LAND USE AND ENVIRONMENTAL WORKSHOP ACREL SPRING, 1997 MEETING SCOTTSDALE, ARIZONA

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1 LAND USE AND ENVIRONMENTAL WORKSHOP ACREL SPRING, 1997 MEETING SCOTTSDALE, ARIZONA I. Commerce Clause Limitations A. Pre-Lopez cases 1. U.S. v. Riverside Bayview Homes, Inc., 474 U.S. 121, 106 S.Ct. 455 (1985). Clean Water Act extends to isolated wetlands not flooded by adjacent navigable waters. (Also involved takings contention by landowner.) No analysis of 10th Amendment or Commerce Clause. 2. Hoffman Homes, Inc. v. United States EPA, 999 F.2d 256 (7th Cir. 1993). Isolated wetlands not subject to regulation by EPA - specific Commerce Clause argument made by owner but 7th Circuit decided case based on lack of evidence that migratory birds used or would be apt to use the wetlands. 3. Rueth v. United States EPA, 13 F.3d 227 (7th Cir. 1993). Affirms 7th Circuit opinion nearly all wetlands subject to Clean Water Act. 4. U.S. v. Banks, 873 F. Supp. 650 (S.D. Fla. 1995). B. Gun Free School Z ones Act, 18 U. S.C Tenth Amendment of U.S. Constitution requires limitation of the Commerce Clause to: 1. Channels of interstate commerce 2. Instrumentalities of interstate commerce and persons and things in interstate commerce 1

2 3. Activities having a substantial relation to interstate commerce (substantial effect upon interstate commerce) C. Post-Lopez cases 1. State of Alaska v. Babbitt, 54 F.3d 549 (9th Cir. 1995), amended 72 F. 3d 698. Public lands include navigable waters in which U.S. has an interest by virtue of Reserved Water Rights Doctrine. 2. Cargill, Inc. v. U. S., 700 F.Supp. 476, 820 F.Supp. 478, 896 F.2d 354, 55 F. 3d 1388 (9th Cir. 1995), cert. den., 116 S.Ct. 407 (1995). Clean Water Act extends to wetlands not connected to navigable waters based upon potential use of isolated wetlands by migratory birds, citing U.S. v. Riverside Bayview Homes, Inc.. Petition for Certiorari to U. S. Supreme Court denied, 116 S.Ct. 407 (1995). Justice Thomas, in a dissent to the refusal to grant certiorari, professes that the case suggests federal jurisdiction is not warranted and more far fetched than rejected in Lopez, that the Constitutional limits of land use regulation under the Clean Water Act provide a compelling reason to grant certiorari to the questions that were unresolved in U.S. v. Riverside Bayview Homes, Inc. D. Endangered Species Act. National Association of Home Builders v. Babbit and Beattie, D. C. Dist. of Col. No , December 6, The Delhi Sands flower loving fly case. The district court held that the fly is part of wildlife and there is substantial trade in imported and exported wildlife. The fly is exhibited in three museums outside California and interested persons travel to California from without the state to 2

3 observe and study the fly. The court concludes that the taking of species prohibited by the Endangered Species Act has an effect on interstate commerce, notwithstanding that the species is wholly located within the confines of one state. This case seems to wholly reject by circumvention of the Lopez doctrine. Case on appeal to Federal Circuit. E. Hoffman v. Hunt, 923 F. Supp. 791 (W. D. N.C. 1996). Freedom of access to clinic entrances (FACE). 18 U.S.C The court held congressional findings to support Constitutional authority under the Commerce Clause are not conclusive. The mere fact that Congress believes a problem is national in scope does not warrant ignoring the Constitutional requirement that an activity must have a substantial effect on interstate commerce..., citing similarity of facts to Lopez to reject federal regulation of picketing of a local abortion clinic. II. Lopez Ramifications - Historic Districts Flores v. City of Boerne, Tex., 73 F.3d 1352 (5th Cir. 1996). Catholic Church sought to expand facility; permit denied by Historic Landmark Commission and appeal denied by City Council. Church appealed alleging that the Historic Landmark Ordinance violated Religious Freedom Restoration Act. District Court held RFRA unconstitutional as infringing on right of judiciary to determine the law (RFRA was reaction of Congress to Employment Division, Dep t of Human Resources v. Smith, 49 U. S. 872, 110 S. Ct (1990). 5th Circuit reversed the District Court and held 10th Amendment not infringed. 3

4 III. FTC Preemption; Satellite Dish Antennas A. Federal preemption of land use regulations including zoning, building and other local regulations and any private covenants, homeowners association regulations or similar restrictions on use and control of antennas or satellite dishes, one meter or less in diameter, designed to receive television broadcast signals, video programming services, local multi point distribution services or direct broadcast satellite services. 47 U.S.C., 151, subpart (S) prohibits local and private regulation to the extent they impair use of antennas or satellite dishes less than one meter in diameter. Impairment is defined as: 1. Unreasonably delays or prevents installation, maintenance or use; 2. Unreasonably increases the cost of installation, maintenance or use; 3. Precludes reception of an acceptable quality signal. Exemptions may be sought for (a) written regulations to accomplish a clearly defined safety objective applied in a non-discriminatory manner to other devices and fixtures, and which writing is available to antenna users for examination, or (b) restrictions necessary to preserve historic districts eligible for listing in the Register of National Historic Places which are no more burdensome to affected antennae users than necessary to achieve objectives under the National Historic Preservation Act. Waivers may be granted to local governments or associations upon application and public notice. The parties may petition the FCC for a declaratory ruling. Burden of proof is on the party seeking to impose or maintain the restriction. 4

5 B. Any state or local zoning, land use, building or similar regulations which restrict or prohibit installation, maintenance or use of a satellite earth station antennae two meters or less in diameter located or proposed to be located in an area where commercial or industrial uses are generally permitted are presumed unreasonable and preempted. Effective date of rules - October 4,