Land Use Law Commons^™

On Local Fracking Bans: Policy And Preemption In New Mexico, Alex Ritchie

Natural Resources Journal

In the midst of the hydraulic fracturing revolution, elected officials in Mora County, New Mexico recently banned all oil and gas production within the county. But the officials went even further, stripping corporations of constitutional rights and declaring the constitutions of the United States and the state of New Mexico illegal if interpreted as inconsistent with the ordinance. Why would a small rural county like Mora with no oil and gas operations to speak of adopt such an extreme ordinance? This article applies economics, political choice, and localism theories to argue that Mora County’s decision may be at least partly …

Hydraulic Fracturing: If Fractures Cross Property Lines, Is There An Actionable Subsurface Trespass, Keith B. Hall

Natural Resources Journal

The law recognizes trespass liability for subsurface intrusions, at least in some circumstances. Further, courts sometimes have stated that ownership of land extends to the earth’s center. But such statements are dicta. Few courts have carefully considered the maximum extent of subsurface ownership or subsurface trespass liability. Courts in two jurisdictions have recently addressed whether a person incurs liability when he causes hydraulic fracturing fluid to intrude into the subsurface of a neighbor’s land, but the courts reached opposite conclusions, with each suggesting that public policy supported its position. Neither adequately examined the legal issues. Careful consideration of trespass concepts …

Assessing The Scope Of The National Environmental Policy Act: Recent Attempts By Environmentalists To Add Climate Change Considerations Into Nepa Review, Maureen O'Dea Brill

Natural Resources Journal

As the United States continues its roaring ramp up as the world’s leading natural gas producer, the environmental community is trying to force the federal government to account for the aggregate impact of domestic natural gas production from shale, especially in the context of climate change. To achieve this goal, environmental organizations have sought to employ the National Environmental Policy Act (NEPA), a law aimed at increasing government awareness of the broader environmental consequences of federal action. This article explores the two ways in which environmental organizations have tried to expand federal environmental reviews to include climate change considerations under …

Can The United States Control Its Natural Gas: International Trade Implications Of Restrictions On Liquefied Natural Gas Exports, Adam Eldean

Natural Resources Journal

This article examines the cross-section between energy, environmental, and international law while exploring the recent developments of liquefied natural gas (LNG) exports to non-free trade agreement countries, and considers how international free trade agreements affect efforts to restrict or limit exports of LNG. The article discusses the environmental and economic impacts of large-scale exports of LNG, but argues that efforts to stifle LNG exports will ultimately fail regardless of potential negative impacts due to conflict with existing international trade agreements, including the General Agreement on Tariffs and Trade and the North American Free Trade Agreement. Since approval of export licenses …

The Art Of Stripping: How The Government Applies The Takings Clause To Strip You Of Your Property, Toni Kong

Touro Law Review

No abstract provided.

The Big Chill? - The Likely Impact Of Koontz On The Local Governments/Developer Relationship, Julie A. Tappendorf, Matthew T. Dicanni

Touro Law Review

This article will explore the doctrine of unconstitutional conditions, showing how it has evolved in the context of land use and come to be the logical underpinning of controversial Supreme Court decisions regarding exactions. Part I will explain the doctrine of unconstitutional conditions, providing a brief overview of its development over the course of the past century. Part II will then discuss how this doctrine has come to be the logical foundation on which the Supreme Court’s exactions jurisprudence rests. Part III will discuss the Koontz decision and its impact on the doctrine of unconstitutional conditions. In Part IV, we …

The "Parcel As A Whole" In Context: Shifting The Benefits And Burdens Of Economic Life - Or Not, Edward J. Sullivan, Karin Power

Touro Law Review

No abstract provided.

A Trip Back In Time, Including Judge Charles D. Breitel's Rationale For His Fred French And Penn Central Decisions, Frank Schnidman

Touro Law Review

No abstract provided.

Substantive Due Process By Another Name: Koontz, Exactions, And The Regulatory Takings Doctrine, Mark Fenster

Touro Law Review

No abstract provided.

The Categorical (Lucas) Rule: "Background Principles," Per Se Regulatory Takings, And The State Of Exceptions, David L. Callies, David A. Robyak

Touro Law Review

No abstract provided.

The Categorical Lucas Rule And The Nuisance And Background Principles Exception, Carol Necole Brown

Touro Law Review

This article examines the seminal 1992 United States Supreme Court decision, Lucas v. South Carolina Coastal Council, specifically focusing on the Lucas nuisance exception. The author surveyed approximately 1,600 reported regulatory takings cases decided since the Lucas decision involving Lucas takings challenges. The author further identified the statutory nuisance cases in which state and local governments unsuccessfully asserted the Lucas nuisance exception as a defense to the courts’ findings of a Lucas taking. This article examines the prospective potential of these cases for assisting private property owners in enhancing private property rights protections within the area of regulatory takings.

The Rebirth Of Federal Takings Review? The Courts’ “Prudential” Answer To Williamson County’S Flawed State Litigation Ripeness Requirement, J. David Breemer

Touro Law Review

This article reviews recent federal court decisions that have loosened the state litigation ripeness barrier to federal takings review based on its “prudential” character. Part II provides relevant background on Williamson County and the development of the state litigation rule. It explores the logic underlying the rule and the problems it causes in application. Part III reviews the judicial shift away from a jurisdictional understanding of the state litigation rule—under which compliance with the rule is a prerequisite to a court’s power to hear a takings claim—to a prudential view in which application of the state litigation rule lies within …

The Ripeness Game: Why Are We Still Forced To Play?, Michael M. Berger

Touro Law Review

No abstract provided.

The Common Law Foundations Of The Takings Clause: The Disconnect Between Public And Private Law, Richard A. Epstein

Touro Law Review

No abstract provided.

Other Tributes To Fred Bosselman, Edward J. Sullivan, Nancy E. Stroud

Touro Law Review

No abstract provided.

Fred Bosselman And The Taking Issue, David L. Callies

Touro Law Review

No abstract provided.

Constitutional Limitations On Sovereignty, 2014 Edition, Garrett Power

Book Gallery

This is an “open content” casebook intended for classroom use in courses in Constitutional Law, Land Use Control, and Environmental Law. It consists of 130 odd judicial opinions (most rendered by the U.S. Supreme Court) carefully selected from the two hundred years of American constitutional history which address the clash between public sovereignty and private property. The text considers both the personal right to liberty and the personal right in property.

The readings provide an historical context, and an up-to-date focus on many of the constitutional issues facing today’s Supreme Court: imperium versus dominium; the public trust, inverse condemnation, the …

The Future Of Federal-State Land Exchanges, John C. Ruple, Robert B. Keiter

Wallace Stegner Center for Land, Resources, and the Environment publications

Today, the land ownership map of the West in many places resembles a crazy quilt, without reason or coherent pattern. Often no single owner (states, private entities, or the Federal government) owns enough contiguous land to allow effective management of land holdings, and fragmented ownership patterns generate a plethora of disputes over access and similar problems.

While this paper focuses on examples from Utah, the challenges posed by a fragmented landscape and conflicting management objectives are much broader. Across the 11 contiguous Western states, state trust lands account for twice the acreage of National Parks and trust lands are often …

Economic Trends Report, Prepared For The Town Of Winthrop, Edward J. Collins, Jr. Center For Public Management, University Of Massachusetts Boston

Edward J. Collins Center for Public Management Publications

This Economic Trends report provides a multi-decade look at the economy of the Town of Winthrop. It is hoped that the report will serve as a reference guide for residents, business persons, and policy makers seeking to grow the local economy, using facts and data to help identify strategies and goals for the future.

The report contains information on change in resident population, since residents oftentimes are a natural market for the goods and services provided by businesses within the community; they can also serve as a ready workforce for those businesses. It also looks at the number and type …

Cambria's Water War: Legal Analysis Of The Building Moratorium And Its Implications For Land Owners, Jayson Parsons

Political Science

With each passing year, Cambria, California's building moratorium becomes increasingly controversial. The moratorium, enacted by the local community services district in 1986 due to a series of water shortages, has resulted in nearly 43% of all property owners under the district's purview to be denied the ability to develop their parcels. This paper seeks to examine the constitutionality of this moratorium using relevant regulatory takings jurisprudence.

Reviewing United States Supreme Court precedent, including Pennsylvania Coal v. Mahon (1922), Penn Central Transport v. New York City (1978), Lucas v. South Carolina Coastal Council (1992), and Tahoe-Sierra Preservation Council …