THE SOUTHWESTERN LEGAL FOUNDATION
Proceedings of the
INSTITUTE ON
PLANNING,
ZONING, AND
EMINENT DOMAIN
9
Municipal Legal Studies Center
Dallas, Texas
November 18-20, 1987
the lectures in this volume were delivered at an Institute on Planning, Zoning,
and Eminent Domain at The Southwestern Legal Foundation. They represent
the views of their authors (not necessarily of the Foundation).
This institute, a continuing legal education program of The Southwestern
Legal Foundation, was presented under the direction of Clifford C. Mack, Vice
President. The Proceedings continue previously held Institutes on Planning
and Zoning and on Eminent Domain.
Editor
Janice R. Moss
1988
Matthew Bender
y
Books
TABLE OF CONTENTS
vi
CHAPTER 5. Recent Developments in Land Use and
Environmental Law: Revolution or Evolution?
BRUCE M. KRAMER
Professor of Law
Texas Tech University
Lubbock, Texas
CHAPTER 6. New Constitutional Standards for Land Use
Regulation: Portents of Nollan and First English Church
ROBERT K. BEST
Chief, Property Rights Litigation
Pacific Legal Foundation
Sacramento, California
CHAPTER 7. The Effect of State Legislation on the Law of
Impact Fees, With Special Emphasis on Texas Legislation
TERRY D. MORGAN
A ttorney-at-Law
Austin, Texas
Counsel to
Freilich, Leitner, Carlisle & Shortlidge
Kansas City, Missouri
CHAPTER 8. The Rise of State Constitutional Limits on
Planning and Zoning Powers
EDWARD J. SULLIVAN
Partner
Mitchell, Lang & Smith
Portland, Oregon
CHAPTER 5
Recent Developments in Land Use and
Environmental Law: Revolution or
Evolution?
BRUCE M. KRAMER
Professor of Law
Texas Tech University
Lubbock, Texas
Synopsis
§ 5.01.
Introduction.
§ 5.02.
The Taking Issue Cases.
[1] First English Evangelical Lutheran Church *. County of Los
Angeles—A Taking Is Really a Taking: Justice Brennan
Takes the Cake.
[2]
The Substantive Taking Test—A Missed Opportunity.
[3]
A Fly in the Ointment—Exactions and Regulatory Takings
After Nollan v. California Coastal Commission.
[4]
Division Among the Troops—Hodel v. Irving.
[5]
The Remaining Taking Issue Cases.
§ 5.03.
The Taking Issue in the Lower Courts.
§ 5.04.
Zoning and the First Amendment.
[1]
[2]
[3]
Adult Uses.
Group Homes.
Outdoor Signs and Advertising.
[4]
"Family" Definitions.
§ 5.05.
Dedication, Linkage, and Impact Fee Decisions.
§ 5.06.
In Accordance With a General Plan.
§ 5.07.
Prefabricated Houses.
§ 5.08.
Exclusionary Zoning.
I 5.09.
State Environmental Impact Statements.
PLANNING, ZONING, & EMINENT DOMAIN
§ 5.01
§ 5.10.
Miscellaneous Cases.
§ 5.11.
Msyor Environmental Law Developments.
[1] Air Pollution.
[2] Water Pollution.
[a] Statutory Changes.
[b] Cases.
[3] Toxic and Hazardous Substance Control.
[a] CERCLA and SARA Cases.
[b] Safe Drinking Water Act Cases.
[4]
[5]
5-2
[c] Miscellaneous Cases.
National Environmental Policy Act (NEPA).
Preemption and Federalism Issues.
§ 5,01. Introduction.
The past twelve months have seen major judicial developments in
the fields of land use and environmental law. A land use decision by
the Supreme Court of the United States was headline news in the
major dailies and appeared on the national evening television news
programs. Litigation was also prevalent in the environmental field,
although no major landmark decisions were issued. Instead,
litigation focused on the recent amendments to the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA) and the Resource Conservation and Recovery Act (RCRA).
In addition to the headline-making developments of the Supreme
Court, the lower federal courts and the state courts have been
dealing with a host of "local" land use issues which will also shape
the future of the land use planning process. While the Supreme
Court decisions create ill-defined guidelines for local action, it is
within those broad parameters that the state courts must determine
the validity or invalidity of local governmental decisions. It has
been a busy year in land use and environmental law.
§ 5.02. The Taking Issue Cases.
The Supreme Court had several opportunities to deal with the
jurisprudence of the taking issue. Unfortunately for those of us who
must explain the Court's jurisprudence and those of you who must