Vol.36, No.3, Summer2004

Vol. 36, No. 3, Summer 2004

Publication Date : September 16, 2004

Babak Rastgoufard, Too Much Smoke and Not Enough Mirrors: The Case Against Cigarette Excise Taxes and For Gasoline Taxes, 36 URB. LAW. 411 (Summer 2004).
Part I of this article examines excise taxes, including the history behind them, and how the progressive nature of our income tax structure is undercut by excise taxes, which generally have a disproportional impact on low-income individuals. Part II examines cigarette taxes, which recently have become a panacea for politicians of all stripes. Cigarette taxes and cigarette tax increases have been justified on numerous grounds, but upon close scrutiny, few, if any, of these rationales hold up, especially in light of the regressive nature and misguided policy of imposing cigarette taxes when the increased revenue is not used for the cigarette-related expenditures that are used to justify the taxes in the first place. Finally, Part III looks at gasoline taxes, which inexplicably fail to elicit the same level of support as cigarette taxes. Many of the justifications used to support cigarette taxes can be used more persuasively to support an increase in gasoline taxes. Moreover, gasoline taxes are inherently less regressive than cigarette taxes, and with the appropriate measures described in this article, gasoline taxes can actually be progressive.

Jerry L. Anderson & Erin Sass, Is the Wheel Unbalanced? A Study of Bias on Zoning Boards, 36 URB. LAW. 447 (Summer 2004).
This article first examines the legal controls on zoning board bias, including state statutes, local ordinances, and case law. It then discusses the results of a survey of Iowa zoning board bias and compares the data to a similar occupational study from 1937. Finally, it concludes with possible solutions to the potential direct and indirect bias problems identified. In the end, it concludes that city councils should more carefully consider the occupational makeup of zoning boards in making appointments. The authors recommend, in fact, that state legislatures take a more active role in ensuring a broader representation. Finally, the authors believe that cities should adopt a clear rule regarding conflicts of interest to ensure that most forms of direct bias are eliminated.

Peter W. Salsich, Jr., Saving Our Cities: What Role Should the Federal Government Play?, 36 URB. LAW. 475 (Summer 2004).
A perusal of the newspaper accounts of the release of the proposed federal budget for fiscal year 2005 might give one the impression that the federal government has little to do with the condition of America’s cities. Virtually no mention was made of recent studies documenting that an increasing number of full-time workers, as well as unemployed or part-time workers, cannot afford to purchase a home; fully employed people making minimum wage cannot afford rental housing without substantial governmental assistance; and homelessness remains a serious problem for individuals and families, even those with jobs. Against this background, Part II of this article reviews federal housing policy with particular emphasis on the CDBG and Section 8 programs created by the 1974 Act. Part III discusses the growth of state housing finance and development programs. Part IV examines the implications of the territorial expansion of metropolitan areas. Part V expands on suggestions made in an earlier article for a metropolitan development strategy that emphasizes a renewed partnership among the three levels of government.


Daniel J. Curtin, Jr. & W. Andrew Gowder, Jr., Recent Developments in Land Use, Planning and Zoning Law Relating to Exactions, 36 URB. LAW. 519 (Summer 2004).
The legality of exactions, especially the imposition of impact fees, continues to stir judicial controversy. Last year’s report of the Exactions Subcommittee, Exactions Update: When and How Do the Dolan/Nolan Rules Apply?, concentrated on the issue of when and how the Dolan/Nollan rules apply in exactions, especially as to the imposition of impact fees based on the California Supreme Court decision in Ehrlich v. Culver City. In this year’s report, the authors discuss cases that courts have decided this year that have a significant effect on this field of law.

Robert B. Foster & Mitchell A. Carrel, Delaney’s Semi-Scientific Test and Other Adventures in Cellular Networks and Land Use Under the Telecommunications Act of 1996, 36 URB. LAW. 529 (Summer 2004).
Since the passage of section 704 of the Telecommunications Act of 1996 (TCA), courts have struggled to find the right balance between its sometimes contradictory goals. 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 2003, with several circuit courts of appeal weighing in on these issues. The result, however, has been less a resolution of some of the conflicting standards that courts have established under the TCA than the transfer of those conflicts from the district court to the circuit court level. A coherent and uniform application of the TCA continues to prove elusive.

Edward J. Sullivan, Comprehensive Planning, 36 URB. LAW. 541 (Summer 2004).
The 2003 report of the Comprehensive Planning and Growth Management Subcommittee traces, as it has for many years, the role of the comprehensive plan, also known as the general or master plan, in the land use regulatory hierarchy. As in past years, this report begins with the familiar requirement found in section 3 of the Standard State Zoning Enabling Act that zoning regulations be “in accordance with a comprehensive plan.” The slow but ineluctable progress of the plan as a document to evaluate land use regulations is a theme of these reports on recent developments. If anything, the cases of the past year demonstrate a marked reduction of support for the Unitary view with most of the cases falling into the Planning Factor category, while the Plan-As-Law view holds its own, it being the product of case law or statutory command. Moreover, in those cases in which the plan is a factor, it is often viewed by the courts as the weightiest factor in these evaluations.

Cecily T. Talbert & Nadia L. Costa, Current Issue in Inclusionary Zoning, 36 URB. LAW. 557 (Summer 2004).
Currently, hundreds of communities nationwide have implemented inclusionary zoning programs. In California alone, 20 percent of the localities (107 cities and counties) have adopted some form of inclusionary zoning. At least thirty other jurisdictions in California are currently considering adopting some kind of inclusionary zoning policy, including California’s largest city Los Angeles. In total, inclusionary zoning may well have produced as many as 100,000 affordable units nationwide. Over 34,000 affordable units have been created in California as the result of inclusionary zoning. Inclusionary ordinances in New Jersey are credited with producing 15,000 to 20,000 affordable units, and those in the Washington, D.C., metropolitan area have produced over 15,000 affordable units. This report of the Inclusionary Zoning Subcommittee discusses developments in inclusionary zoning across the country.

Paul D. Wilson, “A Large Fortune or a Small Fortune” to Drop That Appeal: Developers Charge Project Opponents with Illicit Motives in Recent Land Use Damages Litigation, 36 URB. LAW. 571 (Summer 2004).
This year’s report of the Land Use Litigation and Damages Subcommittee focuses on attempts by frustrated developers to strike back at project opponents, alleging improper motives. Developers sought at least four forms of relief on such theories, each covered in a separate section of the article. These counterattacks met with varying degrees of success.