David L. Callies

The Quiet Revolution Revisited

Abstract The Quiet Revolution has taken some unpredictable turns since first chronicled in 1971. Hawaii—the set piece of die original book—remains prototypical in many respects, though die changes there are reflected elsewhere in die country as well. Among diem: resurgence of local government as a major factor in die shaping of land use decisions; the concommitant resurgence in local planning; the proliferation of permits required to undertake development; die tremendous federal incursion into the business of land use control; increased—and increasingly organized—citizen participation in land use control decisions; die taking issue.

The Role of Customary Law in Sustainable Development: References

For many nations, a key challenge is how to achieve sustainable development without a return to centralized planning. Using case studies from Greenland, Hawaii and Northern Norway, this book examines whether ‘bottom-up’ systems such as customary law can play a critical role in achieving viable systems for managing natural resources. Customary law consists of underlying social norms that may become the acknowledged law of the land. The key to determining whether a custom constitutes customary law is whether the public acts as if the observance of the custom is legally obligated. While the use of customary law does not always produce sustainability, the study of customary methods of resource management can produce valuable insights into methods of managing resources in a sustainable way.

Buckeye and Ballot Box Zoning: When Democracy is a Dangerous Thing

Abstract For the second time in a quarter of a century, the U.S. Supreme Court has reversed the Ohio Supreme Court in a ballot box zoning case. In the first, City of Eastlake v. Forest City Enterprises, the Court held that exercising the referendum power to return a parcel zoned multifamily by the Eastlake city council to its previous commercial classification was not a denial of due process by means of a standardless delegation of power from the state legislature to the people of Eastlake. This was because the people retained in the Ohio State Constitution the power to zone through the ballot box. So there was no delegation at all—standardless or otherwise. Twenty-seven years later, in City of Cuyahoga Falls v. Buckeye Community Hope Foundation, the Court finds that a referendum on a specific project site plan likewise passes due process scrutiny: “The subjection of the site-plan ordinance to the Citys referendum process, regardless of whether that ordinance reflected an administrative or legislative decision, did not constitute per se arbitrary government conduct in violation of due process.”

Taking Land: Compulsory Purchase and the Regulation of Land in Asia-Pacific Countries

= he government use of compulsory Tpurchase and land use control powers appears to be increasing worldwide as competition for space increases. The need for large and relatively undeveloped areas of land for agriculture and conservation purposes often competes with the need for shelter and the commercial and industrial development accompanying such development for employment, the production and distribution of commodities, and other largely urban uses. The free market does not always some would say often result in a logical and equitable distribution of land uses and attendant public facilities necessary to serve the use of land. One function of government is therefore: (1) to regulate the use of private land for the health, safety and welfare of its citizens; and (2) to help provide roads, water, sanitation, and other public facilities, as well as schools, parks and airports, etc. Accomplishing the former is generally done in accordance with some form or level of plan. Accomplishing the latter often requires the exercise of compulsory purchase powers, providing public land or interests in land in order to construct such public facilities or infrastructure. Tsuyoshi Kotaka Professor of Law, Faculty of Law, Meijo University

Solutions after Dolan: Land Development Agreements

Abstract Land development of any size and substance drives the need for a variety of public facilities to support it. Most common is the need for additional roads, public utilities, parks, and schools. To this list one could logically add police and fire stations and sanitary landfills.

Nexus Redux on Required Land Dedications

Abstract In Dolan v. City of Tigard, (1994), 46 ZD 232, the Supreme Court struck down a municipal building permit condition that the landowner dedicate bike pathand greenway/ flood-plain easements to the city. As the Court pointed out, had Tigard simply required such dedications, it would be required to pay compensation under the Fifth Amendment. Attaching them as building permit conditions required a more sophisticated analysis closely following Nollan v. Cali-fornia Coastal Commission, 483 U.S. 825 (1987), 39 ZD 226, since the police power is implicated rather than the power of eminent domain. In the process, the Court signalled how far local government may go in passing on the cost of public facilities to landowners. The answer: only to the extent that the required dedication is related both in nature and extent to the impact of the proposed development.

Regulatory Takings Redux: Which Land-Use Controls Will Survive?

Abstract The United States Supreme Court may be about to rewrite the law on land-use controls. It has accepted for review the beachfront regulation case of Lucas v. South Carolina Coastal Council, 404 S.E.2d 895 (1991), 44 ZD 93. At issue: the “notion” of regulatory takings under the Constitutions Fifth and Fourteenth amendments. The ramifications for attorneys practicing in the property and local government fields are major.

Regulatory Takings Redux and the Compensation Issue

Abstract Commencing with the U.S. Supreme Courts famous decision in Pennsylvania Coal v. Mahon, 260 U.S. 393 (1922), the federal courts have wrestled with the application of the Constitutions Fifth (and Fourteenth) Amendment to regulations that adversely affect the use of land. During a half-century when the Court heard no land use cases of substance, state supreme courts slowly managed to distinguish away much of the decisions chilling effect upon land use regulation and continue the regulation of land use approved by the Court in Village of Euclid v. Ambler Realty Corp. 1

The “Full Bore” Application of Hamilton Bank

Abstract Following the U.S. Supreme Courts decision in Williamson County Regional Planning Commission v. Hamilton Bank 54 U.S.L.W. 4782, 106 S. Ct. 2561 (1986), many commentators predicted that only with great difficulty could landowners successfully challenge local government regulations on Fifth Amendment taking issue grounds, let alone successfully persuade federal courts that compensation was due for such regulatory takings as could be proved.1 Not only did the Court appear to cast some doubt on the continued viability of the “notion” that regulations that went “too far” were protected by the Fifth Amendment, but the Stevens concurrence argued forcefully for a remedy other than compensation in the event a regulatory taking were found. Moreover, the main thrust of that opinion—that government must reach a “final decision” on the landowners applications for development before a federal court could determine whether property value was sufficiently depressed to consider a regulatory taking—suggested tha...

The Taking Issue Revisited

Abstract There are several interesting aspects to this latest “nondecision” of the U.S. Supreme Court. This comment addresses three aspects of the Courts judgment: the majoritys treatment of constitutional issues; the concurrence treatment of constitutional issues (and in particular the Stevens response to the Brennan San Diego dissent) and the zoning/local government issues, particularly those having to do with subdivision plats and the plat approval process. These aspects are not exclusive, and discussion of one will obviously spill into another.