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Scholarship of Land Use Law

On this page, you will find a selection of articles published by the Center and its staff. When read together, they provide an overview of land use law and an exploration of how land use law can respond to critical social challenges and opportunities, including climate change and natural disaster mitigation, affordable housing, natural resource protection, and changing patterns of human settlements.

We began our book publication series in 2001 with a book called Well Grounded, explaining the wisdom of delegating land use authority to the local level, where there is full knowledge of unique circumstances and keen interest in what happens on the ground. Well Grounded is part of a suite of four books—all written or edited by Professor John R. Nolon, the founder of the Land Use Law Center; they are published by ELI and available at www.elistore.org. Look for Well Grounded, New Ground, Open Ground, and Losing Ground: a collection the ELI calls its Ground Suite.

The Land Use Law Center maintains a database of local land use laws and commentaries that can be researched by topic. If you want to go into more depth as you read the following articles, take a look at the Gaining Ground Information Database on our homepage or www.landuse.law.pace.edu. You can browse resources by the topic you are interested in. The site will let you in without a password or PIN.

The subject of land use law in America is covered comprehensively in two books published by Thompson/West. Professor Nolon is the co-author with Patricia A. Salkin of Land Use Law in a Nutshell and Land Use and Community Development, Cases and Materials, where they are joined by Professor Morton Gitleman.

Below, you will find several articles together with references to related material in the Land Use Law Center collection of works.

 

Well Grounded: The American Land Use System

Historical Overview of the American Land Use System: A Diagnostic Approach to Evaluating Governmental Land Use Control. This article was written by Professor John R. Nolon. It appears in a book called Land Use Law for Sustainable Development, published by Cambridge University Press, which was co-edited by Professor Nolon. A companion book entitled Compendium of Land Use Laws for Sustainable Development, edited by Professor Nolon is also available from Cambridge. The article provides a historical overview and modern explanation of the land use system in the U.S. and the Compendium furthers comparative study of land use law among countries on every continent.

The ELI book called Well Grounded: Using Local Land Use Authority to Achieve Smart Growth takes a much deeper look at the land use system, nation-wide, and explores its details in the context of the elaborate and well-developed New York legal system which is revealed in full.

 

Open Ground: Local Environmental Law

Creating a Local Environmental Law Program: Building a National Framework of Law was written by Professor Jessica Bacher and Professor Nolon and published in the Real Estate Law Journal, a Thompson/West publication, in the Fall of 2007. It provides a step-by-step approach to protecting natural resources and the environment at the local level using land use authority that is delegated to local governments in most states. By searching Gaining Ground Information Database by jurisdiction, you can readily see that local environmental laws are plentiful in most states. The article points to the parochial limitations of local law and suggests state and federal environmental laws and agencies engage local governments by guiding and shaping the use of their delegated authority.

New Ground: the Advent of Local Environmental Law, available through the ELI, contains papers delivered at a symposium of law professors convened by the Land Use Law Center at Pace University School of Law. Their scholarship confirmed the trend toward local environmental lawmaking and led to the publication of ELI’s Open Ground: Effective Local Strategies for Protecting Natural Resources. Open Ground collects, organizes, and evaluates a large number of adopted local laws and plans. It demonstrates how a locality could adopt a comprehensive set of local land use techniques capable of preserving natural resources and maintaining the historical greenprint of the community.

 

Losing Ground: Mitigating Natural Disaster Damages Through Land Use Law

Disaster Mitigation Through Land Use Strategies, by Professor Nolon, is the opening chapter in ELI’s book called Losing Ground: A Nation on Edge, co-edited by Professor Nolon and Daniel B. Rodrigues, then Dean of the University of San Diego School of Law. The book and article demonstrate how local governments can prepare for and recover from natural disasters through intelligent pre- and post-disaster land use planning and regulation. San Diego, Pace, and Yale University collaborated on a two-year project called Losing Ground that featured six symposia involving an interdisciplinary team of professors who lectured and wrote on the topic.

 

Breaking Ground: Developing Compact, Mixed Use Developments in Suburban Communities

Breaking Ground: Planning and Building in Priority Growth Districts was published by Professor Jessica Bacher and Professor Nolon in the Real Estate Law Journal, a Thompson/West publication, in the Spring of 2008. It provides a step-by-step process illustrating how local governmental can use their legal authority to alter human settlement patterns in developing suburban areas. Priority Growth Districts is the Land Use Law Center’s term for suburban developments are transportation efficient, cutting down on vehicle miles traveled and vehicle trips, and energy efficient, employing smaller and more thermally efficient residences and commercial buildings.

This article is based on an interdisciplinary study by the Land Use Law Center, and a 150 page monograph produced for a conference sponsored by the Center on the same subject. This type of development is a critical building block in Shifting Ground, the Center’s project aimed at mitigating climate change through compact suburban and transit oriented, energy efficient urban development.

 

Level Ground: Developing Affordable Housing/Meeting Local Housing Needs

Local Inclusionary Housing Programs: Meeting Housing Needs was written by Professor Jessica Bacher and Professor Nolon and published in the Real Estate Law Journal, a Thompson/West publication, in the Summer of 2007. In many parts of the country, affordable housing is inadequate causing gentrification and the loss of diversity in the housing stock and population. This publication is part of a long-term program of the Land Use Law Center called Meeting Housing Needs that demonstrates how local governments can level the playing field for those in need of workforce, senior, and moderate income housing: how they can facilitate the development of housing affordable to those increasingly housed out by the high cost of development.

 

Shifting Ground: Mitigating Climate Change through Land Use and Transportation Planning – the Land Use Stabilization Wedge

Shifting Ground to Address Climate Change: The Land Use Law Solution, appears in the Spring, 2008 issue of the Government Law & Policy Journal, a publication of the New York State Bar Association. The article conceives and describes a Land Use Stabilization Wedge: a strategy that aggregates five separate methods of stabilizing greenhouse gas emissions. This builds on Princeton Professor Robert Socolow’s optimistic assertion that “an excuse for inaction based on the world’s lack of technological readiness does not exist.” It asserts that the existing legal authority of state and local governments to regulate and guide land use and building is a powerful “technology already deployed somewhere in the world:” a ready tool for attacking climate change. The Land Use Stabilization Wedge aggregates several of Socolow’s initiatives and employs multiple mitigation techniques available to citizens in every locality in the country.

Shifting Ground is the Land Use Law Center’s current research and development priority. It links transportation planning, land use regulations, building code enforcement, with the regulation of wind and solar power facilities to demonstrate how cities and developing centers can reduce millions of tons of greenhouse gas emissions. This project incorporates and adds to the work done in Losing Ground, Level Ground, and Breaking Ground. It also incorporates strategies discussed in a forthcoming article on Reinventing Urban Redevelopment Law which explores the many ways that cities can attract new populations and create high-quality, walkable neighborhoods. This article will be published in the Real Estate Law Journal.

 

Higher Ground: The Role of State and Federal Governments: Integrated Federalism

Katrina’s Lament: Reconstructing Federalism, written by Professor Nolon, is published with a collection of his previous law review articles in a special issue of the Pace Environmental Law Review (Special Edition 2006, Vol. 23, No. 3). The failure of the federal system to react effectively to the devastation of hurricane Katrina is emblematic of the dysfunction of the federal system: the tendency of local, state, and federal agencies and programs to work in silos rather than leverage their respective competencies and resources. By drawing on the notion of a framework law, as proposed by the United Nations Environmental Programme, the article proposes linking the separate but related land use powers and resources so that the tension among federal supremacy, states rights, and local home rule is mediated.

The special edition of the Pace Environmental Law Review also contains two articles that further buoy the notion that essential power for land use control should be delegated to the local level of government and can be used effectively, if it is properly guided, encouraged, and sometimes required by state and federal policy to accomplish regional, state-wide, and national interests. Both of these articles were published by the President and Fellows of Harvard College and the Harvard Environmental Law Review. Their short titles are In Praise of Parochialism and Champions of Change. These two articles explore the theory of grass roots problem solving, the diffusion of innovation, and the 15 years of experience of the Land Use Law Center in providing extensive training to local land use leaders, and guiding their innovations, though its Land Use Leadership Alliance Training Program, described at www.landuseleaders.com. The Gaining Ground Information Database was created to provide useful information to local leader perturbed by land use and environmental problems and interested in knowing how others had solved them. The database now provides a source of information for scholars and others interested in land use and environmental law innovations and problem solving. 

 

Common Ground: Mediating Environmental and Land Use Conflicts: the Kheel Center for the Resolution of Environmental Interest

The KheelCenter was created in April, 2008 and is supported by a one million dollar grant by famed labor mediator and arbitrator Theodore W. Kheel. This Center is administered by the Land Use Law Center. It is dedicated to developing a new practice area for attorneys in resolving environmental and land use conflicts. The Center has its own website where publications, bibliographies, events, and ideas regarding this area of practice are found. Pace LawSchool is adding courses for JD students and conducting CLE programs for attorneys on the subject as part of the Kheel program.

The KheelCenter examines the resolution of disputes in institutional settings such as the use of ADR in the Division of Court Operations in the New YorkState court system, environmental liability settlement under federal and state environmental statutes, and state and federal administrative law judge proceedings: relatively familiar institutional settings where the beginnings of environmental ADR practice are evident. Moving from these settings, the Center explores the management and resolution of environmental conflicts that arise in non-institutional settings where rights are less well developed, the conflicts are rapidly evolving, the stakeholders many, and where there are less obvious forums for conflict resolution.

 

Moving Ground: The Role of Law and Lawyers in Buying, Selling, Financing, and Constructing Real Estate, particularly large-scale urban developments involving creative public/private partnerships

New Challenges and Complexity in Real Estate Practice was written by Professor Shelby Green and Professor John Nolon. Under the Real Estate Law Institute created within the Land Use Law Center in 2004, we have produced several volumes of practice-oriented materials for attorneys on real estate transactions and finance and created a capstone academic course on the lawyer’s role in large-scale urban redevelopment programs. The Institute complements and supports Pace Law School’s LL.M. Degree Program in Real Estate Law, the third of its kind in the U.S. Through workshops for real estate industry leaders and their lawyers, continuing education programs for attorneys, and an on-going real estate research, the staff and students of the Center produce publications on a regular basis that can be accessed by contacting us.