Vol. 27, No. 2, Spring 1995

The Urban Lawyer,
Vol. 27, No. 2, Spring 1995

Publication Date: May 23, 1995

Freilich, Robert H. & David W. Bushek, Thou Shalt Not Take Title Without Adequate Planning: The Takings Equation After Dolan v. City of Tigard, 27 URBAN LAWYER 187 (1995).

This article dissects the Dolan decision, beginning with a discussion of the facts as the case arose in state court. Next, the Court's analysis of the essential nexus requirement through the application of
Nollan is covered. Third, the new rough proportionality test as articulated by Justice Rehnquist's majority opinion is examined, focusing on the new and unanswered questions the decision poses, namely where the test comes from and what is required to meet the test. Finally, the manner in which Dolan is being applied by the lower courts and criticized by the commentators is discussed.

Mandelker, Daniel R., Investment-Backed Expectations in Taking Law, 27 URBAN LAWYER 215 (1995).

This article reviews judicial treatment of investment-backed expectations in taking law. It proposes a regulatory risk theory courts can use to decide cases when landowners claim investment-backed expectations in taking controversies. Part I reviews the investment-backed expectations taking factor as it developed in Supreme Court cases before 1987. Part II reviews the Court's 1987 taking trilogy and later Supreme Court cases that elaborated on the meaning of this taking factor. Part III critiques the use of investment-backed expectations in taking cases and proposes the regulatory risk theory to evaluate expectations claims in taking controversies. Part IV reviews lower federal and state court decisions that applied the investment-backed expectations taking factor after the trilogy. It concludes they provide substantial support for the regulatory risk theory as the basis for considering landowner expectations in taking cases.

Nelson, Arthur C., Comparative Judicial Land-Use Appeals Processes, 27 URBAN LAWYER 251 (1995).

The current processes of resolving land-use disputes through judicial means are for the most part inefficient and can result in some harm to society as a whole. So how does the judicial decision-making process work when it reviews local quasi-judicial decisions on appeal from aggrieved parties? The articles looks at the case of
Piedmont Capital Investments v. City of Roswell, Georgia.A few states have experimented with alternative forms of land use judicial decision making processes. These states include New Jersey, Florida, and Oregon.

Hilton, Matthew, Defending the Right of Local Governments to Contribute to Decision Making Regarding Public Lands in the Western United States, 27 URBAN LAWYER 267 (1995).

This article outlines various ways in which local governments constitutionally may begin to increase their involvement in the federal decision-making process to ensure the preservation of the economic and social base of their respective constituencies. Included as appendices are a Model County Ordinance to be used as a drafting model to encourage lawful county involvement with federal agencies and a Model Memorandum of Understanding Between a County and the U.S. Forest Service.

Deborah L. Markowitz, The Demise of At-Will Employment and the Public Employee Conundrum, 27 URBAN LAWYER 305 (1995).

This article reviews the evolution of the doctrine of at-will employment and discusses the trend in the state courts to find that many personnel policies create a contract of employment that nullifies the at-will employment relationship that existed at common law. The article then considers the due process that is required before a public employer may terminate an employee that has an implied contract right in continued employment with the municipality. Finally, it considers the problems that can arise when a local government's personnel policy includes enough process to create, under state law, a property interest in continued employment with the municipality, but does not contain sufficient process, as defined by federal law, to meet the requirements of the Due Process Clause, putting the municipal employer at risk in a wrongful termination (and civil rights) suit even if it scrupulously follows its own personnel policies.

Peterson, Jonathan Moore, Taming the Sprawlmart: Using an Antitrust Arsenal to Further Historic Preservation Goals, 27 URBAN LAWYER 333 (1995).

This article looks at some unconventional ways that historic preservation interests can be protected in small towns from the encroachment of large discount retailers. Part II gives a brief background of the results that can occur when a box retailer sets up shop near a small town. Part III gives a synopsis of the methods by which federal antitrust law deals with predatory pricing, methods which might be helpful in preserving small town main streets. Parts IV looks at the Sherman and Robinson-Patman Acts, which prohibit predatory conduct. Part V examines state provisions that outlaw below-cost sales. Part VI examines how local zoning regulations can keep giant retailers from coming into a town or region, without violation of any restraint of trade laws by the excluding municipality.

With Cases, Statutes, and Recent Developments covering:

Environment

Harley-Davidson, Inc. V. Minstar, Inc., 41 F.3d341 (7th Cir. 1994).
National Wildlife Federation v. Espy, 1995 WL 19579 (9th Cir. Jan. 20, 1995).

Government Operations

Turner Broadcasting System, Inc.v. Federal Communications Commission, 114 S. Ct. 2445 (1994).
Alex v. City of Chicago, 29 F.3d 1235 (7th Cir. 1994), cert. denied, 115 S. Ct. 665 (1994)

Land Use, Planning and Zoning

Walz v. Town of Smithtown, 1995 WL 30894 (2d Cir. Jan 24, 1995).
Brown v. City of Fredericktown, 886 S.W.2d 747 (Mo. Ct. App. 1994).
Brayton v. City of New Brighton, 519 N.W.2d 243 (Minn. Ct. App. 1994).
State v. Stallman, 519 N.W.2d 903 (Minn. Ct. A0pp. 1994).

Public Education

Silano v. Sag Harbor Union Free School District Board of Education, 42 F.3d 719 (2d Cir. 1994).

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