Law Commons^™

Low Carbon Land Use: Paris, Pittsburgh, And The Ipcc, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

This article describes strategies that local governments are employing to both mitigate and adapt to climate change, using their state-given powers to plan community development and to regulate private building. Local governments have significant legal authority to shape human settlements and, in so doing, lower CO2 emissions from buildings and vehicles, increase the sequestration of carbon by the natural environment, and promote distributed energy systems and renewable energy facilities that lower fossil fuel consumption. Local elected leaders are highly motivated to avoid the on-the-ground consequences of our changing climate. The effects of climate change manifest themselves at the local level, …

Zoning’S Centennial: A Complete Account Of The Evolution Of Zoning Into A Robust System Of Land Use Law—1916-2016 (Part Iv), John R. Nolon

Elisabeth Haub School of Law Faculty Publications

Fracking is happening and local governments are subjected to many of its associated risks. They either need to act, or know—clearly and convincingly—why they should not. The federal government has stopped far short of comprehensive regulation of fracking; the states’ regulations range from fair to poor, sometimes preempting local regulation but most often sharing regulatory authority over land use impacts.

Zoning’S Centennial: A Complete Account Of The Evolution Of Zoning Into A Robust System Of Land Use Law—1916-2016 (Part Iii), John R. Nolon

Elisabeth Haub School of Law Faculty Publications

In land use, there are two things that Americans dislike: one is sprawl, the other is density. This catch-22 can be resolved by mitigating those aspects of urban living associated with density: congestion, bulky buildings, sameness, design incongruities, unsafe streets, inefficiency, and the sense that neighborhoods are not livable and pleasant. These characteristics of density cut against sustainability. They define places that people want to leave as soon as they can. To reduce vehicle miles travelled and carbon emissions, as well as to prevent sprawl, we must create places of enduring value, located next to transit in walkable and sustainable …

Zoning’S Centennial: A Complete Account Of The Evolution Of Zoning Into A Robust System Of Land Use Law—1916-2016 (Part Ii), John R. Nolon

Elisabeth Haub School of Law Faculty Publications

The idea that local land use law can intelligently shape settlement patterns was not a familiar concept in the late 1960s when the Town of Ramapo, New York adopted an ordinance that delayed development permits until the Town could provide needed infrastructure. Ramapo was experiencing unprecedented growth as one of the closest northern suburbs of New York City. Developers, who in some cases had to wait years for services to their land, sued; they argued that these phased development controls were intended to prohibit subdivisions and restrict population growth, which is not authorized under the state’s zoning enabling legislation.

New …

Zoning’S Centennial: A Complete Account Of The Evolution Of Zoning Into A Robust System Of Land Use Law—1916-2016 (Part I), John R. Nolon

Elisabeth Haub School of Law Faculty Publications

2016 is the 100th anniversary of the adoption of the first citywide comprehensive zoning law. Its original purpose was to create districts that separated incompatible land uses and building types in order to protect property values and promote the health, safety, and welfare of the community. 100 years later, zoning is used to achieve an impressive number of public objectives such as permitting transit oriented development, creating green infrastructure, preserving habitat, species, and wetlands, promoting renewable energy facilities, reducing vehicle miles traveled, and preserving the sequestering landscape.

Preface To Protecting The Environment Through Land Use Law: Standing Ground, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

Protecting the Environment Through Land Use Law: Standing Ground takes a close look at the historical struggle of local governments to balance land development with natural resource conservation. This book updates and expands on his four previous books, which established a comprehensive framework for understanding the many ways that local land use authority can be used to preserve natural resources and environmental functions at the community level. Standing Ground describes in detail how localities are responding to new challenges, including the imperative that they adapt to and help mitigate climate change and create sustainable neighborhoods. This body of work emphasizes …

Land Use For Economic Development In Tough Financial Times, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

The recession hit cities hard. Basic municipal staffs and services are being cut, debt is being restructured, capital projects delayed, and other cost cutting measures reported. The Congressional Budget Office reports that by November of last year there were 241,000 fewer municipal employees than there were three years earlier when the recession began. In its most recent report from city finance officers, the National League of Cities states that city spending cutbacks since 2009 are the largest since the survey was first taken, over twenty-five years ago. Despite this serious trend, municipalities have not defaulted in debt payment and there …

Rebuilding Yonkers: How Open Government Laws Are Helping Level The Playing Field In The City Of Hills, Debra S. Cohen

Elisabeth Haub School of Law Faculty Publications

This article will explore some examples of how people in Yonkers have used FOIL and the Open Meetings Law as effective tools to level the playing field in the"city of hills" and, in doing so, help the city move in a more positive direction.

Champions Of Change: Reinventing Democracy Through Land Law Reform, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

This Article explores the prospects of achieving policy coherence in the field of land use regulation. It explains how, as municipal governments react to pressures and crises at the local level, they discover and adopt new strategies in a constant process of experimentation. Through a properly constructed legal framework, critical information can be relayed from local to higher levels of government, state and federal legislators and judges can respond, and a "system" of law can evolve. Using theories developed in the fields of systems analysis and diffusion of innovations, the Article describes the process by which local communities perceive land …

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

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

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.

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

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

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.

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

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

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

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.