Vol.40, No.1, Winter2008

Vol. 40, No. 1, Winter 2008

Publication Date: April 10, 2008



David D. Foster & Anita A. Summers, State Executive/Legislative and Judicial Activities and the Strength of Local Regulation of Residential Housing, 40 URB. LAW. 1 (Winter 2008) LAND USE REGULATIONS FOR RESIDENTIAL HOUSING ARE widespread in the United States and may be a major factor accounting for why many believe there is a "land shortage" in the larger coastal markets. Unfortunately, there is a paucity of rigorously based knowledge of the origins and effects of local land use regulation primarily because land use regulations are largely under local control-and so are the data describing them. To help address this deficit, the Zell/Lurie Real Estate Center at the Wharton School of the University of Pennsylvania embarked on a national survey of residential land use regulations. This article focuses on one key element in understanding the variation in the strength of local regulations-the relationship between state activity in housing regulation and the strength of land use controls at the local level. Specifically, we address two questions: (1) what is the variation across the fifty states in the activity of the executive/legislative branches and in the judicial posture toward local control over land use; and (2) what impact do the variations have on the degree of regulatory control at the municipality level, where significant authority over land use regulations resides?

Caitlin S. Dyckman, The Covenant Conundrum in Urban Water Conservation, 40 URB. LAW. 17 (Winter 2008). As cities institute water conservation to maintain sustainable residential growth, homeowners' associations (HOAs) become prospective obstacles. Many HOAs mandate high water consuming landscaping and maintenance practices. Depending on the state, local governments may have the authority to reach existing HOAs' aesthetic and landscaping covenants (CC&Rs) or rules through water conservation ordinances, particularly in drought. Even with the police power, non-exigent regulation might be found to overreach if the government's legitimate end could be achieved without interference in property or contract rights. However, with education and regulation in new construction, HOAs are also an untapped water conservation resource. Unlike local governments, HOAs are uniquely positioned to enforce their own contractual relationships if they contain ordinance-mandated water conservation practices. This article examines the obstacles and potential of HOA water conservation through legal analysis and interviews with HOA board members, developers, property managers, and city officials familiar or involved with HOAs in California case study areas. The article finds that CC&R and landscape aesthetic alterations are difficult to achieve within an existing HOA; HOA water conservation potential is heavily dependent on or influenced by extra-contractual entities such as the architectural review committee, the developer, and the property management company. The article also finds that cities are having more regulatory success with HOAs in new construction and are more likely to reach existing HOAs through market incentives. The choice to mandate HOA water conservation is increasingly important for planners and municipal attorneys with the progressively ubiquitous HOA structure and growing residential water demand throughout the country.

Harvey M. Jacobs, The Future of the Regulatory Taking Issue in the United States and Europe: Divergence or Convergence?, 40 URB. LAW. 51 (Winter 2008). England and the United States have famously been described as "two countries separated by the same language." In a similar way, the United States and Europe have been thought of as two "nations" in which property holds a similar historical place, and yet its treatment seems remarkably divergent. This article explores the future of property in the United States and Europe from the perspective of regulatory takings. First, it engages the myth that the treatment of property in the United States and Europe is, in fact, divergent and argues that until the early part of the twentieth century, property and its treatment were essentially similar in the United States and Europe; that is, the American treatment of property under regulatory takings was, in fact, very European. It was the United States that changed its perspective-not the Europeans. Second, the article explores the likely future of regulatory takings in the United States, especially in the context of the 2002 and 2005 United States Supreme Court decisions and the rise and impact of the so-called private property rights movement. Third, the article speculates on the European future of regulatory takings in specific but private property more broadly, especially as a function of European integration. Finally, it speculates on whether the twenty-first century will bring Europe and the United States into convergence or divergence over regulatory takings. Will Europe and the United States continue to be separated by the same language?

Casey Schach, Stream Buffer Ordinances: Are Municipalities On the Brink of Protecting The Health of Streams or Opening the Floodgates of Takings Litigation?, 40 URB. LAW. 73 (Winter 2008). This article examines the various stream buffer ordinances already in effect throughout the nation, considers whether these preservation devices might arguably be considered takings depending on how written, and offers guidance on how to draft these ordinances to keep them within the constitutional boundaries of the Fifth Amendment. Part II examines three categories of ordinances based on how the buffer width is determined. Part III applies the Penn Central test for regulatory takings to each of these categories to test their individual constitutionality. Finally, Part IV offers guidance to municipalities on how to draft stream buffer ordinances to avoid constitutional infirmity.

Michael Kruse, 24th Smith-Babcock-Williams Student Writing Competition Winner: Constructing the Special Theater Subdistrict: Culture, Politics, and Economics in the Creation of Transferable Development Rights, 40 URB. LAW. 95 (Winter 2008). If zoning restrictions are otherwise justified what warrants the transferable development rights (TDRs) exception? If TDRs are exempt from the restrictions imposed under Euclidean zoning, what principles should be used to constrain their use? Understanding how to constrain the use of TDRs is particularly important, for their potential economic value creates a powerful incentive for different interest groups to manipulate the use of those rights for their own political or economic purposes. As Richard Babcock observed more than forty years ago, "the zoning game" often allows narrow interests to drive land use policy at the expense of other, more general or community-wide interests. If Babcock's characterization of zoning is correct, introducing TDRs-goods that can be "printed" for free by city planners and sold as a substitute for real estate-into the game will only strengthen those narrow interests. This case study of TDR program operating in New York's Theater Subdistrict confirms this suspicion. Part II provides a brief general background on TDRs in New York City. Part III traces the development of the current TDR program from its roots in an incentive zoning plan established in 1967 through the creation of the Theater Subdistrict in 1982 to a set of zoning amendments expanding the program in 1998. Part IV argues that throughout this development, TDRs helped to hold together a pro-growth coalition of developers, politicians, theater owners, and cultural elites. Part V assesses some of the consequences of theater TDRs and discusses some of the implications of this case study for legal, political, and administrative control of TDR programs.

Adam Lovelady, 24th Smith-Babcock-Williams Student Writing Competition Runner-Up: Broadened Notions of Historic Preservation and the Role of Neighborhood Conservation Districts, 40 URB. LAW. 147 (Winter 2008). At their best, neighborhood conservation districts (NCDs) foster the expanded goals of preservation and keep the movement vital and dynamic. But deeper review raises fundamental questions. What are the boundaries of preservation? Who should decide what to preserve or not to preserve? And, when it comes to preservation goals, how much compromise is too much? This article considers NCDs and underlying questions of historic preservation. Part I discusses the ways in which the preservation movement has evolved in recent decades and the questions and concerns that arise from this institutional evolution. Part II introduces this legal tool, discussing its usefulness and common components. Parts III through V look at NCDs representing three different models: Nashville, Tennessee's preservation model; Raleigh, North Carolina's planning model; and Dallas, Texas' hybrid model. Finally, Part VI evaluates the role of NCDs in light of the proposed district for Charlottesville's Fifeville-Castle Hill Neighborhood. This discussion is pertinent to preservationists looking to protect more resources, municipalities dealing with issues of revitalization and gentrification, and anyone interested in the dynamic issues of land use and preservation. From the start, this article assumes that some level of historic preservation is desirable to enrich our ties to the past, conserve the arts of design and construction, and build sustainable and diverse communities. That said, historic preservation cannot be an absolute. Preservation must be part of a broader community planning agenda, and at times, compromises must be made. Conservation districts serve as a necessary compromise when traditional HD regulations are too strict. Even so, NCDs are no silver bullet for the challenges of preservation and community planning, and localities and preservationists must approach them critically.

With Cases Notes on:

Biotechnology Industry Organization v. District of Columbia

Vas-Cath, Inc. v. Curators of the Univ. of Missouri

Cohen v. JP Morgan Chase & Co.

Seidemann v. Bowen

Spiegla v. Hull

N. Cal. River Watch v. City of Healdsburg

Porter v. Bowen

Layshock v. Hermitage Sch. Dist.

N.J. Dep't of Envtl. Prot. v. Exxon Mobil Corp.

A.D. v. Summer School District