Land Use Law Commons^™

Land Use Trends In The Rocky Mountain West: The Role Of The Rocky Mountain Land Use Institute, Susan Daggett

Journal of Comparative Urban Law and Policy

As one of the fastest-growing regions of the country, the communities of the intermountain West are poised to lead the nation in many ways, including how we manage change, create communities, and foster local places that contribute to a very high quality of life by nurturing and valuing the natural assets that make this region so special. This essay will reflect on how development patterns in the region have shifted over time. This essay will also ponder some potential emerging trends and areas of focus for the future, in the hopes that future scholars, students, and practitioners will build on …

The Rise And Fall Of Smart Growth: An Exploration Of The Appearance Of Smart Growth And Related Terms In Google Searches, Apa Conference Programs, And Selected Newspapers, Gerrit Knaap, Rebecca Lewis, Arnab Chakraborty, Katy June-Friesen, Naman Molri

Journal of Comparative Urban Law and Policy

Smart growth was conceived in the mid to late 1990s as a fresh approach to urban development that was neither for nor against growth but sought to change its form and location as an antidote to urban sprawl. The prescription was supported by a broad network of organizations and promoted extensively nationwide. Toward that end, the U.S. Environmental Protection Agency launched the Smart Growth Network that includes many of the nation’s premier planning, development, environmental, and local government organizations. Today, many would argue that smart growth has become the predominant planning paradigm in the United States.

It has now been …

Growth Management's Fourth Wave, Revisited, Tim Chapin, Lindsay E. Stevens

Journal of Comparative Urban Law and Policy

In this article we provide an update to Timothy S. Chapin’s article, “From Growth Controls, to Comprehensive Planning, to Smart Growth: Planning's Emerging Fourth Wave,” published in 2012 in the Journal of the American Planning Association. It takes advantage of a decade of insight into national planning and development trends, as well as our experience with growth management in Florida to rethink this fourth wave. Notably, forces have emerged to fight centralized, state and local-directed land planning, led by a powerful development industrial complex. We conclude that growth management may struggle to remain a centerpiece of the planning profession unless …

The Future Of The Comprehensive Plan, David Rouse

Journal of Comparative Urban Law and Policy

This article begins with a brief history of the comprehensive plan from its historic roots to the present day. It then considers contemporary comprehensive planning practice, using the Comprehensive Plan Standards for Sustaining Places developed by the American Planning Association (APA) as a benchmark. The article concludes by exploring how the comprehensive plan can and must evolve to address the major challenges of the 21st century. It draws on research and content from The Comprehensive Plan: Sustainable, Resilient and Equitable Communities for the 21st Century (Rouse and Piro 2022).

Advances In Planning Processes And Implementation, Arthur C. Nelson

Journal of Comparative Urban Law and Policy

No abstract provided.

Homeownership For The Long Run, Susan M. Wachter, Arthur Acolin

Journal of Comparative Urban Law and Policy

U.S. homeownership rates have largely recovered since the depths of the Great Recession, except for Black Americans. In 2019, 42 percent of Black households owned a home, compared to 73 percent of white households. Currently, about two thirds of households own their home, a rate of homeownership that has prevailed in the U.S. since mid-century. However, whether this rate can be sustained over the next decades is in question. Black and Hispanic/Latinx homeownership rates have remained far below that of the white non-Hispanic rate. In addition, the homeownership rate for younger households is now below its level prior to the …

Market Demand-Based Planning And Permitting: Special Case Of Affordable Housing, Robert Hibberd

Journal of Comparative Urban Law and Policy

Arthur C. Nelson has advanced the concept of market demand-based planning and permitting (MDBPP) as a way in which to balance the need for development within the limits of market capacity. Lacking MDBPP discipline, real estate markets are prone to over-development that can lead to economic downturns including notably the Great Recession of 2007-2009. This article will unpack the history and challenge of MDBPP and demonstrate its efficacy. Then, it will apply these principles to the specific wicked problem of housing affordability, which is both ongoing and emerging in nature. It will tie this problem to a call for MDBPP …

Affordable Housing: Three Roadblocks To Regulatory Reform, Dwight Merriam

Journal of Comparative Urban Law and Policy

This article focuses on techniques, initiatives, and regulatory reforms that may help improve affordability in housing, and thereby serve the need for economic, social, and racial equity. It focuses especially on three impediments standing in the way of affordability: the myth of Home Rule, limitations of the Fair Housing Act, and the pervasive use of private covenants and restrictions. Those roadblocks deserve the closest attention and concerted action and must be knocked down, once and for all, to get the housing we so desperately need.

The Enigma Of Housing Choice, Casey Dawkins

Journal of Comparative Urban Law and Policy

The U.S. faces a housing choice crisis. The growing shortage of affordable rental homes and looming mismatch between the homes offered for sale by baby boomers and the homes sought by the next generation of homeowners point to a need to fundamentally reshape the extent and diversity of the nation’s housing options. Housing and land-use policy experts have appealed to the aim of expanding housing choice to justify the removal of regulatory restrictions on certain housing types, the construction of affordable rental housing in transit-adjacent neighborhoods, the elimination of housing market discrimination on the basis of race and ethnicity, and …

Housing Affordability And Homeownership, Arthur C. Nelson

Journal of Comparative Urban Law and Policy

No abstract provided.

Planning The Opportunity Metropolis: An Agenda For An Era Of Intensifying Technology, Climate And Health Challenges, George Galster

Journal of Comparative Urban Law and Policy

Urban planners focus on the spatial arrangements of residences, businesses, institutions, infrastructure and human-built amenities, and the market- and government-driven processes that shape these arrangements. They start with the basic supposition that these arrangements strongly affect individuals’ health, prosperity, and happiness as well as the overall level of opportunity, solidarity, and satisfaction in society. Their recommendations about changing the built environment should be guided by the norms of efficiency and equity, with the latter being framed as creating disproportionate benefits to those who are least advantaged.

This essay begins with an overview of the metropolitan opportunity structure theory to frame …

Planning For An Aging Population: The Sustainability Conundrum, Sandi Rosenbloom

Journal of Comparative Urban Law and Policy

By 2030 more than one in four Americans will be 65 years of age or older. What role do city planning academics and practitioners play in planning for the inevitable and increasing aging of society? I examined original research and reviewed articles published in three major planning journals, reviewed the websites of ten Planning Accreditation Board (PAB) accredited planning programs, and evaluated the websites of the American Planning Association’s divisions and special interest groups to determine how each demonstrated or portrayed the value and importance of aging issues in planning scholarship, pedagogy, and practice. I found that these key pillars …

Do Planners Always Have To Make The Neighborhood "Better"? Rethinking The Disturbing Tensions Between Redevelopment And Equity, Don Elliott

Journal of Comparative Urban Law and Policy

America’s public sector planners are constantly trying to “make things better.” That has been true ever since planning became a profession. Planners are paid to think broadly about how emerging demographic, economic, environmental, and mobility trends will impact life in our communities, and then make recommendations and write regulations to respond to those trends in ways that make the city a better place. In fact, if planners were not doing that, it is not clear why cities should pay them. For the most part, the predominant focus by planners is making communities physically better through comprehensive, neighborhood, sector, and corridor …

The Influence Of Civil Rights And Anti-Discrimination Laws On Shaping Our Transportation System, Marc Brenman, Thomas W. Sanchez

Journal of Comparative Urban Law and Policy

Regarding the title of this paper, “The Influence of Civil Rights and Anti-Discrimination Laws on Shaping Our Transportation System”, the reverse is also true—the transportation system has helped shape the civil rights laws in the U.S. The way bus lines in the South used to be segregated is one example, and fighting this helped shape the modern Civil Rights Movement. This influence goes back to include famous cases involving segregated train cars in the 1880s. In this article, we address the numerous ways in which civil rights and anti-discrimination laws shape our transportation system. We offer a suite of approaches …

Planning As If People Mattered, Arthur C. Nelson

Journal of Comparative Urban Law and Policy

No abstract provided.

Planning To A Larger Scale: Lessons From Trying To Save The World, John Randolph

Journal of Comparative Urban Law and Policy

Most urban planning efforts are focused on city, district, and neighborhood scales, but many of our problems require a larger perspective and grander solutions. The Covid-19 pandemic and climate change head the list of global problems in need of action, but many others loom at different scales. In recent decades, the principles of planning have been applied to broader issues. This essay reflects on one of those problems—climate change and the associated energy transition, and the lessons that efforts aimed at its resolution may provide for planning at such scale.

Resilience Re-Examined: Thoughts On The Covid-19 Pandemic's Lessons For Communities, John Travis Marshall

Journal of Comparative Urban Law and Policy

Prompted by this century’s major disasters, many local governments have adopted policies, plans, and laws to help guide their response to future natural hazard events. Some communities have prepared plans informed by their firsthand experience with recent catastrophic storms. Other communities have speculated about potential disaster scenarios; they have imagined the work involved in rebuilding their towns following an event that would threaten residents’ homes, health, and livelihoods. COVID-19 gives communities reason to reshape thinking around natural hazards planning. The ongoing pandemic should cause local governments to revisit and rework their plans for facilitating community recovery following a disaster. By …

Envisioning Health, Safety, And Welfare For All: Retrospect And Prospect, Frederick Steiner

Journal of Comparative Urban Law and Policy

This essay is a reflection on my academic career in community and regional planning as well as landscape architecture. That look back over five decades provides the basis about speculation for the future of planning and design. It addresses the major challenges of our time, including social justice and climate change, through the lens of design, ecology, and landscape.

Introduction, Karen Johnston

Journal of Comparative Urban Law and Policy

No abstract provided.

Table Of Contents, Karen Johnston

Journal of Comparative Urban Law and Policy

No abstract provided.

Friends Of The Earth V. Haaland Case Summary, Valan Anthos

Public Land & Resources Law Review

A federal district court vacated the U.S.’s largest offshore oil and gas lease sale ever because of an inadequate NEPA analysis. The court found that the BOEM’s decision to exclude estimations of reductions in foreign oil consumption if no lease took place was arbitrary and capricious.

Can You Dig It? Yes, You Can! But At What Cost?: A Proposal For The Protection Of Domestic Fossils On Private Land, Bridget Roddy

Texas A&M Journal of Property Law

Paleontological resources require similar protections to archaeological resources because the threat of looting, improper excavation, and market demand are analogous. Paleontological resources are responsible for informing much of scientists’ understanding of evolution and the history of the planet, just as cultural property helps to inform the evolution of humanity and culture. Once either object is removed from its original context, there is an immediate and invaluable loss of information that could have illuminated important information about the past. When either is removed from the environment in which they were created, a nonrenewable link to the past is lost.

Existing laws …

Agricultural Carbon: The Land, Landowner, And Farmer, Barclay Rogers

Journal of Food Law & Policy

Carbon is certainly a hot topic in agriculture. Across the countryside, farmers, landowners, agricultural service providers, and many others are trying to understand what carbon is about and what it may mean to them. One of the more interesting topics around agricultural carbon concerns the relationship between the landowner and tenant farmers on absentee-owned land (i.e., land that is farmed by someone other than the person who owns it). This article provides a brief background on the agricultural carbon opportunity and explores some ideas about how to pursue the opportunity on absentee-owned farmland.

Stale Real Estate Convenants, Robert C. Ellickson

William & Mary Law Review

Since the 1970s, covenants running with the land have tethered a large majority of the new housing units produced in the United States. These private restraints usually continue for generations, until a majority or supermajority of covenant beneficiaries affirmatively vote to amend or terminate them. Covenants interact with public land use controls, particularly zoning ordinances. Zoning politics tends to freeze land uses in urban America, particularly in existing neighborhoods of single-family homes. This Article investigates to what extent covenants exacerbate the zoning freeze. It provides a history of the use of private covenants and suggests how drafters, judges, and legislators …

Groundwater Laws And Regulations: Survey Of Sixteen U.S. States, Abigail Adkins, Jack Beasley, Rebekah Bratcher, Justin Cias, Jackson Field, Ian Gaunt, Ashley Graves, Merrick Hayashi, Jenna Lusk, Matthew Maslanka, Erin Milliken, Connor Pabich, Margaret Reed, A. Wesley Remschel, Lauren Thomas, Ashley Wilde

EENRS Program Reports & Publications

This report is the second volume in a continuing project designed to explore and articulate the groundwater laws and regulations of all fifty U.S. states. This particular report presents surveys for sixteen states throughout the country. The first volume featured thirteen state surveys and can be found at: http://www.law.tamu.edu/usgroundwaterlaws.

The purpose of the project is to compile and present the groundwater laws and regulations of every state in the United States that could then be used in a series of comparisons of groundwater governance principles, strategies, issues, and challenges. Professor Gabriel Eckstein at Texas A&M University School of Law and …

Stewards Of The World: America & China, Grant Fuller

Helm's School of Government Conference - 2021-2024

No abstract provided.

Federal Courts And Takings Litigation, Ann Woolhandler, Julia D. Mahoney

Notre Dame Law Review

This Article first gives an overview of the role of the federal courts in takings claims over time, with a view to providing a more complete picture than that supplied by focusing either on the Lochner/New Deal-era dichotomy or on the advent of the 1871 Civil Rights Act (current § 1983). It traces the fairly robust role of the federal courts in protecting property under a nonconfiscation norm both before and during the Lochner era. It also points out that the legislative history of the 1871 Civil Rights Act does not support a firm conclusion that Congress intended takings …

Pandemics And Housing Insecurity: A Blueprint For Land Use Law Reform, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

COVID-19, racial inequity, housing insecurity, and climate change have come together to create widespread, large-scale crises. This Article introduces these four pandemics and describes in detail what local governments are doing to combat one of them: housing insecurity. It reviews recent progress with traditional inclusionary zoning requirements, discusses the move toward greater density in single-family zoning, lists strategies being used to remediate distressed housing, and notes the importance of affordable housing as a necessary strategy for preventing lower-income household displacement caused by gentrification. The reciprocal impacts of these four pandemics are clear; local land use leaders should examine how mitigating …

Ambiguity In Legal Non-Conforming Use Statuses, Zeke Peters

Brigham Young University Prelaw Review

Legal nonconforming uses have similar definitions and codes throughout the United States. However, certain restrictions and rules can vary so much that ambiguity makes the truth harder to see. Many nonconforming uses are limited in their “expansion” or “enlargement.” However, what defines these terms is unclear in various codes across state lines. This paper proposes a framework for cities to adopt to have a more uniform definition with some exemptions of these terms. While planning and land use code should vary based on the specific needs of each municipality, this framework definition can help create a more concrete definition for …

Bringing History Home: Strategies For The International Repatriation Of Native American Cultural Property, Alec Johnson

Dickinson Law Review (2017-Present)

The theft of Native American cultural items has been ongoing since Europeans began to colonize the Americas. As a result, millions of Native American artifacts are now located outside the borders of the United States. Native American tribes have long sought international repatriation—the return of these cultural objects to their tribal owners. Unfortunately, many countries have been unsupportive of repatriation attempts and Native Americans seeking the return of their cultural items face nearly insurmountable barriers in foreign courts. The U.S. government has a moral imperative to assist Native American tribes in these repatriation efforts. The debate over repatriation is defined …