Open Access. Powered by Scholars. Published by Universities.®
Articles 31 - 60 of 72
Full-Text Articles in Law
Shielding Board Members: Municipalities Should Protect Them From Suits, John R. Nolon, Jessica A. Bacher
Shielding Board Members: Municipalities Should Protect Them From Suits, John R. Nolon, Jessica A. Bacher
Elisabeth Haub School of Law Faculty Publications
Both individual land use board members and the municipal governments containing these boards are concerned with the liability of the boards, and of individual members from legal challenges stemming from their decisions. Legal actions against these boards, and the potential for subsequent liability of individual members could put significant financial burdens on municipalities and also discourage competent citizens from serving on these local land use boards. This commentary reviews the impact of two recent New York state cases, and their affect on state legislation concerning these topics.
Clarifying The Rules And Roles Of Land Use Boards, John R. Nolon, Jessica A. Bacher
Clarifying The Rules And Roles Of Land Use Boards, John R. Nolon, Jessica A. Bacher
Elisabeth Haub School of Law Faculty Publications
This article discusses the rules and roles of land use boards, including planning boards, and zoning boards of appeals. Local governments are given broad authority to create land use regulations by the New York state legislature, and so long as they stay within the boundaries of the state land use statutes, the local government’s fact based decisions are usually upheld in face of legal challenges in court. This column analyzes several recently decided cases in an attempt to clarify the uncertainties involved with the decisions of local land use boards, and challenges to land use board decisions.
Religion And Land Use: Westchester Day School V. Village Of Mamaroneck, John R. Nolon, Jessica A. Bacher
Religion And Land Use: Westchester Day School V. Village Of Mamaroneck, John R. Nolon, Jessica A. Bacher
Elisabeth Haub School of Law Faculty Publications
The Westchester Day School and the Zoning Board of Appeals (ZBA) of the Village of Mamaroneck were involved with several lawsuits stemming from a rescinded “negative” State Environmental Quality Review Act (SEQRA) determination by the ZBA after local public outcry of the school’s expansion. This article explores the relationship between Religious Land Use and Institutionalized Persons Act (RLUIPA) and land use regulations, and comes to the conclusions that Congress enacted the RLUIPA to ensure religious organization landowners are not singled out to bear the burdens of the general public.
Seqra Challenges: Court Creates New Rule On Statute Of Limitations, John R. Nolon, Jessica A. Bacher
Seqra Challenges: Court Creates New Rule On Statute Of Limitations, John R. Nolon, Jessica A. Bacher
Elisabeth Haub School of Law Faculty Publications
The New York State Environmental Quality Review Act, known around the New York legal community as SEQRA, triggers any time a public action may have an adverse impact on the environment. The determinations of this process, intertwined with public actions such as, site plan approvals, variance requests, or any other land use or public action, are often challenged by those parties who are unsatisfied with the result. This article discusses the extensive case history regarding when SEQRA actions are ripe for legal challenge.
Exacting Tests: Determining When A Taking Is Unconstitutional, John R. Nolon, Jessica A. Bacher
Exacting Tests: Determining When A Taking Is Unconstitutional, John R. Nolon, Jessica A. Bacher
Elisabeth Haub School of Law Faculty Publications
In the past, courts generally deferred to legislatures when determining whether a law constitutes a regulatory taking. However, not all regulations are treated equal, and different tests apply to different types of regulations. Types of land use actions with a lower threshold of constitutionally include exactions, and regulations that apply fixed fee schedules to private landowners. This article combs both federal and New York law to come to the clear determination that universal standards exist for each type of regulation.
'Saddle Rock': Preemption Of Local Land Use Prerogatives, John R. Nolon, Jessica A. Bacher
'Saddle Rock': Preemption Of Local Land Use Prerogatives, John R. Nolon, Jessica A. Bacher
Elisabeth Haub School of Law Faculty Publications
Local municipalities have broad authority to regulate land use as provided in state legislation. Like all higher forms of legislation, state law occasionally preempts local legislatures from enacting laws. Generally preemption is appropriate when the area to be regulated by the local laws is comprehensively regulated by state law, the uniformity of the state law will benefit the localities, and inconsistencies in local law are harmful to land owners and municipalities. This article discusses the pros and cons of state preemption on various types of land use regulation.
Regulatory Takings: Governments Can Avoid Successful Challenges, John R. Nolon, Jessica A. Bacher
Regulatory Takings: Governments Can Avoid Successful Challenges, John R. Nolon, Jessica A. Bacher
Elisabeth Haub School of Law Faculty Publications
Many local officials have the misguided belief that their utilization of land use regulation is greatly impeded by private rights to develop. However, land use regulations have a strong assumption of validity, with courts unlikely to overturn the regulations unless they are clearly erroneous or unreasonable or have no connection to a valid public interest. In addition to explaining development rights, this article provides the reader with insightful information on how local legislatures enact regulations while avoiding regulatory takings challenges.
Local Authority: Communities Have Means Of Influencing Land Use, John R. Nolon
Local Authority: Communities Have Means Of Influencing Land Use, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
This case analysis examines several court decisions, including the results of three New York Court of Appeals cases where litigants challenged the constitutionality of municipal land use decisions. In each case, the court afforded the municipality deference and found that their objectives were rationally related to the decisions, mostly decisions to deny development. However, this presumption of validity given to local legislatures and quasi-judicial agencies presents a problem when land use decisions affect outside municipalities. Thankfully, through the use of training programs, municipalities are learning to work together to resolve intermunicipal land use issues.
Local Land Use: Decision Expands Federal Government's Role, John R. Nolon
Local Land Use: Decision Expands Federal Government's Role, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
The United States Environmental Protection Agency (EPA), pursuant to its authority under the Clean Water Act, has promulgated regulations creating the Storm Water Management Program. Contrary to the overall Clean Water Act scheme, which focuses on reducing pollution from point sources, the program has the objective of reducing non-point source water pollution. However, this program is not without controversy as heavy burdens are placed upon local governments, who themselves lack the financial resources, manpower, or technology to implement a complex federal system without federal or state assistance.
Open Meetings: Land Use Mediation And The Public's Right To Know, John R. Nolon
Open Meetings: Land Use Mediation And The Public's Right To Know, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
Great uncertainty surrounds the New York Open Meetings Law (OML), a law that permits the public to attend meetings of public bodies. Obviously, the OML becomes especially crucial in the area of land use where public governmental meetings are the norm, and conflicts usually involve several interested parties. This article delves into OML issues such as, what constitutes a public meeting, and the importance of having meetings open to the public.
Smart Growth: Intermunicipal Innovation In Orange County, John R. Nolon
Smart Growth: Intermunicipal Innovation In Orange County, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
This article tells the story of the town of Warwick, a rapidly developing town in Orange County, New York, made up of three separate villages. Warwick’s proactive measures to prevent the sprawl development phenomenon through the use of an intermunicipal compact was met with much opposition by the three individual village governments, as well as individual citizens. Through the use of mediation, a popular alternative resolution dispute method, representatives from the villages negotiated an intermunicpal plan that satisfied the needs all three villages, while still meeting the original objectives of preserving open space, scenic views, and agricultural lands.
Performance Zoning: Shaping Land Development Patterns Today, John R. Nolon
Performance Zoning: Shaping Land Development Patterns Today, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
Over thirty years ago The United States Court of Appeals upheld municipal efforts to control growth in the case Golden v. Ramapo. Since then, municipalities have come up with novel tools to harness development into sustainable patterns while mitigating damaging effects of sprawl. This article focuses on the renaissance of one popular land use device, performance zoning, and how the Town of Hyde Park uses this tool to promote growth in community centers and protect undeveloped areas.
'Golden' Anniversary: 30-Year-Old Decision Is Fabric Of Land Use Law, John R. Nolon
'Golden' Anniversary: 30-Year-Old Decision Is Fabric Of Land Use Law, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
The famous New York case of Golden v. Ramapo helped create the movement towards smart growth thirty years ago. Ramapo, like most other towns in New York struggled with the familiar quandary of how to balance the pressures of absorbing growth while still controlling urban sprawl. Ramapo’s solution, to greatly reduce development in its jurisdiction for eighteen years in order to research more efficient development methods, sparked much controversy with local land owners. The United States Court of Appeals, in one of New York’s most significant contributions to smart growth, upheld Ramapo’s plan and created a groundbreaking precedent still widely …
'Tahoe' Case: When Environmental Regulations Go 'Too Far', John R. Nolon
'Tahoe' Case: When Environmental Regulations Go 'Too Far', John R. Nolon
Elisabeth Haub School of Law Faculty Publications
This article reviews a recently decided United States Supreme Court case which held that a thirty-two month moratorium on development did not constitute a taking per se. The Court, building on logic from other recent decisions, found that moratoria are an effective land use tool, which prevent inefficient land development and consequently lead to increased land value. This article analyzes the court’s decision to hold that moratoria are never takings per se, instead holding that a court shall perform an ad hoc analysis to determine a moratorium’s constitutionality.
Collaborating On Environmental Conservation, John R. Nolon
Collaborating On Environmental Conservation, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
Development law, local laws and policy that influence private land developers to appropriately develop land, affect the concerns of several groups including, private developers, municipalities, and environmentalists. By promoting environmental principles and revoking local regulatory obstacles, local governments can help encourage cooperation among these groups. This article highlights the success many New York communities have experienced in accommodating population growth while still reducing taxes and providing protection for the natural environment.
Our Town: Local Governments Play Larger Role In Environmental Policy, John R. Nolon
Our Town: Local Governments Play Larger Role In Environmental Policy, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
People normally perceive environmental law to be a piecemeal of federal laws mostly concerned with terminating pollution from point sources, such as smoke stacks or water pipes. Land use law on the other hand, is normally a local undertaking, often ignoring national or even regional issues. Today’s new breed of environmental problems, such as sprawl, require that different levels of government work together to create a comprehensively planned land use strategy in order to mitigate long-term environmental degradation. Through the use of financial incentives and other tools, larger bodies of government help encourage local governments to take the necessary steps …
Local Protection: Raising A Matter Of 'Sovereign Concern', John R. Nolon
Local Protection: Raising A Matter Of 'Sovereign Concern', John R. Nolon
Elisabeth Haub School of Law Faculty Publications
Challenges to the expansion of local initiatives aimed at local environmental protection question the powers delegated to municipal governments from the state. New York case precedent suggests that express and implied police power authority conferred from the state to municipalities is a broad concept and includes the power to protect natural resources, scenic views, and other environmental concerns. Through the use of this power, localities are better able to meet the environmental challenges they are faced with by using innovative grass-roots initiatives
Battle For The Ages: Defining Federal Power To Affect Local Land Use, John R. Nolon
Battle For The Ages: Defining Federal Power To Affect Local Land Use, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
Under the 10th Amendment, the United States Constitution allows states to control land use within their jurisdiction. The federal government therefore, in its efforts to mitigate environmental damages caused by sprawl and over development, is limited to federal statutes carried about by federal agencies such as the Environmental Protection Agency managed Clean Water Act. Although these federal programs are helpful at reducing pollution from point sources, they are precluded from regulating non-point sources, such as the increased storm water run-off caused by expanding development. Through federally backed programs, states could support regional land use planning that would encourage stronger environmental …
Supreme Court Takes A Look At Takings, John R. Nolon
Supreme Court Takes A Look At Takings, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
In the case of Pazzalo v. Rhode Island the United States Supreme Court reversed a determination by the Rhode Island Supreme Court which held that land owners had no right to sue for a regulatory taking if the land owners purchased title to land on which a preexisting restriction existed. Before this case, the rule in New York also precluded landowners from challenging land use regulations that existed at the time they purchased land. After holding that a regulatory takings challenge existed, the Supreme Court remanded the case back to Rhode Island to decide whether the preexisting regulations affected the …
In Our Backyards: Analyzing Local Authority To Adopt Environmental Laws, John R. Nolon
In Our Backyards: Analyzing Local Authority To Adopt Environmental Laws, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
While the authority of municipalities to partake in land use decisions is a well-established concept, a question often arises concerning local legislative authority to adopt environmental laws. This article discusses some of the arguments advocating local environmental authority by highlighting the correlation between land use law and environmental law. Also discussed in this article, is the authority granted to local governments by the state legislature and court decisions to mitigate adverse environmental impacts.
Smart Growth: The Duty To Supply Water To Developing Regions, John R. Nolon
Smart Growth: The Duty To Supply Water To Developing Regions, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
As land development increases across the United States, concerns grow about sustaining an adequate fresh water supply. In fact, states such as Connecticut, an east coast state, where water is thought to be prevalent in comparison to many western states, are already facing water shortages as evidenced by interruptions in stream flow and other factors. Through the use comprehensive governmental action, including smart growth techniques, federal, state, and local governments have an opportunity to mitigate water shortages in states like Connecticut by integrating governmental processes and increases in scientific research.
Our Town: What Is The Role Of Local Government In Environmental Law?, John R. Nolon
Our Town: What Is The Role Of Local Government In Environmental Law?, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
The scope of environmental law extends beyond the federal statutes most people associate with protecting the natural world. At both the state and local level, governments have broad authority to protect the environmental integrity within their jurisdiction. State legislation such as New York’s State Environmental Quality Review Act (SEQRA) affect all government actions that may have a negative environmental impact. Furthermore, local governments, using tools originally created to enhance the value and safety of property are now using this authority, and other more novel methods, to mitigate negative environmental impacts. This article gives a brief synopsis on the background of …
Smart Growth: Finding Mediation Tools For Regional Land Use Disputes, John R. Nolon
Smart Growth: Finding Mediation Tools For Regional Land Use Disputes, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
Land use oriented border wars occur all over the United States, especially in areas with concentrated populations such as Westchester County. Many of these disputes arise out of local land use control, which usually fails to address regional issues, instead opting to act only in their individual municipal interests. This article describes several possible solutions involving federal, state, regional, and intermunicipal remedies as well as non-governmental solutions such as land use mediation services, to help create regional answers to regional issues.
Smart Growth: Resolving Home Rule Conflicts And Settling Border Wars, John R. Nolon
Smart Growth: Resolving Home Rule Conflicts And Settling Border Wars, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
Municipalities battle over the use of adjacent lands as land use border wars erupt all over New York. The results of these battles rarely equate to a satisfying solution for both parties. This column delves into flaws of New York law, including the insufficiencies of the State Environmental Quality Review Act (SEQRA), and also documents several cases where municipalities fail to come up with cooperative solutions. However, recent solutions, such as co-lead agencies and joint municipal review boards are beginning to make use of the cooperative authority provided to municipalities by state law, and could be a sign of hope …
Smart Growth: Wetlands Protection Invites Reflection On Federal Law, John R. Nolon
Smart Growth: Wetlands Protection Invites Reflection On Federal Law, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
Although land use regulation at the federal, state, and local level are independent entities, integrating their functions may prove to be a successful method to facilitate smart growth and to protect wetlands. This article examines environmental regulation for wetlands at several levels of government. Specifically, this feature discusses federal command and control environmental laws and state government (New York and Connecticut) regulation efforts, which are justified though state sovereign police power. Also discussed, is the role of local government to act within their jurisdictions, and how governmental forces may agree upon joint resolutions in order to solve national problems. For …
Smart Growth: Community Planning Requires Protecting Open Space, John R. Nolon
Smart Growth: Community Planning Requires Protecting Open Space, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
Smart growth involves two main principles, creating incentives to increase compact development in some areas, and in turn, preserving open space in other areas. The New York legislature has imparted municipal governments with general authority to regulate land and preserve open space. In turn, several tools have developed which are at the disposal of municipal governments including, overlay zoning, floating zones, cluster development and state laws such as the New York State Environmental Quality Review Act (SEQRA). The use of these tools, along with proper training for state and local officials on the subject of smart growth, will render open …
Smart Growth: Localism: A Theoretical Analysis, John R. Nolon
Smart Growth: Localism: A Theoretical Analysis, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
This article explores the concept of smart growth, which promotes development in central city districts in an effort to reduce urban sprawl. Specifically, this feature discusses how smart growth is accomplished at all levels of the government, and contrasts top-down versus bottom-up land use control. In the past, local land use initiatives have been mostly unsuccessful at solving larger regional problems. Fears exist among scholars and politicians that federal or state land use legislation will fail to meet the specific individual needs of local governments. However, through the use of state created incentives and other programs, communities in New York …
Managing Growth: Local Governments: Drawing The Boundaries, John R. Nolon
Managing Growth: Local Governments: Drawing The Boundaries, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
Bounded growth, a concept that encourages focused development into compact areas such as preexisting town centers, or areas rich in public transportation, is a necessary concept within the smart growth paradigm. Bounding human growth patterns facilitates the creation of sustainable, eco-friendly land usage. In New York, where the state legislature gives local governments broad authority to perform land use functions, such as bounded growth, municipalities have the option of utilizing controlled growth by amending their comprehensive plans. This article discusses bounded growth and several other underutilized tools municipalities have at their disposal to help promote smart growth by directing development …
Preserving Open Lands: Local Zoning And Financing Authority Work Together, John R. Nolon
Preserving Open Lands: Local Zoning And Financing Authority Work Together, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
State governments vest great authority in local governments to decide how and where private development shall occur, and in the alternative, where to preserve open land. The New York state legislature recognizes the importance of protecting open lands, and as such, has created several laws to facilitate local municipal action. Several methods exist that municipal government may use to accomplish this goal and this article provides several examples. For instance, the New York Court of Appeals, in the case of Bonnie Briar Syndicate, Inc. v. Town of Mamaroneck, held that a local zoning ordinance, which rezoned a large area for …
Land Use Development: Proper Planning Creates Smart Growth, Prevents Sprawl, John R. Nolon
Land Use Development: Proper Planning Creates Smart Growth, Prevents Sprawl, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
The proliferation of sprawl development patterns across the United States causes several problems such as degradation of forests, farmland, and natural resources, plus the declining health of central cities. Sprawl is a well-documented phenomenon among environmentalists, politicians, taxpayers, and others. Many alternative “smart growth” solutions exist to mitigate the damages of sprawl. Government focus on more restrained development patterns such as traditional urban neighborhoods, and other solutions exist, and are waiting to be implemented. This article reviews municipal efforts in New York in the application of comprehensive smart growth methods