Land Use Law Commons^™

The Soil Crisis In Modern Food Systems: Rethinking Agricultural Land Use, Antonia Moure Richard

Journal of Food Law & Policy

Feeding a larger world while preserving the resource that makes agriculture possible—soil—poses a governance problem. By 2050, food systems must support 9.8 billion people even as prevailing practices continue to degrade soils that are non-renewable on human timescales. Technological fixes (e.g., vertical farming, hydroponics) may complement production, but they cannot substitute for soil at scale. The question that follows is simple: are current uses of soil compatible with the future needs of food systems? This article argues that without a shift in governance, short-run productivity gains are achieved by drawing down the soil asset, thereby undermining long-run food security and …

The Exactions Illusion: Sheetz’S Missing Dissent, Lee Anne Fennell, Timothy M. Mulvaney

Faculty Scholarship

In April 2024, the Supreme Court unanimously handed down Sheetz v. County of El Dorado, a land use exactions case billed as narrow, inevitable, constitutionally compelled, and obviously correct.  It was none of those things. Sheetz instead ushered in an open-ended shift of policy control over the built environment from state and local legislatures to courts. By its terms, the holding extended the Court’s stringent “exactions” test—which requires the government to prove nexus and proportionality between development conditions and development impacts—beyond its original context of parcel-specific administrative bargains to reach an unspecified set of legislated property conditions. Yet the decision’s …

More Than Words: Using Land Use Rules To Fight Climate Destruction, Edward Sullivan

Journal of Comparative Urban Law and Policy

It is now unlikely that meaningful federal legislation on climate destruction will be advanced in a second Trump administration. If “no action” is the alternative for the federal government, it will be up to the states to develop measures to counteract this challenge. These measures — in response to a trend in Supreme Court rulings that restrict or deny federal environmental action without explicit congressional approval – could include, among other things, new air and water quality standards, fishing restrictions, and changes to water allocations in our rivers. Yet these potential changes may be themselves limited by federal actions that …

Brigham-Kanner Property Rights Journal, Volume 14, William & Mary Law School

Brigham-Kanner Property Rights Journal

Gideon Kanner Remembrance

September 12-13, 2024

Restructuring Property: A Tribute to Lee Fennell

Background Principles, General Law, & Constitutional Property

Roundtable: Unfinished Business & Emerging Issues

Property Rights and Housing In Crisis

Government Trespass: The Fourth Amendment "Open Fields" Doctrine Turns 100

Suggested Revisions In Maine's Planning And Land Use Control Enabling Legislation—Part Ii, Orlando E. Delogu

Maine Law Review

The process which transfers land from its natural or an unintensively used agricultural state to house lots, shopping centers, or industrial sites is often referred to as land subdivision. No more long-lasting or fundamental series of changes with respect to the land can be imagined; yet the process in Maine is not only unregulated by the state and by most local levels of government, but is not at present capable of being regulated in any meaningful sense of the word. No state statutes exist which impose even the most reasonable standards, limitations, or procedural safeguards on either the process of …

I Demand The Right To Destroy My Church! The Relationship Between The Religious Land Use And Institutionalized Persons Act And The Religious Right To Demolish Historic Churches, Mikayla D. Kelz

Northern Illinois University Law Review

Prohibitions and restrictions on land use by Historic Preservation Committees via landmark laws are common and hinder an owner’s right to control the land. Religious institutions possess an important piece of federal legislation to combat landmark laws, known as the Religious Land Use and Institutionalized Persons Act (RLUIPA). Even with this advantage in their pocket, churches continue to face local opposition on the ability to renovate and demolish their churches due to the overly regulatory nature of landmark laws. Federal courts vary on the criteria in determining whether a landmark designation can withstand the right to religious exercise via land …

Nineteenth Century Dams And Twentieth Century Problems: Commentary On A Statutory Solution, G. Graham Waite

Maine Law Review

In times past streams were commonly dammed to provide water power for machinery, improve navigation, or serve some other business purpose. The dams today pose serious problems for the public and for riparian owners along the dammed streams, problems stemming from either operation of the dams or failure to maintain them properly. The dams are operated to further the business purposes for which they were built, sometimes resulting in water levels or flows detrimental to game fish in the streams and to shoreline recreational property. When the old dams cease to be economical to operate, as often has happened, the …

The Misuse Of Land Use Control Powers Must End: Suggestions For Legislative And Judicial Responses, Orlando E. Delogu

Maine Law Review

Municipal governments in almost all parts of the country are frequently inclined to exercise their police, spending, and policymaking powers in an impermissibly exclusionary manner. Their objective in many instances is simply to keep population growth and local property taxes down. In Maine these tendencies are very much in evidence. This misuse of local governmental powers is almost totally predicated on a misconception of the status of local governments and the purposes for which they exist. Local governments are not sovereign. They are not independent units of government. They are subunits of state government, creatures of the state analogous to …

Securing Solar Access In Maine, Martha Freeman

Maine Law Review

This Comment explores the common law property concepts of nuisance, water law, and easements which arise by operation of law in order to determine the kind and degree of solar access protection they can provide Maine residential users of solar energy. The final section of this Comment proposes an express solar easement by which Maine citizens can create their own enforceable interests in unobstructed sunlight for solar energy use. In highly urbanized areas where space is scarce and already developed, the conflicts between solar energy users and other land and airspace users may be too difficult to resolve. In Maine, …

A Response To Professor Delogu: Is Impermissible Exclusion A Reality In Maine?, Madge Baker

Maine Law Review

A basic premise of Professor Orlando Delogu's article, The Misuse of Land Use Control Powers Must End: Suggestions for Legislative and Judicial Responses, is that many Maine municipalities are using their land use regulatory powers in impermissibly exclusionary ways. Professor Delogu proposes that the legislature and courts of Maine should respond to correct the situation. This Commentary will attempt to illustrate that Professor Delogu has failed to document his premise or to define accurately the difference between permissible and impermissible exclusion. He is unable, therefore, to substantiate the need for state intervention in an area of law traditionally delegated to …

A Final Note On The Misuse Of Land Use Control Powers Must End: Suggestions For Legislative And Judicial Responses, Orlando E. Delogu

Maine Law Review

The Baker criticism of my article is flawed in several major respects. First, while tacitly accepting the basic premise of the article that impermissible exclusion may be achieved by local misuse of a wide variety of facially permissible land use control tools, Ms. Baker argues that merely because the article did not demonstrate a sufficient degree of misuse in Maine, the corrective measures suggested are unwarranted. But a full reading of the article makes clear that no such exhaustive indictment of Maine towns was intended. The article was not an empirical study. The article intended to point out a widening …

Coastal Recreation: Legal Methods For Securing Public Rights In The Seashore, Jeffrey D. Curtis

Maine Law Review

The coastal shores of the United States are a peculiar form of property in that both the littoral landowner and the general public have legally protected interests in the use and enjoyment of the land. In most coastal states the title to the land below the high-water mark is vested in the state in trust for the beneficial use of the public, subject to certain limited rights of the littoral owner. Maine and Massachusetts, however, share a unique allocation of public and private interests which vests the title to the foreshore, the land between the high and low water marks, …

The Dilemma Of Local Land Use Control: Power Without Responsibility, Orlando E. Delogu

Maine Law Review

Land use planning and control has traditionally been perceived as a set of issues best dealt with by local government. State governments historically have been called upon to provide nothing more than a suitable framework of planning and land use control enabling legislation. In recent years some states have sought to address land use issues having regional or statewide impact. This has usually been done on an intra-state basis, however, and meaningful interstate or multi-state approaches to land use problems, though much discussed in the literature, are almost non-existent in practice. Federal involvement in land use issues has also been …

Hillbilly Resurrection: A Response To Reviving Rural America, Jesse J. Richardson Jr.

West Virginia Law Review

No abstract provided.

Another Veil Of Protection For Exclusionary Zoning Ordinances: Warren V. Municipal Offices Of Gorham, Peter A. Gleichman

Maine Law Review

In Warren v. Municipal Officers, the Maine Law Court refused to alter the rules it articulated eighteen years ago for reviewing municipal zoning decisions and reaffirmed the application of a narrow standard of review of allegedly exclusionary zoning ordinances. The plaintiffs asserted that the Gorham zoning ordinance, which prohibited them from locating a single-unit modular home' on their land and restricted such units to mobile home parks, unconstitutionally discriminated against them. On appeal of the denial of a permit for the Warrens to place their modular home on their property, the Superior Court held that state statutes regulating the construction …

The Effectiveness Of The Minnesota Buffer Law And Its Impacts On People, Ellen P. Isakson

Journal of Earth and Life Science

In January 2015, the then-governor of Minnesota Mark Dayton announced new legislation that would require 50-foot vegetation buffers along all waterways in Minnesota; this legislation would come to be known as the Minnesota buffer law, exact requirements being “perennial vegetative buffers of up to 50 feet along lakes, rivers, and streams and buffers of 16.5 feet along ditches” (Albert, 2017; MN Board of Water and Soil Resources [MN BWSR] 4 ). A buffer in the context of vegetation and natural resource management is a strip of vegetation around a body of water “designed to intercept stormwater runoff and minimize soil …

Local Land Use Controls: An Idea Whose Time Has Passed, Orlando E. Delogu

Maine Law Review

The suggestion that local land use control powers are not working well—that they may not be susceptible to modest but useful reforms or modifications and thus ought to be more drastically altered or abandoned altogether—is not new. Beginning nearly twenty years ago with Richard Babcock's publication of The Zoning Game, the literature and case law in the field is rife with express and implied suggestions that too much land use control power has been given to local governments. More recently Professor Jan Krasnowiecki suggested we abolish zoning, and the New Jersey court in its latest Mount Laurel decision underscored the …

Brigham-Kanner Property Rights Journal, Volume 13, William & Mary Law School

Brigham-Kanner Property Rights Journal

Property and Propriety (or A Well-Ordered Society)

October 26-27, 2023

Panel 1: Property and Propriety (or A Well-Ordered Society): A Tribute to Gregory S. Alexander

Panel 2: Equity's Role in Defining Property Rights

Panel 3: Roundtable: Emerging Issues

Panel 4: The Restatement's Impact on Property Rights

Panel 5: The Scalability of Property Rights

Note

"Zoning" Matters: Rluipa And The New Normal Of Religious Discrimination, Michael Allan Wolf

UF Law Faculty Publications

The protection of religious freedom under federal law waxes and wanes, depending on two unpredictable factors: judicial activism and congressional action. A review of dozens of cases involving alleged violations of the Religious Land Use and Institutionalized Persons Act (RLUIPA), including two recent cases heard by the Supreme Court and the Fourth Circuit, reveals for the first time that many litigants and judges have ignored the congressional injunction to limit the reach of RLUIPA to two (and only two) forms of land-use regulation: zoning and landmarking. Plaintiffs have instead used RLUIPA to challenge water and sewer, septic, fire prevention, building, …

What The Cluck? Backyard Chickens And Maine's Mysterious Right To Food, Lucy Weaver

Maine Law Review

When Maine voters approved the nation’s first “right to food” constitutional amendment, many were concerned about the amendment’s potential to conflict with animal welfare, food safety, and other regulations currently in place at the state and local level. Born from a decade of advocacy, the amendment represents a new era for Maine’s food sovereignty movement. However, the boundaries of the amendment remain unclear, and Maine’s municipalities lack sufficient guidance as they attempt to navigate how this amendment applies to them. This Comment explores one example of the many challenges that may arise from the enactment of the right to food …

Opposition To Renewable Energy Facilities In The United States: June 2024 Edition, Matthew Eisenson, Jacob Elkin, Harmukh Singh, Noah Schaffir

Sabin Center for Climate Change Law

Achieving lower carbon emissions in the United States will require developing a massive number renewable energy facilities at an unprecedented scale and pace. Although many renewable energy facilities are sited without any problem, local opposition often arises. This report updates and considerably expands three previous Sabin Center reports, published in September 2021, March 2022, and May 2023, which document local and state restrictions against, and opposition to, siting renewable energy projects, as well as energy storage and transmission projects that are closely tied to renewable energy generation. The time period covered by this report ranges from as early as 1995 …

The Uncertain Future Of Tourism On Migrating Barrier Islands: How And Why The Outer Banks Of North Carolina Should Adjust To Growing Threats, Lillian Coward

William & Mary Law Review

Erosion, storms, and the migration of the barrier islands that comprise the Outer Banks themselves are not new. The rising seas that have resulted from climate change have merely exacerbated what has always occurred. What is new, however, is the economic havoc that natural processes and disasters alike can wreak on the islands. Today, because climate change has accelerated natural island migration, individuals, local governments, and the federal government alike have a lot to lose in the fight against the tides.

[...]

This Note will evaluate a variety of potential solutions to the problems that pose nearly existential threats to …

Soil Governance And Private Property, Sarah J. Fox

Utah Law Review

This is an Article about soil. In consequence, it is also an Article about our relationship to land, and about how that relationship can and must change to confront the many environmental crises facing the United States. Questions about our relationship with the physical environment around us necessarily come to the fore in conversations about soil because of its several identities. It is one of Earth’s most precious resources—the substance responsible for allowing plants to grow, filtering pollutants out of water, providing habitat to countless organisms, sequestering carbon, and providing many other valuable functions. Soil also, however, makes up the …

Green Amendments Land Use And Transportation: What Could Go Wrong?, Michael Lewyn

Scholarly Works

Numerous states have amended their constitutions to include a green amendment (that is, an amendment providing that the state's citizens have a right to a healthy environment). Unfortunately, the vagueness of these amendments leaves an enormous amount of interpretative power to courts. This article examines how some courts have interpreted green amendments and how these interpretations risk the misuse of green amendments. Additionally, this article examines how such misuse may be avoided.

Preserving Manufactured Housing Communities In An Affordable Housing Crisis: How Resident Ownership Offers The Solution, Julia Okerman

Mitchell Hamline Law Review

No abstract provided.

Brigham-Kanner Property Rights Journal, Volume 12, William & Mary Law School

Brigham-Kanner Property Rights Journal

The Importance of Property Rights

September 29-30, 2022

Panel 1: The Importance of Property Rights: A Tribute to James S. Burling

Panel 3: Roundtable: Emerging Issues in Takings and Property Rights Litigation

Featured Authors (Burling, Kanner, and Valois)

The Future Of Crypto-Asset Mining: The Inflation Reduction Act And The Need For Uniform Federal Regulation, Liz Guinan

Sustainable Development Law & Policy

Crypto-asset mining is energy-intensive and environmentally harmful, presenting challenges and opportunities for federal, state and local governments, regulators, and society as a whole. As of December 2021, the United States has thirty-eight percent of the global crypto network hash rate, which is the total amount of computational power used to mine and process crypto transactions, making the United States the world’s largest crypto-asset mining industry. The total electricity consumption of crypto-asset mining in the United States is estimated to be around 121.36 terawatt-hours (“TWh”) per year, which is equivalent to the electricity consumption of approximately 10.9 million households in the …

About Sdlp, Sdlp

Sustainable Development Law & Policy

The Sustainable Development Law & Policy Brief (ISSN 1552-3721) is a student-run initiative at American University Washington College of Law that is published twice each academic year. The Brief embraces an interdisciplinary focus to provide a broad view of current legal, political, and social developments. It was founded to provide a forum for those interested in promoting sustainable economic development, conservation, environmental justice, and biodiversity throughout the world.

The Future Of Pandemics: Land Use Controls As Means Of Preventing Zoonotic Disease, Bailey Andree

Pace International Law Review

Zoonotic diseases are increasing in frequency as climate change worsens around the world, with the recent COVID-19 pandemic highlighting the inadequate mechanisms in place to counteract disease spread. This article reviews various zoonotic diseases and their patterns of spread, highlighting land use change as the key driver of disease to demonstrate the need for legal intervention. International land use law is a little-developed subsect of environmental law that holds the key to combating this disease spread, and this article proposes solutions through this legal lens. Land use techniques which may be used to combat disease spread include conservation laws, setback …

Using Youtube To Explain Housing, Michael Lewyn

Scholarly Works

In 2021, the author ran for Borough President of Manhattan, New York. The author tried to his scholarship into his campaign by producing over twenty Youtube videos, most of which addressed land use and housing policy. The article describes the videos, and evaluates their usefulness.