Land Use Law Commons^™

The Search For A National Land Use Policy: For The Cities' Sake, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

This article offers a survey of federal legislation and statements of policy that have shaped and directed land use and related phenomena, including the location of population, economic growth, and the character of urban development. Part I of this article provides a historical development of land use policies and laws, as well as presents academic and scientific theories supporting a national land use policy. Part II of this article describes patterns of urban and suburban growth and their consequences, such as the decline of the viability of cities and the loss of agricultural land. Part III discusses the government's spending …

Adult Uses And The First Amendment: The Stringfellow’S Decision And Its Impact On Municipal Control Of Adult Businesses, Steve Mcmillen

Touro Law Review

No abstract provided.

Tort Law, Honorable Leon D. Lazer

Touro Law Review

No abstract provided.

Enforcement Of Restrictions By Homeowners Associations: Balancing Individual Rights And Community Interests, Gerald Korngold

Articles & Chapters

Residential developments often create a general scheme of restrictions, operate common facilities, and establish an owners association to enforce the restrictions and operate the common areas. Private governments raise difficult public policy and legal issues. Private regimes should generally be enforced as they encourage the efficient use of land, allow choice in living arrangements, and foster participatory democracy. At the same time, though, the restrictions can offend personal autonomy, create inefficiencies, and permit undue control by past generations over present owners. The law should therefore enforce homeowners association covenants that prevent harmful fallout on the neighborhood, but they should not …

Recreational Zoning: Concept Used In Inappropriate Context Raises Troubling Issues, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

The Second Department Appellate Division’s holding in Bonnie Briar Syndicate, Inc. v. Mamaroneck upheld local rezoning in Mamaroneck, New York, from residential to recreational use despite legal challenges that the zoning change constituted an unreasonable use of municipal police power as well as a regulatory taking. The case cited several New York precedents. Each held that so long as rezoning is in accordance with the local comprehensive plan, the zoning shall be held constitutional. However, concerns linger among private residents and local municipalities regarding recreational rezoning projects, which despite providing significant benefits for the community, must be justified by a …

City's Watershed Regulation: Localities, Landowners Object To Changes In Jurisdiction, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

The Watershed Rules and Regulations, created by New York City’s Department of Environmental Protection, influence several facets of law, including the ability of local governments to regulate actions such as construction. Several landowners in the affected area have taken issue with the regulation. Specifically, they challenge the constitutionality of the city’s extraterritorial control on outside municipalities because of the resulting diminutive effect of the regulations on private property values. This article discusses these issues, as well as the legal ability for potential plaintiffs to sue.

Rfra Is Not Needed: New York Land Use Regulations Accommodate Religious Use, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

The case of City of Boerne v. Flores marked an important day in the history of the Constitution. The decision of the United States Supreme Court invalidated the Religious Freedom Restoration Act as applied to a local Texas zoning ordinance. The ordinance created a historical preservation area in an attempt to curb a church from expanding its buildings. The Supreme Court held that the Freedom Restoration Act went beyond Congress’s power because of the Act’s broad coverage and potential to intrude on laws regardless of context. This holding parallels the general application of the New York case law, which, generally …

Land Use And The First Amendment, Alan C. Weinstein

All Maxine Goodman Levin School of Urban Affairs Publications

The past year saw no cessation in cases reporting on the conflicts that arise when local land-use regulation is applied to uses claiming protection under the First Amendment. This report highlights the major developments in this area.

Fashioning A Comprehensive Environmental Review Code For Tribal Governments: Institutions And Processes, Dean B. Suagee, Patrick A. Parenteau

American Indian Law Review

No abstract provided.

Takings From Freund To Fischel." Review Of Regulatory Taking: Law, Economics, And Politics, By W. A. Fischel, James E. Krier

Reviews

The regulatory takings problem is easy to describe but difficult to resolve. The government enacts restrictions on land use that reduce the market value of the targeted parcels by a considerable amount. The restrictions are couched in terms of the police power, but actually they might amount to a taking that requires compensation, not because any of the land has been wrested away (it hasn't), but because much of the value has. Through the police power the government gets to govern for free, whereas with takings it's pay as you go. On what does the distinction-police power or taking-depend?

When Religion Becomes A Nuisance: Balancing Land Use And Religious Freedom When Activities Of Religious Institutions Bring Outsiders Into The Neighborhood, Shelley Ross Saxer

Kentucky Law Journal

No abstract provided.

Sustainable Use Of The Denver Basin, Charles B. White

Sustainable Use of the West's Water (Summer Conference, June 12-14)

20 pages.

Contains footnotes.

Report Of The Committee On Land Use, Planning And Zoning Law - Report Of The Subcommittee On Land Use And The First Amendment, Alan C. Weinstein

All Maxine Goodman Levin School of Urban Affairs Publications

The past year saw no cessation in cases reporting on the conflicts that arise when local land use regulation is applied to uses claiming protection under the First Amendment. This report highlights the two major developments in this area - the courts' the treatment of claims brought under the Religious Freedoms Restoration Act of 1993 and the latest decision of the U.S. Supreme Court concerning sign regulation, City of Ladue v. Gilleo, and discusses other cases involving regulation of religious institutions, adult businesses and signs.

The Supreme Court's Land Use Decisions (Symposium - The Supreme Court And Local Government Law, 1993-94 Term), Leon D. Lazer

Scholarly Works

No abstract provided.

Takings And Water Rights [Includes Unsigned Annotations By David Getches], David H. Getches

Regulatory Takings and Resources: What Are the Constitutional Limits? (Summer Conference, June 13-15)

13 pages (includes 1 illustration).

Includes unsigned annotations by David Getches.

Examining The Current State Of Post-Comprehensive Plan Land-Use Decision Making In Florida: A Property Owner's Guide To The Local Government Comprehensive Planning And Land Development Regulation Act, John E. Fennelly

St. Thomas Law Review

Understanding the landscape of Florida's land use law is becoming increasingly difficult. In two recent companion cases decided by the Florida Supreme Court, judicial review under the Local Government Comprehensive Planning and Land Development Regulation Act clashes with the Act and its stated intent, placing further uncertainty upon the shifting terrain which already existed. This article analyzes Board of County Commissioners of Brevard County v. Snyder (Snyder R1), and Parker v. Leon County (Parker III), and argues that more confusion is generated by these decisions than is resolved. Snyder II represents the court's grappling for a resolution of the district …

Affordable Housing: Update On Federal And State Activities, Patricia E. Salkin

Scholarly Works

No abstract provided.

Privatization In Eastern Germany: A Comprehensive Study, Rainer Frank

Vanderbilt Journal of Transnational Law

One of the greater problems arising from the reunification of Germany has been the privatization of land in eastern Germany. Initially, the principle that shaped the privatization policies was restitution, the idea that land unlawfully taken by the former East German government should be returned to its rightful owner. A second goal of the privatization program was to stimulate investment in the economy of eastern Germany. These two goals, however, have conflicted. The result has been a policy that has created confusion with regard to the ownership of property and clear title. This Article examines two series of amendments, in …

Land Use Law Reform: A Judicial And Practical Imperative, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

The practical lesson learned from a review of New York case law on land use planning is straightforward: judges will seldom overturn land use regulations when it is obvious, in the structure of the regulatory program, that considerable and comprehensive planning is involved. When judges sustain land use regulations, they routinely find in the regulatory scheme a valid local planning objective that saves the regulation from falling under the property owner's attack. The bases for this judicial reasoning lie in the statutory requirement that zoning provisions must be adopted "in accordance with" a "comprehensive plan" and the constitutional requirement that …

Regulation Of Wetlands In Western Washington Under The Growth Management Act, Alison Moss, Beverlee E. Silva

Seattle University Law Review

Wetlands protection has long been an important issue in the central Puget Sound. With the passage of the Growth Management Act (GMA), all counties and cities within the state are now required to adopt regulations "protecting" critical areas, including wetlands. This requirement furthers the GMA's environmental goal to "[p]rotect the environment and enhance the state's high quality of life, including air and water quality, and the availability of water." This Article will explore these and related issues arising under the wetlands regulatory scheme in Washington following the adoption of the GMA. It will show how this complex, multi-layered regulation scheme …

Dashed "Investment-Backed" Expectations: Will The Constitution Protect Property Owners From Excesses In Implementation Of The Growth Management Act?, Elaine Spencer

Seattle University Law Review

Section I briefly discusses the basic principles of takings law as enunciated by prior cases, as well as the United States Supreme Court's recent decision in Lucas v. South Carolina Coastal Council, and the Washington Supreme Court's recent decisions in Sintra, Inc. v. Seattle and Robinson v. Seattle. Although the Lucas decision has received considerable publicity, it advanced the state of the law rather little. The real guidance for future decisions arising out of the GMA will come from earlier United States Supreme Court decisions and the Washington Supreme Court's decisions in Sintra, Robinson, and Lutheran …

Takings Law, Lucas, And The Growth Management Act, John M. Groen, Richard M. Stephens

Seattle University Law Review

In light of Lucas and the recent constitutionally questionable Washington decisions, government entities charged with implementing the GMA may have a more difficult time avoiding takings liability than previously thought. Accordingly, this Article first seeks to clarify the modern takings analysis as refined by Lucas. Second, Washington takings precedent is contrasted with the federal approach and several key changes are suggested to make state law consistent with controlling federal precedent. Third, key aspects of the GMA are identified that can be expected to raise takings implications. By identifying potential trouble spots in the GMA now, hopefully some takings will …

Is The Growth Management Act Working? A Survey Of Resource Lands And Critical Areas Development Regulations, Gary Pivo

Seattle University Law Review

Section II of this Article begins with a summary of Washington's statutory requirements for both local resource land and critical area development regulations. Section II then reviews the circumstances under which those regulations have been adopted. Section III describes the methods used by the research team to collect and evaluate those regulations. Section IV examines whether Washington counties and cities have met their adoption deadlines. Section V describes the general approaches being taken for meeting those requirements. Section VI compares the regulations to one another in order to judge their consistency and relative restrictiveness throughout Washington. Section VII looks at …

Practice And Procedure Before The Growth Planning Hearings Boards, Wm. H. Nielsen, M. Peter Philley, Chris Smith Towne

Seattle University Law Review

In 1990, the Washington State Legislature took the first significant step toward growth management when it enacted the Washington Growth Management Act (GMA). The GMA directs cities and counties to protect natural features and to begin planning to accommodate anticipated population increases. The legislature examined the recommendation of the Growth Strategies Commission' to create an independent dispute resolution system to resolve conflicts under the GMA. The Commission recommended the use of a panel of independent arbitrators with mediation and binding arbitration. Appeals would be limited to the Washington State Court of Appeals only on constitutional and procedural issues. The legislature …

Regional Planning In New York State: A State Rich In National Models, Yet Weak In Overall Statewide Planning Coordination, Patricia E. Salkin

Scholarly Works

No abstract provided.

The Fair Housing Act, Zoning, And Affordable Housing, Patricia E. Salkin, John M. Armentano

Scholarly Works

No abstract provided.

Race, Space, And Place: The Relation Between Architectural Modernism, Post-Modernism, Urban Planning, And Gentrification, Keith Aoki

Fordham Urban Law Journal

Since the early 19th century, American city planning and architectural design has sought to reconcile the city with the countryside. During the late 19th and early 20th centuries, city planning focussed on bringing elements of the country to the urban landscape, while for much of the 20th century architectural designs sought to make the city more accessible to suburbanites. Both approaches to urban planning were based on architectural modernism, which led to city development plans that reflected developers' subjective value laden biases about urban life. The result was significant urban decay as zoning regulations and utilitarian city planning resulted in …

Planner's Panacea Or Pandora's Box: A Realistic Assessment Of The Role Of Urban Growth Areas In Achieving Growth Management Goals, Keith W. Dearborn, Ann M. Gygi

Seattle University Law Review

Over the past twenty years, Urban Growth Areas (UGAs) have become a tool of choice to manage growth. Numerous states and local jurisdictions have mandated UGAs in hope of confining urbanization, reducing sprawl, protecting open space and resource lands, and minimizing infrastructure investment. Washington State joined the trend in 1990 when it adopted the Growth Management Act (GMA), which requires certain counties to establish UGAs as a central component of its "bottom up" growth management strategy. Nonetheless, thoughtful criticisms have been offered regarding the utility of UGAs to accomplish intended growth management goals, and concerns have emerged regarding unintended consequences …

There Goes The Neighborhood: The Evolution Of "Family" In Local Zoning Ordinances, William Graham

Touro Law Review

No abstract provided.

Between Scylla And Charybdis: Growth Management Act Implementation That Avoids Takings And Substantive Due Process Limitations, Jeffrey M. Eustis

Seattle University Law Review

This Article begins with an overview of the GMA. It then proceeds with a summary of recent case law under the Takings Clause and substantive due process doctrine. After laying this groundwork, this Article focuses on four particular areas of growth management control and explores how local legislation implementing these areas of control would be analyzed under the Takings Clause and substantive due process. These four areas of land use regulation include: critical area protections, resource land designations, development phasing requirements for concurrency and urban growth areas, and impact fees for public facilities and services. This Article then concludes with …