Land Use Law Commons^™

Citizens To Preserve Overton Park V. Volpe, Peter L. Strauss

Faculty Scholarship

This essay is one of a series destined to appear in a Foundation Press book, Administrative Law Stories, now set for publication in the fall of 2005. The decision in Citizens to Preserve Overton Park v. Volpe represents a transition from political to judicial controls over decisions broadly affecting a wide range of community interests. Unmistakable and dramatic as it is, that transition is not universally applauded. But the transition was striking and quick. The late sixties and early seventies saw an explosion of new national legislation on social and environmental issues, that often provided explicitly or implicitly for citizen …

Private Property And The Politics Of Environmental Protection, Thomas W. Merrill

Faculty Scholarship

Private property plays two opposing roles in stories about the environment. In the story favored by most environmentalists, private property is the bad guy. It balkanizes an interconnected ecosystem into artificial units of individual ownership. Owners of these finite parcels have little incentive to invest in ecosystem resources and every incentive to dump polluting wastes onto other parcels. Only by relocating control over natural resources in some central authority like the federal government, can we make integrated decisions designed to preserve the health of the entire ecosystem. For these traditional environmentalists, private property is the problem; public control is the …

The Community Economic Development Movement, William H. Simon

Faculty Scholarship

Within a five-minute walk of the Stony Brook subway stop in the Jamaica Plain section of Boston, you can encounter the following:

• A renovated industrial site of about five acres and sixteen buildings that serves as a business incubator for small firms that receive technical assistance from the Jamaica Plain Neighborhood Development Corporation (JPNDC), a nonprofit community development corporation, which is also housed there. Known as the Brewery after its former proprietor, a beer-maker, the complex is owned by a nonprofit subsidiary of JPNDC.
• A 44,000-foot "Stop & Shop" supermarket. The market opened in 1991 after years in which the …

Smart Growth And American Land Use Law, Richard Briffault

Faculty Scholarship

The smart growth movement that emerged in the late 1990's seeks to change the way Americans think about growth, development, and urban planning. From a legal perspective, smart growth directly challenges several fundamental aspects of American land use law.

Substantively, smart growth attacks two goals that have been hallmarks of American land use law for more than three-quarters of a century: (1) decongestion, that is, reducing population density and dispersing residents over wider areas; and (2) the separation of different land uses from each other. Both decongestion and separation of uses were enshrined in the Standard Zoning Enabling Act …

Three Issues For The City In The 21st Century, Richard Briffault

Faculty Scholarship

The title for this year’s program of the Section on Urban, State and Local Government Law of the Association of American Law Schools is The City in the 21st Century. These three articles provide a stimulating introduction to three issues that are likely to be central to the study of the city in the twenty-first century-as they were in the twentieth century and in the nineteenth century: the interplay of local and regional forces in land development, the battles among interest groups to control city hall, and the role of local government in promoting local economic development. These issues are …

The Victims Of Nimby, Michael B. Gerrard

Faculty Scholarship

It is a syndrome, a pejorative, and an acronym of our times: NIMBY, or Not In My Back Yard. It has a political arm, NIMTOO (Not In My Term Of Office), an object of attack, LULUs (Locally Undesired Land Uses), and an extreme form, BANANA (Build Absolutely Nothing Anywhere Near Anyone). Acronyms aside, however, the question remains as to whether or not NIMBY has victims. Is anyone hurt by NIMBY?

Many leading voices in the environmental justice movement believe that minority communities are victims of NIMBY. For example, Professor Robert D. Bullard has written that "[t]he cumulative effect of not-in-my-backyard …

A Constitutional Right Of Religious Exemption: An Historical Perspective, Philip A. Hamburger

Faculty Scholarship

Did late eighteenth-century Americans understand the Free Exercise Clause of the United States Constitution to provide individuals a right of exemption from civil laws to which they had religious objections? Claims of exemption based on the Free Exercise Clause have prompted some of the Supreme Court's most prominent free exercise decisions, and therefore this historical inquiry about a right of exemption may have implications for our constitutional jurisprudence. Even if the Court does not adopt late eighteenth-century ideas about the free exercise of religion, we may, nonetheless, find that the history of such ideas can contribute to our contemporary analysis. …

Our Localism: Part Ii – Localism And Legal Theory, Richard Briffault

Faculty Scholarship

A central theme in the literature of local government law is that local governments are powerless, incapable of initiating programs on behalf of their citizens or of resisting intrusions by the state. How can scholars make this claim when under state legislation and federal and state judicial decisions local autonomy plays a critical role in the law of school finance, land-use regulation and local government formation and preservation? As we have seen, a partial response turns on the varying assessments of the nature of power. But much of the answer also has to do with differing assumptions about the underlying …