Law Commons^™

In Defense Of Disparate Impact: An Opportunity To Realize The Promise Of The Fair Housing Act, Valerie Schneider

School of Law Faculty Publications

Abstract:

Twice in the past three years, the Supreme Court has granted certiorari in Fair Housing cases, and, each time, under pressure from civil rights leaders who feared that the Supreme Court might narrow current Fair Housing Act jurisprudence, the cases settled just weeks before oral argument. Settlements after the Supreme Court grants certiorari are extremely rare, and, in these cases, the settlements reflect a substantial fear among civil rights advocates that the Supreme Court’s recent decisions in cases such as Shelby County v. Holder and Fisher v. University of Texas are working to dismantle many of the protections of …

The Dillon Rule & Norfolk Sea Level Rise: An Analysis Of The Limited Impact Of The Dillon Rule On Planning For Sea Level Rise In Norfolk, Mary-Carson B. Saunders

Virginia Coastal Policy Center

No abstract provided.

The Dillon Rule And Sea Level Rise: An Analysis Of The Impact Of The Dillon Rule On Potential Adaptation Measures The City Of Poquoson May Implement, Lauren Gill

Virginia Coastal Policy Center

No abstract provided.

Greening Historic Dc: Challenges And Opportunities To Incorporate Historic Preservation Into The District's Drive For Sustainable Development, Andrew Stein

Georgetown Law Historic Preservation Papers Series

This paper focuses primarily on the District of Columbia, a city with a robust past and a bold agenda for a sustainable future. However, it may not be obvious why historic preservation - a movement typically concerned with aesthetics - can play an integral role in a city's sustainability initiative. Therefore, this paper first sets forth the basic argument why historic preservation can be a tool to promote sustainable development. Part II examines the scientific data indicating that historic preservation is a green building practice. Next, Part III posits that investment in historic districts is an investment in sustainability. Then, …

Community Benefits Agreements And Comprehensive Planning: Balancing Community Empowerment And The Police Power, Patricia E. Salkin, Amy Lavine

Scholarly Works

Traditionally, the states have empowered local governments to develop plans and implement regulations for neighborhood and community development. When accomplished at the local or regional level, the interests and benefits of the community as a whole are to be weighed against the detriments to individuals. Much has been studied and written about the lack of meaningful public participation in the planning and land use regulatory process, suggesting that often low-income and minority communities are not fully engaged in the process, even when it may result in decisions negatively impacting their neighborhoods. Case studies have also shown that governments are sometimes …

Shifting Ground To Address Climate Change: The Land Use Law Solution, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

This article conceives and describes a Land Use Stabilization Wedge: a strategy that aggregates these five wedges and further organizes strategic energies. This builds on Socolow’s optimistic assertion that “an excuse for inaction based on the world’s lack of technological readiness does not exist.” I assert that the existing legal authority of state and local governments to regulate and guide land use and building is a powerful “technology already deployed somewhere in the world.” The Land Use Stabilization Wedge aggregates several of Socolow’s initiatives and employs multiple mitigation techniques available to citizens in every locality in the country.

Zoning, Transportation, And Climate Change, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

On February 2, 2006, the Intergovernmental Panel on Climate Change (IPCC) expressed the consensus of the scientific community that global warming is unequivocal and that its main driver is human activity. On April 7, 2007, the IPCC issued a second report detailing the likely consequences of climate change: widening droughts, more severe storm events, increased inland flooding, sea level rise, and consequent inundation of low lying lands. The Center for Climate Systems Research at Columbia University estimates that sea levels around New York City’s boroughs will increase by five inches by 2030, with some estimates predicting up to 12 inches …

Disaster Mitigation Through Land Use Strategies, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

The devastation wrought by Hurricane Katrina brought to public attention the role of land use planning in mitigating natural disasters and which level or levels of government should decide whether and how to undertake this planning. In the Upper Mississippi River Basin, 6 federal agencies, 23 state agencies in 5 states, and 233 local governments share jurisdiction over various areas of activity on the river; the complexity and disorganization of this legal framework stifles effective action. In this Article, John R. Nolon calls for cooperative federalism and a clarification of agency roles as a remedy for this complexity. Through case …

Katrina’S Window: Localism, Re-Segregation And Equitable Regionalism, David D. Troutt

Rutgers Law School (Newark) Faculty Papers

The worst national disaster in United States history also showcased the dire consequences of localism as the cultural and legal successor to de jure segregation. Long before Hurricanes Katrina and Rita devastated the Gulf Coast, New Orleans’ status as an exceptional city had been lost to Americanizing trends. Its resistance to the conventional racial binary was overcome after Reconstruction; its unique densities and accommodation of the physical landscape were transformed into sprawling divisions by technology and suburbanization. From the Brown decision forward, New Orleans and the metropolitan area around it developed much like the rest of the nation. Localist tendencies …

Plenty Of Bark, But Not Much Bite: Putting Teeth Back Into Historic Preservation Enforcement In D.C., Winston Sale

Georgetown Law Historic Preservation Papers Series

Washington, D.C. has one of the largest inventories of protected historic buildings of any city in the United States. Over 25,000 structures stand within the city's borders that are either individually landmarked or contributing buildings within a historic district. These buildings are covered by statutory protection designed to prevent alteration or demolition without consultation with the Office of Historic Preservation (HPO) and/or the D.C. Historic Preservation Review Board (HPRB). Enforcement of these protections relies on HPO's inspectors.

While the District currently employs two historic preservation inspectors, recent changes in the structure of HPO and other D.C. bureaucracies brought about a …

The Intersection Of Gender And Early American Historic Preservation: A Case Study Of Ann Pamela Cunningham And Her Mount Vernon Preservation Effort, Jill Teehan

Georgetown Law Historic Preservation Papers Series

American historic preservationists universally credit Ann Pamela Cunningham, the woman who saved George Washington's Mount Vernon home, as the chief architect of the historic preservation movement in the United States. However, little scholarship has considered how Cunningham's social position as a woman significantly contributed to her ability to save Mount Vernon, and thus jumpstart a national movement to save historically significant places. Using Cunningham and the organization she formed, the Mount Vernon Ladies' Association of the Union (MVLA), widely regarded as the nation's first historic preservation society, this paper considers the intersection of gender and early historic preservation in the …

Demolition By Neglect: Repairing Buildings By Repairing Legislation, Anna Martin

Georgetown Law Historic Preservation Papers Series

One of the biggest problems today facing communities with historic preservation ordinances is delinquent owners who don’t have the will or the finances to maintain their historic properties and landmarks. Historic preservation law plays an important role in building a sense of patriotism and community togetherness, fostering education and providing incentives for aesthetically pleasing architecture. When residents can identify with a community, this creates a dialogue and sense of belonging. There are also environmental and psychological impacts of preserving old buildings, since human beings are positively affected by their surroundings when they feel a "sense of place." When buildings in …

Conservation Districts: A Solution For The Deanwood Neighborhood?, Kelly B. Bissinger

Georgetown Law Historic Preservation Papers Series

Preserving and protecting home ownership and the affordable housing in the United States remains a serious concern despite numerous federal programs intended to encourage home ownership and to provide affordable housing to low-income individuals and families. Often times, low-income people live in older, run-down neighborhoods in urban areas. There is a constant threat that developers will purchase properties in these areas in order to demolish or renovate existing structures and redevelop the area (this process is often referred to as "gentrification").

One of the consequences of gentrification is the displacement of low-income residents. In those instances where low-income residents own …

Local Inclusionary Housing Programs: Meeting Housing Needs, John R. Nolon, Jessica A. Bacher

Elisabeth Haub School of Law Faculty Publications

This article explores the expansive legal authority that local governments in many states have to meet housing needs directly by providing for the production of new affordable homes. There is not a great deal of scholarship on the subject as we approach it. The emphasis in the academic literature in the field of affordable housing is on top-down, systemic, or theoretical solutions: urging reforms in federal and state finance programs, imploring courts to penalize localities that engage in exclusionary zoning, describing in detail a variety of inclusionary zoning techniques, or explaining relevant theories or the economics of the issue of …

If They Can Raze It, Why Can't I? A Constitutional Analysis Of Statutory And Judicial Religious Exemptions To Historic Preservation Ordinances, Erin Guiffre

Georgetown Law Historic Preservation Papers Series

In 1996, America almost lost a great piece of its history. The Cathedral of Saint Vibiana, located in Los Angeles, was in danger of being destroyed. The "Baroque-inspired Italianate structure" was completed in 1876 by architect Ezra F. Kysor. The cathedral is one of only a few structures from Los Angeles' early history remaining. As an important part of history and a beautiful piece of architecture, the cathedral was listed on California's register of historic places. In 1994, an earthquake damaged part of the building. After an inspection by the building and safety department in 1996, the only portion of …

Climate Change, Zoning And Transportation Planning: Urbanization As A Response To Carbon Loading, John R. Nolon, Jessica A. Bacher

Elisabeth Haub School of Law Faculty Publications

This article explores the relationship among zoning, transportation planning, and climate change. It discusses the relationship between land use densities and transportation choices, reviews the trend toward transit oriented development in higher density communities and transportation efficient development in lower density areas, presents several case studies where land use and transportation planning are beginning to intersect, and ends with a strategic approach for communities to consider.

Historical Overview Of The American Land Use System: A Diagnostic Approach To Evaluating Governmental Land Use Control, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

This article describes how the American land use system has evolved to address recent environmental and economic development problems. It begins by tracing the history of the legal system used in the United States to control private sector land development and demonstrates how it achieved the flexibility needed to respond to modern challenges. The American land use system has paid a price for this flexibility: it is not a coherent whole, but rather a fragmented mosaic of legal influences. Impressive examples of cohesion are cited that suggest a strategic approach to reforming the system so that it can become an …

House Of The Setting Sun: New Orleans, Katrina, And The Role Of Historic Preservation Laws In Emergency Circumstances, Annie Christoff

Georgetown Law Historic Preservation Papers Series

In the aftermath of Hurricane Katrina, while various government bodies scrambled to address the myriad tragedies and emergencies that arose from the disaster, one critical question went largely unanswered and ignored: What was to become of the historic homes damaged in the storm and ensuing flood?

Obviously this question was of secondary concern at the time—where human life and safety are imperiled, the primary focus of government officials should be on restoring order and ensuring their constituents are protected. Precisely because of the existence of more pressing issues in a time of emergency, therefore, it is important to have a …

Improving Historic Preservation Enforcement In The District Of Columbia, David J. Henry

Georgetown Law Historic Preservation Papers Series

Within the past few years, the creation of the Office of Administrative Hearings (OAH) has been an important change in the District of Columbia government. OAH is viewed by many as an innovative government agency that provides fair and impartial administrative adjudication for District agencies, with efficiency. However, since OAH began full operations in 2004, the effectiveness of historic preservation enforcement has actually decreased. The primary indicators of this are the fewer number of completed adjudications and the smaller amount of fines collected in the past year.

This paper is a policy paper. As such, the paper will identify problems …

Productive Preservation And The Reinvention Of Industrial America, Jonathan Flynn

Georgetown Law Historic Preservation Papers Series

This paper explores the problem of why the traditional model preservation, characterized by a strict and inflexible interpretation of the law, often fails in struggling communities. Particular emphasis is given to early industrial cities, where the existing urban infrastructure and difficult economic situation often conspire to make preservation exceptionally challenging. A solution is proposed for making preservation productive these distressed communities. Through a broader, and more flexible reading of existing law, a major preservation problem may be solved, and history can used as a valuable tool for growth and positive change.

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 …

Private Property, Development And Freedom, Steven J. Eagle

George Mason University School of Law Working Papers Series

The author asserts that adherence to the rule of law, including property law, is a necessary condition to economic development and human freedom. United States governmental agencies and private institutes have attempted to convey this message to Russia, other states of the former Soviet Union, and former Soviet satellite states, with some success. Finally, and unfortunately, the United States has veered away from the very adherence to the rule of law respecting property which it espouses abroad.

Comparative Land Use Law: Patterns Of Sustainability, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

Land use scholars and practitioners in the United States trace the development of domestic land use law to 1916, when the City of New York adopted the nation's first comprehensive zoning law, and then on to 1926 when the U.S. Supreme Court declared zoning constitutional in Euclid v. Ambler Realty. Some have studied European influences stemming from late nineteenth century regulations and the urban design principles imported from the great cities of the era. Others know about the catastrophic London fire of 1666 and how it transformed society's understanding of why individual property rights, to some degree, must be subject …

Development Agreements: Bargained-For Zoning That Is Neither Illegal Contract Nor Conditional Zoning, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

This Article explores the new model of land use decision-making that is based upon bargaining with the landowner. The fact of a bargain raises the issue of whether such bargaining amounts to “contract zoning” based upon a bilateral contract between the municipality and the landowner, which is largely held to be illegal, or a related form of bargaining, not involving an exchange of promises in the context of a bilateral agreement--“conditional zoning.” Part II of this Article discusses the emergence of the development agreement, which involves a contract with a municipality and the developer under which the developer is assured …

Golden And Its Emanations: The Surprising Origins Of Smart Growth, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

This article provides the background for the adoption of the Ramapo ordinance, explains its precocious inventions in some detail, and describes other dramatic local inventions emanating from the Ramapo approach to smart growth. It ends with a reflection on the Quiet Revolution, the continuing disquiet that accompanies the spectacular smart growth inventions of local governments in this country, and modest recommendations for reform. Along the way, the reader will encounter the rebirth of performance zoning, local environmental laws that protect critical environmental resources, a local abandoned property reclamation act, the use of mediation to solve border wars between localities, an …

Dean's Foreword, David S. Cohen

Elisabeth Haub School of Law Faculty Publications

This issue of the Pace Environmental Law Review contains a description of this emerging field of law and the response of the academic and legal community to it. As Professor Nolon reports in his introduction, we found eloquent coherence in these laws and saw how they fit together to form a comprehensive whole. We examined state statutes that authorized local governments to adopt environmental laws and discovered that they were diverse in nature but prevalent in many states. We also found state court decisions that upheld local environmental laws against the challenges of regulated property owners. We were troubled by …

Fred Bosselman As Participant-Observer Lawyer: The Case Of Habitat Conservation Planning, A. Dan Tarlock

All Faculty Scholarship

No abstract provided.

A Role For State Planning, Fred P. Bosselman

All Faculty Scholarship

No abstract provided.

Grassroots Regionalism Through Intermunicipal Land Use Compacts, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

The question raised by this article is whether these statutes and this experience provide an opportunity to develop an effective regional approach fitted to the great diversity of New York's regions. It examines first the role local governments play in determining land use and then the statutes that authorize municipalities to cooperate with respect to land use planning and control. The article traces the use of this authority through two phases of evolution revealing ever more complex and potentially effective intermunicipal strategies. It ends with some thoughts as to how the state government could facilitate effective regional processes by providing …

The Search For A National Land Use Policy: For The Cities' Sake, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

This article offers a survey of federal legislation and statements of policy that have shaped and directed land use and related phenomena, including the location of population, economic growth, and the character of urban development. Part I of this article provides a historical development of land use policies and laws, as well as presents academic and scientific theories supporting a national land use policy. Part II of this article describes patterns of urban and suburban growth and their consequences, such as the decline of the viability of cities and the loss of agricultural land. Part III discusses the government's spending …