Land Use
Infrastructure Sharing in Cities
This Essay reflects on the ways that cities engaged in “infrastructure sharing” during the pandemic, and the implications for the potential of cities to address infrastructure inequity. The Essay argues that while cities found creative ways to repurpose public spaces, more can be done to repurpose their proprietary assets.
Making the Temporary Permanent: Public Space in a Postpandemic World
Local governments are deciding whether to retain modifications to the built environment implemented during the pandemic. While these sidewalk and street reconfigurations provide health and economic benefits, they also harm already-underrepresented community members. This Essay weighs these positive and negative implications to enable informed decision-making and create more equitable spaces.
Public Rights of First Refusal
This Note provides the first study of public rights of first refusal, an underappreciated land-use power that governments use to acquire property. It argues that these rights can, under certain conditions, provide a means of balancing individual and collective needs that is superior to both eminent domain and regular purchasing.
"We Don't Follow, We Lead": How New York City Will Save Mortgage Loans by Condemning Them
(Re)Solving the Tribal No-Forum Conundrum: Michigan v. Bay Mills Indian Community
Michigan v. Bay Mills Indian Community, a dispute over a controversial off-reservation Indian casino, is the latest opportunity for the Supreme Court to address the doctrine of tribal sovereign immunity. The Court could hand Michigan a big win by broadly abrogating tribal immunity, and in turn wreak havoc on modern tribal governance. Alternately, the Court could hand Bay Mills a victory by affirming the tribe’s immunity, effectively precluding judicial review of the tribe’s casino project. In this Essay, Professor Matthew L.M. Fletcher argues that neither choice is preferable to a third option that would both advance tribal self-determination and hold tribes accountable to outsiders. The Court could condition tribal immunity in federal or state court on whether the tribe has solved the no-forum problem by providing a tribal forum for the resolution of important disputes.
Searching for Balance in the Aftermath of the 2006 Takings Initiatives
116 Yale L.J. 1518 (2007) The partial regulatory takings movement seeks to compensate private landowners when regulations diminish their land values. This movement has grown in recent years, particularly at the state level. Scholars have focused thus far on the cost of compensation and its effect on the regulations that governments enact or enforce. In addition to exploring those concerns, this Note argues that partial regulatory takings regimes threaten to constrain residents’ ability to influence their communities’ growth and character. The greatest impact could fall on low-income communities, many of which contain disproportionate levels of undesirable land uses and lack adequate financial resources to influence land use planning in the absence of regulatory solutions or alternative venues. To address these problems, state and local governments should implement what I call a “regulatory balances” regime, strengthening participatory planning venues and funding the resulting measures.
Private Law or Social Norms? The Use of Restrictive Covenants in Beaver Hills
116 Yale L.J. 1302 (2007) This Note provides a detailed history of the use of restrictive covenants in Beaver Hills, a planned residential subdivision built in New Haven between 1908 and the end of the 1930s. It analyzes these covenants in light of both the relevant common law of servitudes and the contemporary evolution of public land use regulation, most notably zoning. These analyses reveal that restrictive covenants in this era are best understood as a form of signaling and social norms rather than as a form of private law.
Living History: How Homeowners in a New Local Historic District Negotiate Their Legal Obligations
116 Yale L.J. 768 (2007) American historic preservationists are increasingly emphasizing the need to preserve not only prominent landmarks, but also the vernacular architectural culture of "ordinary neighborhoods." Preserving such neighborhoods often requires convincing homeowners to agree to legal restrictions on how they maintain their homes, yet to date, there has been no empirical research on how homeowners have responded to the policy tradeoffs inherent in making such a decision. This Note fills that gap, using extensive original empirical research to examine how homeowners in New Haven's recently approved City Point Local Historic District viewed and managed their legal obligations. This Note then draws upon these data to develop policy recommendations for improving local preservation efforts nationwide.
Save the Cities, Stop the Suburbs?
116 Yale L.J. 598 (2006) Sprawl: A Compact History BY ROBERT BRUEGMANN CHICAGO: UNIVERSITY OF CHICAGO PRESS, 2005. PP. 306. $27.50 The City: A Global History BY JOEL KOTKIN NEW YORK: MODERN LIBRARY CHRONICLES, 2005. PP. 256. $21.95
A Walk Along Willard: A Revised Look at Land Use Coordination in Pre-Zoning New Haven
115 Yale L.J. 116 (2005) This Note seeks to forge a richer understanding of the costs and benefits of zoning. To accomplish its goal, this Note assesses and critiques Andrew Cappel's A Walk Along Willow. This Note asks and answers three questions: (1) Are Cappel's findings about land use patterns replicated in areas more representative of the city? (2) Did Cappel correctly assess New Haven's initial encounter with zoning in the 1920s? and (3) Was the implementation of zoning in New Haven worthwhile? This Note quantitatively demonstrates the serious tradeoffs between government regulation and strong private property rights, and concludes that previous studies of New Haven have oversimplified the knotty problems posed by land use regulation.
Appurtenancy Reconceptualized: Managing Water in an Era of Scarcity
113 Yale L.J. 1909 (2004) I. THE NEED TO REASSESS REGULATED RIPARIANISM Until recently, the eastern United States has been blessed with an abundance of water; unlike the arid West, shortages in the East have historically been "rare and short-lived." During the past few decades, however, water has increasingly become scarce, due to recurring droughts and burgeoning urban and suburban populations. A severe drought struck the East Coast in 2002, forcing residents in rural Maine to stop flushing toilets and washing dishes, significantly damaging crops in the Midwest, and leading New Jersey to ban lawn watering. But that drought was only the latest and harshest of several that have hit the region since the 1980s. Rapid population growth and commercial development in and around eastern cities have also contributed to shortages, in some cases leading to interstate disputes. Scientists predict that erratic precipitation patterns will persist, producing recurring droughts in years to come; continued growth in demand will only exacerbate the consequences of weather shifts. For policymakers, water shortages present three central challenges. First and most obviously, scarcity reminds us of the limits of our natural resources, and forces us to consider conservation measures. Second, scarcity requires that we assess the efficiency of water allocation and usage. Third--especially in the context of water, a universally necessary resource--equity demands that basic needs be met, and that one group of users not be allowed to exclude another group from an essential resource. In recent decades, water shortages have compelled eastern lawmakers to face these three issues--conservation, efficiency, and equity--directly. The result has been growing dissatisfaction with the legal regime that had historically governed the distribution of water rights in the East: common law riparianism.
A Missed Opportunity: Nonprofit Antitrust Liability in Virginia Vermiculite, Ltd. v. Historic Green Springs, Inc.
113 Yale L.J. 533 (2003) The antitrust laws are meant to govern and promote competition. But how antitrust law should treat nonprofit organizations, whose objectives lie outside the commercial sphere but whose actions nevertheless have economic consequences, is not settled. The Fourth Circuit recently confronted this issue in Virginia Vermiculite, Ltd. v. Historic Green Springs, Inc., in which Virginia Vermiculite, Ltd. (VVL) sued both a competing vermiculite mining company, W.R. Grace & Co. (Grace), and Historic Green Springs, Inc. (HGSI), a nonprofit dedicated to land preservation, under federal and state antitrust and unfair trade laws. Grace had made a series of land donations to HGSI, which VVL claimed had been intended to exclude it from vermiculite reserves in Virginia. In upholding the district court's summary judgment for HGSI, the Fourth Circuit characterized the transactions as unilateral "gift[s]" that HGSI had passively accepted without exercising any "right or economic power." This Comment argues that the court's approach was mistaken. Although the court may not have wanted to expose a nonprofit to liability, its decision did little to clarify how antitrust law should treat such an entity. Had the court engaged in more complete analysis, rather than focusing on a formal category ("gift"), it would have recognized that Grace's donations constituted concerted action, and not merely a gift. Such analysis would have allowed the court to address more directly whether and how nonprofits may be liable under the antitrust laws. Or, if the court wished to avoid these questions, it should have relied on the facts of the case, which showed that VVL had proven neither anticompetitive effect nor antitrust injury, as required under section 1 of the Sherman Act. Instead, the court's decision both failed to recognize the defendants' concerted action and overlooked the question of competitive effect, thereby missing an opportunity to guide courts and businesses as to the proper scope of the antitrust laws.
Billboards and Big Utilities: Borrowing Land-Use Concepts To Regulate "Nonconforming" Sources Under the Clean Air Act
112 Yale L.J. 2553 (2003) I have suggested the incorporation of amortization provisions as a potential solution to the continued emissions problem posed by coal-burning electric utilities built prior to the original Clean Air Act. Thirty years after the Act's passage, these problematic sources have not, as the original framers of the Act hoped, died after a "natural life" of thirty or forty years. Instead, the Act's "old-new" division in pollution-control technology requirements has, perversely, conferred unforeseen economic advantages and extended the lives of these outdated plants. Although the New Source Review and Prevention of Significant Deterioration programs have had minor success in narrowing the old-new divide, the majority of old sources remain untouched by the dictates of increasingly stringent control technology requirements imposed upon their new source counterparts. Today, the threat of an expanding old-new divide looms even larger. A broadening of the interpretation of "routine modification" proposed by the Bush Administration EPA would serve to further cement the grandfathered status of old electric utilities. Proponents of the rules change contend that owners of these utilities face a Hobson's choice, deterring them from modernizing their plants and making efficient changes for fear of triggering NSR/PSD pollution-control technology requirements. Indeed, the incentives for making efficient changes to grandfathered sources are perverse. It is a perversity that has evolved from trying to achieve un-grandfathering through the back door, so to speak. But, it is also a perversity that has arisen and been addressed in another context: the land-use context. Using the evolution of zoning law as a guide, a takings-friendly solution to this "Hobson's choice" becomes visible: the imposition of uniform amortization provisions. The conceptual problem posed by old, coal-burning utilities in the context of air pollution regulation has proven highly analogous to the problem of nonconforming uses in the zoning context. Preexisting nonconforming uses in the land-use context could not be abolished outright without compensation due to the constitutional protection afforded property owners against unjust takings. In response to this problem, a pattern of land-use doctrine emerged that is remarkably similar to the evolution of air pollution regulation over the past thirty years. Namely, restrictions were put upon the ability of a nonconforming-use owner to make changes to her property. If the owner made any significant changes to the nonconforming use, the use would no longer be permitted to continue. Similarly, after the enactment of the NSR and PSD programs in the 1977 CAA Amendments, any "major modification" would render a grandfathered facility "good as new" for regulatory purposes. In both cases, these attempts to rein in old, nonconforming facilities proved insufficient. In the zoning context, however, the technique of amortization emerged as a way to eliminate nonconforming uses provided that the amortization period was reasonable. This technique was never incorporated into the air pollution context, and, in this Note, I contend that this omission was a mistake that should be remedied through immediate legislative action. While the specifics of an amortization program, which would replace the NSR and PSD programs in dealing with the electric utilities built prior to the original CAA, are beyond the scope of this Note, I highlight one important guideline in the establishment of "reasonable" amortization periods--the use of full-time baselines, which would mandate that BACT requirements be met in a few years. Also, because old plants have been afforded unforeseen economic advantages as a result of the two-tiered framework established thirty years ago, the "amortization compensation equation," a vein of judicial reasoning that emerged in the billboard context, has particular relevance. Although the view of amortization as compensation due to the monopolistic position afforded the owners of a nonconforming use has decreased in popularity in the context of aesthetic billboard regulation, the shift is a result of a highly contentious and questionable amendment to the Highway Beautification Act. If ever a situation merited the legislative resuscitation of the amortization compensation equation, the problem posed by grandfathered electric utilities seems the ideal scenario. In this way, through the careful incorporation of amortization provisions mandating the imposition of best available control technology for old sources, the thirty- to forty-year un-grandfathering erroneously imagined by the original framers of the 1970 Clean Air Act can at last become a plausible, effective, and long awaited reality.
Architecture as Crime Control
111 Yale L.J. 1039 (2002) Building on work in architectural theory, Professor Katyal demonstrates how attention to cities, neighborhoods, and individual buildings can reduce criminal activity. The field of cyberlaw has been transformed by the insight that architecture can regulate behavior in cyberspace; Professor Katyal applies this insight to the regulation of behavior in real space. The instinct of many attorneys is to focus on criminal law as the dominant method of social control without recognizing physical constraints--constraints that are sometimes even shaped by civil law. Ironically, even an architectural problem in crime control--broken windows--has prompted legal, not architectural, solutions. The Article considers four architectural concepts: increasing an area's natural surveillance, introducing territoriality, reducing social isolation, and protecting potential targets. These mechanisms work in subtle, often invisible, ways to deter criminal activity and, if employed properly, could stymie the need for architectural self-help solutions that are often counterproductive because they increase overall crime rates. Professor Katyal then illustrates specific legal mechanisms that harness the power of architecture to prevent crime. Distinguishing situations where the government acts as a builder, as a civil regulator, and as a criminal enforcer, the Article suggests solutions in a variety of legal fields, drawing on property, torts, taxation, contracts, and criminal law. Procurement and taxation strategies can promote effective public architecture; crime impact statements, zoning, tort suits, and contractual regulation may engender private architectural solutions as well. Criminal law, particularly through forfeiture, may also play a role. Several problems with architectural regulation are considered, such as the extension of social control and potential losses in privacy. Professor Katyal concludes by suggesting that local jurisdictions devote more attention to architecture as a constraint on crime instead of putting additional resources toward conventional law enforcement.