Possible Paper Topics: Fall 2002

Let me know if you are going to work on one of these topics. It is not first-come, first-served. More than one person can work on the same topic, but each must work independently. You can write on other topics, but you need to get my approval.

The topics I think are particularly promising and doable are in bold.

Ch. 2 Use Zoning Issues

Making Sense of the Standard of Review of Rezonings and Rezoning Denials. Bradley v. Payson City Corp., 17 P.3d 1160 (Utah App. 2001).

The Inconsistent Opinions of the North Carolina Court of Appeals in Reviewing Land Use Cases: What is the standard of review? The recent state supreme court opinion in Mann Media, Inc. v. Randolph County, 356 N.C. 1 (2002), might help.

A (Historical) Analysis of Land Use Law in State X (take your pick). How have state concerns changed? Pro-development? Environmentally Aware? Has attitude of court changed? Move from local to state control? See Michael B. Brough, Flexibility Without Arbitrariness in the Zoning System: Observations on North Carolina Special Exception and Zoning Amendment Cases, 53 N.C.L.Rev. 925 (1975) as an excellent example. Since 25 years have passed, another article on North Carolina is possible.

Preemption:

City of Malibu v. Santa Monica Mountains Conservancy, 98 Cal.App.4th 1379, 119 Cal.Rptr.2d 777 (2002) (state land use agency subject to local zoning)

Great Western Shows, Inc. V. County of Los Angeles, 27 Cal.4th 853, 44 P.3d 120, 118 Cal.Rptr.2d 746 (2002) (state law does not preempt local ordinances banning sale of guns) .

Craig v. County of Chatham, 356 N.C. 40, 565 S.E.2d 172 (N.C. 2002) (state law preempts local law limiting industrial hog operations to industrial zones).

Telecommunications: New Par v. City of Saginaw, 301 F.3d 390 (6th Cir. 2002) (held that "as a matter of apparent first impression, Telecommunications Act's `in writing'"requirement for decision denying request to place, construct, or modify personal wireless service facility requires separate writing describing reasons for denial sufficient to permit judicial review").

Vested Rights: Tearing down buildings: Pinecrest Lakes, Inc. Shidel, - So.2d - (Fla.2002) (order to demolish apartment buildings built in violation of county comprehensive plan; apartments were bulldozed recently); Hentz v. City of Spearfish, 648 N.W.2d 338 (S.Dak. 2002) (building pursuant to invalid permit not required to be torn down at neighbor's request; equities favor the builder)

Dreikausen v. Zonign Bd. of Appeals of Long Beach - N.Y.S.2d. - (2002), 2002 WL 1227199 (Court of Appeals finds neighbors appeal of variance moot because project partially built; neighbors should have sought a preliminary injunction)

Developing law on development agreements. See Santa Margarita Area Residents Together v. San Luis Obispo County , 100 Cal. Rptr.2d 740 (2000)

What happens when the city makes a mistake and gives you a permit it should not give you? Grant v. City of Folly Beach, 2001 WL 791746 (S.C. July 16, 2001) ( where landowner could have determined that permit he obtained was improper, city is not estopped to revoke permit).

.Is there a meaningful difference between area and use variances? State v. Outagamie County Bd. of Adjustment, 244 Wis.2d 613, 628 N.W.2d 376 (2001).

Chapter 4: Constitutional Issues

Takings

Daniel v. Area Daniel v. Area Plan Commission of Allen County, 20002 WL 31018822 (7th Cir. 2002) (finding city's voiding of restrictive covenant not a pubic use; arguably flies in the face of Supreme Court precedent; will it be overturned if appealed?). See also Township of West Orange v. 769 Associates, LLC, 341 N.J.Super. 580, 775 A.2d 657 (2001); AvalonBay Communities, Inc. v. Town of Orange, 256 Conn. 557, 775 A.2d 284 (2001) (town plans to take land for an industrial park when affordable housing might be built).

Daniel also raises the question of forum selection in suing for a private taking. State or federal court?

Implications of Palazzolo v. Rhode Island, 121 S.Ct 2448 (2001). Separable issues to consider include: ripeness, the rule of notice, reasonable investment backed expectations.

McQueen v. South Carolina, _ S.E.2d (S.C. 2001), a denial of a request to build a bulkhead and fill coastal wetlands was held not to be a taking. On the last day of the 2001 term, the Supreme Court remanded it for reconsideration in light of Palazzolo and Tahoe-Sierra. What will or should happen?

Closing down crack houses, etc. as public nuisances: when are closings "takings"? Keshbro v. City of Miami, 2001 WL 776555 (Fla.2001).City of Seattle v. McCoy 4 P.3d 159 (2000).

Tahoe-Sierra Preservation Council. Inc. v. Tahoe Regional Planning Agency 122 S.Ct. 1465 (2002): Kennedy and O'Connor join the more liberal justices for a 6-3 holding favoring government planning. Potential issues to research are the effect of the case on:

(1) the outcome determinative parcel as a whole rule. See Machipongo, 799 A.2d 751 (Pa. 2002), following Tahoe-Sierra, and Walcek v. U.S., 2002 WL 31027444 (Fed. Cir. 2002)

(2) moratoria as takings?

(3) on the use v. value debate. Which is the test for economic loss?

(4) whether Lucas has been limited to its facts?

Casenote: Seiber v. U.S. 2002 WL 31002601 (endangered species, spotted owl, restrictions not a taking)

Casenote:Walcek v. U.S., 2002 WL 31027444, (Fed. Cir. 2002), takings case applying Penn Central, the test that reigns after Tahoe-Sierra.

How are socio-economic equal protection claims faring after Olech v. Village of Willowbrook, 528 U.S.562 (2000)? Is higher scrutiny being applied?

Constituional Property Rights in the Fourth (Most Conservative in the Country) Circuit: analyze the Fifth Amendment and Fourteenth Amendment (equal protection and due process) cases of the court. How do they compare to generally perceived law. Are they wacky?

Is government, state or federal, immune from a compensation award being assessed against it without its consent? Does sovereign immunity override the Fifth Amendment.

Waiver of 11th Amenment immunity. Lapides v. Board of Regents of University System of Georgia, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002) (not a land use case, but Court held state waives 11th Amendment immunity by voluntarily submitting to federal court by removing case from state court). Apply this to land use removal cases. See also

Pascoag Reservoir & Dam, LLC v. Rhode Island, 2002 WL 1905220 (D. R.I. 2002) (state acquisition of title by adverse possession is a compensable taking). Could this possibly be correct?

In authorizing a property owner to conduct a nuisance, the government deprives the neighbors of a property right to be free from nuisances. Is that valid? See Bormann v. Bd. of Supervisors, 584 N.W.2d 309 (Iowa 1998).

The plague of the Euclid/Nectow "substantially advancing a legitimate state interest" due process language that now masquerades as a Fifth Amendment takings test under Agins. How long can it go on? See, e.g., Santa Monica Beach, Ltd. v. Superior Court, 968 P.2d 993 (Cal.1999)(court says can't be a taking unless arbitrary ) and Kayden, 23 Urb.Law 301, 313-327 (1991) and Eastern Enterprises v. Apfel, 118 S.Ct. 2131 (1998) (Kennedy concurrence).

Examine recent state takings legislation of Florida or Texas, or the Oregon ballot amendment that passed in Nov. 2000 (but is being challenged on narrow procedural grounds) requiring compensation for any land use law that causes any decline in value.

What is left of substantive due process in land use? In federal courts and in state courts? How do they differ?

How to define a property interest for substantive due process challenges. See, e.g., Hyde Park Co. v. Santa Fe City Council, _ F.3d _ (10th Cir.2000) (developer had no protectible property interest in permit; court affirms its long held view requiring entitlement for procedural and substantive due process).

Impact fees to provide affordable housing. San Remo Hotel L.P. v. City and County of San Francisco, 27 Cal.4th 643, 41 P.3d 87, 117 Cal.Rptr.2d 269 (2002).

Voters in Oregon in November, 2000, amended their state constitution by initiative requiring compensation for any reduction in the fair market value of property resulting from government regulation. The measure was struck down by a state trial court on procedural grounds and is before the state supreme court. League of Oregon Cities v. State of Oregon (SC S48450) and McCall v. Kitzhaber (SC S48451). See Hunnicutt v. Myers, 39 P.3d 182 (Or.2002). The text of the amendment is available at http://www.sos.state.or.us/elections/irr/2000/046text.pdf.

First Amendment

Adult use controls.City of Los Angeles v. Alameda Books, _S.Ct. _, 2002 WL 970712. Is the conferral of First Amendment protection a joke? How hard can it be to exclude the unpopular (with many but not all) adult use? See also Clark v. City of Lakewood, 259 F.3d 996 (9th Cir. 2001) (closed meetings of planning advisory board's adult entertainment task force violated open meetings law and evidentiary basis to exclude not made); Cochran v. Town of Marcy, 143 F.Supp.2d 235 (N.D.N.Y.2001) (invalid where spacing requirements effected total exclusion).

State regulation of adult uses; conflict between state and local laws. Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 773 A.2d 7069 (2001).

Murphy v. Zoning Com'n of Town of New Milford, --- F.Supp.2d ----, 2002 WL 31015539 (D.Conn. 2002).

Fifth Avenue Presbyterian Church v. City of New York, 293 F.3d 570 (2nd Cir. 2002). City violated First Amendment, or RLUIPA?, by prohibiting church from allowing homeless to sleep on church lawn. Court seems to distinguish between shelter and what occurred here, implying former could be regulated . . . ??

Dilaura v. Ann Arbor Charter Twp., 30 Fed.Appx. 501, 2002 WL 273774 (6th Cir. 2002(Mich.) (zoning ordinance that prohibited use of land for other than residential purposes did not violate First Amendment's provision on freedom of religion.)

Freedom Baptist Church of Delaware County v. Tp. of Middletown, 204 F.Supp.2d 857
(E.D.Pa. 2002) (RLUIPA exercise of Congress's authority under Commerce Clause and Free Exercise Clause)

Excluding houses of worship from residential areas. Congregation Kol Ami v. Abington Twp. 2001 WL 827492 (E.D.Pa. Jul 20, 2001).

If a zoning code allows a "church," what does that include? A home for pregnant, unwed teenagers? Solid Rock Ministries International v. Bd. of Zoning Appeals, 740 N.E.2d 320 (Ohio App. 2000).

Federal Religious Land Use Act of 2000. How is is faring?

Establishment clause and exemptions favoring religious use. Ehlers-Renzi v. Connelly School of The Holy, Child, Inc., 2000 WL 1144595 (4th Cir.2000); Boyajian v. Gatzunis, 212 F.3d 1 (1st Cir. 2000).

Sign Controls: "That flag is too big even if it is the American Flag!" American Legion Post 7 of Durham v. City of Durham, 239 F.3d 601 (4th Cir. 2001).

Condemnation of a Church. Does the First Amendment trump the power of eminent domain? See City Chapel Evangelical Free Inc. v. City of South Bend ex rel. Dept. of Redevelopment, --- N.E.2d ----, 2001 WL 306690 (Ind.2001).

Ch. 5 Alternative Living

MX Group, Inc. v. City of Covington, 293 F.3d 326 (6th Cir. 2002) (City violated ADA in excluding methadone clinic)

The Americans With Disabilities Act and Zoning.

Excluding home for abused children; falling outside federal law: Sunderland Family Treatment Services v. City of Pasco, 26 P.3d 955 (Wash.App.2001) (city violated state law by permitting a "family" to obtain immediate occupancy of a residential structure but requiring "group care facilities" to obtain a special use permit).

Ch. 5 Exclusionary Zoning, Inclusionary Zoning and Affordable Housing

Proving racial discrimination in zoning. Macone v. Town of Wakefield, 277 F.3d 1 (1st Cir.2002).

Home Builders Association of Northern California v. City of Napa, 90 Cal.App.4th 188, 108 Cal.Rptr.2d 60 (2001), cert. denied 122 S.Ct. 1356 (2002) (Nollan and Dolan held not applicable to inclusionary zoning ordinance which was generally applicable to all development in the city).

Reverse technique: set a maximum house size to retain affordable housing. See Rumson Estates, Inc. v. Mayor & Council of the Borough of Fair Haven, 350 N.J.Super. 324, 795 A.2d 290 (2002) (zoning ordinance regulating maximum floor area of houses held valid).

If you remodel your hotel and start renting to higher paying guests, making more people homeless, you will have to pay a special fee. San Remo Hotel L.P. v. City and County of San Francisco, 27 Cal.4th 643, 41 P.3d 87, 117 Cal.Rptr.2d 269 (2002).

City of Cuyahoga Falls v. Buckeye Community Hope Foundation, Ohio FHA case, re low income housing project, 263 F.3d 627 (6th Cir. 2001). cert granted, 122 S.Ct. 2618 (2002) (grant limited to Questions 1, 2 and 3 presented by the petition). Huntington Branch kind of case?

Chapter 7 Growth Management

Forced Annexation, Constitutionality of North Carolina Law, Barefoot v. City of Wilmington, 2002 WL 1274011 (4th Cir. 2002)

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