Planners and the Public Realm: Legal Rights and Planning Issues
You'll learn about:
The constitutional and other legal principles — particularly First Amendment principles — associated with use of public property.
The public forum doctrine, i.e., how public property is classified for First Amendment purposes, and what classifications under the public forum doctrine mean for the government's ability to regulate or prohibit certain speech- and religion-related activities on sidewalks, streets, parks, grounds of public buildings, and other government property.
Ideas for practical strategies to accomplish planning goals, such as encouraging attractive, safe, and vibrant public spaces, while ensuring that you do not encounter legal trouble as a result of the legal principles discussed above.
Planners are frequently called upon to provide for the physical and functional use of public property, including parks, sidewalks, streets, public buildings, and other government property. However, government property carries special legal treatment with respect to fundamental constitutional rights of free speech and religious exercise. This session will give planners of all levels of experience a general overview of some of the legal principles governing the regulation and use of public property, and will provide practical strategies to avoid legal trouble.
We will note how the U.S. Supreme Court's decision in Reed v. Town of Gilbert can affect the legal rules for the use and regulation of public property. For example, panhandling and solicitation by homeless persons, parades and demonstrations in public spaces, real estate or other signs in the right-of-way, and even simple activities such as sidewalk leaflet distribution are forms of protected speech, meaning that governments cannot prohibit these activities and must regulate them in a content neutral manner. Similarly, religious displays and worship — such as the use of public space for an Easter service — is constitutionally-protected religious exercise, yet the government is prohibited from sponsoring such activities under the Establishment Clause of the First Amendment. Even the use by telecommunications companies of right-of-way for transmission lines carries federal legal protection.
This session will explore how planners can, through both physical planning (of parks, streetscapes, and other public spaces) and functional planning (public events and other uses of public property), ensure that public spaces achieve planning goals while ensuring that constitutional rights and other legal principles are not violated.
, Otten Johnson
Confirmed SpeakerBrian J. Connolly is a planner and attorney in the Land Use practice group with the Denver, Colorado law firm of Otten Johnson Robinson Neff & Ragonetti, P.C. Brian represents public- and private-sector clients in matters relating to zoning, planning, development entitlements and other complex regulatory issues. Brian’s practice encompasses a broad range of land use matters including zoning compliance, rezonings and other regulatory amendments, planned-unit developments, development agreements, private covenants and restrictions, land use and zoning litigation, initiatives and referenda associated with land use approvals, and real estate transactions. Brian additionally specializes in the First Amendment and land use issues associated with outdoor sign and advertising regulation, and fair housing matters in local planning and zoning. Brian is an author or co-author of two books and several articles on land use law topics, and Brian has been selected by the American Bar Association as editor of the forthcoming publication Local Government, Land Use and the First Amendment: Protecting Free Speech and Expression. Brian holds a J.D., magna cum laude, from the University of Michigan Law School, as well as a Master of Regional Planning and B.S. in urban studies, both from Cornell University.
, Cleveland State University
Confirmed SpeakerAlan Weinstein holds a joint faculty appointment at the rank of Full Professor with Tenure at Cleveland State University’s Cleveland-Marshall College of Law and Maxine Goodman Levin College of Urban Affairs, and also serves as Director of the College of Law’s Master of Legal Studies (MLS) Program and the Colleges' Law & Public Policy Program, and Joint Degree Programs in Law and Urban Planning & Development (JD/MUPD) and Law and Public Administration (JD/MPA). Prior to his appointment at Cleveland State, he taught at the University of Wisconsin’s School of Architecture & Urban Planning, the Jacob D. Fuchsberg Law Center at Touro College, and Wayne State University Law School. Professor Weinstein’s education includes a B.A. from the University of Pennsylvania, a Master of City Planning (M.C.P.) from the Massachusetts Institute of Technology, and a J.D. from Boalt Hall School of Law at the University of California, Berkeley. Professor Weinstein is a nationally-recognized expert on state/local government, land-use planning and law who lectures frequently at planning and law conferences and has published over seventy books, treatise chapters and journal articles. Professor Weinstein served as Chair of the Planning & Law Division of the American Planning Association (APA) from 1990 to 1992 and was one of the national experts in planning law who served as Reporters for APA's monthly publication, Planning & Environmental Law, from 1990 to until it ceased publication in 2015. Professor Weinstein’s research and writing has focused on various aspects of state/local government law and land use planning and policy. He is the co-author, with Brian Blaesser, Esq., of the treatise, Federal Land Use Law & Litigation (Thomson/West 2017) and a co-author and co-editor of Land Use and the Constitution (APA Planners Press 1989). In 2004 he served as a consultant to the Cleveland Bar Association’s study of the prospects for regional governance in Cuyahoga County and in 2009-10 worked with the Brookings Institution and Rebuild Ohio in their study of prospects for regionalization in Ohio In addition to his teaching, research and writing, Professor Weinstein has over 35 years of experience in practice as a planner, attorney, consultant, and expert witness in settings ranging from research design and project management to state and federal court litigation at both the trial and appellate levels.
, Weiss Serota Helfman
, Fort Lauderdale
Confirmed SpeakerSUSAN L. TREVARTHEN, ESQ., FAICP chairs the Municipal Land Use and Zoning practice and is a Member of the law firm of Weiss Serota Helfman Cole & Bierman, P.L. in Fort Lauderdale. She handles land use, planning and zoning matters for governments, and is Town Attorney for a Broward coastal community. Her work includes reviewing and negotiating development agreements and approvals, drafting municipal codes and plans, advising municipal staffs, managers and attorneys, defending challenges to municipal regulations and decisions, handling public hearings, and counseling elected officials, as well as advocating for municipalities on legislative issues in her field. Her practice also includes constitutional law issues (such as regulation of First Amendment-protected land uses including signs, places of worship and adult uses, and takings and Harris Act issues); hot topics in zoning law such as medical marijuana, sober houses and vacation rentals; and public school facilities. Ms. Trevarthen is board certified in City, County and Local Government Law by the Florida Bar, has been recognized as one of the top land use attorneys in the state in publications such as Florida Trend Magazine and SuperLawyers, and is AV rated. Ms. Trevarthen has held leadership positions in the Florida Bar’s Section for Environmental and Land Use Law and Section for City, County and Local Government Law. Susan grew up in Boca Raton, Florida. She was graduated from University of North Carolina at Chapel Hill with a joint degree in law and planning (M.R.P. and J.D., 1991) and from Duke University (A.B., 1986).