Urban Lawyer, The

Published by American Bar Association
This article reviews the decisions of the U.S. Supreme Court for the 2005-2006 term focusing on decisions of particular relevance to state and local government. The Court's 2005-06 Term began with much speculation as one, then a second new Justice joined the Court. After the close of the 2004-05 Term, the Court suffered the loss of Chief Justice William Rehnquist, who succumbed to the thyroid cancer that had plagued him during that Term. President Bush ultimately replaced him with Judge John G. Roberts, who began the new Term and authored his fi rst opinion, the traditional 9-0 opinion of a new Justice, in a death penalty case, United States v. Holmes. The Term began with Justice Sandra Day O'Connor still sitting, although she had announced her retirement from the Court even before the death of Justice Rehnquist. O'Connor's replacement, Justice Samuel A. Alito, Jr., ultimately joined the Court replacing her with a Justice who was not seen as the moderate force O'Connor had been. O'Connor did participate in the parental notification abortion case, the Court's first in five years, a case that was slated to determine the continuing viability of O'Connor's "undue burden" standard and expected to give conservatives an opportunity to replace that standard with one more to their liking. That did not happen this Term, however, and, in that case, like in many others this Term, the fears that the new Court, with its new Bush appointees, would take a sharp right turn did not yet materialize.
September 11 was a "defining moment" for this generation. The graphic images of that day will forever remain seared into people's individual and collective consciousness. Americans responded in many ways, both individually and collectively. The government, with nearly unanimous public support, immediately responded by declaring "war" on terrorism and by adopting measures to provide relief for victims of the attack.September 11 was also a defining moment for the insurance industry. It was "the largest single insured event in history." Insurance companies are expected to pay some $50 billion to victims of the attack -more than eight times what the federal government is expected to pay through the Victims Compensation Program. This amount is also more than three times the total expected cost of the airline bailout, of which the Compensation program is a part. As one industry observer put it, "No matter how much is written about it, it is hard to overstate the significance of Sept[ember] 11 to the Insurance Industry." This article outlines the insurance industry's response to the September 11 attack and describes its potential effect on cities. It then suggest some possible strategies that cities might use to address the insurance industry's response.
Seattle's Central District is formerly a place of old and poor people dominated by African Americans, but is quickly giving way to the new and wealthy ones. Negroes, or African Americans, are confined by housing discrimination, from an essentially African American community. There is now more than 50% Euro American and less than 30% African American. A study explores the continuous process of displacement of African Americans from a community in which they were once captive to their dispersal throughout the southeast sections of the city, the Rainier Valley, and to the inner suburbs of Renton and Kent. This demographic study presents only an overview of particularly salient demographic changes that suggest the contours of change and the possibilities of both expulsion as well as racial integration in Seattle Central Area. The statistics consisted of racial composition, housing structure and tenure, educational attainment, household income, affordability of housing units, age distribution, and migration patterns. At the end, the census suggests that Washington experienced a decline between 1990 and 2000 in residents identifying themselves in the census as white. The proportion of Asians and Pacific Islanders increased. In King and Pierce Counties, where nearly all of the state's Africans Americans resided, the percentage of whites also dropped considerably. Nevertheless, the racial composition of the geographical areas of Seattle, Renton, and Kent remained predominantly white with considerable minorities of blacks and Asians. Blacks are moving into Renton and Kent while leaving Seattle.
The Supreme Court has apparently closed the courthouse doors. The closing of the appellate courthouse door can perhaps be represented in Bowles v. Russel, the Court held 5.4 that a petitioner is responsible for meeting statutory deadlines for filing a notice of appeal under 28 USCS §2107(c) and Federal Rule of appellate Procedure 4(a)(6) even when the district court's order mistakenly allows more time. This case can be characterized as the conservative victory at the court, even though it was only a narrow margin of victory, despite the court's unanimity last term and early unanimity this term with eight out of eighteen cases decided 9-0 at midterm in March. The Justices issued two 5-4 decisions when they returned from a four-week recess, setting the tone for the rest of the term. After taking only two in November and eight in December, the Court accepted twenty cases in January.
This article reviews the decisions of the U.S. Supreme Court for the 2007-2008 Term that are of particular relevance to state and local governments including those involving voting and elections, speech, class-of-one equal protection claims, immunity, taxation, preemption, and the Fourth and Sixth Amendments. Against the backdrop of the 2008 presidential election between Democrat Barack Obama and Republican John McCain, and an economy plagued by recession and federal bailouts of the finance and mortgage industries, the Court continued in a largely conservative vein, reflecting the policies and predilections of the majority of justices. The Court reasserted its distaste for unfettered punitive damage awards, and facial constitutional challenges, but continued to enforce the habeas rights, as it did last Term, of those caught up in the Bush administration's far-reaching war on terrorism. For state and local government lawyers and officials, the Court gave with one hand and took away with the other, sometimes enforcing the decisions of states and local governments as the Court did when it upheld the Indiana voter identification law in Crawford, but other times leaving them adrift as the Court did in Heller when it struck down the District of Columbia's attempted solution to the problem of urban gun violence.
Patricia E. Salkin discusses alleged conflicts of interest and other ethical improprieties lodged in the land use decision making process in various court cases in the US. In one case, membership in a local organization that had advocated against the operation of an applicant's business created a disqualifying conflict of interest. Plaintiffs appealed the granting of a permit to extract gravel by the planning and zoning commission (PZC), alleging a conflict of interest because the mother and father-in-law of one of the PZC members had a connection to the property that adjoined the property in question. In another case, plaintiff filed two separate appeals with the zoning board on the same day concerning two separate properties. The zoning enforcement officer (ZEO) issued a permit for the construction of a single family residence for one of the parcels that contained an expiration date if the work was not yet completed.
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.
This article discusses sustainable development problems in the United States related to regional automobile-dependent sprawl and focuses on the need for devising and implementing growth strategies that provide people in the United States with affordable and sustainable housing and transportation options. The article provides a critical global perspective on the potential for creating sustainable neighborhoods of transit-oriented urban core areas within a metropolitan region and calls for the reform of the legal primacy in the United States of local zoning and urban planning controls which largely operate to require low density automobile-dependent living arrangements. The article crystallizes four major sustainable development points that highlight the need for developing integrated regional urban planning policies that support regional transit planning in the United States in the twenty-first century.Metropolitan areas cannot resolve their challenges alone. Counties, cities, and suburbs operate within a national policy framework, and face challenges [bigger] than their own capacities. What’s needed is a new partnership between federal, state, local, and private-sector players to help metropolitan areas build on their economic strengths, foster a strong and diverse middle class, and grow in environmentally sustainable ways.
This paper describes how redevelopment in California came to an end with the California Supreme Court’s decision in California Redevelopment Association v. Matosantos and how redevelopment could be resuscitated. The first part of the paper highlights the precipitating events leading up to the case: California’s unique property tax history, the successes and drawbacks of redevelopment, how redevelopment is financed, and the text and politics of Proposition 22, the state constitutional predicate for the Court’s opinion. The second section describes the arguments and outcome of the case in which the Court upheld a statute dissolving redevelopment agencies (RDAs) and simultaneously struck down a companion bill — a “pay-to-stay” law — that would have enabled cities and counties to preserve their RDAs by pledging local funds to the state. A concluding section proposes that California legislators consider a new redevelopment enabling law, modeled along the lines of Texas’s tax increment reinvestment zones (TIRZs). Such a statute would conform to the guidelines for constitutionality from the concluding paragraph of the Court’s opinion in Matosantos, and it would be fiscally responsible because it limits the use of tax increment financing.
Demographers predict that the US population will grow by one hundred million in 2050. Newcomers will settle in suburbia, particularly to the fast growing big cities of the south and west, cities in the resurgent heartland of the country, exurbia and ‘superstar cities’. Communities eager to appeal to these newcomers will use tax increment financing for public improvements such as stadiums, museums, plazas and promenades. These public improvements are often integrated into signature private redevelopment projects carefully designed to achieve environmental and planning objectives by being pedestrian-friendly, high density, and mixed use, accessible not only by automobile but public transit as well. After illustrating the beneficial use of tax increment financing, I describe six major criticisms often leveled against tax increment financing (TIF). (1) TIF helps outer suburbs lure jobs from center cities and inner suburbs; (2) TIF should be confined to seriously blighted areas and is not; (3) TIF is often used to subsidize the increased supply of retail development in markets where demand is static, achieving little except the displacement of sales from other locations; (4) cities sponsoring tax increment projects unfairly and inefficiently drain property tax revenues from other taxing entities including schools and counties; (5) There are few serious obstacles preventing local governments from sponsoring TIF projects in places that would have attracted private development anyway, or bestowing subsidies greater than necessary upon firms agreeing to locate in marginal areas; and (6) Many local governments don’t bother to analyze whether TIF projects are net tax revenue producers or assess periodically whether actual yields match initial projections.
Over the past decade, a number of state and local governments have amended land use regulations to permit the accessory dwelling units (“ADUs”) on single-family lots. Measured by raw numbers of reforms, the campaign to secure legal reforms permitting ADUs appears to be a tremendous success. The question remains, however, whether these reforms overcome the well-documented land-use parochialism that has, for decades, represented a primary obstacle to increasing the supply of affordable housing. In order to understand more about their actual effects, this Article examines ADU reforms in a context which ought to predict a minimal level of local parochialism. In 2002, California enacted state-wide legislation mandating that local governments either amend their zoning laws to permit ADUs in single-family zones or accept the imposition of a state-dictated regulatory regime. We carefully examined the zoning law of all California cities with populations over 50,000 people (150 total cities) to determine how local governments actually implemented ADU reforms “on the ground” after the state legislation was enacted. Our analysis suggests that the seeming success story masks hidden local regulatory barriers. Local governments have responded to local political pressures by delaying the enactment of ADU legislation (and, in a few cases, simply refusing to do so despite the state mandate), imposing burdensome procedural requirements that are contrary to the spirit, if not the letter, of the state-law requirement that ADUs be permitted “as of right,” requiring multiple off-street parking spaces, and imposing substantive and procedural design requirements. Taken together, these details likely dramatically suppress the value of ADUs as a means of increasing affordable housing.
Charter schools are an important and growing part of the nonprofit sector but the financial accountability and governance of the schools have received little attention from regulators or scholars. Highly publicized scandals of nonprofits have sparked strong interest in governance of nonprofits generally and have led to increased regulation. Charter schools receive more than $9 billion in public funds annually and the risk of improper use of that money merits attention. Although the charter school movement and the concerns it raises are national, this article focuses on Philadelphia as an example. In 2011-2012, one quarter of the public school students in Philadelphia attended charter schools. The Philadelphia School District provided $525 million to the 82 charter schools in the city. The vast majority of those schools also received funds from the state and federal governments as well. The District is expecting the percentage of students in charters to increase to forty percent in the near future.The article examines the weaknesses of the existing oversight system which relies primarily on disclosure of information to the School District and other governmental agencies, all of which lack adequate resources to respond effectively to the disclosures. The goal is not to enter the debate about the educational value of charter schools but rather to focus on how the schools fit into the larger debate over governance of nonprofits. Charter schools share the same challenges of overreliance on disclosure instead of enforcement of rules, insufficient education and training of board members, and a lack of transparency. Nineteen Philadelphia charter schools have been the subject of criminal investigations by federal authorities, resulting in seven convictions and one suicide. The article reviews the issues raised by the available documents which raise questions about the salaries of school officials; the complex relationships between many schools and their founding agencies; the widely varying expenditures for legal representation, accounting, and management; and the concerns about conflicts of interest raised in some cases. The article proposes increased funding for oversight, use of more nuanced tools than just revocation of the charter, greater transparency by the schools, and greater emphasis on board training.
The current status of climate change policy represents something of a federalism role reversal in environmental law. Rather than the federal government playing the dominant role of establishing standards and ground rules for regulatory programs, it is the state governments that are actively pursuing programs to reduce emissions of greenhouse gases and sequester carbon while the federal government has adopted a nonregulatory, and, many would argue, a do-very-little approach. In this essay, Kirsten Engel probes why states are addressing a global problem such as climate change and what will be the long-term significance of the states' activities, both in terms of the nation's response to climate change and for the structure of federalism in environmental law. She concludes that there are numerous motivations for state and local action, illustrating the multidimensional nature of climate policy. She contends that the long-term significance of state and local action may be in its capacity to trigger federal greenhouse gas regulation or to encourage international diplomatic efforts to address climate change.
For many decades, the primary challenge of land use law has been how to promote and channel growth and development. Nobody wants stagnation; the cure is growth, and lately the cure has been “smart growth.” In the last several years, however, some cities have begun openly to address a previously unacknowledged truth: some cities will and do shrink. They lose population and have no foreseeable prospect of ever regaining it. The land use planning community has begun to grapple with the issue of the shrinking city, asking how we can achieve managed, “smart” shrinkage To some extent, the answer is to shift density and promote green uses of various kinds This brings us to the legal question Does an organized effort to help a city shrink pose any distinctive legal issues? What constraints might the law impose on a city’s goals of diminishing its infrastructure responsibilities, downzoning its land to less intensive uses, or taking other steps consistent with a goal of managed shrinkage This paper explores a few of those issues, using Cleveland, Ohio as an example. It considers legal challenges the shrinking city might face, particularly when downzoning urban property to promote urban agriculture and other green uses, focusing on the application of takings law It also briefly considers the fairness issues associated with downzoning and the limitations of the current legal structure for revitalizing Brownfields in a setting where traditional redevelopment is unlikely.
This article proposes an alternative to traditional American zoning practices which is based on the work of the visionary architect Christopher Alexander. Alexander’s approach to architecture has broad implications for building and site design, as well as planning and development. Alexandrian planning represents a very different conception of the goals and methods of land use planning, focusing on a process rather than a planned final result. Instead of following a detailed master plan, this process would be generative, creating an environment that favors small, incremental improvements. Changes should be proposed and initiated by the users of a space, allowing uses to adapt in a way that centralized planning simply cannot produce. While there is considerable overlap between Alexander’s philosophy and the recent trend of smart growth, the differences are significant: Alexandrian planning is a unique solution.
Ambiguous zoning ordinances must be strictly construed in favor of property owners because zoning is in derogation of the property owner's common law right to use his or her property to its greatest utility. This "strict construction rule" acknowledges a basic presumption for property rights when zoning ordinances are incapable of clear application. In Washington State, however, courts have increasingly avoided the strict construction rule, deferring to zoning controls instead. This Article discusses the evolution of the strict construction rule in Washington, and argues that the rule should not be neglected in the future.
The decision of the United States Supreme Court in District of Columbia v. Heller failed to clarify as to what extent firearms regulations must be vindicated to counter constitutional provisions and the applicability of the Second Amendment to the state and local laws. The court invalidated the District of Columbia's ban on the possession of handguns. The court held that the Second Amendment is not applicable to state or local laws. 'Heller' asserted only a right to carry a handgun in his home, but the Second Amendment protects the rights to both 'keep' and 'bear' arms, and the Court clarified neither right in terms restricted to the home. Under 'Heller', police-power justifications for restricting the right to keep firearms look irrelevant to the constitutional inquiry given the Court's forceful refusal of Justice Breyer's view that reasonable gun-control regulations should be upheld.
This paper explores the problem of why the traditional model preservation, characterized by a strict and inflexible interpretation of the law, often fails in struggling communities. Particular emphasis is given to early industrial cities, where the existing urban infrastructure and difficult economic situation often conspire to make preservation exceptionally challenging. A solution is proposed for making preservation productive these distressed communities. Through a broader, and more flexible reading of existing law, a major preservation problem may be solved, and history can used as a valuable tool for growth and positive change.
This article discusses the regulatory techniques of place based crime prevention in the context of implementing zoning and planning laws in the United States. The article examines the specific planning and regulatory techniques that can be utilized in the urban planning process to incorporate public standards and guidelines related to crime prevention into the design and site plans of new development projects. The article provides a survey of regulatory techniques and a brief overview of a number of studies of place based crime prevention programs.
Patricia E. Salkin discusses how failure to articulate clear ethics rules and standards at the local level continues to haunt local land use decision makers in the US. Lack of clarity in state and local ethics laws has resulted in the US Supreme Court reviewing an ethics case this term arising from Nevada and the actions of a city council member who voted on a proposed development project where his campaign manager had represented the applicant in an advisory and lobbying capacity. The Supreme Court determined that the recusal provision of the Nevada Ethics in Government Law was not unconstitutionally overbroad under the First Amendment because, it held, legislators lacked a personal First Amendment right to vote on any given matter. The Supreme Court of West Virginia, as part of a due process cause of action, had to determine whether two board members and the municipal attorney should have recused themselves from any considerations concerning a conditional use permit application.
This article explains what sustainable development would mean for cities and other communities in the United States, describes U.S. efforts toward sustainable communities between 1992 and 2002, and recommends actions for the next decade. While the connections between environment and development are often abstractions at the national and international levels, they are perhaps nowhere more clear than the places where people live, work, and play. Municipalities should work with each other and with other levels of government to integrate their decision making processes for environment and development, using a strategic planning process and setting goals. Between 1992 and 2002, a small number of local governments addressed sustainable development in some comprehensive way. Sustainable community efforts were most visible on specific issues such as brownfield redevelopment; public access to information, participation, and justice; land use; transportation; housing; public health services; and education. In the coming decade, local governments should adopt and implement sustainable development strategies in coordination with nearby municipalities, and that states and the national government support such efforts. Sustainable development can and should be the organizing principle for improving quality of life and opportunity in our communities. The article also includes recommendations on specific issues.
When a public enactment goes "too far," a private property owner has a constitutional right to just compensation. If the private owner brings suit for "inverse condemnation" and establishes that the government is engaging in a regulatory taking, she can recover the fair market value of the property taken. But, if instead, the owner sells the property to one who is on notice of the excessive regulation, the post-enactment purchaser's entitlement to compensation is much in doubt. This article proposes an analytic rethinking of the rules of regulatory takings as applied to post-enactment purchases. If successful, the proposed rules will accomplish two goals: first, governments should be forced to internalize the cost of confiscatory regulations; and, second, the parties who in fact suffer the economic losses when government regulations go "too far" should receive the compensation.
Limited empirical work on interlocal bargaining has uncovered relatively efficient bargaining between local governments for services like police, fire, street maintenance, and education. This paper explores the relationship between two Connecticut towns in the metropolitan New Haven area, Orange and West Haven, and suggests that bargaining between local governments can be more difficult and complicated than heretofore recognized when towns try to achieve economies of scale in the production of local public goods and to account for cost and benefit spillovers between local jurisdictions. It offers a number of legal changes that may help localities bargain more efficiently.
Rights to housing are regularly proposed as the solution to poor housing and homelessness by advocates and campaigning organizations. This approach is viewed as having the international acclaim and legal clarity to transcend political wrangling, resource deficiancies, programmatic and policy conflicts, and theoretical dissonance in housing approaches. Implementation of housing rights is obliged and promoted within both a programmatic approach, as well as a violations and remedies approach (opportunities for litigation in the event of breaches). There are, however, important contextual issues for the development of housing rights within industrial economies with hegemonic housing market ideologies and developed welfare systems, especially in European countries. The article examines the nature and extent of housing rights as emanating from United Nations, Council of Europe and European Union instruments, laws and precedents.
The Supreme Court’s 1954 decision in Berman v. Parker serves as the foundation for much of our modern eminent domain jurisprudence, including the controversial 2005 Supreme Court decision in Kelo v. New London. But the story behind the case starts well before 1954, and it carries implications that are relevant today. It’s a story that played out in many cities across the nation, just as it did in Washington, D.C., where the case took place. It’s the story of urban decay and urban renewal. This working paper covers the history of redevelopment in Southwest Washington, from the turn of the century to today. It discusses the City Beautiful movement and progressive housing reform in Washington, the rise of public housing and slum clearance policies, the urban renewal planning process as it played out in Southwest D.C., and the demise of urban renewal as a federal policy in the wake of its failures. The conclusion points out while we may approach contemporary economic development projects differently than we approached urban renewal in the 50s and 60s, much can still be learned from the story behind this landmark case.
Since September 11, the public health system has been plagued by concerns that it is inadequate to manage a bioterrorism outbreak. The federal government has promised billions of dollars to fight bioterrorism; and most states have announced plans to develop their own homeland defense systems. The Centers for Disease Control and Prevention supports the promulgation of a Model State Emergency Health Powers Act (Act), which essentially presumes that state governments are powerless to manage public health emergencies.This article examines the challenges that bioterrorism poses for today’s cities. The article first describes how bioterrorism fits into general public health issues. It then evaluates the state and federal powers available to manage bioterrorism incidents. Finally, the article proposes a practical alternative to ill-conceived strategies such as the Model State Emergency Health Powers Act. The authors conclude that while changes do need to be made in many state public health laws, the need for change is relatively minor. The public health system itself needs reorganization and adequate support, which will improve routine public health and better prepare the United States to manage a bioterrorism incident. More importantly, failings in the public health system result in the unnecessary loss of thousands of lives every year. These lives could be saved irrespective of whether the United States ever faces a major bioterrorism attack.
This article asserts, contrary to existing law, that blight condemnation is inconsistent with the fundamental distinction between eminent domain, which arrogates private goods for public use, and the police power, which protects the public from harm. When conditions on a parcel constitute a threat to public health and safety, the landowner should be ordered to abate. If the owner is unable or unwilling to do so, the dangerous condition should be abated by government under its police power. The cost of abatement should be treated as a betterment assessment, which become a lien on the land and, if unpaid, should result in a foreclosure sale. Thereafter, the land could be redeveloped by the purchaser or its designee. One practical result of abatement and foreclosure is that an owner has an incentive to abate, or to sell to a neighbor or redeveloper who would abate, perhaps in combination with abatement on other nearby parcels similarly situated. Should the parcel go through foreclosure, its redeveloper is selected through a transparent process of competitive bidding. This likely would reduce unjustified blight condemnation resulting from rent seeking manifested through political favoritism towards selected redevelopers. Also, re-channeling redevelopment through market actors would reduce grandiose and wasteful redevelopment schemes.
Many scholars identify local educational governance as a root cause of inequality of educational opportunity in America. Advocates of educational reforms as disparate as school choice and the regionalization of school districts seem to agree that because localities are overwhelmingly stratified by race and class, localism causes inequity.This Article argues that, for reasons of both political economy and normative political theory, American education should embrace its tradition of localist governance. Local control remains the best hope for effective academic education and the only hope for effective democratic education.Increasing equity in the distribution of educational opportunity therefore requires the reconstitution, not the abandonment, of the local educational polity. This Article proposes that to do so, school district boundary lines be subject to periodic redistricting, under procedures similar to those used for electoral districting. At the end of each period, boundaries would be redrawn to minimize interdistrict variance in wealth. Between redrawings, districts would remain autonomous. This arrangement would strengthen voice and weaken exit, thus not only preserving but enhancing the robust localism that theorists of democracy and democratic education argue is crucial to educational governance. It would preserve allocative and productive efficiency. And, given institutional features of American state government, it would be judicially manageable, politically feasible, and bureaucratically implementable.
This article reflects upon the impact that technology and innovation has had on urban development. From NASA's Landstat program, to Google maps and GPS, technlogy has had a significant impact on urban planning and land use law. The article begins with a discussion of the impact of the elevator and steel technologies on urban architecture and density, and then moves to changes in transportation such as the automobile and the development of public transportation systems. Green buildings, GIS, satellite data, online mapping, personal computers, the Internet and cell phones are all examined.
The devolution of control over public educational systems from the central government to localities has been justified by two sets of arguments: first, by free-market inspired "jurisdictional competition" theory; second, by multicultural ideology. Notwithstanding the advantages stemming from such decentralization — efficiency, wealth-maximization, cultural accommodation — this article identifies various harms associated with it, including problems of cooperation, distributive injustice, reproduction of pre-existing segregation along lines of race and ethnicity, and an accelerated fragmentation of the civic body. Examining the Israeli case and drawing analogies to the American example, the article provides a thick factual description and theoretical analysis of the way that background legal norms, social and economic baseline conditions and public choice dynamics have shaped public schools in both countries. This description especially reveals that the profound decentralization of Israel's public education system resulted in a deep segregation — between Jews and Arabs as well as within the Jewish community, between Jews who emigrated from Arab countries (Mizrahi Jews) and Jews of European descent (Ashkenazi Jews) — that threatens to undermine the main goals of a public education system in a liberal state. The structural similarities that this article finds between processes that took place in Israel and in the United States strengthens the realization that court decisions such as Brown, which can be narrowly construed as merely prohibiting state-sanctioned segregation, are incapable of fulfilling the promise of racial integration. This is why a Brown-like decision in Jerusalem, still much anticipated by many, might also prove to be a hollow hope. I thus conclude by pointing to various policy suggestions that can overcome the structural barriers that impede integration.
The sustainable construction movement may eventually transform construction law and practice. Alternatively, sustainability in the built environment may simply be absorbed into the existing fabric of construction contracting. Using the lens of design and construction law theory, this article examines selected project structures and contract provisions being used or proposed in the design and construction industry to allocate the special risks associated with green building standards and objectives. Green building contracts will inevitably reflect industry practices derived from theories of liability and risk allocation that have dominated construction and design law for decades. But established practices and legal theories do not necessarily match the new realities of green building design and construction. This article analyzes some of the most important issues relating to the contracting structures and provisions that lawyers are beginning to adapt and adjust for green building projects, especially those developments that invite exploration of the tort and contract theories that are fundamental to construction and design law.
The focus of this essay is a growing practice to which we can attach the label “Green Zoning” — the incorporation of LEED and competing privately generated standards into local government law, as part of the existing zoning or land use ordinance, or as a free-standing green building ordinance. After reviewing some of the pertinent literature on this topic, this essay will highlight and provide illustrations of six problems with Green Zoning practices: 1. The Delegation Problem — Can and should local laws be based on a moving target (standards set by private parties that continue to change and evolve)? 2. The Compatibility Problem — Are some green building standards inconsistent with good planning practices? 3. The Expertise Problem — Are already overburdened local officials up to the task of incorporating, administering, and overseeing Green Zoning? 4. The Eco-Political Problem — How or should local officials factor in the battles waged over green building standards? 5. The Laboratory Problem — Are variations from locality to locality a good idea, or do state standards make more sense in this area? 6. The Philosophical Problem — What role should builders, architects, and industry experts play in shaping zoning and planning ordinances?
This article begins with this simple proposition: An infill transit construction project’s work destroys businesses in its guided right-of-way chewing path. Transit construction’s collateral damage dislocates neighborhoods and unravels the social fabric of a community as established business operations fail. This article explains how cities with transit projects currently attempt solutions to the problem like rendering “marketing and social networking” advice and founding “business alliances” – and why cities fall short of their goal to stave off merchant failures. It next explains why merchant claims against cities asserting nuisance or regulatory takings are doomed to failure – and how cities waste scarce resources defending against takings claims, whatever their ultimate outcome. The article then describes how innovations in land use policy-making, using overlay and floating district adoption, zoning adjustment and development agreements, can sustain commerce in transit project construction zones for the duration of a transit infrastructure project. I conclude with the observation that with the aid of a land use toolbox deployed flexibly to aid temporarily dislocated business operators, cities preserve a neighborhood’s dignity, its sense of oneness of place and time and its economic vitality.clude that
True or false: “when the legislature has spoken, the public interest has been declared in terms well-nigh conclusive.” Still true, technically speaking: legislative determinations about whether a taking is in the public interest are entitled to a high degree of judicial deference if challenged. But after the U.S. Supreme Court’s decision in Kelo v. City of New London, that phrase no longer means that if the government wants to take property, the courts will simply rubber stamp it. Kelo reinvigorated judicial and public interest in the Public Use requirement of the Fifth Amendment and its counterparts in state constitutions and courts nationwide are more willing to examine the reasons for a taking than ever before. This article summarizes recent developments in litigation challenging the ability of condemning authorities to take property. There were couple of blockbuster cases from New York state courts, and these cases are summarized in Part I, but overall, the developments in the law were incremental. Consequently, this article will focus not only on cases where public use was challenged, but will include in Part II cases where other limitations on the eminent domain power such as delegation and choice of forum were analyzed. Finally, Part III summarizes recent cases involving recovery of attorneys fees for unsuccessful condemnations, an issue which is sure to grow should courts continue to be more willing to invalidate takings.
The Supreme Court’s decision in United Haulers has already earned a fair share of opprobrium. At the very best, the decision is hard to apply and at worst it is an unprincipled morass. This Article acknowledges the weaknesses of the articulated arguments in United Haulers - especially in light of the Court’s next Dormant Commerce Clause decision in Kentucky v. Davis. Nevertheless, if one focuses on United Haulers, a clear, reasonable and applicable rationale presents itself – and one the Court had already utilized in the related context of antitrust. In United Haulers, the respondent waste management authority successfully made the argument that, at least for purposes of constitutional review, the waste management market exhibited the features of a natural monopoly. Speaking roughly, a natural monopoly can be said to characterize a market when, because of high fixed costs, only one company can efficiently service a particular market. Because the Court concluded (implicitly) that there was a natural monopoly as to the provision of waste management services, there was no competition, interstate or otherwise, in this market for the Dormant Commerce Clause to protect. This Article opines that the Court’s confused meanderings to this (successful) resolution were caused by the fact that waste management presented the Court with the hard case of a changing industry that behaved more and more like a natural monopoly, confounding judicial doctrines that are typically much more static.
This article begins with a review of the history of zoning with an emphasis on notable Supreme Court cases in which the Court repeatedly upheld zoning ordinances that insulate single-family uses from non-residential uses. The author notes that the comprehensive plan has provided the guidance needed for communities to create valid zoning ordinances that honor the separation of uses. With the advent of mixed-use zoning, Mr. Fisher cautions communities to review how authorizing mixed uses in a single-family zone relates to the comprehensive plan, pointing out that "this new zoning format may amount to an exercise of power that raises issues with constitutional implications." The author identifies specific issues which could expose a community to challenges of mixed-use zoning under the Due Process, Equal Protection, and Takings Clauses. This article offers guidance to zoning authorities in order to withstand both facial and as-applied Due Process claims and the importance of avoiding exclusionary zoning to stave off Equal Protection claims. The article then provides two analyses under the Takings Clause: investment-backed expectations and reciprocity of advantage. In light of these types of constitutional challenges, it is concluded that "a community would be well advised to configure its comprehensive plan to serve as an indispensable compass for navigating mixed-use zoning decisions."
This article examines legal issues facing local governments and raises the question of how American Indian tribal government handles such issues. A comparative analysis follows, including the juxtaposition of local government rules with American Indian law. A general conclusion completes the survey. This article does not examine the relationship between American Indian tribal governments and local governments. From a legal perspective, American Indian tribal governments are generally comparable to state governments. One exception is Article IV, § 4, the constitutional right to a republican form of government for states; this does not apply to tribal governments. There is no analogous right to a republican form for tribal governments. Some statutes list American Indian tribes with states on an equal, self-governing plane. When litigation arises, states must join as a party in order to litigate with tribes, while local governments may not. The nature of these interrelationships impedes legal analysis of local to tribal government issues, because the only legal relationship that exists is between states and the tribes. One may draw an analogy between the District of Columbia, another form of co-existing constitutional government, and the tribal entities, as the better part of this article attempts. A speculation concerning the future of co-existing governments also follows. This survey ends with a general conclusion on the results of the issue-by-issue comparative analysis for both local and tribal governments.
Adam J. MacLeod discusses whether the state is using the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) in the US is narrowly to burden religious exercise of a person. A court considering a RLUIPA claim must first resolve the question what constitutes imposition or implementation of a land use regulation within the meaning of RLUIPA section 2(a). If the governmental action is something other than a land use regulation, then RLUIPA does not apply. In RLUIPA, the term 'religious exercise' includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief. It includes the 'use, building, or conversion of real property for the purpose of religious exercise.' A construction of the term religious exercise that is deferential to churches might tip the scales in favor of mega-churches and other religious institutions and against local regulatory authorities.
In December of 1962, Vail opened as a ski area. The lodges, houses, condominiums, shops, and restaurants at its base became the nucleus of the emergent town of Vail and the prototype of the modern recreational gateway community. The term "gateway community" did not originate in Vail. It had, in fact, been employed throughout much of the twentieth century to describe a far more modest species of back country development. The small outposts on the periphery of the great national parks had for decades provided services and supplies to the seasonal tourists streaming into the parks. These were places passed through, as a peripheral means to the central objective of a national park experience. Few people actually lived there and, in the off season, they were largely dormant. These gateways are undergoing a dramatic transformation that parallels the emergence of new residential phenomena like Vail. The development of the gateways, the urbanization of the outback, and the rapid rise in high country land values, in Rocky Mountain states, have spawned multifaceted responses by the National Forest Service, state and local governments, environmental associations, and private interests. These reactions are sometimes parochial and often in conflict, but they are not incapable of coordination. The active federal agency participation and the enlightened, creative use of the discretionary exchange power can promote better planning, better protection of sensitive interests, and better adjustments of the benefits and burdens of growth and rising land values.
A large and growing portion of the housing stock of America is located in common interest communities governed by owner associations. As they have become more prevalent, the legal challenges they present have become more apparent. These challenges begin with ascertaining the legal nature of common interest community associations, which occupy a space that lies somewhere between public governments, on the one hand, and private businesses or private associations on the other. After listing some of the respects in which community associations are like and unlike these well-established legal entities, I conclude that they are different in important respects. Because of these differences, a new body of law - community association law - is developing. After discussing the protections afforded association members against illegal or abusive board conduct, I conclude that more needs to be done because the existing framework requires resort to the courts, which is costly, divisive, and risky due to the loser-pays attorney fees provision found in most CC&Rs. I conclude that states should provide administrative support for community association governance with education, dispute resolution, and enforcement services. Common interest communities have become too important to leave to their own resources and the judicial system. There is much that states can do and there are several models of successful programs. They should take the next step.
This article identifies a significant phenomenon in current urban settings, according to which the otherwise unorganized users of government-owned local public goods, such as parks or playgrounds, often engage in informal cooperation and coordination in the on-going operation, maintenance and improvement of the resource. Why is such a phenomenon important? Briefly stated, the informal cluster of users may, in many cases, determine the value of the local public good: local user coordination that starts out spontaneously and stabilizes into a long-enduring cooperative mode makes the public resource successful, endowing significant direct benefits as well as positive spillover effects. On the contrary, under-investment and apathy by the local users often make these resources of negative value, becoming a sheer nuisance to their surroundings and creating a major deadweight loss. This phenomenon is especially important in light of the budgetary and administrative constraints that governments have been facing in the past few decades. However, this new implicit role allocation is unmatched by current legal rules, which preserve government's almost absolute liberty to terminate or adversely change these goods at its will, by either diverting the public resource to a new use that will serve the general public or a different sub-group, or simply cashing in on the public resource by its sale to a private developer, with diversion of the revenues to the government's general budget. This article suggests to resolve the tension through a carefully tailored expansion of current takings doctrine to scenarios of informal takings of local public goods, which would entitle the local group, in appropriate cases, to a collective remedy, mainly in the form of a substitute facility.
This article explores the phenomenon of privatization, or the shift from government provision of services to provision by the private sector, in the context of privatized neighborhoods. The proliferation of gated and walled communities, together with the significant rise of homeowners associations, contribute to patterns of homogeneity, conformity and exclusion that can yield dangerous consequences. Cultures of litigiousness, fear of the "other," civic alienation and resident dissatisfaction are among the by-products of these common interest communities' zealous pursuit of "the nice" place to live.
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.
Land development projects often involve external costs within the host community. For example, new retail space might generate more traffic, requiring improvements to roads. A new residential development might require new roads altogether as well as enhancements to police and fire services, schools, libraries and even sewers. Historically, these external costs fell on the community. However, increasingly, in both the United States and in England and Wales private land developers, rather than public agencies, are bearing these externalities. This article explores the issues that arise when governments shift the burden of these externalities back on the developer and compares the processes by which the United States and England and Wales have attempted to accomplish this shift in externalities. U.S. jurisdictions use exactions, impact fees and linkage fees to transfer the burden of adverse development impacts to the developer. England and Wales use the concept of planning gain to extract planning conditions or planning obligations from developers before granting development rights. Because of the high level of government involvement in this process of accounting for development externalities, public and private abuse is a concern in the U.S. and in England and Wales.Part II of this Article identifies the different impacts that occur during land development, including the impacts on municipalities, their citizens, competing developers, competing communities and the environment. Part III compares how development rights are obtained in the U.S. with the approaches used in England and Wales to obtain planning permission and discusses how the respective countries compel developers to internalize the external costs of development. Part IV concludes by proposing the developers and local government use bargaining tools, such as the U.S. development agreements and the section 106 agreements in England and Wales, to distribute development burdens. Further, private and public abuses should be controlled by the market and the requirements that the government act for the benefit of the public, rather than be constrained by existing judicial, legislative and constitutional complexities.
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.
The United States leads the world in the complexity of its regulatory takings law, the amount of academic writing devoted to the topic, and the intensity of the surrounding public debate. This is one of the (ancillary) findings of a large-scale comparative study of regulatory takings law. A look from the “outside” may shed light on American takings law and the “property rights” debate. An international looking glass can allow both sides in this debate either to fi nd alternative models to support their own position (with appropriate adjustments) or to develop middle-of-the road approaches towards a rapprochement in this longraging contest. In every country where land use regulations and development controls operate (the vast majority of countries today), they change the economic value of real property. The question addressed here focuses on the downwards effect — what Americans call “regulatory takings.” Do landowners have a right to claim compensation or some other remedies from the planning authorities? This topic addresses an inherent raw nerve of planning law and practice, bearing deep economic, social and ethical implications. However, not in every country does the issue generate the same intensity of legal and public debate as it does in the United States. This article draws on the findings of comparative research encompassing thirteen countries around the world. Readers of this Festschrift, who are acquainted with American takings law, will be able to view it from this new perspective. A comparative perspective can help to create a sense of scale and proportionality that conventional domestic legal analysis cannot offer.
This essay discusses the dilemma corporate mobility through globalization presents for cities that are fixed geographically. Corporations seek and cities offer business incentives that with questionable benefits to local residents. The essay recommends that the local government dilemma and susceptibility to exploitation be acknowledged. While the essay recommends that cities seek to limit their efforts to be providers of local infrastructure (eg., roads, utilities, an educated workforce) it also recommends that the cities are incapable of addressing the corporate mobility issue on their own and are prone to continued exploitation.
The Supreme Court's controversial 5-4 decision in Kelo v. City of New London renewed both public and judicial interest in the contours of the Public Use requirement of the Fifth Amendment and its counterparts in state constitutions. Courts began to take a harder look at how the government's claim that property is being condemned for a public use or purpose can be challenged by a landowner, and what degree of deference is owed by the courts to the government's assertion. This article summarizes recent developments in public use and pretext litigation.
The transfer of people with disabilities from state institutions to residential housing is one of the great migrations in recent history, but finding adequate housing is difficult. Laws that enact housing quotas make this task even harder. Quotas can require a minimum distance between group homes, limit the number of group homes that can be allowed in a community, or limit the number of apartments in multifamily projects. This article considers the legality of these quotas under the federal Fair Housing Act, and their constitutionality as an equal protection violation.Part I describes the universe of housing models available for people with disabilities. Part II examines the problem of clustering that occurs when this housing locates in groups. Part III describes state statutes that require a minimum distance between group homes for people with disabilities, and federal housing subsidy legislation that contains quotas and preferences. It criticizes the dispersion strategy for housing that quotas implicitly require. Part IV considers the constitutionality of housing quotas under the equal protection clause of the federal constitution. Part V considers the legality of quotas under the federal Fair Housing Act, which makes it a violation to “otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap." Part VI discusses more acceptable models for distributing housing opportunities.
Public disputes are difficult to resolve at best and often lead to serious conflict or protracted litigation. This article focuses on: (1) a discussion of the usual decision-making process followed by local city councils when confronted with public issues; (2) an introduction to the use of mediation for the resolution of public disputes: what it is, how to use it, and what its key advantages are; (3) an examination of two areas (redevelopment and halfway house proposals) as examples where mediation might be used to resolve very difficult public issues; and (4) a brief discussion of how to prepare for a mediation session. Its purpose is: (1) to de-mystify this ADR technique for those who have not yet been introduced to mediation at all; (2) to provide some specific guidance for parties and attorneys entering a mediation process; and (3) to advocate for a more widespread use of mediation in local government public disputes. The use of ADR, particularly focused in this article on the mediation option, can help planners, policymakers, and attorneys ensure that they craft the best solutions for complex public disputes.
Top-cited authors
Kirsten helene Engel
  • The University of Arizona
Bernard Grofman
  • University of California, Irvine
James Loewen
  • The Catholic University of America
Patricia Salkin
  • Touro Law Center
Edward Ziegler
  • University of Denver