Law Commons^™

Toxic Bones: The Burdens Of Discovering Human Remains In West Virginia's Abandoned And Unmarked Graves, J. William St. Clair, Robert Deal

West Virginia Law Review Online

This article pulls up and highlights a land use restriction, or financial burden, imposed upon West Virginia private real estate owners who inadvertently uncover human skeletal remains in unmarked graves on their property. In this state, those coming across human bones that historians and archaeologists eventually deem have no historical or archeological significance have a choice—pay the costs to have the bones removed and reinterred or cover the bones and use the property only as a cemetery in perpetuity. This burden becomes more acute when comparing West Virginia’s law to those of other states that require government officials, at public …

Free, Prior And Informed Consent: Addressing Political Realities To Improve Impact, Tehtena Mebratu-Tsegaye, Leila Kazemi

Columbia Center on Sustainable Investment Staff Publications

Indigenous and Tribal peoples’ right to free, prior and informed consent (FPIC) has transformative potential. Yet, there is a considerable gap between the theory and what happens in practice. Global actors supporting recognition of FPIC and effective prior consultation processes usually focus on normative standards and best practices. They concentrate much less on addressing the political challenges and opportunities that shape how these processes unfold.

With funding from the Ford Foundation, we looked at the politics of FPIC in Latin America, analyzing how the power and interests of the key players–across governments, companies and indigenous peoples–can determine the fate of …

Equipping The Nigerian National Petroleum Corporation For The Low-Carbon Transition: How Are Other National Oil Companies Adapting?, Perrine Toledano, Martin Dietrich Brauch, Tehtena Mebratu-Tsegaye, Francisco Javier Pardinas Favela

Columbia Center on Sustainable Investment Staff Publications

The Nigerian National Petroleum Corporation’s (NNPC) persistent governance challenges have both hampered Nigeria’s oil sector development and deprived the country of public resources. The oil, climate, and COVID-19 crises and the ramp-up of the low-carbon transition exacerbate this reality, with the national oil company (NOC) delivering sub-optimal returns to its stakeholders.

Other NOCs have taken meaningful steps to become players in the low-carbon energy transition domestically or in­ternationally – for example, Sau­di Arabia’s Saudi Aramco, Norway’s Equinor, Brazil’s Petrobras, Malaysia’s Petronas, and Algeria’s Sonatrach. These NOCs can serve as sources of inspiration for NNPC. These five NOCs have also undergone …

Brigham-Kanner Property Rights Journal, Volume 9, William & Mary Law School

Brigham-Kanner Property Rights Journal

The State of Regulatory Takings

October 3-4, 2019

Panel 1: The State of Regulatory Takings Jurisprudence: A Tribute to Eagle

Panel 2: Public Resources and Private Rights

Panel 3: Natural Gas and Other Energy Takings: Protecting Private Property Rights When the Public Interest is Promoted By a Non-Governmental Entity

Panel 4: Property and Poverty

Featured Author (Eagle)

Transgressive Diy (“Do It Yourself”) Spaces, Mixed Virtual/Physical Affinity Spaces, And Building Code Vigilantism, Sara Gwendolyn Ross

Articles, Book Chapters, & Popular Press

This article first situates itself within the example of Toronto as one of UNESCO’s newly minted global “Cities of Culture.” This network of “creative cities” is intended to facilitate a framework for these cities to work together in “placing creativity and cultural industries at the heart of their development plans at the local level and cooperating actively at the international level.” As one of Toronto’s culture-oriented redevelopment strategies, its “Music City” initiative is an example of how music and sound can be used in city marketing and place branding, and how these redevelopment strategies must be more effectively deployed to …

Taking It Too Far: Growth Management And The Limits To Land-Use Regulation In Maine, Michael A. Duddy

Maine Law Review

In 1989 Maine enacted the Comprehensive Planning and Land Use Regulation Act. The Act's legislative findings declared that “ the State has a vital interest in ensuring that a comprehensive system of land-use planning and growth management is established as quickly as possible.” However, whenever the state exercises its police power to regulate private land use, it faces a constitutional limit as to how far it can go. When the land-use restriction exceeds that limit, a regulatory taking occurs. This Comment argues that the Comprehensive Planning and Land Use Regulation Act, as it is being interpreted and implemented by state …

Taking It Too Far: Growth Management And The Limits To Land-Use Regulation In Maine, Michael A. Duddy

Maine Law Review

In 1989 Maine enacted the Comprehensive Planning and Land Use Regulation Act. The Act's legislative findings declared that “ the State has a vital interest in ensuring that a comprehensive system of land-use planning and growth management is established as quickly as possible.” However, whenever the state exercises its police power to regulate private land use, it faces a constitutional limit as to how far it can go. When the land-use restriction exceeds that limit, a regulatory taking occurs. This Comment argues that the Comprehensive Planning and Land Use Regulation Act, as it is being interpreted and implemented by state …

A Review Of Sierra Leone’S Mines And Minerals Act, Tehtena Mebratu-Tsegaye, Perrine Toledano, Sophie Thomashausen

Columbia Center on Sustainable Investment Staff Publications

With the support of Oxfam, the Columbia Center on Sustainable Investment reviewed select provisions in the Mines and Minerals Act 2009 and corresponding policy statements from the Minerals Policy 2018 to provide recommendations for how to best align the anticipated new mining law with international best practice. The 2009 law was reviewed with a focus on the following topics:

• Fiscal regime;
• Climate change;
• Access to and use of land;
• Community consultations and participation;
• Human rights; and
• Community development agreements.

The policy brief aims to support the Government of Sierra Leone in the ongoing law reform process.

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 …

Professor Julian Conrad Juergensmeyer’S "Impact": Scholarly, Theoretical, And Practical, Becky Jacobs

Scholarly Works

It is difficult to believe that a decade has passed since the original Festschrift in honor of the occasion of Julian Conrad Juergensmeyer’s 45th year of teaching. That first Festschrift was an impressive and moving scholarly tribute to Julian’s impact on his colleagues, on his students, and on broader legal doctrine. Yet, despite the many accolades received and accomplishments documented in Festschrift I, Julian lamented with typical humility and self-deprecation, in his Introduction and Thank You that he had “never succeeded in developing a course which adequately links the coverage of land use and environmental law[,]” but that he hoped …

Exploring The Relationship Between Drug And Alcohol Treatment Facilities And Violent And Property Crime: A Socioeconomic Contingent Relationship, Christopher Salvatore, Travis A. Taniguchi

Christopher Salvatore

Siting of drug and alcohol treatment facilities is often met with negative reactions because of the assumption that these facilities increase crime by attracting drug users (and possibly dealers) to an area. This assumption, however, rests on weak empirical footings that have not been subjected to strong empirical analyses. Using census block groups from Philadelphia, PA, it was found that the criminogenic impact of treatment facilities in and near a neighborhood on its violent and property crime rates may be contingent on the socioeconomic status (SES) of the neighborhood. Paying attention to both the density and proximity of facilities in …

Knick V. Township Of Scott, Alizabeth A. Bronsdon

Public Land & Resources Law Review

The Supreme Court overruled a 34-year-old precedent and sparked a sharp dissent by holding that a landowner impacted by a local ordinance requiring public access to an unofficial cemetery on her property could bring a takings claim directly in federal court. The decision eliminated a Catch-22 state-litigation requirement that effectively barred local takings plaintiffs from federal court, but raised concerns about government land use and regulation, judicial federalism, and the role of stare decisis.

Singapore, Land Use And The Lessons For Human Development, Wellington Migliari

Journal of Comparative Urban Law and Policy

A study of the impact of using land use controls as a strategic tool to further human development among all social classes is presented. We advocate that human rights include a long-term practice of combining public policies, manufacturing industry, and property system. Further, this study strives to educate economists and those in other academic areas (e.g. humanities) on the importance of considering land use, ownership, and urban planning with economics to form a new theory of developmentalism. Singapore provides a case study demonstrating similar aspects that may shed light on that debate. The Housing & Development Board and the Urban …

Energy Exactions, Jim Rossi, Christopher Serkin

Jim Rossi

Exactions are demands levied on residential or commercial developers to force them, rather than a municipality, to bear the costs of new infrastructure. Local governments commonly use them to address the burdens that growth places on schools, transportation, water, and sewers. But exactions almost never address energy needs, even though local land use decisions can create signficant externalities for the power grid and for energy resources.

This Article proposes a novel reform to land use and energy law: "energy exactions"-understood as local fees or timing limits aimed at addressing the energy impacts of new residential or commercial development. Energy exactions …

The State Of Exactions, Timothy M. Mulvaney

Faculty Scholarship

In Koontz v. St. Johns River Water Management District, the Supreme Court slightly expanded the range of circumstances involving conditional land use permits in which heightened judicial scrutiny is appropriate in a constitutional “exaction” takings case. In crafting a vision of regulators as strategic extortionists of private property interests, though, Koontz prompted many takings observers to predict that the case would provide momentum for a more significant expansion of such scrutiny in takings cases involving land use permit conditions moving forward, and perhaps even an extension into other regulatory contexts, as well.

Five years on, this Article evaluates the extent …

The Short-Term Rental Economy In Rural Maine Communities: An Opportunity For Economic Growth Instead Of A Target For Regulation, Nicholas E. Anania

Maine Law Review

State and local governments across the country are grappling with the rise of short-term housing rentals and how to enact effective regulation regarding their use. The increase of short-term rentals (STRs) is almost entirely the result of online platforms that make STRs easy, efficient, and accessible. While STRs undoubtedly have positive economic outcomes for both property owners and local economies, there are also many negative repercussions which must be effectively regulated. Regulation in this area reflects differing priorities and viewpoints of states and municipalities. Specifically, rural Maine municipalities, many of which are popular seasonal destinations, face not only the challenges …

Conservation, Regionality, And The Farm Bill, Jess R. Phelps

Maine Law Review

Over the past several Farm Bills, there has been a somewhat subtle shift in program design to better incorporate regional perspectives/localized areas of conservation concern into national conservation program delivery. The purpose of this Article is to specifically explore the various roles that regional considerations play in existing Farm Bill conservation programs and also consider whether further developments in this direction could result in more flexible program delivery, more effective partnerships, and ultimately, better conservation outcomes. To this end, section II will provide an overview of the history of the Farm Bill, from its origins to the emergence of a …

Regulating Short-Term Rentals In California's Costal Cities: Harmonizing Local Ordinances With The California Costal Act, Lucy Humphreys

Loyola of Los Angeles Law Review

In the past several years, local governments throughout California have debated and implemented new ordinances in order to regulate short-term rentals, such as those listed on peer-to-peer vacation rental platforms like Airbnb.California’s coastal cities face distinct challenges whentrying to regulate short-term rentals due to the popularity of short-term rentals in their jurisdictions, rising housing prices along the coast, and California Coastal Act requirements. One of the primary goals of the California Coastal Act is to maximize public access to the coast. This Article explores the interplay between state policy embodied by the Coastal Act and the ordinances passed by local …

2002 - North Monterey County Comprehensive Water Resources Management Plan

Monterey County Water Resources Agency Water Reports

North Monterey County experiences severe water supply and quality problems including falling water levels, seawater intrusion, and nitrate contamination. The region is in a significant state of overdraft where current demands greatly exceed the annual level of recharge. Without increased supplies, dramatic changes need to occur to the North County land use pattern to reduce demand. The Comprehensive Water Resources Management Plan combines water conservation, water supply, water quality, and land use actions into comprehensive policy alternatives. It is clear, however, that capital facilities are necessary if the problem is to be solved.

The study area overlies a portion of …

Calming Troubled Waters: Local Solutions, Part I, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

In 1861, the Ohio Supreme Court adopted the Absolute Use Rule to govern groundwater, essentially allowing landowners its unencumbered use. The opinion noted that the behavior of subterranean water was “occult and mysterious” and that it was beyond the competence of judges to determine its appropriate use. The Ohio court reversed course in 1984 and adopted the Reasonable Use Rule. By then, scientific knowledge had advanced to the point that the interconnected movement of water was more readily discoverable. The court noted that a primary goal of water law should be to conform to hydrologic fact. This Article explores the …

Just Transitions, Ann M. Eisenberg

Faculty Publications

The transition to a low-carbon society will have winners and losers as the costs and benefits of decarbonization fall unevenly on different communities. This potential collateral damage has prompted calls for a “just transition” to a green economy. While the term, “just transition,” is increasingly prevalent in the public discourse, it remains under-discussed and poorly defined in legal literature, preventing it from helping catalyze fair decarbonization. This Article seeks to define the term, test its validity, and articulate its relationship with law so the idea can meet its potential.

The Article is the first to disambiguate and assess two main …

Energy Exactions, Jim Rossi, Christopher Serkin

Vanderbilt Law School Faculty Publications

Exactions are demands levied on residential or commercial developers to force them, rather than a municipality, to bear the costs of new infrastructure. Local governments commonly use them to address the burdens that growth places on schools, transportation, water, and sewers. But exactions almost never address energy needs, even though local land use decisions can create signficant externalities for the power grid and for energy resources.

This Article proposes a novel reform to land use and energy law: "energy exactions"-understood as local fees or timing limits aimed at addressing the energy impacts of new residential or commercial development. Energy exactions …

A Common Law Of Zoning, Michael Allan Wolf

UF Law Faculty Publications

This Article for the first time identifies a common law of zoning, describes the typology of this essential and overlooked element of American land use law, and establishes the historical and structural context for its pervasive set of rules and principles. Over the past 100 years, American judges, filling in the gaps and resolving the ambiguities of a surprisingly uniform set of state enabling statutes, have produced this body of common law. The story will take the reader to Iowa cornfields that surround an iconic baseball diamond; to a federal agency that gave an important impetus to the nationwide adoption …

Welcome To Normalton: Leveraging Effective E-Learning Principles For Adult Learners, Robert L. Moore

STEMPS Faculty Publications

This design case details the critical design decisions used in the development of an e-learning module library for North Carolina local government officials focused on land use regulations. These modules cover topics from an introduction to land use regulations, to evidentiary hearing conduct guidelines, defining vested rights, and explaining how to adopt and amend an ordinance. This project was in response to the North Carolina League of Municipalities (NCLM) members’ increased requests for training in this subject area. This organization requested the assistance of the two faculty members at the University of North Carolina at Chapel Hill School of Government …

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

Scholarly Works

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 …

Divergence In Land Use Regulations And Property Rights, Christopher Serkin

Vanderbilt Law School Faculty Publications

For the past century, property rights-and in particular development rights-have been circumscribed and largely defined by comprehensive local land use regulations. As any student of land use knows, zoning across the country shares a common DNA. Despite their local character, zoning limits on development rights in almost every American jurisdiction share a deep family resemblance borne from their common origin in the Standard Zoning Enabling Act ("SZEA"). Zoning for much of the twentieth century therefore converged around a core goal of separating incompatible uses of land as a kind of ex ante nuisance prevention. Of course, zoning went much farther …

The National Flood Insurance Program At Fifty: How The Fifth Amendment Takings Doctrine Skews Federal Flood Policy, Christine A. Klein

UF Law Faculty Publications

The National Flood Insurance Program (“NFIP”) of 1968 marked its fiftieth anniversary in 2018. Despite the program’s long history, few appreciate that the NFIP was never intended as a permanent federal subsidy for flood-prone properties along rivers and coastlines abandoned as commercially unviable by the private insurance industry. Instead, Congress provided flood insurance at below-cost rates as only an interim solution until state and local governments enacted permanent self-help land-use regulations that would restrict development in risky areas. By encouraging local governments to enact floodplain regulations, Congress intended to shift the costs of development in known flood areas back to …

Martin V. United States, Mitch L. Werbell V

Public Land & Resources Law Review

In Martin v. United States, the Federal Circuit Court dismissed a Fifth Amendment regulatory takings and exaction claim for want of ripeness when the claimant failed to apply for a permit, which would have allowed for an assessment of the cost of compliance with governmentally imposed requirements. By finding the claim unripe, the court stood firm on the historical view that federal courts may only adjudicate land-use regulatory takings and inverse condemnation claims on the merits after a regulating entity has made a final decision. However, jurisprudential evolution of the ripeness doctrine and judicial review of takings claims may …

Populist Placemaking: Grounds For Open Government-Citizen Spatial Regulating Discourse, Michael N. Widener

West Virginia Law Review

No abstract provided.

Local Government Plan Consistency And Citizen Standing: Renard In The Chicken Coop?, Terrell K. Arline, David M. Layman, Carl Coffin

Florida State University Journal of Land Use and Environmental Law

No abstract provided.