Land Use Law Commons^™

Parallel State, Gregory Dolin, Irina D. Manta

Cardozo Law Review

Alternatively glamorized and reviled, Rio de Janeiro's shantytowns, known as 'favelas," have become a fixture of the city's architecture and life. It is estimated that about 1.5 million people reside in these informal settlements that are scattered in the center and outskirts of Brazil's second-largest metropolitan area. Operating in the shadow of the law and lacking formal ownership title, favela residents have constructed an intricate set of informal rules to buy, sell, rent, and bequeath property that is often administered by the residents' associations of individual neighborhoods, which also assist in mediating related conflicts. While largely untested legal mechanisms may …

Nimby To Nope-Or Yess?, K.K. Duvivier, Thomas Witt

Cardozo Law Review

On December 12, 2015, 195 governments around the world agreed to the COP21 commitments to combat climate change. Pivotal to the success of these goals is a shift from fossil-fuel energy generation to renewable resources. Wind power is one of the largest renewable energy generation sources in the United States and has the greatest potentialfor future development.

While wind energy generation has enjoyed some of the most impressive gains in development of new capacity, reaching future goals will face more challenges. In addition to resource potential, wind development is also confined to locations that meet the sweet spot of being …

An Empirical Study Of Implicit Takings, James E. Krier, Stewart E. Sterk

Articles

Takings scholarship has long focused on the niceties of Supreme Court doctrine, while ignoring the operation of takings law “on the ground” – in the state and lower federal courts, who together decide the vast bulk of all takings cases. This study, based primarily on an empirical analysis of more than 2,000 reported decisions over the period 1979 through June 2012, attempts to fill that void.The study establishes that the Supreme Court’s categorical rules govern almost no cases, and that takings claims based on government regulation almost invariably fail. By contrast, when takings claims arise out of government action other …

Land Use Consultations Advancing Therapeutic Jurisprudence: Ripe For Clinical Trials, Michael N. Widener

Cardozo Journal of Conflict Resolution

This paper proposes educating law students in the processes of therapeutic justice through service as a neutral in land use controversies, and in the process, improving law student dispute resolution skills and enabling them to promote therapeutic outcomes.

Gentrification: Yes ... My Community Is Improving, But For Who?, David B. Shepherd

Cardozo Journal of Equal Rights & Social Justice

The note argues that while gentrification brings economic benefits, it disproportionately harms low-income families by displacing them and eroding their community fabric. The author advocates for regulatory measures, such as growth control and zoning laws, to mitigate these negative effects and preserve affordable housing and community culture.

The Compensation Conundrum In Partial Takings Cases And The Consequences Of Borough Of Harvey Cedars, Brittany Harrison

Cardozo Law Review de•novo

This Note suggests that the goals the Harvey Cedars court sought to achieve—including reduced windfalls and greater certainty in the law—would best be achieved by applying the market value rule as adopted in California, which follows a value plus damages approach and requires payment for the part taken. Part I of this Note introduces the Harvey Cedars case. Part II provides a historical background to partial takings cases and a discussion of the special benefits doctrine, a type of compensation method that emerged as a compromise position to compensation to better protect condemnees. Part III surveys the various compensation methods …

Religious Freedom: Why States Are Unconstitutionally Burdening Their Own Citizens As They “Lower” The Burden, Jason Goldman

Cardozo Law Review de•novo

Part I of this Note traces the development of the Supreme Court’s First Amendment precedent, including a discussion of Congress’s enactment of Federal RFRA. Part II introduces the states’ legislative efforts with regard to free exercise statutes, culminating with the problematic “burden” RFRA movement. Part III outlines a brief history of both the Establishment Clause and Separation of Powers doctrine, and analyzes how “burden” RFRAs are unconstitutional in light of each, respectively. Part IV discusses the implications of this progressive trend, specifically focusing on the boundless government litigation, civil rights concerns, and the health and safety issues that have resulted. …

Exploring Taxation As A Substitute For Overregulation In The Development Process, Stewart E. Sterk

Articles

No abstract provided.

Rluipa Is A Bridge Too Far: Inconvenience Is Not Discrimination, Marci A. Hamilton

Articles

No abstract provided.

Zoning Finality: Reconceptualizing Res Judicata Doctrine In Land Use Cases, Stewart E. Sterk, Kimberly J. Brunelle

Articles

Zoning disputes provide many Americans with their only firsthand exposure to the workings of democratic government. Land use issues trigger participation because neighbors perceive the wrong kind of development as posing a double-barreled threat to the stability of the community in which they have chosen to live and to the economic value of their homes.

Eminent Need: Proposing A Market Participant Exception For Municipal Parker Immunity, Scott Weese

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

Negotiating The Wind: A Framework To Engage Citizens In Siting Wind Turbines, Sean F. Nolon

Cardozo Journal of Conflict Resolution

In Section I, this Article explores the promotion of wind energy by looking at the current system of incentives and regulations, including the authority to mitigate adverse impacts. In Section II, the Article looks at the role of citizens in siting generally, how involvement can turn into opposition, and how that opposition can be managed productively. Section III explores three approaches to citizen engagement that have been used for decades-participatory planning, negotiated rulemaking and facility siting. Finally, Section IV provides a framework for the federal government to work cooperatively with state and local governments to create comprehensive wind energy plans …

Citizen David Tames Gas Goliaths On The Marcellus Shale Stage: Citizen Action As A Form Of Dispute Prevention In The Internet Age, Elisabeth N. Radow

Cardozo Journal of Conflict Resolution

"Water, water everywhere and not a drop to drink." This could soon become the lament of millions of people who derive their drinking water from sources located near the latest natural gas boom site in the East, known as the "Marcellus Shale" region. Drilling is underway in Pennsylvania and West Virginia, but not yet in New York. The focus here is New York.

2010 Annual Symposium: Keynote Speech, Joseph A. Siegel

Cardozo Journal of Conflict Resolution

Thank you very much to the Board of the Cardozo Journal of Conflict Resolution for inviting me here today. I am honored to be speaking at this conference and participating in an event with so many distinguished experts in the conflict resolution field. I spend most of my time working on the challenging issue of climate change and, as we all know, energy is both a significant part of the problem and a significant part of the solution. I often have the opportunity to speak at and attend conferences on climate and energy and I like to monitor over time …

Adult Websites And The Top-Level Domain Debate: Icann's Adoption Of .Xxx Dras Adult-Industry Ire, Robert D. Richards, Clay Calvert

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Association Of Adult Businesses With Secondary Effects: Legal Doctrine Social Theory, And Empirical Evidence, Alan C. Weinstein, Richard Mccleary

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Structural Obstacles To Settlement Of Land Use Disputes, Stewart E. Sterk

Articles

In many states, legal doctrine discourages settlement of land use litigation by requiring that any settlement undergo the same review process as the decision that led to the litigation in the first place. The problem is exacerbated by broad standing rules that allow a variety of parties to challenge the settlement. As a result, municipalities and developers often have an incentive to litigate to judgment, even though both parties would prefer a negotiated or mediated solution.

On the other hand, permitting developers and municipalities to settle litigation behind closed doors could impair both the quality and the legitimacy of the …

The Constitutional Limitations On Congress's Power Over Local Land Use: Why The Religious Land Use And Institutionalized Persons Act Is Unconstitutional, Marci A. Hamilton

Articles

No abstract provided.

Protecting The Rights Of Litigants With Diminished Capacity In The New York City Housing Courts, Jeanette Zelhof, Andrew Goldberg, Hina Shamsi

Cardozo Public Law, Policy & Ethics Journal

The article addresses the challenges faced by individuals with mental illnesses or age-related infirmities in navigating the New York Housing Court system. It highlights the need for improved protections, including ADA accommodations and the right to counsel, to ensure equal access and fair proceedings for these vulnerable litigants.

A Reply To Professor Johnson, Marci A. Hamilton

Articles

No abstract provided.

The Concept Of Justice In Mediation: A Psychobiography, Ellen Waldman

Cardozo Journal of Conflict Resolution

Discussions of what justice means in mediation have a dialectical quality to them. At various points in the field's history, the notion that justice in mediation consists of fully maximized disputant self-determination holds sway. At other historical moments, a tentative consensus appears to recognize that justice in mediation requires normative content independent of the disputants' beliefs and values.

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 …

Making Lawyers Compete, Lester Brickman

Articles

The article argues that the market for contingent-fee-financed tort litigation is not price competitive, primarily due to uniform contingency fees charged by lawyers regardless of case-specific factors such as risk or effort required. This lack of competition leads to excessive costs for claimants and contributes to the expansion of tort liability. The author contends that the legal profession maintains this system through various barriers, including ethical rules and entry restrictions, which prevent competitive market forces from functioning effectively.

To Defer Or Not To Defer: Judicial Review Of Zoning Board Decisions In New York, Elliot Gardner

Cardozo Public Law, Policy & Ethics Journal

The note examines the judicial review of zoning board decisions in New York, emphasizing the need to balance deference to local boards with ensuring fairness and transparency. It argues that excessive judicial deference can lead to arbitrary and unjust decisions, particularly in distinguishing between variances and special permits. The author advocates for clearer judicial standards, such as a higher scrutiny for special permits, and proposes reforms like specialized courts to enhance consistency and fairness in zoning decisions.

Rluipa Is Unfair, Unwise, And Unconstitutional, Marci A. Hamilton

Articles

No abstract provided.

The Place Of Court-Connected Mediation In A Democratic Justice System, Nancy A. Welsh

Cardozo Journal of Conflict Resolution

This Article will consider mediation as just one innovation within the much larger evolution of the judicial system of the United States. First, this Article will outline how the values of democratic governance undergird our traditional picture of the American justice system, presumably because the invocation of such values helps the system to deliver something that will be respected by the nation's citizens as "justice." The Article will then highlight particular aspects of the changing picture of the American civil justice system to suggest that today's sprawling and multitiered structure is increasingly disengaged from its democratic roots. Finally, the Article …

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.

Federalism And The Public Good: The True Story Behind The Religious Land Use And Institutionalized Persons Act, Marci A. Hamilton

Articles

No abstract provided.

Queers Anonymous: Lesbians, Gay Men, Free Speech, And Cyberspace, Edward D. Stein

Articles

The expansion of cyberspace in the past decade has created unprecedented opportunities for communication, both across the globe and across the street. The Internet and other forms of cyberspace have provided new avenues for anonymous and pseudonymous communication. Individuals can now interact without the traditional constraints of time, place, and manner of communication.

Reflecting The Best Of Our Aspirations: Protecting Modern And Post-Modern Architecture, Gregory A. Ashe

Cardozo Arts & Entertainment Law Journal

No abstract provided.