Law Commons^™

Get Out From Under My Land! Hydraulic Fracturing, Forced Pooling Or Unitization, And The Role Of The Dissenting Landowner, Heidi Gorovitz Robertson

Law Faculty Articles and Essays

This article addresses the legal circumstances arising when a state agency authorizes oil and gas production operations beneath a landowner’s land against that landowner’s wishes. One might assume that, if a landowner wants to preserve his or her land from oil and gas development, the landowner could simply refuse to allow drilling to occur beneath the land. However, neighbors may want to develop the oil and gas resources beneath their own land. To satisfy the neighbors’ wishes, an oil and gas producer must assemble mineral production rights on or beneath enough contiguous land to satisfy state spacing and acreage requirements …

Abating Neighborhood Blight With Collaborative Policy Networks—Where Have We Been? Where Are We Going?, Kermit J. Lind

Law Faculty Articles and Essays

Blight is a term with multiple meanings and a complex legal and policy history in the United States. Currently, blight and its community costs are frequently associated with vacant and often foreclosed homes, defective and abandoned buildings, litter, vacant lots, and graffiti. As a legal and policy term, blight has roots in the common law definitions of public nuisance. Researchers and scholars in other disciplines have cited blighted neighborhoods as both a cause and symptom of larger socioeconomic problems such as poverty, crime, poor public health, educational deficits, and other personal or systemic distress.

This Article traces the seeds of …

Sign Regulation After Reed: Suggestions For Coping With Legal Uncertainty, Alan C. Weinstein

Law Faculty Articles and Essays

This article discusses Reed v. Town of Gilbert, in which the Court resolved a Circuit split over what constitutes content based sign regulations. We note that Justice Thomas's majority opinion applies a mechanical "need to read" approach to this question, and then explore the doctrinal and practical concerns raised by this approach. Doctrinally, we explore the tensions between Thomas's "need to read" approach and the Court's current approach of treating some regulation of speech as content-neutral despite the fact that a message must be read to determine its regulatory treatment. A prime example being the Court's "secondary effects" doctrine. …

Sign Regulation After Reed: Suggestions For Coping With Legal Uncertainty, Alan Weinstein, Brian Connolly

All Maxine Goodman Levin School of Urban Affairs Publications

This article discusses Reed v. Town of Gilbert, in which the Court resolved a Circuit split over what constitutes content based sign regulations. We note that Justice Thomas's majority opinion applies a mechanical "need to read" approach to this question, and then explore the doctrinal and practical concerns raised by this approach. Doctrinally, we explore the tensions between Thomas's "need to read" approach and the Court's current approach of treating some regulation of speech as content-neutral despite the fact that a message must be read to determine its regulatory treatment. A prime example being the Court's "secondary effects" doctrine. Practically, …

Ohio's Home-Rule Amendment: Why Ohio's General Assembly Creating Regional Governments Would Combat The Regional Race To The Bottom Under Current Home-Rule Principles, Jonathon Angarola

Cleveland State Law Review

This Note argues that Ohio’s home-rule principles foster a regional “race to the bottom and proposes that the Ohio General Assembly pass legislation creating regional governments to combat the absence of coordination among regional localities".

Fixing Toxic Titles, Kermit J. Lind

Kermit J. Lind

This is a presentation using a PowerPoint along with supplemental reading. I define the term "toxic title" and describe problems it causes to communities and individuals. Potential solutions and preventive actions are proposed.

Code Compliance Enforcement In The Mortgage Crisis, Kermit J. Lind

Kermit J. Lind

This is a short presentation of suggestions for better code compliance enforcement. It takes into account the distresses brought about by the mortgage crisis. It calls for a strategic approach rather than a reactive approach. It assumes a necessity for making choices about what policing programs and actions will produce maximum compliance beneficial to residents and occupying homeowners in residential neighborhoods.

The Effect Of Rluipa's Land Use Provisions On Local Government, Alan C. Weinstein

Law Faculty Articles and Essays

In the absence of perfect information about how RLUIPA has affected local governments, this article argues that the courts have adopted a pragmatic approach to maneuvering in the difficult terrain that RLUIPA occupies: combining appropriate judicial deference to a legislature that enacts a neutral law of general applicability with the heightened judicial scrutiny that becomes appropriate when that same law is applied to a specific zoning approval, a circumstance that frequently allows for subjectivity, and thus the potential for discrimination or arbitrariness against religious uses, in the approval process. I conclude that: (1) until proven otherwise, the costs RLUIPA undoubtedly …

The Ohio Supreme Court's Perverse Stance On Development Impact Fees And What To Do About It, Alan C. Weinstein

Cleveland State Law Review

Ohio is among the twenty-two states that have no enabling legislation for development impact fees. But in a 2000 ruling, Homebuilders Association of Dayton and the Miami Valley v. City of Beavercreek, a divided Ohio Supreme Court ruled that municipalities could lawfully enact impact fees under their police and “home rule” powers, provided that the fees could pass constitutional muster under a “dual rational nexus test.” On May 31, 2012, however, the court ruled in Drees Company v. Hamilton Township, that a development impact fee enacted by an Ohio township with “limited home rule” powers was an unconstitutional tax. The …

The Association Of Adult Businesses With Secondary Effects: Legal Doctrine, Social Theory, And Empirical Evidence, Alan C. Weinstein, Richard D. Mccleary

Law Faculty Articles and Essays

In the decade since the U.S. Supreme Court’s decision in Alameda Books v. City of Los Angeles, 535 U.S. 425 (2002), the adult entertainment industry has attacked the legal rationale local governments rely upon as the justification for their regulation of adult businesses: that such businesses are associated with so-called negative secondary effects. These attacks have taken a variety of forms, including: trying to subject the studies of secondary effects relied upon by local governments to the Daubert standard for admission of scientific evidence in federal litigation; producing studies that purport to show no association between adult businesses and negative …

Justice John Paul Stevens - His Take On Takings, Alan C. Weinstein

Law Faculty Articles and Essays

This commentary reviews and analyzes Justice John Paul Stevens's role in shaping the Court's views on the takings issue in land use regulation.

Equal Standing With States: Tribal Sovereignty And Standing After Massachusetts V. Epa, Joseph Mead, Nicholas Fromherz

All Maxine Goodman Levin School of Urban Affairs Publications

In Massachusetts v. EPA, 549 U.S. 497 (2007), the Supreme Court held that Massachusetts was entitled to "special solicitude" in the standing analysis because it was sovereign. As a result, Massachusetts passed the standing threshold in a global warming case where an ordinary litigant may have been stymied. The Supreme Court’s analysis raises an interesting question: Are Indian tribes—which have been considered sovereign entities since before the founding, and which hold lands facing heavy environmental pressure—entitled to "special solicitude" as well? We think they should be.

To make this argument, we begin by discussing standing basics; dissecting Massachusetts v. …

The Wholesale Decommissioning Of Vacant Urban Neighborhoods: Smart Decline, Public-Purpose Takings, And The Legality Of Shrinking Cities, Ben Beckman

Cleveland State Law Review

This Note is principally concerned with those takings that arise from the State's exercise of eminent domain, either directly or through the State's designee. To put a finer point on it, this Note addresses the distinction that property-rights advocates have developed to delegitimize certain types of takings. This distinction divides condemnations into disfavored-yet-legitimate takings-the direct-government-use and common-carrier takings-and ostensibly illegitimate public-purpose takings. The property-rights movement unequivocally places economic-development takings in the illegitimate category. The status of blight-remediation takings is ambiguous but tends toward legitimacy.

Crossing The Home-Rule Boundaries Should Be Mandatory: Advocating For A Watershed Approach To Zoning And Land Use In Ohio, Melanie Shwab

Cleveland State Law Review

This Article advocates that Ohio adopt a mandatory “watershed-approach” to land use planning and zoning throughout the state. Ohio should adopt this approach to increase water quality in the state by reducing nonpoint source pollution, achieve greater environmental regulation uniformity, and offset the unfettered zoning power of municipalities operating in the absence of a comprehensive plan.

Do 'Off-Site' Adult Businesses Have Secondary Effects? Legal Doctrine, Social Theory, And Empirical Evidence, Alan Weinstein, Richard D. Mccleary

Law Faculty Articles and Essays

Recent federal court decisions appear to limit the ability of cities to mitigate the ambient crime risks associated with adult entertainment businesses. In one instance, a court has assumed that criminological theories do not apply to “off-site” adult businesses. After developing the legal doctrine of secondary effects, we demonstrate that the prevailing criminological theory applies to all adult business models. To corroborate the theory, we report the results of a before/after quasi-experiment for an off-site adult business. When an off-site adult business opens, ambient crime risk doubles compared to a control area. As theory predicts, moreover, ambient victimization risk is …

Reclaiming Abandoned Properties: Using Public Nuisance Suits And Land Banks To Pursue Economic Redevelopment, Mathew J. Samsa

Cleveland State Law Review

The dangers posed by abandoned and vacant properties present a matter of primary concern for municipalities, especially in older, industrial cities. Addressing these issues requires innovative methods and long-term planning. This Note examines the methods of attacking abandonment. Part II, describes the problems presented by abandoned and vacant housing. Part III examines the effectiveness of code enforcement and traditional tax foreclosure. Part IV analyzes privatized nuisance abatement suits and receiverships. Part V discusses land banks. Part VI argues that using broadly empowered privatized nuisance abatement suits for individual parcels and land banks for mass acquisitions is the most effective means …

Natural Is Not In It: Disaster, Race, And The Built Environment, Thomas W. Joo

Cleveland State Law Review

Reviewing After the Storm: Black Intellectuals Explore the Meaning of Hurricane Katrina edited by David Dante Troutt. New York: New Press. 2006. Editor David Troutt has assembled a fascinating and wide-ranging collection of essays on the Katrina disaster. The contributing authors, primarily (though not exclusively) law professors, put the disaster into a larger context of American law and politics. While the authors' concerns and opinions are diverse, the interaction between human choice and the "natural" is a consistent theme running through the background of the book.

How To Avoid A "Holy War" -- Dealing With Potential Rluipa Claims, Alan C. Weinstein

Law Faculty Articles and Essays

This article discusses how local government can seek to avoid a claim being brought against it under the Religious Land Use & Institutionalized Persons Act (RLUIPA). Thus, the focus is not on what steps a local government should take when a RLUIPA claim is brought - or threatened to be brought - against it, but focuses instead on what steps local governments should take to seek to avoid a RLUIPA claim in the first place. After reviewing both the changing context of religious observance in the United States, and RLUIPA decisions to date, the article concludes that we are clearly …

Kelo V. City Of New London: A Reduction Of Property Rights But A Tool To Combat Urban Sprawl, Gregory V. Jolivette Jr.

Cleveland State Law Review

This Note will analyze the two opposing interests of property owners and of cities in the context of the Supreme Court's Public Use Clause jurisprudence and show that while the Court's decision in Kelo may have diminished property rights, the decision could render an overriding positive impact on combating urban sprawl. Part II defines urban sprawl and identifies some of its associated costs. Part III briefly describes Public Use Clause jurisprudence prior to the Supreme Court's ruling in Kelo. Part IV discusses the Court's opinion in Kelo and Justice Kennedy's concurrence. Part V examines the substantial criticism of Kelo and …

Eminent Domain: Judicial And Legislative Responses To Kelo, Alan Weinstein

Law Faculty Articles and Essays

It has been almost a year and a half since the Supreme Court ruled in Kelo v. City of New London, 125 S. Ct. 2655 (2005), that the federal Constitution does not bar government from using eminent domain for economic development purposes. That ruling precipitated an unprecedented negative reaction in state legislatures. 1 Now, Ohio has delivered the first post-Kelo state supreme court decision to address the constitutionality of eminent domain. On July 26, in City of Norwood v. Horney, 2006 WL 2096001, a unanimous Ohio Supreme Court rejected the arguments of the majority in Kelo and emphatically stated that …

Kelo: One Year Later, Alan C. Weinstein

Law Faculty Articles and Essays

June of 2006 marked the first anniversary of the United States Supreme Court's ruling in Kelo v. City of New London, making this a good time to analyze the past year's flurry of activity and assess what it means for local governments. As of mid-May of 2006, more than forty states were considering legislation in reaction to the Kelo ruling, and fifteen have already enacted such legislation.

Rluipa: Where Are We Now? Where Are We Heading?, Alan C. Weinstein

Law Faculty Articles and Essays

Over the past three years, hardly a week has gone by without at least one news-story announcing that a church, synagogue, or religious school-I'll use the term “church” from here on as a shorthand for all houses of worship or other religious institutions—is claiming that its right to religious freedom is being infringed by local government land use regulations in violation of the Religious Land Use and Institutionalized Persons Act. RLUIPA, a federal statute signed into law in September 2000, was enacted to restore to full vigor legal protection for religious freedoms that the Act's proponents argue had been seriously …

Legal Issues In The Regulation Of On-Premise Signs, Alan C. Weinstein, Mary Morris, Douglas Mace, Mark L. Hinshaw

Law Faculty Contributions to Books

No abstract provided.

Legislative Innovation In State Brownfields Redevelopment Programs, Heidi Gorovitz Robertson

Law Faculty Articles and Essays

States throughout the country have created legislation and administrative programs to encourage the cleanup and redevelopment of urban brownfield land. In part, these efforts respond to the federal government's recent focus on the issue. However, leadership in method and approach has come, not from the federal government, but from the states. States have approached the cleanup and redevelopment of contaminated land in a variety of ways, some choosing to create voluntary cleanup programs, others imposing mandatory cleanup programs, and still others using combinations of these approaches. Regardless of method, however, the push to clean brownfield land is grounded in a …

Case Commentary - Martin V. Corporation Of The Presiding Bishop: Should Zoning Accommodate Religious Uses Or Vice Versa?, Alan C. Weinstein

Law Faculty Articles and Essays

In Martin v. Corporation of the Presiding Bishop, 747 N.E. 2d 131 (Mass. 2001), the highest court in Massachusetts rules that the Dover Amendment, a state statutes that denies local government the authority to "prohibit, regulate, or restrict the use of land or structures for religious purposes..." authorized the town of Belmont to grant a church special permission to build a steeple for a newly built Church of Jesus Christ of Latter Day Saints temple that was taller than the local zoning provisions would normally allow. Since Martin involved a Massachusetts statute, normally the decision would evoke limited interest, and …

The Dilemma Of Old, Urban Neighborhoods, W Dennis Keating

Law Faculty Articles and Essays

In his recounting of the suburban migration from America's cities, journalist and broadcaster Ray Suarez laments the loss of the "old neighborhood". He extols its virtues while explaining its decline. Suarez's nostalgic examples recall the virtues of the extended family kinship, neighborliness, and other features of the "urban village." These are often associated with those urban neighborhoods populated by recent immigratns. These urban villages were thought to have peaked in the decades between the American Civil War and the onset of the First World War, when many U.S. cities industrialized and grew very rapidly. However, a continuing movement of migrants …

Conflicts In Regulating Religious Institutions, Alan C. Weinstein

Law Faculty Articles and Essays

Over the past 25 years, religious institutions have greatly increased their claims of violation of religious freedom when they are denied zoning approval or subjected to historic preservation regulations. While no one can definitively explain the causes of this increase in First Amendment challenges, it can partially be traced to recent changes in both our society and the way our political/legal system conceptualizes religious freedom.

Environmental And Brownfield Liability: Relative Influence On Corporate Expansion And Relocation, Heidi Gorovitz Robertson, Alan K. Reichert

Law Faculty Articles and Essays

Many states in America have enacted laws to encourage the development of contaminated properties. The laws attempt to do this by addressing one barrier to redevelopment, the environmental liability attached to contaminated properties. In general, the laws attempt to remove or reduce the significance of that barrier by reducing or eliminating the environmental liability risk attached to these properties. Our hypothesis was that these efforts cannot significantly encourage redevelopment because they fail to address non-environmental barriers to urban redevelopment. To determine whether this legislative focus on environmental liability is misplaced, we conducted a survey of Northeast Ohio businesses, which had …

Zoning Ordinances And "Free Speech", Alan C. Weinstein

Law Faculty Articles and Essays

Over the past two decades there has been a marked expansion in legal challenges to local land use regulations claiming violations of the free speech clause of the First Amendment to the United States Constitution. First Amendment claims can arise whenever government enacts or enforces zoning or other regulations that deal with uses such as billboards or adult entertainment businesses. This article discusses why this litigation is taking place, provides an overview of First Amendment law, and offers local officials some guidelines to help avoid potential legal challenges.

Zoning Restrictions On Location Of Adult Businesses, Alan C. Weinstein

All Maxine Goodman Levin School of Urban Affairs Publications

This year's report concentrates on recent legal developments concerning regulation of the location of "adult entertainment businesses." Such regulations raise serious constitutional issues because the First Amendment's guarantee of freedom of expression extends to non-obscene sexually oriented media. The U.S. Supreme Court, however, has established that local government may single out adult businesses for special regulatory treatment in the form of locational restrictions if the local government can show a substantial public interest in regulating such businesses unrelated to the suppression of speech and if the regulations allow for "reasonable alternative avenues of communication," which essentially translates into a reasonable …