Vol.30, No.3, Summer1998

The Urban Lawyer,
Vol. 30, No. 3, Summer 1998

Publication Date: September 12, 1998

United States-German Workshop on
Sustainable Transportation in Metropolitan Areas

Paul J. Pezzotta II, Emerging Evidence of the Erosion of Economic Competitiveness Caused by Development Patterns Based on the Single Occupant Auto, 30 URB. LAW. 507 (Summer 1998).
This article describes the development paradigm within the United States since World War II and the emerging evidence of its impact on economic competitiveness. It focuses on the impacts of the failure to properly reflect the true value of publicly financed goods in the development process and suggests that this shortcoming can be corrected through the implementation of emerging initiatives in the land-use and transport markets along with the associated institutional frameworks needed to support them.

C. Kenneth Orski, The Great Electric Car Debate, 30 URB. LAW. 525 (Summer 1998).
The "clean car" debate in the United States began in earnest in 1990, when the California Air Resources Board mandated that, beginning in 1998, 2 percent of all vehicles "offered for sale" in California be zero-emission vehicles; the mandate rises to 10 percent by the year 2003. Will demand for electric cars be any higher five years from now when the current voluntary "best efforts" arrangement expires? This article comments on electric car technology and its potential for providing acceptable performance in terms of range, ease of recharging, safety, and passenger comfort and concludes that identifying and repairing, or getting rid of, the dirtiest vehicles appears to be a far more promising approach to address the problem of vehicular pollution

David L. Winstead, Smart Growth, Smart Transportation: A New Program to Manage Growth in Maryland, 30 URB. LAW. 537 (Summer 1998).
If growth and land consumption were to occur in concentric patterns around existing cities, urban centers would be able to take advantage of past investments in infrastructure. In fact, recent development has proceeded in a scattered, rather than concentric, pattern that places additional stresses on the environment and on the ability to provide infrastructure and public services. This article by the Secretary of Transportation for the State of Maryland discusses the state's adoption of the "Smart Growth" initiative in 1997. This initiative emphasizes system maintenance and achieving greater mobility from the existing highway, transit, and other modal systems within existing communities rather than large-scale highway projects supporting new growth at the edges of the developed area.

Robert H. Freilich, The Land Use Implications of Transit-Oriented Development: Controlling the Demand Side of Transportation Congestion and Urban Sprawl, 30 URB. LAW. 547 (Summer 1998).
This article considers the major components of local land-use and zoning controls that are used to encourage transit-oriented (TOD) development. It describes, in general terms, the tools and techniques that are normally included in TOD regulations as well as ancillary techniques that accompany TODs. This includes the results of a survey conducted by Freilich, Leitner & Carlisle and the Transportation Research Board on how TOD has been implemented in other jurisdictions as well as its effectiveness in encouraging the use of public transit and improving the levels of service on highways and roads. It is also particularly useful to compare planning systems between Europe and the United States to learn which techniques and implementation measures are the most successful.

Robyn Minter Smyers, High Noon in Public Housing: The Showdown Between Due Process Rights and Good Management Practices in the War on Drugs and Crime, 30 URB. LAW. 573 (Summer 1998).
Part I of this article outlines the early roles, rights, and responsibilities of public housing tenants and managers, paying particular attention to the law and order culture that existed. Part II explores how the due process revolution drastically altered the relationship of tenants and managers and PHA management practices. The negative consequences of these changes are discussed in Part III. Part IV considers the growing consensus in the legislative and executive branches, as well as among public housing officials and tenants themselves, that due process rights are complicating efforts to combat drugs and crime in public housing developments. Current PHA programs, such as the recently proposed "One Strike and You're Out" initiative, which have been accused of violating due process rights as a means to the end of creating safer and better public housing are briefly examined. Part V recommends strategies to combat crime and violence in public housing that strike a balance between individual and community rights and conform to tried and true good management practices.

Planning and Zoning Symposium, Part III

Susan Mead & Ann Cole, Eminent Domain in Tax Increment Financing Districts and Other Redevelopment Areas: A Developers Perspective, 30 URB. LAW. 619 (Summer 1998).
This article poses the question, what constitutes "public purpose or use" for condemnation purposes within the context of a tax increment financing (TIF) reinvestment zone? While case law has yet to offer an answer to this question with regard to TIF Acts specifically, it has provided extensive commentary on the concept of "public use" within the context of eminent domain. Utilizing the Texas TIF Act as an example, this article analyzes the TIF Act and other related economic development statutes in Texas and relevant case law to determine the extent to which the law's "public use" requirement limits municipalities' power to condemn property within a TIF zone.

H. Dixon Montague, Market Value and All That Jazz: The Proof of the Pudding Is in the Eating, 30 URB. LAW. 631 (Summer 1998).
This article discusses the Just Compensation Clause of the Fifth Amendment to the U.S. Constitution and its Texas counterpart. It attempts to determine why the courts are obsessively applying the market value concept in condemnation cases and, further, explores whether it is always best to adhere steadfastly to this concept in the estimation of just compensation. The reader should keep in mind that just compensation is the "end" to be achieved and "market value" is only one "means" to getting there.

Recent Developments in Land Use, Planning and Zoning Law

Jonathan M. Davidson, Ronald Rosenberg & Michael C. Spata, "Where's Dolan?": Exactions Law in 1998, 30 URB. LAW. 683 (Summer 1998).
This article summarizes case law interpreting the U.S. Supreme Court's landmark 1994 ruling in Dolan v. City of Tigard. Over the past year, the most notable cases draw distinctions from Dolan's factual and legal applicability. Amid the unanticipated litigation lull, this portion of the Land Use Committee's annual report reflects on the current state of exactions case law and considers the potential impact of federal constitutional developments on local ordinance drafting.

Edward J. Sullivan, The Evolving Role of the Comprehensive Plan, 30 URB. LAW. 699 (Summer 1998).
This portion of the Land Use Committee's annual report examines the changing role of the comprehensive plan in the land-use regulatory process and the steady march toward increased deference to the plan

Stephen M. Durden, Land Use and Religion in Florida, 30 URB. LAW. 711 (Summer 1998).
This article summarize the U.S. Supreme Court decision in City of Boerne v. Flores.

Bradford J. White & Lee Keatinge, Historic Preservation and Architectural Control Law, 30 URB. LAW. 715 (Summer 1998).
This article summarizes cases decided in 1997 from the area of historic preservation and architectural control law.

Robert B. Foster, Robert A. Heverly, Donna J. Pugh & Amy E. Kurson, An Analysis of Facility Siting Issues Under Section 704 of the Telecommunications Act of 1996, 30 URB. LAW. 729 (Summer 1998).
In recognition of the explosion of technology and the urgency for construction of wireless communications systems, Congress enacted the Telecommunications Act of 1996. This article considers the Act's section 704 and its attempt to balance the authority of state and local governments against the urgency for system construction by telecommunications carriers. The Act helps facilitate balance by framing the regulations, timing, and procedures local governments may use when considering telecommunications sites.

Peter A. Buchsbaum, Old Wine in New Bottles: Redevelopment Tales of a City, a Suburb, and a State, 30 URB. LAW. 745 (Summer 1998).
This article considers how old style urban renewal laws, the old wine of the title, can literally be poured into the new bottles of 1990 urban revitalization. The traditional mix of land assembly, condemnation where need be, infrastructure assistance, and financial backing through direct and/or revenue bonding still contained in the urban renewal laws of a half century ago can serve to assist projects where no slums are involved, aid smaller urban centers, and help edge cities redefine themselves. This proposition is illustrated with examples.

Anita P. Miller, Evolving Objectives in the War for the West, 30 URB. LAW. 757 (Summer 1998).
Public land issues continue to be in the forefront of public debate and litigation, reflecting the changing values, needs, and interests of the American West. This article summarizes the ongoing debate over the management of public lands in the West.

With cases, statutes, and recent developments on:

United States v. 194.08 Acres of Land, 135 F.3d 1025 (5th Cir. 1998)
State of New York v. Environmental Protection Agency, 133 F.3d 987 (7th Cir. 1998)
Appalachian Power Co. v. Environmental Protection Agency, 135 F.3d 791 (D.C. Cir. 1998)
Dodd v. Hood River County, 136 F.3d 1219 (9th Cir. 1998)
Coolbaugh v. Louisiana, 136 F.3d 430 (5th Cir. 1998)

And a Book Review of
Constitutional Litigation Under Section 1983
by Robert E. Manley