|The Urban Lawyer,|
Vol. 31, No. 2, Spring 1999
Publication Date: May 25, 1999
Glenn P. Sugameli, The "Takings" Threat to People, Property, Zoning, and the Environment, 31 Urb. Law. 177 (Spring 1999).
This article discusses the first federal takings bill to be aimed at local governments and the fatal constitutional and practical problems inherent in the bill. The bill, which John Delaney and his law firm helped to draft on behalf of the National Home Builders Association (NAHB), would have undermined local zoning and federal environmental protection by radically altering the procedures that are necessary to decide takings claims. The article also describes the overwhelming opposition to the NAHB bill from local government, all three branches of the state and federal governments, and a wide variety of others.
John J. Delaney & Duane J. Desiderio, Who Will Clean Up the "Ripeness Mess"? A Call for Reform So Takings Plaintiffs Can Enter the Federal Courthouse, 31 Urb. Law. 195 (Spring 1999).
Federal legislation impacting taking litigation, namely H.R. 1534 and S. 2271, was the main legislative initiative for the National Association of Home Builders (NAHB) in 1997-98. This article compiles the primary documents that NAHB presented to Congress to support these bills. The first document is a survey of land-use takings cases decided by the lower federal courts between 1990-97, updated for this publication to encompass reported federal takings cases through the end of 1998. The survey was intended to provide Congress with specific examples of the jurisdictional obstacles that citizens must overcome when they seek access to the federal courts to vindicate property rights protected by the Takings Clause of the Fifth Amendment. Following the Land Use Survey, Professor Daniel Mandelker's testimony on H.R. 1534 is reprinted in its original form as presented to the House Judiciary Committee's Subcommittee on Courts and Intellectual Property. The Mandelker Testimony maintains that H.R. 1534's purpose was to address the ripeness and abstention impediments to federal court adjudication in constitutional land-use cases, without offering any substantive changes to takings jurisprudence.
Lawrence Rosenthal, Romer v. Evans as the Transformation of Local Government Law, 31 Urb. Law. 257 (Spring 1999).
The implications of the Romer decision for local government law have not yet drawn the attention of the commentators, largely because they have examined it as a decision about gay rights and not local government law. This article discusses how the Romer holding cannot be reconciled with the traditional rule that state governments have plenary authority to decide what powers to confer on their local governments. It explains how Romer should be understood as an attack on the rationality of this traditional rule. Finally, it considers the implications of the new constitutional vulnerability of this traditional rule. In particular, the equal protection theory suggested by Romer ought to require states to identify some statewide interest supporting a decision to preempt local authority, rather than permitting them to preempt local powers merely because a statewide majority does not like a result that the local political process has produced.
William Wade, Analysis of the Economic Failings in Penn Central, 31 Urb. Law. 277 (Spring 1999).
Legal scholars and litigators have been struggling for the last twenty years in search of a reason behind the economic premise for the decision in Penn Central. In view of the new standing accorded economic impacts by the Bennett decision, the twentieth anniversary of Penn Central is a good occasion: (1) to examine the way economics was mis-introduced into takings law via Penn Central; (2) to trace the evolution of economic doctrine and practice through takings cases; and (3) to fuse economic theory with legal precedent in the evaluation of takings claims.
T. Nikki Eckland, The Safe Schools Act: Legal and ADR Responses to Violence in Schools, 31 Urb. Law. 309 (Spring 1999).
This note reviews both the federal government's and several states' attempts to reduce the amount of violence in today's school system. It primarily uses the federal government's Safe Schools Act as a representative example of how a majority of the country is dealing with the problem of violence in schools. In addition, it examines both the legal and ADR responses to school violence. Finally, it looks at a few problems that create obstacles to eliminating school violence.
PLANNING AND ZONING SYMPOSIUM, PART I
David R. Bolton & Kent Sick , Power Lines and Property Values: The Good, the Bad, and the Ugly, 31 Urb. Law. 331 (Spring 1999).
This article begins with a general review of major scientific and appraisal writings since 1993 on the subject of electromagnetic field radiation (EMF) and their effect on real property values. Further, it briefly examines current cases, statutes, and municipal regulations on the subject. Finally, the authors explore the pros and cons of corridor valuation for expansion of existing utility easements, with an emphasis on the right-of-way marketing efforts of several major utility companies and using corridor sales data as opposed to traditional "at the fence" methods.
With Cases, Statutes, and Recent Developments on Knowles v. Iowa, 119 S. Ct. 484 (1998).
U.S. v. Bestfoods, 118 S. Ct. 1876 (1998).
Colacurcio v. Kent, No. 96-36197, 1998 WL 848036 (9th Cir. Dec. 8, 1998).
And a Book of Note Reviewing
Public Service, Ethics and Constitutional Practice