Summer 2012

Hydrofracking: Disturbances Both Geological and Political: Who Decides?


Hydrofracking: Disturbances Both Geological and Political: Who Decides?

Controversy surrounds the mining of shale gas through a process known as hydraulic fracturing (hydrofracking) in the Marcellus Shale formation, one of the largest shale gas areas in the world. This article describes and discusses this debate, the tension between state and local control, local zoning limitations imposed on drilling and ensuing litigation, and options available to municipalities to control the impact of drilling on their local environment and economies.

Natural gas, a relatively clean fuel, emits fewer greenhouse gases into the atmosphere than other fuels, and it is an important source of energy. Hydraulic fracturing is currently the predominant method used to extract natural gas from the earth. While natural gas has many benefits, there are health concerns surrounding the hydraulic fracturing process, primarily resulting groundwater contamination. Although hydraulic fracturing is currently regulated by the individual states, hydraulic fracturing should be regulated at the federal level.

This article briefly describes the “void for vagueness” doctrine. Then, to illustrate its real-world application, the author considers some of this year’s unsuccessful vagueness challenges to zoning laws. Finally, he turns to three cases this year in which landowners successfully argued that zoning regulations were too vague to quash their land use dreams.

In light of the different standards courts use to impose municipal estoppel, one would expect that the same municipal actions may give rise to an estoppel in some jurisdictions and not in others. Recent case law, however, shows that this is not the case. Over the past year, when courts have analyzed whether to impose estoppel against a municipality, the courts have been surprisingly consistent in defining which government acts give rise to an estoppel and which do not. This article draws from examples of recent case law to illustrate those municipal actions that are likely to result in municipal estoppel and uses those examples to guide developers on the extent to which they should rely on representations from a municipality.

For many years the State and Local Government Law Section of the American Bar Association has reviewed the role of the comprehensive plan (sometimes called the “general” or “master” plan) to determine the weight given that document in evaluating permit applications and land use regulations. In addition, that same report has examined the amendment and interpretation of the plan. This report, surveying the cases between October 1, 2010 and September 30, 2011, continues that examination.

A perfect storm of NIMBY-ism, suburban sprawl, inflexible zoning codes – or judicial interpretations of them—and Medicare cutbacks have combined to prevent seniors and their families from receiving state of the art nursing care and social support in some residential communities. This article explores zoning practices and policies relating to nursing homes in residential zoning districts.

Historically, religious organizations have been subjected to unequal enforcement of land use regulations and sometimes blatant discrimination when compared to their non-religious counterparts. In 1993, Congress passed the Religious Freedom Restoration Act (“RFRA”) in an attempt to eradicate this discrimination and to preserve individuals’ right to freely exercise their religious beliefs. Four years later, the United States Supreme Court ruled in City of Boerne v. Flores that RFRA was an unconstitutional use of Congress’s enforcement powers under the Fourteenth Amendment. In response to Boerne, in 2000, Congress passed the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) to correct the constitutional infirmities of RFRA. Since its adoption, RLUIPA litigation has been constant and evolving, and 2011 was no exception. Courts scrutinized RLUIPA’s constitutionality, further defined and applied “substantial burden” and “equal terms,” and explored issues regarding modifications of consent judgments, standing, and attorneys’ fees. In the meantime, although these issues have created splits among the circuits, the Supreme Court continues to deny certiorari in RLUIPA cases. Discussed below are some of the most important and influential developments of the past year.

The legal opinions analyzing exactions and impact fees over the last eighteen months have had much to do with defining and limiting the boundaries of this “sub-branch” of takings jurisprudence. This article will review (1) decisions that have limited the special context of land-use exactions under Nollan and Dolan, (2) opinions that have limited the applicability of this doctrine based on ripeness, and (3) conclude with an example of state court decision-making in which the standards have become so embedded in state regulatory procedure that the fact pattern of the decisions that originated “essential nexus” and “rough proportionality” are no longer important.

In District of Columbia v. Heller, the United States Supreme Court recognized for the first time that there is a fundamental right to have a handgun in the home for self-defense. Lower courts are now establishing a framework to apply Heller and its sister case, McDonald v. City of Chicago, to all forms of local regulation, including land use controls. This article will discuss recent developments in Second Amendment jurisprudence, the methods that courts may use to evaluate gun regulations, and offer suggestions for zoning and planning officials to consider in regulating gun-related land uses.

Given the difficulty of winning public support for the dissolution of municipalities and the inefficacy of eliminating elected officials to curtail expenses, this article recommends streamlining government first through intermunicipal collaboration. Toward this end, New York has authorized municipalities to form “intergovernmental relations councils” to channel the energy of citizen volunteers toward developing and implementing cost-cutting initiatives that enable a group of municipalities to take advantage of economies of scale. Such collaboration – evident, for example, in joint purchasing and sharing of services by multiple municipalities – is downsizing done right. It requires far less political capital to achieve, preserves the diversity of opinion that characterizes meaningful legislative debate, and yields the most permanent cost savings for local governments.

Since the U.S. Supreme Court’s decision in Kelo v. City of New London, much of the focus in eminent domain litigation has been on the search for standards for determining when a condemnor has properly exercised the power to take when there are substantial allegations of pretext or a private taking—issues the Court left open in Kelo. The last few years have produced a number of cases from state courts articulating those standards. But that trend appears to be slowing, and this past year did not see as many reported cases on the issue. This article summarizes recent cases related to the ability of condemnors to take property, including challenges under the Public Use Clause as well as other issues related to the power to take.

This paper argues that the Keystone proposed pipeline expansion can be permanently derailed or unearthed by asking “Where’s the public purpose?” This paper compares the drive for autonomy expressed in land ownership with the need to preserve, promote, and protect the public good. It seeks a way to reconcile the competing interests, concluding that Alexander’s social obligation norm is an appropriate response to resolve the twin crises of economy and individuality with a measure of mutual reciprocity. This allows state-authorized conversion to remain an appropriate solution in practice and in theory.

This recent developments in education law report reviews litigation involving searches of students by public educational institutions. An analysis of student searches conducted by public school officials begins with the applicable constitutional principles governing student searches. Following a review of the leading constitutional cases relevant to student searches, this article discusses recent litigation regarding the extent to which a public school district may conduct searches of students in the ever-changing school environment consistent with these constitutional principles.

McBurney v. Young, Bays v. City of Fairborn, Ohio Citizen Action v. City of Englewood, Lebamoff Enter. Inc. v. Huskey, ACLU v. Masto, Mabey Bridge & Shore, Inc. v. Schoch, Antilles Cement Corp. v. Fortuño, Awad v. Ziriax


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