Law Commons^™

Using Youtube To Explain Housing, Michael Lewyn

Scholarly Works

In 2021, the author ran for Borough President of Manhattan, New York. The author tried to his scholarship into his campaign by producing over twenty Youtube videos, most of which addressed land use and housing policy. The article describes the videos, and evaluates their usefulness.

Commentary: Dan Mandelker—A Land-Use Legacy Unlike Any Other, Patricia E. Salkin

Scholarly Works

It is an honor to share thoughts about the importance of Professor Daniel Mandelker’s legacy to the field of land-use and zoning law. The word “legacy” means, among other things, “something that is part of your history or that remains from an earlier time.” At ninety-two, he was the longest actively teaching land use law professor in the United States. His academic career began in 1949 when he was appointed an Assistant Professor at Drake Law School, with relatively short stints at the University of Indiana Law School and Columbia Law School, followed by his appointment at Washington University School …

New York’S Professor John R. Nolon: A National Leader In Land Use Law With A Large Impact Across The Hudson Valley And The State Of New York, Patricia E. Salkin, Samuel Stewart

Scholarly Works

As Professor John R. Nolon steps down from active law teaching, this article reflects not only on his contributions as a national thought leader in the field, but also on how he has a hand in changing the land use and conservation patterns in New York while promoting affordable housing and combating discrimination.

Reclaiming The Streets, Vanessa Casado-Pérez

Faculty Scholarship

Pedestrians have been getting the short end of the stick in street policies and regulations. Drivers and cars dominate our streets even though automobiles’ externalities kill thousands of people every year. Given the environmental, health, safety, and community effects of cars, municipalities should embrace a policy that puts pedestrians at the center and produces more miles of wider, well-maintained sidewalks. Sidewalks make communities greener, healthier, safer, more socially connected, and even, wealthier. COVID-19 lockdowns have shown both the relevance of sidewalks, as well as the possibility of pedestrians regaining space currently allocated to cars by widening sidewalks.

This Essay identifies, …

The Limits Of Equity, Michael Lewyn

Scholarly Works

"Equity" is a common buzzword in urban planning circles. However, nearly any land use decision can be justified as more equitable than the alternatives.

Death Need Not Part Owners And Their Pets: Regulating Pet Cemeteries Through Zoning Regulation, Patricia E. Salkin, Sydney Gross

Scholarly Works

Pet ownership in the United States has grown substantially over the years. In the past, when a family pet died, it was typically buried in the back yard or cremated by the local veterinarian who might return the ashes to the owner if requested. Today the relationship between people and their pets is different. In many cases pets are treated like members of the family, and a growing number of people wish to be buried alongside their pet either in a burial ground for human remains or for animal remains. Others wish to inter their pets in a specially designated …

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.

Land Use Federalism's False Choice, Michael C. Pollack

Articles

Debates about land use federalism — like those about federalism more broadly — often focus on whether policies and priorities ought to be set at the national or local level. But such categorical judgments about national intervention are inadequate because they obscure the diversity of mechanisms by which nationalization can and does occur. This Article draws attention to the importance of this underappreciated legislative design choice and develops a framework within which to evaluate it. This Article observes that nationalization can take the form of rules that either displace local decisionmaking or channel it, and that those rules can be …

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.

Further Developments In Land Use Ethics, Patricia E. Salkin, Darren Stakey

Scholarly Works

Ethical considerations continue to play a fundamental role in shaping the course of land use and developmental regulatory proceedings throughout the country. From an innocuous donation by one public official to his alma mater, to the outright bribery of a former mayor, the past year has been rife with a range of conduct implicating professional responsibility and land use.

Recent Developments In Land Use Ethics, Patricia E. Salkin

Scholarly Works

Current events across the country reveal no shortage of allegations of unethical conduct in the land use review process. Sadly, there are countless other media accounts of alleged and proven conflicts of interest and other ethical misconduct. In this annual review of reported decisions involving ethics in land use, recent decisions are discussed in the hopes that municipal attorneys will use this information as the basis of ongoing training for members of planning boards, zoning boards, and local legislative bodies who must be routinely reminded of not only their legal but ethical responsibilities in upholding the public trust.

Breaking Up Payday: Anti-Agglomeration Zoning & Consumer Welfare, Sheila R. Foster

Faculty Scholarship

In the last decade, dozens of local governments have enacted zoning ordinances designed to limit the concentration of payday lenders and other alternative financial services providers (AFSPs), such as check-cashing businesses and auto title loan shops, in their communities. The main impetus for these ordinances is to shield economically vulnerable residents from the industry’s lending practices in the absence of sufficiently aggressive federal and state consumer protection regulation. This Essay casts considerable doubt on whether zoning is the appropriate regulatory tool to achieve the consumer protection and welfare goals animating these ordinances. The author’s analysis of the aftermath of payday …

Climate Change Adaptation And Mitigation: A Local Solution To A Global Problem, Sarah J. Adams-Schoen

Scholarly Works

Local land use laws offer powerful tools for climate change adaptation and mitigation. However, notwithstanding New York municipalities’ many impressive efforts, local laws are not yet being utilized sufficiently to create disaster-resilient or disaster-adaptive communities. New York City has done substantially more than many other cities, including, critically, setting specific CO2 emissions reduction targets and amending zoning and building codes. But, in light of the evidence of climate change and its impacts, local decision makers, resource managers, and planners throughout the state must ask whether we are doing enough. Failure to do so will continue to be costly in terms …

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 …

Agenda: Water, Oil And Gas: Nuts And Bolts Of Oil And Gas Leases, Surface Use Agreements, And Water Rights For Non-Oil And Gas Attorneys, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment, Rocky Mountain Land Use Institute (Denver, Colo.), Colorado Bar Association. Natural Resources & Energy Section

Water, Oil and Gas: Nuts and Bolts of Oil and Gas Leases, Surface Use Agreements, and Water Rights for Non-Oil and Gas Attorneys (September 26)

This third program in the Water, Oil, and Gas 101 series was designed to provide those who don’t practice in the area with essential information regarding leases, surface use agreements, siting considerations for oil and gas facilities, the resolution of disputes before the Colorado Oil and Gas Conservation Commission (COGCC), the ins and outs of nontributary and produced nontributary ground water, and water rights as an asset.

Program topics include:

• Oil and Gas Leases
• Surface Use Agreements (SUAs)
• Government’s Role in Authorizing Locations for Oil and Gas Development
• Technical Aspects of Nontributary and Produced Nontributary Ground Water
• Produced Nontributary Ground …

Agenda: Changing Regulatory Frameworks For Shale Development And "Social License To Operate", University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment

Changing Regulatory Frameworks for Shale Development and "Social License to Operate" (July 24)

Rapid development of unconventional shale resources in recent years has raised a series of regulatory issues both here and abroad. Because of the "distributed" nature of shale development and the significant increase in wells in key basins, local land-use conflicts have also erupted in certain areas of the country, leading to restrictions and moratoria on drilling by state, county, and municipal governments and raising questions about the industry's continued social license to operate in key jurisdictions. This moderated panel discussion will assess the current regulatory framework governing shale gas development and the changing dynamics among federal, state, and local regulation …

Slides: Is There A Dust Bowl In Our Future?: Projections For The Eastern Rockies And Central Great Plains, Dennis Ojima

Water, Climate and Uncertainty: Implications for Western Water Law, Policy, and Management (Summer Conference, June 11-13)

Presenter: Dennis Ojima, Senior Research Scientist, Natural Resource Ecology Laboratory, Colorado State University (NREL/CSU)

30 slides

Engaging Deliberative Democracy At The Grassroots: Prioritizing The Effects Of The Fiscal Crisis In New York At The Local Government Level, Patricia E. Salkin, Charles Gottlieb

Scholarly Works

Part I of this Article discusses many of the factors contributing to the fiscal crisis at the local level in New York including historic decreases in federal and state revenue sharing, the imposition of a new property tax cap, the failure of New York to address meaningfully the subject of unfunded mandates on local governments, and the dependency of some local jurisdictions on the timely adoption of a state budget. Part II discusses concepts of deliberative democracy and how local residents might be engaged to become partners with local officials in making difficult fiscal decisions that impact all community residents. …

The Quiet Revolution And Federalism: Into The Future, Patricia E. Salkin

Scholarly Works

This Article offers an examination of the federal role in land use planning and regulation set in the context of varying theories of federalism by presenting a historical and modern overview of the increasing federal influence in local land use planning and regulation, specifically highlighting how federal statutes and programs impact local municipal decision making in the area of land use planning. Part II provides a brief introduction into theories of federalism and their application to local land use regulation in the United States. Part III provides a brief overview of federal legislation in the United States which affected local …

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 …

Restoring Lost Connections: Land Use, Policing, And Urban Vitality, Nicole Stelle Garnett

Journal Articles

Justice William Brennan rightfully reminded all of us that state constitutional law is too often neglected in our courtrooms and our classrooms. State constitutions, to borrow from the late Chief Justice William Rehnquist, ought not to be "relegated to the status of a poor relation" in our constitutional legal structure. They differ in important ways from the federal law Constitution-and those differences provide the space within which our democratic experiment flourishes. And I am sure if Justice Brennan were here with us today, he would agree that we also should not neglect the study of the state and local policies …

Slides: Costs And Benefits Of Oil Shale Development, James T. Bartis

The Promise and Peril of Oil Shale Development (February 5)

Presenter: James T. Bartis, Senior Policy Researcher, Rand Corporation

21 slides

Slides: The Peril Of Energy Usage, Mike Tupper

The Promise and Peril of Oil Shale Development (February 5)

Presenter: Mike Tupper, Executive Vice President, Composite Technology Development, Inc.

9 slides

Slides: The Elusive Bonanza, Randy Udall

The Promise and Peril of Oil Shale Development (February 5)

Presenter: Randy Udall, Co-founder, Association for the Study of Peak Oil-USA

62 slides

Renewable Energy And The Neighbors, Troy A. Rule

Faculty Publications

Small wind turbines and rooftop solar panels are a highly attractive energy option, capable of generating clean, renewable power without the need for transmission lines across vast stretches of rural land. State and federal incentive programs have made these devices increasingly affordable for landowners in recent years, generating an unprecedented level of interest in “distributed” renewable energy.Unfortunately, small wind turbines and solar panels are often far less attractive in the eyes of neighbors, who fear that the systems will erode neighborhood aesthetics and property values. Despite aggressive state and federal programs aimed at promoting renewable energy systems, land use controls …

Operatively White: Exploring The Significance Of Race And Class Through The Paradox Of Black Middle-Classness, Audrey Mcfarlane

All Faculty Scholarship

The black–white paradigm has been the crucial paradigm in racial geography of land use, housing and development. Yet it is worthwhile to consider that, in this context, distinctions based on race are accompanied by a powerful, racialized discourse of middle class versus poor. The black–white paradigm in exclusionary zoning, for example, involves the wealthy or middle-class white person (we need not even use the term white) protesting against or displacing the poor black person. (we also need not even use the term black). Another example of the racialized discourse of middle class versus poor is in the urban-gentrification context. The …

Slides: Groundwater Declines, Climate Change And Approaches To Adaptation, Katharine Jacobs

Western Water Law, Policy and Management: Ripples, Currents, and New Channels for Inquiry (Martz Summer Conference, June 3-5)

Presenter: Katharine Jacobs, Director of the Arizona Water Institute, University of Arizona

37 slides