Vol. 35, No. 4, Fall 2003

The Urban Lawyer

Vol. 35, No. 4, Fall 2003

Publication Date : January 14, 2004

Robert H. Freilich, Rebecca M. Abeln & Brigette L. Willauer, The Freilich Report: A Review of 2002-03 U.S. Supreme Court Decisions During an Era of Domestic Insecurity, 35 Urb. Law. 565 (Fall 2003).

The 2002-03 Supreme Court Term proceeded against the backdrop of war, terrorism, and stagnant economic conditions that made for general uncertainty on the domestic front. Fueled by terror alerts issued by the new Department of Homeland Security, anxiety dominated the scene at state and local levels, where budgetary crises lingered throughout the year. Critics of the legal system voiced concern that in the "craze" for domestic security, government legal strategies threatened civil liberties that seemed vulnerable to sacrifice in the so-called campaign against terror. Continuing its trend from the previous Term, the Bush Administration weighed in with the Office of the Solicitor General filing thirty-nine briefs. The Court decided eighty cases during the 2002-03 Term, in part consisting of thirty unanimous decisions, and only fourteen decisions based on 5-4 votes. This review discusses U.S. Supreme Court decisions of interest to state and local government law practitioners.

Daniel R. Mandelker, Model Legislation for Land Use Decisions, 35 Urb. Law. 635 (Fall 2003).

Decision making for land use cases is drama. Who participates in the review process, how hearings are held, and how courts review land use decisions raise fundamental problems of fairness in our legal system. The American Planning Association (APA) recently published a Legislative Guidebook in its Growing Smart project that contains new model laws for land use planning and regulation, including procedural reforms for the administrative and judicial review of land use decisions. Part I of this article describes the Growing Smart project. Part II reviews the administrative and judicial review process in the Standard Zoning Act, and explains why the process creates serious problems for land use decision making. Part III describes the administrative and judicial review process in Chapter 10 of the Legislative Guidebook, which is a replacement for the Standard Zoning Act.

ANNUAL REVIEW OF THE LAW

Martha Harrell Chumbler, Recent Developments in Ethics: Conflicts of Interests Relating to Former and Current Government Clients, 35 Urb. Law. 671 (Fall 2003).

This report discusses revised Model Rule of Professional Responsibility 1.11, adopted by the ABA House of Delegates during the February 2002 Midyear Meeting. The amended rule relates to conflicts of interest arising from government representation. The author summarizes recent decisions from around the country on the same subject.

Recent Developments in Environmental Law

Carol L. Dorge, Environmental Hot Topics, 35 Urb. Law. 685 (Fall 2003).

This article summarizes developments in environmental law during 2003.

Michael D. Diederich, Jr., Municipalities Regain Control over Trash-"Flow Control" Revived, 35 Urb. Law. 687 (Fall 2003).

Solid waste "flow control"-the power local government has to control the movement of trash-has been revived. After C & A Carbone, Inc. v. Town of Clarkstown, many believed municipalities lost this control by interfering with the movement of an "article of commerce." The Second Circuit Court of Appeals, however, has corrected this misinterpretation. In United Haulers Ass'n v. Oneida-Herkimer Solid Waste Mgmt. Auth., the Court held that local government can permissibly direct the flow of waste to public waste facilities , without running afoul of the U.S. Constitution's Commerce Clause. This is a decision of national importance because it gives back to municipalities the power to comprehensively self-manage their own garbage and recyclables in an economically and environmentally sound manner as envisioned by state and local solid waste management plans.

Adriane J. Dudley & Jamie N. Collins, Gasification: Could It Be an Answer to the Problem of Municipal Solid Waste Disposal?, 35 Urb. Law. 693 (Fall 2003).

This article discusses a little-known alternative to traditional solid waste management disposal methods, hauling garbage to landfills and incinerators, which exists in a handful of locations across the United States, Europe, and Asia. The process is called gasification, the conversion of solid waste into synthesis gas composed primarily of carbon monoxide and hydrogen via high temperatures. Unlike landfill and incineration, however, whose aim is the treatment of solid waste (a euphemism for getting rid of the garbage), gasification is a production technology with useful byproducts.

Recent Developments in Government Operations and Liability

Kelly M. Mann, United Mexican States v. Metalclad Corporation: The North American Free Trade Agreement Provides Powerful Private Right of Action to Foreign Investors, 35 Urb. Law. 697 (Fall 2003).

The North American Free Trade Agreement provides for two dispute resolution mechanisms. One, the State-to-State Dispute Settlement process, applies to the entirety of the NAFTA agreement and is available to state parties under NAFTA Chapter 20. The other, the Investor-to-State Dispute Resolution process, grants a private right of action to foreign investors against NAFTA host countries for infringement of the investors' Chapter 11 rights. This report discusses one of the most noted cases litigated to date under the Investor-State process- United Mexican States v. Metalclad Corporation.

Daniel Dalton, The Balance Between the ADA and Public Transit Safety Concerns: Seat Belts vs. Civil Rights, 35 Urb. Law. 703 (Fall 2003).

Paratransit agencies are facing a difficult challenge in balancing public safety concerns without infringing on the civil rights of disabled individuals. Public transportation agencies owe their passengers the highest duty of care, and in order to provide the safest means of transportation, a mandatory seat belt policy appears to be necessary, especially when considering the safety of disabled individuals. The Americans with Disabilities Act, however, poses an obstacle to a mandatory seat belt policy. Taking into consideration the ADA's broad nondiscrimination provisions, it may be a violation of the ADA to require passengers in wheelchairs to wear seatbelts. The issue of whether a mandatory seat belt policy would violate an individual's civil rights has not previously been litigated. This report discusses some of the issues that arise in attempting to address both safety and civil rights.

Iris Jones, Collecting and Analyzing Racial Profiling Traffic Stop Data: Is It a Reliable Method of Detecting Racial Profiling?, 35 Urb. Law. 707 (Fall 2003).

After several decades, the subject of race relations continues to be an unresolved and perplexing issue for Americans. More specifically, fourteen states and over 2,000 municipalities are grappling with the daunting task of collecting and analyzing data from traffic stops under either state mandate or on a voluntary basis. Even more challenging than compiling the data is fully understanding and clearly explaining the statistics created from the data analysis. The difficulty lies in the method of collection and the subjective nature of the tasks at hand. The collection of traffic stop data is literally a moving target. Police officers and state troopers are faced with the tremendous responsibility of determining the race and ethnicity of each person that they stop as well as the responsibility of carrying out their duty to enforce the law in a fair and equitable manner. This report discusses issues surrounding traffic stop data in detecting racial profiling.

David G. Tucker, SEC Enforcement Actions Against Municipalities: Blaming the Professionals No Longer Works, 35 Urb. Law. 717 (Fall 2003).

On March 21, 2003, the Securities and Exchange Commission issued an opinion supporting its cease-and-desist order against the City of Miami for violation of the Securities Act of 1933. This is the latest event in a current trend of enforcement actions by the SEC against issuers of municipal bonds. This report discusses the significance of the SEC's opinion in City of Miami.

Philip K. Hartmann & Stephen J. Smith, 42 U.S.C. § 1983: First Stop-State Court (Sometimes), 35 Urb. Law. 719 (Fall 2003).

In a world of complex zoning and comprehensive land use regulations, the number of cases alleging a physical and/or regulatory taking is on the rise. Most states have established laws to bring these types of actions in state court. This article, however, discusses the ever-increasing trend of landowners foregoing state court procedures and bringing their claims under 42 U.S.C. § 1983 in federal court for violations of the Fifth Amendment Taking Clause. The advantage to bringing an action under § 1983 is that the prevailing party may recover attorney fees. While at first glance this may sound like an appealing proposition, it is a course of action that is fraught with pitfalls for the unwary.

Recent Developments in Land Use, Planning, and Zoning

Daniel J. Curtin, Jr. & W. Andrew Gowder, Jr., Exactions Update: When and How Do the Dolan/Nollan Rules Apply?, 35 Urb. Law. 729 (Fall 2003).

In nearly all aspects of land use approval, significant controversies arise over the amount and type of exactions a government may impose on landowners or developers, whether they require dedications of property or the imposition of fees. Local governments contend that this arrangement is only fair. The U.S. Supreme Court has long held that the regulation of land use does not effect a taking of property if the regulation substantially advances a legitimate governmental interest and does not deny the property owner economically viable use of the land. The major legal issue involving exactions is not whether the dedication or the payment of a fee as a condition precedent to development may be required, but to what extent the dedication or fee may be imposed. This report summarizes recent impact fee case law.

Daniel J. Curtin, Jr. & Nadia Costa, Inclusionary Zoning Update, 35 Urb. Law. 739 (Fall 2003).

Inclusionary housing programs have been in effect since the early 1970s and are growing in popularity today because more jurisdictions view them as innovative ways to increase the supply of affordable housing, combat exclusionary zoning practices, and facilitate implementation of Smart Growth principles. This report summarizes cases affecting inclusionary housing programs.

Jonathan M. Davidson, 2003 Land Use ADR Report: Enforcing Compliance with Negotiated Agreements, 35 Urb. Law. 749 (Fall 2003).

In a year marked by maneuverings over enforcement of international resolve, domestic judiciaries faced analogous issues with parties seeking to expand, evade, or renegotiate land use commitments. The New Jersey Supreme Court denied local government and developer attempts following years of mediation and negotiations to extend housing law doctrines to serve their respective interests. Montana's high court ultimately reinstated terms of a subdivision improvement agreement after repeated local government circumventions. A Wisconsin appellate court refused to remove a condition in a mediated land purchase agreement linked to a concurrent development dispute. In each situation, the courts limited party options in light of prior negotiated commitments.

Thomas E. Roberts, Regulatory Takings in the Wake of Tahoe-Sierra and the IOLTA Decision, 35 Urb. Law. 759 (Fall 2003).

The first clear government victory in a regulatory takings claim since 1987 came in 2002 in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency. The recent term brought another government takings victory, Brown v. Legal Foundation of Washington. This 5-4 victory came outside the land use context. This report addresses what has happened to the law of regulatory takings in the courts in the past year, focusing mainly on the impact of Tahoe-Sierra and the implications of the recent Brown v. Legal Foundation of Washington decision for land use law. Other recent case law developments are also discussed.

Brian W. Ohm & Robert J. Sitkowski, The Influence of New Urbanism on Local Ordinances: The Twilight of Zoning?, 35 Urb. Law. 783 (Fall 2003).

An increasing number of local governments across the United States, big and small, young and old, have adopted ordinances reflecting principles of new urbanism. Some address new urbanism in the context of greenfield development, others address it in the context of infill development. This report is the second in a series by the Subcommittee on New Urbanism, examining the influence of new urbanism on land use law. The first examined changes in state statutory enabling law to promote new urbanism. Robert J. Sitkowski & Brian W. Ohm, Recent Developments in Land Use, Planning and Zoning Law: Enabling the New Urbanism, 34 Urb. Law. 935 (2002). This second report focuses on efforts by local governments to implement new urbanism by amending local ordinances. These amendments reflect the popular acceptance of at least some new urbanist ideals. The amendments also indicate a recognition that local ordinances need to change to take into account new urbanist ideas.

Leila B. Helms, Recent Developments in Public Education: Postsecondary Education 2002-03, 35 Urb. Law. 795 (Fall 2003).

This report covers all litigation involving postsecondary education reported in West's Education Law Reporter between May 1, 2002 and April 30, 2003. During that period, 292 cases were reported, a 15 percent increase from the previous year and a decrease from the high of 495 cases reported for the same period in 1995-96. In addition, the report includes the Supreme Court's two decisions in June 2003 on the use of affirmative action in admissions at the University of Michigan.

Recent Developments in Public Finance

Kyle V. Mitchell & Henry G. Gyden, State Legislatures and Residential Development Districts, 35 Urb. Law. 813 (Fall 2003).

Whether it is through enterprise zones, tax increment finance districts, special zoning districts, or business improvement districts, opportunities for public finance "outside" traditional state and local governments abound. One notable area of opportunity has been through "special districts" that focus on residential development. In Florida, more than $1 billion has been bonded in more than fifty projects during the last three years. Given the impact of these projects, the actions, and potential actions, by state legislatures can have an important impact on this area of public finance. To that end the authors examine some of the notable changes considered during the 2003 state legislative sessions.

Michael R. Johnson, Scott H. Beck & H. Lawrence Hoyt, State Constitutional Tax Limitations: The Colorado and California Experiences, 35 Urb. Law. 817 (Fall 2003).

Throughout the western states since the late 1970s, citizens and their legislators have been concerned about the amount of taxes they pay. They have used the right of initiative and referendum reserved to citizens in western state constitutions to amend those constitutions to limit current and future state and local taxes. These measures have often had unanticipated consequences that are now, in this time of serious economic downturn, being felt by state and local governments and the people they serve. This report focuses on the primary tax limitation measures adopted by the people in two of these states, Colorado and California. The authors analyze the impacts of the so-called Taxpayers' Bill of Rights and the Gallagher Amendment in Colorado and the effects of the renowned Proposition 13 on governments and citizens in California.

Index to Volume 35

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