Law Commons^™

Year In Review: 2007'S Most Significant Land Use Cases, John R. Nolon, Jessica A. Bacher

Elisabeth Haub School of Law Faculty Publications

New York courts busily decided a multitude of land use cases due to the increased growth in magnitude and complexity of land use issues. This year, as in the past, the authors provide a summary describing some of the most crucial New York land use cases. This year’s cases include the following topics: review of local board action, takings law, eminent domain, enforcement, jurisdiction, religious land uses, standing, moratoria, and New York’s State Environmental Quality Review Act (SEQRA).

Suburbs As Exit, Suburbs As Entrance, Nicole Stelle Garnett

Michigan Law Review

Most academics assume that suburbanites are "exiters " who have abandoned central cities. The exit story is a foundational one in the fields of land-use and local-government law: exiters' historical, social, and economic connections with "their" center cities are frequently used to justify both growth controls and regional government. The exit story, however no longer captures the American suburban experience. For a majority of Americans, suburbs have become points of entrance to, not exit from, urban life. Most suburbanites are "enterers "-people who were born in, or migrated directly to, suburbs and who have not spent time living in any …

Municipal Lobbying: Regulations May Affect Land Use Practitioners, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

Land use and real estate attorneys may find their practice areas impacted by recently passed lobbying legislation in both New York state, and New York City that require burdensome requirements for lawyers whose clients are seeking legislative action. This article explores the history of New York lobbying legislation, recent amendments to the lobbying laws, and the impact that lobbying legislation has on the practice of law. Notably, this review explores Article 1-A of the Legislative Law (known as the “Lobbying Act”) and the Public Employee Ethics Reform Act, both of which expanded the definition of lobbying, and significantly changed the …

Norton V. Suwa And The Unraveling Of Federal Public Land Planning, Michael C. Blumm, Sherry L. Bosse

Duke Environmental Law & Policy Forum

No abstract provided.

H.R. 3355, The Homeowners Defense Act Of 2007: Hearing Before The Subcomm. On Housing And Community Opportunity And The Subcomm. On Capital Markets Of The H. Comm. On Financial Services, 110th Cong., Sept. 6, 2007 (Statement Of John D. Echeverria, Geo. U. L. Center), John D. Echeverria

Testimony Before Congress

No abstract provided.

The Taking Of America?, Stefanie Sovak

Pace Law Review

No abstract provided.

Testimony Of Melvin Burke Professor Of Economics University Of Maine, Orono, Maine, Regarding Zp 707 Plum Creek Petition For Rezoning Moosehead Region, Melvin Burke

School of Economics Faculty Scholarship

Plum Creek’s “Concept Plan” is a petition requesting LURC to rezone approximately 426,000 acres in the Moosehead Lake area. According to LURC’s fact sheet, a concept plan is a landowner-created, long-range plan of the “landowner’s intent”, a flexible alternative to traditional subdivision and development plans. It is not a business plan, a project plan, or a concrete real estate development plan. Webster’s unabridged dictionary defines “concept” as a “thought”, “an idea,” a “notion”, which is precisely what Plum Creek’s concept plan is--a thought, an idea, a scheme (plan) for making, arranging or doing something, having in mind a purpose.

Land Use Regulation: The Weak Link In Environmental Protection, A. Dan Tarlock

All Faculty Scholarship

Professor William Rodgers is one of the handful of legal academics who have shaped and influenced environmental law since it was created out of whole cloth in the late 1960s. The staggering quantity, quality, breadth, and creativity of his scholarship are perhaps unrivaled among his peers. It is easy to criticize the gap between the environmental problems that society faces and the inadequate legal tools and institutions that we have created to confront them. Professor Rodgers has always been able to see both the deep flaws in environmental law and the possibilities for more responsive legal regimes.

How Environmentalism Changed Urban Planning: English Green Belts To Washington Wetlands, Simma M. Asher

Simma M. Asher

Urban planning preserves green space to achieve three primary goals: to enhance quality of life, to encourage rural-based industries, and to protect the environment. The environmental goal is unique among those because it seeks to protect natural areas from human interference rather than shaping them to serve particular community purposes, such as to form a city boundary or build a farm or park. This paper examines how the addition of the environmental goal to urban planning conservation programs alters their structures. It compares an urban planning regime established before the environmental movement with a recent, environmentally oriented program and finds …

Federalism And Natural Resources Policy [Outline], Robert L. Fischman

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

2 pages.

"Robert L. Fischman, Indiana University School of Law–Bloomington"

"Outline of Presentation"

Law Casebook Description And Table Of Contents: Constitutional Environmental And Natural Resources Law [Outline], Jim May, Robin Craig

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

6 pages.

"James May, Widener University School of Law" -- Agenda

Note, Searching For Balance In The Aftermath Of The 2006 Takings Initiatives, Hannah J. Wiseman

Scholarly Publications

The partial regulatory takings movement seeks to compensate private landowners when regulations diminish their land values. This movement has grown in recent years, particularly at the state level. Scholars have focused thus far on the cost of compensation and its effect on the regulations that governments enact or enforce. In addition to exploring those concerns, this Note argues that partial regulatory takings regimes threaten to constrain residents’ ability to influence their communities’ growth and character. The greatest impact could fall on low-income communities, many of which contain disproportionate levels of undesirable land uses and lack adequate financial resources to influence …

Rethinking Redevelopment Oversight: Exploring Possibilities For Increasing Local Input, California Research Bureau

California Agencies

No abstract provided.

Planners Gone Wild: The Overregulation Of Parking, Michael E Lewyn, Shane Cralle

Michael E Lewyn

A review of Donald Shoup's book, The High Cost of Free Parking (to be published in William Mitchell Law Review).

Watts My Line? Energy Generation Siting Strategies For Urban Areas, Caleb W. Christopher

Caleb W Christopher

The growth of urban areas has historically been both constrained and encouraged by energy and related infrastructure. Varying degrees of regulation have been sought to respond to compelling public safety needs: more recently, modern environmental law system was derived from public conflicts over siting of an energy plant. While the greater urban density offers reduced per-capita energy consumption rates, contemporary urban revitalization has brought a greater amount of people into closer contact with their energy sources. The unique geography, and increased securities needs, of urban areas demand both reliability and local proximity in energy source production. Urban siting issues will …

The Takings Clause, Version 2005: The Legal Process Of Constitutional Property Rights, Mark Fenster

UF Law Faculty Publications

The search for coherence in takings jurisprudence has resulted in a multitude of theories but no consensus. Each theory -- whether based on conceptions of common law property rights or constitutional conceptions of justice, or based on utility, natural law, or communitarian or republican conceptions of the good --offers significant insight into the vexing legal, political, and normative issues that judicial enforcement of the Takings Clause raises. But no single theory of property or of constitutional limits on state regulation and expropriation has proven capable either of satisfactorily rationalizing existing takings law or of persuading the courts or the theory's …

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

Scholarly Works

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 …

You Can Have It All: Less Sprawl And Property Rights Too, Michael E. Lewyn

Michael E Lewyn

The article describes two visions of suburban development, a “smart growth” vision which critiques automobile-dependent suburban sprawl, and a “property rights” vision which emphasizes individual freedom. The article then shows that these visions are to a great extent reconcilable, by discussing a variety of legal reforms which can both reduce suburban sprawl and enhance landowners’ property rights. For example, if zoning laws were reformed to allow landowners to build more compact developments, landowners would obviously have a wider range of options (thus enhancing property rights) and more people could live within walking distance of jobs, shops and public transit (thus …

Enacting Libertarian Property: Oregon's Measure 37 And Its Implications, Michael Blumm

Michael Blumm

In November 2004, for the second time in four years, Oregon voters opted for a radical initiative that is transforming development rights in the state. The full implications of this substantial change in property rights have yet to be fully realized, but it’s clear that the post-2004 land use world in Oregon will be dramatically different than the previous thirty years.

Land development rights in the state were significantly curtailed by a landmark law the Oregon legislature, encouraged by pioneering Governor Tom McCall, enacted in 1973. Implementation of that law survived three separate initiatives that sought to rescind it in …

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

Scholarly Works

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.

Back To The Future: Is Form-Based Code An Efficacious Tool For Shaping Modern Civic Life, Lolita Buckner Inniss

Faculty Journal Articles and Book Chapters

This Essay serves as a critique of the New Urbanism in general and of form-based code in particular as a tool of the New Urbanism. It may be true that form-based code offers more flexibility than traditional zoning schemes and thus may offer some respite from acknowledged ills such as social and racial divisions created by exclusionary zoning and other tools, and from the relative inutility of single or limited use districts. However, I will argue that these benefits are eclipsed by some of the problems of form-based code. Form-based code is frequently hailed as a back to the future …

Local Property Law: Adjusting The Scale Of Property Protection, Christopher Serkin

Vanderbilt Law School Faculty Publications

This Article proposes that local governments should be able to decide for themselves how to protect private property, and then be held to that choice as if it were a local constitutional pre-commitment. Specifically, the Article proposes state enabling legislation to create a mechanism for local pre-commitments around the most contested takings and land use issues, like the meaning of public use, the extent of just compensation, the diminution of value that triggers compensation, and others. The resulting local variation in property regimes would allow consumers - homeowners, developers, and any other property owners - to select the property protection …

Disaster Mitigation Through Land Use Strategies, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

The persistent question this book raises is who should decide whether and how to mitigate the damages caused by natural disasters. Our understandable preoccupation with response, recovery, and rebuilding makes it hard to focus on this question as a central, even relevant, one. But it persists, nonetheless. The high-profile “blame game” played following Hurricane Katrina’s devastation of the Gulf Coast is emblematic. In pointing fingers first at the Federal Emergency Management Agency (FEMA), then at the city of New Orleans, and then at the state of Louisiana, public officials exhibited an appalling lack of understanding of the roles that each …

Back To The Future: Is Form-Based Code An Efficacious Tool For Shaping Modern Civic Life?, Lolita Buckner Inniss

Publications

This Essay serves as a critique of the New Urbanism in general and of form-based code in particular as a tool of the New Urbanism. It may be true that form-based code offers more flexibility than traditional zoning schemes and thus may offer some respite from acknowledged ills such as social and racial divisions created by exclusionary zoning and other tools, and from the relative inutility of single or limited use districts. However, I will argue that these benefits are eclipsed by some of the problems of form-based code. Form-based code is frequently hailed as a back to the future …

The Takings Clause, Version 2005: The Legal Process Of Constitutional Property Rights, Mark Fenster

Mark Fenster