Land Use Law
Spring 2014
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 BLB-3
Meeting Times

Tuesdays and Thursdays, 10:30 a.m. - 12:00 p.m.

Office Hours Tuesdays: 1:30 - 3:00 p.m, Thursdays: 2:30 - 4:00 p.m., or by appointment via e-mail to me and my assistant.
Exam

Exam Office Hours:

April 29: 10 am - 12 noon and 4:00 - 6:00 pm

April 30: 9:30 - 11:30 am and 2:00 - 5:00 pm

Otherwise, or by appointment via e-mail to me and my assistant.

Thursday, May 1, 2014, 9:00 am. Anticipate that we will finish between 12:15 and 12:30 p.m. because of preliminary matters.

Please remember to bring a No. 2 pencil and a ballpoint pen to the exam.

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 Selmi, Kushner & Ziegler, Land Use Regulation (Aspen 4th ed. 2012).
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 25-35 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 Information & Requirements Please see the linked document for General Class Information and Requirements regarding attendance, participation, use of computers, exam policies, grading, and other important items.
Links to Useful Documents

General Class Information and Requirements

Panels

Links to Useful Web sites

City of Houston Planning and Development Department

Houston Planning Commission

Houston Code of Ordinances

Houston Sign Code

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 (2014) Topic Assignment
Jan. 14

Introduction

Introduction

Required:
Pages 3-46, with emphasis on pages 12-25 & 35-46

General Class Requirements

Optional:
Fictional News Story Handout (pdf)

Original News Story (pdf) from which Handout was adapted

Jan. 16

ZONING: Traditional, Amendments, Variances, and Spot Zoning

Zoning and Amendments

Required:
Pages 49-79

Jan. 21

Zoning Cont'd: Amendments, Variances, and Spot Zoning cont'd and Flexibility Devices

Variances & Flexibility Devices

Required:
Pages 79-103


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).

Jan. 23

No class.
Jan. 28
Ice Day

Jan. 30

Zoning: Flexibility Devices cont'd & SUBDIVISION REGULATION

Flexibility Devices Cont'd

 

Required:
Pages 103-33

Optional:
Town Council Minutes of Denial of Blue Ridge's Application for Subdivision in Pinveville, NC, Dec. 09, 2009.

Feb. 4

Subdivision Regulation Cont'd: Vested Rights and Streamlining & Development Standards

Subdiv. Cont'd

Required:
Pages 138-63

Feb. 6

PROPERTY RIGHTS, INFRASTRUCTURE, EXACTIONS, AND IMPACT FEES: The Supreme Court Framework

Financing & Dev. of Infrastructure

Required:
Pages 165-89

Feb. 11

Property Rights, Infrastructure cont'd: Impact Fees & Assessment Districts; PLANNING: The Form & Content of the General Plan

Financing & Dev. of Infrastructure & Planning

Required:
Pages 189-203 (skip notes 2 & 3, p. 201-02), 205-12, 220-25

Feb.13

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 232-49, 253-66. 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. 263-64.

Feb.18

Judicial Review cont'd: Judicial Control of Local Discretion, Ethics & Fairness, and Third-Party Opposition

Judicial Review Cont'd

Required:
Pages 279-310

Optional:
Article on Sunderland Family Treatment Services

Article on Resistance to Foster Home Subdivision in Fort Bend County (pdf)

Feb. 20

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 311-17, 319-50
Warning:
Long reading assignment, but it will be a review for many of you.

Feb. 25

The Takings Clause cont'd: Economic Use

Takings Cont'd

Required:
Pages 350-80

Optional:
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; Note on Lingle v. Chevron (pdf)

Feb. 27

The Takings Clause cont'd: Remedies & THE FIRST AMENDMENT: FREE SPEECH & FREEDOM OF RELIGION

Takings Cont'd & 1st Amend.

Required:
Pages 380-92, 393-411

Optional:
Private Property Rights Implementation Act of 2006, H.R. 2772, 109th Cong. (2006)

Mar. 4

The First Amendment Cont'd: Advertising and Information Dissemination, Church and Worship Regulation

Free Speech & Religion

Required:
Pages 411-39

Optional:
Houston Sign Code, City of Houston Building Code, General Provisions, ch. 46 (pdf)

Mar. 6

The First Amendment cont'd: Church and Worship Regulation

Freedom of Religion

Required:
Pages 439-44, 448-66

Optional:
Houstonpress.com story re Tien Tao in Kingsbridge Park (pdf). 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.

Mar. 10-14
Waving at ShipsSPRING BREAKBuilding Sand Castle
Mar.18

ALTERNATIVE METHODS FOR LAND USE DECISIONMAKING

Alternative Methods

Required:
Pages 527-43, 548-52, University Oaks Deed Restrictions (pdf), 570-75

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)

Mar. 20

Alternative Methods for Land Use Decisionmaking Cont'd: Dispute Resolution, Market-Based Systems; GROWTH MANAGEMENT CONTROLS

Growth Mgmt

Required:
Pages 578-94, 597-608, 610-14

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)

Mar. 25

Growth Management Cont'd: Infrastructure and Concurrency, Urban Growth Boundaries; SECURING A SUFFICIENT HOUSING SUPPLY

Growth Mgmt

Required:
Pages 619-36, 647-56, 660-65

Optional:
Reducing Livability_How Sustainability Planning Threatens the American Dream

Oregon's Statewide Planning Goals

New Goal 14 (2006)

1000 Friends of Oregon

Mar. 27

Securing a Sufficient Housing Supply Cont'd: Inclusionary Zoning, Gov't Subsidy and Housing Linkage; HOUSING AND DISCRIMINATION

Growth Management Cont'd

Required:
Pages 670-82, 684-88, 697-705

Optional:
More on the Sacramento Linkage Program

Apr. 1

Housing and Discrimination Cont'd: The Fourteenth Amendment, Nontraditional Living Arrangements

Housing Discrim Cont'd & 14th Amend.

Required:
Pages 705-18, Dews v. Sunnydale (pdf) (19 pages)

 

Apr.3

Housing and Discrimination cont'd: Federal Statutory Limits; ENVIRONMENTAL PROTECTION

Required:
Pages 718-37, 739-52
Apr. 8

Environmental Protection Cont'd: Endangered Species, Hazardous Waste

Environmental Cont'd

Required:
Pages 752-62, 764-85
April 10

Environmental Protection Cont'd: Environmenal Impact Reporting Laws; URBAN REDEVELOPMENT, ECONOMIC DEVELOPMENT

Environmental Cont'd & Development

Required:
Pages 785-90, 797-814

Optional:
Rare Woodpecker Sends a Town Running for its Chain Saws, N.Y. Times, Sept. 27, 2006.

The Balcones Canyonland Plan

Apr. 15

Urban Redevelopment, Economic Development Cont'd: Dislocation, Public Use

Redevelopment & Development

Required:
Pages 817-830, 834-44

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]

Apr. 17

Urban Redevelopment, Economic Development Cont'd: Dislocation, Public Use, and Anticompetitiveness

Redevelopment & Development

Required:
Pages 845-53, 862-78
Apr. 22

SITING UNPOPULAR LAND USES

Environmental Justice

Required:
Pages 879-882 (stop at Eadie v. Town Board), 884-87, 901-05, 917-27

Apr. 24

PROTECTION OF CULTURAL AND AESTHETIC VALUES

Cultural and Aesthetic Values

Required:
Pages 929-30, 936-40, 944-60 (beginning with Note 10 at the bottom of p. 944)

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)

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.