Chapter 7: Land Use Regulation and Regulatory Takings

Land Use and Climate Change
p. 710 (5^th edition):
As the environmental consequences of unplanned growth and urban sprawl become more evident, land use management has become a prominent part of the environmental agenda. Efforts to develop programs to improve land use management and to reduce the carbon footprint of urban areas are now being made at all levels of government. States, counties and municipalities are adopting green building codes throughout the country. By November 2008, more than 900 mayors had signed the U.S. Conference of Mayors Climate Protection Agreement that pledges a 7 percent reduction in carbon emissions below 1990 levels by the year 2012.

As concern grows over the impact of climate change, more attention is being focused on the impact of urban development policies on greenhouse gas (GHG) emissions.  On June 18, 2008, the House Select Committee on Energy Independence and Global Warming held a hearing on "Planning Communities for a Changing Climate -- Smart Growth, Public Demand and Private Opportunity."  In 2008, California adopted legislation (S.B. 375) promoting a "sustainable communities strategy" by providing incentives to developers and local communities to reduce the carbon footprint of local development. The legislation mandates the establishment of sustainable regional growth plans and it seeks to achieve the state's ambitious targets for reducing GHG emissions through land-use planning.

The "green building" industry has made significant strides in recent years.  As the Obama administration promotes "green growth" as a strategy for stimulating the economy, several states, counties and municipalities are adopting green building ordinances. California's Green Building Standards Code will require commercial and residential construction to meet the equivalent of a "silver" rating under  the U.S. Green Building Council's Leadership in Energy and Environmental Design (LEED) standards.

The Environmental Law Institute has published Municipal Green Building Policies: Strategies for Transforming Building Practices in the Private Sector (2008), which evaluates various municipal policies for promoting green building.  The American Planning Association has published a guidebook for comprehensive planning law that incorporates smart growth and green building codes. Robert Freilich & S. White, 21st Century Land Development Code (2008).

Federal Management of Public Lands
p. 713 (5^th edition):
In November 2007, the U.S. House of Representatives approved a bill to reform hardrock mining on public lands, but the Senate was unable to agree on similar legislation.  The moratorium on patenting new mining claims has continued in effect through a series of appropriations riders that bar the Department of Interior from spending funds to receive or process patent application.

As extractive industries have declined in the United States, recreational users of public lands have increased in numbers with potentially significant implications for public resource management policies. See Jan G. Laitos & Thomas A. Carr, The Transformation on Public Lands, 26 Ecol. L. Q. 140 (1999) (arguing that the era of multiple use of public lands has ended because users of such lands have decided that recreation and preservation should be dominant uses).

During its final year in office, the Clinton administration adopted a far-reaching Roadless Area Conservation Rule that banned the construction of new roads in roadless areas of public lands.  36 C.F.R. Part 294 (2001).  The rule was adopted through a process that generated more than 1.5 million public comments and more than 600 meetings between U.S. Forest Service officials and members of the public. However, in 2003 the rule was struck down by a federal district court in Wyoming and the Bush administration subsequently replaced it with its own State Petitions for Inventoried Roadless Areas Management Rule, 36 C.F.R. Part 294 (2005) .  The Bush administration's rule in turn was struck down by a federal district court in California, leaving the competing rules in place in different parts of the country.

Federal Programs Affecting Private Land Use: The Conservation Reserve Program
p. 716 (5^th edition):
In 2008, more than 33 million acres of land from more than 400,000 farms were enrolled in the CRP at a cost of $1.7 billion per year.  With record high corn prices, the 2008 Farm Bill cut the total acreage authorized for the CRP to 32 million acres.  For an excellent account of the development and implementation of the CRP, see James T. Hamilton, How a Rule Becomes a Reg: The Story of the Conservation Reserve Program (2009).

Land Use Regulation: the Religious Freedom Restoration Act
p. 720 (5^th edition):
The Religious Freedom Restoration Act, which prohibits the government from "substantially burdening" a person's "exercise of religion," has spawned challenges to land use management policies, see, e.g., Navajo Nation v. U.S. Forest Service, 535 F.3d 1058 (9th Cir. 2008) (en banc decision rejecting tribal claim that use of recycled wastewater for snowmaking on public land violated the Act by desecrating a sacred mountain). The Energy Policy Act of 2005 directs federal agencies to designate national interest corridors for pipeline and transmission facilities to expedite their construction.

State Growth Management
p. 726 (5^th edition): In November 2007, Oregon voters approved Measure 49 that tightens the standards for receiving compensation under Measure 37 while further restricting development on agricultural, forest, and rural lands.

The Impact of Post-Regulation Acquisition of Property: The Palazzolo Remand
p. 761 (5^th edition):
On remand, the Superior Court of Rhode Island, in an unpublished decision, rejected Palazzolo’s regulatory takings claim in its entirety.  The court concluded that Palazzolo's "proposed residential development of the site would constitute a public nuisance under Rhode Island law." Moreover it found that because Palazzolo could still build a single home on part of his property and because his proposed larger development was not economically viable, the regulations had not adversely affected him.
 The court concluded: "despite wishful thinking on Palazzolo's part, he paid a modest sum to invest in a proposed subdivision that he must have known from the outset was problematic at best. Under the facts and circumstances unique to this case, Palazzolo could have had little or no reasonable expectation to develop the parcel as he has now proposed. Constitutional law does not require the state to guarantee a bad investment.” Palazzolo v. State, 2005 WL 1645974 (R.I. Super. Ct. July 5, 2005).

Climate Change, Rising Seas and Property Rights: Stop the Beach Renourishment
p. 794 (5^th edition):
On June 15, 2009, the U.S. Supreme Court surprised many legal scholars by agreeing to review a decision by the Supreme Court of Florida in Stop the Beach Renourishment v. Florida Department of Environmental Conservation, No. 08-1151. The case involves a constitutional challenge to the Florida Beach and Shore Preservation Act.  The Florida Supreme Court rejected the property owners’ claim that the legislation, which gives the state title to land created through public beach replenishment efforts, constitutes a regulatory taking by depriving upland property owners of their common law littoral rights.  Under the legislation, once the state establishes an erosion control line (ECL), property owners landward of the line no longer enjoy a common law right of accretion and reliction that ensures that their property will have contact with the water.  However, the legislation expressly preserves the upland owners’ rights of ingress, egress, view, boating, bathing and fishing and it prevents the state from erecting any structures seaward of the ECL except as required to prevent erosion.

            The Florida Supreme Court concluded:

“[T]he Beach and Shore Preservation Act effectuates the State's constitutional duty to protect Florida's beaches. And, like Florida common law, the Act facially achieves a reasonable balance between public and private interests in the shore. Specifically, the Act benefits upland owners by restoring lost beach, by protecting their property from future storm damage and erosion, and by preserving their littoral rights to use and view. The Act also benefits upland owners by protecting their littoral right of access to the water, which is the sole justification for the ancillary right of contact. Additionally, the Act authorizes actions to reclaim public beaches that are also authorized under the common law after an avulsive event. Furthermore, the littoral right to accretion is not implicated by the Act because the reasons underlying this common law rule [to preserve the upland owner’s core littoral right of access to the water] are not present in this context.” Walton County v. Stop the Beach Renourishment, 998 So. 2d 1102, 1120-21 (2008).

The decision to review the case may signal renewed interest in regulatory takings issues by the Supreme Court. It also may have important implications for how property law will be able to adapt to rising sea levels caused by climate change.