Land Use Law Commons^™

Constitutional Limitations On Land Use Controls, Environmental Regulations And Governmental Exactions (2011 Edition), Garrett Power

Faculty Scholarship

This electronic book is published in a searchable PDF format as a part of the E-scholarship Repository of the University of Maryland School of Law. It is an “open content” casebook intended for classroom use in courses in Land Use Control, Environmental Law and Constitutional Law. It consists of cases carefully selected from the two hundred years of American constitutional history which address the clash between public sovereignty and private property. It considers both the personal right to liberty and the personal right in property. The text consists of non-copyrighted material and readers are free to use it or re-mix …

Urban Green Uses: The New Renewal, Catherine J. Lacroix

Faculty Publications

As they confront dramatically reduced population and little prospect of significant near-term growth, several cities in the rust belt have turned to innovative tactics to put excess land to beneficial use. These measures include the creation of active land banks, downzoning for "green" uses such as urban agriculture, possible consolidation of population and abandonment of utility and public services, and installation of green infrastructure, such as stormwater retention and renewable power generation facilities, on publicly owned land. In the process, these cities face intriguing legal questions: What steps are needed to form an effective land bank? What is the liability …

Airspace In A Green Economy, Troy A. Rule

Faculty Publications

The recent surge of interest in renewable energy and sustainable land use has made the airspace above land more valuable than ever before. However, a growing number of policies aimed at promoting sustainability disregard landowners' airspace rights in ways that can cause airspace to be underutilized. This article analyzes several land use conflicts emerging in the context of renewable energy development by framing them as disputes over airspace. The article suggests that incorporating options or liability rules into laws regulating airspace is a useful way to promote wind and solar energy while still respecting landowners' existing airspace rights. If properly …

Negotiating The Wind: A Framework To Engage Citizens In Siting Wind Turbines, Sean F. Nolon

Cardozo Journal of Conflict Resolution

In Section I, this Article explores the promotion of wind energy by looking at the current system of incentives and regulations, including the authority to mitigate adverse impacts. In Section II, the Article looks at the role of citizens in siting generally, how involvement can turn into opposition, and how that opposition can be managed productively. Section III explores three approaches to citizen engagement that have been used for decades-participatory planning, negotiated rulemaking and facility siting. Finally, Section IV provides a framework for the federal government to work cooperatively with state and local governments to create comprehensive wind energy plans …

Adverse Possession, Private-Zoning Waiver & Desuetude: Abandonment & Recapture Of Property And Liberty Interests, 44 U. Mich. J.L. Reform 557 (2011), Scott Andrew Shepard

UIC Law Open Access Faculty Scholarship

Adverse-possession doctrine labors under a pair of disabilities: a hesitancy by theorists to embrace the abandonment-and-recapture principle that informs the doctrine, and a substantial unwillingness of governments to abandon an antiquated and outmoded maxim shielding them from the doctrine's important work. Removing these disabilities will allow a series of positive outcomes. First, it will demonstrate that all would-be adverse possessors, not just those acting "in good faith" or with possessory intent, should enjoy the fruits of the doctrine. Second, it will provide valuable additional means by which the public may monitor the performance of government employees, and additional discipline to …

A Yellow Light For “Green Zoning”: Some Words Of Caution About Incorporating Green Building Standards Into Local Land Use Law, Michael Allan Wolf

UF Law Faculty Publications

The focus of this essay is a growing practice to which we can attach the label “Green Zoning” — the incorporation of LEED and competing privately generated standards into local government law, as part of the existing zoning or land use ordinance, or as a free-standing green building ordinance. After reviewing some of the pertinent literature on this topic, this essay will highlight and provide illustrations of six problems with Green Zoning practices: 1. The Delegation Problem — Can and should local laws be based on a moving target (standards set by private parties that continue to change and evolve)? …

Images Of Force: The Power Of Maps In Community Development, Jill M. Fraley

Scholarly Articles

Recent trends in critical geography have drawn attention to the secret political lives of maps. Beneath a veneer of abstraction and scientific neutrality, maps are deeply political devices, embedding within them perspectives on what is important in a community, what are assets and what are liabilities, what is central and what is marginal. By drawing on the historical example of the mapping work of the Tennessee Valley Authority in the United States, this article examines the power of maps in community development, land use planning and natural resource allocation. This examination yields a lesson in the significance of the maps …

The Role Of The Site Selector, Andrew H. Shapiro

South Carolina Journal of International Law and Business

No abstract provided.

A "Constant And Difficult Task": Making Local Land Use Decisions In States With A Constitutional Right To A Healthful Environment, Michelle Bryan Mudd

Faculty Law Review Articles

This article first examines the role local governments play in four states that have constitutional rights to a healthful environment -- Illinois, Pennsylvania, Montana, and Hawaii. The author notes that while local governments have long worked as quiet yet integral third partners with state and federal governments by addressing environmental issues through land use regulation, for local governments in environmental rights states, environmental protection is not just an aspiration, but a constitutional mandate. Further, the author states, environmental rights cannot be fully protected in these states without the strong engagement of local government.

The article also describes the constitutional provisions …

Re-Evaluating Tribal Customs Of Land Use Rights, John C. Hoelle

University of Colorado Law Review

Indigenous peoples developed sustainable land tenure systems over countless generations, but these customary systems of rights are barely used by American Indian tribes today. Would increasing formal recognition of these traditional customs be desirable for tribes in a modern context? This Comment examines one traditional form of indigenous land tenure-the use right-and argues that those tribes that historically recognized use rights in land might benefit from increased reliance on these traditional customs. The Comment argues that in the tribal context, use rights can potentially be just as economically efficient, if not more so, than the Anglo- American system of unqualified, …

The Legal History Of Federally Granted Railroad Rights-Of-Way And The Myth Of Congress's "1871 Shift", Darwin P. Roberts

University of Colorado Law Review

Beginning in the 1830s, the United States government granted railroads thousands of miles of rights-of-way across the public lands. In 1850, Congress began to further subsidize the construction of certain railroads by granting them title to millions of acres of the public lands. By the late 1860s, however, the public came to vehemently oppose giving vast tracts of the public domain away to railroads. As a consequence, in 1871, Congress ceased granting subsidy lands to railroads. Federal grants of railroad rights-of-way, though, continued well into the twentieth century. The Supreme Court has held that the year 1871 marked a transition …

Procuring Meaningful Land Rights For The Women Of Rwanda, Aparna Polavarapu

Scholarly Works

Land reform and gender equality are important development issues in post-Genocide Rwanda. Beginning in 1999, the government of Rwanda passed and implemented reforms which granted women rights to own and use land on an equal status with men. However, as is expected with widespread social reform, obstacles continue to inhibit widespread gender equality in practice. In Rwanda, major social obstacles manifest in the form of (1) resistance to allowing daughters to inherit land from their parents, (2) adherence to assumptions of female inferiority, and (3) the persistence of informal marriages, in which wives remain unprotected by the new laws. Interested …

Newport's Mooring Regulations: Legal And Policy Analysis, Jenna Algee

Sea Grant Law Fellow Publications

The legal and policy issues facing Newport as it revises and implements its ordinances are numerous. Most of the issues have not been squarely resolved for Rhode Island. While Newport may take guidance from other states, it will be Rhode Island's task going forward to define the reach of its Public Trust Doctine as applied to some novel issues raised by mooring administration. The benefit of the flexibility of the PTD is allowing smaller units of government like Newport to define their regulatory goals based on a locally-tailored balancing test of competing interests facing scarce ocean resources. This report was …

Beware Of Wooden Nickels: The Paradox Of Florida's Legislative Overreaction In The Wake Of Kelo, Ann Marie Cavazos

Journal Publications

This article addresses Florida's reaction to the United States Supreme Court decision in Kelo v. City of New London. In Kelo, the Court provided a more expansive view of "the public use" of the Fifth Amendment Takings Clause to include taking property from one private owner and transferring it to a corporation or non-private citizen when the transfer is deemed by the lawmakers to be in the public good or for a public purpose. Florida, together with several other states, concluded that such eminent domain takings, while constitutionally permissible, offend the states' sense of fair play as it relates to …

New Mexico’S Major Reservoirs: An Overview, Susan Kelly, Diego Urbina

Water Matters!

This paper describes the salient facts about the major water storage reservoirs in New Mexico. For each reservoir, we address the purposes of water storage allowed by law, storage capacity, the responsible operating agency, and some key operational issues. This is by necessity a vast simplification of the topic.Books, articles, research reports, operation manuals, and other materials on these topics run into the hundreds. Millions of dollars have been spent on technical studies and computer models to understand,and sometimes alter, the operations of various dams and reservoirs.

Not In My Atlantic Yards: Examining Netroots’ Role In Eminent Domain Reform, Kate Klonick

Faculty Publications

(Excerpt)

Since the Supreme Court's decision in Kelo v. City of New London, which expanded the state's power to condemn private property and transfer it to other private owners under the Fifth Amendment, there have been significant calls to curb the power of eminent domain through statutory reform. Scholars and jurists in favor of eminent domain reform have asserted that legislation is needed to protect private property rights against the rising tide of state power, with many arguing that such reform should incorporate a public approval process into land use decisions. Those opposed to eminent-domain reform argue that empowering …

Distributed Graduate Seminars: An Interdisciplinary Approach To Studying Land Conservation, Jessica Owley, Adena R. Rissman

Journal Articles

No abstract provided.

Changing Property In A Changing World: A Call For The End Of Perpetual Conservation Easements, Jessica Owley

Journal Articles

Increasing environmental problems, including those associated with climate change, highlight the need for land conservation. Dissatisfaction with public methods of environmental protection has spurred conservationists to pursue private options. One of the most common private land conservation tools is the conservation easement. At first blush, this relatively new servitude appears to provide a creative method for achieving widespread conservation. Instead, however, conservation easements often fail to accommodate the reality of our current environmental problems. These perpetual (often private) agreements lack flexibility, making them inappropriate tools for environmental protection in the context of climate change and our evolving understanding of conservation …

Conservation Easements At The Climate Change Crossroads, Jessica Owley

Journal Articles

The essence of a conservation easement as a static perpetual restriction is coming to a head with the understanding that the world is a changing place. This demonstration is nowhere more dramatic than in the context of global climate change. In response to this conflict, users of conservation easements face the decision of either (1) changing conservation easement agreements to fit the landscape or (2) changing the landscape to fit the conservation easements. Both of these options present benefits and challenges in implementation. Where conservation easement holders’ ultimate goal is to keep a maximum number of acres under protection from …

The Enforceability Of Exacted Conservation Easements, Jessica Owley

Journal Articles

The use of exacted conservation easements is widespread. Yet, the study of the implications of their use has been minimal. Conservation easements are nonpossessory interests in land restricting a landowner’s ability to use her land in an otherwise permissible way, with the goal of yielding a conservation benefit. Exacted conservation easements arise in permitting contexts where, in exchange for a government benefit, landowners either create conservation easements on their own property or arrange for conservation easements on other land.

To explore the concern associated with the enforceability of exacted conservation easements in a concrete way, this article examines exacted conservation …