Zoning Finality: Reconceptualizing Res Judicata Doctrine in Land Use Cases

Zoning disputes provide many Americans with their only firsthand exposure to the workings of democratic government. Land use issues trigger participation because neighbors perceive the wrong kind of development as posing a double-barreled threat to the stability of the community in which they have chosen to live and to the economic value of their homes. The protagonists in zoning disputes-landowners and neighbors-invest time and other resources to persuade the relevant decisionmakers to rule in the protagonists’ favor. When the parties make that investment, should they assume that a decision made today will have some enduring significance? Whether the decision is “final” may play an important role in shaping the parties’ participation and presentations. If a zoning board were free to deny a variance today and to grant the identical variance next week (or next year), there would be less reason for neighbors (and landowner applicants) to spend time and money framing their arguments for today’s decision. Many of the reasons that underlie res judicata doctrine apply to these local land use disputes. In the interest of conserving the resources of all parties- landowners, neighbors, and local decisionmakers-issues should be decided once, not multiple times. There is little reason to think that, were the issues decided multiple times, subsequent determinations would improve on prior ones. This is especially true in the context of land use, where the issues involve primarily questions of fact, and parties have incentives to come forward with all relevant information at the time the first decisionmaker considers the dispute. If a court, rather than a zoning board, were resolving the dispute, res judicata doctrine would circumscribe the power of a subsequent court to depart from the earlier determination. In the first instance, however, zoning disputes are resolved not by the courts, but by local legislatures and administrative bodies. No finality principle comparable to res judicata attaches to legislative determinations, no matter which legislative body-Congress, a state legislature, or a local city council- makes those determinations. Unlike most judicial decisions, which resolve discrete disputes over past events, legislatures act prospectively. Finality rules would preclude legislative decisionmakers from considering new facts that cast doubt on the wisdom of past decisions. It should not be surprising, then, that legislatures are typically free of finality constraints. In contrast to the well-established principles that apply to judicial and legislative determinations, the applicability of finality principles is unclear when it comes to administrative decisions by the local zoning board, such as the grant or denial of a variance. Courts sometimes treat zoning board decisions as if they were judicial decisions, using res judicata language to preclude new applications for relief that the zoning board previously denied. In other cases, courts-often from the same jurisdictions-permit boards to entertain applications virtually identical to previously rejected applications. Although courts sometimes suggest the need to be “flexible” in applying res judicata doctrine to zoning disputes, neither courts nor scholars have offered a coherent prescriptive or descriptive account for how that flexibility does or should operate. This Article has two related objectives: to develop a normative theory explaining how finality principles should apply in the land use context and simultaneously to argue that existing case law, however inarticulately, reflects that normative theory. Part I begins by exploring the distinctive structure of zoning doctrine, which fits imperfectly with traditional categorization of decisions as legislative or judicial. Part II examines more generally the role of finality in legal decisionmaking. Part III demonstrates that, in light of the structure of zoning doctrine, traditional claim preclusion doctrine should have no place in zoning law. This Article argues, by contrast, that issue preclusion doctrine should and does operate to constrain zoning decisionmakers. The Article goes on to demonstrate that this framework explains the results, even if not the language, in the vast majority of zoning cases that raise finality issues

Zoning Finality: Reconceptualizing Res Judicata Doctrine in Land Use Cases

Zoning disputes provide many Americans with their only firsthand exposure to the workings of democratic government. Land use issues trigger participation because neighbors perceive the wrong kind of development as posing a double-barreled threat to the stability of the community in which they have chosen to live and to the economic value of their homes. The protagonists in zoning disputes-landowners and neighbors-invest time and other resources to persuade the relevant decisionmakers to rule in the protagonists’ favor. When the parties make that investment, should they assume that a decision made today will have some enduring significance? Whether the decision is “final” may play an important role in shaping the parties’ participation and presentations. If a zoning board were free to deny a variance today and to grant the identical variance next week (or next year), there would be less reason for neighbors (and landowner applicants) to spend time and money framing their arguments for today’s decision. Many of the reasons that underlie res judicata doctrine apply to these local land use disputes. In the interest of conserving the resources of all parties- landowners, neighbors, and local decisionmakers-issues should be decided once, not multiple times. There is little reason to think that, were the issues decided multiple times, subsequent determinations would improve on prior ones. This is especially true in the context of land use, where the issues involve primarily questions of fact, and parties have incentives to come forward with all relevant information at the time the first decisionmaker considers the dispute. If a court, rather than a zoning board, were resolving the dispute, res judicata doctrine would circumscribe the power of a subsequent court to depart from the earlier determination. In the first instance, however, zoning disputes are resolved not by the courts, but by local legislatures and administrative bodies. No finality principle comparable to res judicata attaches to legislative determinations, no matter which legislative body-Congress, a state legislature, or a local city council- makes those determinations. Unlike most judicial decisions, which resolve discrete disputes over past events, legislatures act prospectively. Finality rules would preclude legislative decisionmakers from considering new facts that cast doubt on the wisdom of past decisions. It should not be surprising, then, that legislatures are typically free of finality constraints. In contrast to the well-established principles that apply to judicial and legislative determinations, the applicability of finality principles is unclear when it comes to administrative decisions by the local zoning board, such as the grant or denial of a variance. Courts sometimes treat zoning board decisions as if they were judicial decisions, using res judicata language to preclude new applications for relief that the zoning board previously denied. In other cases, courts-often from the same jurisdictions-permit boards to entertain applications virtually identical to previously rejected applications. Although courts sometimes suggest the need to be “flexible” in applying res judicata doctrine to zoning disputes, neither courts nor scholars have offered a coherent prescriptive or descriptive account for how that flexibility does or should operate. This Article has two related objectives: to develop a normative theory explaining how finality principles should apply in the land use context and simultaneously to argue that existing case law, however inarticulately, reflects that normative theory. Part I begins by exploring the distinctive structure of zoning doctrine, which fits imperfectly with traditional categorization of decisions as legislative or judicial. Part II examines more generally the role of finality in legal decisionmaking. Part III demonstrates that, in light of the structure of zoning doctrine, traditional claim preclusion doctrine should have no place in zoning law. This Article argues, by contrast, that issue preclusion doctrine should and does operate to constrain zoning decisionmakers. The Article goes on to demonstrate that this framework explains the results, even if not the language, in the vast majority of zoning cases that raise finality issues

Ion-beam mixing induced by atomic and cluster bombardment in the electronic stopping-power regime

Single crystals of magnesium oxide containing nanoprecipitates of sodium were bombarded with swift ions (∼GeV-Pb, U) or cluster beams (∼20 MeV-C60) to study the phase change induced by electronic processes at high stopping power (≳10 keV/nm). The sodium precipitates and the defect creation were characterized by optical absorption and transmission electron microscopy. The ion or cluster bombardment leads to an evolution of the Na precipitate concentration but the size distribution remains unchanged. The decrease in Na metallic concentration is attributed to mixing effects at the interfaces between Na clusters and MgO. In addition, optical-absorption measurements show a broadening of the absorption band associated with electron plasma oscillations in Na clusters. This effect is due to a decrease of the electron mean free path, which could be induced by defect creation in the metal. All these results show an influence of high electronic stopping power in materials known to be very resistant to irradiation with weak ionizing projectiles. The dependence of these effects on electronic stopping power and on various solid-state parameters is discussed

Chemical Imaging on Liver Steatosis Using Synchrotron Infrared and ToF-SIMS Microspectroscopies

Fatty liver or steatosis is a frequent histopathological change. It is a precursor for steatohepatitis that may progress to cirrhosis and in some cases to hepatocellular carcinoma. In this study we addressed the in situ composition and distribution of biochemical compounds on tissue sections of steatotic liver using both synchrotron FTIR (Fourier transform infrared) and ToF-SIMS (time of flight secondary ion mass spectrometry) microspectroscopies. FTIR is a vibrational spectroscopy that allows investigating the global biochemical composition and ToF-SIMS lead to identify molecular species in particular lipids. Synchrotron FTIR microspectroscopy demonstrated that bands linked to lipid contribution such as -CH3 and -CH2 as well as esters were highly intense in steatotic vesicles. Moreover, a careful analysis of the -CH2 symmetric and anti-symmetric stretching modes revealed a slight downward shift in spectra recorded inside steatotic vesicles when compared to spectra recorded outside, suggesting a different lipid environment inside the steatotic vesicles. ToF-SIMS analysis of such steatotic vesicles disclosed a selective enrichment in cholesterol as well as in diacylglycerol (DAG) species carrying long alkyl chains. Indeed, DAG C36 species were selectively localized inside the steatotic vesicles whereas DAG C30 species were detected mostly outside. Furthermore, FTIR detected a signal corresponding to olefin (C = C, 3000-3060 cm−1) and revealed a selective localization of unsaturated lipids inside the steatotic vesicles. ToF-SIMS analysis definitely demonstrated that DAG species C30, C32, C34 and C36 carrying at least one unsaturated alkyl chain were selectively concentrated into the steatotic vesicles. On the other hand, investigations performed on the non-steatotic part of the fatty livers have revealed important changes when compared to the normal liver. Although the non-steatotic regions of fatty livers exhibited normal histological aspect, IR spectra demonstrated an increase in the lipid content and ToF-SIMS detected small lipid droplets corresponding most likely to the first steps of lipid accretion

Use of ERTS-1 data to access and monitor change in the west side of the San Joaquin Valley and central coastal zone of California

There are no author-identified significant results in this report

Can child injury prevention include healthy risk promotion?

To reflect on the role of risk-taking and risky play in child development and consider recommendations for the injury prevention field, a symposium was held prior to the November 2013 Canadian Injury Prevention and Safety Promotion Conference. Delegates heard from Canadian and international researchers, practitioners and play safety experts on child development, play space design and playground safety, provision of recreation, and legal and societal perceptions of risk and hazard. The presenters provided multidisciplinary evidence and perspectives indicating the potential negative effect on children’s development of approaches to injury prevention that prioritise safety and limit children’s opportunities for risky play. Delegates considered the state of the field of injury prevention and whether alternative approaches were warranted. Each presenter prepared a discussion paper to provide the opportunity for dialogue beyond attendees at the symposium. The resulting discussion papers provide a unique opportunity to consider and learn from multiple perspectives in order to develop a path forward

Relationship of Dental Caries and Fluorosis to Fluoride Supplement History in a Non-Fluoridated Sample of Schoolchildren

A random sample of 206 Michigan children, aged from 9 to 13, were examined for fluorosis from a larger group of 2038 children participating in a dental project. Clinical examinations included caries data (DMFS) and assessment of fluorosis by use of the Tooth Surface Index of Fluorosis (TSIF). Separate examiners were used for each index. The response rate of a questionnaire mailed to parents to gather information on residence histories, use of fluoride supplements, and antibiotics was 78%. The prevalence of fluorosis was about 20% among the respondents. Of the 4868 tooth surfaces examined, 9.2% were affected by fluorosis. In all cases, dental fluorosis was judged as mild, with most occurrences on the posterior teeth. No instances of moderate or severe fluorosis were found. The caries experience of respondents was 1.69 ± 2.73 DMFS. Caries experience does not appear to be significantly related to income, education, or fluoride supplement use. Approximately 52% of respondents were reported to have taken fluoride supplements with various degrees of consistency. Parents' education was positively related to both prevalence of fluorosis (odds ratio = 2.2) and use of fluoride supplements (odds ratio = 2.7). No significant relation was revealed with evidence of fluorosis and use of supplements. This study shows a relatively mild level of dental fluorosis in a sample of children from a non-fluoridated area. Dental fluorosis in this group does not appear to be related to use of fluoride supplements or differences in caries experience.Peer Reviewedhttp://deepblue.lib.umich.edu/bitstream/2027.42/66503/2/10.1177_08959374890030021501.pd

Paediatric cardiac CT examinations: impact of the iterative reconstruction method ASIR on image quality--preliminary findings.

BACKGROUND: Radiation dose exposure is of particular concern in children due to the possible harmful effects of ionizing radiation. The adaptive statistical iterative reconstruction (ASIR) method is a promising new technique that reduces image noise and produces better overall image quality compared with routine-dose contrast-enhanced methods. OBJECTIVE: To assess the benefits of ASIR on the diagnostic image quality in paediatric cardiac CT examinations. MATERIALS AND METHODS: Four paediatric radiologists based at two major hospitals evaluated ten low-dose paediatric cardiac examinations (80 kVp, CTDI(vol) 4.8-7.9 mGy, DLP 37.1-178.9 mGy·cm). The average age of the cohort studied was 2.6 years (range 1 day to 7 years). Acquisitions were performed on a 64-MDCT scanner. All images were reconstructed at various ASIR percentages (0-100%). For each examination, radiologists scored 19 anatomical structures using the relative visual grading analysis method. To estimate the potential for dose reduction, acquisitions were also performed on a Catphan phantom and a paediatric phantom. RESULTS: The best image quality for all clinical images was obtained with 20% and 40% ASIR (p < 0.001) whereas with ASIR above 50%, image quality significantly decreased (p < 0.001). With 100% ASIR, a strong noise-free appearance of the structures reduced image conspicuity. A potential for dose reduction of about 36% is predicted for a 2- to 3-year-old child when using 40% ASIR rather than the standard filtered back-projection method. CONCLUSION: Reconstruction including 20% to 40% ASIR slightly improved the conspicuity of various paediatric cardiac structures in newborns and children with respect to conventional reconstruction (filtered back-projection) alone