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Full-Text Articles in Law
Court Prods Municipality: Other States Offer Large Number Of Models To Consider, John R. Nolon, Jessica A. Bacher
Court Prods Municipality: Other States Offer Large Number Of Models To Consider, John R. Nolon, Jessica A. Bacher
Elisabeth Haub School of Law Faculty Publications
The state legislature’s decision to leave the creation of affordable housing to New York’s local governments has resulted in a segmented, slowly evolving, and insufficient resolution to a statewide problem. For example, the Orange County Supreme Court, in Land Master v. Montgomery, struck down a zoning law that eliminated all as-of-right multifamily development, in a municipality where affordable housing was in urgent need. This article reviews comprehensive initiatives from other states, and suggests that through the adoption of a state legislation and planning, the affordable housing problem is rectifiable
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.
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 …
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.
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: 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 …
Mediation As A Tool In Local Environmental And Land Use Controversies, John R. Nolon
Mediation As A Tool In Local Environmental And Land Use Controversies, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
This article dedicates itself to highlighting the benefits of alternative dispute resolution. Through the use of mediation and other flexible alternative dispute resolution methods, many conflicts can be resolved without the use of expensive and timely litigation. In turn, court workloads are relieved and cooperation is fostered among neighbors, companies, and other groups or organizations that would have otherwise resorted to litigation to solve a dispute. Negotiations that involve process experts, such as mediators and facilitators, often diffuse disputes by introducing a cooperative, rather than an adversarial attitude. Government is beginning to embrace alternative dispute resolution and legislatures are passing …
Intermunicipal Compacts; Regional Land Use Strategies Work At The Grassroots Level, John R. Nolon
Intermunicipal Compacts; Regional Land Use Strategies Work At The Grassroots Level, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
Regional land use control has long been a difficult issue in New York as most localities refuse to acknowledge responsibility for problems extending beyond their own borders. New York law enables municipalities to cooperate among one another to devise improved solutions to land use, and other issues. This article studies the state history of regional land use and provides several successful examples of how grassroots regionalism can change the way municipal governments think about land use and solve problems.
Community Involvement: Facilitation Adds Flexibility To Land Use Decision-Making, John R. Nolon
Community Involvement: Facilitation Adds Flexibility To Land Use Decision-Making, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
SEQRA, the New York State Environmental Quality Review Act, creates a process whereby public actions are reviewed with the intent to mitigate the adverse environmental impacts of those actions. Recently decided New York case law has created flexibility in the SEQRA process by allowing developers, among others, to revamp proposed projects early in the application process in order to expedite SEQRA and save substantial amounts of money. A New York court held that using public meetings to garner information and negotiate different aspects of a proposed project, and a determination of a negative declaration (the proposed project will have no …
Protecting Scenic Assets: Regulations Based On Study, Expert Reports And Rationality, John R. Nolon
Protecting Scenic Assets: Regulations Based On Study, Expert Reports And Rationality, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
Many municipalities are seeking to protect scenic assets through a combination of land use tools and implied police powers. These tools include comprehensive planning, subdivision and site plan approval, and in New York, execution of the State Environmental Quality Review Act (SEQRA). An example of scenic protection is North Elba, New York, where the local planning board denied Wal-Mart’s application to construct a store because the store would compromise the viewshed of a nearby mountain. This article reviews the SEQRA process in the Wal-Mart case and also reviews several other methods municipalities may use to protect environmental and aesthetic interests.