Law Commons^™

When Lochner Met Dolan: The Attempted Transformation Of American Land Use Law By Constitutional Interpretation, Ronald H. Rosenberg, Nancy Stroud

Ronald H. Rosenberg

No abstract provided.

The Changing Culture Of American Land Use Regulation: Paying For Growth With Impact Fees, Ronald H. Rosenberg

Ronald H. Rosenberg

No abstract provided.

The Necessary Interrelationship Between Land Use And Preservation Of Groundwater Resources, Linda A. Malone

Linda A. Malone

No abstract provided.

The Future Of Transferable Development Rights In The Supreme Court, Linda A. Malone

Linda A. Malone

No abstract provided.

The Pathology Of Property Norms: Living Within Nature's Boundaries, Lynda L. Butler

Lynda L. Butler

No abstract provided.

Private Land Use, Changing Public Values And Notions Of Relativity, Lynda L. Butler

Lynda L. Butler

No abstract provided.

Christmas Without Creches?: Can Private Nativity Scenes Be Banned From Public Land?, Neal Devins

Neal E. Devins

No abstract provided.

A New History Of Waste Law: How A Misunderstood Doctrine Shaped Ideas About The Transformation Of Law, Jill M. Fraley

Jill M. Fraley

In the traditional account, American courts transformed the law of waste, radically diverging from the British courts around the time of the American Revolution. Some of the most influential theorists of American legal history have used this account as evidence that American law is driven by economics. Due to its adoption by influential scholars, this traditional account of waste law has shaped not only our understanding of property law, but also how we view the process of transforming law.

That traditional account, however, came not from a history of the doctrine, but from an elaboration of the benefits of the …

The New Nuisance: An Antidote To Wetland Loss, Sprawl, And Global Warming, Christine A. Klein

Christine A. Klein

Marking the fifteenth anniversary of Lucas v. South Carolina Coastal Council -- the modern U.S. Supreme Court's seminal regulatory takings decision -- this Article surveys Lucas's impact upon regulations that restrict wetland filling, sprawling development, and the emission of greenhouse gases. The Lucas Court set forth a new categorical rule of governmental liability for regulations that prohibit all economically beneficial use of land, but also established a new defense that draws upon the states' common law of nuisance and property. Unexpectedly, that defense has taken on a life of its own -- forming what this Article calls the new …

Eminent Domain, Exactions, And Railbanking: Can Recreational Trails Survive The Court’S Fifth Amendment Takings Jurisprudence, Danaya C. Wright

Danaya C. Wright

This article attempts to locate the legal aspects of recreational trail development within the increasingly powerful property rights movement. The most complex result of this rising property rights rhetoric is a clear shift in constitutional takings doctrine to be more sympathetic to landowners' arguments. Thus, the interplay of takings decisions and trails development will be the focus of most of this article. Part II provides a brief account of the legal structure of governmental land use controls and the current state of takings jurisprudence to form a basic background for the different ways in which recreational trails have been developed. …

Inclusionary Housing On A Global Basis, James Kelly

James J. Kelly Jr.

This is a book review of Inclusionary Housing in International Perspective: Affordable Housing, Social Inclusion, and Land Value Recapture (2010, Nico Calavita and Alan Mallach, eds.). The book offers a comparative look at land-use based approaches to the creation of affordable housing in a broad range of developed countries. A little less than a sixth of the book is dedicated to the U.S., with special attention given to the development on inclusionary programs in California and New Jersey. The editors then devote a chapter each to Canada, England, Ireland, France, Spain and Italy. The penultimate chapter looks at inclusionary practices …

Requiem For Regulation, Garrett Power

Garrett Power

This comment reviews U.S. Supreme Court decisions over the past 100 years which have considered the constitutional limitations on governmental powers. It finds that at the three-quarter mark of the 20th century, a remarkable set of Court precedents had swollen the regulatory powers of governments while shrinking private rights to property and contract. But since the Reagan years, a more conservative Court has undertaken to curtail governmental activity in general, and to limit federal, state, and local planning in particular. A number of 5-4 decisions expanded private property rights and contracted the scope of the federal “commerce power.” The comment …

Solar Rights For Texas Property Owners, Sara C. Bronin

Sara C. Bronin

In response to Jamie France's note, A Proposed Solar Access Law for the State of Texas, Professor Bronin urges future commentators to focus on three additional areas of inquiry related to proposed solar rights regimes. Bronin argues that such proposals would be strengthened by discussion of potential legal challenges to the proposals, related political issues, and renewable energy microgrids. Ms. France’s proposal for the State of Texas includes the elimination of preexisting private property restrictions that negatively affect solar access. Bronin argues that this proposal would be strengthened by a discussion of potential challenges under federal and state takings clauses. …

Advocates At Cross-Purposes: The Briefs On Behalf Of Zoning In The Supreme Court, Garrett Power

Garrett Power

No abstract provided.

Modern Lights, Sara Bronin

Sara C. Bronin

This Article functions as a companion to a piece, Solar Rights, recently published in the Boston University Law Review. In that piece, the author analyzed the absence of a coherent legal framework for the treatment of solar rights - the rights to access and harness the rays of the sun. The growing popularity of, and need for, solar collector technology and other solar uses calls for reform. Answering the call for reform in Solar Rights, this Article proposes a framework within which a solar rights regime might be developed. First, as a baseline, any regime must recognize the natural characteristics …

Solar Rights, Sara C. Bronin

Sara C. Bronin

The rights to access and to harness the rays of the sun - solar rights - are extremely valuable. These rights can determine whether and how an individual can take advantage of the sun’s light, warmth, or energy, and they can have significant economic consequences. Accordingly, for at least two thousand years, people have attempted to assign solar rights in a fair and efficient manner. In the United States, attempts to assign solar rights have fallen short. A quarter century ago, numerous American legal scholars debated this deficiency. They agreed that this country lacked a coherent legal framework for the …

The Quiet Revolution Revived: Sustainable Design, Land Use Regulation, And The States, Sara Bronin

Sara C. Bronin

Thirty-seven years ago, a book called The Quiet Revolution in Land Use Control argued that states would soon take over localities' long-held power over land use regulation. In the authors' view, this quiet revolution would occur when policymakers and the public recognized that certain problems - like environmental destruction - were too big for localities to handle on their own. Although the quiet revolution has not yet occurred, this Article suggests that it will, and should, occur alongside the ever-growing green building movement. This movement presents practical and ideological challenges to our current system of regulating land use. This Article …

Gone Too Far: Measure 37 And The Perils Of Over-Regulating Land Use, Sara C. Bronin

Sara C. Bronin

In November 2004, Oregonians passed a ballot measure, Measure 37, that presented a radical remedy for landowners by preventing the state from engaging in regulatory takings without compensating landowners. It required that local governments either monetarily compensate landowners whose properties fall in value as a result of land use regulations or, under certain conditions, exempt those landowners from the regulations altogether. At its core, Measure 37 addressed Oregon voters' concern that - for all the good the land use system had done - the government had gone too far in prohibiting landowners from using their land as they saw fit. …