Law Commons^™

Condominium: A Transformative Innovation In Property And Local Government, Douglas C. Harris

All Faculty Publications

Condominium is a form of ownership that produces separate parcels of land and a structure of local government within multi-unit developments. As one form of common interest community, condominium packages private property with a co-ownership interest in common property and rights to participate in the governing organisation. A statutory innovation, the condominium form has been adopted in jurisdictions around the world and has quickly become the dominant form of land ownership for new-build housing in many cities. As an increasingly prominent feature of urban real estate, condominium is changing the nature of ownership and of local government, and is one …

Food Federalism: States, Local Governments, And The Fight For Food Sovereignty, Sarah Schindler

Sturm College of Law: Faculty Scholarship

Recently, a number of states have sought to withdraw or restrain local power. In this Article, which is part of the “Re-Thinking State Relevance” symposium hosted by the Ohio State Law Journal, I write about a state taking the opposite approach, and attempting to affirmatively endow its local governments with additional powers. The state is Maine, and the context is control over local food production and sales. This Article begins by addressing the emergence of the sustainable local foods movement broadly, and reasons for the growth of this movement. It then focuses more pointedly on the food sovereignty movement, considering …

Defining And Closing The Hydraulic Fracturing Governance Gap, Joshua Galperin, Grace Heusner, Allison Sloto

Articles

As recent examples in Texas and Colorado have shown, if local governments ban fracking, they risk pushback from state governments. This pushback, in turn, can result in preemption making an outright local ban on fracking self-defeating because it could ultimately result in less local control over the impacts of hydraulic fracturing. Given this potentially self-defeating nature of local fracking bans, local governments should address the impacts of fracking through more traditional local governance mechanisms that do not pose as great a risk to local authority.

On this premise, this Article seeks to make the case for the importance of, and …

Insuring Takings Claims, Christopher Serkin

Vanderbilt Law School Faculty Publications

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 …

Agenda: Seeds Of Change: Responding To Global Change In A Bottom-Up World, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment, University Of Colorado Boulder. School Of Law, Posner Center For International Development, Resolve (Firm), Newmont Mining Corporation

Seeds of Change: Responding to Global Change in a Bottom-Up World (Martz Winter Symposium, February 12-13)

Sponsors: Posner Center for International Development, RESOLVE, Inc., Newmont Mining Corporation, and Getches-Wilkinson Center for Natural Resources, Energy, and the Environment.

Conference moderators, panelists and speakers included University of Colorado Law School professors Phil Weiser, Sarah Krakoff, Britt Banks, and Lakshman Guruswamy.

This conference is made possible through the generous support of donors who sponsored this year’s Martz Sustainability Symposium (including Newmont Mining Corporation) and those who have invested in our Clyde O. Martz Endowed Fund for Natural Resources Management (including Brian Dolan and Davis Graham and Stubbs LLP). The Martz Natural Resources Management Fund was established in the memory …

Architectural Exclusion: Discrimination And Segregation Through Physical Design Of The Built Environment, Sarah B. Schindler

Faculty Publications

The built environment is characterized by man-made physical features that make it difficult for certain individuals — often poor people and people of color — to access certain places. Bridges were designed to be so low that buses could not pass under them in order to prevent people of color from accessing a public beach. Walls, fences, and highways separate historically white neighborhoods from historically black ones. Wealthy communities have declined to be served by public transit so as to make it difficult for individuals from poorer areas to access their neighborhoods. Although the law has addressed the exclusionary impacts …

Land Use Law Update: Will Reed V. Town Of Gilbert Require Municipalities Throughout The Country To Rewrite Their Sign Codes?, Sarah Adams-Schoen

Scholarly Works

The author discusses the imminent Supreme Court decision in Reed v. Town of Gilbert. Depending on how the Court decides the case, municipalities may need to act quickly to amend their sign regulations.

Unpermitted Urban Agriculture: Transgressive Actions, Changing Norms And The Local Food Movement, Sarah B. Schindler

Faculty Publications

Roberta keeps four chickens in her backyard. Bob snuck onto the vacant lot next door, which the bank foreclosed upon and now owns, and planted a vegetable garden. Vien operates an occasional underground restaurant from his friends’ microbrewery after beer-making operations cease for the day. The common thread tying these actions together is that they are unauthorized; they are being undertaken in violation of existing laws and often norms. In this Article, I explore ideas surrounding the overlap between food policy and land use law, specifically the transgressive1 actions that people living in urban and suburban communities are undertaking to …

Storm Surges, Disaster Planning, And Vulnerable Populations At The Urban Periphery: Imagining A Resilient New York After Superstorm Sandy, Andrea L. Mcardle

Publications and Research

In the aftermath of Sandy, the destructive superstorm that had a devastating impact in New York City and other parts of the Northeastern U.S. in 2012, ideas and data proliferate about how coastal cities, such as New York, can pursue strategies of resilience to help withstand the next weather-related onslaught. This article argues that whether the city in fact acts resiliently must take into account the extent to which its proposals respond to the needs of vulnerable people housed along its coastline. Superstorm Sandy put a face to vulnerability, including 6,800 evacuees assigned to shelters, 1,800 of whom were residents …

Agenda: Water, Oil And Gas: Nuts And Bolts Of Oil And Gas Leases, Surface Use Agreements, And Water Rights For Non-Oil And Gas Attorneys, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment, Rocky Mountain Land Use Institute (Denver, Colo.), Colorado Bar Association. Natural Resources & Energy Section

Water, Oil and Gas: Nuts and Bolts of Oil and Gas Leases, Surface Use Agreements, and Water Rights for Non-Oil and Gas Attorneys (September 26)

This third program in the Water, Oil, and Gas 101 series was designed to provide those who don’t practice in the area with essential information regarding leases, surface use agreements, siting considerations for oil and gas facilities, the resolution of disputes before the Colorado Oil and Gas Conservation Commission (COGCC), the ins and outs of nontributary and produced nontributary ground water, and water rights as an asset.

Program topics include:

• Oil and Gas Leases
• Surface Use Agreements (SUAs)
• Government’s Role in Authorizing Locations for Oil and Gas Development
• Technical Aspects of Nontributary and Produced Nontributary Ground Water
• Produced Nontributary Ground …

A Next, Big Step For The West: Using Model Legislation To Create A Water-Climate Element In Local Comprehensive Plans, Michelle Bryan

Faculty Law Review Articles

The West is witnessing early, important efforts to join water supply and land use planning, and the reality of climate change makes this convergence all the more critical. Local comprehensive planning presents itself as an existing and indispensable tool for unifying important planning efforts in the areas of land use, water, and climate change. As the primary regulators of land use, local governments are at the front line of regulating a myriad of environmental concerns. They are also integral partners in planning and implementing water-related initiatives alongside tribal, state, federal, and private partners. The West’s potential for broad-based action is …

Land Use And Zoning Law, Andrew E. Tarne

Law Student Publications

Since the early days of nuisance law, but especially since the early twentieth century and the validation of zoning ordinances, land use planning and management have been fundamental roles of local government. As evinced by its state code, the Commonwealth of Virginia recognizes the essential role that localities play in land use planning. The Virginia Code requires that localities create planning commissions, adopt comprehensive plans, and, if the localities have adopted zoning ordinances, establish boards of zoning appeals. As most of the implementation of these mandates is left to individual localities, the form of implementation is not uniform but naturally …

The Future Of Abandoned Big Box Stores : Legal Solutions To The Legacies Of Poor Planning Decisions, Sarah B. Schindler

Faculty Publications

Big box stores, the defining retail shopping location for the majority of American suburbs, are being abandoned at alarming rates, due in part to the economic downturn. These empty stores impose numerous negative externalities on the communities in which they are located, including blight, reduced property values, loss of tax revenue, environmental problems, and a decrease in social capital. While scholars have generated and critiqued prospective solutions to prevent abandonment of big box stores, this Article asserts that local zoning ordinances can alleviate the harms imposed by the thousands of existing, vacant big boxes. Because local governments control land use …

Localism And Involuntary Annexation: Reconsidering Approaches To New Regionalism, Christopher J. Tyson

Journal Articles

No abstract provided.

The Quiet Revolution And Federalism: Into The Future, Patricia E. Salkin

Scholarly Works

This Article offers an examination of the federal role in land use planning and regulation set in the context of varying theories of federalism by presenting a historical and modern overview of the increasing federal influence in local land use planning and regulation, specifically highlighting how federal statutes and programs impact local municipal decision making in the area of land use planning. Part II provides a brief introduction into theories of federalism and their application to local land use regulation in the United States. Part III provides a brief overview of federal legislation in the United States which affected local …

Restoring Lost Connections: Land Use, Policing, And Urban Vitality, Nicole Stelle Garnett

Journal Articles

Justice William Brennan rightfully reminded all of us that state constitutional law is too often neglected in our courtrooms and our classrooms. State constitutions, to borrow from the late Chief Justice William Rehnquist, ought not to be "relegated to the status of a poor relation" in our constitutional legal structure. They differ in important ways from the federal law Constitution-and those differences provide the space within which our democratic experiment flourishes. And I am sure if Justice Brennan were here with us today, he would agree that we also should not neglect the study of the state and local policies …

Slides: Costs And Benefits Of Oil Shale Development, James T. Bartis

The Promise and Peril of Oil Shale Development (February 5)

Presenter: James T. Bartis, Senior Policy Researcher, Rand Corporation

21 slides

The Business Improvement District Comes Of Age, Richard Briffault

Faculty Scholarship

It is difficult to say precisely when the business improvement district (BID) was born. BIDs emerged out of legal structures and concepts that date back many decades, but the specific BID form is a relatively recent development. By some accounts, the first BID in the United States was the Downtown Development District of New Orleans, which was established in 1975. Few BIDs were created before 1980, and in most places the surge in BID formation did not really get going until around 1990 – the year that Philadelphia's Center City District was first established. Although new BIDs were created on …

Modernization Of New York's Land Use Laws Continues To Meet Growing Challenges Of Sustainability, Patricia E. Salkin, Jessica A. Bacher

Scholarly Works

There has never been a more challenging time to practice land use planning and zoning law in New York. With goals of sustainability at the forefront of the land use regulatory agenda, this brief account of recent developments in land use law highlights some discernable trends, namely: the modernization and increased flexibility of New York State planning and zoning enabling acts, the inspired local initiatives and lethargic State response to affordable housing issues, and the increasing impact of alternative energy systems on local regulatory schemes.

Part I of this article explores the impacts on community development caused by the many …

Slides: Linking Growth, Land Use And Water, Jim Holway

Shifting Baselines and New Meridians: Water, Resources, Landscapes, and the Transformation of the American West (Summer Conference, June 4-6)

Presenter: Jim Holway, Global Institute of Sustainability, Civil and Environmental Engineering, Arizona Water Institute, Arizona State University

29 slides

Bridging The Governance Gap: Strategies To Integrate Water And Land Use Planning, Sarah Bates Van De Wetering, University Of Montana (Missoula). Public Policy Research Institute

Shifting Baselines and New Meridians: Water, Resources, Landscapes, and the Transformation of the American West (Summer Conference, June 4-6)

16 pages.

Includes bibliographical references

"2007"

"Collaborative Governance Report 2"

Sepas, Climate Change, And Corporate Responsibility: The Contribution Of Local Government, Catherine J. Lacroix

Faculty Publications

Municipalities in the United States are increasingly active in the effort to reduce greenhouse gas emissions. Data suggest that the physical layout of communities and the buildings they contain make significant contributions to greenhouse gas emissions and thus to climate change. One useful tool for municipalities could be the Environmental Impact Statement (EIS), pioneered in the National Environmental Policy Act (NEPA) at the federal level and subsequently adopted as a policymaking guide in the State Environmental Policy Acts (SEPAs) of many states. A SEPA requires state governments - and, in six states, local governments as well - to consider the …

Municipal Regulation Of Formula Businesses: Creating And Protecting Communities, Patricia E. Salkin

Scholarly Works

People have been trying to exclude chain stores from their communities for decades. This includes "big-box" chains - the behemoth retailers that prefer an architecture of rectangular, single-story unadorned structures reaching 200,000 square feet or more - as well as national and international businesses including well-recognized fast food restaurants, drug stores and clothing retailers. The reasons for restricting these large corporate businesses include concerns over community character and aesthetics, local economics and self-reliance, and corporate ideologies. Over time, many municipalities have been forced to accept that "formula retail" and "franchise architecture" are simply part of the American economy. In many …

How To Avoid A "Holy War" -- Dealing With Potential Rluipa Claims, Alan C. Weinstein

Law Faculty Articles and Essays

This article discusses how local government can seek to avoid a claim being brought against it under the Religious Land Use & Institutionalized Persons Act (RLUIPA). Thus, the focus is not on what steps a local government should take when a RLUIPA claim is brought - or threatened to be brought - against it, but focuses instead on what steps local governments should take to seek to avoid a RLUIPA claim in the first place. After reviewing both the changing context of religious observance in the United States, and RLUIPA decisions to date, the article concludes that we are clearly …

Slides: Forests And Grasslands, Federico Cheever

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

Presenter: Professor Federico Cheever, University of Denver Sturm College of Law

30 slides

Slides: The Future Of Oil And Gas Development On Federal Lands, Mike Chiropolos

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

Presenter: Mike Chiropolos, Lands Program Director, Western Resource Advocates

44 slides

Squaring The Circle On Sprawl: What More Can We Do?: Progress Towards Sustainable Land Use In The States, Patricia E. Salkin

Scholarly Works

With almost ten years of nationwide dialogue and experimentation with the legal implementation of smart growth concepts at the state and local levels, this paper pauses to consider whether and to what extent success has been realized. The one certainty in this dynamic intersection of land development and conservation is that there is no one best model adaptable to all fifty states. Rather, to accommodate national diversity in local government structure, cultural relationships of people to the land, and differences in geography and a sense of place, the best lesson learned is that advocates and lawmakers alike must shape and …

Supreme Guidance For Wet Growth: Lessons From The High Court On The Powers And Responsibilities Of Local Governments, Michael Allan Wolf

UF Law Faculty Publications

Before the merger of water law and land use planning can occur, local and state regulators need strong guidance from experts in the field, not only in extra-legal fields such as planning, hydrology, geology, engineering, biology, and transportation, but also in mainstream legal areas including legislation (local, state, and federal), administrative law, and enforcement. The purpose of this article is to identify a somewhat unorthodox source of guidance - the United States Supreme Court, specifically the Rehnquist Court from October, 1984, through June, 2005, a period of remarkable stability for the nation’s highest tribunal.

Agenda: Energy Field Tour 2003, University Of Colorado Boulder. Natural Resources Law Center

Energy Field Tour 2003 (August 11-16)

Congressional staff tour held August 11-16, 2003

Summary: Binder of assorted articles, maps, brochures and other materials prepared for participants of the tour

Contents:

MONDAY, AUGUST 11, 2003: BLUE SPRUCE PEAKER PLANT: University of Colorado Natural Resources Law Center : congressional staff tour of Blue Spruce Energy Center / Peggy Duxbury -- 'Power Struggle', National Journal, June 27, 2003 / Margaret Kritz -- 'Calpine's Blue Spruce Energy Center begins commercial operation', Calpine press release, April 17, 2003 -- NATIONAL RENEWABLE ENERGY LAB: NREL at a glance -- NREL technologies -- SHOSHONE HYDROELECTRIC PLANT: 'River District Board supports spring Shoshone call …

Planning For Conflicts Of Interest In Land Use Decisionmaking: The Use Of Alternate Members Of Planning And Zoning Boards, Patricia E. Salkin

Scholarly Works

No abstract provided.