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Full-Text Articles in Land Use Law
Mediation As A Tool In Local Environmental And Land Use Controversies, John R. Nolon
Mediation As A Tool In Local Environmental And Land Use Controversies, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
This article dedicates itself to highlighting the benefits of alternative dispute resolution. Through the use of mediation and other flexible alternative dispute resolution methods, many conflicts can be resolved without the use of expensive and timely litigation. In turn, court workloads are relieved and cooperation is fostered among neighbors, companies, and other groups or organizations that would have otherwise resorted to litigation to solve a dispute. Negotiations that involve process experts, such as mediators and facilitators, often diffuse disputes by introducing a cooperative, rather than an adversarial attitude. Government is beginning to embrace alternative dispute resolution and legislatures are passing …
Regulatory Takings: Analyzing Governmental Invasions Of Private Property Rights, John R. Nolon
Regulatory Takings: Analyzing Governmental Invasions Of Private Property Rights, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
The complicated arena of takings jurisprudence has confused lawyers, scholars, and courts for well over a century. Generally, a taking is deemed to have occurred when a governmental body takes a property right away from a private individual without providing just compensation. However, courts are unlikely to find that a regulation constitutes a taking if the regulation benefits the greater good of the public. Takings come in several varieties, most notably, “invasions” which include physical occupation and “total takings”, which deprive landowners of all economic value of their property. This article discusses how takings law has evolved into its present …
Intermunicipal Compacts; Regional Land Use Strategies Work At The Grassroots Level, John R. Nolon
Intermunicipal Compacts; Regional Land Use Strategies Work At The Grassroots Level, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
Regional land use control has long been a difficult issue in New York as most localities refuse to acknowledge responsibility for problems extending beyond their own borders. New York law enables municipalities to cooperate among one another to devise improved solutions to land use, and other issues. This article studies the state history of regional land use and provides several successful examples of how grassroots regionalism can change the way municipal governments think about land use and solve problems.
Impact Statements: Regulations Leave Room For Delays In Seqra Proceedings, John R. Nolon
Impact Statements: Regulations Leave Room For Delays In Seqra Proceedings, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
SEQRA, the New York State Environmental Quality Review Act, creates a process whereby public actions are reviewed with the intent to mitigate adverse environmental impacts. The SEQRA process has several flexible time constraints, which through negotiation, may be extended. Issues often arise due to the discrepancies between SEQRA’s imposed time limits and the time limits imposed on land use boards to make determinations about proposed projects. The question of which time limits apply was determined in Sun Beach Real Estate Corp. v. Anderson Beach. In that case, the court held that decisions, such as site plan approval deadlines, do not …
Community Involvement: Facilitation Adds Flexibility To Land Use Decision-Making, John R. Nolon
Community Involvement: Facilitation Adds Flexibility To Land Use Decision-Making, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
SEQRA, the New York State Environmental Quality Review Act, creates a process whereby public actions are reviewed with the intent to mitigate the adverse environmental impacts of those actions. Recently decided New York case law has created flexibility in the SEQRA process by allowing developers, among others, to revamp proposed projects early in the application process in order to expedite SEQRA and save substantial amounts of money. A New York court held that using public meetings to garner information and negotiate different aspects of a proposed project, and a determination of a negative declaration (the proposed project will have no …
Wetlands Controls: Untangling An Intricate Web Of Rules, John R. Nolon
Wetlands Controls: Untangling An Intricate Web Of Rules, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
This article discusses the controversy surrounding legislation protecting wetlands, including the proposed revisions to National Wetlands Permit Number 26. Federal, state, and local governments all play a critical role in wetlands regulation. The potential of these different levels of government can be maximized through a coordinated effort, avoiding situations where applicable laws from one level of government run contrary to laws of another level of government, which often results in unnecessary litigation. This article discusses these issues, and also provides examples of intergovernmental wetlands regulation success.
Protecting Scenic Assets: Regulations Based On Study, Expert Reports And Rationality, John R. Nolon
Protecting Scenic Assets: Regulations Based On Study, Expert Reports And Rationality, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
Many municipalities are seeking to protect scenic assets through a combination of land use tools and implied police powers. These tools include comprehensive planning, subdivision and site plan approval, and in New York, execution of the State Environmental Quality Review Act (SEQRA). An example of scenic protection is North Elba, New York, where the local planning board denied Wal-Mart’s application to construct a store because the store would compromise the viewshed of a nearby mountain. This article reviews the SEQRA process in the Wal-Mart case and also reviews several other methods municipalities may use to protect environmental and aesthetic interests.
Affordable Housing: State Lacks Definition Of Need And Municipal Responsibility, John R. Nolon
Affordable Housing: State Lacks Definition Of Need And Municipal Responsibility, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
New York case law has created an obligation for communities to provide low-income housing in order to meet regional needs. The courts have found exclusionary zoning to be an unconstitutional practice, and may require communities to amend zoning ordinances that act in an exclusionary manner. The burden for plaintiffs to prove an ordinance is unconstitutionally exclusionary has been greatly impacted by the existence of regional housing studies. However, legislative progress in New York continues to lag behind surrounding states, as New Jersey and Connecticut legislatures have put statutory components in place to ease burden of proof in challenges to exclusionary …
Flexibility In The Law: Reengineering Of Zoning To Prevent Fragmented Landscapes, John R. Nolon
Flexibility In The Law: Reengineering Of Zoning To Prevent Fragmented Landscapes, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
The continued existence vernal pools and other sensitive environmental areas greatly depends upon local and state land use decisions. Practices such as Euclidian Zoning, where land uses are separated into different districts, usually fail to account for the protection of these sensitive areas. However, local governments in New York, using implied municipal power created by state legislation, have a variety of land use tools to help alleviate the destruction of environmentally sensitive areas. These tools include: overlay zoning, incentive zoning, conservation easements, floating zones, and transferring development rights. By using these tools within a well-integrated strategy, New York communities can …
Recreational Zoning: Concept Used In Inappropriate Context Raises Troubling Issues, John R. Nolon
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
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
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 …