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This article examines a relatively recent entrant into the world of land use reform that holds the potential to reduce the exclusionary impact of local land use regulations favoring single family homes without imposing hidden regulatory costs that themselves undercut the purpose and benefits of the reform itself. Over the past decade, a number of local governments have amended land use regulations to permit or encourage the construction of so-called “accessory dwelling units” (ADUs) in residential (especially single-family) neighborhoods. Despite the flurry of legislative action, however, many questions about these efforts remain unanswered—especially whether the reforms will actually achieve their stated purpose of breaking down regulatory barriers to affordable housing by encouraging the construction of ADUs. In order to understand more about the effects and potential for ADU reforms, this article examines the effects of ADU regulations in a context which ought to predict a minimal level of local parochialism—that is, in a state where local governments are required to permit ADUs in residential zones. The authors examine the zoning law of all California cities with populations over 50,000 people (150 total cities) to determine how local governments actually implemented ADU reforms “on the ground” after the state legislation was enacted. They then categorize these responses into several legislative groups that exemplify the varieties of responses to the state mandate. Their analysis suggest that ADU reforms—even state-mandated ones—are not silver bullets that overcome local governments’ exclusionary impulses in the land use contexts.
One of the primary results of the mortgate crises, and a primary cause for the continuation of the crisis, is the depressed value of property securing mortgages in which the debt far exceeds the value. A solution to the problem of underwater mortgages requires eliminating the excess debt wrought by the housing bubble and its collapse by writing down principal. Recently investors and scholars have developed and proposed alternative plans to use eminent domain, funded by investor groups, as a mandatory way to reduce the debt of homeowners with underwater mortgages at a low cost to taxpayers (the Plan). Under these Plans, municipalities could act as agents to overcome the collective action problems caused by the fragmented ownership of property, theoretically leading to a stabilization of the housing market. In light of the significant interest that local communities and the nation at large have in the revitalization of the housing market, this Plan cannot be summarily discounted. This article explores the legal and policy considerations of a plan to use eminent domain to acquire and refinance underwater mortgages.
With growing concerns about global climate change and rising gasoline prices, there is increasing interest in expanding opportunities for people to walk or bike to key destinations. There is scientific consensus that climate change is induced mostly by increasing carbon loads in the atmosphere and this in turn is caused substantially by the burning of fossil fuels in motorized vehicles. Among the mobility alternatives to carbon-based mobility are walking and biking. Generally, there has been a trend since 1995 for more walking and biking trips though the overall share of all trips is small. Does a sizeable number of Americans want to walk or bike to work and for errands? If so, to what extent are their preferences being met?
The vision of the Native American people was maintained for thousands of years, along with the health of the land. Sustainability into the indefinite future seemed assured. Then came the invaders from the east with their nascent hope of growth. The desire was fanned into flame by Locke’s non-reciprocating view of property and Smith’s concept of the free markets’ invisible hand. Then, wrapped in the veneer of the Declaration of Independence and the Constitution, growth blazed across the continent in less than two centuries. In the late 1900s, the vision of endless expansion and wealth was transformed into the specter of inescapable scarcity. There is no future for continuing economic growth. It is past time to rediscover the continent, and reclaim the tribalists’ vision of cycles, balance, reciprocity and communities stretching forward without end.
Professor Jerrold A. Long has written a very interesting article on the evolution of law in the context of neoliberal hegemony (the privatization of law) published in The Urban Lawyer. He argues that narratives that represent public goods are excluded from the land use planning conversation. It is difficult not to agree with much of what he argues. His description of the dynamics of land use planning is accurate, and it is laudable that he wants to see (and prescribes how to achieve) a better connection between “the visions and desires of the affected community” and legitimate law. The only hesitance I have to full acceptance of Long’s proposition is that I believe neoliberal hegemony is here to stay, at least in the near-term, and tweaking the community planning process will not change that fact.
This annual report deals with the relationship of zoning and other land use regulations and actions and the comprehensive plan (sometimes referred to as the “general” or “master” plan. It chronicles those cases decided on these matters between October 1, 2011, and September 30, 2012. The discussion begins with the three schools of thought on this relationship—one in which the plan is unnecessary and legally irrelevant, another in which the plan is a factor in judicial review of land use regulations and actions, and a third in which the plan achieves quasi-constitutional status, although it may be changed as can any policy. Following this tripartite analysis, the authors review the cases for this same period which relate to amendment, and then interpretation of the comprehensive plan, if the plan has legal significance, and proceeds to conclusions.
In the thirteen years that RLUIPA has been in effect, federal courts have come to a general consensus that the Act is constitutional. From there, however, courts have been far more varied in interpreting and applying the specific principles contained in RLUIPA’s land use provisions. Since RLUIPA litigation is a relatively new area, the body of case law interpreting the Act is constantly developing and changing. This article summarizes various noteworthy RLUIPA decisions from courts across the country issued in the last 18 months that provide a general synopsis of the dynamic and evolving area of religious land use litigation.
This article reviews those major regulatory takings and inverse condemnation decisions of the past year. Section II details cases about whether particular scenarios result in takings liability. Section III details what sort of property might be considered protected. Section IV details cases analyzing whether application of Penn Central results in a taking. Section V focuses on ripeness, the most frequently applied procedural dodge to takings cases. Section VI considers other decisions involving such topics as judicial takings and standing.
In Kelo v. City of New London, the United States Supreme Court held that a municipality’s exercise of eminent domain power supported only by claims that doing so would help the local economy was not a per se violation of the Public Use Clause of the Fifth Amendment. This article summarizes the past year’s decisions, several of which attempt to discern what Kelo means. It also discusses pipeline takings, the effect on a due process claim of a finding that a taking was pretextual, and other issues related to the power to condemn private property for public use.