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Existing Uses And The Limits Of Land Use Regulations, Christopher Serkin
Existing Uses And The Limits Of Land Use Regulations, Christopher Serkin
Vanderbilt Law School Faculty Publications
This Article identifies property law's special protection for existing uses, explores possible justifications for this protection, and argues that none can support the strong protection that existing uses currently enjoy. Various land use doctrines- from zoning to the vested rights doctrine to amortization rules for prior noncon- forming uses--assume that the government cannot eliminate existing uses without paying compensation. The Article asks whether this result is compelled either by constitutional rules or by normative considerations. Neither the Takings Clause nor the Due Process Clause requires this level of protection for existing uses. Norma- tively, many obvious-seeming justifications dissolve on closer …
Condemning Religion: Rluipa And The Politics Of Eminent Domain, Christopher Serkin, Nelson Tebbe
Condemning Religion: Rluipa And The Politics Of Eminent Domain, Christopher Serkin, Nelson Tebbe
Vanderbilt Law School Faculty Publications
Should religious landowners enjoy special protection from eminent domain? A recent federal statute, the Religious Land Use and Institutionalized Persons Act (RLUIPA), compels courts to apply a compelling interest test to zoning and landmarking regulations that substantially burden religiously owned property. That provision has been controversial in itself but today a new cutting-edge issue is emerging: whether the Act's extraordinary protection should extend to condemnation as well. The matter has taken on added significance in the wake of Kelo, where the Supreme Court reaffirmed its expansive view of the eminent domain power. In this Article, we argue that RLUIPA should …