Land Use and Environmental Law
As a scarce and necessary resource, land triggers competition and conflict over possession, use, development, and preservation. For privately owned land, the market manages much of the competition. At the same time, because use of land in one location affects the interests of neighbors and the general public, and because market mechanisms alone do not always protect or advance such interests, government has adopted land use and environmental laws that affect how land is handled.
Expressed through local ordinances, higher-level legislation, constitutions, judicial opinions, administrative regulations, discretionary governmental decision, and private agreements, land use and environmental laws affect the look, character, and composition of areas everywhere.
Given the importance of land use and environmental laws to the built and natural environment, it is unsurprising that numerous critiques exist. One asserts that land use laws, especially traditional zoning, are crude implements that fail to address the needs of modern urban and rural environments. A second critique claims that environmental and land use laws have exacted too heavy a toll on market outcomes and affected private property rights in ways that unreasonably hinder the broad economy and unfairly penalize individuals. A third critique highlights the ‘capture’ of land use and environmental laws by localized business and homeowner interests, often to the detriment of economically less well-off individuals. A fourth critique attacks land use laws for restricting design and architectural creativity.
The premise of this course is that non-lawyer professionals in the field– urban planners, designers, architects and developers– have a critical role to play in debates and in determining how land use and environmental laws should shape the built and natural environment. No prior legal knowledge is presumed. Students gain a working knowledge of the theories, rationales, implementing institutions, and techniques of land use and environmental law. Particular attention is paid to law’s intended and unintended impacts on the physical pattern of built environments and resulting social and economic outcomes, on the increasing overlap of land use law and environmental law regimes, and on tensions between individual and public rights and responsibilities.
The course reviews the following topics:
· the common law of nuisance
· “traditional” Euclidian zoning and the historic relation between zoning and planning
· “modern” zoning (variances, planned unit developments, cluster zoning, special districts, special permits, incentive zoning, transfer of development rights)
· emerging trends in zoning ( form-based codes, sustainability and climate change adaptation measures, ‘fast-food’ zoning)
· Constitutional issues and concerns ( regulatory takings and exactions, due process, equal protection, free speech)
· exclusionary zoning and its remedies, inclusionary housing, and the Fair Housing Act
· growth management laws ( phased growth, growth boundaries, capital infrastructure schedules, moratoria )
· historic preservation laws and aesthetic zoning
· zoning regulation of religious uses
· adult entertainment laws
· environmental impact review of zoning actions and development projects
· other environmental laws and regulations affecting development ( air and water pollution laws, wetland laws)
· environmental justice
Jointly Offered Course: HKS SUP-663