Vol.36, No.1, Winter2004

The Urban Lawyer

Vol. 36, No. 1, Winter 2004

Publication Date : April 30, 2004

Amnon Lehavi, Property Rights and Local Public Goods: Toward a Better Future for Urban Communities, 36 Urb. Law. 1 (Winter 2004).

The goal of this article is to delineate the contours of a property-like compensation regime for "takings" of local public goods. This regime would aim at both improving societal efficiency and at mitigating the various types of costs and concerns resulting from such a reform. Part II identifies generally the economic and functional characteristics of local public goods, focusing on "Discrete Local Public Goods," i.e., resources, such as parks or playgrounds, whose positive and negative effects outside their geographically proximate areas are relatively modest. Part III explores actual patterns of informal group coordination and cooperation in Discrete Local Public Goods, mostly in public spaces, and explains how such an alternative, informal form of cooperation and coordination in "Local Public Commons" can, at least partially, enjoy the efficiencies of smaller-scale governance typical of more genuine commons. Part IV presents the tension between the mutually desirable reality of grassroots action and the general reluctance of the current legal regime to recognize and validate the interests of the local group, when these interests come into conflict with the interests of the general public. Part V makes the normative case for applying the takings doctrine to those "confiscated" Local Public Commons in which local groups have demonstrated sustainable value-enhancing cooperation and coordination, and explains why constitutional protection (either state or federal) is generally superior to statutory protection in this context. It then sets out in Part VI to design the substantive remedy for "takings" of such Local Public Commons, focusing on the provision of a "substitute facility" as an efficient and feasible collective nonpecuniary remedy. The article concludes by looking at the possible implications of proposed reform for the wider range of local public goods, and at the broader potential embedded in this innovative framework for readdressing a variety of current urban problems.

Edward J. Sullivan & Kelly D. Connor, Making the Continent Safe for Investors-NAFTA and the Takings Clause of the Fifth Amendment of the American Constitution, 36 Urb. Law. 99 (Winter 2004).

The purpose of this article is to compare the investor protection provisions of the Fifth Amendment to the treaty guarantees of NAFTA with a view toward understanding the relative protections accorded within the United States to its nationals and those of other countries participating in NAFTA. It begins with an examination of both Fifth Amendment and NAFTA protection against efforts by national or sub-national governments to regulate private property severely or to expropriate the same. Following this introduction, the article proceeds to a historical discussion of the origins and applications of the Fifth Amendment Takings Clause. A similar discussion of the history, structure, and operations of NAFTA's provisions relating to expropriation and a discussion of cases decided under NAFTA follows. After this groundwork has been laid, an analysis of the two sets of investor protection provisions and a determination of the nature and extent of those provisions ensues. Finally, the authors propose their own conclusions to the issues. The comparison of NAFTA with the U.S. Constitution is similar to a comparison of NAFTA to the Mexican and Canadian constitutional documents, because both are overseen by a court system that is guided by precedent. How NAFTA squares with the rights guaranteed by one of these national constitutions is the object of this article, with particular emphasis on the Fifth Amendment.

Francois Quintard-Morenas, 2003 R. Marlin Smith Student Writing Competition Award Winner: Preservation of Historic Properties' Environs: American and French Approaches, 36 Urb. Law. 137 (Winter 2004).

This article argues that the environs of historic properties in the United States can be efficiently protected through carefully drafted local preservation ordinances defining tailored protective perimeters equivalent to conservation areas around historic properties and taking into account the rights of neighboring property owners. Part II details the historical background of the preservation movement in the United States and France. Part III examines the French legislation protecting historic landmarks' environs, its controversy, and the flexibility achieved through recent legislative reforms. Part IV describes the protection of historic properties' environs in the United States at the federal, state, and local levels, with an emphasis on the Kansas environs legislation. Finally Part V analyzes the lessons of the French and American experiences in the preservation of historic properties' environs.

Peter A. Buchsbaum, Permit Coordination Study of the Lincoln Institute of Land Policy, 36 Urb. Law. 191 (Winter 2004).

Given the increasingly intense interaction between federal legislative/judicial land use requirements and state and local permitting processes, it is surprising that so little attention has been given to inter-governmental coordination of land use controls. The body of work included in this policy focus paper attempts to address this issue. The first part of the study consists of a literature search encompassing leading articles published between approximately 1993 and the present that address permit coordination. These articles were selected because they were most on point with respect to the specific issues of permit coordination. While the bibliography is a select sample of articles reviewed for an approximate nine-year period, it does not, of necessity, reference all potentially relevant articles. In general, articles which dealt with the more general aspects of regional land use planning were not included. Following the bibliography, the paper explores two additional approaches to permit coordination. These are described in case studies discussing the Long Branch Coastal Permit Rule and the coordinated review process between the Cape Cod Commission and the Massachusetts Executive Office of Environmental Affairs. The literature search and the case studies both suggest a need for analysis of concrete proposals for coordination of federal land use programs with those administered at the state and local level.

Index to Volume 35