Vol.32, No.3, Summer2000

The Urban Lawyer,
Vol. 32, No. 3, Summer 2000

Publication Date: December 21, 2000

The City in the 21st Century

Lynn A. Baker, The City in the 21st Century, 32 URB. LAW. 365 (Summer 2000).
This symposium on the "City in the 21st Century" presents the Proceedings of the January 2000 Annual Meeting of the Section of State and Local Government Law of the Association of American Law Schools.

William W. Buzbee, Sprawl's Political-Economy and the Case for a Metropolitan Green Space Initiative, 32 URB. LAW. 367 (Summer 2000).
After defining "urban sprawl" and exploring briefly its many causes, benefits, and associated harms, this article turns to a neglected part of the sprawl policy equation: metropolitan green space loss, creation, and related policy incentives. The article reaches the somewhat paradoxical conclusion that if sprawling American metropolitan areas in the twenty-first century are to preserve or create substantial green spaces, such quintessentially local amenities will often depend on the existence of federal or state monetary incentives encouraging green space preservation and creation. It concludes that enhanced green space incentives would be a sound policy initiative. Local governments and private development markets will continue to be the most important shapers of urban form, but federal and state green space incentives could modify local politics and markets to create greater public goods and societal wealth.

Robert C. Ellickson, Monitoring the Mayor: Will the New Information Technologies Make Local Officials More Responsible?, 32 URB. LAW. 391 (Summer 2000).
At first blush, the digital revolution might be predicted to result in better citizen monitoring of local politicians. Internet sites surely could ease a citizen's burden of gathering information about local government. For example, gathering information on the municipal budget through e-mail would ease the burden of communicating with like-minded neighbors who might be allies in preventing governmental abuses. In addition, the new communications systems, by enabling more people to work at home, may sharpen incentives to monitor the politicians who govern one's place of residence. Despite these likely positive effects, the author speculates-in part to provoke reactions from commentators-that the digital revolution of the twenty-first century, on balance, actually will worsen the quality of urban government, particularly in central cities.

Georgette C. Poindexter, Economic Development and Community Activism, 32 URB. LAW. 401 (Summer 2000). This article discusses how, when, and if citywide economic decisions should be influenced by neighborhood organizations. Specifically, it compares the notions of public good for a specific community versus public good for the entire city. The discussion is contextualized by framing it around economic development.

Richard Briffault, Comment: Three Issues for the City in the 21st Century, 32 URB. LAW. 409 (Summer 2000).
The articles in this issue's symposium provide a stimulating introduction to three issues central to the study of the city in the twenty-first century: the interplay of local and regional forces in land development, the battles among interest groups to control city hall, and the role of local government in promoting local economic development. These issues are frequently interconnected. Land use and economic development are usually the focal points of local political struggles, while the outcomes of local power struggles can affect land use and economic activity in ways unanticipated by local political actors. These issues also represent different facets of the difficult pursuit of the local public interest. As each author notes, private interests play important roles in the processes and products of local government. Each understands the power of interest groups in local decision making and the fragility of the very notion of the local public interest. Yet, each also continues to look for ways of enhancing the possibilities for public-regarding local outcomes.

Clayton P. Gillette, Comment: Interest Groups in the 21st Century, 32 URB. LAW. 423 (Summer 2000).
The articles by Buzbee, Ellickson, and Poindexter in this issue deal with a wide variety of substantive urban policies ranging from the desirability of "living wage" ordinances to sprawl to participatory technologies. In this comment, the author suggests that the more significant contribution of these articles lies in their illustration of decision-making procedures that affect the substance of local government policies. The issue of decision making and the identification of the appropriate institution to decide which public goods a local government ought to provide are recurrent themes in these articles. In the first part of this comment, the author elaborates on those themes and indicates how they are related to central issues in local government law scholarship. He then applies those themes to the question of sprawl.

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Steven J. Eagle, The Rise and Rise of "Investment-Backed Expectations," 32 URB. LAW. 437 (Summer 2000).
"Investment-backed expectations" was fashioned in 1967 as an academic concept reacting in part to the morality of land speculation. In 1978 it was transformed into one of three principal factors used in determining whether land-use regulations work a taking of property. In more recent years, a determination that there were investment-backed expectations is becoming necessary for a takings plaintiff to prevail. Beyond the takings inquiry, however, the notion of investment-backed expectations is undergoing a second transformation. It is increasingly being regarded as a prime determinant of what constitutes "property" itself. Like the domain of the administrative state, the sway of investment-backed expectations expands without limit. Yet at no point has the concept of "investment-backed expectations" been defined or its implications fully explored. Its proponents have not demonstrated why the term "investment-backed expectations" is superior to the term "property rights" that it threatens to displace.

Planning and Zoning Symposium, Part I

Deborah J. Fox, Smut, Smokes, and Spirits: The First Amendment Re-Examined, 32 URB. LAW. 449 (Summer 2000).
In the course of regulating for the public health, safety, and welfare, public entities often find that the police power is on a collision course with the First Amendment. The result is a rather convoluted body of law that often frustrates municipal practitioners and baffles constitutional scholars. This article focuses on two areas where these opposing interests intersect with dramatically different results-adult businesses and billboards. Specifically, this article highlights five swiftly evolving categories within these two broad regulatory fields: (1) the rejuvenation of the prior restraint doctrine to invalidate adult business ordinances; (2) the Supreme Court's latest journey into pasties and g-string requirements; (3) the explosive growth of adult content on the Internet; (4) the continued refinement of the location analysis; and (5) the trend for municipalities to successfully restrict billboards advertising alcohol and tobacco products.

George A. Yuhas, The Ever-Shrinking Scope of Federal Court Takings Litigation, 32 URB. LAW. 465 (Summer 2000).
This article explores the relationship between the requirement that takings cases be first pursued in state courts and the doctrines of collateral estoppel and res judicata. It demonstrates how the courts' application of these doctrines has effectively made state court adjudications dispositive as to federal takings claims and related constitutional challenges to land-use regulations and decisions. It also briefly discusses the circumstances under which some aspects of federal takings claims may survive or avoid the state court adjudication process.

Larry J. Smith, Eminent Domain Litigation: Multiple Property Consolidated Trials and Pre-Condemnation Planning, 32 URB. LAW. 479 (Summer 2000).
Local governments and public agencies seeking property for public projects often attempt to locate those projects in such a way that the government needs to acquire only a single property, or at least deal with a single owner with multiple parcels. Obviously, that is not always possible, particularly when the public project is linear, such as a highway, or large, such as a stadium or convention center. In circumstances where the government seeks to acquire a number of parcels from different owners in order to construct a single project, many states allow the government to insist upon a consolidation of all of the cases pertaining to a particular project. This article assumes that the reader has been presented with a multi-parcel, multi-party case and needs to determine the following: First, whether to seek, or oppose, consolidation and seriatim trials, and second, how to approach such a trial if a motion to consolidate is granted.

Kenneth A. Wright, Daubert Challenges in Condemnation, 32 URB. LAW. 507 (Summer 2000).
Condemnation cases are multi-faceted. Indeed, as trial practitioners know all to well, while condemnation cases contain many peculiarities, there remains one constancy: Condemnation cases are expert driven. In federal cases, Rule 702 of the Federal Rules of Evidence governs expert opinion testimony. Actually, the effects of Rule 702 are far-reaching as several states have adopted the Federal Rules of Evidence verbatim. Then, in 1993 the U.S. Supreme Court had occasion to construe portions of Rule 702 in its landmark opinion, Daubert v. Merrell Dow Pharmaceuticals. This article discusses the consequences of that opinion.

H. Dixon Montague, The Circuitous Route Taken to Deny Property Owners Damages in Access Cases: Where Has All the Fairness Gone?, 32 URB. LAW. 523 (Summer 2000).
The determination of the compensation to which one is entitled when his or her access has been taken or damaged should be a relatively simply problem to solve. It turns on whether the market value of the remainder property has been affected. Who better to decide this question than the marketplace itself. So what's the problem? Although the courts have stated ad nauseam that market value is the test in these and other "just compensation" cases, almost as much, the courts have formulated evidentiary rules that require us to ignore the market to get to the compensation answer. And if this is not bad enough, we are reminded constantly that each case turns on its own facts irrespective of whether there may be only one impairment of access test, giving the courts more latitude to decide the compensation issue with less predictability for those of us in such cases who are searching for more certainty in this area. Consequently, "unjust compensation" results-both to the property owner whose access is taken or damaged and to the government which must pay the bill.

Bruce W. Bringardner, Exactions, Impact Fees, and Dedications: National and Texas Law After Dolan and Del Monte Dunes, 32 URB. LAW. 561 (Summer 2000).
Local government has routinely required various types of "exactions" from developers as conditions to regulatory approvals such as zoning, subdivision plats, site plans, and building permits. The authority to impose development exactions is derived from the general police power of local government to protect the health, safety, and welfare of its citizens. In some cases (such as impact fees) exactions are authorized by state enabling legislation and then implemented at the local level. Challenges to exactions sometimes involve claims by developers that the city or county failed to strictly comply with enabling legislation and therefore lacked the authority to impose the exaction. Developers have most frequently challenged exactions on constitutional grounds, alleging that the ordinance or regulation imposing the exaction, as applied to a particular tract of land, violates either the Takings or Due Process Clauses of the Fifth Amendment, the Equal Protection Clause of the Fourteenth Amendment, or corresponding provisions of state constitutions. This article focuses on challenges to development exactions as regulatory takings and will not discuss procedural or substantive due process challenges.

Arthur J. Anderson, Landowner's Approach to Land-Use Litigation, 32 URB. LAW. 587 (Summer 2000).
Not surprisingly, the case law in the land-use area revolves around specific fact situations and the egregious manner in which governmental entities often respond to valid requests for reasonable development. Cases involving equal protection and due process violations are decided by the judge and are rarely impacted by the factual distinctions found in inverse condemnation cases. This article focuses on the fact issues involving exactions, acquisitory intent, advancing a legitimate governmental interest, and investment-backed expectations. Procedural issues such as ripeness and exhaustion of remedies are not addressed. A simple fact situation introduces each topic with a description of the law following. Finally, suggestions with respect to case strategy and evidentiary issues are presented.

Selected Cases

John J. Delaney & Emily J. Vaias, Selected Recent Cases of Significance to Landowners, 32 URB. LAW. 613 (Summer 2000).

Bruce M. Kramer, Current Decisions on State and Federal Law in Planning and Zoning, 32 URB. LAW. 655 (Summer 2000).

Michael H. Remy & Eric K. Spiess, The Public Interest Case: Environmental Theories, 32 URB. LAW. 705 (Summer 2000).

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