|The Urban Lawyer,|
Vol. 30, No. 2, Spring 1998
Publication Date: June 12, 1998
Gideon Kanner, Hunting the Snark, Not the Quark: Has the U.S. Supreme Court Been Competent in Its Effort to Formulate Coherent Regulatory Takings Law?, 30 Urb. Law. 305 (Spring 1998).
This article examines U.S. Supreme Court takings case law over the past two decades, with an emphasis on the nuts-and-bolts of the Court's procedural and remedial rulings, and provides insights into how the takings law got to its unfortunate condition. The author's insights are from the point of view of long-suffering lawyers trying to puzzle out what it is that they are supposed to tell their clients in undertaking such litigation, and what they are supposed to plead and prove in court. Finally, the article assumes that readers are acquainted with the major inverse condemnation cases decided by the U.S. Supreme Court during the past two decades.
Scott J. Ziance, Making Economic Development Incentives More Efficient, 30 URB. LAW. 33 (Winter 1998).
This article analyzes tax incentives from legal, economic, and political perspectives and proposes contractual terms and systemic changes that will make the use of tax incentives more efficient. Part II explains the tensions and problems that accompany the use of tax incentives by examining several specific examples of the past twenty years. Part III addresses the legal or practical unenforceability of many tax incentive agreements. It analyzes tax incentives from a contract law perspective and a practical perspective, and it proposes methods to make such agreements more enforceable. In Part IV, analogies from the analysis of agency costs in corporate law are used to describe ways to make tax incentives more efficient. Finally, Part V describes the positive effects that the proposed systemic changes will have on interjurisdictional cooperation and the development of distressed areas.
Michael Simmons & Anatolij Kushnir, The Department of Veterans Affairs' Public-Private Venture/Asset Management Programs, 30 Urb. Law. 305 (Spring 1998).
The Department of Veterans Affairs is a major land holding agency with an extensive and diverse portfolio of properties. To address its capital holdings, the Department has available to it, and uses, traditional legal authorities available to federal agencies for managing and disposing assets. In many instances, however, these traditional authorities do not adequately address problems encountered by VA medical centers trying to deal with their own facility and operational requirements. Because of these limitations, as well as increasing budgetary constraints, privatization and income generation programs have become increasingly important in the Department's activities. In looking for alternative means to generate revenues or secure investment to finance needed programs, facilities, or services, the Department has addressed several program and fiscal issues that are common to privatization efforts. This article focuses on two of these; namely, enhanced-use leasing and the vendee loan sale program since these efforts represent significant attempts toward the establishment of an asset management program for a major asset holding agency.
Patricia E. Salkin, Legal Ethics and Land-Use Planning, 30 Urb. Law. 305 (Spring 1998).
Careful consideration by land-use attorneys of appropriate actions when confronted with ethical dilemmas is critical. Unique circumstances are presented in the public sector arena because multi-million dollar decisions are made by planning and zoning boards, and partly because such decisions affect the use of land in individual neighborhoods. This contributes to heightened awareness by applicants and the public of potential conflicts of interest and other ethical dilemmas. For attorneys, it is not enough to simply be conversant with the Code of Professional Responsibility or the Rules of Professional Conduct. For those lawyers working in or interacting with the public sector, whether employed or retained by the government or representing a client before the government, additional codes of ethics at the state and local levels are relevant to a land-use and zoning practice. This article provides an overview of some of the major issues raised when ethics meets land-use planning and zoning decision making.
Christopher D. Bowers, Historic Preservation Law Concerning Private Property, 30 Urb. Law. 305 (Spring 1998).
This article provides a limited overview of historic preservation law that affects private property. It first reviews tools that local and state governments, as well as the federal government, have to promote historic preservation. It then examines constitutional issues that frequently affect historic preservation. It finally looks at administrative issues that impact historic preservation. The article focuses primarily on Texas law, but it often refers to laws and cases in other states due to the lack thereof in Texas.
James C. Nicholas, Julian Conrad Juergensmeyer & Brian D. Leebrick, Transferable Development Rights and Alternatives After Suitum, 30 Urb. Law. 305 (Spring 1998).
This article discusses the Transferable Development Rights' experience: its concept, model programs, and the legal issues it presented to the Suitum Court. It considers the Suitum decision and the Scalia concurrence, examining the issues that the Court addressed and the legal questions still remaining for a future court to decide. In light of the uncertainty remaining after Suitum, it offers some suggestions. Finally, it considers the utility of using impact fees as a means to protect sensitive lands, either in conjunction with a TDR program or in place of such a means.
Joseph G. Werner, NIMBY: Is There Room in Paradise for Public Housing?, 30 Urb. Law. 305 (Spring 1998).
Few among well-educated, middle-class suburbanites, openly oppose the idea that the poor should have decent, safe, sanitary and unsegregated housing-provided it is in somebody else's neighborhood. Such adversity toward public housing, like opposition to a variety of governmental and eleemosynary facilities, is commonly known as the "Not In My Backyard" or NIMBY phenomenon. NIMBY opposition has reached the courthouse cloaked in a variety of legal theories. This article discusses the newest of those theories, advanced by two groups of well-educated, middle-class suburbanites in Dallas.
With cases, statutes, and recent developments on:
Bloom v. Bexar County, 130 F.3d 722 (1997).
ZJ Gifts v. City of Aurora, 1998 WL 51279 (10th Cir. (Colo.)).
Smart SMR of New York, Inc. v. Borough Fair Lawn Bd. of Adjustment, 1998 WL 23908 (N.J.).
Naugatuck Bd. of Educ. v. Mrs. D., 1997 WL 205791 (D. Conn.).
Springer v. Fairfax County Sch. Bd., 1998 WL 21922 (4th Cir. (Va.)).
Line Item Veto
Management Council of the Wyoming Legislature v. Geringer, 1998 WL 57453 (Wyo. Feb. 11, 1998).
And a Book Review of
Regulatory Takings, by Steve Eagle
Reviewed by David A. Lips