MSBA Land Use Institute Keynote Speaker
Hot Topics in Land Use Law
Keynote speaker Patricia Salkin, Esquire launched the MSBA Land Use Institute on October 5, 2021. She highlighted national trends and hot topics in Land Use Law.
Ms. Salkin, is a nationally recognized scholar on land use and zoning, having authored more than one hundred books, chapters, articles, and columns on land use related topics. She is an attorney and law professor and currently serves as the Vice President of Academic Affairs as well as the system-wide Provost of Touro College in New York. Ms. Salkin is best known for her nationally recognized blog, “Law of the Land,” which is a great resource for any attorney practicing in land use law and can be found here.
In no particular order or ranking Ms. Salkin identified and discussed the following hot topics and national trends in land use law.
Short term vacation rentals. Short term vacation rentals have been made popular by internet companies that connect homeowners with potential renters. Of course, these companies including Airbnb have been the subject of regulation and much litigation. Ms. Salkin discussed a San Francisco and New York City law that offer two examples of differing approaches to short term rentals that are worth studying.
Ms. Salkin cautiously warned that many short term rental laws have been vacated around the nation based upon vagueness grounds. For example, a Pennsylvania court ruled that a property owner was improperly cited in a zoning enforcement action for using his home as an Airbnb rooming house. “The court emphasized that the ordinance did not specifically define or regulate Airbnb use and in the absence of any unambiguous restrictions the zoning ordinance should have been interpreted in the property owner’s favor,” added Salkin. The point here is that counsel for municipalities need to be clear on definitions and on coverage. To watch Ms. Salkin discuss this first hot topic watch below:
Marijuana. The second hot topic in land use that Ms. Salkin identified deals with medical and recreational use of marijuana. Nearly all of the states permit some form of marijuana whether it’s medical or recreational, she said. “State and municipal governments have adopted various regulatory approaches in response to local concerns about marijuana dispensaries and properties used for cultivation, ranging from detailed zoning and permitting provisions to flat out bans.” Statutes in some states delegate to local governments the option to completely prohibit dispensaries and other marijuana land uses, while other states expressly preclude this type of marijuana ban. Examples of specific statutory provisions in different states were discussed including zoning laws and regulations that exclude marijuana land uses, but typically allow the continuance of any lawful preexisting dispensaries and cultivation facilities.
Another trend some state and local governments have adopted is distancing dispensaries and cultivation facilities from parks, schools, residential properties and other sensitive land uses. “These separation requirements have been largely upheld as zoning restrictions supported by a legitimate government interest in protecting public health and safety,” added Salkin. You may watch Ms. Salkin discuss the various regulatory approaches governing marijuana and explanation of the court cases below:
Elimination of single family zoning. Single family zoning has been cited by more people as of late for the causes of racial segregation in our housing patterns and also has been blamed for driving up the cost of affordable housing. In response, a number of municipalities in California, Oregon, and Minneapolis have eliminated single family zoning at the local level and some state legislatures have also considered following suit, added Salkin.
Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”). Religious land use litigation is always a hot topic, she said. The best place to get information on this topic and a ready resource for Ms. Salkin is the U.S. Department of Justice, Office of Civil Rights website. The DOJ documents cases they are currently investigating and publishes their cases and strategy in enforcement actions. Ms. Salkin added that Maryland has had its fair share of RLUIPA litigation.
Ms. Salkin also shared trends that land use lawyers should be thinking about, including racism and land use and the impact of restrictive covenants, environmental justice issues on a local level, health impact assessments (Baltimore recently conducted a health impact assessment), racial impact assessments (Montgomery County in Maryland is looking at racial impact assessments), and climate change and resiliency. Ms. Salkin concluded by reminding the group that the nuts and bolts of land use law are still very prevalent in today’s legal climate: standing, ripeness, variances, non-conforming uses of land, and regulatory takings cases.
Finally, Ms. Salkin discussed her blog – “Law of the Land” – which has over eighty different categories, including: architectural review boards, building codes, environmental justice, food trucks, nuisances, planned development districts, restrictive covenants, and zoning. The blog is designed to discuss current laws, policies, and decisions that affect the use of land, she said. The blog is “her passion.” She updates and maintains the blog so that she can contribute in a meaningful way to the body of knowledge in land use.