Vol.31, No.1, Winter1999

The Urban Lawyer,
Vol. 31, No. 1, Winter 1999

Publication Date: April 13, 1999

John W. Ragsdale, Jr., National Forest Land Exchanges and the Growth of Vail and Other Gateway Communities, 31 Urb. Law. 1 (Winter 1999).
The term "gateway community" has been employed throughout much of the twentieth century to describe a modest species of back country development-the small outposts on the periphery of the great national parks. Many indigenous mountain communities have long been associated with and dependent upon the commodities obtainable from the national forests-timber, forage, minerals, and water. New gateways are emerging that are decidedly different in form and function from the older model and from the original, commodity-centered mountain towns. Land values are soaring as a result, and it is this factor that has drawn the National Forest Service and its power over land exchanges into the modern era of explosive gateway growth. This article discuses development in gateway communities, like Jackson, Wyoming, Vail, Aspen, and Telluride, and the role of the National Forest Service in planning for passive, essentially nonremunerative uses of such areas' natural assets.

Victoria Verbyla Sutton, Divergent But Co-Existent: Local Governments and Tribal Governments Under the Same Constitution, 31 Urb. Law. 47 (Winter 1999).
This article examines legal issues facing local governments and raises the question of how American Indian tribal governments handle such issues. A comparative analysis juxtaposes local government rules with American Indian law. A general conclusion completes the survey.

Stephen E. Abraham, Landgate- Taken But Not Used, 31 Urb. Law. 81 (Winter 1999).
In a recent case, Landgate, Inc. v. California Coastal Commission, the Commission claimed that, because it did not "affirmatively use" private property, the Commission's actions that resulted in an owner being denied all economically viable use of its land did not constitute a taking of private property. In his article, Usings, Professor Jed Rubenfeld offered an approach to the Fifth Amendment intended to end an era of jurisprudence "engulfed in confusion." In exchange for certainty, he asked us to forgo how we look at instances when the government takes private property. Stephen E. Abraham's article examines Rubenfeld's particular method for ending this confusion-by placing the costs of his solution on the backs of property owners already subjected to overreaching government regulations. That the California Coastal Commission seized on Rubenfeld's "solution" demonstrates the extraordinary lengths to which some agencies are willing to go to avoid liability when they take private property.

Scott D. Miller, Construction Covered by the Prevailing Wage Act, 31 Urb. Law. 97 (Winter 1999).
The term "construction" incorporates a wide range of activities, including demolition and landscaping connected with construction; building new facilities; painting; and reconstructing, remodeling, altering, or maintaining existing real estate. This article demonstrates that the terms "public bodies" and "public works," read in conjunction with the section 4 requirements for public bodies undertaking public works, provide three separate and distinct tests for determining whether construction is covered by the Prevailing Wage Act (PWA).

Osborne Reynolds, Jr., The "Unique Circumstances" Rule in Zoning Variances-An Aid in Achieving Greater Prudence and Less Leniency, 31 Urb. Law. 127 (Winter 1999).
Variances are the principal administrative device for granting relief to individual property owners from the unnecessary harshness of zoning laws. Courts and commentators have frequently emphasized that the power to award variances should be exercised sparingly and that a variance should be awarded only if it will not substantially disturb the comprehensive plan of the community but will alleviate hardships that are unnecessary to the general purpose of the plan. This article discusses how variances can avoid the constitutional problems that may be raised when broad regulations impose an unusually severe burden on a particular piece of land.

Elizabeth Lugg, Providing Title I Services on Parochial School Grounds: Aguilar v. Felton Is No Longer the Law, 31 Urb. Law. 149 (Winter 1999).
Ever since the mid-1980s, public schools have been providing auxiliary services to nonpublic school children on neutral sites ranging from rented classrooms to temporary structures to mobile vans. Such accommodations were considered necessary because of decisions of the U.S. Supreme Court that declared unconstitutional under the First Amendment the providing of these services on the grounds of the private religious school. On June 23, 1997, this common law, which had earlier been established by the Court, was reversed in Rachel Agostini v. Betty Louise Felton. This article examines the status of the law prior to the Court's 1997 decision and discusses some of the Court's decisions that may have suggested it was looking for a chance to overturn previous Establishment Clause rulings. Finally, the Agostini decision is reviewed to determine the most probable actual implications for administrators.

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