Law Commons^™

Takings Localism, Nestor M. Davisdson, Timothy M. Mulvaney

Faculty Scholarship

Conflicts over “sanctuary” cities, minimum wage laws, and gender-neutral bathrooms have brought the problematic landscape of contemporary state preemption of local governance to national attention. This Article contends that more covert, although equally robust, state interference can be found in property, with significant consequences for our understanding of takings law.

Takings jurisprudence looks to the states to mediate most tensions between individual property rights and community needs, as the takings federalism literature recognizes. Takings challenges, however, often involve local governments. If the doctrine privileges the democratic process to resolve most takings claims, then, that critical process is a largely local …

Amici Curiae Brief Of The International Municipal Lawyers Association And Legal Scholars In Support Of Defendants-Appellees In Portland Pipe Line Corporation, Et Al. V. City Of South Portland, Et Al., Sarah J. Fox, Sara C. Bronin, Nestor M. Davidson, Keith H. Hirokawa, Ashira Pelman Ostrow, Dave Owen, Laurie Reynolds, Jonathan D. Rosenbloom, Sarah Schindler

Sturm College of Law: Faculty Scholarship

This brief to the Maine Supreme Judicial Court was filed in support of the City of South Portland by the Amici Curiae, including the International Municipal Lawyers Association and legal scholars, to provide the Court with a background on the role of local governments in land use planning, and to explain why the City of South Portland’s Clear Skies Ordinance falls easily within the City’s authority and was not preempted by state legislation.

After studying the potential for bulk loading of crude oil within its boundaries, the City of South Portland concluded that the infrastructure requirements and environmental impacts of …

Virginia Uranium, Inc. V. Warren, Nyles G. Greer

Public Land & Resources Law Review

The Supreme Court of the United States recently ruled that the Atomic Energy Act did not preempt a Virginia law prohibiting uranium mining in the Commonwealth. The Court held that although the Act delegated substantial power over the nuclear life cycle to the Nuclear Regulatory Commission, it offered no indication that Congress sought to strip states of their traditional power to regulate mining on private lands within their borders.

The Non-Impact Of The United States Supreme Court Regulatory Takings Cases On The State Courts: Does The Supreme Court Really Matter?, Ronald H. Rosenberg

Ronald H. Rosenberg

No abstract provided.

Landowners' Fcc Dilemma: Rereading The Supreme Court's Armstrong Opinion After The Third Circuit's Depolo Ruling, Gerald S. Dickinson

Articles

In Armstrong v. Exceptional Child Ctr., Inc., the Supreme Court took a turn in its refusal to provide avenues for relief to private actors against the state in federal court, finding that the Supremacy Clause does not provide for an implied right of action to sue to enjoin unconstitutional actions by state officers. Many critics of that decision, including the four dissenting Justices, question the wisdom of the ruling generally. However, from a property rights perspective, the decision sheds light on a dilemma unforeseen by many scholars and made most apparent by a recent Third Circuit decision, Jeffrey DePolo …

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 …

Regulating Controversial Land Uses, Patricia E. Salkin

Patricia E. Salkin

While the definition of what may constitute a controversial land use differs from community to community, the bottom line is that land use controls have been attempting to regulate these uses since the advent of zoning (and through nuisance law before that). When regulating many types of controversial land uses, constitutional issues may come into play and federal and state preemption issues may arise. However, local governments typically have wide discretion in designing standards and regulations for many types of controversial uses. This article explores four typically controversial uses - off-campus fraternity and sorority housing, tattoo parlors, medical marijuana and …

The Gray Zone In The Power Of Local Municipalities: Where Zoning Authority Clashes With State Law, Skye L. Daley

The Journal of Business, Entrepreneurship & the Law

This article will explore the oft-overlooked area of police powers granted to local municipalities by the California Constitution through the lens of marijuana dispensaries. These dispensaries, and the obstacles they face, provide the perfect vantage point from which to survey the current status of zoning power in California. This article will consider the extent and limits of what is known as the “police powers” of local municipalities: the power of cities, towns and counties to regulate, restrict, and proscribe the way in which land can be utilized within its borders. If local municipalities are the creation of the state--indeed, an …

Medical Marijuana Zoned Out: Local Regulation Meets State Acceptance And Federal Quiet Acquiescence, Patricia E. Salkin, Zachary Kansler

Patricia E. Salkin

Sixteen states and the District of Columbia currently permit the medical use of marijuana, yet state statutes fail to account for the challenges that confront municipal planners and officials whose agenda includes public health, safety and welfare of residents, including minor children. The intensity of the problem is perhaps most evident in Los Angeles, where there are approximately 800 dispensaries. Varying statutory approaches are provided for individuals to legitimately acquire the drug - they may grow it themselves, they may obtain it from their primary caregiver, or they may obtain it from a licensed dispensary. This raises a number of …

Medical Marijuana Zoned Out: Local Regulation Meets State Acceptance And Federal Quiet Acquiescence, Patricia E. Salkin, Zachary Kansler

Scholarly Works

Sixteen states and the District of Columbia currently permit the medical use of marijuana, yet state statutes fail to account for the challenges that confront municipal planners and officials whose agenda includes public health, safety and welfare of residents, including minor children. The intensity of the problem is perhaps most evident in Los Angeles, where there are approximately 800 dispensaries. Varying statutory approaches are provided for individuals to legitimately acquire the drug - they may grow it themselves, they may obtain it from their primary caregiver, or they may obtain it from a licensed dispensary. This raises a number of …

Regulating Controversial Land Uses, Patricia E. Salkin

Scholarly Works

While the definition of what may constitute a controversial land use differs from community to community, the bottom line is that land use controls have been attempting to regulate these uses since the advent of zoning (and through nuisance law before that). When regulating many types of controversial land uses, constitutional issues may come into play and federal and state preemption issues may arise. However, local governments typically have wide discretion in designing standards and regulations for many types of controversial uses. This article explores four typically controversial uses - off-campus fraternity and sorority housing, tattoo parlors, medical marijuana and …

Law Casebook Description And Table Of Contents: Constitutional Environmental And Natural Resources Law [Outline], Jim May, Robin Craig

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

6 pages.

"James May, Widener University School of Law" -- Agenda

The Non-Impact Of The United States Supreme Court Regulatory Takings Cases On The State Courts: Does The Supreme Court Really Matter?, Ronald H. Rosenberg

Faculty Publications

No abstract provided.

Taxation In Indian Country, Richard B. Collins

Natural Resource Development in Indian Country (Summer Conference, June 8-10)

11 pages.