Land Use Law Commons^™

Asarco Llc V. Atlantic Richfield Company, Ryan L. Hickey

Public Land & Resources Law Review

The Comprehensive Environmental Response, Compensation, and Liabiltiy Act, commonly known as CERCLA, facilitates cleanup of hazardous waste sites and those contaminated by other harmful substances by empowering the Environmental Protection Agency to identify responsible parties and require them to undertake or fund remediation. Because pollution sometimes occurrs over long periods of time by multiple parties, CERCLA also enables polluters to seek financial contribution from other contaminators of a particular site. The Ninth Circuit clarified the particuar circumstances under which contribution actions may arise in Asarco LLC v. Atlantic Richfield Co., holding non-CERCLA settlements may give rise to CERCLA contribution …

Urban Renewal And Sacramento’S Lost Japantown, Thomas W. Joo

Chicago-Kent Law Review

No abstract provided.

The State Giveth And Taketh Away: Race, Class, And Urban Hospital Closings, Shaun Ossei-Owusu

Chicago-Kent Law Review

This essay uses concepts from Bernadette Atuahene’s book We Want What’s Ours: Learning from South Africa’s Land Restitution Program to examine the trend of urban hospital closings. It does so by focusing specifically on the history of Martin Luther King, Jr. Community Hospital, a charitable hospital in South Los Angeles, California that emerged after the Watts riots in 1965. The essay illustrates how Professor Atuahene’s framework can generate unique questions about the closing of urban hospitals, and public bureaucracies more generally. The essay also demonstrates how Martin Luther King, Jr. Community Hospital’s trajectory hones some of Atuahene’s concepts in ways …

Airbnb And The Battle Between Internet Exceptionalism And Local Control Of Land Use, Jamila Jefferson-Jones, Stephen R. Miller

Law Faculty Research Publications

No abstract provided.

A New History Of Waste Law: How A Misunderstood Doctrine Shaped Ideas About The Transformation Of Law, Jill M. Fraley

Marquette Law Review

In the traditional account, American courts transformed the law of waste, radically diverging from the British courts around the time of the American Revolution. Some of the most influential theorists of American legal history have used this account as evidence that American law is driven by economics. Due to its adoption by influential scholars, this traditional account of waste law has shaped not only our understanding of property law, but also how we view the process of transforming law.

That traditional account, however, came not from a history of the doctrine, but from an elaboration of the benefits of the …

On The Twenty-Fifth Anniversary Of Lucas: Making Or Breaking The Takings Claim, Carol Brown

Law Faculty Publications

In Lucas v. South Carolina Coastal Council, the United States Supreme Court established the premier categorical regulatory takings standard with certain limited exceptions. The Lucas rule establishes that private property owners are entitled to compensation for a taking under the Fifth Amendment Takings Clause when a government regulation “denies all economically beneficial or productive use of land.” Today, Lucas remains the controlling law on categorical regulatory takings. But in application, how much does Lucas still matter?

My review of more than 1,600 cases in state and federal court reveals only twenty-seven cases in twenty-five years in which courts found …

The Wind Blows In Virginia Too—Deconstructing Legal And Regulatory Barriers To The Development Of Onshore, Utility-Scale Wind Energy In Virginia, Mark L. (Buzz) Belleville

William & Mary Environmental Law and Policy Review

No abstract provided.

Exploiting Ambiguity In The Supreme Court: Cutting Through The Fifth Amendment With Transferable Development Rights, Trevor D. Vincent

William & Mary Law Review

No abstract provided.

Land Tenure And Sustainable Agriculture, Jesse Richardson

Law Faculty Scholarship

No abstract provided.

Resilience And Raisins: Partial Takings And Coastal Climate Change Adaptation, Joshua Ulan Galperin, Zaheer Tajani

Elisabeth Haub School of Law Faculty Publications

The increased need for government-driven coastal resilience projects will lead to a growing number of claims for “partial takings” of coastal property. Much attention has been paid to what actions constitute a partial taking, but there is less clarity about how to calculate just compensation for such takings, and when compensation should be offset by the value of benefits conferred to the property owner. While the U.S. Supreme Court has an analytically consistent line of cases on compensation for partial takings, it has repeatedly failed (most recently in Horne v. U.S. Department of Agriculture) to articulate a clear rule. The …

From The Seas To The Stars: A Case For Developing Offshore Spaceports On States’ Submerged Lands, Joseph Michael Carroll

William & Mary Environmental Law and Policy Review

No abstract provided.

Land Use Law Update: The 2015 Mid-Year Roundup, Sarah Adams-Schoen

Scholarly Works

This update summarizes New York cases related to land use and zoning that were decided in the first half of 2015.

Airbnb And The Housing Segment Of The Modern Sharing Economy: Are Short-Term Rental Restrictions An Unconstitutional Taking, Jamila Jefferson-Jones

Law Faculty Research Publications

No abstract provided.

Airbnb And The Housing Segment Of The Modern Sharing Economy: Are Short-Term Rental Restrictions An Unconstitutional Taking, Jamila Jefferson-Jones

Law Faculty Research Publications

No abstract provided.

A Three-Legged Stool On Two Legs: Recent Federal Law Related To Local Climate Resilience Planning And Zoning, Sarah Adams-Schoen, Edward Thomas

Scholarly Works

Notwithstanding a critical gap between climate change related risks and preparedness in the United States, congress has yet to pass any federal law expressly addressing climate change hazard mitigation (or any other aspect of climate change) and appears unlikely to do so anytime soon. Despite this, the first half of 2015 has seen a number of actions in the other two branches of the federal government with significant implications for local hazard mitigation planning, zoning, and development. Of particular note, and as discussed in more detail below, the President issued an Executive Order and the Federal Emergency Management Agency (FEMA) …

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. …

On The Waterfront: New York City's Climate Change Adaptation And Mitigation Challenge (Part 2 Of 2), Sarah J. Adams-Schoen

Scholarly Works

New York City, like other major cities around the world, has acknowledged the problem of climate change and begun to implement proactive policies to decrease the city’s contribution to the problem (i.e., mitigation) and to make the city less vulnerable to the effects of climate change (i.e., adaptation). The City’s initiatives have been comprehensive and progressive, especially its climate change-related data analysis and communication initiatives including NPCC, and its comprehensive reform of building and other related codes. The City’s commitment to reduce greenhouse gas emissions by 30% by 2030 and its progress toward that goal are also laudable, but the …

Koontz V. St. Johns River Water Management District, Ross Keogh

Public Land & Resources Law Review

Koontz extends the application of Nollan and Dolan, which require exactions of real property for land-use permits to share a “nexus” and be “roughly proportional” to the regulation to be constitutional. A divided United States Supreme Court held that “monetary exactions,” potentially including building permit fees or impact fees, must satisfy the Nollan and Dolan requirements even if the government denies the permit.[1] The Court did not reach the merits of the petitioner’s appeal.

[1](Kagan, Ginsburg, Breyer, and Sotomayor, JJ., dissenting).

Cityland – Vol. 10, No. 7, Center For New York City Law

CityLand - 2013

This issue of CityLand highlights key land use and preservation developments in New York City as of August 2013. The City Planning Commission held hearings on Phase 1 of the Willets Point redevelopment and the adAPT NYC micro-unit pilot program. The Landmarks Preservation Commission designated the Holland Plaza Building and considered several controversial proposals, including a seven-story building in Greenwich Village and a two-story addition to the Evelyn on the Upper West Side. A new residential building at 74 Grand Street incorporating a salvaged cast-iron façade was approved. The Steinway & Sons reception room was considered for interior landmark designation. …

Cityland – Vol. 10, No. 6, Center For New York City Law

CityLand - 2013

This issue of CityLand covers significant land use and preservation developments in New York City as of July 2013. The City Council approved the BAM South mixed-use cultural and residential tower in Fort Greene, Brooklyn, with increased affordable housing and cultural space commitments. The Council also passed the “Brunch Bill,” allowing sidewalk cafes to open earlier on Sundays. The Landmarks Preservation Commission designated the Forest Park Carousel, the Beaumont Apartments in Harlem, the Church of St. Paul the Apostle, the Marine Midland Bank, and the Seward Park Library. Hearings were held for the South Village Historic District and the former …

Land Ethic Under Attack: Keystone Xl And The War Over Domestic S(Oil), Heather Culp

Environmental and Earth Law Journal (EELJ)

The Keystone XL pipeline has caused recent controversy and renewed the debate over the future of fossil fuels in the United States. The project pits largely conservative groups, who argue that the pipeline will create jobs and decrease America’s dependence on foreign oil, against environmental advocates, indigenous tribes, and private landowners, who are attempting to fend off the project because they believe it will displace them of their own lands as well as disrupt the natural ecosystems that lay in the pipeline’s path. In the wake of a presidential veto of the project and renewed sentiment by the pipeline’s …

Cityland – Vol. 10, No. 5, Center For New York City Law

CityLand - 2013

This issue of CityLand covers major land use and preservation developments in New York City as of June 2013. The City Council reviewed legislation to streamline sidewalk café licensing and expand operating hours, sparking debate over community board review timelines. The Landmarks Preservation Commission approved a revised six-story residential building at 42 Crosby Street and authorized emergency facade demolition at 321–323 Canal Street due to structural instability. Tammany Hall at 100 East 17th Street entered the landmarking process, and the Marine Midland Bank building at 140 Broadway received strong support for designation. A guest commentary from Time’s Up highlighted the …

Cityland – Vol. 10, No. 4, Center For New York City Law

CityLand - 2013

This issue of CityLand highlights key land use and preservation developments in New York City as of May 2013. The City Planning Commission began review of adAPT NYC, the City’s first micro-unit housing development, featuring 55 compact apartments and shared amenities. The Landmarks Preservation Commission held a hearing on the designation of the Seward Park branch of the New York Public Library, a 1909 Carnegie-funded building. A new sustainable office and retail development near the Puck Building in SoHo was approved, praised for its green design and contextual sensitivity. The Bedford-Stuyvesant/Expanded Stuyvesant Heights Historic District was designated, concluding a 20-year …

Cityland – Vol. 10, No. 3, Center For New York City Law

CityLand - 2013

This issue of CityLand highlights major land use and preservation developments in New York City as of April 2013. The City Council approved Trinity Church’s Special Hudson Square District rezoning with modifications to encourage affordable housing and open space, including landmarking efforts for the South Village. The Landmarks Preservation Commission approved a revised nine-story building at 325 West Broadway and rejected a proposed building adjacent to the Merchant’s House Museum due to design and preservation concerns. Alloy Development’s townhouse project at 55 Pearl Street in DUMBO received approval after design refinements. A new building at 74 Grand Street will incorporate …

Zoning For Apartments: A Study Of The Role Of Law In The Control Of Apartment Houses In New Haven, Connecticut 1912–1932, Marie C. Boyd

Faculty Publications

This article seeks to contribute to the legal and policy debates over zoning by providing a more detailed examination of the impact of apartments on both pre-zoning land use patterns and the zoning process during the formative initial stages of zoning in the United States than has been provided in the literature to date. Specifically, this Article analyzes the impact of apartments on both pre-zoning land use patterns and the zoning process in New Haven, Connecticut. It focuses on the period beginning with the selection of New Haven’s first Zoning Commission in 1922, and concluding with the passage of New …

Cityland – Vol. 10, No. 2, Center For New York City Law

CityLand - 2013

This issue of CityLand covers key land use and preservation developments in New York City as of March 2013. Highlights include City Council Speaker Christine Quinn’s State of the City Address, which focused on affordable housing and middle-class support. The Council held hearings on the Special Hudson Square District rezoning, with concerns raised about open space and landmarking the adjacent South Village. The Council also approved the rezoning of the Maple Lanes Bowling Alley site in Brooklyn for a 112-unit residential development and a synagogue. The City Planning Commission approved the Hudson Square rezoning with modifications, including height adjustments and …

Chasing The Atticus Code - Preserving Adjudication Integrity In Local Administrative Hearings , Michael N. Widener

Journal of the National Association of Administrative Law Judiciary

In the United States administrative law realm, there purportedly exist more than 19 thousand municipal governments, 16 thousand town or township governments; three thousand county governments, 13 thousand school districts and 35 thousand special district governments. This essay argues that these local adjudicative loci largely neglect the ethical guidance or direction of lawyers serving in government-official capacities without holding elected nor judicial positions. I dub these decision-makers “Atticus.” Citizens support the notion of external codes of professional responsibility for such persons not necessarily because they believe that “lawyering rules” are well constructed or property enforced, but because they doubt lawyers …

Corporate Social Responsibility And Conservation: The Preservation Of Ecology And Culture To Sustain The Sea Islands, Kamille Wolff Dean

William & Mary Environmental Law and Policy Review

This Article posits that corporate real estate development of coastal property can coexist with conservation strategies to preserve the ecological and cultural integrity of the barrier islands along the southeastern seaboard. Reformed corporate land use techniques that reflect prudent and sustainable master-planned communities may result in manageable natural and cultural resource preservation. The Introduction defines the historical, cultural, and ecological significance of the Sea Islands, an archipelago stretching from the Carolinas to Florida. Part I presents a series of corporate real estate redevelopment projects on the Sea Islands for analysis. Part II sets forth viable solutions for the implementation of …

Cityland – Vol. 10, No. 1, Center For New York City Law

CityLand - 2013

This issue of CityLand highlights major land use and preservation developments in New York City as of February 2013. It opens with a retrospective of the top ten stories of 2012, including NYU’s campus expansion, the landmarking of Brinckerhoff Cemetery, and the Chelsea Market expansion. The City Council approved the East Village/Lower East Side Historic District, while the City Planning Commission celebrated its 75th anniversary and advanced the Durst West 57th Street development. A proposed rezoning in Flushing faced opposition from Community Board 7. Landmark Preservation Commission approved the renovation of the Rainbow Room and denied legalization of unauthorized alterations …

What Every Land Use Lawyer Should Know About The Emerging Use Of Health Impact Assessment And Land Use Decision Making, Patricia E. Salkin, Pamela Ko

Scholarly Works

The field of Health Impact Assessment is relatively new to the United States, but already a number of state and local governments are incorporating these assessments into land use planning and decision making. In five years, the use of HIA in the U.S. has increased dramatically with more than 100 HIAs completed or in progress in the U.S. from 2007 to 2010. This article provides a brief overview of HIA in the United States, describes how it is being used in other states with respect to land use decision making, and examines how HIA is starting to be incorporated into …