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Archive for February, 2013

Take Back the Night

Night

I thought this was a really interesting piece of drafting work. The International Dark-Sky Association and the Illuminating Engineering Society of North America have a model lighting ordinance, aimed at reducing metropolitan light pollution. It proposes creating a new form of land use regulation: lighting zones.

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The Bronx is Next?

South Bronx

All of the solid building stocks in Brooklyn were discovered at least a decade ago — and since then, people have taken to upgrading parcels in the Victorian slums of that borough, like Bushwick. Upper Manhattan is well on its way, too, with new investors moving into the multifamily buildings of Harlem, Washington Heights, and Inwood. (To be fair, Bloomberg does note that some of the recent uptown sales activity flows from multiple sales by institutional investors who are bailing out of big, pre-2008 bets that they had made on those neighborhoods.) Queens is really interesting, culturally, but it has a limited number of existing, traditionally urban neighborhoods. So where’s the love for some of New York City’s best apartment architecture, rarest Victorian mansions, most unusual topographies, and densest transit infrastructure, in the urban core of the Bronx? And does recent activity in the Arthur Avenue section offer a preview of what may be coming? (I really hope not.)

(Here, an Art Deco residential building and a Gothic-style stone church stand beside one another on the edge of a steep hill, where East Tremont Avenue drops to meet Valentine Avenue in the Tremont section of New York City. Note the intricacy of the relationship between the buildings and their respective contexts: The architects of the apartment house clearly designed their building for this parcel, following the curve of East 176th Street for the contour of their façade, and taking advantage of the adjacent church tower’s five-foot setback to create double-exposed corner windows. Meanwhile, the church, though suffering a location without southern exposures, is located on a parcel opposite a park, whose perpetual open space has maximized the amount of sunlight that illuminates the large, stained-glass windows.)

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The Bureaucracy of Starting a Business

Matt Yglesias has an article on Slate about all that was involved in becoming a one-unit landlord in Washington, D.C. He’s not kidding. I’ve been doing research since last summer for a consulting firm that helps businesses to locate their licensing and regulatory requirements, and it really is incredible to see the layers of bureaucracy that exist in certain jurisdictions.

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Why Read Unpublished Opinions?

A reader (who isn’t a lawyer) asks: Why read summaries of unpublished court opinions when they don’t represent applicable law? It’s a good question, and I’ll try my best to tackle it. First, the reader is right: Unpublished opinions have no precedential value in the courts. That means that future courts are never required to follow the holdings of these cases. Second, in New Jersey and many other jurisdictions, it would be a violation of court rules for a lawyer to cite an unpublished opinion even for its persuasive value without explicitly noting that the case was unpublished, and providing copies of the cited opinion and all known contrary unpublished opinions to the court and opposing counsel. In short, the courts strongly discourage litigants from explicitly basing their arguments on the reasoning of unpublished cases. So, why look at these cases? The best answer I can provide is that the cumbersome (and often prohibitive) nature of unpublished opinions in the course of litigation does not mean that the reading and awareness of these decisions is without value.

For a number of reasons, the vast majority of trial court opinions and as-of-right appellate opinions are unpublished. (These include the common recurrence of similar issues, a desire by judges to maintain a manageable and consistent set of controlling precedents, and a desire by judges to make decisions on instant cases without being subjected to eternal, hairsplitting scrutiny.) But in spite of the practical bases for excluding most decisions from precedent, such decisions still do show the law in action. They show general arguments that have prevailed in real cases. And particularly in a narrow subject area, unpublished opinions can offer valuable insight into the reasoning of courts and (sometimes) individual judges. In addition, unpublished opinions shed a great deal of light on the real issues and disputes that are arising within the context of a particular specialty (like land use and zoning) at any given time. So, reading unpublished opinions can be a valuable way to keep up with the changing landscape. Finally, a lot of the unpublished cases are just plain interesting. Because they are not written to be precedent, they often do not involve major legal controversies that would require a great deal of context to be understood. Instead, these decisions tend to focus on the application of well-worn rules to a unique set of facts, and provide insight into the politics, strategies, and tactics of the individuals whose experiences come in contact with the legal system. For all of these reasons, I think it’s good for lawyers to keep an eye on the stream of unpublished opinions in their areas of interest.

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Scales and Lamp USSCThere were no published opinions on land use or zoning in the New Jersey appeals courts this week. Among unpublished opinions, three touched on land use or zoning matters.

1. In RIYA Cranbury Hotel, LLC v. Z.B.A. of Twp. of Cranbury, et al., an Appellate Division panel affirmed a trial court’s holdings that a banquet facility constituted a restaurant under the town’s zoning ordinance; that an architectural feature did not constitute a sign, under the same ordinance; and that the granting of a D variance permitting a wine shop in a zone whose ordinances did not specifically allow such a use exceeded the limited powers of discretion that zoning boards enjoy to grant use variances.

2. In Kanter v. the Municipal Council of Wallington, et al., a pro se appellant challenged a decision by the local zoning board to grant a variance to a politically-connected company. The board’s decision had subsequently been upheld by the municipal council, and then by the Superior Court, on the challenged points. The case did not raise any substantive issues of New Jersey land use or zoning law, but instead raised procedural points, mainly stemming from alleged technical violations of the Open Public Meetings Act. Here, the Appellate Division panel affirmed the trial court’s disposition of the case, allowing the board’s decision to stand.

3. Finally, in Ginsburg Development Companies., et al. v. Twp. of Harrison, an A.D. panel vacated a trial court’s holding that a developer would not have to pay its share of infrastructure improvements, pursuant to a developer’s agreement, until it commenced building. The A.D. distinguished the facts of this case from those of two precedents on which the lower court had relied. The panel found, inter alia, that because the developer had not disavowed its plans (which would necessitate the improvements), or sought to modify those plans in such a way that its presumptive pro rata share of the resulting costs would change, that the facts of this case were inconsistent with those of the precedents. The judges also noted that a contract had already been awarded for the work of those improvements, and that, in awarding that contract, the township had acted pursuant to its agreement with the developer.

The temporary New Jersey Courts links are alive for now, but the opinions will be archived at the Rutgers Law Library next week.

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This recent lecture by Louis P. Masur is pretty fascinating.

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Leonard Lopate interviewed Sam Roberts, author of Grand Central: How a Train Station Transformed America, for the Terminal‘s 100th anniversary. In addition to the station’s architectural significance, its role as catalyst for the covering over of Park Avenue (between East 45th and 97th Streets) created some of the city’s best residential blocks, and it is no coincidence that the boundary between the Upper East Side and Spanish Harlem has long been 97th Street. The placement of the terminal itself also helped turn Midtown into the commercial center of the city, and in the 1970s the property would play a pretty important role in the development of U.S. historic preservation and land use law.

In some ways, the city changes so often it’s like a kaleidoscope. But that smell of oil and brake dust that permeates the tunnels of the lower concourse, along with the sounds of hissing air brakes and countless ventilation fans, is almost timeless.

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