Land Use Prof Blog

Boston's Parks Dep't Releases Sustainable Design Guidelines

Boston's Parks and Recreation Department has released a new set of "sustainable" design guidelines.  Unfortunately, the entire report is not on-line, but you can view the Conclusions and Recommendations.  I thought it was interesting that the Dep't used "sustainable," instead of "green."  Although it's unclear from the documents how they are going beyond environmental protection, the release states:

"The difference between a “green” project and a “sustainable” project is that a “green” project focuses solely on environmental stewardship such as reducing waste, minimizing carbon and water footprints, preventing pollution and conserving natural resources while a “sustainable” project moves beyond these and not only includes green components, but also integrates economic growth and social responsibility."

Jon Rosenbloom

Iglesias on Fair Housing Remedies and the Two-Person-Per-Bedroom Standard

Tim Iglesias (San Francisco) has posted Moving Beyond the Two-Person-Per-Bedroom: Revitalizing Application of the Federal Fair Housing Act to Private Residential Occupancy Standards.  Here's the abstract:  

New empirical evidence demonstrates that the common residential occupancy standard of two-persons-per-bedroom substantially limits the housing choices of many thousands of families, especially Latinos, Asians and extended families. The federal Fair Housing Act makes overly restrictive policies illegal, but the enforcement practices of the U.S. Department of Housing and Urban Development (HUD) have enabled the two-persons-per-bedroom standard to become de facto law. This article urges HUD to use its regulatory authority to remedy the situation and offers several solutions. And, if HUD fails to act, it encourages private plaintiffs to challenge the two-persons-per-bedroom standard and provides guidance to courts in deciding these cases.

Jim K.

NYT Dialogue on Shrinking Cities

The latest census figures from Detroit (Chad's hometown blogged about here and here) have inspired the New York Times to solicit opinions from several urban planning experts about the way forward for post-industrial cities confronted with large-scale property abandonment.  Jennifer Bradley (Brookings-MPP) and Terry Schwarz (Kent State's Cleveland Urban Design Collaborative) each offer shrinking city visions that challenge the idea that all planning must be for demographic expansion and economic growth.  Their greening strategies, including attention to urban agriculture and ecosystems, contemplate a 'new normal' for cities that may, in some ways, be better than historical peak periods.

Richard Florida (Toronto-Business) and Sam Staley urge beleaguered areas to pursue a focused (and apparently unsubsidized) effort to retain and attract residents in a mobile society.  Still others, such as Toni Griffin (Harvard-Planning), see Detroit and similar cities as merely the most egregiously wounded casualties of unsustainable sprawl-promoting policies that must be changed throughout the U.S.  These brief articles and even the comment board are all worth checking out. (Hat Tip to Nicole Garnett (Notre Dame) and her student, Sean Ashburn)

I would also encourage those interested in working with the land use challenges faced by undercrowded, post-industrial cities to check out The Center for Community Progress (f/k/a National Vacant Properties Campaign).  Over the years, I have had the chance to participate in conferences and technical assistance efforts that have brought urban development practitioners together with experts such as Jennifer Bradley, Terry Schwarz, Kermit Lind (Cleveland State), Joe Schilling (Va. Tech-Metropolitan Inst.)  and CCP's co-founder, Frank Alexander (Emory).

Jim K.

Update...

Well, its been another busy several weeks.  This fall, I'll be taking a leave of absence from the law school to serve as the City of Montgomery's inauguaral Director of Development.  If you're interested, you can read details here.

Then, for the Spring 2012 semester, I'm fortunate to have the opportunity to serve as a Visiting Professor at the Stetson University School of Law where I'll teach first year Property and one other course.

That said, even with the leave and visitorship, I still plan to serve as the Land Use Prof blog's unofficial new urban commentator and advocate of nearly all things smart and sustainable growth.

Along those lines, consider this interesting article on my always favorite topic of Detroit and land use issues:

For three years, Jayesh Patel, an attorney, and his wife, Neethi, a pediatrician, were what he called “reverse commuters.” They worked in the suburbs and lived in the city of Detroit. Last July, the Patels moved out.

They joined 237,493 who left Detroit over the last decade, a 25 percent decline that left the city with 713,777, down from a peak of 1.85 million in 1950. The Patels abandoned their neighborhood of Victorian homes in the Corktown district, founded by Irish immigrants at the turn of the 20th Century, and moved to the affluent suburb of Birmingham in search of better schools for their two children.

“I was just shocked,” Kurt Metzger, director of Data Driven Detroit, which collects demographic information, said about the 2010 Census figures for the city. “Even in my wildest dreams, my most depressed nightmares, I wasn’t expecting this big of a decline.”

Detroit’s population fell from 951,270 in the previous decennial tally -- a loss of 65 residents per day since 2000 -- making it the lowest official count since 465,766 in 1910, according to U.S. Census data released yesterday. It joins St. Louis, Cleveland, Cincinnati and other Midwestern cities unable to reverse a six-decade population loss.

While this decline is literally historic in nature, at least one commentator is suggesting that, rather than contract, Detroit should...er...expand:

Super-sizing Detroit could also translate to better policy. When Indianapolis enacted a similar "Unigov" city-suburbs merger in the late Sixties (under Republican mayor Dick Lugar), the region experienced economic growth (and the benefits of economy of scale), AAA municipal bond-ratings and a broader, more stable tax base. The same could happen in metropolitan Detroit, which sorely needs to attract young people and entrepreneurs in order to fill the void left by the region's dwindling manufacturing base. Elastic cities are less segregated and have fewer of the problems associated with concentrated areas of poverty. And though sprawl wouldn't necessarily be reigned in, the region could finally adopt a sensible transportation policy to unite its businesses and residential areas. At the moment, suburban Detroit maintains its own bus system, separate from the city's, and a planned $150 million light rail project, slated to run from downtown Detroit up the main thoroughfare of Woodward Avenue, would nonsensically stop at 8 Mile Road, the suburban border. That's a formula to limit, not maximize, growth.

As you can see from reading the entire article, as much as I love my hometown, the problems are so endemic that one wonders whether Detroit may simply grind toward becoming the first nearly abandoned major American city.

At some point, land use law becomes almost irrelevant if the demand for land essentially disappears.

Chad Emerson 

Yoga and Water

Those of you who follow this blog closely might have noticed that, in addition to land use law, I have an interest in contemplative practices such as yoga and meditation.  Very occasionally, those two interests overlap.

This month, Yoga Journal focuses on water issues.  In addition to the "Fluid Nature" sequence of yoga postures and the "Drink it In" water meditation, which are available on-line, there are also some articles on water quality, water consumption, overfishing, and other human impacts on the acquatic environment.  Unfortunately, the latter information isn't available on the Yoga Journal website, only in the print edition.

It makes sense that folks who are interested in better self care are also interested in caring for their environment.  More deeply than that, yoga and meditation teachings focus on the fact that we are not separate from each other, or from the natural world, and so what we do to our environment we do to ourselves.  How that relates to land use law is a bit more tangential - yogis and mindfulness practitioners tend to focus an individual ethical code involving on "right effort" and individual action more than on law and regulation. Still, sometimes it's interesting to examine the intersection of the two world views.

Jamie Baker Roskie

Martinez on Judicial Takings for Private Necessity

John Martinez (Utah) has posted No More Free Easements: Judicial Takings for Private Necessity.  The abstract:

This article bridges the fields of constitutional judicial takings and the common law of easements that arise because of private necessity. The article suggests that the law of takings requires payment when a court declares that an easement should be established because of private necessity.

Matt Festa

Erbsen on Constitutional Spaces

Allan Erbsen (Minnesota) has posted Constitutional Spaces, Minnesota Law Review, vol. 95 (2011).  The abstract:

This Article is the first to systematically consider the Constitution’s identification, definition, and integration of the physical spaces in which it applies. Knowing how the Constitution addresses a particular problem often requires knowing where the problem arises. Yet despite the importance and pervasiveness of spatial references in the Constitution, commentators have not analyzed these references collectively. This Article fills that gap in the literature by examining each of the fourteen spaces that the Constitution identifies, as well as several that it overlooks, to reveal patterns in the text’s treatment of space and location. Among the spaces that the Article considers are "the Land" referenced in the Supremacy Clause, the "United States," "States," "Territory," "Property," the District of Columbia, federal enclaves, vicinage "districts," the "high Seas," "admiralty and maritime Jurisdiction," Indian lands, national airspace, and underground resource deposits. The Article shows that many discrete problems on which scholars have focused - such as the rights of U.S. military detainees abroad, the role of federal law on Indian reservations, and the extraterritorial reach of state law - are manifestations of a broader phenomenon that exists because of indeterminacy in how the Constitution allocates power over different kinds of spaces. Considering the many distinct kinds of constitutionally defined and constitutionally overlooked spaces together highlights this indeterminacy, provides new perspectives on commonly discussed problems, and exposes additional puzzles that have escaped scrutiny.

The Article makes four basic points on which future scholarship can build. First, although the Constitution creates a typology of spaces that relies on formal categories, the categories often have little utility in resolving specific questions. The text’s description of the physical contours of spaces and the legal significance of their borders is too imprecise to permit a jurisprudence of labels that converts lines on a map into "bright line" rules of decision. Determining where in physical space a problem arises is therefore a necessary but insufficient prerequisite to determining which government entities can address the problem and how they may respond. Second, constitutionally defined places routinely overlap, such that a point in physical space can map onto several points in constitutional space. Drawing conclusions about how the Constitution regulates particular spaces in particular contexts therefore requires developing rules for allocating concurrent authority and resolving competing claims. Third, even when spaces do not physically overlap, events in one space routinely have consequences in others, residents of a space routinely act in others, and agents of an entity that controls a particular space often operate in other spaces. These spillovers raise questions about when entities (such as states, the United States, and tribes) can regulate beyond borders that would normally cabin their jurisdiction. The parameters of a constitutionally defined place are thus not necessarily coextensive with the reach of an entity governing that place. Finally, the same questions tend to recur in multiple spatial contexts. For example, who decides the boundary of a space and by what standards, when can federal courts create common law governing a space, and when does the text’s explicit enumeration of a space’s attributes imply by negative implication the absence of other attributes? Exposing how these questions arise in multiple contexts reveals subtle dimensions of problems that can go unnoticed when viewed in isolation. The pervasive and overlooked "where" question in constitutional law therefore merits systemic scrutiny.

I've been saying that much of constitutional law involves land use issues--precisely because, as Erbsen illustrates, those rights and limitations have to happen in some physical space!

Matt Festa

Top 10 Land Use/Planning Websites

Planetizen.com has named its top 10 planning, design, and development websites of 2011.  The list, which can be found here, includes www.dirt.asla.org (The Dirt) and www.codesproject.asu.edu (The Codes Project).  If you like zoning codes, The Codes Project is for you.  It attempts "to gather the variety of codes throughout history that have regulated land use into one useful directory.  From the Code of Hammurabi to Seaside, Florida's Urban Code, you can  . . . compare these landmarks of regulation."

Jon Rosenbloom

Caribbean Spring Break

I was incredibly fortunate to spend my Spring Break in Turks & Caicos (TCI), a small chain of Carribean islands near Hispanola (the island shared by the Dominican Republic and Haiti).  Vacations like these are always interesting from a land use perspective. We spent our time on the island of Providencials (aka "Provo"), which is the most visited island in the chain.  In fact, tourism plays a large role in TCI's economy.  As there are no fresh water sources (all water comes from desalinization) and no land-based natural resources to speak of, the economy is largely dependent on tourism, fishing, and "offshore financial services."

The development on Provo shows signs of the boom and bust cycle in the world economy.  In fact, we went on a paddle boarding excursion that left from a brand new (but closed) marina with no boats. There were also many, many luxury houses standing empty and for sale all over the island.  However, it's my guess that the market will rebound more quickly than other parts of Latin America and the Carribean, as TCI has a stable government (it is still a British protectorate), the currency is the dollar, the language is English, and if you can get used to driving on the left, it's a pretty spectacular place to be.

Jamie Baker Roskie

Lind on Public Nuisance Law and Bank Foreclosures

This blog has had the good fortune to feature the amazing work of Cleveland-Marshall's Urban Development Law Clinic (here and here, too) as well as dispatches from the front lines of the foreclosure fallout in Cleveland's neighborhoods from the Clinic's outgoing director, Kermit Lind (Cleveland State).  Kermit has now posted Can Public Nuisance Law Protect Your Neighborhood from Big Banks?, 44 Suffolk L. Rev. 89 (2011).  Here's the abstract:

One manifestation of the mortgage crisis of the past decade is the destabilization of housing markets and neighborhoods where mortgage defaults were concentrated. As banks and their mortgage servicers employ business practices that result in banks or their agents controlling or owning vacant dwellings, the noncompliance with housing and other municipal codes by these institutional absentee owners presents neighborhoods and cities with a huge and costly public nuisance problem.

This article explores both the theory of public nuisance law and the experience of applying nuisance law in practice to mitigate the harmful consequences of bank debt collection and REO management. It looks at how and to what extent public nuisance law provides protection for those non-defaulting homeowners whose health, safety and welfare are threatened by the business practices of big banks. It compares litigation that applies public nuisance law in different ways to distinguish viable uses from unsuccessful uses of public nuisance law doctrine. The recent efforts to use public nuisance law against manufacturers and marketers of harmful products like guns and tobacco are distinguished from the application of public nuisance law against owners of real estate maintenance deficiencies are in violation of laws protecting the public health, safety and welfare.

Jim K.

More on Maps and NYC's grid turns 200.

Thanks to Jim's posting on Sanborn maps I started poking around at old maps and found a well-executed program in which The New York Times superimposes John Randel's 1811 proposed grid of Manhattan (200 years old), with an 1836 map of Manhattan, with the modern day layout of Manhattan.  The program is packed with information including, historic census data for 1910, 1940, 1970, and 2000.  Some of the results are surprising.  For example, many of the census districts dropped dramatically in population from 1910 to 2000 (my old stomping ground on Prince & Mulbury had a population of 15,419 in 1910 and only 4,884 in 2000).  The population increases from 1910 to 2000 in the census districts north of the Upper West Side and upper Manhattan. 

Have a good weekend.

Jon Rosenbloom

Klass on the Public Trust Doctrine and the Siting of Wind and Solar Projects

Alexandra Klass (Minnesota) has posted Renewable Energy and the Public Trust Doctrine, 44 UC Davis L. Rev. __ (forthcoming 2011).  Here's the abstract:

This Article explores the role of the public trust doctrine in current efforts to site large-scale wind and solar projects on public and private lands. Notably, both proponents and opponents of such renewable energy projects have looked to the public trust doctrine to advance their goals. Proponents of large-scale renewable energy projects point to the environmental and climate change benefits associated with renewable energy development and argue that the use of public lands and large tracts of private lands to facilitate such projects are both in the public interest and consistent with the public trust doctrine. At the same time, parties opposed to particular renewable energy projects have argued that the land-intensive nature of these projects as well as their potential adverse impacts on endangered species, open space, aesthetic values, and pristine landscapes will result in a violation of the public trust doctrine. Which side is right? How do we balance the benefits and harms of large-scale renewable energy projects and what role should the public trust doctrine play in setting that balance? In addressing these questions, this Article discusses the extent to which the public trust doctrine applies to on-shore and off-shore renewable energy projects on private, state, and federal lands and waters. It then discusses the potential role state and federal legislation can play in codifying or expanding the application of the public trust doctrine with regard to state and federal lands and waters. It concludes by suggesting ways in which existing statutes and new, renewable energy-specific statutes can attempt to build on the public trust doctrine to encourage renewable energy development on public lands without compromising competing public trust values.

Jim K.

The Disappearing Detroit...

I've posted several times on the plight of my hometown Detroit, but this NYT article really summarizes the challenges in a stark way:

Laying bare the country’s most startling example of modern urban collapse, census data on Tuesday showed that Detroit’s population had plunged by 25 percent over the last decade. It was dramatic testimony to the crumbling industrial base of the Midwest, black flight to the suburbs and the tenuous future of what was once a thriving metropolis.

It was the largest percentage drop in history for any American city with more than 100,000 residents, apart from the unique situation of New Orleans, where the population dropped by 29 percent after Hurricane Katrina in 2005, said Andrew A. Beveridge, a sociologist at Queens College.

The number of people who vanished from Detroit — 237,500 — was bigger than the 140,000 who left New Orleans.

That's statistically amazing.  A city could lose more people on its own than what an epic natural disaster like Hurricane Katrina could cause.

At some point, does abandonment of certain parts of the city become a possible option?

Chad Emerson

 

Sanborn Maps in the Classroom

Well, before you know it, I'll be reaching the Zoning segment of Property this semester.  Jon's wonderful visual in his Glass House disaster post put me in mind of the digitized Sanborn maps I used to teach environmental due diligence back when our Community Development Clinic was offered as a two-semester course. It turns out that the building which houses UB's clinical program was the turn-of-the-century site of one of Baltimore's (and the planet's) earliest automotive engine plants.  

As maps collecting fire insurance information for the 100 years following the Civil War, they were also a great way to show the expansion of the industrial city and the jumble of uses prior to Euclidean zoning. I got the Baltimore maps I used from the local library collection, but the Library of Congress has "4000 sheets . . .online in the following states: AK, AL, AZ, CA, CT, DC, GA, IL, KY, LA, MA, MD, ME, MI, MO, MS, NC, NE, NH, NV, OH, PA, TX, VA, VT, WY and Canada and Mexico." (NYC is here.)  The site also features a nice introductory essay.   Enjoy.

Jim K.

 

Nashville-1914, Library of Congress (The Ryman Auditorium next door to the synagogue in lower left)

"The Glass House Disaster"

Brownstoner.com has posted its third and final instalment describing the May 5, 1885 Glass House Disaster fire in Brooklyn, New York.  The 1886 zoning map below shows the missing buildings from Block 40 where the fire occurred.  The article partially describes the events as:

"On May 5th, 1885, a devastating building collapse and fire tore apart the industrial park located inside the blocks of Atlantic, Hicks, State and Columbia, down near the waterfront. A warren of interconnected factory buildings pressing into the backs of tenement buildings facing Atlantic Avenue came crashing down that May morning, as shoddy repairs to structural beams in the central building called the Glass House, could not stand up to the stresses on the old building, and it collapsed, bringing fire and horrible casualties with it."

The article then goes on to focus mostly on the criminal trials (or lack thereof) that followed.  It has an eerie forecasting of the Triangle Shirtwaist Factory fire - almost 25 years later.

Jon Rosenbloom

 

Foster on Collective Action and the Urban Commons

Sheila Foster (Fordham) has just posted Collective Action and the Urban Commons, 87 Notre Dame L. Rev. ___ (forthcoming 2011), another interesting and important article on community control of land resources in the urban context. Here's the abstract:

Urban residents share access to a number of local resources in which they have a common stake. These resources range from local streets and parks to public spaces to a variety of shared neighborhood amenities. Collectively shared urban resources suffer from the same rivalry and free-riding problems that Garrett Hardin described in his Tragedy of the Commons tale. Scholars have not yet worked up a theory about how this tragedy unfolds in the urban context, particularly in light of existing government regulation and control of common urban resources. This Article argues that the tragedy of the urban commons unfolds during periods of “regulatory slippage” - when the level of local government oversight and management of the resource significantly declines, leaving the resource vulnerable to expanded access by competing users and uses. Overuse or unrestrained competition in the use of these resources can quickly lead to congestion, rivalry and resource degradation. Tales abound in cities across the country of streets, parks, and vacant land that were once thriving urban spaces but have become overrun, dirty, prone to criminal activity, and virtually abandoned by most users.

Proposed solutions to the rivalry, congestion and degradation that afflict common urban resources typically track the traditional public-private dichotomy of governance approaches. These solutions propose either a more assertive central government role or privatization of the resource. Neither of these proposed solutions has taken root, I argue, because of the potential costs that each carry - costs to the local government during times of fiscal strain, costs to communities where the majority of residents are non-property owners, and costs to internal community governance. What has taken root, however, are various forms of cooperative management regimes by groups of users. Despite the robust literature on self-organized management of natural resources, scholars have largely ignored collective action in the urban context. In fact, many urban scholars have assumed that collective action is unlikely in urban communities where social disorder exists.

This Article highlights the ways in which common urban resources are being managed by groups of users in the absence of government coercion or management and without transferring ownership into private hands. This collective action occurs in the shadow of continued state and local government ownership and oversight of the resources. Formally, although the state continues to hold the regulatory reigns, in practice we see the public role shifting away from a centralized governmental role to what I call an “enabling” one in which state and local government provides incentives and lend support to private actors who are able to overcome free-riding and coordination problems to manage collective resources. This Article develops this enabling role, marks its contours and limits, and raises three normative concerns that have gone unattended by policymakers.

Jim K.

More on Urban Chickens

Following up on Matt's blog post last week on urban chickens, and on my previous post, today I found this remarkably detailed article in the Athens-Banner Herald on cities near Athens considering lifting their ban on chickens in residential areas.  Rarely do you see proposed regulations outlined in such detail in a short news article, so I have to appreciate the reporter's diligence.

Interestingly, some of the elected officials are opposed to lifting the ban in part because of enforcement issues, including the fact that they have no place to keep chickens confiscated from property owners who violate the ordinance.  But if chickens are already banned, isn't that a current (rather than prospective) problem?

Anyway, the chickens-in-the-city battles continue...

Jamie Baker Roskie

Sup. Ct. Will Not Review Warrantless Search of Wetlands

Yesterday, the Supreme Court refused to hear a NJ couple's challenge of a fine and restoration order for filling wetlands in their backyard.  The wetland violation was found when a NJ Department of Environmental Protection (“DEP”) agent inspected the property (upon a neighbor's complaint!).  The agent found that the "homeowners had placed fill and maintained a manicured lawn on land designated as regulated freshwater wetlands and within a conservation easement."  DEP issued a fine and an order to "fully restore, without exception, these areas to their 'pre-disturbance condition.'" 

A New Jersey intermediate court upheld the inspector's actions (New Jersey Dept. of Environmental Protection v. Huber, Not Reported in A.2d, 2010 WL 173533, N.J.Super.A.D., January 20, 2010 (NO. A-5874-07T3)) holding that the inspection did not require a warrant and was authorized by state wetlands and environmental law.

In denying cert Justice Alito found that the New Jersey Supreme Court had not yet decided the issue.  Jonathan Adler (Case Western Reserve School of Law in Cleveland) "told BNA that Alito's statement 'as a legal matter is not in any way binding on lower courts or anything like that.'"  However, it does “indicate that several of the justices have concern about this practice … and I think, reading between the lines, these four justices indicated that they would be willing to look at this question were it raised in a proper case.”

Jon Rosenbloom

"27 amazing statistics about the real estate market"

April Charney, Senior Attorney in Jacksonville Legal Aid's Consumer Unit and foreclosure attorney extraordinaire, has posted an article containing 27 statistics about the real estate crash on "DIRT - Real Estate Lawyers Listserv."  Some highlights:

"The number of new building permits fell to a new all-time record low in February. In fact, new building permits were 20 percent lower during February 2011 than they were in February 2010."

"As of the end of 2010, 23.1 percent of all U.S. homeowners with a mortgage owed more on their homes than their homes were worth."

"According to the U.S. Census Bureau, 18 percent of all the homes in the state of Florida are sitting vacant. That number is 63 percent larger than it was just ten years ago."

"N[e]w home sales in the United States are now down 80% from the peak in July 2005."

"Deutsche Bank is projecting that 48 percent of all U.S. mortgages could have negative equity by the end of 2011."

"According to Zillow, U.S. home prices have already fallen further during this economic downturn (26 percent) than they did during the Great Depression (25.9 percent)."

It sure is difficult to remain optimistic.

The full article may be viewed here.

Jon Rosenbloom

Smith and Bailey on Restrictive Zoning for Adult Uses/Sexually Oriented Businesses

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.

Jim K.