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Articles 721 - 750 of 904
Full-Text Articles in Land Use Law
Despite Alarmists, 'Kelo' Decision Protects Property Owners And Serves The General Good, John R. Nolon, Jessica A. Bacher
Despite Alarmists, 'Kelo' Decision Protects Property Owners And Serves The General Good, John R. Nolon, Jessica A. Bacher
Elisabeth Haub School of Law Faculty Publications
The United States Supreme Court’s decision in Kelo v. City of New London, has spurred national debate, as many people portray the court’s decision as a damaging blow to private property rights. In Kelo, the court confirmed local government’s ability to condemn property in an area designated as blighted by the state, in order to encourage economic development. This article highlights several positive examples of this sort of condemnation in New York case law, where the public interest was served by economic redevelopment. The article goes further, to distinguish several legal decisions from Kelo, where courts invalidated condemnations upon a …
'Takings' Clarified: U.S. Supreme Court Provides Clear Direction, John R. Nolon, Jessica A. Bacher
'Takings' Clarified: U.S. Supreme Court Provides Clear Direction, John R. Nolon, Jessica A. Bacher
Elisabeth Haub School of Law Faculty Publications
The United States Supreme Court holding in Lingle v. Chevron U.S.A., Inc. clarified years of takings jurisprudence and overturned a controversial decision in the case of Agins v. City of Tiburon. This article discusses how the Lingle court denounced the “substantially advances” test created in Agins, as a due process inquiry rather than a proper takings test. The Lingle court instead opted to create a clear four-category paradigm for takings cases, which focuses on the burden the government places on private property rights in order to distinguish takings categories.
Michigan Supreme Court Overturns Landmark Eminent Domain Case, Patricia E. Salkin
Michigan Supreme Court Overturns Landmark Eminent Domain Case, Patricia E. Salkin
Scholarly Works
No abstract provided.
Court Reviews: The Takings Doctrine And Exactions, John R. Nolon, Jessica A. Bacher
Court Reviews: The Takings Doctrine And Exactions, John R. Nolon, Jessica A. Bacher
Elisabeth Haub School of Law Faculty Publications
Exactions occur when applications to develop parcels of land require governmental permission, and that permission is conditioned upon dedicating part of the land to public use. Exactions have long been challenged as regulatory takings, and both federal and state courts look at these types of regulations with a heightened level of scrutiny due to the nature of exactions to remove a crucial element from the bundle of property rights associated with ownership of real property: the right to exclude. This column discusses a recent example of exactions jurisprudence applied in New York and goes on to compare that decision in …
The Federalist Dimension Of Regulatory Takings Jurisprudence, Stewart E. Sterk
The Federalist Dimension Of Regulatory Takings Jurisprudence, Stewart E. Sterk
Articles
Conventional wisdom teaches that the Supreme Court's takings doctrine is a muddle. Appearances, however, are deceiving. The "property" protected by the Takings Clause is defined not by a single sovereign, but by the legislative enactments and judicial pronouncements of fifty separate states. As a result, federalism concerns - underappreciated in the takings literature - do and should play an important role in shaping the Court's takings doctrine. In particular, these concerns make it inappropriate for the Court to use the Takings Clause as a vehicle for articulating a comprehensive theory of the limits on government power to regulate land. This …
The Police Power Revisited: Phantom Incorporation And The Roots Of The Takings Muddle, Bradley C. Karkkainen
The Police Power Revisited: Phantom Incorporation And The Roots Of The Takings Muddle, Bradley C. Karkkainen
ExpressO
This article traces the roots of the current muddle in the Supreme Court’s regulatory takings jurisprudence to an ill-considered “phantom incorporation” holding in Penn Central v. New York (1978), the seminal case of the modern regulatory takings era. The Penn Central Court anachronistically misread a long line of Fourteenth Amendment Substantive Due Process cases as Fifth Amendment Takings Clause cases, misattributing to Chicago Burlington & Quincy v. Chicago (1897) (“Chicago B & Q”) the crucial holding that the Fifth Amendment Takings Clause applied to the states. Like other cases of its era, Chicago B & Q was decided strictly on …
The Inevitable Failure Of Nuisance-Based Theories Of The Takings Clause: A Reply To Professor Claeys, Stewart E. Sterk
The Inevitable Failure Of Nuisance-Based Theories Of The Takings Clause: A Reply To Professor Claeys, Stewart E. Sterk
Articles
Rejecting the proposition (advanced by Professor Eric Claeys) that the Rehnquist Court's conservatives have missed an opportunity to transform takings law, this commentary demonstrates that a nuisance-based theory cannot provide a comprehensive basis for takings clause jurisprudence. The commentary further establishes that no plausible vision of originalism supports a nuisance based theory, and concludes by arguing that judicial scrutiny of state and local land use practices is less deferential than it was at the inception of the Rehnquist Court.
Camping In Lake Tahoe: Does A Temporary Deprivation Of All Beneficial Use Of Land Justify Rejection Of The Categorical Lucas Rule?, Akke Levin
Nevada Law Journal
No abstract provided.
The Property Clause And New Federalism, Allison H. Eid
The Property Clause And New Federalism, Allison H. Eid
University of Colorado Law Review
No abstract provided.
Exacting Tests: Determining When A Taking Is Unconstitutional, John R. Nolon, Jessica A. Bacher
Exacting Tests: Determining When A Taking Is Unconstitutional, John R. Nolon, Jessica A. Bacher
Elisabeth Haub School of Law Faculty Publications
In the past, courts generally deferred to legislatures when determining whether a law constitutes a regulatory taking. However, not all regulations are treated equal, and different tests apply to different types of regulations. Types of land use actions with a lower threshold of constitutionally include exactions, and regulations that apply fixed fee schedules to private landowners. This article combs both federal and New York law to come to the clear determination that universal standards exist for each type of regulation.
Takings Formalism And Regulatory Formulas: Exactions And The Consequences Of Clarity, Mark Fenster
Takings Formalism And Regulatory Formulas: Exactions And The Consequences Of Clarity, Mark Fenster
ExpressO
A vocal minority of the U.S. Supreme Court recently announced its suspicion that lower courts and state and local administrative agencies are systematically ignoring constitutional rules intended to limit, through heightened judicial review, exactions as a land use regulatory tool. Exactions are the concessions local governments require of property owners as conditions for the issuance of the entitlements that enable the intensified use of real property. In two cases decided over the past two decades, Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard (1994), the Court has established under the Takings Clause a logic and metrics …
2002 U.S. Supreme Court Term Includes Zoning Referendum Case, Patricia E. Salkin
2002 U.S. Supreme Court Term Includes Zoning Referendum Case, Patricia E. Salkin
Scholarly Works
No abstract provided.
The Valuation Of An Experience: A Study In Land Use Regulation, 36 J. Marshall L. Rev. 779 (2003), Bob Madden
The Valuation Of An Experience: A Study In Land Use Regulation, 36 J. Marshall L. Rev. 779 (2003), Bob Madden
UIC Law Review
No abstract provided.
U.S. Supreme Court Hands Two Big Wins To Municipal Governments In 2001-2002 Term, Patricia E. Salkin
U.S. Supreme Court Hands Two Big Wins To Municipal Governments In 2001-2002 Term, Patricia E. Salkin
Scholarly Works
No abstract provided.
Religious Land Use Jurisprudence: The Negative Ramifications For Religious Activities In Washington After Open Door Baptist Church V. Clark County, Beth Prieve
Seattle University Law Review
Part II of this Note provides a history of religious land use jurisprudence in Washington. This part addresses growth management laws generally, and where these laws cross paths with constitutional guarantees of the free exercise of religion. Part III focuses on the Washington Supreme Court's Open Door decision, separately addressing both the majority opinion and the dissent. Part IV illustrates how the Washington Supreme Court misapplied Washington's religious freedom test in Open Door and significantly shifted religious land use jurisprudence. Part IV further discusses how this shift may include Washington's adoption of the lower federal standard and elaborates upon the …
Sprawl, Growth Boundaries And The Rehnquist Court, Michael Lewyn
Sprawl, Growth Boundaries And The Rehnquist Court, Michael Lewyn
Scholarly Works
The most stringent anti-sprawl measure adopted by any American state is Oregon's urban growth boundary (UGB) program. Urban growth boundaries are lines on maps within which high-density development is encouraged, and beyond which such development is generally forbidden. Outside the boundary, rural industries (such as logging) and open space are promoted. This Article focuses on three issues: whether UGBs are constitutional under recent Supreme Court case law, (2) whether the UGB has in fact saved Portland (Oregon's largest city) from the social problems caused by sprawl, and (3) whether the side effects of UGBs make them a cure worse than …
The Limits Of Localism, Richard C. Schragger
The Limits Of Localism, Richard C. Schragger
Michigan Law Review
In Chicago v. Morales, the Supreme Court struck down Chicago's Gang Congregation Ordinance, which barred "criminal street gang members from loitering with one another or with other persons in any public place." The stated purpose of the ordinance was to wrest control of public areas from gang members who, simply by their presence, intimidated the public and established control over identifiable areas of the city, namely certain inner-city streets, sidewalks, and corners. The ordinance required that police officers determine whether at least one of two or more persons present in a public place were members of a criminal street gang …
Supreme Court Takes A Look At Takings, John R. Nolon
Supreme Court Takes A Look At Takings, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
In the case of Pazzalo v. Rhode Island the United States Supreme Court reversed a determination by the Rhode Island Supreme Court which held that land owners had no right to sue for a regulatory taking if the land owners purchased title to land on which a preexisting restriction existed. Before this case, the rule in New York also precluded landowners from challenging land use regulations that existed at the time they purchased land. After holding that a regulatory takings challenge existed, the Supreme Court remanded the case back to Rhode Island to decide whether the preexisting regulations affected the …
Just And Unjust Compensation: The Future Of The Navigational Servitude In Condemnation Cases, Alan T. Ackerman, Noah Eliezer Yanich
Just And Unjust Compensation: The Future Of The Navigational Servitude In Condemnation Cases, Alan T. Ackerman, Noah Eliezer Yanich
University of Michigan Journal of Law Reform
In 1967, the U.S. Supreme Court, in United States v. Rands, expanded the navigational servitude doctrine governing the federal government's power over land adjoining a navigable waterway by severely qualifying the government's Fifth Amendment obligation to compensate the landowner. This Article addresses the issue in the following ways: Part I surveys Congress' power to regulate navigable waters under the Commerce Clause. Part II summarizes the development of the navigational servitude doctrine and some of its inhibitory effects on waterfront development, especially under Rands. It explains the fundamental unfairness of the Rands principle and demonstrates why this constitutional rule …
Should Lucas V. South Carolina Coastal Council Protect Where The Wild Things Are? Of Beavers, Bob-O-Links, And Other Things That Go Bump In The Night, Hope M. Babcock
Should Lucas V. South Carolina Coastal Council Protect Where The Wild Things Are? Of Beavers, Bob-O-Links, And Other Things That Go Bump In The Night, Hope M. Babcock
Georgetown Law Faculty Publications and Other Works
Lucas v. South Carolina Coastal Council is one of several recent Supreme Court decisions in which the Court used the Just Compensation Clause as a "weapon of reaction" to strike down an offending land use restriction. In Lucas, the target of the Court's animus was a state law prohibiting a landowner from developing two beachfront lots. The South Carolina Supreme Court upheld the law as a legitimate exercise of the State's police power to protect the public from harm in the face of a takings challenge by the landowner. The U.S. Supreme Court rejected the South Carolina court's talismatic …
Local Government Land Use Restrictions And Selected First Amendment Issues, Barbara Jo Nelson
Local Government Land Use Restrictions And Selected First Amendment Issues, Barbara Jo Nelson
LLM Theses and Essays
A local government's power to enact zoning regulations falls within the general power to provide for the health, safety, and welfare of its citizenry. This thesis addresses a few selected First Amendment issues as they apply to zoning and land use restrictions in Georgia. Free speech review of zoning ordinances applies to zoning for adult sex businesses, such as adult book stores and cinemas. The First Amendment balancing test that is applicable to adult entertainment ordinances is discussed in Chapter One. The free speech impact of restrictions on signs and billboards is discussed in Chapter Two. Finally, in Chapter Three, …
New York City Zones Out Free Expression, Martin A. Schwartz
New York City Zones Out Free Expression, Martin A. Schwartz
Scholarly Works
No abstract provided.
Equal Protection, Court Of Appeals: Trustees Of Union College V. Schenectady City Council
Equal Protection, Court Of Appeals: Trustees Of Union College V. Schenectady City Council
Touro Law Review
No abstract provided.
Governmental Takings, Court Of Appeals: Anello V. Zoning Board Of Appeals Of The Village Of Dobbs Ferry
Touro Law Review
No abstract provided.
Land Use Regulation And The Takings Clause: How Much Use Must An Owner Lose Before Being Entitled To Compensation Because The Government Has Taken The Property?, Patrick C. Mcginley
Land Use Regulation And The Takings Clause: How Much Use Must An Owner Lose Before Being Entitled To Compensation Because The Government Has Taken The Property?, Patrick C. Mcginley
Law Faculty Scholarship
No abstract provided.
Supreme Court, New York County Stringfellow's Of New York Ltd. V. City Of New York
Supreme Court, New York County Stringfellow's Of New York Ltd. V. City Of New York
Touro Law Review
No abstract provided.
Determining Ripeness Of Substantive Due Process Claims Brought By Landowners Against Local Governments, David S. Mendel
Determining Ripeness Of Substantive Due Process Claims Brought By Landowners Against Local Governments, David S. Mendel
Michigan Law Review
Landowners who sustain economic harm from arbitrary and capricious applications of land use regulations may sue the local government entities responsible for applying those regulations under 42 U.S.C. § 1983, alleging that the local government entities deprived them of substantive due process in violation of the Fourteenth Amendment. A landowner who brings this claim - an "as-applied arbitrary and capricious substantive due process" claim - may in appropriate cases seek declaratory and injunctive relief, damages, and attorney's fees. Despite controversy among courts and commentators over both the definition of property interests protected by the Due Process Clause and the standard …
Takings In The Court Of Federal Claims: Does The Court Make Takings Policy In Hage?, Danielle M. Stager
Takings In The Court Of Federal Claims: Does The Court Make Takings Policy In Hage?, Danielle M. Stager
University of Richmond Law Review
In the eleven western states, almost half of the land is federally owned and a large percentage of that federal land is used for grazing privately-owned domestic livestock. The Department of the Interior estimates that permitted grazing occurs on thirty-six percent of federal land, but this percentage is much higher in the areas containing more federal rangeland. In 1990, the eleven western states had approximately seventeen million beef cattle and 102,800 beef producers. Roughly eighteen percent of those beef producers had federal grazing permits, but in some states that percentage was much higher. For example, eighty-eight percent of the cattle …
Residential Zoning Regulations And The Perpetuation Of Apartheid, Janai S. Nelson
Residential Zoning Regulations And The Perpetuation Of Apartheid, Janai S. Nelson
Faculty Publications
In January of 1996, the South African Parliament ratified the long-awaited Land Reform (Labour Tenants) Bill, which has engendered heated controversy since its inception. For many, the success of the Land Reform Bill portends the economic and political future of South Africa and is a gauge of apartheid's vital signs. Without land, most South Africans would remain in the same impoverished and disenfranchised conditions that they were in under the apartheid regime. With land, however, South Africans have an improved chance to achieve economic equality. Land reform and land use have become particularly crucial issues in light of President Mandela's …
Reformulating The New York City Landmarks Preservation Law's Financial Hardship Provision: Preserving The Big Apple, Cindy Moy
Cardozo Arts & Entertainment Law Journal
No abstract provided.