Land Use Law Commons^™

The Takings Clause, Version 2005: The Legal Process Of Constitutional Property Rights, Mark Fenster

ExpressO

The three takings decisions that the Supreme Court issued at the end of its October 2004 Term marked a stunning reversal of the Court’s efforts the past three decades to use the Takings Clause to define a set of constitutional property rights. The regulatory takings doctrine, which once loomed as a significant threat to the modern regulatory state, now appears after Lingle v. Chevron to be a relatively tame, if complicated, check on exceptional instances of regulatory abuse. At the same time, the Public Use Clause, formerly an inconsequential limitation on the state’s eminent domain authority, now appears ripe for …

Where The Streets Have Many Names: Zoning, Community Power, And The Future Of Shaw, Washington, D.C. , Parag Khandhar

The Modern American

No abstract provided.

Champions Of Change: Reinventing Democracy Through Land Law Reform, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

This Article explores the prospects of achieving policy coherence in the field of land use regulation. It explains how, as municipal governments react to pressures and crises at the local level, they discover and adopt new strategies in a constant process of experimentation. Through a properly constructed legal framework, critical information can be relayed from local to higher levels of government, state and federal legislators and judges can respond, and a "system" of law can evolve. Using theories developed in the fields of systems analysis and diffusion of innovations, the Article describes the process by which local communities perceive land …

Measure 37 And A Spoonful Of Kelo: A Recipe For Property Rights Activists At The Ballot Box, Patricia E. Salkin, Amy Lavine

Scholarly Works

No abstract provided.

Ethical Considerations In Land Use Decision Making: 2006 Annual Review Of Cases And Opinions, Patricia E. Salkin

Scholarly Works

This article reviews reported cases and opinions documenting allegations of unethical conduct involved in land use planning and zoning decision making in 2006.

Regulating Land Use In A Constitutional Shadow: The Institutional Contexts Of Exactions, Mark Fenster

UF Law Faculty Publications

The regulatory takings doctrine, the Supreme Court declared in Lingle v. Chevron, concerns the effects of a regulation on the incidents of property ownership. It serves as a constitutional protection against regulations that impose the functional equivalent to a classic taking of private property (an appropriation by the state or an ouster), and it requires compensation for owners who are subject to such regulations. Just as significant as declaring what the regulatory takings doctrine is, theCourt in Lingle also declared what it is not: it is not a judicial check onthe validity or reasonableness of a regulation that …

States Beginning To Recognize That Training Is Essential For Members Of Planning And Zoning Boards And Local Legislative Bodies, Patricia E. Salkin

Scholarly Works

Members of planning and zoning boards and local legislative bodies constantly make decisions that may be worth millions of dollars to applicants and that may have serious impacts on public health and safety. Unlike other players in the land use decision making process members of local legislative bodies and land use boards have no specific education or training in land use matters prior to their election or appointment putting them in the position to learn solely from “on the job training”. Five (5) states currently require mandatory training and continuing education courses for members of planning boards and zoning boards …

Examining Land Use Planning And Zoning Ethics From A Planner’S Perspective: Lessons For All Stakeholders In The Real Estate Game, Patricia E. Salkin

Scholarly Works

This article examines the Code of Ethics and Professional Conduct of the American Institute of Certified Planners (AICP). Only two states, Michigan and New Jersey, license planners as a profession. This makes ability for planners to achieve certification from the AICP important and raises the prominence of the AICP Code of Ethics, since as a condition of membership, each AICP member agrees to abide by the Code.

Listening To All The Voices, Old And New: The Evolution Of Land Ownership In The Modern West, Charles Wilkinson

Publications

No abstract provided.

U.S. Supreme Court’S 2004 Term Includes Significant Land Use Decisions With A Trilogy Of Takings Cases, Patricia E. Salkin

Scholarly Works

No abstract provided.

New York Case Law Reaches Maturity, John R. Nolon, Jessica A. Bacher

Elisabeth Haub School of Law Faculty Publications

Through a review of recent case history, this article examines the role of courts in land use decisions. The consensus of the holdings is that a court should not substitute it’s discretion for that of a local land use board so long as the board’s decision was based on substantial evidence on the record. The rational for this standard of deference is based on the idea that local land use boards are legislative bodies that understand the needs of the communities they serve. This article highlights several instances where appeals courts reign in the power of trial courts that overstepped …

Court Of Appeals Again Restrains Lower Courts, John R. Nolon, Jessica A. Bacher

Elisabeth Haub School of Law Faculty Publications

Through a review of recent case history, this article examines the role of courts in land use decisions. The consensus of the holdings is that a court should not substitute its discretion for that of a local land use board so long as the board’s decision was based on substantial evidence on the record. The rational for this standard of deference is based on the idea that local land use boards are legislative bodies that understand the needs of the communities they serve. This article highlights several instances where appeals courts reign in the power of trial courts that overstep …

Effective Disaster Mitigation Depends Upon Well-Coordinated Local Land Use Planning And Zoning, Patricia E. Salkin

Scholarly Works

No abstract provided.

Despite Alarmists, 'Kelo' Decision Protects Property Owners And Serves The General Good, John R. Nolon, Jessica A. Bacher

Elisabeth Haub School of Law Faculty Publications

The United States Supreme Court’s decision in Kelo v. City of New London, has spurred national debate, as many people portray the court’s decision as a damaging blow to private property rights. In Kelo, the court confirmed local government’s ability to condemn property in an area designated as blighted by the state, in order to encourage economic development. This article highlights several positive examples of this sort of condemnation in New York case law, where the public interest was served by economic redevelopment. The article goes further, to distinguish several legal decisions from Kelo, where courts invalidated condemnations upon a …

Michigan Supreme Court Overturns Landmark Eminent Domain Case, Patricia E. Salkin

Scholarly Works

No abstract provided.

Paradigms Of Positive Change: Reordering The Nation's Land Use System, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

This article begins with a brief look at the system’s familiar dysfunctions, continues with a lengthier examination of positive examples of reform, emphasizes the importance of coalition building in the reform process, and ends with the observation that reform efforts should be organized by the task of creating essential connections among the governments involved.

Community Redevelopment, Public Use, And Eminent Domain, Patricia E. Salkin, Lora A. Lucero

Scholarly Works

Published just weeks before the U.S. Supreme Court handed down their controversial decision on Kelo v. City of New London in 2005, this article, in correctly predicting the outcome of the Supreme Court opinion, explores in Section I how the concept of what constitutes a public use has evolved over the decades from traditionally accepted uses such as public roads, buildings (e.g., government buildings and schools), and utilities to urban redevelopment. It explains how the broad concepts of community redevelopment have been stretched to encompass needed economic development projects that promise jobs, tax revenue, and other public benefits similar to …

Irresponsible Legislating: Reeling In The Aftermath Of Kelo, Patricia E. Salkin

Scholarly Works

No abstract provided.

Building Healthy Cities: Legal Frameworks And Considerations, Wendy Collins Perdue

Law Faculty Publications

This chapter will explore the range of laws and government policies that have shaped the physical structure of U.S. cities and thereby impacted the health of those cities' residents. This analysis will highlight the many, apparently "private" decisions that have been impacted by government policies. Though some of the laws, policies, prohibitions, and incentives have been formulated explicitly to take into account health considerations, others have unintended effects - both good and bad - on the health of urban populations.

Integrating Local Waterfront Revitalization Into Local Comprehensive Planning And Zoning, Patricia E. Salkin

Scholarly Works

By 2004, more than half of the United States population resided within fifty miles of the coastline, contributing to the mounting pressures on waterfront development. Local waterfront revitalization plans have great potential to efficiently guide community and coastal development in a coordinated fashion across municipal boundaries. Coordination includes intermunicipal and intergovernmental cooperation and consistency as well as coordination between planning and land use controls within the coastal zone and within the boundaries of coastal communities. Part I of this article examines the history of the Coastal Zone Management Act (CZMA)with a particular examination of the Act's impact on local comprehensive …

Relocating Disorder, Nicole Stelle Garnett

Journal Articles

Judicial challenges to order-maintenance policing apparently are leading some city officials to adapt the tools of property regulation to a task traditionally reserved for the police - the control of disorderly people. Examples of efforts to regulate disorder, ex ante, through land-management strategies include homeless campuses that centralize housing and social services, neighborhood exclusion zone policies that empower local officials to exclude disorderly individuals from struggling communities, and the selective targeting of inner-city neighborhoods for aggressive property inspections. These tactics employ different management techniques - some concentrate disorder and others disperse it - but they have same goal: to relocate …

Regional Governance Reconsidered, Janice C. Griffith

Suffolk University Law School Faculty Works

The global economy’s regional scale of operation, social equity concerns, and environmental degradation that transcends local governmental boundary lines propel an examination of whether twenty-first century conditions call for the creation of regional governmental structures in the United States. This article argues that the need to spur economic competitiveness and metropolitan-wide planning and growth management will impel the formation of new regional governance structures. Forging stronger connections between central cities and surrounding suburban strongholds, however, will not be easy. The article discusses the many barriers that prevent fragmented local governments from reaping the benefits of regional cooperation, including localism, state …

Back To The Future Of Conservation: Changing Perceptions Of Property Rights & Environmental Protection, Jonathan H. Adler

Faculty Publications

Some environmental scholars and policymakers have been particularly critical of classical liberal conceptions of private property on both theoretical and practical grounds, suggesting that traditional notions of property rights are incompatible with the demands of environmental protection. Perceiving an environmental crisis borne from Lockean conceptions of property and capitalism, many environmental thinkers came to view the legal protection of private property as an obstacle to environmental sustainability. As a result, the development of command-and-control regulation in the 1960s and 1970s was influenced by the ecological critique of private property.

In recent years, however, the perception of private property's role in …

Religion And Law Use: Constraints On Local Boards' Decision Making, John R. Nolon, Jessica A. Bacher

Elisabeth Haub School of Law Faculty Publications

While local legislatures generally have broad authority to enact land use regulations that serve a public interest, the Religious Land Use and Institutionalized Persons Act as well as constitutional limits found in the First Amendment limit religious land use regulations that seek to restrict religious freedom. This article explores the Second Circuit’s decision in Westchester Day School v. Village of Mamaroneck, and makes suggestions about the future implications of the court’s decision.

The Green Development Movement: Smart Growth With A Green Label, Patricia E. Salkin

Scholarly Works

No abstract provided.

Wireless Telecommunications, Infrastructure Security, And The Nimby Problem, Steven J. Eagle

ExpressO

This article explores the clash between federal policies encouraging wireless communications services and the application of local land use regulations to the siting of telecommunications towers. It concludes that Congress’s effort to strike a balance in the Telecommunications Act of 1996 between local concerns on one hand and national commerce and homeland security on the other has proved vague in content and susceptible to procedural thickets that might make local parochialism impervious to challenge. The article suggests statutory changes, including time limitations and the creation of presumptions and safe harbor rules, that might better balance infrastructure development needs with local …

State Coastal Observations And Monitoring Needs: Results Of A Survey To Assess Coastal Management Needs (Draft Report), Jeff Benoit, Chantal Lefebvre, Dan Hellin, Regan Maund, Jack Thigpen

Urban Harbors Institute Publications

The success of the U.S. Coastal Ocean Observing System will be measured, in part, by how well the needs of the coastal management community are being addressed. The results of this survey indicate that the two most important management issues facing coastal programs are land use and habitat change. It is essential that the planning and implementation of the USCOOS take this fact into account and place a priority on addressing these high priority management needs. This can only be accomplished through the direct long-term involvement of the coastal management community with USCOOS efforts at the national and regional levels. …

Takings Formalism And Regulatory Formulas: Exactions And The Consequences Of Clarity, Mark Fenster

UF Law Faculty Publications

A vocal minority of the U.S. Supreme Court recently announced its suspicion that lower courts and state and local administrative agencies are systematically ignoring constitutional rules intended to limit, through heightened judicial review, exactions as a land use regulatory tool. This article argues that the Court's suspicions are well founded but that blame for judicial and administrative noncompliance lies with the Court's bifurcated approach to the Takings Clause.

Religion And Land Use: Westchester Day School V. Village Of Mamaroneck, John R. Nolon, Jessica A. Bacher

Elisabeth Haub School of Law Faculty Publications

The Westchester Day School and the Zoning Board of Appeals (ZBA) of the Village of Mamaroneck were involved with several lawsuits stemming from a rescinded “negative” State Environmental Quality Review Act (SEQRA) determination by the ZBA after local public outcry of the school’s expansion. This article explores the relationship between Religious Land Use and Institutionalized Persons Act (RLUIPA) and land use regulations, and comes to the conclusions that Congress enacted the RLUIPA to ensure religious organization landowners are not singled out to bear the burdens of the general public.

A Tale Of Three Northern Manhattan Communities: Case Studies Of Political Empowerment In The Planning And Developing Process, Richard C. Bass, Cuz Potter

Fordham Urban Law Journal

This article reviews three development proposals in Northern Manhattan communities, how community boards responded to those proposals, and how the responses affected the outcome of each development. The article begins with a broad overview of the history of community boards' role in urban planning in New York City. It finds that boards have become increasingly influential in new development plans, empowering the communities they represent. The Article goes on to analyze three recent proposals in turn (an expansion of Columbia University in Morningside Heights, a residential development in Central Harlem, and a comprehensive rezoning of East Harlem) according to "zoning," …