rev. 8.1.17 land use and environmental law … use and environmental law syllabus fall 2017 ......

Rev. 8.1.17

LAND USE AND ENVIRONMENTAL LAW

SYLLABUS FALL 2017 Harvard Graduate School of Design 5206 / Harvard Kennedy School SUP-663

Professor Jerold S. Kayden

Mondays, Wednesdays, 11:30am to 1:00pm, Gund Hall 124

Jerold S. Kayden

Frank Backus Williams Professor of Urban Planning and Design

[email protected], 617-496-0830, Gund 323

Office Hours: Wednesdays, 2:00pm-4:00pm, Gund 323, or by appointment. Sign up

through Calendly for office hours or email me for an appointment request if office

hours do not work.

Teaching Fellow: Hanne Van Den Berg, Doctor of Design Candidate

[email protected]

I. COURSE DESCRIPTION

As a scarce and necessary resource, land triggers competition and conflict over its

possession and use. For privately owned land, the market manages much of the

competition through its familiar allocative price-setting framework. However, because

one person’s use of privately owned land affects the individual and collective interests of

others and because market mechanisms alone are not always adequate to protect or

promote such interests, laws enacted by legislative bodies, administered by government

agencies, and reviewed by courts play a significant role in determining the use of land.

Encompassed in local ordinances, higher-level legislation, administrative rules,

constitutions, judicial opinions, discretionary governmental decisions, and private

agreements, land use laws and environmental laws shape the look, feel, and socio-

economic dynamics of cities, suburbs, and rural areas worldwide. For example, zoning’s

use restrictions affect whether neighborhoods are homogeneous or heterogeneous, its

density and lot area restrictions scatter or cluster housing, its height and setback

restrictions sculpt the skyline. Environmental laws govern the extent to which land uses

pollute air, water, and land, whether habitat is available for endangered species, whether

wetlands are preserved, and whether individuals build in areas vulnerable to floods,

hurricanes, forest fires, and earthquakes.

Five critiques commonly track present-day applications of land use and

environmental laws in the United States. One critique asserts that traditional zoning

prevents the creation of communities best suited for the needs of modern-day populations

at home and work. A second critique asserts that land use and environmental laws exact

too heavy a toll on market operations and private property rights in ways harmful to

individuals at all income levels. A third critique condemns the capture of land use and

environmental laws by parochial interests, to the detriment of citywide and regional

interests as well as those of lower income individuals. A fourth critique claims that land

use laws stifle design creativity. A fifth critique sees the existing land use and

environmental law regime as inadequately addressing the existential threat of climate

change. Variations of some or all five critiques exist in countries around the world.

mailto:[email protected]

https://calendly.com/jkayden

HGSD 5206 / HKS SUP-663 (Fall 2017)

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This is a course about land use laws and environmental laws, introducing students

to their content and controversies. Although the course operates on the assumption that

incoming students have no legal knowledge or background, those with a background in

law can also benefit. Students will gain a working knowledge of popular legal

techniques, their implementing institutions, and their judicial reception, along with an

understanding of theories that explain and justify the demand for law’s control over

privately owned land. For pedagogical reasons, laws from the United States will be used

as primary sources, but comparisons and distinctions with laws in other countries will be

regularly made. Particular attention is paid to the impact of land use and environmental

laws on physical development patterns that themselves impact social, economic, and

aesthetic outcomes, to the increasing overlap between land use law and environmental

law, and to the tensions between individual and collective rights that sometimes find their

resolution in the courtroom under constitutional and other doctrines.

The role of non-lawyer professionals, such as planners, designers, public

policymakers, real estate developers, and community activists, in influencing, drafting,

and implementing land use and environmental laws, is unpacked. The course defines and

distinguishes law’s method from those employed by other disciplines and fields. Reading

assignments come from primary sources, such as legislation, judicial opinions, and

constitutions, as well as secondary sources such as law review articles, journal articles,

book excerpts, and professional reports. A written exercise requires students to examine

one provision in a zoning ordinance and draft its replacement. An oral final exam will

measure overall fluency with the subject matter.

The following laws are explored in the course:

• nuisance law

• “traditional” zoning

• “modern” zoning (planned unit developments, cluster zoning, special

districts, special permits, contextual zoning)

• “contemporary” zoning (form-based codes, traditional neighborhood

development codes)

• development approval processes

• subdivision controls

• growth management laws (caps, phased growth, moratoria, growth

boundaries, adequate public facilities, concurrency)

• developments of regional impact and areas of critical state concern

• environmental impact reviews

• water pollution laws

• air pollution laws

• wetlands laws

• brownfields laws

• endangered species laws

• environmental justice laws

• natural disaster, climate change, and sustainability laws

• public trust doctrine

• performance zoning

• incentive zoning

• inclusionary zoning

• linkage


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• exactions and impact fees

• community benefit agreements

• transfer of development rights

• design review and guidelines

• historic preservation laws

• billboard and sign laws

• adult entertainment laws

• freedom of religion laws

• eminent domain

• fair housing laws

• constitutional doctrines applied to government regulation of private

property (takings and just compensation, due process, equal protection,

freedom of speech, freedom of religion)

II. COURSE REQUIREMENTS

A. Class Attendance and Participation

Students are expected to attend classes and participate in discussions. Students must

participate in class discussion at least twice during the semester at times of their own

choosing.

B. Reading Assignments

Students are asked to spend an average of two hours per class on reading assignments,

posted on the Canvas course website.

C. Zoning Exercise

The written Zoning Exercise asks students to choose a provision from the Cambridge,

Massachusetts zoning ordinance, analyze and critique its on-the-ground impact, and draft

an amendment to improve or substitute for that provision. The exercise is 1,000 words,

excluding word count for the draft amendment and graphics.

D. Final Exam

The Final Exam is an oral exam administered at Gund Hall at a scheduled time during the

Design School’s final exam period, December 11-14. The precise date will be announced

as soon as the school administration sets it several weeks into the semester.

E. Grading

The Zoning Exercise and Final Exam each count for 50% of the grade. Effective class

participation may increase a grade at the margin.

III. COURSE SCHEDULE

1. Wednesday, August 30: Introduction to the Theory and Practice of Land Use Law

and Environmental Law

• What is law?

• Law makers, law administrators, law reviewers


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• Role of non-lawyers and lawyers

• Law versus policy

• How does law compare with other disciplinary and professional approaches?

• Justifications and critiques of land use law and environmental law

Required Reading:

1. Jerold S. Kayden, “Why Implementation Matters,” Harvard Design Magazine,

No. 37 (Winter 2014) (If you don’t have a chance to read this article before

attending the first class, that is fine but do read it thereafter.)

Background Reading:

1. Richard Posner, The Problems of Jurisprudence (Cambridge: Harvard

University Press 1990), pp. 1-33

Monday, September 4: No class, Labor Day Holiday

2. Wednesday, September 6: What Is Property?

• Who owns the fox?

• Who owns land?

• What are the “rights” “owned” in land?

Required Reading:

1. Pierson v. Post, 3 Caines 175 (N.Y.S.Ct. 1805)

2. John Locke (Peter Laslett editor), Two Treatises of Government (Cambridge:

Cambridge University Press 1990), pp. 288-297, sections 28-41

3. Roger Cunningham, William Stoebuck, and Dale Whitman, The Law of

Property (St. Paul: West 1984), pp. 1-7

Background Reading:

1. Robert C. Ellickson, “Property in Land,” 102 Yale L.J. 1315 (1993)

2. Frank I. Michelman, “Ethics, Economics, and the Law of Property,” in J.

Noland Pennock and John W. Chapman, editors, Ethics, Economics, and the Law,

NOMOS series-24 (New York: New York University Press 1982)

3. Wesley N. Hohfeld, “Some Fundamental Legal Conceptions as Applied in

Judicial Reasoning,” 23 Yale L.J. 16, 28-57 (1913)

4. Troy A. Rule, “Airspace in an Age of Drones,” 95 B.U. L.Rev. 155 (2015)

3. Monday, September 11: The Common Law of Nuisance


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• What is the common law?

• What is judge-made law?

• Objective versus subjective standards

• First in time first in right

• Balancing tests

• Law and economics

• Policy considerations

Required Reading:

1. Pendoley v. Ferreira, 342 Mass. 309, 187 N.E.2d 142 (1963)

2. Prah v. Maretti, 108 Wis.2d 223, 321 N.W.2d 182 (1982)

Background Reading:

1. A. Mitchell Polinsky, An Introduction to Law and Economics (Boston: Little,

Brown 1983) pp. 7-10 (efficiency and equity), pp. 11-14 (Coase theorem), pp. 15-

24 (nuisance law)

4. Wednesday, September 13: The Origins of Zoning and Its Relation to Planning

• Purposes

• Districts

• Uniform treatment

• Relationship to planning

• Relationship to public infrastructure investments

• State and local powers

Required Reading:

1. United States Department of Commerce, A Standard State Zoning Enabling Act

(Washington, DC: Government Printing Office 1924)

2. United States Department of Commerce, A Standard City Planning Enabling

Act (Washington, DC: Government Printing Office 1927), read Sections 6, 7, 9

Background Reading:

1. Ruth Knack, Stuart Meck, and Israel Stollman, “The Real Story Behind the

Standard Planning and Zoning Acts of the 1920s,” Land Use Law, American

Planning Association February 1996, pp. 3-9

2. Stuart Meck, “Model Planning and Zoning Enabling Legislation: A Short

History,” in Modernizing State Planning Statutes: The Growing Smart Working


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Papers, Volume One, PAS Report 462/463 (Chicago: American Planning

Association 1996), pp. 1-17

3. Sonia A. Hirt, Zoned in the USA: The Origins and Implications of American

Land-Use Regulation (Ithaca: Cornell U. Press 2014), pp. 133-77

4. Charles M. Haar, “In Accordance with a Comprehensive Plan,” 68 Harv. L.R.

1154 (1955)

5. T. J. Kent, Jr., The Urban General Plan (San Francisco: Chandler Publishing

1964), pp. 4-26

6. Roderick Hills and David Schleicher, “Planning an Affordable City,” 101 Iowa

L.R. 91 (2015)

5. Monday, September 18: “Traditional” Zoning

NOTE: Zoning Exercise is assigned today, due Monday, October 30

• The zoning trio: use, density, shape

• The zoning map

• Non-conforming uses

• Variances

• Amendments

• Enforcement

• Subdivision

Required Reading:

1. Skim the entire Cambridge Zoning Ordinance, located on-line, to understand

how a typical local zoning law controls the use of privately owned land. As you

are reading, consider what parts of the ordinance interest you for purposes of the

Zoning Exercise.

http://www.cambridgema.gov/CDD/zoninganddevelopment/Zoning/Ordinance.as

px

2. Richard Babcock, The Zoning Game (Madison: University of Wisconsin Press

1966), pp. 126-137

3. Massachusetts Subdivision Control Law, Chapter 41, Section 81L

Background Reading:

1. Seymour I. Toll, Zoned American (New York: Grossman 1969), pp. 143-210

http://www.cambridgema.gov/CDD/zoninganddevelopment/Zoning/Ordinance.aspx

http://www.cambridgema.gov/CDD/zoninganddevelopment/Zoning/Ordinance.aspx


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6. Wednesday, September 20: The Constitutional Framework for Reviewing

Governmental Control of Privately Owned Land: The Police Power, Due Process,

and Equal Protection

• What is the police power?

• Substantial relation to public health, safety, morals, or general welfare

• Arbitrary and capricious

• Presumption of validity and fairly debatable

• Role of judges

Required Reading:

1. Excerpts from United States Constitution: Due Process Clause, Equal

Protection Clause

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

3. Jerold S. Kayden, “Judges as Planners: Limited or General Partners?,” in

Charles M. Haar and Jerold S. Kayden, editors, Zoning and the American Dream:

Promises Still to Keep (Chicago: Planners Press 1989), pp. 223-228

Background Reading:

1. William M. Randle, “Professors, Reformers, Bureaucrats, and Cronies: The

Players in Euclid v. Ambler,” in Charles M. Haar and Jerold S. Kayden, editors,

Zoning and the American Dream: Promises Still To Keep (Chicago: Planners

Press 1989), pp. 31-69

2. Michael Allan Wolf, The Zoning of America: Euclid v. Ambler (Lawrence:

University Press of Kansas 2008), pp. 32-134

3. Nectow v. City of Cambridge, 277 U.S. 183 (1928)

7. Monday, September 25: The Constitutional Framework for Reviewing

Governmental Control of Privately Owned Land: Regulatory Takings

• Police power versus eminent domain power

• Due process versus takings

• Average reciprocity of advantage

• “Goes too far”

• Penn Central three-part test: economic impact, distinct investment-backed

expectations, character of the governmental action

• “Parcel as a whole” and the “denominator” question

• Denial of all economically viable, beneficial, productive, or feasible use

• Background principles of property or nuisance law

• Public Trust Doctrine

• Physical invasions


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• Public use

• Just compensation

• Ripeness

• Vested rights

• State constitutions

• Property rights legislation

Required Reading:

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

2. Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), read pp. 1003-

1032 (majority opinion)

3. Rachelle Alterman, Takings International: A Comparative Perspective on Land

Use Regulation and Compensation Rights (Chicago: American Bar Association

2011), pp. 75-89

Background Reading:

1. Jerold S. Kayden, “Charting the Constitutional Course of Private Property:

Learning from the 20th Century,” in Harvey M. Jacobs, editor, Private Property in

the 21st Century: The Future of an American Ideal (Northampton: Elgar 2004),

pp. 31-49

2. First English Evangelical Lutheran Church v. Los Angeles, 482 U.S. 304

(1987)

3. Just v. Marinette County, 56 Wis.2d 7, 201 N.W.2d 761 (1972)

8. Wednesday, September 27: “Modern” Zoning: Planned Unit Developments,

Cluster Zoning, Special Districts, Special Permits

• How uniform is uniformity?

• Rule (as-of-right/matter-of-right/by-right) versus discretion

• Illegal “spot zoning”

Required Reading:

1. Rockhill v. Chesterfield Tp., 23 N.J. 117, 128 A.2d 475 (1957)

2. Rodgers v. Village of Tarrytown, 302 N.Y. 115 (1951)

3. Office of Lower Manhattan Development, Office of the Mayor, City of New

York, Special Greenwich Street Development District (1971), skim pp. 3-38

Background Reading:


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1. Robert S. Cook, Jr., Zoning for Downtown Urban Design (Lexington, MA:

Lexington Books 1980), pp. 91-98 (special districts)

2. Richard F. Babcock and Wendy U. Larsen, Special Districts: The Ultimate in

Neighborhood Zoning (Cambridge: Lincoln Institute of Land Policy 1990), pp.

137-147

3. Jonathan Barnett, Urban Design as Public Policy (New York: Architectural

Record 1974), pp. 30-67

4. Richard Weinstein, “How New York’s Zoning Was Changed to Induce the

Construction of Legitimate Theaters,” in Norman Marcus and Marilyn W. Groves,

editors, The New Zoning: Legal, Administrative, and Economic Concepts and

Techniques (New York: Praeger 1970), pp. 130-138

5. “A Conversation with Raquel Ramati,” Urban Omnibus (March 30, 2011)

6. Randall Arendt, Rural By Design: Maintaining Small Town Character

(Chicago: Planners Press 1995), pp. 70-71, 74-75

7. Massachusetts Zoning Act, Chapter 40A, Section 9

8. Brian W. Blaesser, Discretionary Land Use Controls (West 2011), pp. 27-35

9. Monday, October 2: The Development Approval Process

• Should neighbors and neighborhoods be given a louder voice?

• NIMBY (not in my back yard), BANANAS (build absolutely nothing anywhere

near anything), NDMTO (not during my term of office)

Required Reading:

1. City of Boston, A Citizen’s Guide to Development Review under Article 80 of

the Boston Zoning Code (2014)

2. New York City, Uniform Land Use Review Procedure (ULURP)

10. Wednesday, October 4: “Contemporary” Zoning: Traditional Neighborhood

Development (TND) Ordinances, Form-Based Codes

• What’s new?

• New Urbanism’s engagement with implementation (law, finance, politics)

• What about use?

Required Reading:

1. James Howard Kunstler, “Home From Nowhere,” in The Atlantic Monthly,

Sept. 1996, pp. 43-66


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2. Ordinance No. O-11-88, Kentlands, Maryland (adopted by City Council of

Gaithersburg, Maryland, Nov. 7, 1988)

3. Traditional Neighborhood Design Guidelines (undated)

4. Skim Miami 21 Zoning Code (2017)

http://www.miami21.org/zoning_code.asp

5. Daniel G. Parolek, Karen Parolek, and Paul C. Crawford, Form-Based Codes:

A Guide for Planners, Urban Designers, Municipalities, and Developers

(Hoboken: John Wiley & Sons 2008), pp. 3-58

6. Jerold S. Kayden, “Reconsidering Zoning: Expanding an American Land-Use

Frontier,” Zoning Practice, Issue No. 1 (American Planning Association, January

2004), pp. 2-13

Background Reading:

1. Michael Kwartler, “Legislating Aesthetics: The Role of Zoning in Designing

Cities,” in Charles M. Haar and Jerold S. Kayden, editors, Zoning and the

American Dream: Promises Still to Keep (Chicago, Planners Press 1989), pp.

187-220 SHOULD THIS BE MOVED?

2. Emily Talen, City Rules: How Regulation Affects Urban Form (Washington,

D.C.: Island Press 2011), pp. 127-73

3. Hugh Ferriss, Power In Buildings (Santa Monica: Hennessey & Ingalls 1998),

excerpts

11. Monday, October 9: Local Growth Management

• Is there an obligation to grow and provide infrastructure?

• Caps and Phasing

• Concurrency, Adequate Public Facilities, Infrastructure Schedules

• Moratoria

• Fiscal zoning

• Local versus regional

Required Reading:

1. National Land and Investment Co. v. Easttown Township, 419 Pa. 504 (1965),

read pp. 518-33

2. Golden v. Planning Board of Ramapo, 30 N.Y.2d 359, 285 N.E.2d 291, 334

N.Y.S.2d 138, app. dismissed, 409 U.S. 1003 (1972)

Background Reading:

http://www.miami21.org/zoning_code.asp


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1. Construction Industry of Sonoma County v. Petaluma, 522 F.2d 897 (1975),

cert. denied, 424 U.S. 934 (1976)

12. Wednesday, October 11: Exclusionary Zoning

• Income and race

• Intent and effect

• What is a family?

• Fair share

• Regionalism

• Role of judges

• Locally Unwanted Land Uses (LULUs) and Not In My Back Yard (NIMBY)

• Fair Housing

Required Reading:

1. Southern Burlington County NAACP v. Mount Laurel, 67 N.J. 151, 336 A.2d

713, app. dismissed and cert. denied, 423 U.S. 808 (1975)

2. Massachusetts “Anti-Snob” Zoning Act, Mass. G.L. Ann., Ch. 40B, Sections

20-23

3. United States Department of Housing and Urban Development, AFFH Fact

Sheet: The Duty to Affirmatively Further Fair Housing (undated)

Background Reading:

1. Charles M. Haar, Suburbs Under Siege: Race, Space, and Audacious Judges

(Princeton: Princeton University Press 1996), pp. 15-126

2. Moore v. City of East Cleveland, 431 U.S. 494 (1977)

3. Village of Belle Terre v. Boraas, 416 U.S. 1 (1971)

4. City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985)

13. Monday, October 16: Exactions, Impact Fees

• Essential nexus

• Rough proportionality

• Legislative rule versus case-by-case discretion

• Planning studies

Required Reading:

1. Nollan v. California Coastal Commission, 483 U.S. 825 (1987)


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

Background Reading:

1. Koontz v. St. Johns River Water Management District, 568 U.S. __ (2013)

2. Jerold S. Kayden, “Land-Use Regulations, Rationality, and Judicial Review:

The RSVP in the Nollan Invitation (Part I),” 23 Urban Lawyer 301 (1991), pp.

301-331

14. Wednesday, October 18: Inclusionary Zoning and Linkage

• Contrast with “exclusionary” zoning

• Mandatory versus mandatory with sweetener versus voluntary

• Planning studies

• On-site versus off-site

• “Poor door” and equal quality of development

Required Reading:

1. New York City, Mandatory Inclusionary Housing Zoning Text, March 24,

2016, skim the entire law

2. Jerold S. Kayden, “Inclusionary Zoning and the Constitution,” in National

Housing Conference, Affordable Housing Policy Review, volume 2, issue 1

(January 2002), pp. 10-13

Background Reading:

1. Jerold S. Kayden and Robert Pollard, “Linkage Ordinances and Traditional

Exactions Analysis: The Connection Between Office Development and Housing,”

50 Law and Contemporary Problems 127 (1987)

15. Monday, October 23: Incentive Zoning and Transfer of Development Rights

• Market-based approaches

• Zoning for sale

• How to determine the nature of “voluntary”?

• Competition between incentive zoning and TDR

• Value capture and value sharing

Required Reading:

1. Jerold S. Kayden, “Zoning for Dollars: New Rules for an Old Game?

Comments on the Municipal Art Society and Nollan Cases,” 39 Washington

University Journal of Urban & Contemporary Law 3 (1991), pp. 3-30


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2. John J. Costonis, Space Adrift (Urbana: University of Illinois Press 1974), pp.

28-36

Background Reading:

1. Terry J. Lassar, Carrots & Sticks: New Zoning Downtown, (Washington, D.C.:

Urban Land Institute 1989), pp. 12-15

2. Fred F. French Investing Co. v. New York, 39 N.Y.2d 587, 350 N.E. 2d 381

(1976)

16. Wednesday, October 25: Regional Growth Management

• “Smart growth”

• State laws

• Regional agencies

• Developments of Regional Impact

• Areas of Critical State Concern

• Urban growth boundaries

• Overlap with environmental law regimes

Required Reading:

1. David L. Callies, “The Quiet Revolution Revisited: A Quarter Century of

Progress,” in Modernizing State Planning Statutes: The Growing Smart Working

Papers, Volume One, PAS Report 462/463 (Chicago: American Planning

Association 1996), pp. 19-26

2. James Berry, “Areas of Critical State Concern,” in Modernizing State Planning

Statutes: The Growing Smart Working Papers, Volume One, PAS Report 462/463

(Chicago: American Planning Association 1996), pp. 105-109

3. Marya Morris, “Approaches to Regulating Developments of Regional Impact,”

in Modernizing State Planning Statutes: The Growing Smart Working Papers,

Volume One, PAS Report 462/463 (Chicago: American Planning Association

1996), pp. 111-124

Background Reading:

1. Jerold S. Kayden, “The Constitution Neither Prohibits Nor Requires Smart

Growth,” in Terry S. Szold and Armando Carbonell, editors, Smart Growth: Form

and Consequences (Cambridge: Lincoln Institute of Land Policy 2002), pp. 159-

179

17. Monday, October 30: The Theory and Practice of Environmental Laws and

Institutions: From Legislation to Administrative Action to Judicial Review

NOTE: Zoning Exercise is due in class.


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• Relationship between environmental law and land use law

• Goal-setting and the place of science, economics, politics

• Command and control vs. market-based regulatory approaches

• Rules

• Cost-benefit analysis

• Judicial review

• Substantial evidence

• Role of citizens and non-governmental organizations

• Levels of government

Required Reading:

1. James Salzman and Barton H. Thompson, Jr., Environmental Law and Policy,

4th Edition (Foundation Press 2014), pp. 3-49 (Introduction to Environmental Law

and Policy and Perspectives on Environmental Law and Policy); 51-86 (The

Practice of Environmental Protection); 87-108 (Enforcement)

2. Jerold S. Kayden, “National Land Use Planning in America: Something Whose

Time Has Never Come,” 3 Washington University Journal of Urban &

Contemporary Law 445 (2000)

Background Reading:

1. Patricia Wald, “The Role of the Judiciary in Environmental Protection,” 19

Boston College Environmental Affairs Law Review 519 (1992), pp. 519-46

2. Richard Stewart, “Models for Environmental Regulation: Central Planning

Versus Market-Based Approaches,” 19 Boston College Environmental Affairs

Law Review 547 (1992), pp. 547-top of 555

3. Jerold S. Kayden, “Market-Based Regulatory Approaches: A Comparative

Discussion of Environmental and Land Use Techniques in the United States,” 19

Boston College Environmental Affairs Law Review 565 (1992)

18. Wednesday, November 1: Environmental Impact Reviews

• Advisory versus substantive

• Instrumental use of statutes

• How does it compare to land use development reviews?

• State copycats

Required Reading:

1. James Salzman and Barton H. Thompson, Jr., Environmental Law and Policy, 4th

Edition (Foundation Press 2014), pp. 333-349 (Environmental Impact Statements)


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2. National Environmental Policy Act of 1969, 42 USC Section 4331

3. Massachusetts Environmental Policy Act, Ch. 30, Sec. 61

4. Woodland Village Environmental Notification Form, October 28, 2011

5. Proposed Medical Office Building Environmental Notification Form, October,

2011

6. Concerned Citizens of Cattaraugus County, Inc., [New York] State Environmental

Quality Review Act: A Citizens Primer (May 3, 2009)

19. Monday, November 6: Air Pollution and Water Pollution from Land Uses

• Single media

• Metropolitan planning organizations (MPO)

• Planning scales

• VMTs and land performance

• Pollution permits and trading

• Non-point source water pollution

• Right to farm

• Performance zoning

Required Reading:


4th Edition (Foundation Press 2014), pp. 111-139 (Air Pollution), 141-172 (Global

Air Pollution), 173-203 (Water Pollution)

2. Excerpts from Clean Air Act, 42 USC Section 7401, skim for basic

understanding rather than full mastery

3. Excerpts from Clean Water Act (Federal Water Pollution Control Act

Amendments of 1972), skim for basic understanding rather than full mastery

Background Reading:

1. 23 USC Section 134, Metropolitan Transportation Planning, read for basic

understanding rather than full mastery

2. Federal Highway Administration/Federal Transit Administration, The

Transportation Planning Process (2007), pp. 3-13, 15-22, 29-31, 34-38

20. Wednesday, November 8: Wetlands, Habitats, Endangered Species, and Land

Use

• No net loss


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• Expansive use of critical habitat application

Required Reading:


4th Edition (Foundation Press 2014), pp. 271-310 (Wetlands, Endangered Species,

and the Public Trust)

2. Excerpts from Clean Water Act

3. Excerpts from Endangered Species Act

Background Reading:

1. TVA v. Hill, 437 U.S. 153 (1978)

2. Lane Kendig, Performance Zoning (Chicago: Planners Press 1980), pp. 24, 26-

28, 30-31

21. Monday, November 13: Brownfields and Environmental Justice

• Strict liability versus negligence

• Joint and several liability

• “Fair” distribution of land uses

Required Reading:


4th Edition (Foundation Press 2014), pp. 231-267 (Waste Management)

2. Charles Bartsch, Getting Started with Brownfields – Key Issues and

Opportunities: What Communities Need to Know, Northeast-Midwest Institute

(April 2006)

3. Excerpts from CERCLA/Superfund laws

4. Executive Order 12898: Federal Actions to Address Environmental Justice in

Minority Populations and Low-Income Populations (February 11, 1994)

Background Reading:

1. Environmental Protection Agency, Brownfields Federal Programs Guide

(2013)

22. Wednesday, November 15: Eminent Domain

• Definition of public use

• Primary versus incidental purpose


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• National and state legislation

Required Reading:

1. Berman v. Parker, 348 U.S. 26 (1954)

2. Kelo v. City of New London, 545 U.S. 469 (2005)

Background Reading:

1. Harvey Jacobs and Ellen M. Bassett, “All Sound, No Fury? The Impacts of

State-Based Kelo Laws,” Planning and Environmental Law, Vol. 63, No. 2,

February 2011

23. NOTE: CLASS WILL BE RESCHEDULED Monday, November 20: Design

Review and Historic Preservation

• Design review and design guidelines

• Is it about aesthetics?

• Objective versus subjective

• Compatibility, harmony, consistency

• Individual landmarks and historic districts

• Historic versus community character

• Due process, free speech, takings

• Local, national, international laws

Required Reading:

1. Reid v. Architectural Board, 119 Ohio App. 67, 192 N.E.2d 74 (1963)

2. Morristown Road Associates v. Mayor, 163 N.J. Super. 58, 394 A.2d 157

(1978)

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

(reread majority opinion)

Background Reading:

1. Jerold S. Kayden, “Breaking the ‘Code’ of Design Codes: A First Step Toward

Thoughtful Discussion,” in Perspecta 35, The Yale Architectural Journal (2004)

2. Christopher J. Duerksen and R. Matthew Goebel, Aesthetics, Community

Character, and the Law, Scenic America/American Planning Association

Planning Advisory Service Report Number 489/490 (1999), pp. 87-108

3. John J. Costonis, Icons and Aliens (Urbana: University of Illinois Press 1989)


of 19

4. Jerold S. Kayden, “Redevelopment and the Human Factor,” Washington Post

September 23, 1990

5. Hanna v. City of Chicago, Circuit Court Cook County, Illinois, No. 06 CH

19422, May 2, 2013

6. National Trust for Historic Preservation, Federal Historic Preservation Laws at

a Glance (2011)

7. Section 106 of the National Historic Preservation Act

8. World Heritage Centre UNESCO and Intergovernmental Committee for the

Protection of the World Cultural and Natural Heritage, Operational Guidelines for

the Implementation of the World Heritage Convention (January 2008)

Wednesday, November 22: NO CLASS, Thanksgiving Break

24. Monday, November 27: Land Use as Speech and Religion: Billboards, Adult

Entertainment, Religious Facilities

Required Reading:

1. Metromedia, Inc. v. San Diego, 453 U.S. 490 (1981)

3. Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA)

2. Young v. American Mini Theatres, 427 U.S. 50 (1976)

Background Reading:

1. Jerold S. Kayden, “Statutory Preference for Religious Land Use: Divining What

is Religious and What is Reasonable,” in Land Use Law & Zoning Digest,

September 2001, pp. 3-6

25. Wednesday, November 29: Resilience, Sustainable Development, Climate

Change, Natural Disasters

• Definitions of sustainability, resilience, adaptation, and mitigation

• Buzzwords or meaningful paradigms?

• Energy and land use

• Risk and insurance

• Cumulative impact

• Precautionary principle

• Ethics of planning and design

Required Reading:


of 19

1. City of New York, PlaNYC Update (April 2011), pp. 2-19, then read two

chapters from the report

2. Edna Sussman and David C. Major, “Chapter 5: Law and Regulation” in

Annals of the New York Academy of Sciences 1196 (2010), pp. 87-112

3. Hurricane Sandy Rebuilding Task Force, Hurricane Sandy Rebuilding Strategy,

August 2013

JSK/jk/8.1.17

rev. 8.1.17 land use and environmental law … use and environmental law syllabus fall 2017 ......

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