Articles

A Yellow Light for "Green Zoning": Some Words of Caution About Incorporating Green Building Standards into Local Land Use Law

The popularity of green building is undeniable. This essay focuses on 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 highlights and provides illustrations of six problems with Green Zoning practices. It is hoped that, by identifying and seriously considering some of the challenges faced by local governments that hope to jump on the ever-more-crowded green building bandwagon, we can begin a healthy debate about the best ways to accomplish the laudable goal of reducing many of the negative environmental externalities of new and renovated structures.

A Role for Local Government Law in Federal-State-Local Disputes

When a federal-state-local dispute reaches the United States Supreme Court, the Court follows one of two approaches. It may choose to recite the state sovereignty rhetoric of its 1907 opinion in Hunter v. City of Pittsburgh with its famous statement that “[t]he number, nature, and duration of the [local] powers . . . rests in the absolute discretion of the State.” In the alternative, the Court may ignore or dismiss state sovereignty concerns and rule on behalf of the local-federal partnership, rejecting arguments based on clear state opposition to the local government’s action and focusing instead on the importance of the federal interest at stake. The disputes that have made it to the stage of reported judicial opinion have been the catalyst of thoughtful reexaminations of the overlooked local interest that is at play every time the federal and state governments disagree about the appropriate course of action for a unit of local government. Both Rick Hills and Nestor Davidson have made the compelling case for federal judicial recognition of localism in disputes involving this tripartite set of interests. In this Article, I agree with their arguments in support of judicial recognition of a localism interest in the federal-state-local context, but I argue that both they and the Supreme Court itself have overlooked an important doctrinal source that can help to determine the proper scope of that local interest. The proposal I develop here is that courts and commentators alike have been either too quick to dismiss or too uncritical and sweeping in their endorsement of state sovereignty in those cases in which federal and local interests align against the state’s. I suggest that the states’ existing governmental structures, as detailed in state constitutions and statutes, and as shaped by state court opinions written well prior to the federal-state-local conflict at issue in a specific case, provide important insights about how the state’s sovereign interest should play out in many of these disputes.

Buy Healthy, Buy Local: An Analysis of Potential Legal Challenges to State and Local government Local Purchase Preferences

In response to a number of concerns, including the obesity epidemic, a move toward more sustainability in government operations, and a desire to prime local economies, state and local governments are seeking to enhance their procurement policies to improve the nutritional content of food they purchase and to purchase more food locally. One way to do so is to give competitive bidding preferences to government procurements of agricultural products or food that is produced in the local community. This article considers whether there are legal restrictions on the ability of states and local governments to give preferences to local producers of food. The article analyzes potential challenges to state laws granting such preferences. In addition, the article considers potential legal obstacles for localities wishing to impose their own local purchasing preferences—both in cases where no state law governs the use of local preferences, and also in cases where state law imposes a state-wide preference and the locality wishes to institute a preference that is more local than the state-wide preference.

Alternative Dispute Resolution in Land Use Disputes—Two Contintents and Approaches

Support for alternative dispute resolution (ADR) has been gaining popularity in the legal profession over the last few decades. ADR is any type of procedure or combination of procedures voluntarily used by parties in dispute to resolve issues in controversy.The benefits of ADR make it an attractive dispute resolution model in land use cases. Local governments face a challenging task in dealing with competing interests from a multitude of stakeholders when a local government’s plan, policy, or regulation affects a number of different properties. This paper compares the ADR system used in the State of Oregon in the United States of America with the ADR regime in England. It is notable that ADR in Oregon is less structured in terms of legislative provisions, but provides more practical examples than England, while the English ADR system is more structured in terms of statutory provisions, but offers fewer examples in practice.

Tie Goes to the Landowner: Ambiguous Zoning Ordinances and the Strict Construction Rule

This Article traces the rise and inchoate fall of the strict construction rule in Washington state. In Part I, the article briefly discusses the importance of property rights and highlights some basic property rights that Washington courts have recognized. In Part II, the author touches on statutory construction. Part III recounts how the strict construction rule came to be applied in Washington. Part IV singles out some cases in which the courts seem to abandon the strict construction rule. Finally, in Part V, the author shows that the strict construction rule has survived judicial neglect and gives reasons why courts should not avoid applying the rule in future cases.

Who Decides, How, and Why? Planning for the Judicial Review of Local Legislative Zoning Decisions

This article focuses on local legislative zoning decisions, including primarily the adoption and amendment of a zoning code and, especially, map amendments or rezonings. Legislative zoning decisions are representative of the larger range of regulatory decisions a locality typically makes, as well as the kind of decision treated most deferentially by the courts. Similarly, the article addresses primarily due process claims, the type of constitutional claim typically brought against legislative zoning decisions by legally interested parties, including neighbors. The other common constitutional claim, which can be brought only by regulated landowners and developers, is the regulatory takings claims—a topic that has been thoroughly covered and that warrants separate treatment elsewhere.