Law Commons^™

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

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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 …

Diploma Privilege And The Constitution, Patricia E. Salkin, Claudia Angelos, Sara J. Berman, Mary Lu Bilek, Carol L. Chomsky, Marsha Griggs, Joan W. Howarth, Eileen Kaufman, Deborah Jones Meritt, Judith Wegner, Andrea Curcio

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The COVID-19 pandemic and resulting shutdowns are affecting every aspect of society. The legal profession and the justice system have been profoundly disrupted at precisely the time when there is an unprecedented need for legal services to deal with a host of legal issues generated by the pandemic, including disaster relief, health law, insurance, labor law, criminal justice, domestic violence, and civil rights. The need for lawyers to address these issues is great but the prospect of licensing new lawyers is challenging due to the serious health consequences of administering the bar examination during the pandemic.

State Supreme Courts are …

Should I Stay Or Should I Go: Student Housing, Remote Instruction, Campus Policies And Covid-19, Patricia E. Salkin, Pamela Ko

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In March 2020, as the world scrambled to understand and address myriad public health and economic challenges unfolding from the novel coronavirus labeled COVID-19, higher education was forced into a tailspin. This article examines the legal and policy challenges that result from, among other issues, the congregate housing situations existing for on- and off-campus housing at colleges and universities. The legal issues demonstrate federalism at work and include; at the federal level, regulations and guidance from the White House, the Center for Disease Control (CDC) and the U.S. Department of Education; at the State level from gubernatorial executive orders, state …

Relationships And Ethics In The Land Use Game, Patricia E. Salkin, Thomas Brown, Aisha Scholes

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Ethical considerations in the land use decision making process can be organized into a number of categories, including, first and foremost, the broad subject of conflicts of interest.1 Players in the land use game can find themselves in real or perceived conflicts situations based on personal financial interests resulting from investments, including businesses and real estate holdings (such as the location of their property vis-à-vis the location of the subject property before the Board), employment for themselves or members of their immediate family, and memberships in nonprofit organizations that may be either passive or active (e.g., simply dues paying member …

The Key To Unlocking The Power Of Small Scale Renewable Energy: Local Land Use Regulation, Patricia E. Salkin

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Myriad federal and state programs have been promoted to incentivize the research and development of renewable energy as a means of achieving sustainability and producing more affordable alternative energy systems, and these programs could potentially have a profound impact on the way that electricity is produced and consumed in the United States. Small-scale renewable energy generation from sources such as solar and wind, that can be used at the consumer level as a source of power for homes and small businesses, is an important part of this paradigm shift. However, regardless of the fiscal incentives offered to clean-tech companies to …

Government "Green" Requirements And "Leedigation", Patricia E. Salkin, Graham Grady, Nicole Mueller, Susan Herendeen

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No abstract provided.

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

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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. …

Ensuring Public Trust At The Municipal Level: Inspectors General Enter The Mix, Patricia E. Salkin, Zachary Kansler

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Although federal, state and local government officials are subject to applicable codes of ethical conduct and are under the jurisdiction of ethics enforcement agencies created pursuant to these laws, ethics oversight agencies are limited in the breadth and scope of covered activities. With an increase in reported allegations of corruption, particularly at the local government level, this article explores the addition of the audit function, through inspectors general, to ensure greater transparency and accountability of public officials.

The article begins with a very brief historical overview of the emergence of the inspector general concept in Europe and its adoption in …

Medical Marijuana Zoned Out: Local Regulation Meets State Acceptance And Federal Quiet Acquiescence, Patricia E. Salkin, Zachary Kansler

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Sixteen states and the District of Columbia currently permit the medical use of marijuana, yet state statutes fail to account for the challenges that confront municipal planners and officials whose agenda includes public health, safety and welfare of residents, including minor children. The intensity of the problem is perhaps most evident in Los Angeles, where there are approximately 800 dispensaries. Varying statutory approaches are provided for individuals to legitimately acquire the drug - they may grow it themselves, they may obtain it from their primary caregiver, or they may obtain it from a licensed dispensary. This raises a number of …

Regional Foodsheds: Are Our Local Zoning And Land Use Regulations Healthy?, Patricia E. Salkin, Amy Lavine

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Governments at all levels have become increasingly interested in fostering healthy eating habits and sustainable agricultural production. Promoting access to locally grown produce is an important part of many policy goals seeking to address these concerns, and the concept of regional foodsheds has risen in popularity as one method to achieve these goals. Research indicates that community based food systems have the potential to address food security, public health, social justice, and ecological health. Food production and consumption patterns are influenced by a range of federal, state, and municipal policies, but meaningful change in regional food system policies is likely …

No Protectable Property Interest In Making Land Use Decisions And Other Ethics In Land Use Issues 2009-2010, Patricia E. Salkin

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This annual review of reported decisions and opinions focused on ethical considerations in land use planning and decision-making, continues to highlight the hotly litigated issues surrounding conflicts of interest of various players in the land use game.

Cooperative Federalism And Wind: A New Framework For Achieving Sustainability, Patricia E. Salkin, Ashira Ostrow

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This Article proposes a federal wind siting policy modeled on the cooperative federalism framework of the TCA’s Siting Policy. Part I describes some advantages of wind energy, focusing specifically on the environmental, economic, and social benefits. This Part also discusses several technical obstacles to wind energy development, including the need to supplement wind energy with conventional energy sources and the lack of adequate transmission infrastructure. Part II assesses the current regulatory regime for the siting of wind turbines, reviewing general practices across the United States at both the state and local levels. Although a number of states have been active …

New York Climate Change Report Card: Improvement Needed For More Effective Leadership And Overall Coordination With Local Government, Patricia E. Salkin

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New York ranks eight out of the 50 states in terms of carbon emissions. While the State government is just beginning to enact meaningful programs and incentives to encourage municipal policies and actions that will reduce the impact of local decisions on our carbon footprint, a number of local governments across the State have already been at work developing and adopting "greening" strategies, policies and regulations. While the New York State Bar Association has released for comment a report of its Task Force on Global Warming which documents an impressive two-dozen current state-level laws and programs on climate change, the …

Can You Hear Me Up There? Giving Voice To Local Communities Imperative For Achieving Sustainability, Patricia E. Salkin

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Sustainable development is an international challenge that demands attention at all levels of government. The calls to action to achieve sustainability have varied over the last few decades. For example, in the 1970s and 1980s attention was focused on the need for environmental review and growth management strategies. In the 1990s the rhetoric shifted to smart growth and livable communities, and today, the issue has been reframed as advocates view sustainability through the lens of global warming and climate change. Regardless of the nomenclature, however, the end game is the same. While the United States as a whole speaks through …

2009 Ethical Considerations In Land Use, Patricia E. Salkin

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This article is one in a series of annual updates on reported cases and opinions in the area of ethics and land use regulation, A number of themes emerged from the round of litigation in the last year. The most surprising discovery was for a second year in a row, the number of reported cases involving allegations of unethical conduct on the part of land use attorneys. This article reviews these cases, as well as cases involving conflicts based on community involvement, familial relationships, employment and financial interests; and cases involving allegations of bias and prejudgment.

Modernization Of New York's Land Use Laws Continues To Meet Growing Challenges Of Sustainability, Patricia E. Salkin, Jessica A. Bacher

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There has never been a more challenging time to practice land use planning and zoning law in New York. With goals of sustainability at the forefront of the land use regulatory agenda, this brief account of recent developments in land use law highlights some discernable trends, namely: the modernization and increased flexibility of New York State planning and zoning enabling acts, the inspired local initiatives and lethargic State response to affordable housing issues, and the increasing impact of alternative energy systems on local regulatory schemes.

Part I of this article explores the impacts on community development caused by the many …

Linking Land Use With Climate Change And Sustainability Topped State Legislative Land Use Reform Agenda In 2008, Patricia E. Salkin

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Linking land use with climate change and sustainability topped state legislative land use reform agenda in 2008. The only discernible state land use reform trends in 2008 have focused primarily on themes surrounding sustainability. Many states pursued statutory reforms to address the strong linkages between land use and climate change, green development and affordable housing. Only one state, Michigan, focused on recodification of its planning and zoning enabling acts.

Law Of The Land – Year In Review, Patricia E. Salkin

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This column reviews trends and interesting cases in land use law as reported on “Law of the Land” during the last half of 2007. “Law of the Land” is a blog created to be of interest to land use lawyers, planners, developers, professors, and students. The blog is updated daily with a review of a recent land use case decided by a state or federal court. In addition, the site has reported on relevant gubernatorial executive orders, offered book reviews, and occasionally starts a discussion on current events issues, such as climate change and has led to robust debate about …

Municipal Regulation Of Formula Businesses: Creating And Protecting Communities, Patricia E. Salkin

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People have been trying to exclude chain stores from their communities for decades. This includes "big-box" chains - the behemoth retailers that prefer an architecture of rectangular, single-story unadorned structures reaching 200,000 square feet or more - as well as national and international businesses including well-recognized fast food restaurants, drug stores and clothing retailers. The reasons for restricting these large corporate businesses include concerns over community character and aesthetics, local economics and self-reliance, and corporate ideologies. Over time, many municipalities have been forced to accept that "formula retail" and "franchise architecture" are simply part of the American economy. In many …

Land Use Law And Active Living: Opportunities For States To Assume A Leadership Role In Promoting And Incentivizing Local Options, Patricia E. Salkin, Amy Lavine

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Obesity, asthma and nutrition are just three public health challenges facing children and adults that can be addressed through land use planning and zoning. States must take a leadership role in providing statutory authority and guidance for local governments to enact and implement laws and ordinances designed to promote active living. Land use policies, transportation policies, redevelopment policies and open space and recreation policies are key areas where reform is needed. This paper highlights existing examples from various states and offers lawmakers, policymakers and advocates options for reforming state laws to incentivize and influence local actions.

Understanding Community Benefits Agreements: Equitable Development, Social Justice And Other Considerations For Developers, Municipalities And Community Organizations, Patricia E. Salkin, Amy Lavine

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The opportunity to develop a Community Benefits Agreement (CBA) typically arises when a developer announces plans to construct a major project, such as a stadium or a theater complex. Local residents and business owners may often welcome these projects, but they may also have legitimate fears, such as: Will the project displace local residents and local businesses, either physically or through gentrification? Will it cause traffic problems and generate noise, pollution, or other nuisances? Will the economic development benefits espoused by the developer actually create jobs that pay a living wage and offer decent benefits for residents in the neighborhood …

Negotiating For Social Justice And The Promise Of Community Benefits Agreements: Case Studies Of Current And Developing Agreements, Patricia E. Salkin, Amy Lavine

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A community benefits agreement (CBA) is a private contract negotiated between a prospective developer and community representatives. In essence, the CBA specifies the benefits that the developer will provide to the community in exchange for the community's support, or quiet acquiescence, of its proposed development. The promise of community support may be especially useful to a developer seeking government subsidies or timely project approvals. The CBA is a relative newcomer to the toolbox of strategies that communities may utilize to ensure that development occurs consistent with the sometimes more narrow goals and desires of neighborhood residents, as opposed to the …

Squaring The Circle On Sprawl: What More Can We Do?: Progress Towards Sustainable Land Use In The States, Patricia E. Salkin

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With almost ten years of nationwide dialogue and experimentation with the legal implementation of smart growth concepts at the state and local levels, this paper pauses to consider whether and to what extent success has been realized. The one certainty in this dynamic intersection of land development and conservation is that there is no one best model adaptable to all fifty states. Rather, to accommodate national diversity in local government structure, cultural relationships of people to the land, and differences in geography and a sense of place, the best lesson learned is that advocates and lawmakers alike must shape and …

Ensuring Continuing Community Amenities Through Golf Course Redevelopment, Patricia E. Salkin

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This article examines some of the issues faced by municipalities hoping to preserve their golf courses or to ensure their strategic redevelopment and focuses on how local governments can most effectively employ planning and zoning techniques to ensure that community amenities, including affordable housing and recreational areas, are an important part of golf course redevelopment projects.

Eminent Domain Legislation Post-Kelo: A State Of The States, Patricia E. Salkin

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In Kelo v. City of New London, the U.S. Supreme Court ruled that the use of eminent domain for economic development is a permissible“public use” under the Takings Clause of the Fifth Amendment. The decision proved controversial, as many feared that it would benefit large corporations at the expense of individual homeowners and local communities. Shortly thereafter, numerous states introduced legislation limiting the use of eminent domain.This article surveys those state initiatives that have been signed into law following the Court’s decision in Kelo.

Examining Land Use Planning And Zoning Ethics From A Planner’S Perspective: Lessons For All Stakeholders In The Real Estate Game, Patricia E. Salkin

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This article examines the Code of Ethics and Professional Conduct of the American Institute of Certified Planners (AICP). Only two states, Michigan and New Jersey, license planners as a profession. This makes ability for planners to achieve certification from the AICP important and raises the prominence of the AICP Code of Ethics, since as a condition of membership, each AICP member agrees to abide by the Code.

Ethical Considerations In Land Use Decision Making: 2006 Annual Review Of Cases And Opinions, Patricia E. Salkin

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This article reviews reported cases and opinions documenting allegations of unethical conduct involved in land use planning and zoning decision making in 2006.

States Beginning To Recognize That Training Is Essential For Members Of Planning And Zoning Boards And Local Legislative Bodies, Patricia E. Salkin

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Members of planning and zoning boards and local legislative bodies constantly make decisions that may be worth millions of dollars to applicants and that may have serious impacts on public health and safety. Unlike other players in the land use decision making process members of local legislative bodies and land use boards have no specific education or training in land use matters prior to their election or appointment putting them in the position to learn solely from “on the job training”. Five (5) states currently require mandatory training and continuing education courses for members of planning boards and zoning boards …

Zoning For Home Occupations: Modernizing Zoning Codes To Accommodate Growth In Home-Based Businesses, Patricia E. Salkin

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This article offers readers ideas and examples of ways to modernize local zoning laws to balance the growing demand by residents to engage in legitimate home-based businesses while protecting community character and the health, safety, and welfare of neighbors in residential zoning districts.

Eliminating Political Maneuvering: A Light In The Tunnel For The Government Attorney-Client Privilege, Patricia E. Salkin, Allyson Phillips

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The long recognized common-law privilege afforded to certain conversations between attorneys and their clients has been the subject of troubling opinions when the lawyer and client are high ranking government officials. In a series of opinions from the 7th, 8th and D.C. Circuit Courts of Appeals, the courts refused to recognize the existence of the attorney-client privilege for the government actors under the circumstances surrounding the cases. However, recent opinions from the 2nd Circuit state that these other courts were simply wrong, setting the stage perhaps, for the U.S. Supreme Court to resolve the issue. Whether this privilege is equally …