Friday, December 16, 2022

2022 Federal Land Use Law & edited by me!

It has been out for several months, but I wanted to note that I took over the Federal Land Use Law & Litigation treatise this year.  Although the book is dated 2022, it is current through August, 2022 and is updated to include all U.S. Supreme Court cases through the end of the term.

The treatise is a real gem for those looking for a review of federal land use issues including takings, but also a far wider assortment of claims that most lawyers tend to associate with land use in federal courts.  The "gem" nature of the treatise stems from the fact that it was started by Dan Mandelker some 40 years ago and most recently edited by Alan Weinstein and Brian Blaesser.  I'm just trying to keep up with their legacy!

FLUL 2022

Here are the notes of major changes for 2022 from the treatise's preface.



This 2022 edition of the treatise discusses significant developments particularly in the areas of sign regulation, religious institutions, gun regulation, housing, and environmental law affecting land use development.  

There were considerable changes in constitutional law that emerged from the U.S. Supreme Court’s last term; accordingly, background sections of the treatise are amended throughout.  In many instances, the long-term effects of the Court’s decisions on land use law remain to be seen.  Next year’s edition will be able to more fully sketch the impact since most of this term’s major decisions were released only weeks prior to this edition going to print.

Here is a brief description of major changes in this edition in order of the treatise’s organization:

Substantive Due Process.  Chapter 2 has new content discussing the potential impact of Dobbs v. Jackson Women's Health Org. on substantive due process.  Although Dobbs concerned the right to an abortion, dicta in the case cast doubt on the theory of substantive due process generally, as well as several specific fundamental rights previously recognized.  That dicta implicates the viability of substantive due process claims even in the land use context, including the right to privacy, which is covered in Chapter 1. 

Second Amendment.   Chapter 2 provides a review of the U.S. Supreme Court’s new decision in New York State Rifle & Pistol Ass'n, Inc. v. Bruen, which affects how courts interpret gun regulation under the Second Amendment going forward.  In Bruen, the Court rejected means-ends analysis in favor of a textual and historical approach to regulation, which will change analysis under future Second Amendment land use cases.  Land use cases in which the Second Amendment has been applied thus far have primarily focuses on shooting ranges, and such cases will now be subject to the new analysis driven by the historicity of such regulations now required by Bruen.

Physical Invasion Takings.  Chapter 3 offers a review of the most important set of takings cases this year:  those invoking the Cedar Point Nursery v. Hassid theory of physical invasion.  Thus far, most of the Cedar Point Nursery circuit court cases have tested the theory against novel landlord-tenant provisions without much success.  More traditional land use cases are sure to follow in coming years.

Retaliation.  Chapter 4 adds a new section on First Amendment retaliation capturing several circuit court opinions on land use matters this year deciding such claims.

Sign Regulation.  Chapter 5 has several substantial new sections reflecting the impact of the U.S. Supreme Court’s decision in City of Austin, Texas v. Reagan Nat'l Advert. of Austin, LLC.  An important question remaining after the U.S. Supreme Court’s Reed v. Town of Gilbert, Ariz. decision was whether cities sign regulations that differentiated between on-site and off-site signs were content-based and thus must withstand strict scrutiny.  The City of Austin decision held that such on-site/off-site sign regulations are not content-based, and thus intermediate scrutiny applies.  Also of importance, City of Austin repudiated the “read-the-sign” rule for deciding whether a sign regulation was content neutral, which some lower courts had interpreted Reed to mandate.  Although the Court remanded for the application of intermediate scrutiny, and thus did not provide more guidance on what that analysis should look like, the decision permits on-site and off-site regulations to continue for now, and clarifies the test for determining whether a sign regulation is content-based from Reed.

Free Exercise Clause and Establishment Clause. Chapter 7 has new content updating constitutional developments related to the Free Exercise and Establishment Clauses governing religious expression.  The Court’s three religion cases decided thus far in 2022—Kennedy v. Bremerton Sch. Dist., Shurtleff v. City of Bos., Massachusetts, and Carson v. Makin—collectively appear to have substantially altered the interpretation, and relationship, between the religion clauses of the First Amendment.  The Court announced the death of the Lemon Test for determining whether an Establishment Clause violation had occurred and replaced it with a historical analysis test.  The Court emphasized a harmony between the Free Exercise and Establishment Clauses based upon a review of their context in history.  This re-frames the relationship between the clauses, which was one the Court had previously viewed as one of tension.  Land use cases applying these cases had not been decided as of this writing, but will need to grapple with this new constitutional landscape.

Clean Air Act, Greenhouse Gases, and the Major Questions Doctrine.  Chapter 8 also has substantial new content updating major developments in environmental law affecting land use development.  Chief among these is the U.S. Supreme Court’s decision in W. Virginia v. Env’t Prot. Agency, which utilized the major questions doctrine to strike down the primary tool to reduce greenhouse gas emissions, which had claimed its regulatory authority from the Clean Air Act.  Greater detail on the history of this case, including prior regulatory approaches from the Obama and Trump Administrations that form the background to the ruling, also are added to this treatise.

NEPA Reform.  There were also a number of important rules promulgated by the Biden Administration this year that affect environmental regulation.  These include, as of this writing, the promulgation of the first of two phases of final rules on the National Environmental Policy Act re-establishing pre-Trump Administration regulations for conducting environmental review of federal projects under the Act.  The new NEPA final rule also addresses categorical exclusions, and separate new guidance addresses how greenhouse gas emissions should be addressed in NEPA analysis, all of which is covered in Chapter 8.  

Endangered Species’ Habitat.  The Fish and Wildlife Service issued a proposed rule that would redefine habitat under the Endangered Species Act and, for the first time, takes climate change into account in establishing that habitat.  The proposed rule is reviewed in Chapter 8.

Waters of the United States.  A proposed rule was promulgated to return the definition of “waters of the United States” in the Clean Water Act to its meaning during the Obama Administration.  Before the rulemaking could be completed, the U.S. Supreme Court granted certiorari to Sackett v. EPA, a case that will give the Court a chance to revisit whether Justice Scalia or Justice Kennedy’s opinion in Rapanos should prove controlling in evaluating what constitutes “waters of the United States” within the Clean Water Act’s statutory scheme.  The Sackett case, which is on its second trip to the U.S. Supreme Court though with a different certified question, is scheduled to be heard in October, 2022.

Fair Housing.  Chapter 9 offers a new section focusing on the Fair Housing Act’s Affirmatively Further Fair Housing (AFFH) Rule.  The chapter also covers the new proposed rule from the Biden Administration to restore the pre-Trump era definition of “discriminatory effects,” which has importance in the viability of disparate impact claims under the Fair Housing Act.

Railroad Preemption of Land Use Permitting.  Chapter 10 offers a review of a longstanding federal statute not previously covered, which is the Interstate Commerce Commission Termination Act of 1995.  The ICCTA provides categorical preemption for railroads and their related facilities from “preclearance requirements,” which include land use discretionary permitting.  Several recent cases are also reviewed.

In addition to these substantial changes, new citations and descriptions of important circuit court cases update the remainder of the treatise.

I hope that readers will find this latest edition of the treatise easy to us, and helpful in understanding the impact of federal law on the regulation of land use and real estate development.  Please do not hesitate to contact me with questions, comments, or proposals for updating or revising the treatise.  My email is [email protected].

Stephen R. Miller

University of Idaho College of Law

Boise, Idaho

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