Domain and Social and Racial Injustice

Panel 3: The Interdependence of Property and First Amendment Rights

Panel 4: The Distributional Implications of Land Use Regulation

Stale Real Estate Convenants, Robert C. Ellickson

William & Mary Law Review

Since the 1970s, covenants running with the land have tethered a large majority of the new housing units produced in the United States. These private restraints usually continue for generations, until a majority or supermajority of covenant beneficiaries affirmatively vote to amend or terminate them. Covenants interact with public land use controls, particularly zoning ordinances. Zoning politics tends to freeze land uses in urban America, particularly in existing neighborhoods of single-family homes. This Article investigates to what extent covenants exacerbate the zoning freeze. It provides a history of the use of private covenants and suggests how drafters, judges, and legislators …

Brigham-Kanner Property Rights Journal, Volume 10, William & Mary Law School

Brigham-Kanner Property Rights Journal

Where Theory Meets Practice

October 1-2, 2020

Panel 1: Where Theory Meets Practice: A Tribute to Henry E. Smith

Panel 2: The Housing Crisis

Lunch Roundtable: Emerging Issues in Takings and Eminent Domain Law

Panel 3: The Reach of Government's Confiscatory Powers Over Exigencies and Emergencies

Panel 4: The Risk of Unjust Compensation

Toxic Bones: The Burdens Of Discovering Human Remains In West Virginia's Abandoned And Unmarked Graves, J. William St. Clair, Robert Deal

West Virginia Law Review Online

This article pulls up and highlights a land use restriction, or financial burden, imposed upon West Virginia private real estate owners who inadvertently uncover human skeletal remains in unmarked graves on their property. In this state, those coming across human bones that historians and archaeologists eventually deem have no historical or archeological significance have a choice—pay the costs to have the bones removed and reinterred or cover the bones and use the property only as a cemetery in perpetuity. This burden becomes more acute when comparing West Virginia’s law to those of other states that require government officials, at public …

Brigham-Kanner Property Rights Journal, Volume 9, William & Mary Law School

Brigham-Kanner Property Rights Journal

The State of Regulatory Takings

October 3-4, 2019

Panel 1: The State of Regulatory Takings Jurisprudence: A Tribute to Eagle

Panel 2: Public Resources and Private Rights

Panel 3: Natural Gas and Other Energy Takings: Protecting Private Property Rights When the Public Interest is Promoted By a Non-Governmental Entity

Panel 4: Property and Poverty

Featured Author (Eagle)

Taking It Too Far: Growth Management And The Limits To Land-Use Regulation In Maine, Michael A. Duddy

Maine Law Review

In 1989 Maine enacted the Comprehensive Planning and Land Use Regulation Act. The Act's legislative findings declared that “ the State has a vital interest in ensuring that a comprehensive system of land-use planning and growth management is established as quickly as possible.” However, whenever the state exercises its police power to regulate private land use, it faces a constitutional limit as to how far it can go. When the land-use restriction exceeds that limit, a regulatory taking occurs. This Comment argues that the Comprehensive Planning and Land Use Regulation Act, as it is being interpreted and implemented by state …

Taking It Too Far: Growth Management And The Limits To Land-Use Regulation In Maine, Michael A. Duddy

Maine Law Review

In 1989 Maine enacted the Comprehensive Planning and Land Use Regulation Act. The Act's legislative findings declared that “ the State has a vital interest in ensuring that a comprehensive system of land-use planning and growth management is established as quickly as possible.” However, whenever the state exercises its police power to regulate private land use, it faces a constitutional limit as to how far it can go. When the land-use restriction exceeds that limit, a regulatory taking occurs. This Comment argues that the Comprehensive Planning and Land Use Regulation Act, as it is being interpreted and implemented by state …

The Short-Term Rental Economy In Rural Maine Communities: An Opportunity For Economic Growth Instead Of A Target For Regulation, Nicholas E. Anania

Maine Law Review

State and local governments across the country are grappling with the rise of short-term housing rentals and how to enact effective regulation regarding their use. The increase of short-term rentals (STRs) is almost entirely the result of online platforms that make STRs easy, efficient, and accessible. While STRs undoubtedly have positive economic outcomes for both property owners and local economies, there are also many negative repercussions which must be effectively regulated. Regulation in this area reflects differing priorities and viewpoints of states and municipalities. Specifically, rural Maine municipalities, many of which are popular seasonal destinations, face not only the challenges …

Regulating Short-Term Rentals In California's Costal Cities: Harmonizing Local Ordinances With The California Costal Act, Lucy Humphreys

Loyola of Los Angeles Law Review

In the past several years, local governments throughout California have debated and implemented new ordinances in order to regulate short-term rentals, such as those listed on peer-to-peer vacation rental platforms like Airbnb.California’s coastal cities face distinct challenges whentrying to regulate short-term rentals due to the popularity of short-term rentals in their jurisdictions, rising housing prices along the coast, and California Coastal Act requirements. One of the primary goals of the California Coastal Act is to maximize public access to the coast. This Article explores the interplay between state policy embodied by the Coastal Act and the ordinances passed by local …

Martin V. United States, Mitch L. Werbell V

Public Land & Resources Law Review

In Martin v. United States, the Federal Circuit Court dismissed a Fifth Amendment regulatory takings and exaction claim for want of ripeness when the claimant failed to apply for a permit, which would have allowed for an assessment of the cost of compliance with governmentally imposed requirements. By finding the claim unripe, the court stood firm on the historical view that federal courts may only adjudicate land-use regulatory takings and inverse condemnation claims on the merits after a regulating entity has made a final decision. However, jurisprudential evolution of the ripeness doctrine and judicial review of takings claims may …

Populist Placemaking: Grounds For Open Government-Citizen Spatial Regulating Discourse, Michael N. Widener

West Virginia Law Review

No abstract provided.

The Long-Standing Requirement That Delegations Of Land Use Control Power Contain "Meaningful" Standards To Restrain And Guide Decision-Makers Should Not Be Weakened, Orlando E. Delogu, Susan E. Spokes

Maine Law Review

Some forty years ago, a leading land use scholar noted that “it has always been recognized that it is an essential part of the judicial function to watch over the parochial and exclusionist attitudes and policies of local governments, and to see to it that these do not run counter to national policy and the general welfare.” Maine courts by and large have discharged this judicial function by consistently striking down unauthorized and overreaching local governmental land use decisions. Several recent cases, however, cast doubt on the Law Court's continuing commitment to guard against the parochial instincts of local land …

When Should Rights "Trump"? An Examination Of Speech And Property, Laura S. Underkuffler

Maine Law Review

In his well-known article, Property, Speech, and the Politics of Distrust, Professor Richard Epstein—a leading contemporary voice in the fields of property theory and constitutional law—makes a simple but compelling argument. There has been, he argues, a mistake in “the dominant mode of thinking about property rights during the past fifty years [that] has been ... of constitutional dimensions.” This mistake, in Professor Epstein's view, is the refusal of the federal courts to accord to individual property rights the same kind of protection from government regulation that is accorded to other constitutional rights. Using free speech as his example, Professor …

Some Model Amendments To Maine (And Other States') Land Use Control Legislation, Orlando E. Delogu, Sam Merrill, Philip R. Saucier

Maine Law Review

This model legislation consisting of ten separate provisions is intended to clarify and/or expand existing Maine law dealing with planning and land use regulation. It expands existing statutes by addressing a number of issues not presently covered by law. The overarching purpose of the proposed legislation is to underscore that planning and the imposition of land use regulations is not exclusively the responsibility of local governments but instead is a shared duty of the state and local governments. This is clearly stated in the text and commentary of Provision I, and is a theme that pervades all ten legislative proposals. …

Linchpin Approaches To Salvaging Neighborhoods In The Legacy Cities Of The Midwest, Shelley Cavalieri

Chicago-Kent Law Review

No abstract provided.

Side By Side: Revitalizing Urban Cores And Ensuring Residential Diversity, Andrea J. Boyack

Chicago-Kent Law Review

No abstract provided.

Public Resource Ownership And Community Engagement In A Modern Energy Landscape, Samantha Hepburn

Pace Environmental Law Review

The onshore resource conflicts that have erupted in the Eastern states of Australia highlight the deep need for axiomatic structural change in public resource ownership frameworks. Much of the conflict that has arisen stems from the failure of the state, as owner, to give proper regard to the social and environmental concerns relevant to the expansion of onshore resource development. The underlying rationale for vesting resources in the state is to ensure they are managed for the benefit of the community as a whole. The implied sumption is that public benefit obligations are met through state administration because this is …

The New England Food System In 2060: Envisioning Tomorrow's Policy Through Today's Assessments, Margaret Sova Mccabe, Joanne Burke

Maine Law Review

As the local food movement gains critical mass around the country, deep and important issues concerning food system policy arise. The modern American food system spans from agricultural production to food processing to food consumption, and finally, to health outcomes. The system’s components include economic, environmental, social, political, and scientific aspects that interact in ways that far outstrip any one discipline’s capacity to analyze and resolve problems. Additionally, the system is profoundly shaped by a complex architecture of laws and regulation. With much credit to the local and regional food movements, people have begun to question not only the current …

Insuring Takings Claims, Christopher Serkin

Northwestern University Law Review

Local governments typically insure themselves against all kinds of losses, from property damage to legal liability. For small- and medium-sized governments, this usually means purchasing insurance from private insurers or participating in municipal risk pools. Insurance for regulatory takings claims, however, is generally unavailable. This previously unnoticed gap in municipal insurance coverage could lead risk averse local governments to underregulate and underenforce existing regulations where property owners threaten to bring takings claims. This seemingly technical observation turns out to have profound implications for theoretical accounts of the Takings Clause that focus on government regulatory incentives. This Article explores the impact …

Emulsified Property, Jessica A. Shoemaker

Pepperdine Law Review

The typical American Indian reservation is often described as a “checkerboard” of different real property ownership forms. Individual parcels of reservation land may be held in either a special federal Indian trust status or in fee, by either Indian or non-Indian owners. The general jurisdictional framework provides that federal and sometimes tribal law sets the rights and responsibilities of trust owners, while fee owners are subject to a peculiar mix of state and tribal law. Many scholars have analyzed the challenges created by this checkerboard pattern of property and jurisdiction. This Article, however, reveals an even more complicated issue that …

Recent Development: Assategue Coastal Trust, Inc. V. Schwalbach: An Applicant Must Satisfy The "Unwarranted Hardship" Standard To Be Granted A Variance; The Variance Must Have No Adverse Impact On The Environment And Conform To The Purpose Of The Critical Area Program, Michael Louis Brown

University of Baltimore Law Forum

The Court of Appeals of Maryland held that the Worchester County Board properly applied the “unwarranted hardship” standard and correctly granted a variance under local critical area law. Assateague Coastal Trust, Inc. v. Schwalbach, 448 Md. 112, 140, 136 A.3d 866, 882 (2016). The court held that the variance would not have an adverse impact on the environment and the development was in conformity with the Critical Area Program’s purpose and intent. Schwalbach, 448 Md. at 143-44, 136 A.3d at 883.

Sharing Property, Kellen Zale

University of Colorado Law Review

The sharing economy-the rapidly evolving sector of peer-topeer transactions epitomized by Airbnb and Uber-is the subject of heated debate about whether it is so novel that no laws apply, or whether the sharing economy should be subject to the same regulations as its analog counterparts. The debate has proved frustrating and controversial in large part because we lack a doctrinally cohesive and normatively satisfying way of talking about the underlying activities taking place in the sharing economy. In part, this is because property-sharing activities-renting your car out to a tourist for a day, paying to spend the weekend in a …

The Legal Form Of Liberalism: A Study Of Riparian And Nuisance Law In Nineteenth Century Ohio, E. P. Krauss

Akron Law Review

This essay tests the foregoing interpretation by examining the nineteenth century Ohio decisions in the fields of riparian and nuisance law. This data, as shall be shown, tends to confirm the conclusions of earlier scholarship. In the third and fourth parts of this essay two decisions, one from the very beginning of the period under study," and one from near the end, will be considered. These two decisions help identify the developmental context within which judicial law-making passed from a creative to an elaborative phase by illustrating judicial attitudes toward protecting the public interest in 1831 and again in 1892.

The Ripeness Game: Why Are We Still Forced To Play?, Michael M. Berger

Touro Law Review

No abstract provided.

Other Tributes To Fred Bosselman, Edward J. Sullivan, Nancy E. Stroud

Touro Law Review

No abstract provided.

Participatory Democracy And The Entrepreneurial Government: Addressing Process Efficiencies In The Creation Of Land Use Development Agreements, Ramsin G. Canon

Chicago-Kent Law Review

Can the development agreement become a tool for community-based planning? Development agreements and related land use planning instruments have steadily increased in popularity over the last few decades. Standard zoning regimes have proven to be too rigid and inflexible to accommodate the evolving nature of large-scale, and particularly mixed-use, developments. The bilateral nature of development agreements also allows cities and counties to effectively compete for development dollars by crafting incentives. However, this type of ad-hoc planning can run afoul of the reserved powers doctrine and its progeny, and can face vehement political and social opposition. This type of opposition results …