Land Use Law Commons^™

Farms, Their Environmental Harms, And Environmental Laws, J.B. Ruhl

Vanderbilt Law School Faculty Publications

Farms are one of the last uncharted frontiers of environmental regulation in the United States. Despite the substantial environmental harms they cause-habitat loss and degradation, soil erosion and sedimentation, water resources depletion, soil and water salinization, agrochemical releases, animal wastes, nonpoint source water pollution, and air pollution-environmental law has given them a virtual license to do so. When combined, the active and passive safe harbors farms enjoy in most environmental laws amount to an anti-law that finds no rational basis given the magnitude of harms farms cause. This paper comprehensively documents the environmental harms farms cause and the safe harbors …

Taming The Suburban Amoeba In The Ecosystem Age: Some Do's And Don'ts, J.B. Ruhl

Vanderbilt Law School Faculty Publications

Urban central cities present a host of environmental problems including, but not limited to, industrial pollution, brownfields, smog, and environmental injustice. Rural and agricultural areas also experience environmental degradations such as pesticide runoff, wetlands conversion, and overgrazing. Between these different bands of lifestyle and land use lie the suburbs, which present their own set of environmental policy issues. This Article focuses on one of those problems: the growth of suburban land area and what it means for emerging notions of ecosystem management and sustainable development at the local land use scale. Part I of the Article provides the demographic and …

The Future Of Hong Kong: Not What It Used To Be, Peter Wesley-Smith

Vanderbilt Journal of Transnational Law

With the re-integration of Hong Kong into the People's Republic of China in June 1997, this Article provides an insightful review and analysis of the history of the "Hong Kong question" from the cession of Hong Kong island to the British Crown in 1842 to the territory's current status in 1997. This Article begins with an overview of Hong Kong's early colonial history, examining the acquisition and retention of Hong Kong by the British Government. This Article then continues with a detailed account of the treatment of Hong Kong, including the eventual decision to return Hong Kong to the People's …

An Alternative To Ready, Fire, Aim: A New Framework To Link Environmental Targets In Environmental Law, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

This Article begins with a brief overview of the state of the environment and the lessons learned from the early development of the command and control system. It then explores recent reform proposals and the scholarship on the democratic impact of means-based approaches. The Article next examines the new model that is emerging in the Netherlands and other countries, and identifies the critical feature of the new model: the development of context for environmental decisionmaking at each of the three levels discussed above. The Article concludes by analyzing the implications of this Framework Approach for the environmental debate and for …

What Should Be The Leading Principles Of Land Use Planning? A German Perspective, Clifford Larsen

Vanderbilt Journal of Transnational Law

In this Article discussing German land use planning, the author begins by tracing the historical emergence of land use planning in Germany. The author then evaluates the influence of Germany's constitution on the fundamental principles of land use planning. The author reviews German land use planning's historical and constitutional foundations, then examines the goals guiding federal and state planning and the system constructed to achieve these goals. The author proceeds to analyze the challenges presented to German land use planning by reunification, the environment, and European interdependence. In conclusion, the author reviews the relative merits of German land use planning …

Biodiversity Conservation And The Ever-Expanding Web Of Federal Laws Regulating Nonfederal Lands: Time For Something Completely Different, J.B. Ruhl

Vanderbilt Law School Faculty Publications

This article offers an early examination of the law and governance of biodiversity (circa 1995) through the lenses of the Endangered Species Act, Clean Water Act, and Coastal Zone Management. It suggests that true multi-scalar, cooperative federalism will be needed to manage complex ecological resources for biodiversity conservation. A suggested model employing regional biodiversity management approaches is outlined.

Environmental Policy And Federal Structure: A Comparison Of The United States And Germany, Susan Rose-Ackerman Professor Of Jurisprudence

Vanderbilt Law Review

The assignment of tasks to the appropriate level of government is an important aspect of environmental policy design. Because the costs and benefits of pollution control policies are closely tied to geography, political solutions should reflect the underlying spatial structure of environmental problems. These solutions should not only incorporate the long-distance effects of air and water pollution, but also account for the mobility of economic actors and the resource base of governments.

There are three general types of environmental problems. Global issues have no complex geographical component. Regional problems arise when political boundaries do not coincide with the pollution's geographical …

Privatization In Eastern Germany: A Comprehensive Study, Rainer Frank

Vanderbilt Journal of Transnational Law

One of the greater problems arising from the reunification of Germany has been the privatization of land in eastern Germany. Initially, the principle that shaped the privatization policies was restitution, the idea that land unlawfully taken by the former East German government should be returned to its rightful owner. A second goal of the privatization program was to stimulate investment in the economy of eastern Germany. These two goals, however, have conflicted. The result has been a policy that has created confusion with regard to the ownership of property and clear title. This Article examines two series of amendments, in …

Loan Guarantees, Israeli Settlements, And Middle East Peace, John Quigley

Vanderbilt Journal of Transnational Law

Professor Quigley questions whether the United States should guarantee loans for Israel in light of Israel's continued occupation of the West Bank. The author believes that Israel's policies of displacing the local Palestinian population and transferring its own population into the West Bank violate the Geneva Civilian's Convention and the accepted principles of belligerent occupation. Consequently, Mr. Quigley argues that any aid the United States gives Israel might facilitate these illegitimate activities and make the aid grant itself an illegal act in the eyes of the international community. Professor Quigley concludes that the United States support of Israel's settlement activities …

Competition Among Municipalities As A Constraint On Land Use Exactions, Stewart E. Sterk

Vanderbilt Law Review

Even before the Supreme Court decided Nollan v. California Coastal Commission,' courts and scholars debated the wisdom and constitutionality of land use exactions and impact fees-government-imposed charges on the right to develop land. Many municipalities have long required developers to finance infrastructure improvements.s Fiscally drained municipalities, particularly big cities, had begun to use, or to consider using, exactions or their close cousins, "linkage" programs, as a means to finance a wider variety of government services.

The controversy these fees have generated reflects more general concerns about financing local government. Municipalities and their defenders justify exactions and impact fees as necessary …

Book Review: U.S. Energy And Environmental Interest Groups By Lettie Wenner, Tracey E. George

Vanderbilt Law School Faculty Publications

Interest groups have played a dominant if not determinative role in the "greening of America." Thus, that Lettie Wenner, a political scientist who has devoted much of her career to studying environmental issues (The Environmental Decade (1982) and One Environment Under Law (1976)), should publish a compendium describing such groups is an occasion for optimism. And, indeed, she does provide a useful reference tool for those seeking basic descriptions of these groups; yet, unfortunately, she does not offer a thorough or critical understanding of how they operate.

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

Maritime Drug Law Enforcement Act is Applicable to Aliens on Foreign Vessels Outside the Territory of the United States--Fourth Amendment Held Inapplicable to Searches and Seizures on the High Seas, United States v. Davis, 905 F.2d 245 (9th Cir. 1990)

Executive Order Authorizing Naturalization for Aliens Serving in Designated Geographical Areas During Grenada Campaign Struck Down--President Reagan Held to Have Exceeded His Authority--Severability of Order Impossible as President Did Not Intend that All Aliens Serving in United States Forces at Time of Campaign Become Citizens--Reyes v. United States Dep't. of Immigration & Naturalization, No. 89-55403 (9th Cir. 1990).

Provision of …

The Political Economy Of Co-Financing America's Urban Renaissance, Robin P. Malloy

Vanderbilt Law Review

America's urban centers are experiencing a renaissance of sorts that reflects the vitality of a renewed interest in the city.Dynamic growth and revitalization of the central city have emerged since the 1970s as key focal points for investment and development, replacing years of investing primarily in suburbanization. The emerging activity in America's urban down towns has been more than an isolated or segmented investment in office buildings. With strong political support and the emergence of an affluent group of new urbanites, some central cities are said to be transforming into entirely new urban environments where people not only work, but …

The Easement In Gross Revisited: Transferability And Divisibility Since 1945, Alan D. Hegi

Vanderbilt Law Review

Courts have disagreed about the nature, obligations, and privileges that accompany the easement in gross. Generally, an easement is an interest in land which gives the easement holder the right to use that land for a specific purpose, free from the will of the landowner. An easement is in gross when the benefit from the use of another's land inures to the easement holder personally, rather than to the holder's land. The land that is subject to the holder's right of use is the servient tenement. Courts agree on these basic principles of an easement in gross, but have disagreed …

Land Trusts: An Alternative Method Of Preserving Open Space, Randee G. Fenner

Vanderbilt Law Review

In an effort to provide the background necessary to maximize the land trust's potential, this Article undertakes a three-part analysis, focusing on (1) the steps necessary to organize the land trust; (2) the techniques that may be used to accomplish the transfer of property to the land trust; and (3) the tax consequences associated with the land trust's conservation activities-consequences that may dictate the form that the transfer will take and upon which the success or failure of the preservation effort may hinge.

Legislative Clarification Of The Correlative Rights Of Surface And Mineral Owners, J. Stephen Dycus

Vanderbilt Law Review

This Article examines the development of the judge-made doctrine of the dominant mineral owner, then considers the various legislative efforts to restrict or clarify the application of that doctrine. With this background it then proposes a new, more comprehensive statutory solution, which requires a clear expression of understanding about the effect of any mining activity upon the surface of the land. Constitutional implications of the different statutory schemes are identified and briefly discussed at the end of the Article.

Recent Cases, David G. Russell, Thomas J. Hartland Jr.

Vanderbilt Law Review

David G. Russell -- Private Nuisance--Urban Redevelopment

Outside the realm of eminent domain and zoning, the law of private nuisance provides judicial response to problems of conflicting land uses. As the private landowner's legal weapon for eliminating a use incompatible in the neighborhood, private nuisance law affords an effective remedy because the unreasonable, nonconforming use can be enjoined or its perpetrator subjected to liability for damages. Nevertheless, indiscriminate application of existing doctrine might jeopardize fair and efficient resolution of problems of land use control. Considered in the light of equity and economics, a recent New York decision reveals the need …

The Private Use Of Public Power: The Private University And The Power Of Eminent Domain, Charles Fels, N. T. Adams, Richard Carmody, Margaret E. Clark, Randolph H. Lanier, James C. Smith, Robert M. White

Vanderbilt Law Review

The study which follows attempts to trace, in a necessarily limited fashion, the evolving use of eminent domain on behalf of private interest groups throughout the last century and a half of American legal history. Part One of the study traces the broadening scope of eminent domain in the United States during the 19th and 20th centuries, focusing on the direct use of eminent domain by private interest groups as a key element in the increasing breadth of the power. Part Two delineates the process whereby one modern private interest group-an informal aggregation of American colleges and universities-succeeded in acquiring …

Judicial Deference In The Submerged Lands Cases, Jonathan I. Charney

Vanderbilt Journal of Transnational Law

When the Constitution established three branches of government, it did not create three hermetically sealed areas of responsibility. The executive, legislative and judicial branches are required to govern through a certain degree of accommodation. One area in which the need for accommodation between the judicial branch and the other two branches was recognized at an early stage is cases containing questions bearing on foreign relations.' Under the Constitution it appears that the conduct of the foreign relations is vested in the Executive with a secondary role for the Congress, but that the courts have no role to play in this …

Exclusionary Zoning Practices: An Examination Of The Current Controversy, W. Harold Bigham, C. Dent Bostick

Vanderbilt Law Review

For the last 45 years the idea that local zoning administration is a highly desirable exercise of the state police power has become progressively more entrenched in urban thinking and planning. Although opponents of zoning have quarreled with details of administration or decried the failure of the Supreme Court to continuously oversee implementation of the zoning concept, they have assumed basic Euclidian zoning theory' to be beyond serious challenge. This assumption is no longer valid, for classic municipal zoning is on the firing line and its survival is by no means certain.

Special Project - Nashville Model Cities: A Case Study, Richard W. Creswell, Alan Gates, Paul M. Kurtz, Paul R. Regendorf, Samuel W. Bartholomew, Jr., Richard K. Greenstein

Vanderbilt Law Review

The future of the Model Cities program in Nashville is difficult to predict. As of this writing, the program is approaching the end of the first of five action years. The suit filed by the CCC in April 1971, is,more than a year later, still pending. It is, of course, possible that the program may eventually prove successful, but such a result is unlikely. Even if the CCC is replaced as the official citizen participation structure for the program, the ideological constituency from which the group derives its strength will remain. Furthermore, as the CDA continues to build an ad …

Creditors' Ability To Reach Assets Under A General Power Of Appointment, Roy L. Steers, Jr.

Vanderbilt Law Review

Originally conceived prior to the enactment of the Statute of Uses as a means by which freehold legal interests in land might be devised, the power of appointment has maintained its prominent position in American society because of its utility in minimizing death taxes and injecting into dispositions of property an element of foresight otherwise unobtainable. Due to the immense popularity of powers of appointment as estate planning devices, statutory developments in the law of powers have been confined primarily to the tax field, with a resultant neglect of those areas of the law more tangentially related to powers of …

Trespassing Children: A Study In Expanding Liability, R. Neal Batson

Vanderbilt Law Review

When confronted with a case involving a child plaintiff, attorneys and the courts should recognize that the doctrine of attractive nuisance is only one of several theories on which the plaintiff may proceed against a landowner. The status of a plaintiff should first be determined. If the child is a trespasser, then either the constant trespasser theory, the known trespasser theory, or the doctrine of attractive nuisance may be applicable. It is possible, however, that the court may reject any one or all of these theories and decide the particular case under the general negligence principles of foreseeability of harm …

Land Use Planning For Industrial Development, Peter J. Winders

Vanderbilt Law Review

For many reasons, a political unit may decide to undertake a program of encouraging the establishment of industry within its borders. This may be effectively done by informing entrepreneurs of the locational advantages which sites within the jurisdiction offer and by increasing the attractiveness of the sites. Research necessary to provide industry with information about possible plant sites and resources will provide part of the data from which projections may be made as to future development of the area. When such projections indicate that an area is one which will in the future be a desirable location for industry, steps …

The Municipal Corporation And Conflicts Over Extraterritorial Acquisitions: The Need For Land Planning, Robert Phay

Vanderbilt Law Review

The conflicts which arise between different governmental units involve questions of power, loss of revenue, inconsistent zoning statutes,and actions challenged as arbitrary. However, basic to all these conflicts is the problem of conflicting desires for land use. In other words,any challenge made to a proposed taking is one in which the political unit affected by the taking objects because of supposed injury to its own development, interests, or present governmental functions. The problem can thus be seen as actually concerning the proper allocation of land-a study in land planning, the ultimate objective being, ac-cording to McDougal and Rotival, "the creation …

Real Property--1959 Tennessee Survey, Thomas G. Roady, Jr.

Vanderbilt Law Review

Future Interests.-The creation of divided interests in real property always carries with it problems in controlling the use and man- agement by the owner of the possessory interest. One of the most difficult problems in future interests is how to adjust the relation between the holder of a present possessory interest and the holder of a future interest in the same parcel of land. In resolving such problems many courts are influenced primarily by the nature (classification) of the future interest involved and have worked out with some degree of certainty the distribution of benefits and burdens in the simple …

The Validity Of Extraterritorial Municipal Zoning, Otis J. Bouwsma

Vanderbilt Law Review

A body of law does not suddenly spring up. A period of development is required during which there is a gradual evolution of a comprehensive and coherent body of law. So, the law of zoning did not go immediately from the one extreme of completely unregulated city development to the other extreme of closely restricted city planning and zoning. Throughout the years tremendous changes in living conditions were taking place; sign board regulation was developing; and cities were prohibiting noxious uses of property for the benefit of the whole community. These things paved the way for the holding in Village …

The Place Of The Planning Commission And The Board Of Zoning Appeals In Community Life, E. C. Yokley

Vanderbilt Law Review

Progressive and fortunate is the city or town served by a planning commission whose membership is comprised of upstanding and public spirited citizens of known integrity, who give freely of their time and talents in such activity. When the same city or town can point with pride to a board of zoning appeals possessing the same high qualities of dedicated public service, it is doubly blessed.

The members of such commissions and boards become the city's most effective police officers when they properly perform their duties. This is literally true, because they derive all of their authority from such part …