Overlawyered » land use and zoning

December 19 roundup

Walter Olson — Mon, 19 Dec 2011 05:09:06 +0000

Too much of a stretch: US nixes copyright in yoga exercises [Bloomberg, earlier]
“Know your rights dealing with cops” material construed as probative of criminality [Popehat] Is Justice Scalia really an “unlikely” champion of defendants’ Constitutional rights? [LATimes, Adler] “Overcriminalization: The Legislative Side of the Problem” [Larkin/Heritage, related Meese] When feds spring false-statements trap, it won’t matter whether you committed underlying offense being investigated [Popehat] “‘Clean Up Government Act’ sparks overcriminalization concerns” [PoL]
Former Attorney General Mukasey on ObamaCare recusal flap [Adler]
American Antitrust Institute proposals might be discounted given group’s longstanding pro-plaintiff bias [Thom Lambert]
NYC: “The tour guide said that the way to get rich is to be a zoning lawyer.” [Arnold Kling]
“Obama’s Top Ten Constitutional Violations” [Ilya Shapiro, Daily Caller] In at least two major areas, “Obama has broken with precedent to curtail religious freedom” [Steve Chapman]
Ted Frank-Shirley Svorny med mal debate wraps up [PoL, Bader]

Tags: antitrust, Barack Obama, constitutional law, crime and punishment, land use and zoning, medical malpractice, police, recusals, Ted Frank

Glendale bans fake grass

Walter Olson — Fri, 09 Dec 2011 14:04:54 +0000

The Los Angeles suburb claims it adopted the ban because of dangers posed by chemicals, toxins and plastics present in artificial turf. Might there perhaps be an alternative motive, that of policing residents’ aesthetic taste in landscaping? Well, the ban applies only to front yards: “When asked why the fake grass would continue to be allowed in backyards, officials had no answer.” [CBS Los Angeles]

Tags: land use and zoning, Los Angeles

Privatizing retail permitting

Walter Olson — Tue, 22 Nov 2011 14:45:34 +0000

The Washington Post offers an editorial caution to lawmakers in Montgomery County, the famously liberal slice of Maryland suburbia:

A bill before the Montgomery County Council would force big-box retailers such as Wal-Mart, Home Depot and Target to negotiate with neighborhood groups as a condition for getting their new stores approved. This is such a spectacularly bad idea, on so many levels, that it’s hard to imagine how it came to be taken seriously in the first place.

By contrast, the nearby District of Columbia, often seen as a challenging place to do business, seems to be making its peace with Wal-Mart, which has announced plans to open six new stores there.

Tags: land use and zoning, Maryland, Wal-Mart, Washington D.C.

California’s CEQA, cont’d

Walter Olson — Tue, 27 Sep 2011 11:22:00 +0000

Following up on last week’s post, Gideon Kanner calls our attention to this summer’s case of Clover Valley Foundation v. City of Rocklin. As Prof. Kanner wrote at the time in the L.A. Daily Journal:

This was a lawsuit challenging a housing project on environmental grounds some 30 years after the subject property was zoned for housing development, 20 years after the developer’s request for a permit, and after 10 years of planning and environmental review, plus a nearly one-half reduction in the number of permitted dwellings, a five-fold increase in open space, and after millions of dollars were exacted for in-lieu payments. The city approved the project in 2007.

Then the NIMBYs attacked in court. To its credit, the court in effect said “enough already” and rejected the NIMBY challenge. But the court also said that this was a case in which environmental laws “worked.” I would hate to see what it would take for their Lordships to acknowledge a case in which those laws didn’t work.

For more of a flavor of the Clover Valley case, see the write-up from the Meyers Nave law firm.

Tags: California, land use and zoning

Constitutional law roundup

Walter Olson — Mon, 26 Sep 2011 05:15:15 +0000

Cato-intensive edition:

David Bernstein’s Rehabilitating Lochner, recently praised by George Will, is part of Cato series challenging constitutional law myths [Roger Pilon, earlier; Bernstein's recommended-books list]
Constitutional conservatism: the forgotten history [Johnathan O'Neill, Heritage] “Progressive originalism” a development to be welcomed, but faces uphill slog [Damon Root, Reason] Tim Lynch: constitution is too hard to amend ["Amending Article V", Tennessee Law Review] Toobin’s “startling reappraisal” of Clarence Thomas in The New Yorker [Walter Russell Mead]
When it comes to abortion clinics, left and right swap usual positions on regulatory burdens [A. Barton Hinkle, Richmond Times-Dispatch] I’m quoted on courtroom battles over state anti-abortion enactments [Steve Weatherbe, National Catholic Register]
Exhaustion of remedies: “Property Rights Are Not Second-Class Rights” [Ilya Shapiro, Cato at Liberty]
Property ordinance in San Juan Capistrano bars Bible study groups and even regular bridge foursomes. Bill of Rights violation? [CBS-LA]
For those in the D.C. area, a George Mason U. event Monday at 5: Roger Pilon (Cato) vs. Ed Whelan (Ethics and Public Policy Center) on judicial activism [Fed Soc]

Tags: Cato Institute, constitutional law, eminent domain, land use and zoning

California’s sclerotic CEQA

Walter Olson — Fri, 23 Sep 2011 15:05:06 +0000

As Gideon Kanner points out, you don’t need to be a property rights advocate to see the California Environmental Quality Act as a lawsuit-intensive mess (quoting Prof. Robert Freilich):

Many attorneys, planners, architects, engineers, scientists, developers, small businesses, business associations and governments in the state, and many environmentalists are agreed that CEQA needs major reform. Delays in the system are causing projects to suffer delays of 2 to 9 years to get EIRs approved, especially for (but not limited to) the failure to compare the project with all “feasible” alternatives, establish vague baseline analysis for existing mitigation, and the tricky determination as to which parts of regional, general and specific plan EIR findings can be incorporated, to eliminate duplication of effort and cost. The law is so confused on these points that it is a miracle that any EIR can survive its first round in the courts without a remand to do it over again. Complicating this result is the establishment of a specialized group of attorneys that initiate litigation at the drop of a hat, primarily because the statute authorizes attorney’s fees for any remand or reversal. Many community associations and no growth environmentalists use the EIR litigation process to delay and in many cases kill projects for little or no environmental substance.

Tags: attorneys' fees, California, environment, land use and zoning

Urban farming

Walter Olson — Wed, 24 Aug 2011 05:26:42 +0000

A neat idea for reclaiming abandoned city land, but it labors under a “cloud of extralegality” arising from a century’s worth of zoning and other regulations [Kristin Choo, ABA Journal]

Tags: agriculture and farming, land use and zoning

Home office? Keep it quiet

Walter Olson — Tue, 19 Jul 2011 14:21:14 +0000

If you run a home office in Nashville, you mustn’t let clients visit, while in Montgomery County, Maryland, employees may not pick up paychecks at a home-based business [Radley Balko; Harvey Jacobs, WaPo]

Tags: land use and zoning, Maryland, Tennessee

Want to open a store? We choose your locations

Walter Olson — Wed, 25 May 2011 13:54:10 +0000

“D.C. Mayor Vincent D. Gray delivered an ultimatum in a face-to-face meeting with Wal-Mart officials at a real estate convention Monday: If the chain wants to enter the District at all, it had better commit to opening at Skyland Shopping Center, the long-delayed redevelopment project in Gray’s home ward…. Gray indicated he would be willing to go so far as to nix the company’s requests for building permits on privately owned sites, even for neighborhoods where residents favored Wal-Mart’s opening.” [Washington Post, earlier]

Tags: land use and zoning, Wal-Mart, Washington D.C.

The value of a liquor license moratorium

Walter Olson — Sat, 09 Apr 2011 14:27:27 +0000

A moratorium on new liquor licenses in Washington, D.C.’s popular Adams-Morgan neighborhood might account for why an existing license appears curiously valuable. [Matthew Yglesias]

Tags: alcohol, land use and zoning, Washington D.C.

Overlawyered » land use and zoning

December 19 roundup

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