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Abstract:
In 2000, Congress passed, and President Clinton signed, the Religious Land Use and Institutionalized Persons Act (RLUIPA), designed to provide protection from discrimination for the exercise of religion for incarcerated individuals and for those in need of various municipal permits or approvals in order to exercise their religion. With seven years of experience in the courts, this article examines the impact of RLUIPA on local governments across the country through an analysis of how the courts have been interpreting and applying statutory ambiguities and creating inconsistent doctrine in an effort to define terms and implement RLUIPA's protections. Whether an appropriate Solomon-like balance can be developed under the Act to clearly recognize compelling governmental interests in protecting the public health, safety and welfare through land use planning and various land use and local environmental controls remains elusive at this point in time and may depend upon the wisdom of the individual federal courts.

Section II of this article explores the uncomfortable relationship of government with religion, and the manner in which this relationship has affected the genesis of the constitutional interpretations of the Free Exercise Clause of the First Amendment. What constitutes the establishment of religion and whether RLUIPA aids government in the establishment of religion is beyond the scope of this article and will not be discussed in detail. Section II also examines the precursor to RLUIPA, the Religious Freedom Restoration Act (FRFA), enacted by Congress in 1993 and ruled unconstitutional in 1997. Understanding Congressional motivation for the enactment of RFRA, as well as its constitutional deficiencies, sets the backdrop for the last part of the section, which discusses the Congressional development and enactment of RLUIPA, including why Congress chose land use as a primary focus of religious freedom. Section III briefly reviews the arguments surrounding the constitutionality of RLUIPA, and while not attempting to fully analyze this issue, the discussion is provided since some believe that the statute's constitutionality as it relates to the land use provisions may be vulnerable to further constitutional attack.

Section IV discusses the operative provisions of RLUIPA, including both the substantial burden rule and the Act's nondiscrimination provisions. It explores how the courts have interpreted RLUIPA and its ambiguous terms, and discusses how various cases have been decided. Attorney's fees are also touched on.

Section V argues why RLUIPA, as drafted, may not necessarily bode well for local governments and their historical use of the police powers to guide community planning and community development. The article concludes with some final comments concerning the propriety of and need for RLUIPA.

religion and the law, RLUIPA, land use, First Amendment, Free Exercise Clause, Establishment Clause, religious land use, zoning

Abstract:
Global warming, climate change, reducing greenhouse gas emissions, reducing the carbon footprint, and going green are just some of the buzz words in the news over the last two years that have captured the attention of lawmakers and policymakers at all levels of government. In Congress, lawmakers have proposed, among other things, mandating standards to reduce greenhouse gas emissions, and governors across the country have announced myriad programs designed to encourage the use by governments of green products, the construction of green buildings, and the offering of a combination of tax incentives and grants for private developers and other members of the public who develop and install various renewable energy products. However, It is initiatives at the local government level that have the greatest potential for most quickly and most efficiently slowing the pace of global warming. This is because local governments are the critical decision-makers in how communities use and conserve key resources. Municipalities serious about curbing emissions as well as energy and water usage within their communities, to both combat global warming and to preserve the immediate environment, have found many successful ways to implement plans that reduce the strain on environmental resources. Local governments have begun to incorporate principles and goals of sustainability and carbon reduction into comprehensive land use plans. This paper begins to examine the elements of a "green audit" for local comprehensive plans and land use regulations.

smart growth, sustainable development, climate change, land use, environmental law, global warming, green development

Abstract:
A Community Benefits Agreement (CBA) is a private contract negotiated between a prospective developer and community representatives. In essence, the CBA specifies the benefits that the developer will provide to the community in exchange for the community's support of its proposed development. The validity and enforceability of CBAs has yet to be tested in court, but some have expressed concerns that the agreements will not hold up. Chief among the questions as to the validity of CBAs is whether community groups provide any real consideration for these contracts. Questions have also been raised as to who can enforce a CBA's provisions. Enforceability questions may also concern which parties are bound by developers' promises. Because the process of negotiating CBAs often involves local governments or elected officials, CBAs may also raise legal issues related to the propriety of planning process. While CBAs represent an opportunity to accomplish redevelopment projects in a manner that achieves social equity and engages all community stakeholders in the project with an eye towards designing a process and product that can be win-win for communities, myriad legal issues are present for all involved participants. This paper provides an overview of legal and policy implications of CBAs, highlighting how this new tool is currently utilized in a number of communities across the country.

community benefit agreements, social equity, community development

Abstract:
A community benefits agreement (CBA) is a private contract negotiated between a prospective developer and community representatives. In essence, the CBA specifies the benefits that the developer will provide to the community in exchange for the community's support, or quiet acquiescence, of its proposed development. The promise of community support may be especially useful to a developer seeking government subsidies or timely project approvals. The CBA is a relative newcomer to the toolbox of strategies that communities may utilize to ensure that development occurs consistent with the sometimes more narrow goals and desires of neighborhood residents, as opposed to the sometimes broader goals and desires of municipal and regional governing bodies. The CBA concept is still in its infancy. However, with only about ten years of experience with CBAs, a number of differences and similarities are emerging as case studies are developed and reviewed across the country. This article is intended to document a comprehensive review of major CBA processes in cities across the United States;some successful, some not so successful, and some still in the development stages to gain better insights into the legal, social, and political aspects of negotiating for social justice as part of the land development process.

CBAs, community benefits agreements, development agreements, social equity, community development

Abstract:
This article provides practitioners with a current review of developing legal and policy issues surrounding the growing use of community benefits agreements (CBAs). In addition to case studies describing CBAs across the country, the article offers practitioners a checklist of legal issues related to CBAs from contract law, to municipal law, constitutional law and alternative dispute resolution.

CBAs, community benefits agreements, environmental justice, developmenr agreements, municipal law, community negotiation

Abstract:
Municipalities across the country are adopting residency restrictions prohibiting convicted sex offenders from living in close proximity to places that children are likely to frequent. The number of sex offenders is large - by one report there are some 550,000 registered sex offenders nationally. As more and more local and state governments adopt residency restrictions, municipal lawyers and planners are increasingly finding themselves at the center of the debate. The literature and discussions in case law suggest that residency restrictions do not reduce recidivism, do not offer any real protection for potential victims, are generally not legally defensible, and thwart efforts to reform offenders and return them to society. This however, is ignored by the emotional demands of community residents to enact these laws to “protect vulnerable children” from convicted offenders. As a body is case law is starting to develop concerning these laws, it is becoming apparent that municipalities may have difficulty defending residency restrictions. This article provides a brief review of the literature and then discusses constitutional and statutory issues through an examination of recent caselaw.

sex offenders, residency restrictions

Abstract:
This article is one in a series of annual updates on reported cases and opinions in the area of ethics and land use regulation, A number of themes emerged from the round of litigation in the last year. The most surprising discovery was for a second year in a row, the number of reported cases involving allegations of unethical conduct on the part of land use attorneys. This article reviews these cases, as well as cases involving conflicts based on community involvement, familial relationships, employment and finacial interests; and cases involving allegations of bias and prejudgment.

conflicts of interest, ethics, land use, bias in zoning

Abstract:
Although the U.S. Supreme Court decision in Kelo v. City of New London did not change the federal law with respect to the ability of governments to exercise the power of eminent domain for economic or redevelopment projects, the public backlash from the opinion resulted in more than 600 proposed pieces of legislation, the establishment of task forces and study commissions across the country, and increased public awareness and scrutiny of proposed condemnations. This paper examines the state constutional and statutory frameworks in the tri-state region both pre- and post-Kelo. It discusses the NYS Bar Association Task Force on Eminent Domain, the reports from the New Jersey Public Advocate, and a new 2006 law from Pennsylavnia. In addition, the paper examines state court decisions post-Kelo in New York and New Jeresey. The use of eminent domain post-Kelo is examined through a series of case studies including: Atlantic Yards in Brooklyn, NY; Long Branch, NJ; Ardmore, PA; and Vineland, New Jersey. The paper concludes by advocating for reforms to government procurement/contracting laws, ethics laws and campaign finance laws to address recent allegations of potential improprieties in some redevelopment projects.

eminent domain, condemnation, Kelo, Atlantic Yards, Long Branch

Abstract:
The opportunity to develop a Community Benefits Agreement (CBA) typically arises when a developer announces plans to construct a major project, such as a stadium or a theater complex. Local residents and business owners may often welcome these projects, but they may also have legitimate fears, such as: Will the project displace local residents and local businesses, either physically or through gentrification? Will it cause traffic problems and generate noise, pollution, or other nuisances? Will the economic development benefits espoused by the developer actually create jobs that pay a living wage and offer decent benefits for residents in the neighborhood or in a larger geographic community? Will the developer seek and/or welcome public participation in the project design and review of environmental and community impacts? In short, will the developer and the resulting built project be good neighbors?

This article offers an analysis of legal and policy issues surrounding the development, implementation and enforcement of CBAs. Part II offers a general explanation of CBAs - what they are, what types of benefits they commonly include, and how they are negotiated and finalized. Part III briefly discusses the reasons behind the popularity of CBAs, and explains how they have been tied to smart growth and other social justice issues. Part IV reviews select CBAs from various cities, offering examples of successful models as well as discussing more controversial efforts. These case studies not only assist in understanding the dynamics of the CBA negotiating process, but also they illustrate some of the practical difficulties associated with the CBA model. These problems are discussed in greater depth in Part V. Part VI presents the legal issues surrounding CBAs, including questions of enforceability and validity. Finally, Part VII offers a checklist of items to be considered by developers, communities and municipalities before and during negotiations.

community benefits agreements, CBAs, social justice, environmental justice, community development, public participation

Abstract:
With almost ten years of nationwide dialogue and experimentation with the legal implementation of smart growth concepts at the state and local levels, this paper pauses to consider whether and to what extent success has been realized. The one certainty in this dynamic intersection of land development and conservation is that there is no one best model adaptable to all fifty states. Rather, to accommodate national diversity in local government structure, cultural relationships of people to the land, and differences in geography and a sense of place, the best lesson learned is that advocates and lawmakers alike must shape and adopt politically palatable policies, programs, and regulations to best fit their unique jurisdictional sustainability needs. However, with the realization that a lot of innovation is taking place at the state level in furtherance of smart growth initiatives also comes the reality that if states fail to continue to promote and refine these programs, the United States will lose the fight for sustainability. This paper examines the recent efforts by states to provide localities with the tools necessary to curb sprawl and to promote sustainable communities.

smart growth, sprawl, community development

Abstract:
Environmental justice goes to the core of traditional land use decisions: choosing sites for locally unwanted land uses (geographic equity); the process for deciding where to site these unwanted land uses, including the location and timing of public hearings (procedural equity); and sociological factors, including which groups hold the political power inherent in land use decisions (social equity). This articles discusses the various tools in land use planning and zoning that can used to promote and implement environmental justice principles.

environmental justice, environmental equity, social justice

Abstract:
With the rapid increase in the senior population due to the aging of the baby boomers, communities can no longer rely on federal and state government programs to deliver the necessary affordable housing stock to meet demands. Federal subsidized housing programs simply cannot add enough units to their stock to meet demand. And while other federal, state and local programs may offer limited financial assistance aimed at keeping seniors in their own homes, these efforts lack a focus on the production of affordable dwelling units or on methods designed to convert existing housing stock into more affordable options for seniors. Fortunately, this deficiency may be creatively and, perhaps more appropriately, addressed at the local government level through the exercise of existing planning and zoning authority. Part I of this article discusses population statistics in greater detail, exploring available financial demographics of seniors and showing that many seniors are likely to be in need of affordable housing today, and that many more will likely join this group in the future. Part II discusses the role of the federal and state governments in providing affordable senior housing and concludes that these programs have typically failed to yield effective results on a wide enough basis. Part III focuses on the impact that local governments can have immediately in helping to address the affordable senior housing crisis through the use of planning and land use regulatory authority. The article concludes in Part IV with a call for the federal and state governments to further incentivize local governments to provide front-line relief in the quest for affordable senior housing. This may, in the end, produce the quickest, most efficient and most cost effective solution to a crisis that started quietly but is about to explode with a big bang.

seniors, elderly, senior housing, affordable housing, zoning, accessory dwelling units, low income seniors, baby boomers

Abstract:
People have been trying to exclude chain stores from their communities for decades. This includes "big-box" chains - the behemoth retailers that prefer an architecture of rectangular, single-story unadorned structures reaching 200,000 square feet or more - as well as national and international businesses including well-recognized fast food restaurants, drug stores and clothing retailers. The reasons for restricting these large corporate businesses include concerns over community character and aesthetics, local economics and self-reliance, and corporate ideologies. Over time, many municipalities have been forced to accept that "formula retail" and "franchise architecture" are simply part of the American economy. In many communities, the emphasis has shifted from efforts aimed at prohibiting these retailers to strategies aimed at implementing land use controls and other programs designed to regulate these businesses so as to minimize potential negative community impacts.

Part I of this Article focuses on the reasons why communities attempt to regulate formula based businesses, including concerns over community character, economic and environmental impacts, and social equity issues. Part II explores legal strategies to minimize the negative effects that often result from the location of formula based businesses through a host of local land use controls including comprehensive plans, zoning ordinances, special use permits, size caps, historic district regulations, design guidelines and site plan review, formula business restrictions, town-serving zones, and vacant store ordinances. Part III examines locally initiated or implemented economic and social regulations and programs to counter impacts from formula based businesses. These strategies include economic impact review initiated by the local government, as well as nongovernmental, community-based strategies that complement municipal efforts to regulate formula businesses, including the use of community benefits agreements and the impact of independent business associations and the local currency movements. The Article concludes with the thought that careful, strategic, community planning, along with a combination of municipal regulatory programs and grass-roots initiatives, can yield thriving communities both with and without certain formula retail establishments.

big box, formula retail, formula based business

Abstract:
Conflicts of interest, bias, and appearance of impropriety continue to plague players in the land use game whose conduct, as public sector officials, must be beyond reproach. This article provides an annual review of reported cases and opinions involving allegations of unethical conduct in land use decision making. Conflicts of interest cases focus on attorneys, and address issues including of counsel relationships, disqualification and fees. Conflicts based upon financial interests for board members are explored, as well as unique relationships that may arise when colleges and universities seek approvals. Criminal aspects of decision maker conduct are also reported. Appearance of improprety issues, including whether absent board members can or should vote on applications, and the filling of vacancies by a "lame duck" board are discussed. Bias and prejudgment issues are discussed in the context of statements made by board members prior to application review, as well as board member conduct and participation in petition efforts, and the use of ethnic slurs at public meetings. The article concludes with an update on opinions related to dual office holding.

ethics, land use, zoning, conflicts of interest

Abstract:
Published just weeks before the U.S. Supreme Court handed down their controversial decision on Kelo v. City of New London in 2005, this article, in correctly predicting the outcome of the Supreme Court opinion, explores in Section I how the concept of what constitutes a public use has evolved over the decades from traditionally accepted uses such as public roads, buildings (e.g., government buildings and schools), and utilities to urban redevelopment. It explains how the broad concepts of community redevelopment have been stretched to encompass needed economic development projects that promise jobs, tax revenue, and other public benefits similar to those currently being debated before the courts of our country. Section II begins by briefly examining the development of the "public use" clause with respect to eminent domain. Section III discusses a recent policy guide adopted by the American Planning Association (APA) on community redevelopment. Section IV then examines three significant cases from 2004 that crystallized around the question of what constitutes a valid public purpose under eminent domain when the government's motivation is to promote economic development in the municipality. Section V concludes that the U.S. Supreme Court should confirm that economic development is a valid public use for the purpose of eminent domain, and that the public-private partnerships that have evolved to assist governments in meeting redevelopment needs are a necessary and appropriate strategy fostering a valid public use.

eminent domain, community development, redevelopment, economic development, Kelo, Hathcock

Abstract:
This commentary explores recent reported cases involving conflicts of interest from around the country to provide planners and land use attorneys with practical insights into how courts assess these conflicts within the context of planning and zoning. Conflicts involving consultants, board members and board chairs are explored, as well as familial conflicts of interest involving spouses, children, parents and other relatives of board members. Allegations of bias, prejudgment and bad faith are also discussed. These issues are particularly important for planners and lawyers who advise municipal boards since there is often no ethics officer at the local government level and no other place for these public servants to seek guidance on ethics issues. This often puts the professional planning staff and local government attorneys on the front line in ethics quagmires.

ethics, land use, zoning, conflicts of interest

Abstract:
New York ranks eight out of the 50 states in terms of carbon emissions. While the State government is just beginning to enact meaningful programs and incentives to encourage municipal policies and actions that will reduce the impact of local decisions on our carbon footprint, a number of local governments across the State have already been at work developing and adopting "greening" strategies, policies and regulations. While the New York State Bar Association has released for comment a report of its Task Force on Global Warming which documents an impressive two-dozen current state-level laws and programs on climate change, the fact remains that there has been little public sector benchmarking to determine whether the quantity of programs is yielding quantifiable results to ensure that investments are being made wisely. Further, there is a lack of overall state-level coordination among the dozens of programs and resulting initiatives leading to confusion, potential diffusion of state resources, less than perfect communication within and between the executive and legislative branches of government, and missed opportunities.

While meaningful State-level programs are vital to achieving emissions reductions goals, a state cannot be successful without collaboration and partnerships with its local governments. Fortunately, many New York cities, towns and villages have also been at work trying to develop and implement strategies to curb emissions. Municipalities are choosing to adopt clear statements and action items in their comprehensive land use plans; they are creating climate change or sustainability task forces and developing strategies; and they are enacting regulations to promote green building and alternative energy development. Unfortunately, while somewhat anecdotally it appears that roughly one hundred local governments have adopted serious climate change and energy efficiency initiatives, this number is dwarfed by the realization that New York is home to approximately 1,600 units of local government. New York must do more to recognize the importance of local action through a combination of incentives and technical assistance that includes access to reliable data and other related information.

This article is not intended to critique all of the state-level programs and initiatives in New York. Rather it seeks to demonstrate that while there is a substantial level of activity in New York with respect to climate change and energy efficiency issues, the true potential of these programs will not be fully realized because New York lacks a coordinated, comprehensive and fully integrated inter-jurisdictional approach to addressing these challenges. Although New York is selected as the focus of study, similar observations may be made in jurisdictions throughout the country, and the recommendations are equally portable. Part II focuses on local governments as the laboratories of innovation, highlighting a number of creative and ambitious programs adopted and tools and techniques employed to address climate change issues at the municipal level. This part contains a brief mention of federal and state preemption issues, as a reminder that all levels of government must be working together with the same goals in mind. Part III offers recommendations as to what the State can do to encourage more activity at the municipal level where change in behavior and regulatory reform has great potential to quickly reduce the carbon footprint in communities across the State.

climate change, green development, energy efficiency, wind farms, wind development, LEED Certified, climate action plan

Abstract:
This article is a brief introduction to The Albany Government Law Review sympoisum on God and the Land. This piece sets forth a brief history of the Religious Land Use and Institutionalized Persons Act (RLUIPA) setting the backdrop for the controversy that has surrounded the Act and its impact on religious entities and municipalities. Since the enactment of RLUIPA, the floodgates have burst open with litigation in attempts to clarify many ambiguities in the statute. The remainder of the piece provides a sneak preview of the articles conatined in The Albany Government Law Review by Professors Angela Carmella, Marci Hamilton, Shelley Ross Saxer and Elizabeth Reilly, and by practitioners Wendi Kellington, Dwight Merriam and Daniel Dalton.

religious land uses, RLUIPA, zoning and religion, religious use

Abstract:
Obesity, asthma and nutrition are just three public health challenges facing children and adults that can be addressed through land use planning and zoning. States must take a leadership role in providing statutory authority and guidance for local govenrments to enact and implement laws and ordinances designed to promote active living. Land use policies, transporation policies, redevelopment policies and open space and recreation policies are key areas where reform is needed. This paper highlights exisiting examples from various states and offers lawmakers, policymakers and advocates options for reforming state laws to incentivize and influence local actions.

zoning, land use, active living

Abstract:
There has never been a more challenging time to practice land use planning and zoning law in New York. With goals of sustainability at the forefront of the land use regulatory agenda, this brief account of recent developments in land use law highlights some discernable trends, namely: the modernization and increased flexibility of New York State planning and zoning enabling acts, the inspired local initiatives and lethargic State response to affordable housing issues, and the increasing impact of alternative energy systems on local regulatory schemes.

Part I of this article explores the impacts on community development caused by the many modifications to New York State’s planning and zoning enabling acts over the last two decades. Particularly, the article identifies the delegation of extensive discretionary authority to local governments as New York’s signature approach to land use control.

Part II discusses “affordable housing” as a key attractant for judicial action and local government response. With the exception of the Long Island Workforce Housing Act in 2008, the State has been slow to act on judicial calls to action, forcing local governments to develop unique solutions in order to provide affordable housing.

Finally, Part III notes the challenges being faced by lawyers and planners in light of growing preference for alternative energy systems, with specific focus on reactions to Wind Energy and Solar Energy installations.

Property, land use planning, zoning, regulation, sustainability, community, development, affordable housing, alternative energy, wind energy, solar energy

Abstract:
This paper focuses on current legal issues in ethical considerations in land use planning and zoning decision making with a particular emphasis on a new code of ethics for wind farm development recently announced by the New York Attorney General.

ethics, wind, alternative energy, zoning, land use, conflicts of interest

Abstract:
Critical to the goal of achieving sustainable development is governments' ability to maintain public information, including maps, charts, statistics, and narrative text, about a wide variety of environmental factors, indicators, resources, and threats in easily understandable formats that are readily accessible to the public. While federal and state freedom of information laws help to ensure a relatively high rate of public access to traditional information, such as environmental impact statements, studies and reports,significant environmental events and resources, and census data, the growing use and reliance on geographic information systems ("GIS") has the potential to move the public discourse to a more sophisticated plane. The availability of this data, however, was seriously curtailed in the aftermath of September 11, 2001, despite a Rand report concluding that most of this information would either be of no value to terrorists, or was not uniquely available through government sponsored portals. Withholding important environmental and public health related GIS data compromises important values of our democracy, including government accountability to the people and an open and honest communication between the government and the people. While many may have understood the immediate post-September 11 reaction that produced such an unprecedented shut-down of many information pipelines, these quick reactions should have been temporary in nature, a brief moratorium of sorts. Now that four years have passed, it is time to re-open the flow of facts and figures. Achieving a sustainable environment is dependent upon the ability of the community to access relevant, accurate and timely information from its federal,state, and local governments.

GIS, environmental law, freedom of information laws, homeland security

Abstract:
By 2004, more than half of the United States population resided within fifty miles of the coastline, contributing to the mounting pressures on waterfront development. Local waterfront revitalization plans have great potential to efficiently guide community and coastal development in a coordinated fashion across municipal boundaries. Coordination includes intermunicipal and intergovernmental cooperation and consistency as well as coordination between planning and land use controls within the coastal zone and within the boundaries of coastal communities. Part I of this article examines the history of the Coastal Zone Management Act (CZMA)with a particular examination of the Act's impact on local comprehensive land use planning, and it includes a brief discussion of the implementation of the CZMA in various states. Part II focuses on the New York State Coastal Zone Management Program and its requirements for consistency and local land use planning. Part III examines the comprehensive land use plan in New York and the level of coordination between this planning technique and state funded Local Waterfront Revitalization Programs (LWRP). It highlights the lack of legal guidance in New York regarding the relationship between these two documents. This Part also examines how some other states have interpreted or defined coordination and consistency between local comprehensive land use plans and locally developed plans pursuant to state coastal zone programs. The article concludes with the recommendation that a statutory change is needed in New York to directly link the LWRP to local comprehensive land use plans to achieve a more integrated planning and zoning regime within individual municipalities (as well as vertical consistency with state coastal policies), and to provide an effective enforcement mechanism for the LWRP beyond initial state approval of the plan.

coastal zone management, local waterfront revitalization plan, coastline, waterfront redevelopment, ocean law

Abstract:
Although a coordinated national policy on climate change should be developed, initiatives at the local government level through the land use planning and regulatory control processes have tremendous potential to dramatically contribute to the reduction of green house gas emissions, leading to a reduction in the carbon footprint and ultimately to a more sustainable environment. Part I of this article discusses opportunities for using the comprehensive land use planning process to address sustainability and provides examples of how this is being accomplished across the country. Part II mentions the growing number of state and local climate action plans (and cross-references a forthcoming article from the Houston Environmental & Energy Law and Policy Journal that details current developments in this area). Part III focuses on addressing emissions through the use of environmental impact reviews, and Part IV highlights how sustainability is being addressed through zoning and other land use regulations. Part V examines how green building standards are addressing sustainability, and Part IV illustrates how stormwater and landscaping initiatives are also being employed to accomplish these goals.

climate change, global warming, land use, zoning, sustainable development

Abstract:
It is not uncommon for members of planning and zoning boards to have conflicts of interest with repsect to applicants and applications before the board. When these members disclose and recuse themselves from further involvement in pending matters, it can lead to problems including a lack of quorum for the conduct of business and to tie votes resulting in either inaction or in default approvals. A number of states specifically authorize, but do not require, the appointment of alternate members to these local land use boards. However, many of these statutes fail to provide necessary guidance as to how alternate members are to be selected and appointed, and what their responsibilities and powers are during their term of office. This article offers lawyers, municipal officials and other community leaders best practices with respect to the drafting of effective local laws for the appointment of alternative members of planning and zoning boards.

zoning, ethics, alternate member planning board, alternate member zoning board, conflicts of interest

Abstract:
A host community agreement (HCA) is a contract between a developer and the local governing body or bodies of the host community, whereby the developer agrees to provide the community with certain benefits and mitigate specified impacts of the project. This has been a popular device with wind farm developers and municipalities. While the media focus, and much of the public discussion, has been on the financial benefits HCAs can generate, they can also be important tools in the environmental arena, by providing protocols for noise testing over the life of a project, insuring that local roads are properly remediated from the effects of the wind farm construction, and securing the funding for decommissioning that may not occur for decades. Some, however, have questionned whether HCAs amount to illegal contract zoning or unethical practices. Because of the varied role they play, HCAs rely on a variety of municipal powers for their legality. This article examines the role of the HCAs in wind farm developments, and their basis in New York law, in particular the legal basis for the financial benefits paid to local communities.

host community agreements, wind farm development, siting of wind turbines, wind energy

Abstract:
The traditional link between disaster mitigation and local land use planning was highlighted by the Disaster Mitigation Act (DMA) of 2000, which emphasizes the need for mitigation coordination among state and local entities. This article looks at the role of local governments in natural disaster mitigation, specifically, how local governments may use traditional land use powers, such as the police power, to protect against disasters. The paper cites DMA provisions that offer financial incentives to states that work with local governments to plan for growth and disasters; and sets forth case studies to illustrate how states can create vertical links among federal,state, and local entities to coordinate disaster mitigation strategies.

disaster mitigation, disaster preparedness, environmental law, land use law

Abstract:
Following allegations of corruption and unethical conduct on the part of both wind farm developers and municipal officials, the New York Attorney General unveiled a voluntary code of ethics for wind energy companies. Perhaps recognizing the gaps in municipal ethics laws and regulations at the state and local level, this voluntary code is an avenue for indirectly regulating the conduct of municipal officials. The only potential signatories to the voluntary code are wind companies, and to date, only two companies have signed - and both of these companies were facing investigations by the Attorney General. This article compares provisions in the voluntary wind code of ethics with existing state statutory language regulating disclosure of interests, gifts, lobbying, employment, education and training and notification. A copy of the code of conduct for wind farm development is appended to the article.

municipal ethics, wind development, government ethics, conflicts of interest, lobbying

Abstract:
The long recognized common-law privilege afforded to certain conversations between attorneys and their clients has been the subject of troubling opinions when the lawyer and client are high ranking government officials. In a series of opinions from the 7th, 8th and D.C. Circuit Courts of Appeals, the courts refused to recognize the existence of the attorney-client privilege for the government actors under the circumstances surrounding the cases. However, recent opinions from the 2nd Circuit state that these other courts were simply wrong, setting the stage perhaps, for the U.S. Supreme Court to resolve the issue. Whether this privilege is equally applicable in both the public and private sectors remains controversial at best, and it has been used as political leverage in attempts to uncover what might otherwise be confidential information, leaving government lawyers and their clients with a level of unreasonable uncertainty regarding the sanctity and security of their professional relationship. Meanwhile, the American Bar Association and states across the country have advanced rules of professional conduct for attorneys that include as a key foundational concept the necessity of preserving the confidentiality of information communicated from a client to his/her attorney. The article concludes with a series of recommendations aimed at clarifying the privilege in the public sector context.

government ethics, attorney client privilege