Land Use Law Fall 2008

Land Use Law

Fall 2008

Professor Marcilynn A. Burke

Coursepage Outline

Announcements

Course Outline

General Class Information

Links to Useful Websites

Syllabus

Lyle Point on the Columbia River, Hood River, UT

Meeting Place	TUII - 240
Meeting Times	Mondays and Wednesdays, 6:00 - 7:20 p.m.
Office Hours	Mondays: 2:30 - 4:00 p.m, Wednesdays: 7:30 - 9:00 p.m., or by appointment via e-mail.
Exam	Tuesday, December 17, 2008: 6:00 - 9:00 p.m. Anticipate that we will finish between 9:15 and 9:30 p.m. because of preliminary matters. EVERYONE please meet in TUII - 144 to receive a copy of the exam. Rooms: Typing - TUII - 144, Handwriting - TUII - 119. Please remember to bring a No. 2 pencil and a ballpoint pen to the exam. Special Exam Office Hours: tba Here is a sample exam question. Here are some sample exam instructions. For your exam, the instructions will be similar if not identical. Please read them before the exam.
Course Description	Land is one of our most scarce and valuable resources and thus is one of the most heavily regulated resources. Therefore, it is difficult to pick up a newspaper and not find a story about a land use dispute, such as— opposition to Wal-Mart building its next superstore in Northwest Harris County; challenges to the City of Houston’s Sign Code (which regulates the size,placement, and spacing of billboards and other advertising signs) as a taking without just compensation; or protests about the Port of Houston expanding and in the process filling more than one hundred acres of wetlands. This course will explore the devices available for regulating the development of land, including eminent domain, takings, planning, zoning, subdivision regulation, historic preservation, growth management, open space preservation, redevelopment, and environmental regulation (wetlands, endangered species, and environmental disclosure requirements). In examining these devices, we will consider the rights and concerns of the key actors in this arena, namely, landowners, developers, neighbors, governments (mostly local), environmentalists, and preservationists. The objectives of this course are to teach the substantive law of the subject matter in a comprehensive manner, to consider ethical and professional questions related to the subject matter, and to integrate the subject matter with the analytical and practical skills necessary to the practice of law.
Required Text	Daniel P. Selmi & James A. Kushner, Land Use Regulation (Aspen 3d ed. 2008).
Prerequisites	None.
Grading	Your final grade will be based upon the final exam and class participation. Class participation will be counted in accordance with the Law Center's policy. The class will be divided into 2 or 3 panels for class participation purposes. On the day that your panel is "on", you will potentially be called upon.
Coverage	Anticipate that the coverage will be approximately 25-30 pages per class. Assignments are detailed below but subject to change as the semester progresses.
Attendance Requirements	In accordance with the Law Center's requirement, you must attend at least 80% of the classes. Attendance will bet taken via a roll sheet passed around at the beginning of class. It is your responsibility to be on time and sign the roll sheet when it comes by your seat. Please see the General Class Requirements for additional information regarding absences.
General Class Requirements	Please see the linked document for General Class Requirements regarding attendance, participation, use of computers, exam policies, grading, and other important items.
Links to Useful Documents	General Class Requirements Panels
Links to Useful Web sites	City of Houston Planning and Development Department Houston Planning Commission Houston Code of Ordinances Municipal Codes On-line Texas Commission on Environmental Quality (TCEQ) Texas General Land Office (GLO) Texas Historical Commission (THC) Texas State Statutes

Announcements

Houston Bar Association's Environmental Law Section has developed a scholarship program for Houston-area law students interested in pursuing a career in environmental law. Three scholarships in the amounts of $750 each will be awarded to the top applicant from each school as selected by the section. Click here for the application. The application deadline is November 7, 2008.
2009 NYU Environmental Law Essay Contest. The contest is held annually and is open to all current law students, as well as those who have graduated in the past year (class of 2008). Essays must address an environmental law issue of current national or international significance. NYU law faculty, a panel of guest judges, and Law Journal editorial staff will choose the winning essay. The winner will receive a prize of $1,000, courtesy of the NYU Center on Environmental and Land Use Law, and have his or her essay published in the Environmental Law Journal.
Submission are due by December 19, 2008. Full details are available at http://www1.law.nyu.edu/journals/envtllaw/contest/EssayContest09.pdf
Fourth Annual "Endangered Environmental Laws" Student Writing Competition. First prize is an offer of publication in the Environmental Law Reporter and $2,000. Deadline is APRIL 6, 2009. Click here for more information.

Course Outline

I. Land Use Regulatory Controls
A.	Zoning
B.	Subdivision Regulation
C.	Financing and Development
D.	Planning
II. The Limits of Current Land Use Regulation
A.	Judicial Review of Land Use Decisions
B.	Regulatory Takings: The Fifth Amendment
C.	The First Amendment
D.	Alternative Methods for Land Use Decision-making
III. Balancing Growth Management and the Need for Housing
A.	Growth Management
B.	Securing a Sufficient Housing Supply
IV. The Use of Land Use Controls to Effectuate Governmental Policy Objectives
A.	Preventing Housing Discrimination
B.	Environmental Protection
C.	Urban Redevelopment and Economic Development
D.	Siting Unpopular Land Uses and Environmental Justice
E.	Protecting Cultural and Aesthetic Values

Syllabus

Date (2008)	Topic	Assignment
Aug. 25	Introduction	Required: Pages 1-43, with emphasis on pages 11-24 & 33-43 Optional: Fictional News Story Handout (pdf) Original News Story (pdf) from which Handout was adapted
Aug. 27	ZONING: Traditional, Amendments, Variances, and Spot Zoning	Required: Pages 47-76
Sept. 1	No Class	The History of Labor Day from the U.S. Department of Labor
Sept. 3	Zoning: Amendments, Variances, and Spot Zoning cont'd and Flexibility Devices	Required: Pages 76-96 Optional: Tex. Local Gov't Ann., § 211.009 (Vernon 2002) (pdf). Curry v. Kimple, 577 S.W. 2d 508 (Tex. 1 978) (pdf) (variance granted to build tennis court on "pie-shaped" lot) . Lezlee E. Whiting, Court OKs Treatment Center, Deseret News, Jan. 8, 2006 (pdf). Lezlee E. Whiting, Denial of Treatment Center Haunts Duchesne, Deseret News, Mar. 30, 2008 (pdf).
Sept. 8	Zoning: Flexibility Devices cont'd & SUBDIVISION REGULATION	Required: Pages 96-121
Sept. 10	Subdivision Regulation: Vested Rights and Streamlining& Development Standards	Required: Pages 126-47
Sept. 15	Hurricane Ike
Sept. 17	FINANCING & DEV. OF INFRASTRUCTURE: The Supreme Court Framework	Required: Pages 149-78
Sept. 22	Financing & Dev. of Infrastructure cont'd: Impact Fees & Assessment Districts; PLANNING: The Form & Content of the General Plan	Required: Pages 178-91 (skip notes 2 & 3, p. 188-89), 193-97, 204-09
Sept. 24	Planning cont'd: Consistency Requirements & Remedies for Inconsistency; JUDICIAL REVIEW OF LAND USE DECISIONS: Fairness in the Decisionmaking Process	Required: Pages 216-33, 237-50. For Frito-Lay, prepare your notes by making a timeline and figuring out whether the agency met the streamlining requirements. Also try answering the questions in Notes 1 and 2, p. 247-48.
Sept. 29	Judicial Review cont'd: Judicial Control of Local Discretion, Ethics & Fairness, and Third-Party Opposition	Required: Pages 262-90 Optional: Article on Sunderland Family Treatment Services Article on Resistance to Foster Home Subdivision in Fort Bend County (pdf)
Oct. 1	Judicial Review cont'd: The Role of the Federal Courts Under the Civil Rights Act; THE TAKINGS CLAUSE: THE FIFTH AMENDMENT	Required: Pages 291-98, 304-31 Warning: Long reading assignment but it will be a review for many of you. Optional:
Oct. 6	The Takings Clause cont'd	Required: Palazzolo v. Rhode Island (pdf), McQueen v. Office Ocean and Coastal Resource Management (pdf), Texas Private Real Property Rights Preservation Act (pdf), Questions about the Act, pages 331-38
Oct. 8	The Takings Clause cont'd	Required: Pages 338-44, Note on Lingle v. Chevron (pdf), pages 345-60 Optional: Private Property Rights Implementation Act of 2006, H.R. 2772, 109th Cong. (2006)
Oct. 13	THE FIRST AMENDMENT: FREE SPEECH & FREEDOM OF RELIGION	Required: Pages 361-88 Optional: Houston Sign Code, City of Houston Building Code, General Provisions, ch. 46 (pdf)
Oct. 15	The First Amendment cont'd: Church and Worship Regulation	Required: Pages 388-91, Tien Tao Association, Inc. v. Kingsbridge Park Community Association, Inc. (pdf), Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (pdf), pages 391-99 Optional: Houstonpress.com story re Tien Tao in Kingsbridge Park (pdf)
Oct. 20	The First Amendment cont'd: Church and Worship Regulation cont'd & ALTERNATIVE METHODS FOR LAND USE DECISIONMAKING	Required: Pages 399-413, 471-78 Optional: For more information on the Religious Land Use and Institutionalized Persons Act of 2000 click here to go to website established by the Beckett Fund for Religious Liberty.
Oct. 22	Alternative Methods for Land Use Decisionmaking Cont'd: Private Law, Bargaining, and ADR	Required: University Oaks Deed Restrictions (pdf), pages 489-94, pages 507-27 Optional: 'Natural" yard could land owner in jail, Houston Chron. article (pdf); Homeowners association bills inspired by Houston woman's case, Houston Chron. article (pdf) Texas Residential Property Owners Protection Act, Tex. Prop. Code Ann. ch. 209 (Vernon 2002) Loathe Thy Neighbor, People magazine article City of Houston General Plan Committee Report (2006) Infrastructure Planning Provisions in Certain Urban Counties, Tex. Loc. Gov't Code Ann. Ch. 232, Subch. E (Vernon 2002) (pdf)
Oct. 27	GROWTH MANAGEMENT	Required: Pages 531-61 Optional: Texas: Moratoria Under Certain Circumstances, Tex. Loc. Gov't Code Ann. ch. 212, subch. E (2002) (pdf) Texas: Moratorium on Development Prohibited, Tex. Loc. Gov't Code Ann. § 395.076 (2002) (pdf)
Oct. 29	Growth Management cont'd: Urban Growth Boundaries and Sprawl & SECURING A SUFFICIENT HOUSING SUPPLY	Required: Pages 561-88 Optional: Oregon's Statewide Planning Goals New Goal 14 (2006) 1000 Friends of Oregon
Nov. 3	Securing a Sufficient Housing Supply cont'd & HOUSING AND DISCRIMINATION	Required: Pages 592-613, 617-25 Optional: More on the Sacramento Linkage Program
Nov. 5	*Class Rescheduled*
Nov. 10	Housing and Discrimination cont'd	Required: Pages 625-29, 633-37, Dews v. Sunnydale (pdf) (19 pages), 647-55
Nov. 12	ENVIRONMENTAL PROTECTION	Required: Pages 657-79 Optional: Rare Woodpecker Sends a Town Running for its Chain Saws, N.Y. Times, Sept. 27, 2006. The Balcones Canyonland Plan
Nov. 17	URBAN REDEVELOPMENT, ECONOMIC DEVELOPMENT	Required: Pages 707-38 Optional: Susan Mead, Incentives for Downtown Revitalization: Tax Increment Financing Districts, Chapter 380 and Other Tools, 32 The Urban Lawyer 1013 (2000) [Focus on Section III]
Nov. 19	SITING UNPOPULAR LAND USES	Required: Pages 763-73, 790-804
Nov. 24	Class Rescheduled
Nov. 25	Thanksgiving Holiday Break
Dec.1	PROTECTION OF CULTURAL AND AESTHETIC VALUES	Required: Pages 805-06, 812-16, 819-39 (beginning with Note 10 at the bottom of p. 819) Optional: National Historic Preservation Act, as amended in 2006 Advisory Council on Historic Preservation Texas Regulation of Signs by Municipalities, Tex. Loc. Gov't Code Ann. ch. 216 (Vernon 2002) Houston Sign Code Big Boy Statute Controversy article from the Houston Chronicle Hugo, MartÃn, Hue and Cry Over Colors of Homes, L.A. Times, Sept. 22, 1998, at B1.
Dec. 3	Exam Review	Please come prepared with your questions. You may e-mail me your questions ahead of time as well.