Zoning Restrictions on Location of Adult Businesses

This year\u27s report concentrates on recent legal developments concerning regulation of the location of adult entertainment businesses. Such regulations raise serious constitutional issues because the First Amendment\u27s guarantee of freedom of expression extends to non-obscene sexually oriented media. The U.S. Supreme Court, however, has established that local government may single out adult businesses for special regulatory treatment in the form of locational restrictions if the local government can show a substantial public interest in regulating such businesses unrelated to the suppression of speech and if the regulations allow for reasonable alternative avenues of communication, which essentially translates into a reasonable number of alternative locations. An ordinance will be struck down, however, when government officials attempt to regulate because they object to the sexually explicit messages conveyed by adult businesses or seek to exclude, or severely restrict, adult businesses through an outright ban or excessive locational requirements

The Ohio Supreme Court\u27s Perverse Stance on Development Impact Fees and What To Do About It

Ohio is among the twenty-two states that have no enabling legislation for development impact fees. But in a 2000 ruling, Homebuilders Association of Dayton and the Miami Valley v. City of Beavercreek, a divided Ohio Supreme Court ruled that municipalities could lawfully enact impact fees under their police and “home rule” powers, provided that the fees could pass constitutional muster under a “dual rational nexus test.” On May 31, 2012, however, the court ruled in Drees Company v. Hamilton Township, that a development impact fee enacted by an Ohio township with “limited home rule” powers was an unconstitutional tax. The court’s unanimous opinion in Hamilton Township was authored by Justice Paul Pfeiffer, who, twelve years before, had authored the main dissenting opinion in the Beavercreek case. This Article faults the court’s opinion invalidating the impact fees in Hamilton Township, arguing that the court, rather than engaging in a fair-handed analysis, chose instead to rely on very limited authority to support a conclusion that appears to have been pre-determined. In particular, the Article demonstrates that the court failed even to acknowledge, let alone distinguish: (1) its earlier ruling upholding impact fees in Beavercreek; and (2) the state supreme court decisions that had rejected the reasoning of the Iowa and Mississippi courts upon which the court relied in part. The Article notes that the court’s ruling leaves Ohio with a bifurcated approach to impact fees that is perverse because it makes impact fees most defensible in municipalities, in many of which there is little new development, and thus the need for impact fees is less, and effectively prohibits their use in rapidly developing townships where they are needed most. The Article concludes that the time is long-past for the legislature to examine the policy debate on impact fees and make a decision about adopting enabling legislation for impact fees, and that the decision should be to join the majority of states that have enacted such legislation

The Ohio Supreme Court\u27s Perverse Stance on Development Impact Fees and What To Do About It

Ohio is among the twenty-two states that have no enabling legislation for development impact fees. But in a 2000 ruling, Homebuilders Association of Dayton and the Miami Valley v. City of Beavercreek, a divided Ohio Supreme Court ruled that municipalities could lawfully enact impact fees under their police and “home rule” powers, provided that the fees could pass constitutional muster under a “dual rational nexus test.” On May 31, 2012, however, the court ruled in Drees Company v. Hamilton Township, that a development impact fee enacted by an Ohio township with “limited home rule” powers was an unconstitutional tax. The court’s unanimous opinion in Hamilton Township was authored by Justice Paul Pfeiffer, who, twelve years before, had authored the main dissenting opinion in the Beavercreek case. This Article faults the court’s opinion invalidating the impact fees in Hamilton Township, arguing that the court, rather than engaging in a fair-handed analysis, chose instead to rely on very limited authority to support a conclusion that appears to have been pre-determined. In particular, the Article demonstrates that the court failed even to acknowledge, let alone distinguish: (1) its earlier ruling upholding impact fees in Beavercreek; and (2) the state supreme court decisions that had rejected the reasoning of the Iowa and Mississippi courts upon which the court relied in part. The Article notes that the court’s ruling leaves Ohio with a bifurcated approach to impact fees that is perverse because it makes impact fees most defensible in municipalities, in many of which there is little new development, and thus the need for impact fees is less, and effectively prohibits their use in rapidly developing townships where they are needed most. The Article concludes that the time is long-past for the legislature to examine the policy debate on impact fees and make a decision about adopting enabling legislation for impact fees, and that the decision should be to join the majority of states that have enacted such legislation

Essay: The Challenge of Providing Adequate Housing for the Elderly...Along with Everyone Else

Finally, it seems fittingly ironic that a culture as youth-obsessed as ours faces a demographic future in which those over sixty-five will outnumber those under fourteen for the first time in our history. Irony aside, we are ill-prepared to deal with this new reality on several counts, not the least of which is the failure of our patterns of land use and development to accommodate the changed housing needs of an aging population. Primary among these needs is the stated desire of the elderly to be able to age in place. To meet this need, America\u27s suburban communities in particular will need to re-think their reliance on exclusive single-family zoning and begin planning and zoning for an increasingly large number of the elderly. Despite understandable concerns about maintaining housing values, this may well prove to be politically achievable simply because the very demographic changes that create the need will create a growing constituency in favor of the changes needed to meet that need. Moreover, by making our neighborhoods more friendly to the elderly, we will simultaneously make then friendlier to all other age groups as well

RLUIPA: Where Are We Now? Where Are We Heading?

Over the past three years, hardly a week has gone by without at least one news-story announcing that a church, synagogue, or religious school-I\u27ll use the term “church” from here on as a shorthand for all houses of worship or other religious institutions—is claiming that its right to religious freedom is being infringed by local government land use regulations in violation of the Religious Land Use and Institutionalized Persons Act. RLUIPA, a federal statute signed into law in September 2000, was enacted to restore to full vigor legal protection for religious freedoms that the Act\u27s proponents argue had been seriously diminished by prior rulings of the U.S

Report of the Committee on Land Use, Planning and Zoning Law - Report of the Subcommittee on Land Use and the First Amendment

The past year saw no cessation in cases reporting on the conflicts that arise when local land use regulation is applied to uses claiming protection under the First Amendment. This report highlights the two major developments in this area - the courts\u27 the treatment of claims brought under the Religious Freedoms Restoration Act of 1993 and the latest decision of the U.S. Supreme Court concerning sign regulation, City of Ladue v. Gilleo, and discusses other cases involving regulation of religious institutions, adult businesses and signs

Report of the Committee on Land Use, Planning and Zoning Law - Report of the Subcommittee on Land Use and the First Amendment

The past year saw no cessation in cases reporting on the conflicts that arise when local land use regulation is applied to uses claiming protection under the First Amendment. This report highlights the two major developments in this area - the courts\u27 the treatment of claims brought under the Religious Freedoms Restoration Act of 1993 and the latest decision of the U.S. Supreme Court concerning sign regulation, City of Ladue v. Gilleo, and discusses other cases involving regulation of religious institutions, adult businesses and signs

Reflections on the Persistence of Racial Segregation in Housing

This article is Weinstein\u27s reflection on the Annual Sullivan Lecture entitled Crossing Two Color Lines: Interracial Marriage and Residential Segregation in Chicago by Dorothy E. Roberts (2016). INTRODUCTION My reflection on Professor Roberts\u27 Sullivan Lecture poses two questions. First, how far have we come as a nation from the hypersegregated housing patterns of the 1930s through 1960s that Professor Roberts described in her lecture? Regrettably, the answer appears to be not far at all. Further, we are today faced with a second form of hypersegregation, one based on income rather than race. Second, why have we made so little progress to date in addressing housing segregation The simple answer here, of course, is that efforts to address the situation Professor Roberts describes have proved inadequate. But why? While a comprehensive answer to that question is well beyond the scope of this writing, the author examines why one of the efforts has proven inadequate: the attempts to combat exclusionary zoning