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—
  1. opposition to Wal-Mart building its next superstore in Northwest Harris County;
  2. 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
  3. 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


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

Intrroduction

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

Zoning and Amendments

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

Variances & 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. 1978) (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

Flexibility Devices Cont'd

 

Required:
Pages 96-121

Sept. 10

Subdivision Regulation: Vested Rights and Streamlining& Development Standards

Subdiv. Cont'd

Required:
Pages 126-47

Sept. 15

Hurricane Ike

Sept. 17

FINANCING & DEV. OF INFRASTRUCTURE: The Supreme Court Framework

Financing & Dev. of Infrastructure

Required:
Pages 149-78

Sept. 22

Financing & Dev. of Infrastructure cont'd: Impact Fees & Assessment Districts; PLANNING: The Form & Content of the General Plan

Financing & Dev. of Infrastructure & Planning

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

Planning Cont'd & Judicial Review

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

Judicial Review Cont'd

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

Judicial Review Cont'd & Takings

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

Takings 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

Takings 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

Free Speech

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

Freedom of Religion

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

Freedom of Religion Cont'd & Alt. Methods

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

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

Growth Management Cont'd

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

Housing Discrimination

Required:
Pages 625-29, 633-37, Dews v. Sunnydale (pdf) (19 pages), 647-55
Nov. 12

ENVIRONMENTAL PROTECTION

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

Redevelopment & 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

Environmental Justice

Required:
Pages 763-73, 790-804
Nov. 24 Class Rescheduled
Nov. 25
Thanksgiving Holiday Break
Dec.1

PROTECTION OF CULTURAL AND AESTHETIC VALUES

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.