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Articles 1 - 21 of 21
Full-Text Articles in Law
When States' Legislation And Constitutions Collide With Angry Locals: Shale Oil And Gas Development And Its Many Masters, Heidi Gorovitz Robertson
When States' Legislation And Constitutions Collide With Angry Locals: Shale Oil And Gas Development And Its Many Masters, Heidi Gorovitz Robertson
Law Faculty Articles and Essays
This Article explores the nationally common problem of tension and conflict among state oil and gas statutes, constitutional home rule, and local control by considering intersections and tensions among the Ohio Constitution’s home rule authority, the Ohio oil and gas law’s preemption provision, and the many regulatory efforts of Ohio’s local governments. It explores the scope of the Ohio Constitution’s home rule authority, in part, by evaluating courts’ statements on the validity of several types of local ordinances, as they confront home rule and a legislative attempt at preemption. Types of local ordinances evaluated include those that prohibit or ban …
The Effect Of Rluipa's Land Use Provisions On Local Government, Alan C. Weinstein
The Effect Of Rluipa's Land Use Provisions On Local Government, Alan C. Weinstein
Law Faculty Articles and Essays
In the absence of perfect information about how RLUIPA has affected local governments, this article argues that the courts have adopted a pragmatic approach to maneuvering in the difficult terrain that RLUIPA occupies: combining appropriate judicial deference to a legislature that enacts a neutral law of general applicability with the heightened judicial scrutiny that becomes appropriate when that same law is applied to a specific zoning approval, a circumstance that frequently allows for subjectivity, and thus the potential for discrimination or arbitrariness against religious uses, in the approval process. I conclude that: (1) until proven otherwise, the costs RLUIPA undoubtedly …
Crossing The Home-Rule Boundaries Should Be Mandatory: Advocating For A Watershed Approach To Zoning And Land Use In Ohio, Melanie Shwab
Crossing The Home-Rule Boundaries Should Be Mandatory: Advocating For A Watershed Approach To Zoning And Land Use In Ohio, Melanie Shwab
Cleveland State Law Review
This Article advocates that Ohio adopt a mandatory “watershed-approach” to land use planning and zoning throughout the state. Ohio should adopt this approach to increase water quality in the state by reducing nonpoint source pollution, achieve greater environmental regulation uniformity, and offset the unfettered zoning power of municipalities operating in the absence of a comprehensive plan.
Rluipa: Where Are We Now? Where Are We Heading?, Alan C. Weinstein
Rluipa: Where Are We Now? Where Are We Heading?, Alan C. Weinstein
Law Faculty Articles and Essays
Over the past three years, hardly a week has gone by without at least one news-story announcing that a church, synagogue, or religious school-I'll use the term “church” from here on as a shorthand for all houses of worship or other religious institutions—is claiming that its right to religious freedom is being infringed by local government land use regulations in violation of the Religious Land Use and Institutionalized Persons Act. RLUIPA, a federal statute signed into law in September 2000, was enacted to restore to full vigor legal protection for religious freedoms that the Act's proponents argue had been seriously …
Case Commentary - Martin V. Corporation Of The Presiding Bishop: Should Zoning Accommodate Religious Uses Or Vice Versa?, Alan C. Weinstein
Case Commentary - Martin V. Corporation Of The Presiding Bishop: Should Zoning Accommodate Religious Uses Or Vice Versa?, Alan C. Weinstein
Law Faculty Articles and Essays
In Martin v. Corporation of the Presiding Bishop, 747 N.E. 2d 131 (Mass. 2001), the highest court in Massachusetts rules that the Dover Amendment, a state statutes that denies local government the authority to "prohibit, regulate, or restrict the use of land or structures for religious purposes..." authorized the town of Belmont to grant a church special permission to build a steeple for a newly built Church of Jesus Christ of Latter Day Saints temple that was taller than the local zoning provisions would normally allow. Since Martin involved a Massachusetts statute, normally the decision would evoke limited interest, and …
Conflicts In Regulating Religious Institutions, Alan C. Weinstein
Conflicts In Regulating Religious Institutions, Alan C. Weinstein
Law Faculty Articles and Essays
Over the past 25 years, religious institutions have greatly increased their claims of violation of religious freedom when they are denied zoning approval or subjected to historic preservation regulations. While no one can definitively explain the causes of this increase in First Amendment challenges, it can partially be traced to recent changes in both our society and the way our political/legal system conceptualizes religious freedom.
Destination Unknown: Does The Internet's Lack Of Physical Situs Preclude State And Federal Attempts To Regulate It , Christopher S.W. Blake
Destination Unknown: Does The Internet's Lack Of Physical Situs Preclude State And Federal Attempts To Regulate It , Christopher S.W. Blake
Cleveland State Law Review
This Note summarizes recent tests of state and federal Internet content regulations and analyzes the impact the Internet's incompatibility with "real space" geography had or might have had on the courts' reasoning. To some extent, it posits what problems the incompatibility poses for impending legislation. In the midst of such discussion, this Note opines that state and federal regulations of the Internet could conceivably both fail Constitutional muster, due specifically to the internet's physical shortcomings. Part II of this Note offers a background of the Internet's different communication capacities and describes its conflicts with geography. Part III summarizes the courts' …
The Challenge Of Providing Adequate Housing For The Elderly . . . Along With Everyone, Alan C. Weinstein
The Challenge Of Providing Adequate Housing For The Elderly . . . Along With Everyone, Alan C. Weinstein
Law Faculty Articles and Essays
Our patterns of land use and development have failed to accommodate the changed housing needs of an aging population. Primary among these needs is the desire of the elderly to be able to "age in place." To meet this need, America's suburban communities in particular will need to re-think their reliance on exclusive single-family zoning and begin planning and zoning for an increasingly large number of the elderly. Despite understandable concerns about maintaining housing values, this may well prove to be politically achievable simply because the very demographic changes that create the need will create a growing constituency in favor …
Land Use And The First Amendment, Alan C. Weinstein
Land Use And The First Amendment, Alan C. Weinstein
All Maxine Goodman Levin School of Urban Affairs Publications
The past year saw no cessation in cases reporting on the conflicts that arise when local land-use regulation is applied to uses claiming protection under the First Amendment. This report highlights the major developments in this area.
Report Of The Committee On Land Use, Planning And Zoning Law - Report Of The Subcommittee On Land Use And The First Amendment, Alan C. Weinstein
Report Of The Committee On Land Use, Planning And Zoning Law - Report Of The Subcommittee On Land Use And The First Amendment, Alan C. Weinstein
All Maxine Goodman Levin School of Urban Affairs Publications
The past year saw no cessation in cases reporting on the conflicts that arise when local land use regulation is applied to uses claiming protection under the First Amendment. This report highlights the two major developments in this area - the courts' the treatment of claims brought under the Religious Freedoms Restoration Act of 1993 and the latest decision of the U.S. Supreme Court concerning sign regulation, City of Ladue v. Gilleo, and discusses other cases involving regulation of religious institutions, adult businesses and signs.
Report Of The Subcommittee On First Amendment And Land Use, Alan C. Weinstein, Edward H. Ziegler Jr.
Report Of The Subcommittee On First Amendment And Land Use, Alan C. Weinstein, Edward H. Ziegler Jr.
Law Faculty Articles and Essays
In recent years, there has been a marked expansion in the types of uses, both commercial and nonprofit, that challenge land-use regulations on First Amendment grounds. This expansion is occurring for two reasons. First, "land use and the first amendment" is a developing area in the law. As is typical of developing areas in the law, litigants are encouraged to bring cases because the law is unsettled and they hope to create significant new rights. Second, a number of societal factors have coalesced to create a greater potential for conflict when government regulates the use of land. In part, this …
First Amendment And Land Use, In Recent Developments In Land Use, Planning, And Zoning, Alan C. Weinstein, Edward E. Ziegler Jr.
First Amendment And Land Use, In Recent Developments In Land Use, Planning, And Zoning, Alan C. Weinstein, Edward E. Ziegler Jr.
Law Faculty Articles and Essays
In the mid-1980s, the focus in this area of the law was on nuisance closures and license revocation actions affecting adult bookstores and other kinds of establishments where either obscenity or illicit sexual activities were taking place. In our last committee report focusing on the first amendment area we reported on those areas of the law in light of the Supreme Court's decision in Arcara v. Cloud Books, Inc. Since then, there has been one important Fifth Circuit decision, FW/PBS Inc. v. City of Dallas, that the Supreme Court has agreed to review, with a decision expected in 1989. There …
New Rules For Zoning Adult Uses: The Supreme Court's Renton Decision, Alan Weinstein
New Rules For Zoning Adult Uses: The Supreme Court's Renton Decision, Alan Weinstein
Law Faculty Articles and Essays
This term, for the third time in 10 years, the U.S. Supreme Court considered the validity of zoning that restricts the location or operation of businesses that trade in sexually oriented books, magazines, movies, or entertainment. Restrictions on such "adult businesses" raise serious constitutional issues because the First Amendment's guarantee of freedom of speech extends to sexually oriented media so long as the material is not considered obscene. In the latest case, City of Renton v. Playtime Theatres, 106 S.Ct. 925 (1986), 38 ZD 258, the Court upheld a zoning ordinance that limited the location of theaters exhibiting adult movies …
Judicial Remedies In Pattern And Practice Suits Under The Fair Housing Act Of 1968: United States V. City Of Parma, Karen E. Rubin
Judicial Remedies In Pattern And Practice Suits Under The Fair Housing Act Of 1968: United States V. City Of Parma, Karen E. Rubin
Cleveland State Law Review
The elimination of racially segregated housing is a national goal of high priority. This goal is reflected in the pronouncements of law-makers and policy shapers, in decisional law, and in the existence of federal and state legislation designed to eradicate ghettos and replace them with "truly integrated and balanced" communities. Yet segregated housing patterns persist, often finding their source and legitimization in the policies and practices of local governments. This Note will examine an Ohio decision, United States v. City of Parma, and its impact on two issues: the bringing of a "pattern and practice" suit under Title VII of …
Regulating Pornography: Recent Legal Trends, Alan C. Weinstein
Regulating Pornography: Recent Legal Trends, Alan C. Weinstein
Law Faculty Articles and Essays
Since the Supreme Court's 1976 decision in Young v. American Mini Theaters, Inc., 427 U.S. 50 (1976) local governments have been permitted to single out adult bookstores and theaters for special regulatory treatment.' In the wake of Young, many municipalities enacted "pornography zoning" ordinances based on the Detroit dispersion model. Observing this trend in 1978, the Harvard Law Review noted that these municipalities were interpreting Young as approving pornography zoning as constitutionally acceptable "in nearly all circumstances." 2 This interpretation seemed incorrect, however, to the Review's editors: "Detroit's pornography zoning was found to satisfy three established First Amendment criteria; future …
Monell V. New York Board Of Social Services: New Liability For Land Use Regulators In Ohio - The Limits Of Regulatory Power, James M. Speros
Monell V. New York Board Of Social Services: New Liability For Land Use Regulators In Ohio - The Limits Of Regulatory Power, James M. Speros
Cleveland State Law Review
Monell places decisions of local agencies regarding land use in an entirely new light. While the exact scope of local governmental liability is yet to be determined, land use decisions can no longer be made without consideration of potential financial consequences from this new civil rights liability. Local governments must be aware that this potential financial responsibility will make challenges to land use decisions far more attractive to landowners. Thus, local governments must pay particular attention to the specific limitations on their power to regulate land use control, for significant financial liability may now be imposed if these bodies exceed …
Zoning Control Of Abortion Clinics, Jan Ryan Novak
Zoning Control Of Abortion Clinics, Jan Ryan Novak
Cleveland State Law Review
This note will address some of the issues involved when communities propose to use the zoning power to limit the exercise of the constitutionally protected abortion decision, focusing on abortion clinic regulations in Cleveland, Ohio, and comparing them to ordinances in three other cities.
Belle Terre V. Boraas, Stewart Goldstein
Belle Terre V. Boraas, Stewart Goldstein
Cleveland State Law Review
On April 1, 1974, the Supreme Court announced its opinion in the first zoning case of constitutional dimensions that the Court had decided in the last forty-six years. In sustaining the ordinance of the Village of Belle Terre, with its restrictive definition of "family," the Court reaffirmed its respect for the lines drawn by legislatures in the area of zoning and equal protection. The Belle Terre decision reaffirmed the validity of one municipality's mechanism for preserving the style of life of its inhabitants, free from exposure to one element of the counterculture, the voluntary cooperative association of unrelated persons: the …
Judicial Review Of Zoning Adminstration, Richard A. Pelletier
Judicial Review Of Zoning Adminstration, Richard A. Pelletier
Cleveland State Law Review
This discussion will focus on the role of the courts in zoning administration judicial review. More specifically, the limitations of that role, as it is now employed, will be examined with a suggested alternative. However, beforye a meaningful explanation of that topic can be undertaken it is necessary to provide a brief description of the zoning procedure before judicial review is summoned into the fray. For this reason, the initial portion of this comment is devoted to a general discussion of the source of the municipality's authority to promulgate zoning ordinances, and the makeup and function of the local zoning …
Zoning Restrictions Applied To Mobile Homes, Byron D. Van Iden
Zoning Restrictions Applied To Mobile Homes, Byron D. Van Iden
Cleveland State Law Review
It is the thesis of this paper that a municipality may not prevent expansion of an existing mobile home park (in the absence of a clear showing that to do so is necessary to promote the public health, safety, or welfare) by excluding mobile home parks from the zoning resolution, and through statutory limitations on the expansion of nonconforming uses. After examining treatment by the courts of regulating and excluding mobile home parks, several possible approaches will be shown for the mobile home park developer to use in overcoming these zoning restrictions.
Change Of Neighborhood In Nuisance Cases, Martin A. Levitin
Change Of Neighborhood In Nuisance Cases, Martin A. Levitin
Cleveland State Law Review
The law of nuisance lies somewhere between the legal principle that each person may use his property as he sees fit, and the contradictory principle that he must so use it as not to injure the property or rights of his neighbors. With the growth of our nation, and its changing balance between rural and urban populations, the established principles of tort law as applied to nuisances evidence the "elastic adaptability" of the common law.