Land Use Law Commons^™

Just Transitions, Ann M. Eisenberg

Faculty Publications

The transition to a low-carbon society will have winners and losers as the costs and benefits of decarbonization fall unevenly on different communities. This potential collateral damage has prompted calls for a “just transition” to a green economy. While the term, “just transition,” is increasingly prevalent in the public discourse, it remains under-discussed and poorly defined in legal literature, preventing it from helping catalyze fair decarbonization. This Article seeks to define the term, test its validity, and articulate its relationship with law so the idea can meet its potential.

The Article is the first to disambiguate and assess two main …

Calming Troubled Waters: Local Solutions, Part I, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

In 1861, the Ohio Supreme Court adopted the Absolute Use Rule to govern groundwater, essentially allowing landowners its unencumbered use. The opinion noted that the behavior of subterranean water was “occult and mysterious” and that it was beyond the competence of judges to determine its appropriate use. The Ohio court reversed course in 1984 and adopted the Reasonable Use Rule. By then, scientific knowledge had advanced to the point that the interconnected movement of water was more readily discoverable. The court noted that a primary goal of water law should be to conform to hydrologic fact. This Article explores the …

The New State Zoning: Land Use Preemption Amid A Housing Crisis, John Infranca

Suffolk University Law School Faculty Works

Commentators have long decried the pernicious effects that overly restrictive land use regulations, which stifle new development, have on housing supply and affordability, regional and national economic growth, social mobility, and racial integration. The fragmented nature of zoning rules in the United States, which are set primarily at the local level, renders it seemingly impossible to address these concerns systematically. While there have been some efforts to address local exclusionary tendencies and their suboptimal effects by means of greater state control, these efforts, which remain contentious, have been limited to just a few states.
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"I Had A Lakehouse In Tahoe": The Legal Ramifications Of California Tapping Lake Tahoe And How It Affects Homeowners, Gregory Stratz

Marquette Law Review

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Make New York Affordable Again, Michael Lewyn

Scholarly Works

Suggests a package of zoning reforms to hold down New York City housing costs, and responds to counterarguments.

A Wall Of Hate: Eminent Domain And Interest-Convergence, Philip Lee

Faculty Publications

(Excerpt)

Donald Trump is no stranger to eminent domain. In the 1990s, Trump wanted land around Trump Plaza to build a limousine parking lot. Many of the private owners agreed to sell, but one elderly widow and two brothers who owned a small business refused. Trump then got a government agency—the Casino Reinvestment Development Authority (CRDA)—to take the properties through eminent domain, offering them a quarter of what they had previously paid or been offered for their land.

The property owners fought back and finally won. Although the CRDA named several justifications, from economic development to traffic alleviation and additional …

The Sharing Economy And The Allocation Of Urban Space, John Infranca

Suffolk University Law School Faculty Works

This short essay uses four interrelated issues as a framework for examining recent challenges posed by the sharing economy, particularly for urban areas. First, in the realm of short-term rentals there is increasing concern – and a growing set of studies that support it – that as these rentals proliferate across municipalities they are moving existing housing off of the long-term rental market, exacerbating affordability crises in many cities. Second, there is a related concern that short-term rentals are changing the character of existing neighborhoods and undermining the goals of local planning and zoning. Third, in the realm of transportation …

Zoned Out: How Zoning Law Undermines Family Law’S Functional Turn, Kate Redburn

Faculty Scholarship

A fatal conflict in the legal definition of family lurks at the intersection of family law and zoning law. Family law doctrines have increasingly embraced the claims of “functional families” — those whose bonds can be traced to cohabitation and shared domestic life. At the same time, zoning laws have narrowed to recognize only formal families, effectively restricting residency to individuals related by blood, marriage, or adoption. As a result, family law’s “functional turn” remains vulnerable in at least thirty-one states. Using original legal analysis and historical research, this Note illuminates that contradiction, explains how it arose, and argues that …

Zoning, Race, And Marijuana: The Unintended Consequences Of Proposition 64, Alexis Holmes

Lewis & Clark Law Review

This Article revisits the campaign to legalize cannabis in California with Proposition 64. It then dissects the localism within the new California regulations and how it conflicts with the social justice goals central to the spirit of Proposition 64’s passage. With local governments retaining control over marijuana in their jurisdictions, land use takes on new importance with respect to how marijuana will be controlled. The problem is that the land use system, like the criminal law apparatus, has yet to overcome systemic racism that is inherently part of its design. Proposition 64 wrongly relied on local control to regulate marijuana …

Reclaiming The Navajo Range: Resolving The Conflict Between Grazing Rights And Development, Ezra Rosser

Scholarly Articles in Law Reviews & Journals

Grazing is fundamental to Navajo identity, yet management of the Navajo range remains highly problematic. This Essay connects the federal government's devastating livestock reduction effort of the 1930s with the inability of the Navajo Nation to place meaningful limits on grazing and the power of grazing permittees. It argues that the Navajo Nation should consider reasserting the tribe's traditional understanding that property rights depend on use as a way to create space for reservation development.

Etched In Stone: Historic Preservation Law And Confederate Monuments, Jess R. Phelps, Jessica Owley

Articles

This Article examines the current controversy regarding Confederate monuments. While many have focused on the removal of these commemorative objects, the legal framework regarding their protection has not been fully explored. This Article provides an in-depth understanding of the application of historic preservation laws to monument removal efforts and examines the impact of these federal, state, and local laws. The examination raises significant questions about the permanency of preservation laws generally. This Article considers how historic significance is evaluated and valued, noting the lack of flexibility and absence of mechanisms for reevaluating past protection decisions. This Article uses the Confederate …

Do You Believe In Ghost Apartments?, Michael Lewyn

Scholarly Works

According to the popular press, expensive cities are being overrun by "ghost apartments"- condominiums owned by wealthy foreigners, but used as investments rather than being rented out to local residents. This article points out that such apartments are in fact a very small percentage of housing supply, even in some cities that are supposedly overran with such condos. More importantly, the existence of new “ghost apartments” does not justify exclusionary zoning policies. If a city popular with foreign investors discourages construction of new housing, investors are likely to purchase older housing units, outbidding local residents for those units. In this …

A Euclid Dissent, Michael Lewyn

Scholarly Works

In Euclid v. Ambler Realty, the Supreme Court upheld the constitutionality of zoning, including zoning that excluded apartment houses and retail businesses. Although the decision was not unanimous, the Euclid minority did not write a formal dissent. The purpose of this article is to show what such a dissent should have looked like.

Expropriation In The Name Of Rights: Transferable Development Rights (Tdrs), The Bundle Of Sticks And Chinese Politics, Shitong Qiao

Faculty Scholarship

Through an in-depth empirical investigation, this article discloses for the first time how and why land reform programs in the name of empowering and enriching farmers have been serving the purpose of Chinese local governments to compromise the rights revolution in the Chinese national expropriation regime. The concept of “transferable development rights” (TDRs) is simple: development rights from one parcel of land are lifted up and transferred to another. Upon a detailed examination of land tickets in Chongqing and Chengdu, the southwestern Chinese application of TDRs, this article reveals that local governments in both cities have created schemes of land …

Mitigating Climate Change Through Transportation And Land Use Policy, Alejandro E. Camacho, Melissa L. Kelly, Nicholas J. Marantz, Gabriel Weil

Scholarly Works

A number of U.S. state and local governments have adopted strategies for reducing greenhouse gas (GHG) emissions from transportation and land development. Although some have made significant progress in reducing GHG emissions from the power sector, transportation emissions in most states continue to rise. This Article details the range of existing and proposed state interventions to reduce transportation sector GHG emissions, analyzes the trade offs of these strategies, and offers recommendations to improve and supplement such initiatives, including strategic use of planning mandates and funding and technical assistance. Additionally, regulating land use, shifting transportation spending, removing barriers to implementing road …

Relationships And Ethics In The Land Use Game, Patricia E. Salkin, Thomas Brown, Aisha Scholes

Scholarly Works

Ethical considerations in the land use decision making process can be organized into a number of categories, including, first and foremost, the broad subject of conflicts of interest.1 Players in the land use game can find themselves in real or perceived conflicts situations based on personal financial interests resulting from investments, including businesses and real estate holdings (such as the location of their property vis-à-vis the location of the subject property before the Board), employment for themselves or members of their immediate family, and memberships in nonprofit organizations that may be either passive or active (e.g., simply dues paying member …

Introduction: Property In Ecology, Jonathan H. Adler

Natural Resources Journal

No abstract provided.

Introduction: What You Don't Know Does Protect You, Rebecca Roose

Natural Resources Journal

No abstract provided.

Rethinking Public Land Use Planning, Mark Squillace

Publications

The public land use planning process is broken. The land use plans of the principal multiple-use agencies—the United States Forest Service and the Bureau of Land Management (“BLM”)—are unnecessarily complex, take too long to complete, monopolize the time and resources of public land management agency staffs, and fail to engage the general public in any meaningful way. Moreover, the end result is too often a plan that is not sufficiently nimble to respond to changing conditions on the ground, a problem that appears to be accelerating due to climate change.

It might seem easy to chalk up these problems to …

Regulatory Takings And The Constitutionality Of Commercial Rent Regulation In New York City, Henry Topper

Cornell Law Library Cantwell Prize for Exemplary Student Research Papers

In recent years, the plight of small businesses in New York City has become a contentious topic. Although the city and its current mayoral administration share a long-standing commitment to affordable housing, the city’s small businesses—an integral and defining feature of the urban landscape—have suffered immensely. In the past decade, local establishments have largely given way to a homogeneous landscape of empty storefronts and national chain stores.The loss of local busi- ness occurs with such staggering frequency that there is an entire thriving blog subculture documenting their “vanishing” and the Center for an Urban Future publishes an annual report on …