Friday, September 22, 2006
The term “smart growth,” like “sustainability” or “stewardship,” can be abused, as it is increasingly often slapped on anything and everything to give it a cachet of progressivism. Clarity is needed. The Smart Growth Network and the International City/County Management Association have published a 32-page publication, helpfully entitled “This is Smart Growth,” which gives dozens of examples of development projects in cities, suburbs, and small towns that deserve the “smart growth” label. The publication can be ordered free or downloaded here.
Thursday, September 21, 2006
One of the most notable land use court decisions this summer was the Nevada Supreme Court’s striking another blow for property owners who claim that zoning has “taken” their property rights. The plaintiff in the 1980s had bought vacant land near the Las Vegas airport that was already subject to zoning height restrictions. With increased air traffic at America’s most booming big city, Clark County passed more restrictive zoning ordinances. These restricted construction considerably below the 500-foot “navigable airspace” set forth by federal law. As they approached and took off from the airport, some planes actually passed less than 500 feet above the plaintiff’s land.
Applying both the federal Constitution and the Nevada Constitution, which sets forth a “rich history of protecting private property owners against government takings,” the Nevada court concluded that the county ordinances “appropriated his private property for a public use without the payment of just compensation,” because of a “Lorretto-type” physical intrusion. The plaintiff was awarded more than $16 million, including interest.
I understand the position that frequent flights could be considered a physical intrusion, but I find it harder to understand how the height ordinances themselves are a compensable taking. The court concluded that the plaintiff had a “valid property interest in the airspace above his land” up to 500 feet; does this mean that any regulation of such airspace is a taking? Considering that buildings should not, of course, rise to anywhere near the levels at which planes fly, what if planes flew to a minimum height of 600 feet over plaintiff’s land and the zoning ordinance thus limited buildings to 400 feet –-would this still constitute a compensable taking?
The case is at McCarran International Airport v. Sisolak, 37 Pacific Reporter 3d 1110 (2006).
Tuesday, September 19, 2006
Automobile dependency and a lack of sidewalks are phenomena usually associated with the suburbs. But cities and rural areas hold their own special roadblocks to non-auto travel. In rural areas, the old country practice of “walking along the road” has become even tougher with increased auto traffic and stronger private-property fencing. Meanwhile, in the city, where sidewalks allow walking, governments are trying to facilitate bicycle transportation as another alternative to auto travel. Changing laws to help bicyclists faces the stereotype of cycling as suitable only for young people and fitness freaks, even though biking is a regular part of life in many other countries. As with buses, I suggest that dedicated bicycle lanes (preferably with barriers to keep cars out) as the only viable solution to encouraging more Americans to eschew their autos.
Here are two stories on efforts to change laws to help alternatives to auto travel –- one from Virginia’s Shenandoah Valley, into which have flowed the ideas of density and clustered development that facilitates walking, and one from New York City, which is building more bike lanes and increasing bicycle safety.
Monday, September 18, 2006
The $7 billion that Congress has agreed to pay for home rebuilding in Louisiana is finally starting to make its way to homeowners. According to a report released last week, more than half of the early applicants say that they plan to rebuild on their old plots, rather than accept a buyout and rebuild else. This is good news for Louisiana and especially for New Orleans, which wants more of the 200,000 residents who are still away to return. Future news is unlikely to be so rosy for the city, however; early applicants are more likely to be persons with a strong desire and plans to rebuild in the city, while later applicants are likely to be people who are still figuring out where to resettle. The Crescent City probably will have to accept a future with a much shrunken population, which poses problems for rebuilding infrastructure, such as for streets and sewers. Most eastern cities have seen their populations fall in the past 50 years (St. Louis and Cleveland hold only about half as many residents as they did 50 years ago), but none as rapidly as New Orleans.
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- Jamie Baker Roskie on Uber Goes to the State House Seeking Preemption of Local Government Control
- Stephen R. Miller on Why are building inspectors so often on the take?
- Josh Hightree on What makes people leave rural areas, and what makes them stay
- Jessica Shoemaker on What makes people leave rural areas, and what makes them stay
- Jamie Baker Roskie on Why are building inspectors so often on the take?
- What to make of the fierce new debate over the efficacy of California's energy codes?
- The W&L Top 100 Law Review Rankings and the Land Use Law Scholar
- CFP: 2015 Future of Places Conference (lead-in to Habitat III) in Stockholm: Deadline of April 15
- Water Down Under: A Report from Australia by Barbara Cosens: Post 7: Conjunctive Management Down Under
- Interior unveils final rule governing fracking regulations on public lands