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Articles 151 - 178 of 178
Full-Text Articles in Land Use Law
Regulatory Takings: Analyzing Governmental Invasions Of Private Property Rights, John R. Nolon
Regulatory Takings: Analyzing Governmental Invasions Of Private Property Rights, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
The complicated arena of takings jurisprudence has confused lawyers, scholars, and courts for well over a century. Generally, a taking is deemed to have occurred when a governmental body takes a property right away from a private individual without providing just compensation. However, courts are unlikely to find that a regulation constitutes a taking if the regulation benefits the greater good of the public. Takings come in several varieties, most notably, “invasions” which include physical occupation and “total takings”, which deprive landowners of all economic value of their property. This article discusses how takings law has evolved into its present …
Intermunicipal Compacts; Regional Land Use Strategies Work At The Grassroots Level, John R. Nolon
Intermunicipal Compacts; Regional Land Use Strategies Work At The Grassroots Level, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
Regional land use control has long been a difficult issue in New York as most localities refuse to acknowledge responsibility for problems extending beyond their own borders. New York law enables municipalities to cooperate among one another to devise improved solutions to land use, and other issues. This article studies the state history of regional land use and provides several successful examples of how grassroots regionalism can change the way municipal governments think about land use and solve problems.
Grassroots Regionalism Through Intermunicipal Land Use Compacts, John R. Nolon
Grassroots Regionalism Through Intermunicipal Land Use Compacts, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
The question raised by this article is whether these statutes and this experience provide an opportunity to develop an effective regional approach fitted to the great diversity of New York's regions. It examines first the role local governments play in determining land use and then the statutes that authorize municipalities to cooperate with respect to land use planning and control. The article traces the use of this authority through two phases of evolution revealing ever more complex and potentially effective intermunicipal strategies. It ends with some thoughts as to how the state government could facilitate effective regional processes by providing …
Impact Statements: Regulations Leave Room For Delays In Seqra Proceedings, John R. Nolon
Impact Statements: Regulations Leave Room For Delays In Seqra Proceedings, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
SEQRA, the New York State Environmental Quality Review Act, creates a process whereby public actions are reviewed with the intent to mitigate adverse environmental impacts. The SEQRA process has several flexible time constraints, which through negotiation, may be extended. Issues often arise due to the discrepancies between SEQRA’s imposed time limits and the time limits imposed on land use boards to make determinations about proposed projects. The question of which time limits apply was determined in Sun Beach Real Estate Corp. v. Anderson Beach. In that case, the court held that decisions, such as site plan approval deadlines, do not …
Community Involvement: Facilitation Adds Flexibility To Land Use Decision-Making, John R. Nolon
Community Involvement: Facilitation Adds Flexibility To Land Use Decision-Making, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
SEQRA, the New York State Environmental Quality Review Act, creates a process whereby public actions are reviewed with the intent to mitigate the adverse environmental impacts of those actions. Recently decided New York case law has created flexibility in the SEQRA process by allowing developers, among others, to revamp proposed projects early in the application process in order to expedite SEQRA and save substantial amounts of money. A New York court held that using public meetings to garner information and negotiate different aspects of a proposed project, and a determination of a negative declaration (the proposed project will have no …
Wetlands Controls: Untangling An Intricate Web Of Rules, John R. Nolon
Wetlands Controls: Untangling An Intricate Web Of Rules, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
This article discusses the controversy surrounding legislation protecting wetlands, including the proposed revisions to National Wetlands Permit Number 26. Federal, state, and local governments all play a critical role in wetlands regulation. The potential of these different levels of government can be maximized through a coordinated effort, avoiding situations where applicable laws from one level of government run contrary to laws of another level of government, which often results in unnecessary litigation. This article discusses these issues, and also provides examples of intergovernmental wetlands regulation success.
Protecting Scenic Assets: Regulations Based On Study, Expert Reports And Rationality, John R. Nolon
Protecting Scenic Assets: Regulations Based On Study, Expert Reports And Rationality, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
Many municipalities are seeking to protect scenic assets through a combination of land use tools and implied police powers. These tools include comprehensive planning, subdivision and site plan approval, and in New York, execution of the State Environmental Quality Review Act (SEQRA). An example of scenic protection is North Elba, New York, where the local planning board denied Wal-Mart’s application to construct a store because the store would compromise the viewshed of a nearby mountain. This article reviews the SEQRA process in the Wal-Mart case and also reviews several other methods municipalities may use to protect environmental and aesthetic interests.
Affordable Housing: State Lacks Definition Of Need And Municipal Responsibility, John R. Nolon
Affordable Housing: State Lacks Definition Of Need And Municipal Responsibility, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
New York case law has created an obligation for communities to provide low-income housing in order to meet regional needs. The courts have found exclusionary zoning to be an unconstitutional practice, and may require communities to amend zoning ordinances that act in an exclusionary manner. The burden for plaintiffs to prove an ordinance is unconstitutionally exclusionary has been greatly impacted by the existence of regional housing studies. However, legislative progress in New York continues to lag behind surrounding states, as New Jersey and Connecticut legislatures have put statutory components in place to ease burden of proof in challenges to exclusionary …
Flexibility In The Law: Reengineering Of Zoning To Prevent Fragmented Landscapes, John R. Nolon
Flexibility In The Law: Reengineering Of Zoning To Prevent Fragmented Landscapes, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
The continued existence vernal pools and other sensitive environmental areas greatly depends upon local and state land use decisions. Practices such as Euclidian Zoning, where land uses are separated into different districts, usually fail to account for the protection of these sensitive areas. However, local governments in New York, using implied municipal power created by state legislation, have a variety of land use tools to help alleviate the destruction of environmentally sensitive areas. These tools include: overlay zoning, incentive zoning, conservation easements, floating zones, and transferring development rights. By using these tools within a well-integrated strategy, New York communities can …
The Search For A National Land Use Policy: For The Cities' Sake, Shelby D. Green
The Search For A National Land Use Policy: For The Cities' Sake, Shelby D. Green
Elisabeth Haub School of Law Faculty Publications
This article offers a survey of federal legislation and statements of policy that have shaped and directed land use and related phenomena, including the location of population, economic growth, and the character of urban development. Part I of this article provides a historical development of land use policies and laws, as well as presents academic and scientific theories supporting a national land use policy. Part II of this article describes patterns of urban and suburban growth and their consequences, such as the decline of the viability of cities and the loss of agricultural land. Part III discusses the government's spending …
Recreational Zoning: Concept Used In Inappropriate Context Raises Troubling Issues, John R. Nolon
Recreational Zoning: Concept Used In Inappropriate Context Raises Troubling Issues, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
The Second Department Appellate Division’s holding in Bonnie Briar Syndicate, Inc. v. Mamaroneck upheld local rezoning in Mamaroneck, New York, from residential to recreational use despite legal challenges that the zoning change constituted an unreasonable use of municipal police power as well as a regulatory taking. The case cited several New York precedents. Each held that so long as rezoning is in accordance with the local comprehensive plan, the zoning shall be held constitutional. However, concerns linger among private residents and local municipalities regarding recreational rezoning projects, which despite providing significant benefits for the community, must be justified by a …
City's Watershed Regulation: Localities, Landowners Object To Changes In Jurisdiction, John R. Nolon
City's Watershed Regulation: Localities, Landowners Object To Changes In Jurisdiction, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
The Watershed Rules and Regulations, created by New York City’s Department of Environmental Protection, influence several facets of law, including the ability of local governments to regulate actions such as construction. Several landowners in the affected area have taken issue with the regulation. Specifically, they challenge the constitutionality of the city’s extraterritorial control on outside municipalities because of the resulting diminutive effect of the regulations on private property values. This article discusses these issues, as well as the legal ability for potential plaintiffs to sue.
Rfra Is Not Needed: New York Land Use Regulations Accommodate Religious Use, John R. Nolon
Rfra Is Not Needed: New York Land Use Regulations Accommodate Religious Use, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
The case of City of Boerne v. Flores marked an important day in the history of the Constitution. The decision of the United States Supreme Court invalidated the Religious Freedom Restoration Act as applied to a local Texas zoning ordinance. The ordinance created a historical preservation area in an attempt to curb a church from expanding its buildings. The Supreme Court held that the Freedom Restoration Act went beyond Congress’s power because of the Act’s broad coverage and potential to intrude on laws regardless of context. This holding parallels the general application of the New York case law, which, generally …
The National Land Use Policy Act, John R. Nolon
The National Land Use Policy Act, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
Professor Miller talked about a particular road that we traveled beginning in the 1970s. Professor Robinson discussed a different road that we traveled when we adopted the National Environmental Policy Act (NEPA) in 1969. I would like to talk about the road not traveled, a road that led in the direction that Professor Miller just charted. We considered a different more comprehensive approach in the early 1970s when our national environmental policies were being formed. The time may be right to reconsider what we then narrowly rejected, both here and in Argentina.
The Stable Door Is Open: New York's Statutes To Protect Farm Land, John R. Nolon
The Stable Door Is Open: New York's Statutes To Protect Farm Land, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
Daniel Webster, in his Remarks on Agriculture, asserted that "When tillage begins, other arts follow. The farmers, therefore, are the founders of human civilization." If Webster is right, civilization in New York State is floundering. Dutchess County recently witnessed the closing of the county's oldest dairy operation, Kay-Ray Farm. With Kay-Ray gone, Dutchess now has just over 50 farms left, down from over 100 in 1987 and from nearly 300 in 1972. What happened to this farm and this county is happening, to varying degrees, throughout the state. Legislatively, we have left the barn door ajar and the state's productive …
Land Use Law Reform: A Judicial And Practical Imperative, John R. Nolon
Land Use Law Reform: A Judicial And Practical Imperative, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
The practical lesson learned from a review of New York case law on land use planning is straightforward: judges will seldom overturn land use regulations when it is obvious, in the structure of the regulatory program, that considerable and comprehensive planning is involved. When judges sustain land use regulations, they routinely find in the regulatory scheme a valid local planning objective that saves the regulation from falling under the property owner's attack. The bases for this judicial reasoning lie in the statutory requirement that zoning provisions must be adopted "in accordance with" a "comprehensive plan" and the constitutional requirement that …
The Erosion Of Home Rule Through The Emergence Of State-Interests In Land Use Control, John R. Nolon
The Erosion Of Home Rule Through The Emergence Of State-Interests In Land Use Control, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
The conventional wisdom is that New York's failure to adopt a comprehensive state-wide land use system is due to reluctance of the state legislature to diminish local control of land use. The purpose of this article is to explore that assumption as part of a larger examination of the proper course of land law reform in New York. The case and statutory law that have developed since the experiences of the early 1970s indicate that local “home rule” authority is neither a legal nor a political barrier to effective land use legislation in the broader state interest. Part II briefly …
Comprehensive Land Use Planning: Learning How And Where To Grow, John R. Nolon
Comprehensive Land Use Planning: Learning How And Where To Grow, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
This article explores the origins, evolution and contemporary workings of the legal system that determines the use of land. In Part II, the development of zoning and comprehensive planning laws in the United States is traced, emphasizing the importance that zoning be “in conformance with” a comprehensive land use plan, a requirement meant to provide direction and purpose to land use regulation. This retrospect shows that, from the beginning, the framers of the nation's land use regime were indecisive. They failed to define a comprehensive plan, to detail what such a plan should contain, and to prescribe how planning should …
Introduction: Dedication To James A. Coon, John R. Nolon
Introduction: Dedication To James A. Coon, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
This issue of the Pace Law Review is dedicated to a man and an idea in which he believed. James A. Coon was land use counsel to the Department of State in New York when he died in 1992. For a quarter of a century he served as counsel to several New York State agencies, all involved in some way with providing technical assistance to those interested in the subject of land use law. For James Coon, and those who learned from him, land use law carries with it a significant set of responsibilities. It establishes the rules that dictate …
Local Land Use Control In New York: An Aging Citadel Under Siege, John R. Nolon
Local Land Use Control In New York: An Aging Citadel Under Siege, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
In New York, local officials determine the shape and pace of land development, decide the economic fate of land owners and are the stewards of our natural resources. The system of local control of land use has remained relatively static since it was first created by the state legislature over seven decades ago. Today, however, it is under siege. Its strength is being sapped by preemptive state and federal regulations; it is being attacked by environmentalists and developers alike. The state's highest court has called for fundamental reform.
Toward A Housing Imperative And Other Reflections On Balanced Growth And Development, John R. Nolon
Toward A Housing Imperative And Other Reflections On Balanced Growth And Development, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
In a series of recent cases, the New York courts have commented on the legislative acts of the state and local governments which have restricted or expanded the access to housing for limited income households or minorities. From these holdings, we can glimpse the outlines of a housing imperative: an emerging right running generally to low and moderate income households and minorities not to be excluded from living in any given community. As important, there also emerges the understanding that our legislators are empowered to act decisively to solve New York's much-lamented housing problem.
Law And A New Land Ethic, John A. Humbach
Law And A New Land Ethic, John A. Humbach
Elisabeth Haub School of Law Faculty Publications
As open space comes under increasing development pressure, existing-use zoning provides a direct and forthright way to preserve the line between urban and non-urban land use. Ultimately it may be the only practical means for protecting high-demand or sensitive areas such as wetlands, coastlines, lakeshores, floodplains, stream corridors, and pristine reservoir watersheds. This Article reviews the viability of existing-use zoning under United States Supreme Court interpretations of the Constitution's takings clause. It concludes that nothing in those interpretations disallows this straightforward approach to preserving our country's familiar patterns of land use and development.
Expanding Traditional Land Use Authority Through Environmental Legislation: The Regulation Of Affordable Housing, John R. Nolon
Expanding Traditional Land Use Authority Through Environmental Legislation: The Regulation Of Affordable Housing, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
This article is devoted to an examination of local land use regulation in the context of the use of SEQRA and its mandate, to mitigate environmental impacts to require the provision of affordable housing in high cost housing markets. As such, it looks at one contemporary manifestation of the growth of police power authority to meet new land use challenges.
A Comparative Analysis Of New Jersey's Mount Laurel Cases With The Berenson Cases In New York, John R. Nolon
A Comparative Analysis Of New Jersey's Mount Laurel Cases With The Berenson Cases In New York, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
Due to the widespread concern over the lack of affordable housing in New York, renewed interest has been expressed in the landmark case of Berenson v. Town of New Castle. That case and an associated line of decisions define the legal rules that will be used by the courts in New York to decide whether municipal zoning unconstitutionally excludes affordable types of housing. Interest has been piqued further by two recent lower court cases in New York which differ greatly in their approach to defining the legal standards to be used in reviewing allegedly exclusionary land use practices.
Review Of Regulating Paradise: Land Use Controls In Hawaii, Ralph Michael Stein
Review Of Regulating Paradise: Land Use Controls In Hawaii, Ralph Michael Stein
Elisabeth Haub School of Law Faculty Publications
No abstract provided.
Review Of Land Use Conflicts: Organizational Design And Resource Management; Environmental Impact Review And Housing: Process Lessons From The California Experience; Creative Land Development: Bridge To The Future; And Toward Eden, Nicholas A. Robinson
Elisabeth Haub School of Law Faculty Publications
No abstract provided.
Municipal Ordinances For Historic Preservation In New York State, Nicholas A. Robinson
Municipal Ordinances For Historic Preservation In New York State, Nicholas A. Robinson
Elisabeth Haub School of Law Faculty Publications
Mandated State agency action for historic preservation and encouragement to new local initiatives is found in the N.Y.S. Historic Preservation Act of 1980, Article 14 of the Parks and Recreation Law, L. 1980, Ch. 354 (A. 11779-A). Members of the NYSBA interested in following developments in Historic Preservation Law may wish to participate in the Historic Preservation Law Committee of the Association's new Section on Environmental Law.
Tidal Title And The Boundaries Of The Bay: The Case Of The Submerged "High Water" Mark, John A. Humbach
Tidal Title And The Boundaries Of The Bay: The Case Of The Submerged "High Water" Mark, John A. Humbach
Elisabeth Haub School of Law Faculty Publications
The unique character and special public importance of lands bordering the sea have been recognized since ancient times. In the nature of things, shore lands, together with the waters which cover them (permanently or periodically), have a number of valuable uses not shared generally with inland territories. Navigation, passage, fishery, and bathing are among the particular uses of the shore or adjacent sea for which the public has traditionally received greater or lesser legal protection. However, this list is neither exclusive nor closed. For example, the recent avalanche of accretions to our stock of ecological knowledge has heightened (if not …