Vol.33, No.3, Summer2001

The Urban Lawyer,
Vol. 33, No. 3, Summer 2001

Publication Date:October 22, 2001

P. Greg Gulick & Paul M. Jones, Jr., The Internet's Impact on State Tax Systems: A Proposal to Impose a Use Tax Collection Duty on Remote Vendors, 33 URB. LAW. 000 (Summer 2001).
This note proposes that the Internet Tax Moratorium and Equity Act, S. 2775, which was introduced in Congress in June 2000, provides a means by which states can meet this challenge. Part I provides the perspective and context necessary to understand this issue by: (1) explaining sales and use taxes, (2) discussing the impact of e-commerce on state government revenue, and (3) explaining the law that has prohibited states from imposing a use tax collection duty on remote vendors. Part II highlights the landscape of legislation and policy proposals that have addressed state taxation of e-commerce transactions. It begins by summarizing Congress's first attempt to address state taxation of e-commerce, the Internet Tax Freedom Act; thereafter, it sets forth and critiques a host of policy proposals that attempt to solve the states' dilemma. Part III examines the Internet Tax Moratorium and Equity Act and suggests that S. 2775, with modifications, is the best solution to the states' current inability to collect use tax.

Aaron Gruen, Takings, Just Compensation and the Efficient Use of Land, Urban, and Environmental Resources, 33 URB. LAW. 517 (Summer 2001).
This article reviews the debate concerning the proper understanding and scope of the Takings Clause. It discusses the just compensation framework and reviews the various theories courts have used to find not compensable loss of goodwill, going-concern value and other costs engendered by takings. The article proposes that the Takings Clause should promote the efficient use of land, urban and environmental resources and illustrates the potential for the exercise of eminent domain to be inefficient and unfair even when compensation equates to market value. The article reviews the moral hazard and capitalization arguments utilized by some scholars to contend that no compensation for takings would be efficient. It identifies the weaknesses with these provocative arguments, using takings cases as examples, and explains why not paying compensation for takings would be both inefficient and unfair.

Kiren Dosanjh, Calling on Oncale: Federal Courts' Post-Oncale Approach to the "Evidentiary Routes" to Discriminatory Intent in Title VII Same-Sex Harassment Claims, 33 URB. LAW. 547 (Summer 2001).
This article discusses the aftermath of the U.S. Supreme Court's decision in Oncale, which resolved the tension between the various judicial approaches to same-sex harassment claims brought under Title VII. The article attempts to support the thesis that, in drawing from the differing positions offered by the lower courts, the U.S. Supreme Court offered a solution that raised as many questions as it answered. In reviewing the Oncale decision, the article considers whether the Court's deference to "ordinary socializing in the workplace" has created a higher evidentiary standard for same-sex harassment plaintiffs. It also discusses the requirement of showing discriminatory animus in same-sex harassment cases, as well as the 2000 Seventh Circuit decision in Holman v. State of Indiana, and examines how the issue of the "equal opportunity harasser" remains problematic after Oncale.

Bruce M. Kramer, Current Decisions on State and Federal Law in Planning and Zoning, Part I, 33 URB. LAW. 561 (Summer 2001).
The past year saw an increase in both state and federal planning and zoning cases with the number rising near 400 in state cases and over fifty for federal cases. There were also several Supreme Court decisions rendered that will have a direct or indirect impact on governmental regulation of land use, including Village of Willowbrook v. Olech. The federalization of land-use control as it affects the telecommunications industry was made apparent by the many cases arising under the Telecommunications Act, a trend seen in the past two years. In addition, there appears to be a growing number of "omnibus" constitutional challenges to zoning decisions based on regulatory taking, substantive or procedural due process, and equal protection grounds.

Land Use Symposium

Ronald H. Rosenberg & Nancy Stroud, When Lochner Met Dolan: The Attempted Transformation of American Land Use Law by Constitutional Interpretation, 33 URB. LAW. 663 (Summer 2001).
While the Supreme Court sets forth new constitutional interpretations in occasional decisions, it is the task of the lower federal and state courts to refine and apply this doctrine in an ever-expanding number of cases. These courts actually give our Constitution its meaning through numerous specific applications. The Supreme Court might set the aspects of constitutional doctrine, the lower courts animate the doctrine in ways that have direct effects on society. This article examines recent judicial interpretations testing the constitutionality of regulatory takings and development exactions. In particular, it discusses current cases applying the Supreme Court's rulings in Agins v. City of Tiburon, Nollan v. California Coastal Commission, and Dolan v. City of Tigard.

Patricia E. Salkin, Litigating Ethics Issues in Land Use: 2000 Trends and Decisions, 33 URB. LAW. 687 (Summer 2001).
Since 1998, this annual survey of ethics issues in land-use planning and zoning provides municipal attorneys with a review of hot button litigation areas in which the underlying issue involves a planning and zoning decision-making action and applicable agencies, bodies, or commissions are issuing relevant opinions of interest to land-use lawyers. Ethics issues are included here in the broadest sense, covering both actions and conduct that may violate local, state, or federal statutes or the common law, as well as actions that, while not rising to the level of illegality, nonetheless raise issues of fundamental fairness and community values with respect to how each community expects the members of its planning and zoning boards and local legislative bodies to conduct themselves.

Jonathan Davidson & Susan Trevarthan, Land Use Mediation: Another Smart Growth Alternative, 33 URB. LAW. 705 (Summer 2001).
Regardless of one's policy perspective, mediation and other forms of alternative dispute resolution may improve communication and lead to more timely and cost-effective consideration of growth management alternatives. In fact, the best local land-use decisions may result when the various stakeholders come together to support a mutually agreed upon solution. This report focuses on governmental and private initiatives to encourage agreements in land-use planning, zoning, facility siting, and conservation issues. It highlights recent research and examples of mediated land-use settlements, and appellate cases from California, Georgia, Washington, and New Jersey. Current land-use ADR developments in the state legislatures of Connecticut, Maine, and Colorado are also discussed. Each addresses mediation as an opportunity to achieve sensible community growth.

Edward J. Sullivan, 2001 Comprehensive Planning Law Update, 33 URB. LAW. 713 (Summer 2001).
This report again examines the changing role of the comprehensive plan in the land-use regulatory process. Increased deference to the comprehensive plan appears to be reflected in the cases decided over the last year. The cases can be divided into three categories. The first category, which accords no role to the comprehensive plan in land-use regulation, reflects a slight increase in cases. However, more cases fall in the second and third categories, in which the comprehensive plan is either a significant factor or the governing principle in land-use regulation. As with last year's report, the cases in the third category, in which the comprehensive plan sets the standard for regulation, deal largely with the consequences of a meaningful plan-for example, its interpretation or its status as a subject for an initiative or referendum.

Paul D. Wilson, What Hath Olech Wrought? The Equal Protection Clause in Recent Land Use Damages Litigation, 33 URB. LAW. 729 (Summer 2001).
When a local government prevents a landowner from using his land as he or she pleases, by enacting land-use regulations or denying permit applications, the unhappy landowner sometimes marches off to court, seeking damages. One possible but little-used basis for such damages claims is the Equal Protection Clause of the Fourteenth Amendment. Now, however, the reach of the Equal Protection Clause may be changing dramatically as a result of a seemingly insignificant dispute between a landowner and her Illinois village concerning a water pipe. This report discusses the decision in Olech v. Village of Willowbrook.

Peter A. Buchsbaum, SWANCC: A Retreat from Federal Regulation of Land Use?, 33 URB. LAW. 753 (Summer 2001).
Federal control over land use has been growing and becoming an ever more important factor in this field of law. Until this year, this perception had been accurate. This report focuses on the effect of the decision in Solid Waste Agency of N. Cook County v. U.S. Army Corp. of Eng'rs. on this trend and suggests that the decision involves a substantial break from the pattern of increased federal control over land use.

Pamela R. Logsdon, Jurisdiction to Regulate Land Uses in Indian Country: Basic Concepts and Recent Developments, 33 URB. LAW. 765 (Summer 2001).
The basic precept of Indian law in the United States is that tribes are sovereign nations with inherent authority to regulate both their members and their territories. Coupled to this, however, tribes are constantly faced with the challenging task of attracting legitimate business enterprises, while expanding upon inadequate or antiquated infrastructure, maintaining distinct cultural identities and values, and protecting the tribe from any further erosion of its sovereign power. Out of this framework comes the most frequent source of conflict between state or local governments and tribal governments. This article discusses the question of who has the authority to regulate activities on a particular parcel of land in Indian country.

Mitchell A. Carrell & Robert B. Foster, Railroad Tracks by Walden Pond: The Ongoing Struggle Between Towns and Providers Under the Telecommunications Act of 1996, 33 URB. LAW. 781 (Summer 2001).
Now in its fifth year, section 332(c)(7) of the Telecommunications Act of 1996 (TCA) remains more than ever the flashpoint for the politically conflicting desires over local control of the built environment and for a streamlined national telecommunications network. As the disputes of the past year have reached the courts under the TCA, the struggles between localities and wireless service providers remain acute. This report discusses cases that do not present any clear trend in favor of localities or providers.

Robert W. Oast, Jr., Incentives for Economic Development for Underserved Communities and for Affordable Housing: A Selective Look at Legislative Initiatives in the 106th Congress, 33 URB. LAW. 793 (Summer 2001).
The tax-related legislative actions most likely to have an effect on urban and economic development for local governments during the first year or more of the Bush Administration are two measures that passed in the waning days of the Clinton Administration: the Community Renewal Tax Relief Act of 2000 and the American Homeownership and Economic Opportunity Act of 2000. The new laws are lengthy, and like many tax-related, targeted-incentive programs, they do not exist in a discrete package, but consist largely of amendments to other laws The major points of the laws are summarized, and some of their implications for economic development and local governments are considered.

With a Book Review on
Privately Owned Public Spaces
Reviewed by Rodney L. Cobb

And Cases, Statutes, and Recent Developments on
Central Green Co. v. United States, 531 U.S. 425 (2001)
Cook v. Gralike, 531 U.S. 510 (2001)
Hunt v. Cromartie, 121 S. Ct. 1452 (2001)
Dir. of Revenue of Mo. v. CoBank ACB, 531 U.S. 316 (2001)
Oliver v. State Tax Commission of Missouri, 37 S.W.3d 243 (Mo. 2001)