Dept. of Urban & Environmental

PLAN 6040 LAW, LAND, & ENVIRONMENT

Spring 2014

Planning

Kay Slaughter, 434-971-5813 ()

Wednesdays, 12-2:30 pm, Campbell 135

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Course Description:

Course Objective: To learn about the legal and policy aspects of land use and environmental law with the goal of demystifying law in order to use it as a tool to accomplish public policy.

Learn the legal process and principles underlying zoning and planning
Learn the history, basic context and outlines of US land use and environmental law.
Understand Constitutional constraints by exploring the most notable U.S. Supreme Court decisions related to land use and environmental law.
Utilize knowledge in context of climate change, rising sea levels and coastal cities.

Readings: Course Text: Timothy Beatley, Planning for Coastal Resilience: Best Practices for Calamitous Times, Island Press, ISBN 13:978-1-59726-562-1 and selected readings on Class Collab site. This class will be taught as a graduate seminar: you are expected to have read the selections and to be prepared to discuss material in class. From time to time, students may be asked to lead the discussion.

About the Instructor: Katherine E. Slaughter is a retired senior attorney with the Southern Environmental Law Center where she specialized in land use law and federal and state water law. She taught on Semester at Sea in Fall 2013 and is a former mayor and member of the Charlottesville City Council. This will be her last semester teaching at the University.

Number of Students Authorized to Enroll: Only 30 students will be enrolled. First preference will be for graduate students from DUEP. Undergraduates with special circumstances may seek enrollment by permission of instructor.

Project: Early in the semester, select a coastal city for which you will research and write a proposed plan to address impacts of sea level rise. We will come up with the template with which to address the issues. You will write a 10-20 page paper and make a presentation by end of semester in lieu of a final exam.

Class Schedule

January 15Introductions and Expectations

“Historical Overview,” Wright and Gittelman, Land Use Law.

US Constitution, including Bill of Rights(lst, 5th, 14th Amendments)

How to Read A Court Case

Hulburt v. Calif. Portland Cement Co., 161 Cal 239 (1911)

“The Tragedy of the Commons” – Garrett Hardin

Interview with Elinor Ostrom and Ostrom Principles

Topics: What do Blackstone and Locke contribute to American property law? What was the concept of public lands in Colonial and post-revolutionary America and how have these evolved? What do you learn about the concept of common law and the specific common law of “nuisance” from Hulburt case? What is the Tragedy of the Commons and does it impact environmental and land use law? What are the solutions presented by Garrett Hardin and Elinor Ostrom?

January 22 From Nuisance to Land Use & Interests in Land:

Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926)

Nectow v. City of Cambridge (1928)

Read Coastal Resilience: Introduction, Chapters 1 and 2

Topic Questions: What do the two Supreme Court cases teach about early concepts of zoning and how did they evolve from the common law of nuisance? How does the result in Nectow differ from that in Euclid? What factors make a difference in the outcome of these two cases? In the coastal readings, what are the vulnerabilities of coastal cities and how does the concept of resilience relate?

January 29 Climate Change and Coastal Mitigation

Solving the Climate Problem for the Next 50 years, Pacala and Sokolow

Chapters 3, 4 and 6 – Coastal Resilience: Key Planning Dimensions,

Barriers to Coastal Resilience, Principles of Coastal Resilience

Coastal Zone Management Act (PPT) and handout (Collab)

“Cooperative Federalism and Climate Change: New Meaning to ‘Think Globally – Act Locally’” by Patricia Salkin

Topics: Do you believe climate change is real? Do you think it is a cyclical phenomena or a result of human impacts on the planet? Why or why not? What are the impacts of climate change and what are some of the solutions? What are some of the issues you should consider in your paper?

February 5 Planning and Zoning Principles and Process

A Citizen’s Guide to Planning and Zoning in Virginia: Comprehensive Plan, Land Use Plan, Zoning Map and Zoning Ordinance, Procedural Due Process, Staff, Planning Commission and City Council/Board of Supervisors, Enabling State legislation

“Dillon’s Rule” (LWV)

Topics: What are the common principles one should know for planning and zoning? Which of these concepts or ideas were new to you? What’s the process of zoning changes include, both procedurally and substantively, in the United States as exemplified in Virginia information?

February 12 PrivateMeasures to deal with land conservation: Easements and Rolling Easements

Legal Definitions: Easement

Material on conservation easements

Beatley, Chapter 5 - Understanding the Political Setting and Context and Chapter 7, Tools and Techniques for Enhancing Coastal Resilience. Skim Section III, Case Studies.

Topics: What are easements? What types of easements exist? How do conservation easements work to

preserve lands? In Virginia, what are the state benefits and what are the federal benefits in all states? How might the concept be used in the context of coastal erosion? Together we will work on a draft template for study of coastal cities.

February 19 Land Use and the Supreme Court: Takings

Review How to Read A Court Case

Pennsylvania Coal Co. v. Mahon, 260 US 393 (1922)

Goldblatt v. Town of Hempstead, 369 U.S. 590 (1962)

Penn Central Transportation Co. et al. v. New York City et al, 438 U.S. 104 (1978).

Agins v. Tiburon, 447 U.S. 255 (1980)

Lucas v. South Carolina Coastal Council, 505 U.S.1003 (1992)

Topics: What is the fatal flaw in Penn Coal and how does the Supreme Court articulate a change in its view of Takings Law? In Goldblatt, what are the critical issues for the court to determine that Hempstead’s regulations were not a taking? In Penn Central, how has the concept of zoning to prevent nuisance evolved? What is different about Agins from the previous takings cases? What new ground is broken by Lucas?

February 25 Takings Continued:

Exactions: Nollan v. California Coastal Commission 107 SCt 3141 (1987)

Dolan v. City of Tigard, 512 U.S. 374 (1994)

Temporary Takings:First English Evangelical Lutheran Church v. County of Los Angeles 107 S Ct 2378 (1987)

Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, 535 U.S.302 (2002)

Topics: What are the special rules that emerge for exactions? How do the rules about temporary takings change from what was articulated by the Court in Agins? (ReviewAgins for this point)

March 5 Takings: what is public use?

Kelo v. City of New London121 SCt 326 (2005)

Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984)

Topics: What do these cases say about “public use”? How is this relevant to the exercise of eminent domain by local governments?

March 8-16 Spring Break

March 19 Mid Term Quiz

First Amendment and Land Use:

Read First Amendment to U.S. Constitution

City of Ladue v. Gilleo, 114 S.Ct. 2038 (1994)

Highway Beautification Act in “Combined Statutory Handout”

Topics: What does the First Amendment say? How does it manifest itself in the Gilleo case? What

should planners know about this? What other aspects of the First amendment may affect planning and zoning?

March 26 Issues of Fairness and Equality under US Constitution & under NJ State Constitution

Southern Burlington NAACP v Village of Mt. Laurel, 92 NJ. 158 (1983)

Holmdel Builders Assn. v. Township of Holmdel, 121 N.J. 550 (1990).

Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977)

Topics: What is exclusionary zoning? What are some of the ways communities have set up exclusionary zoning? How does U.S.’ Arlington Heights differ from N.J.’s NAACP case? What planning mechanisms may intentionally or inadvertently contribute to exclusionary zoning? What types of laws or practices may affirmatively encourage inclusionary zoning?

April 2 Congress and the Environment

Review U.S. Constitution, Commerce Clause, 10th Amendment.

United States v. New York, 505 U.S. 144 (1992).

Combined Statutory handout: Clean Air Act(CAA) and Clean Water Act (CWA)

“Baker Principles of CAA”

“Slaughter Principles of CWA”

Massachusetts v. EPA, 549 US 497 (2007)

Review “Cooperative Federalism and Climate Change”

Topics: How does Congress derive its authority to regulate the environment? How did New York v.EPA

violate that authority? What does Mass. tell you about CAA? What does Salkin think about

localities’ role ?

April 9 National Environmental PolicyAct (NEPA), National Historic Preservation Act (NHPA), 4f of Transportation Act

Combined Statutory Handout

Chart comparing NEPA, NHPA and 4f

Western N.C. Alliance v. NC Dept. of Transportation, 312 F.Supp2d 765 (E.D.N.C. 2003)

Topics: What requires a project to be subject to an environmental review under NEPA? NHPA? 4f? What is process under each law? How do NEPA and 4f play out in Western NC? Although not mentioned, how might NHPA come into play in this fact situation?

April 16 Standing

Standing in state zoning cases (page 18, CBF Citizens’ Guide to Planning/Zoning)

Sierra Club v. Morton, 405 U.S. 727 (1972)
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)

Topics: What is standing? What were the facts in Sierra Club? What did the majority find wrong with Sierra Club’s standing? How do the dissenting opinions differ? Which do you agree with? Why? In Lujan, how is standing explained; why did the Defenders fail in its attempt to challenge the regulations? How does standing in federal cases differ from that under Virginia zoning law?

April 23 Papers Due. Oral Presentations begin. CLASSES END APRIL 29

Monday May 5 2-5 Rest of Oral Presentations

Final Grade: Class Attendance and Participation in weekly discussions50 percent

Midterm Exam: 20 percent

Final Project.Presentation (5%); written paper (25%)30 percent