In this Issue

Real Estate

Recent Developments: RLUIPA Land Use Update

With respect to religious liberty in the context of marriage, employment and land use cases, 2014 was a tumultuous year. Many states began the process of adopting Religious Freedom Restoration Acts (RFRAs) in light of the United States Supreme Court’s anticipated decision regarding the constitutional right to same sex marriage.1 The public reaction to state RFRAs has been swift and loud. Several celebrities and companies have condemned the idea and called for boycotts of the state and local governments who have considered, and in some instances enacted, RFRAs.2 Nevertheless, there is a vocal group attacking RFRAs, and this attack has spilled over to RLUIPA cases.3 Courts have arguably proven to be more hostile than ever to religious groups seeking a level playing field with comparable secular assembly places in the context of zoning. Indeed, the level of conflict over religious land uses has remained the same (and in many instances increased) compared to what existed fifteen years ago.4 Municipalities often take a “whatever it costs to defend a case” approach to RLUIPA cases.5 After fifteen years, courts have failed to define many of the terms in the Religious Land Use and Institutionalized Persons Act6 (RLUIPA) that were left undefined by Congress. For a religious land use plaintiff, the success rate of either settling a case or surviving summary judgment hovers around seventeen percent. Since the enactment of the law in 2000, there have only been eleven RLUIPA land use trials in the country.7 In light of these facts, the likelihood of success for a religious plaintiff in RLUIPA land use cases appears to have dimmed somewhat in this past year.

Environment

The Birds and the Bees: Recent Developments in Urban Agriculture

The interests and demand for urban agriculture continues to rise throughout all regions of the United States, in urban areas of all sizes, and on a variety of scales. Communities are using urban agriculture to achieve a wide range of goals, including fostering sustain- ability, increasing economic vitality, repurposing abandoned or deteriorating properties, and improving public health and food security. This update discusses recent developments and trends in urban agriculture regulation.

Land Use

Recent Developments in Comprehensive Planning

This recent developments articles catalogues the role of the comprehensive plan in land use regulation.1 As it has for many years, this report examines three major traditions (or schools of thought) regarding the impact of the comprehensive plan. One school exemplifies the long-standing view that a separate plan is unnecessary — all that “counts” are the zoning regulations and map, which in effect become the plan. A second school, which may now comprise a majority of states, is that the plan is a factor (of greater or lesser degree) in evaluating the validity of land use regulations or actions. A third school consists of those states that by legislation or case law have elevated the plan to a quasi-constitutional role. The report then examines cases decided during this period that deal with plan amendments and interpretations.

Federal Government

Recent Developments in Exactions & Impact Fees

This past term the United States Supreme Court again heard arguments in a case in which they had rendered a decision at the conclusion of the 2013 Term — Horne v. USDA.1 As I reported in last year’s recent developments article,2 the Supreme Court in that opinion decided that the Hornes, raisin growers in California, had standing to challenge in the United States District Court, rather than the Court of Claims, the program that required them to divert a share of their raisins from the open market in order to control prices and supply.3 The Court remanded the case to the Ninth Circuit to review the case on the merits.4 The Ninth Circuit did so, analyzing the Hornes’ challenge as an exaction under the Nollan and Dolan line of cases.5 Rather than ad- dressing the program as an exaction, the Supreme Court held that the raisin program of the USDA effected a physical, per se taking.6

Real Estate

Recent Developments in Eminent Domain

It has now been ten years since the U.S. Supreme Court, in Kelo v. City of New London,1 raised the public consciousness about eminent domain by holding that a municipality’s exercise of eminent domain 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. In the past year, the courts have also been active, and 2014 saw a decided upswing in the number of interesting eminent domain cases decided. This article discusses the recent case law on both “power to take” issues and those involving just compensation.

Natural Resources

Three-Legged Stool on Two Legs: Recent Federal Law Related to Local Climate Resilience Planning & Zoning

NOTWITHSTANDING A CRITICAL GAP BETWEEN CLIMATE CHANGE related risks and preparedness in the United States, Congress has yet to pass any federal law expressly addressing climate change hazard mitigation (or any other aspect of climate change) and appears unlikely to do so anytime soon.1 Despite this, the first half of 2015 has seen a number of actions in the other two branches of the federal government with significant implications for local hazard mitigation planning, zoning, and development.2 Of particular note, and as discussed in more detail below, the President issued an Executive Order and the Federal Emergency Management Agency (FEMA) issued draft guidelines that have the potential to affect many state and local actions by, among other things, expanding the federal floodplain boundary.3 In an apparent shot across the bow to states that are, at best, failing to acknowledge climate change related hazards, and, at worst, erecting obstacles to climate change hazard mitigation,4 FEMA also issued guidelines that could, in effect, force state governments to plan for climate change or risk losing federal disaster funding.5

Land Use

Case Notes

Red River Freethinkers v. City of Fargo | Int’l Soc’y for Krishna Consciousness. v. City of Los Angeles | Frank v. Walker | Chabad Lubavitch of Litchfield Cnty., Inc. v. Litchfield Historic Dist. Comm’n | Church, Inc. v. City of New Berlin | Mc Allen Grace Brethren Church v. Salazar | Haight v. Thompson | Munn v. City of Ocean Springs | CEnergy-Glenmore Wind Farm v. Town of Glenmore | Scheick v. Tecumsch Pub. Schs. | Weaving v. City of Hillsboro | N.W. v. Boone Cnty. Bd. of Educ. | EEOC v. Port Auth. of N.Y. & N.J. | Tracey v. State | State v. Adams | Raynor v. State | Bartley v. Commonwealth | In re Judicial Campaign Complaint Against O’Toole