Tuesday, March 22, 2011
George Smith (Catholic) and Gregory Bailey have posted Regulating Morality through the Common Law and Exclusionary Zoning, 60 Catholic L. Rev. 403 (2011). Here's the abstract:
The extent to which a free society seeks to regulate sexual expression is problematic. What was defined as immoral or contra bonos mores in the 20th century, has become less of an issue in today’s liberal society. Freedom of sexual intimacy and expression are, to be sure, 1st Amendment and 14th Amendment rights. But, with every assertion of a fundamental right or liberty must come a concomitant understanding that there is a co-ordinate responsibility to exercise that right reasonably. Determining the reasonableness of any conduct grounded in these two amendments must be fact sensitive and guided by community standards. Broad, open-ended moral judgments should be eschewed as foundational bases for legal judgments. Indeed, advancing moral grounds as justification for regulating personal liberties of sexual expression and association are being seen by some as invalid reasons for enacting exclusionary land use regulations - here, for the containment of activities connected with sexually oriented businesses [SOBs]. No unequivocal standard of dispositive clarity will ever be formulated which determines when conduct is unreasonable in that it is lewd and obscene or when written, electronic and photographic material pornographic in content rises to the level of obscenity and thereby subject to strict regulation. The most logical and common sense approach to this quandary is for legislators, land use planners, zoning commissioners and courts, in trying to either eliminate or contain the operation of SOBs, is to rely upon and use several tools: common law nuisance fortified by either moral, anticipatory or aesthetic iterations or models, and exclusionary zoning techniques. Difficult though determining when, under nuisance law, conduct is so unreasonable as to warrant its cessation, the Restatement of Torts Second provides a workable construct for making that determination. Both strengthened and guided by the doctrine of secondary effects, nuisance actions of all types have a clear placement in the arsenal of legal weapons which may be used to regulate effectively SOBs. The implementation of a community-based standard of morality for proper regulatory control of SOBs will always present an issue of unpredictability inherent in its underlying flexibility. For the content-neutral regulation of sexually oriented businesses, the only limiting requirement analyzed, aside from ensuring adequate alternative channels of communication, is determining if the regulation serves a significant government interest. Further, while the Supreme Court has held repeatedly that preventing a multitude of secondary effects is a significant government interest, the manner in which that goal could be served has not been meaningfully defined or limited. The secondary effects doctrine places great power, and corresponding responsibility, in the hands of each local community - but it does so at the peril of uniformity. While uniformity is not an absolute necessity in the Federalist system, the type and severity of secondary effect that can be a justification for regulating the location of a sexually oriented business should be clarified. The time, place, or manner restrictions imposed can be left up to each locality to tailor to their needs, but the triggering events for those restrictions must be more clearly defined.
Thursday, March 17, 2011
[This is a reprise of last year's St. Pat's post, plus a picture from 2011--MJF]
Now it's time to try and make a land use-related post about St. Patrick's Day. First of all, the legend of St. Patrick has it that he drove the snakes out of Ireland. If that isn't an awesome land use regulatory feat, then nothing is!
St. Patrick is credited with bringing Christianity to Ireland, and the Church played a major part in land control over the centuries. Later on in Irish history, the Catholic-Protestant struggle had a great deal to do with English land ownership and the relationship of the Irish people to the land. Even until recent years, the symbol of St. Patrick has been part of the controversy over the IRA and Northern Ireland.
St. Patrick's Day has spread throughout the Irish diaspora worldwide. In the U.S., St. Patrick's Day has, of course, served as a semi-official Irish-American holiday. Irish immigrants moved throughout the country, but are particularly known for rising to political power in the cities. Anti-Irish/Catholic prejudice loomed over the Gilded Age ("no Irish need apply") and the Progressive Era (multifamily housing (the "pig in the parlor") associated with immigrants). Irish Catholic churches played a major role in urban affairs and continue to have a presence in First Amendment and RLUIPA issues. After attaining some political power in urban political systems such as Tammany Hall, Irish-Americans have played a central role in city governance for over a century. My undergrad alma mater, Notre Dame, served as a source of pride for Irish-Americans for its competitiveness in that land-use struggle known as football, and later in academics. When John F. Kennedy was elected President, it seemed to many Americans of Irish extraction that they had finally become accepted into the American Dream.
In the last few decades, St. Patrick's Day has continued to influence American land use issues. Major celebrations take place in many U.S. cities, and places like Chicago, most famously, and Savannah dye their rivers green for the occasion. [ancillary question: is being "green" a good thing, in this sense?] In some American cities the St. Patrick's Day parade has become one of the most important political events of the year, which has led in turn to protracted litigation over the question of who gets to decide who marches in privately-organized yet publicly-sanctioned St. Patrick's Day parades. The U.S. Supreme Court weighed in on the matter in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995). Justice Souter's opinion for a unanimous Court upheld the First Amendment associational rights of the parade organizers to exclude an Irish-American GLBT group (would the case come out the same way today?).
St. Patrick's Day has a lot of cultural significance and a little bit of land-use significance too. So hoist a green beer and celebrate. [And in 2011, Jim and I are hoping that the luck of the Irish works all the way to Houston for the Final Four!]
March 17, 2011 in Chicago, Comparative Land Use, Constitutional Law, Downtown, First Amendment, History, Houston, Humorous, Local Government, New York, Politics, Supreme Court, Urbanism | Permalink | Comments (0) | TrackBack (0)
Wednesday, February 9, 2011
U.S. District Judge Michael McCuskey (C.D. Ill.) has dismissed (Jurist story here) an Establishment Clause lawsuit challenging the constitutionality of the Illinois Commerce and Economic Opportunity Department's awarding of a restoration grant for the Bald Knob Cross of Peace (history webpage). The plaintiff has declared his intention to appeal to the Seventh Circuit.
Saturday, January 29, 2011
U.S. District Court Judge Marvin Garbis issued his decision yesterday in O'Brien v. Mayor and City Council of Baltimore. Finding it contrary to the First Amendment, the court invalidated a 2009 Baltimore City ordinance that required any organization advertising pregnancy-related services to disclose through signage lack of counseling or referrals for abortions or birth control. The Archdiocese of Baltimore brought the suit on behalf of its pregnancy counseling centers operating in Baltimore. According to today's article in the Baltimore Sun, City Solicitor George Nilson will advise Mayor Stephanie Rawlings-Blake, lead sponsor of the bill while she was on the City Council, to appeal.
Thursday, January 20, 2011
Ira Lupu (GW) and Robert Tuttle (GW) have posted The Forms and Limits of Religious Accommodation: The Case of RLUIPA, 32 Cardozo L. Rev ___ (forthcoming 2011), on SSRN. Here's the abstract:
This paper, prepared for a Symposium at the Benjamin Cardozo School of Law to mark the 20th anniversary of the Supreme Court’s decision in Employment Division v. Smith, focuses on the constitutionally appropriate forms for, and limits on, government protection of religious freedom. Part I articulates in general terms the primary constitutional strategy of mandatory accommodations – protection of religion and its secular analogues in matters of speech, association, and equality – and the limits on such accommodations, with an emphasis on a jurisdictional limit to the state’s capacity to decide questions of religious significance. Part II extends this concept of a jurisdictional limit to permissive accommodations, and analyzes the role of that limit in the interpretation of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). Part II argues that many of the land use provisions of RLUIPA can be constitutionally applied without official decision-makers violating that jurisdictional limit, but that some applications of the land use provisions, and a significant number of applications of the institutionalized persons provisions, raise profound problems of state exercise of religious authority.
Friday, January 14, 2011
All Things Considered last night featured a four-minute story on a federal lawsuit brought by an Orthodox Jewish group challenging the denial of its building permit for a student center in an historic residential district. Patty Salkin (Albany) blogged at Law of the Land this past summer about the denial of the motion to dismiss.
Tuesday, December 7, 2010
Mary Jean Dolan (John Marshall-Chicago) has posted P.S. Untold Stories and the Cross National Monument. We've mentioned the land use aspects of the Salazar decision before. Dolan's abstract:
This Article offers an interesting post script to the Supreme Court’s Salazar v. Buono Establishment Clause decision. It presents some surprising non-record facts and additional issues raised by Congress’s 2002 designation of the Mojave Cross as a “National Memorial.” This Act deserves more exploration, particularly because it appears wholly extraneous to the government policy approved by the Supreme Court plurality: ending the appearance of government endorsement of religion, while simultaneously “avoid[ing] the disturbing symbolism associated with the destruction of the historic monument.”
Included in the new information is evidence that National Memorial status is not as lofty or rare as it would seem, the cross does not appear to be the sole WWI memorial for the nation, and in the past, Congress has abolished National Memorial status upon transferring the land. The Article also looks at the intersection of historic preservation law and Congress’ requirement that the Secretary of the Interior fund and install a new replica cross on Sunrise Rock.
Tuesday, November 23, 2010
Jessie Hill (Case Western) has posted Property and the Public Forum: An Essay on Christian Legal Society V. Martinez, from a symposium of the Duke Journal of Constitutional Law & Public Policy (2010). The abstract:
Christian Legal Society v. Martinez is situated at the intersection of various, and arguably conflicting, lines of doctrine. In ultimately holding that the Hastings College of Law could decline to recognize the student chapter of the Christian Legal Society due to the group’s refusal to accept members who did not conform their beliefs and conduct to the principles of CLS (particularly regarding homosexuality),the Supreme Court was required to sort through a tangle of precedents involving free speech limitations in nonpublic fora, religious groups’ rights of equal access to school facilities, and freedom of expressive association.
Perhaps less obviously, however, CLS also stands in relation to Pleasant Grove City v. Summum and Salazar v. Buono, two other recent Roberts Court cases. In CLS, as in Summum and Buono, the Supreme Court turned to property - both as a metaphor and as a doctrinal tool - to resolve difficult and multifaceted constitutional questions. Although the relationship between First Amendment rights and property rights is a long-standing one, the Court seems to have turned to property with a renewed enthusiasm in these three recent cases. And although the property framework may appear to hold the promise of simplicity, neutrality, and avoidance of difficult policy questions, this brief essay, prepared for a special online symposium issue of the Duke Journal of Constitutional Law and Public Policy, argues that it fails to deliver on those promises. Instead, property analysis obscures the complex First Amendment issues behind seemingly easy categorical judgments and grants the government virtually unlimited power to exclude undesired speakers and groups. Notwithstanding the Court’s approach, the crux of the issue is, and has always been, when First Amendment values should overcome the forum owner’s right to exclude. That is a question the Court seems increasingly loath to resolve.
This paper reinforces my point about land use and constitutional law! I think it's fascinating that while Stop the Beach was the only traditional property rights case before the Court last year, as Hill points out CLS, Salazar, and Summum have applied property law to First Amendment issues.
Thursday, November 18, 2010
I've been thinking for some time that land use just might be the field that has the most interesting constitutional law issues today. Timothy Zick’s article, linked in the post below, is primarily a First Amendment paper. But it’s about First Amendment rights with respect to speech in public parks, which makes it a land use issue too. As with most free speech issues, the speech is only controversial to the extent that it happens in a place--which then makes it a land use issue. Much of First Amendment law revolves around definitions and analyses of the "forum" in which speech takes place, and whether it is in the public square, a public forum, whether the speech represents private or government points of view. The First Amendment looms large in land use law (or, perhaps, vice versa)-- free speech, public forums, commercial speech, aesthetic regulation, sexually-oriented businesses assemblies, religious land use, and more.
Jamie posted a link recently to a video that has been making the rounds with a cartoon robot law firm partner mocking a wannabe law student for, among other things, her desire to practice constitutional law. ("Do you have a time machine, so that you can go to Harvard in the 1970s?"). The video is hilarious, and it is undoubtedly true that there aren't a lot of opportunities for idealistic young con law geeks to practice straight-up constitutional law in the tradition of the big Supreme Court cases we all learn. But my one quibble is that if you are interested in constitutional law, it's alive and well in the land use field--not only the First Amendment issues, but also property rights, eminent domain, regulatory takings, vested rights, civil rights, fair housing, exclusionary zoning, growth controls, environmental regulation, equal protection, due process, separation of powers, and federalism. There are also issues presented by state constitutional law, which gets much less attention in law school curricula.
Readers of this blog will probably not be surprised at my observation that constitutional law and land use are intertwined, but I do find that many students and lawyers don’t intuitively make the connection, until they start to hear some of the examples. It's because the exercise of our freedoms almost always happens in a particular place, and our places are governed by land use rules. While the issues may often be primarily local, they are no less interesting, or "constitutional."
Good land use attorneys need a good understanding of and appreciation for basic constitutional law. And even better, if you really like con law, land use might be the field where you have the most likely chance to advise on or litigate constitutional issues.
November 18, 2010 in Caselaw, Constitutional Law, Eminent Domain, Environmental Law, First Amendment, Housing, Property Rights, Scholarship, Supreme Court, Takings, Zoning | Permalink | Comments (0) | TrackBack (0)
Timothy Zick (William & Mary) has posted "Summum," the Vocality of Public Places, and the Public Forum, forthcoming in Brigham Young University Law Review, 2011. The abstract:
This contribution to a symposium on the emerging complexities of government speech focuses on Pleasant Grove City v. Summum. Summum is a remarkable decision in several respects. It represents many firsts in terms of the Supreme Court's public speech jurisprudence: First to hold that the public forum doctrine is out of place in a public park (a traditional public forum); first to treat a public park as a channel of governmental speech; and first to expressly engage the communicative aspects (the vocality) of public place. Because the Court dispatched the public forum doctrine so quickly, one might think the decision has nothing much to say about the concept or status of the public forum. To the contrary, this piece contends that a close reading of Summum shows that the decision’s analysis and rationale may have a substantial effect on private speech rights in public places. The government speaker is not like any other speaker in a park or other public place. Its voice is louder, and its right to remain is stronger, than that of any private speaker. Most importantly, of course, government speakers have the power to exclude other voices. This piece argues that the Court’s conception of public places as channels of governmental speech, its heavy reliance on the analogy of private property ownership, and its suggestion that public places such as parks themselves convey governmental identity claims threaten to undermine fundamental tenets of the public forum concept and to limit private speech in public places.
November 18, 2010 in Aesthetic Regulation, Caselaw, Constitutional Law, Eminent Domain, Federal Government, First Amendment, Judicial Review, Local Government, Property Rights, Scholarship, Signs, Supreme Court, Takings | Permalink | Comments (0) | TrackBack (0)
Thursday, November 11, 2010
You might be surprised at how much land use and veterans' issues have been intertwined over the course of American history. From land grants and westward expansion, to the expansion of education, to the postwar expansion of suburbia, many federal, state, and local policies have tied land use and development to an appropriate public concern for veterans; the results have been mixed. I wrote a post on these issues last year; you can read it here.
This year, we have at least one new land use/veterans issue to add: the U.S. Supreme Court decided Salazar v. Buono, which dealt with a land swap by Congress to protect a monument to servicemembers killed in World War I, placed on public land by the Veterans of Foreign Wars, that was in the shape of a cross. Read our post here, and SCOTUSblog's resource page, and check out Christoper Lund's Northwestern Colloquy article on the case.
A happy Veterans Day to all, with gratitude to those who have served in harm's way.
Sunday, October 17, 2010
This short Colloquy essay reflects on the Supreme Court's recent decision in Salazar v. Buono, 130 S. Ct. 1803 (2010). The case involved a constitutional challenge, brought under the Establishment Clause, to a cross put up by private parties on government land in the Mojave National Preserve. This piece reviews the issues presented by the case (only some of which were addressed by the Supreme Court), and considers the future of the Establishment Clause in that light.
The Salazar case has been known publicity as a Religion Clause case, but the dispute centers around the constitutionality of a federal government land swap that allowed the monument to go into private hands. The Supreme Court decision didn't quite reach the land question, but as with most religious monument/First Amendment cases, it is at bottom a controversy over land use.
Saturday, October 9, 2010
Jeremy A. Blumenthal (Syracuse) & Terry L. Turnipseed (Syracuse) have posted Is Voting in Churches (or Anywhere Else) Unconstitutional?: The Polling Place Priming (PPP) Effect, forthcoming in the Boston University Law Review. The abstract:
A substantial social science literature has demonstrated the power of situational cues on behavior, decisions, choices, attitudes, and emotions. Moreover, recent findings demonstrate that the place where a citizen casts a ballot – Town Hall, a fire station, a school, a church, a library – can itself influence that citizen’s vote, by priming particular concepts, values, or ideals that nudge the voter in a particular direction. More important, that effect – what we call the Polling Place Priming Effect or the PPP Effect – nudges voters in a predictable direction – that is, it leads to a systematic, non-random bias in individuals’ decision-making. For example, school locations activate pro-education concepts and norms, and thus lead to votes supportive of education, specifically, allocating more tax dollars toward education. Voting in churches activates conservative Christian values, leading to support for conservative candidates who express such values, and activates anti-abortion norms as well.
Here we discuss the legal and policy implications of the PPP Effect, focusing on the specific question of the constitutionality of voting in churches. We then connect these findings with similar challenges to voting procedures. We suggest that both the church challenges and these other analogous disputes – and courts’ responses to these challenges – fail to fully take into account the unconscious nature of the influence on a citizen’s decision-making, and warrant a reconsideration of First Amendment and Equal Protection jurisprudence. Drawing on recent scholarship in the abortion rights context, we articulate a plausible approach to grounding such challenges that does consider that unconscious influence. We then connect our discussion with recent steps toward reducing or altogether eliminating the use of polling places, by addressing its relationship to calls for absentee or convenience voting. We close by broadening our discussion and identifying other legal and policy contexts to which the PPP Effect might be relevant, and suggesting empirical research that might address such possibilities.
This is an interesting topic for its intersections with several land use areas: local government, constitutional law, religious land use, behavioral studies, and political theory. It's also very timely, with some important elections just around the corner.
Thursday, September 23, 2010
The Department of Justice this week issued a report on its decade of enforcement actions since the enactment of the Religious Land Use and Institutionalized Persons Act (RLUIPA). From the press release:
RLUIPA protects places of worship and other religious uses of property from discrimination and unreasonably burdensome regulation in zoning and landmarking law, and also protects the religious freedom of persons confined to institutions such as prisons, mental health facilities and state-run nursing homes. RLUIPA was enacted by both houses of Congress unanimously and signed into law on Sept. 22, 2000. The law was a response to concerns that places of worship, particularly those of religious and ethnic minorities, were often discriminated against in zoning matters.
The report illustrates that in the 10 years since its enactment, RLUIPA has aided thousands of individuals and institutions from a wide range of faith traditions through Department of Justice lawsuits, private lawsuits, and successful efforts to achieve voluntary compliance.
More information can be found in the full Report on the Tenth Anniversary of the Religious Land Use and Institutionalized Persons Act.
Wednesday, May 19, 2010
David A. Thomas (Brigham Young University) has posted Whither the Public Forum Doctrine: Has this Creature of Courts Outlived its Usefulness?, from Real Property, Probate and Trust Law Journal, Vol. 44, pp. 637-743 (Winter 2010). The abstract:
Tuesday, April 27, 2010
David A. Thomas (BYU) has posted Whither the Public Forum Doctrine: Has this Creature of the Courts Outlived its Usefulness?, Real Property, Probate and Trust Law Journal, Vol. 44, pp. 637-743, Winter 2010. The abstract:
Tracing both the development of the Public Forum Doctrine and the history of the property rights it affects, in this Article the Author argues that the doctrine currently exists as a tangled mass of precedent that is unworkable in practice. By juxtaposing the current application of the Public Forum Doctrine against a proposed approach that balances the property rights of the owner against the speech rights of the visitor to the land, the Author provides support for the position that the Public Forum Doctrine can be replaced by a more effective means of achieving a fair balance between the competing rights.
Thursday, February 4, 2010
There seems to be a big church-state land use battle brewing in Arizona. From the Arizona Republic story Court hears arguments over church bell in Phoenix:
The arguing over the silencing of church bells grew louder in two Phoenix courtrooms on Monday.
The legal conflict centers on a church in north Phoenix. In 2008, it started to ring its bells 13 times a day, seven days a week, to the annoyance of its neighbors.
In May 2009 Phoenix Municipal Court Judge Lori Metcalf told the church, Cathedral of Christ the King, to pipe down.
The bells could ring, she said, but only once a week on Sunday morning.
She also found the church's leader, Bishop Rick Painter, guilty on two counts of disturbing the peace. He received a 10-day suspended sentence and three years' probation.
On Monday morning, a national Christian legal group, the Alliance Defense Fund, argued in U.S. District Court that the Phoenix noise ordinance is overly vague and unconstitutional.
The legal conflict centers around a city noise ordinance. The language of the Phoenix noise ordinance isn't at all uncommon, and is based on nuisance theory. In the "Nuisance and Noise" section, the Phoenix City Code sec. 23-12 reads:
"Subject to the provisions of this article the creating of any unreasonably loud, disturbing and unnecessary noise within the limits of the City is hereby prohibited."
Is the ordinance unconstitutionally vague? Does targeting church bells infringe on First Amendment free exercise, or RLUIPA? It's a generally-applicable rule, but the text certainly gives a wide berth of discretion to local government officials to make enforcement decisions under the "reasonableness" standard. Too much discretion, or necessary flexibility? That's the classic land use regulation debate, and the religious land use cases tend to bring this point out.
Either way, though, sentencing a bishop to (suspended) jail time in pursuit of nuisance code enforcement is pretty hard core. The battle is joined and it looks to be an interesting federal case.
UPDATE: Erik Stanley, the ADF attorney for the churches cited in the article, has a post in the comments section.
Thursday, December 10, 2009
It has snuck up on me, but this is as good a time as any to wish all land use blog readers, scholars, and practitioners a happy holidays. Exams are winding down, students are leaving for break, and practices are starting to move into holiday mode. Chanukah starts tonight and the New Year will be here before we know it.
I am reminded of a certain "holiday" poem in light of the spate of eminent domain and takings issues that we have highlighted recently here on the blog: Pfizer leaving New London; the Atlantic Yards case; the Severance case in Texas; the Stop the Beach case in the U.S. Supreme Court; and even the recent NY appellate decision that seems to go against Goldstein. Now, this poem isn't exactly uplifting, but I hope you find it humorous. I'm talking about Susette Kelo's Christmas card from 2006, after she lost her case. It features a picture of her famous little pink house next to a verse that begins: "Here is my house that you did take" and goes on to say "I curse you all; may you rot in hell."
Well, putting that negativity aside, happy holidays to all, and enjoy thinking about holiday land use issues, from municipal holiday displays, to local aesthetic regulations, agriculture, regional and national transportation, building codes, local government schedules, snow removal (for some), economic recovery, [that pile of exams(!),] and any other way in which the holiday season intersects with land use.
My co-bloggers and I have only been at this for a few months but it has been great to keep the blog as a forum for sharing ideas among the land use community. Thanks for reading and participating. We'll be here at the blog, so keep checking us out during your holiday. Best wishes!
Monday, November 23, 2009
Marci A. Hamilton (Cardozo), one of the leading scholars on federalism and law & religion, has posted The Constitutional Limitations on Congress's Power Over Local Land Use: Why the Religious Land Use and Institutionalized Persons Act is Unconstitutional. The article is based on her 2008 Edwin L. Crawford Memorial Lecture on Municipal Law at Albany School of Law. Here's the abstract:
The purpose of this Article is to bring to the forefront of discussion bedrock principles of land use law, which have been ignored to date, and to place RLUIPA analysis on a more constitutionally sound base. The Article is divided into three main sections. Section I recounts the history of land use principles from the drive to ordering urban centers in the seventeenth and eighteenth centuries to the development of the rich amalgam of modern practices that now constitute local land development and planning. Section II examines the Supreme Court’s constitutional doctrine of land use law and describes the federal laws that directly or incidentally affect local land uses and shows that these few are cabined within narrowly circumscribed arenas or in fields in which federal coordination of the states is necessary. These laws are readily distinguishable from the sweeping effect of RLUIPA on local land use determinations. Section III then looks closely at Section 2(a), to show how it impacts local decision-making, and operates as a radical and careless interference with settled constitutional principles. In addition, it points out that state courts have a history of rooting out invidious discrimination against religious landowners and invalidating discriminatory or arbitrary zoning and permitting decisions.
I really look forward to reading this.