Land Use Law Commons^™

Slides: What's In A Name? The Story Of The Utah Wilderness Reinventory, James R. Rasband

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

Presenter: James R. Rasband, J. Reuben Clark Law School, Brigham Young University

23 slides

What’S In A Name? The Story Of The Utah Wilderness Reinventory, James R. Rasband

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

14 pages.

Includes bibliographical references

"James R. Rasband, Associate Dean of Research & Academic Affairs and Professor of Law, J. Reuben Clark Law School, Brigham Young University"

Some Preliminary Thoughts On Contrasts And Convergence In Environmental And Natural Resources Law, Karin P. Sheldon

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

16 pages.

Includes bibliographical references

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 …

A Warning To States — Accepting This Invitation May Be Hazardous To Your Health (Safety, And Public Welfare): An Analysis Of Post-Kelo, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

Focusing on Delaware, this article will argue that the United States Supreme Court's decision in Kelo v. New London gave state legislatures an open invitation to shape their public use frameworks, but their responses must be measured and well-reasoned because the consequences of reactionary legislation may put a stranglehold on state and local governments trying to exercise eminent domain for unanimously accepted public uses. Part I will trace the most pertinent federal jurisprudence through Kelo. Part II will survey Delaware’s public use jurisprudence. Part III will introduce the Delaware General Assembly’s legislative response to Kelo. Part IV will serve as …

Jutstice Kennedy And The Environment: Property, States' Rights, And The Search For Nexus, Michael Blumm

ExpressO

Justice Anthony Kennedy, now clearly the pivot of the Roberts Court, is the Court’s crucial voice in environmental and natural resources law cases. Kennedy’s central role was never more evident than in the two most celebrated environmental and natural resources law cases of 2006: Kelo v. New London and Rapanos v. U.S., since he supplied the critical vote in both: upholding local use of the condemnation power for economic development under certain circumstances, and affirming federal regulatory authority over wetlands which have a significant nexus to navigable waters. In each case Kennedy’s sole concurrence was outcome determinative.

Justice Kennedy has …

The Status Of Nollan V. California Coastal Commission And Dolan V. City Of Tigard After Lingle V. Chevron U.S.A., Inc., 40 J. Marshall L. Rev. 539 (2007), David L. Callies, Christopher T. Goodin

UIC Law Review

No abstract provided.

How Do You Solve A Problem Like In Kelo?, 40 J. Marshall L. Rev. 609 (2007), Debra Pogrund Stark

UIC Law Review

No abstract provided.

Deconstructing Lingle: Implications For Takings Doctrine, 40 J. Marshall L. Rev. 573 (2007), Dale A. Whitman

UIC Law Review

No abstract provided.

From Penn Central To Lingle: The Long Backwards Road, 40 J. Marshall L. Rev. 593 (2007), Richard A. Epstein

UIC Law Review

No abstract provided.

Planning Ahead: Consistency With A Comprehensive Land Use Plan Yields Consistent Results For Municipalities, Nathan Blackburn

Oklahoma Law Review

No abstract provided.

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Privatizing Eminent Domain: The Delegation Of A Very Public Power To Private, Non-Profit And Charitable Corporations, Asmara Tekle Johnson

ExpressO

In an age of privatization of many governmental functions such as health care, prison management, and warfare, this Article poses the question as to whether eminent domain should be among them. Unlike other privatized functions, eminent domain is a traditionally governmental and highly coercive power, akin to the government’s power to tax, to arrest individuals, and to license. It is, therefore, a very public power.

In particular, the delegation of this very public power to private, non-profit and charitable corporations has escaped the scrutiny that for-profit private actors have attracted in the wake of the U.S. Supreme Court’s decision in …

The Restitutionary Approach To Just Compensation, Tim Kowal

ExpressO

In the wake of the Court’s near-total refusal to impose a check on the legislature through the public use clause, this paper discusses whether any confidence in our property rights be restored through the just compensation clause in the form of restitutionary compensation, rather than the traditional, and myopic, “fair market value” standard. This paper discusses the historical presumption against restitution, elucidated through Bauman v. Ross over a century ago, is founded upon (1) the idea that the public should not be made to pay any more than necessary to effect a public project, and (2) the idea that the …

Regulating Land Use In A Constitutional Shadow: The Institutional Contexts Of Exactions, Mark Fenster

ExpressO

In a refreshingly clear and comprehensive decision issued towards the end of its 2004 Term, the Supreme Court explained in Lingle v. Chevron (2005) that the Takings Clause requires compensation only for the effects of a regulation on an individual’s property rights. Under the substantive due process doctrine, by contrast, courts engage in a deferential inquiry into both a regulation’s validity and the means by which the regulation attempts to meet the government’s objective. Lingle’s explanation appeared to cast doubt on the doctrinal foundation and reach of Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard (1994), …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

A Modern Disaster: Agricultural Land, Urban Growth, And The Need For A Federally Organized Comprehensive Land Use Planning Model, Jess M. Krannich

ExpressO

No abstract provided.

Who Will Redevelop Redevelopment?, Tim Kowal

ExpressO

Although California’s redevelopment law is among the strictest in the nation, from a layperson’s perspective, redevelopment agencies (RDAs) appear to be no more obstructed from their projects in California as they would be in, say, Connecticut. This article addresses a sort of “tragedy of the commons” problem applied to redevelopment: If redevelopment powers are “over-harvested” such as to instigate serious political revolt against them, they will become barren and useless, and will no longer be available for the purposes for which they were intended and for which they are still needed. Even assuming that redevelopment is efficacious and necessary, redevelopment …

Zoning And Eminent Domain Under The New Minimum Scrutiny, John H. Ryskamp

ExpressO

Recently the Supreme Court has made it clearer that minimum scrutiny is a factual analysis. Whether in any government action there is a rational relation to a legitimate interest is a matter of determining whether there is a policy maintaining important facts. This has come about in the Court’s emerging emphasis on developing fact-based criteria for determining government purpose. Thus, those who want to affect zoning and eminent domain outcomes should look to what the Court sees as important facts, and whether government action is maintaining those facts with its proposed land use or eminent domain action.

Finding New Constitutional Rights Through The Supreme Court’S Evolving “Government Purpose” Test Under Minimum Scrutiny, John H. Ryskamp

ExpressO

By now we all are familiar with the litany of cases which refused to find elevated scrutiny for so-called “affirmative” or “social” rights such as education, welfare or housing: Lindsey v. Normet, San Antonio School District v. Rodriguez, Dandridge v. Williams, DeShaney v. Winnebago County. There didn’t seem to be anything in minimum scrutiny which could protect such facts as education or housing, from government action. However, unobtrusively and over the years, the Supreme Court has clarified and articulated one aspect of minimum scrutiny which holds promise for vindicating facts. You will recall that under minimum scrutiny government’s action is …

Using Capture Theory And Chronology In Eminent Domain Proceedings, John H. Ryskamp

ExpressO

Capture theory--in which private purpose is substituted for government purpose--sheds light on a technique which is coming into greater use post-Kelo v. New London. That case affirmed that eminent domain use need only be rationally related to a legitimate government purpose. Capture theory focuses litigators' attention on "government purpose." That is a question of fact for the trier of fact. This article shows how to use civil discovery in order to show the Court that private purpose has been substituted for government purpose. If it has, the eminent domain use fails, because the use does not meet minimum scrutiny. This …

The "Public Use" Requirement In Eminent Domain Law: A Rationale Based On Secret Purchases And Private Influence, Daniel B. Kelly

ExpressO

This article provides a rationale for understanding and interpreting the “public use” requirement within eminent domain law. The rationale is based on two factors. First, while the government often needs the power of eminent domain to avoid the problem of strategic holdout, private parties are usually able to purchase property through secret buying agents. The availability of these buying agents makes the use of eminent domain for private parties unnecessary (and indeed, undesirable). The government, however, is ordinarily unable to make secret purchases because its plans are subject to democratic deliberation and known in advance. Second, while the use of …

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

ExpressO

The three takings decisions that the Supreme Court issued at the end of its October 2004 Term marked a stunning reversal of the Court’s efforts the past three decades to use the Takings Clause to define a set of constitutional property rights. The regulatory takings doctrine, which once loomed as a significant threat to the modern regulatory state, now appears after Lingle v. Chevron to be a relatively tame, if complicated, check on exceptional instances of regulatory abuse. At the same time, the Public Use Clause, formerly an inconsequential limitation on the state’s eminent domain authority, now appears ripe for …

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

Scholarly Works

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.

Section 1983 Cases In The October 2004 Term, Martin A. Schwartz

Touro Law Review

No abstract provided.

Recent Developments In The Law Of The "Taking Issue", John C. Keene

ExpressO

No abstract provided.

Taking The Stand: The Lessons Of The Three Men Who Took The Japanese American Internment To Court, Lorraine K. Bannai

Seattle Journal for Social Justice

No abstract provided.

Fallout From Kelo: Ruling Spurs Legislative Proposals To Limit Takings, John R. Nolon, Jessica A. Bacher

Elisabeth Haub School of Law Faculty Publications

The 2005 Supreme Court decision in Kelo v. City of New London has galvanized much unwarranted controversy over governmental authority to condemn private property. A legislative reaction throughout the country has focused on limiting governmental condemnation authority in order to encourage economic development. This article discusses some of the specific pros and cons of reactionary legislation by both the federal and New York legislature.

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

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.