Land Use Law Commons^™

Is Using The Public Trust Doctrine To Protect Public Parkland From Visual Pollution Justifiable Doctrinal Creep?, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

This Article asks whether the public trust doctrine should be applied to stop the construction of a multistory commercial building that will tower over the tree line of Palisades Interstate Park. The building, which received a variance from a local New Jersey zoning commission, will ruin views of the Park, particularly from scenic overlooks across the Hudson River in New York, like the Metropolitan Museum’s Cloisters and the George Washington Bridge. To make this argument, the author draws on the work of renowned public trust scholars, Professors Joseph Sax and Carol Rose, among others. Based on the doctrine’s adaptability to …

Private Regimes In The Public Sphere: Optimizing The Benefits Of Common Interest Communities, Gerald Korngold

Articles & Chapters

No abstract provided.

Front Matter, Natural Resources Journal

Natural Resources Journal

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) …

The Role Of The Dean In Ensuring A Sustainable Law School: Everything Comes Down To What I Learned In Land Use Planning And Sustainable Development Law, Patricia E. Salkin

Scholarly Works

This article offers advice for anyone preparing to interview for a deanship - go back to what you are passionate about to really express how you might approach serving as a law dean. In this case, the passion centers on the subject of land use planning and sustainable development law. When interviewing for the position of dean of a law school, Academics who rise through the ranks to a deanship have a background in legal scholarship that often marries theory and practice. Faculty spend countless hours, even years, developing theories and concepts to advance the law in a particular discipline. …

Against The Neighborhood Veto, Michael Lewyn

Scholarly Works

American zoning often gives neighborhoods elective veto power over nearby real estate development. This “neighborhood veto” sometimes artificially reduces housing supply and urban density, thus making housing more expensive and making American cities more dependent on automobiles. This article criticizes the common arguments that neighborhood activists use to restrict development.

American Dreams, American Realities, Michael Lewyn

Scholarly Works

Review of Zoned In The USA, by Sonia Hirt.

The (Somewhat) False Hope Of Comprehensive Planning, Michael Lewyn

Scholarly Works

Comprehensive planning at the municipal level, although useful in a variety of ways, is neither necessary nor sufficient to promote "smart" (that is, pedestrian and transit-oriented) growth. Comprehensive plans can be used to support sprawl as easily as to support smart growth, while smart growth may be promoted effectively through zoning reform or statewide legislation as well as through local planning.

Land Use Priorities And The Law Of Nuisance, Dan Priel

Articles & Book Chapters

Rights-based approaches to tort law have been prominent in recent years in theoretical discussions of tort law. Much of this work has been either highly abstract or focused on a small number of torts like negligence or trespass. Allan Beever’s The Law of Private Nuisance attempts to extend this approach to the tort of private nuisance. Central to his account is the view that the law of nuisance is concerned with prioritising land uses, and that what the law calls ‘nuisance’ is really a case of one land use conflicting with another, higher-ranked one. This essay argues that despite claims …

Acknowledgment Of Supporters, Utton Center, University Of New Mexico - School Of Law

Water Matters!

List of supporters.

Legal & Scientific Integrity In Advancing A "Land Degradation Neutral World", Shelley Welton, Michela Biasutti, Michael B. Gerrard

Faculty Scholarship

It is no secret that the fight against desertification isn't going well. In the two decades since the United Nations Convention to Combat Desertification ("UNCCD") came into force, desertification – defined as degradation in the quality of "arid, semi-arid, and dry subhumid" land areas – has worsened considerably. Recent United Nations estimates suggest that fifty-two percent of drylands currently under agricultural cultivation are moderately or severely degraded, and 12 million hectares of productive land become barren each year due to desertification and drought. And while drylands are the focus of the UNCCD, the challenge isn't limited to them: somewhere around …

Adapting Conservation Easements To Climate Change, Adena R. Rissman, Jessica Owley, M. Rebecca Shaw, Barton H. Thompson Jr.

Journal Articles

Perpetual conservation easements (CEs) are popular for restricting development and land use, but their fixed terms create challenges for adaptation to climate change. The increasing pace of environmental and social change demands adaptive conservation instruments. To examine the adaptive potential of CEs, we surveyed 269 CEs and interviewed 73 conservation organization employees. Although only 2% of CEs mentioned climate change, the majority of employees were concerned about climate change impacts. CEs share the fixed-boundary limits typical of protected areas with additional adaptation constraints due to permanent terms on private lands. CEs often have multiple, potentially conflicting purposes that protect against …

Keeping Track Of Conservation, Jessica Owley

Journal Articles

Throughout the world, governments require land protection in exchange for development permits. Unfortunately, oftentimes scant attention has been paid to these land protection programs after development. Agencies and permit applicants agree on mitigation rules, but there appears to be little follow-up. When we do not know where conservation is occurring and cannot determine the rules of mitigation projects, the likelihood that they will be successful or enforced diminishes. I journeyed to California in search of answers by tracing four mitigation plans associated with the Federal Endangered Species Act. While I anticipated some difficulties, the tale is more alarming than expected. …

A Response To The Ipcc Fifth Assessment, Sarah J. Adams-Schoen, Deepa Badrinarayana, Cinnamon Carlarne, Robin Kundis Craig, John C. Dernbach, Keith H. Hirokawa, Alexandra B. Klass, Katrina Fischer Kuh, Stephen R. Miller, Jessica Owley, Shannon M. Roesler, Jonathan Rosenbloom, Inara Scott, David Takacs

Journal Articles

This collection of essays is the initial product of the second meeting of the Environmental Law Collaborative, a group of environmental law scholars that meet to discuss important and timely environmental issues. Here, the group provides an array of perspectives arising from the Fifth Assessment of the Intergovernmental Panel on Climate Change. Each scholar chose one passage from one of the IPCC’s three Summaries for Policymakers as a jumping-off point for exploring climate change issues and responding directly to the reports. The result is a variety of viewpoints on the future of how law relates to climate change, a result …

Ohio's Home-Rule Amendment: Why Ohio's General Assembly Creating Regional Governments Would Combat The Regional Race To The Bottom Under Current Home-Rule Principles, Jonathon Angarola

Cleveland State Law Review

This Note argues that Ohio’s home-rule principles foster a regional “race to the bottom and proposes that the Ohio General Assembly pass legislation creating regional governments to combat the absence of coordination among regional localities".

Preservation Is A Flawed Mitigation Strategy, Jessica Owley

Journal Articles

The objective of the Clean Water Act is to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. To help achieve that objective, the Clean Water Act limits the ability to dredge or fill a wetland. To do so, one must first obtain a section 404 permit. These permits, which are issued by the Army Corps of Engineers (“Corps”) with coordination and oversight from the Environmental Protection Agency (EPA), require project proponents to avoid, minimize, and compensate the harms of any wetland destruction or modification. Compensatory mitigation is a troubling concept in wetlands regulation because it …

The Fair Market Value Of Public Resources, Bruce R. Huber

Journal Articles

This Article explores the problem of public resource sales with particular reference to natural resources managed by the federal government. Lands owned by the United States hold trillions of dollars' worth of natural resources. Federal agencies earn billions in annual revenue from resource sales, yet critics assert that billions more could be reaped if resources were sold for a fair price. Although federal law has increasingly required that agencies price resources at fair market value, this requirement is surprisingly difficult to interpret and even more dfficult to implement and enforce. This Article analyzes the various forces that bear on public …

The Compensation Conundrum In Partial Takings Cases And The Consequences Of Borough Of Harvey Cedars, Brittany Harrison

Cardozo Law Review de•novo

This Note suggests that the goals the Harvey Cedars court sought to achieve—including reduced windfalls and greater certainty in the law—would best be achieved by applying the market value rule as adopted in California, which follows a value plus damages approach and requires payment for the part taken. Part I of this Note introduces the Harvey Cedars case. Part II provides a historical background to partial takings cases and a discussion of the special benefits doctrine, a type of compensation method that emerged as a compromise position to compensation to better protect condemnees. Part III surveys the various compensation methods …

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. …

An Environmental Understanding Of The Local Land Use System, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

This Article is adapted from Chapter Three of John R. Nolon, Protecting the Environment Through Land Use Law: Standing Ground, published in 2014 by ELI Press. The book updates and expands on the author’s previous work, describing in detail how localities are responding to new challenges, including the imperative that they adapt to and help mitigate climate change and create sustainable neighborhoods. This Article outlines a comprehensive framework for understanding how traditional local land use authority can be used to preserve natural resources and environmental functions at the community level.

Flood Risk Assessment Under Historical And Predicted Land Use Change Using Continuous Hydrologic Modeling, Jonathan T. Nelson

Dissertations, Master's Theses and Master's Reports - Open

Current procedures for flood risk estimation assume flood distributions are stationary over time, meaning annual maximum flood (AMF) series are not affected by climatic variation, land use/land cover (LULC) change, or management practices. Thus, changes in LULC and climate are generally not accounted for in policy and design related to flood risk/control, and historical flood events are deemed representative of future flood risk. These assumptions need to be re-evaluated, however, as climate change and anthropogenic activities have been observed to have large impacts on flood risk in many areas. In particular, understanding the effects of LULC change is essential to …

Legal Tools For Local Control Of Oil And Gas Development: Successes, Challenges, And Opportunities – Focusing On Select Eastern And Western U.S. States With Current And Potential Oil/Gas Development, Gabrielle M. Ostermayer

Graduate Student Theses, Dissertations, & Professional Papers

In response to the rise in unconventional oil and gas drilling and hydraulic fracturing, coupled with concerns over local environmental, social, and health impacts, and weak state regulatory oversight, many communities have chosen to assert zoning or regulatory control over oil and gas development. However, the legal framework that enables and constrains local government powers varies by state, based on diverse statutory and constitutional language as well as the preemption of local control by state agency regulations governing industry development. Through a series of case studies, this article identifies successful, legally defensible strategies for local control of oil and gas …

What Can Be Done, If Anything, About The Dangerous Penchant Of Public Trust Scholars To Overextend Joseph Sax’S Original Conception: Have We Produced A Bridge Too Far?, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

This Article examines the tendency of many legal scholars to overextend the scope of a previous scholar’s original idea—in this case, Professor Joseph Sax’s reconceptualization of the largely moribund common law public trust doctrine. Legal scholars are induced to write immoderately either to enhance their standing within the academic community or, more selflessly, to achieve law reform. These expansionist tendencies, however, are not without risk—a common law doctrine that becomes too unmoored from its historical shackles may lose the support of the courts that is required for its implementation. The Article examines whether a combination of academic norms and hortatory …

Communal Land Rights Of Malay People In North Sumatera: Power, State And Deulayatisasi, Edy Ikhsan

Indonesia Law Review

This article aims to unravel a shift of control / ownership of communal land of the Malays of Deli in North Sumatra. The commonly well-known communal lands, before the arrival of the Dutch colonial, was still inherent with the authorities of villages and was evolutionarily taken over by the foreign planters through concessionary contracts, which were dully signed by the Sultanate of Deli and the said foreign planters. The Indonesian independence in 1945 and the period that went beyond had in fact not contributed any improvement of the situation and instead it had exacerbated social and legal relations between the …

Fresh Pursuit: A Survey Of Law Among States With Large Land Based Tribes, Erin E. White

American Indian Law Journal

No abstract provided.

The Property Rights Revolution That Failed: Eminent Domain In The 2004 Supreme Court Term, David Schultz

Touro Law Review

No abstract provided.

Takings Cases In The October 2004 Term, Leon D. Lazer

Touro Law Review

No abstract provided.

Federalism Cases In The October 2004 Term, Erwin Chemerinsky

Touro Law Review

No abstract provided.

Outcome Report Of Roundtable On Human Rights Impact Assessments (Hrias) Of Large-Scale Foreign Investments, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

CCSI, the Sciences Po Law School Clinic, and the Columbia Law School Human Rights Institute recently published an outcome document of a one-day roundtable focused on the opportunities and challenges presented by human rights impact assessments (HRIAs) of large-scale foreign investments. The roundtable, which was held in April 2014 at Columbia University, provided an opportunity for collaborative reflection on the development of HRIAs, as well as on ways to enhance HRIAs as a framework and tool for both human rights advocacy and human rights risk management in respect of foreign investments.

By sharing the outcomes of the roundtable, this document …

Making Agricultural Investments Work For Land Users & Communities, Kaitlin Y. Cordes

Columbia Center on Sustainable Investment Staff Publications

Earlier this year, Liberian President Ellen Johnson Sirleaf made an unexpected commitment related to foreign investment in land and community land rights. In a meeting with communities who had raised concerns regarding a British company’s attempts to expand its palm oil production onto their customary land, the President effectively told those communities that they would have the right to say yes or no to further expansion, noting that the company could expand only with the affected communities’ approval.