Articles

Making Sense of a "Misunderstanding of the Planning Process": Examining the Relationship Between Zoning and Rezoning Under the Change-or-Mistake Rule

For some people, the value of zoning is in the confidence it instills in a sense of place and community, as well as the belief that exercising a choice to invest in a particular neighborhood is a lasting and effective choice. In this context, this article considers the continuing wisdom and legitimacy of the so-called “change or mistake rule,” also known as the “Maryland Rule.” Under the rule, the party supporting a change in zoning for a particular property or area must demonstrate that there has been either a substantial change in circumstances since the initial zoning designation was adopted, or that there was a bona fide mistake in that designation significant enough to warrant a correction. The purpose of this article is not to resolve the frustrations with the change or mistake rule—perhaps a monumental feat—but to explore the rule in order to identify the understanding that supports its continued application. Section II explains the concept of land use zoning, the context of zoning amendments, and the operation of the change or mistake rule. Section III identifies the criticisms of the rule to understand why opponents are so vehement about its misplacement in zoning. Section IV then argues that the primary problems with the rule claimed by critics might not be so fatal. This section, and the article in general, suggests that disgruntlement with the change or mistake rule either has not yet been well articulated, is based on an incomplete understanding of zoning and planning, or has become moot in the evolution of the rule.

Overcoming Neoliberal Hegemony in Community Development: Law, Planning, and Selected Lamarckism

This article is an attempt to remedy problems in the legal aspects of the American planning law system by addressing problems with the planning aspects. In that sense, it is something of a supply-side approach to legal evolution, recognizing that while planning cannot force legal change to occur, it can provide the resources that will allow it to occur. My core assumption is that land-use planning exists primarily to justify and legitimate the law that follows. Legitimate law emerges from the visions and desires of the affected community. But what if the law that creates our communities and regulates our land is not connected to the community visions and activities that imagine them? If land use law does not emerge from those visions, where does it come from?

A Comparative Analysis of State and Local Government Vacant Property Registration Statutes

There is little doubt that the current foreclosure crisis in the United States is the worst since the Great Depression. One of the biggest impacts on municipalities is the rising level of vacant properties that occurs as a result of the high foreclosure rate. The costs to local governments in maintaining and securing these vacant properties are high. As a result, local governments have turned to various strategies to combat the problem. This article addresses one of the most recent and innovative strategies, the vacant property registration (VPR) ordinance. Part II of this article addresses the challenges local governments face as a result of the high number of vacant properties. Part III addresses the response of local governments in dealing with this problem with a specific focus on local government VPR ordinances. Next, Part IV addresses the recent development of state sponsored VPR legislation by focusing on the statutes enacted in Connecticut, Texas, and Virginia and looks at the proposed state VPR statute in Georgia. Finally, the first section of Part V identifies the advantages and disadvantages to having state VPR legislation as opposed to local ordinances while the second section examines the future of VPR ordinances and provides recommendations for governments considering adopting a VPR ordinance.

CO2 and Regulation Authority: The Legal and Policy Implications of California's Proposed Cap-and-Trade Program and Clean Air Act National Ambient Air Quality Greenhouse Gas Regulation

The realities of climate change and the numerous threats it poses to human health and welfare are more widely accepted than ever before. Scientists warn that if greenhouse gas (GHG) pollution continues to rise, the world could encounter enumerable natural calamities, including severe flooding, drought, glacial melting, rising sea levels, reductions in biodiversity, and increased rates of human illness.This article examines the complex legal and policy considerations of GHG regulation, specifically discussing California’s proposed cap-and-trade program and the Clean Air Act (CAA). Part II of the article provides a short history of global warming. In Part III, California’s proposed cap-and-trade program is discussed, including its requirements and structure. Part IV provides a general overview of preemption law. In Part V, the Clean Air Act generally and the potential regulatory obligations created by the Supreme Court’s landmark decision in Massachusetts v. EPA are examined. Part VI continues the Clean Air Act discussion, examining specifically the possible means of GHG regulation, the likelihood of preemption of the Cap-and-Trade Program, and the feasibility of regulation. Part VII synthesizes the information and looks at the value and shortcomings of statewide and regional regulation and national regulation, respectively. Finally the author conclude that, for a number of reasons, the federal government is the most appropriate regulator of GHG emissions, though not under the existing CAA.

Disaster Resilience: A Study of San Francisco's Soft-Story Building Problem

In 2001, the Federal Emergency Management Agency (FEMA) named three major disaster scenarios as being among the most serious threats to the nation: a terrorist attack in New York City, a major hurricane hitting New Orleans, and a large earthquake hitting San Francisco. Earthquakes can kill thousands of people in just a few minutes, while their lingering effects can result in the deaths of thousands more. The largest impediment to earthquake resilience in San Francisco lies in its existing housing stock, particularly that of soft-story buildings, which are most vulnerable to failure. In this regard, San Francisco is in a unique position to serve as an example to municipalities across the country in disaster preparation because it has already recognized its greatest vulnerability and may be able to act before a disaster scenario plays out. This article traces the threat posed by soft-story buildings and San Francisco’s attempts to address the problem. Part II provides background information on San Francisco’s vulnerability to a major earthquake. Part III takes a closer look at the mitigation measures San Francisco can, and has begun, to implement in order to reduce the risk of the failure of soft-story buildings in the event of a major earthquake.Soft-story buildings are a known threat to San Francisco’s resilience, and likely a threat to other municipalities.

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