Local Land Use: Decision Expands Federal Government\u27s Role

The United States Environmental Protection Agency (EPA), pursuant to its authority under the Clean Water Act, has promulgated regulations creating the Storm Water Management Program. Contrary to the overall Clean Water Act scheme, which focuses on reducing pollution from point sources, the program has the objective of reducing non-point source water pollution. However, this program is not without controversy as heavy burdens are placed upon local governments, who themselves lack the financial resources, manpower, or technology to implement a complex federal system without federal or state assistance

Calming Troubled Waters: Local Solutions, Part I

In 1861, the Ohio Supreme Court adopted the Absolute Use Rule to govern groundwater, essentially allowing landowners its unencumbered use. The opinion noted that the behavior of subterranean water was “occult and mysterious” and that it was beyond the competence of judges to determine its appropriate use. The Ohio court reversed course in 1984 and adopted the Reasonable Use Rule. By then, scientific knowledge had advanced to the point that the interconnected movement of water was more readily discoverable. The court noted that a primary goal of water law should be to conform to hydrologic fact. This Article explores the advance of scientific knowledge related to water pollution, which reveals the clear relationship between land use and water quality. It examines the Clean Water Act and concludes that, despite advances in scientific knowledge, federal law does not conform to scientific fact but remains mysteriously incapable of addressing much of the nation’s severe water pollution. Non-navigable waters, groundwater, and nonpoint sources, with minor exceptions, all fall outside the Clean Water Act’s regulatory scope, as currently interpreted. State governments, however, may use their reserved police powers to protect natural resources, including watersheds. Most state legislatures have delegated broad power to local governments to mitigate water pollution through the adoption of land use plans, zoning laws, and land use and public nuisance regulations. The Article describes a host of local government gap-filling strategies that protect water quality and explores a number of intermunicipal and intergovernmental collaborations that defy the many critics who warn against relying on localism to solve natural resource problems. It analyzes the principle of subsidiarity, which holds that responsibility for dealing with problems should be delegated to the most decentralized institution capable of addressing them. There is general agreement among most critics that, despite their limitations, local governments must play a key role in resource conservation, but that they need assistance. To accommodate the diversity of situations and the need for flexibility in approach, the Article constructs, explains, and recommends the Principle of Collaborative Subsidiarity as a strategic path for rectifying the fragmented nature of the nation’s system of water law

Open Meetings: Land Use Mediation and the Public\u27s Right to Know

Great uncertainty surrounds the New York Open Meetings Law (OML), a law that permits the public to attend meetings of public bodies. Obviously, the OML becomes especially crucial in the area of land use where public governmental meetings are the norm, and conflicts usually involve several interested parties. This article delves into OML issues such as, what constitutes a public meeting, and the importance of having meetings open to the public

City\u27s Watershed Regulation: Localities, Landowners Object to Changes in Jurisdiction

The Watershed Rules and Regulations, created by New York City’s Department of Environmental Protection, influence several facets of law, including the ability of local governments to regulate actions such as construction. Several landowners in the affected area have taken issue with the regulation. Specifically, they challenge the constitutionality of the city’s extraterritorial control on outside municipalities because of the resulting diminutive effect of the regulations on private property values. This article discusses these issues, as well as the legal ability for potential plaintiffs to sue

Local Protection: Raising a Matter of \u27Sovereign Concern\u27

Challenges to the expansion of local initiatives aimed at local environmental protection question the powers delegated to municipal governments from the state. New York case precedent suggests that express and implied police power authority conferred from the state to municipalities is a broad concept and includes the power to protect natural resources, scenic views, and other environmental concerns. Through the use of this power, localities are better able to meet the environmental challenges they are faced with by using innovative grass-roots initiative

Low Carbon Land Use: Paris, Pittsburgh, and the IPCC

This article describes strategies that local governments are employing to both mitigate and adapt to climate change, using their state-given powers to plan community development and to regulate private building. Local governments have significant legal authority to shape human settlements and, in so doing, lower CO2 emissions from buildings and vehicles, increase the sequestration of carbon by the natural environment, and promote distributed energy systems and renewable energy facilities that lower fossil fuel consumption. Local elected leaders are highly motivated to avoid the on-the-ground consequences of our changing climate. The effects of climate change manifest themselves at the local level, where people are killed or injured, property is destroyed, businesses are shuttered, ecosystems are fouled, and where our democratic system is most vibrant and able to respond. In 2014, the international community caught up with local governments in the global race against climate change. That year the Intergovernmental Panel on Climate Change embraced the critical role of municipal governments in mitigating the causes of climate change. In 2015, the Paris Climate Agreement adopted by the Conference of the Parties followed suit. This has encouraged localities to redouble their efforts and creates new and exciting opportunities for intergovernmental partnerships to manage climate change

\u27Golden\u27 Anniversary: 30-Year-old Decision Is Fabric of Land Use Law

The famous New York case of Golden v. Ramapo helped create the movement towards smart growth thirty years ago. Ramapo, like most other towns in New York struggled with the familiar quandary of how to balance the pressures of absorbing growth while still controlling urban sprawl. Ramapo’s solution, to greatly reduce development in its jurisdiction for eighteen years in order to research more efficient development methods, sparked much controversy with local land owners. The United States Court of Appeals, in one of New York’s most significant contributions to smart growth, upheld Ramapo’s plan and created a groundbreaking precedent still widely followed today

\u27Tahoe\u27 Case: When Environmental Regulations Go \u27Too Far\u27

This article reviews a recently decided United States Supreme Court case which held that a thirty-two month moratorium on development did not constitute a taking per se. The Court, building on logic from other recent decisions, found that moratoria are an effective land use tool, which prevent inefficient land development and consequently lead to increased land value. This article analyzes the court’s decision to hold that moratoria are never takings per se, instead holding that a court shall perform an ad hoc analysis to determine a moratorium’s constitutionality

Katrina\u27s Lament: Reconstructing Federalism

The subject of stormwater management raises threshold questions about the federal system. Is the regulation of stormwater runoff and the environmental pollution it causes within the federal government\u27s legal jurisdiction? Is it a matter reserved to the states under the Tenth Amendment? Or is it a joint responsibility and, if so, precisely how is federal and state authority shared? How does the delegation of power by states to local governments to regulate the use of privately owned land affect the federal-state division of power? What limits should there be on local control of land uses that cause “nonpoint source” pollution, the principal culprit to be controlled in stormwater management? Stormwater runoff is one of the most serious causes of water pollution in the United States; in many locales, the contamination caused by the runoff exceeds what is caused by more visible and direct commercial and industrial facility wastewater. Stormwater runs off from development sites-- carrying sediment from the disturbed soils--and from developed properties, where lawns and vegetation and paved surfaces and buildings are loaded with harmful substances. Water runoff from storm events carries with it algae-promoting nutrients, floatable trash, used motor oil, suspended metals, sediments, raw sewage, pesticides, and other toxic contaminants. These contaminants flow with the stormwater from their source to streams, rivers, lakes, estuaries, and oceans. The regulation of construction and development, and resultant stormwater runoff, is understood to be within the province of local governments, under power delegated to them by state legislatures. Yet municipal sewer systems collect and dispose of stormwater through effluent pipes identified as point sources subject to federal jurisdiction. As a result, the regulation of stormwater runoff is confused as a matter of law

Zoning’s Centennial: A Complete Account of the Evolution of Zoning into a Robust System of Land Use Law—1916-2016 (Part IV)

Fracking is happening and local governments are subjected to many of its associated risks. They either need to act, or know—clearly and convincingly—why they should not. The federal government has stopped far short of comprehensive regulation of fracking; the states’ regulations range from fair to poor, sometimes preempting local regulation but most often sharing regulatory authority over land use impacts