Vol. 36, No. 2, Spring 2004

Vol. 36, No. 2, Spring 2004

Publication Date : July 6, 2004

Richard Briffault , Home Rule for the Twenty-first Century, 36 Urb. Law. 253 (Spring 2004).

In this article, the author steps back from specific cases and controversies and thinks generally about home rule and its role in the complex urban settings of the early twenty-first century. Specifically, the article discusses four things. First, it explains why home rule is important. Second, it defends the need for some home rule. Third, it considers how changing living patterns have affected home rule and how they require some changes to traditional home rule doctrines and to state-local relations. Fourth, and finally, it briefly sketches some specific ideas for improving home rule.

Jane B. Baron , Homelessness as a Property Problem, 36 Urb. Law. 273 (Spring 2004).

Here is a simple observation: Homelessness has, to this point in time, largely been treated as a problem of poverty. Having formulated the issue in this way, legal and social analysts have asked a limited, almost formulaic set of questions concerning the depth of the problem, its scope, and finally its cause. This article argues that homelessness can be understood another way: as a problem, not of poverty, but of property, or more accurately, a problem of what might be called "no property." "No property" is a distinct and insufficiently understood legal category. Because operative Supreme Court precedent establishes that citizens have no right to have property or to have housing, those who find themselves without any property or housing have no direct legal remedy for their plight. In consequence, they find themselves in the ironic position of affirmatively advocating for rights to more effectively continue in their current position by, for example, being "free" to sleep outdoors or to panhandle aggressively. Victories in such actions-and there have been only a few-are difficult to celebrate.

David F. Tipson , Putting History Back in Historic Preservation, 36 Urb. Law. 289 (Spring 2004).

This article demonstrates that the theoretical underpinnings of today's preservation ordinances are uncertain and problematic. It situates the modern ordinance in the history of the preservation movement as a whole, and despite great variety in historical rationales for historic preservation, ordinances typically fail to distinguish between different rationales and the preservation methods appropriate to each. The article surveys some of the major social and practical problems faced by the historic preservation movement today and shows that the operation of typical historic ordinances is skewed excessively toward the promotion of the tangential benefits of preservation. Finally, the article concludes with a discussion of a new type of preservation regime-one based on the concepts of public history and the cultural landscape. This alternative regime resolves many of the theoretical and practical problems associated with local government regulation of historic resources.

Dr. Juli Ponce, Land Use Law, Liberalization, and Social Cohesion Through Affordable Housing in Europe: The Spanish Case, 36 Urb. Law. 317 (Spring 2004).

This article analyzes affordable housing in Spain, the potential impact, if any, of changing land use regulation on housing prices, and spatial segregation using a multidisciplinary approach combining both legal and economic perspectives. The study is divided into two parts. First, the article examines the Spanish legal framework. Since 1998, a neo-liberalist approach has promoted a substantial change in the historical national land use law. This legal modification has been passed with the intent to declare all land in Spain available for urbanization, except for some cases provided by the law. Second, the article draws a number of preliminary conclusions about the relationship between economics and land use law in order to investigate if the current legal changes in Spain are able to provide a larger number of affordable and better placed housing for the poor.

Douglas R. Appler, America's Converging Open Space Protection Policies: Evidence from New Hampshire, Virginia, and Oregon, 36 Urb. Law. 341 (Spring 2004).

Few issues define a culture better than what its landowners allow to happen on their own little plots of earth. The settlement history of the United States provides ample opportunity to examine this idea, because the country was established by such diverse groups of people over the course of so many years. As America passes into the twenty-first century, each state's day as a frontier territory recedes further and further into its collective memory, taking with it many of the traditional values and ideals once associated with land ownership. The emergence of the modern open space protection movement reflects the decline of these traditionally held, locally unique land ethics, and the rise of a near nationwide open space protection ethic in its place. This movement toward a national open space protection culture is taking place all across the country and has not received the attention from the planning community that perhaps it should. The purpose of this article is to draw attention to the country's converging open space protection values, to prove that this convergence is taking place by chronicling relevant policy changes in New Hampshire, Virginia, and Oregon, and to explain the importance of this shift to the planning profession.

Recent Developments

Paul D. Wilson, Of Sexy Phone Calls and Well-Aimed Golf Balls: Anti-SLAPP Statutes in Recent Land-Use Damages Litigation, 36 Urb. Law. 375 (Spring 2004).

Late in the twentieth century, many state legislatures detected a dangerous trend: Real estate developers, upset about opposition to their projects, were cowing project opponents into submission by filing frivolous lawsuits against them. These legislatures responded by enacting what are commonly called "Anti-SLAPP" statutes, whose goal is to let the project opponent out of the courthouse almost as quickly as the developer dragged him in, and to let him out at the developer's expense, at that. This article considers only the paradigm case: lawsuits brought by real estate developers or owners against others who participate in public processes, resulting in a special motion to dismiss on Anti-SLAPP grounds. In 2002, four variations on that paradigm illustrate the development of Anti-SLAPP laws. The two Massachusetts cases among them also add a little factual spice, involving, as they do, telephone sex and the use of golf balls as weapons.

Justina R. Cintrón Perino , Developments in Citizen Oversight of Law Enforcement, 36 Urb. Law. 387 (Spring 2004).

Citizen oversight of law enforcement is not a novel concept. In fact, the notion that citizens should have some level of involvement and input into the process through which complaints of police misconduct are received, handled, investigated, and disposed of "first emerged as a radical idea" in the late 1920s. Beginning in the late 1950s through the 1960s, citizen oversight of the police "was a highly controversial idea, dismissed as radical and dangerous." Bitter conflicts erupted over this issue and ultimately led to the dissolution of the citizen review boards in New York City and Philadelphia. The creation of the Kansas City Office of Citizen Complaints in 1969 marked the revival of the oversight movement in the United States. With little publicity, the oversight movement quietly grew in the 1970s, picked up momentum in the early 1980s, and became "a full-fledged national movement" by the mid-1980s, through the 1990s.There are slightly more than 100 oversight agencies in the United States. These agencies cover approximately 80 percent of the largest cities and "serve nearly one-third of the American population." This article discusses developments in the law affecting citizen oversight boards.

Robert B. Foster & Mitchell A. Carrel, Patchwork Quilts, Bumblebees, and Scales: Cellular Networks and Land Use Under the Telecommunications Act of 1996, 36 Urb. Law. 399 (Spring 2004).

Since the passage of section 704 of the Telecommunications Act of 1996, courts have struggled to find the right balance between its sometimes contradictory goals. As the First Circuit describes, the TCA "works like a scale that, inter alia, attempts to balance two objects of competing weight: on the one arm sits the need to accelerate the deployment of telecommunications technology, while on the other arm rests the desire to preserve state and local control over land use matters." In the past several years, issues that have bedeviled the district courts since 1997-issues like what constitutes substantial evidence under the Act, or when does a denial have the effect of prohibiting service-have finally begun to find their way to the courts of appeal for resolution. This trend accelerated in 2002, with several circuit courts of appeal weighing in on these issues, even as district courts continued to confront the many cases brought before them under the TCA. Despite the best efforts of the circuit courts to bring some order to the TCA, in 2002, both circuit courts and district courts found themselves falling back upon metaphors such as patchwork quilts and bumblebees in an effort to bring some coherence to the application of the TCA.