Vol. 38, No. 1, Winter 2006
Publication Date : March 29, 2006
Gerald E. Frug & David J. Barron, International Local Government Law, 38 Urb. Law. 1 (Winter 2006). International local government law is likely to have profound effects on the legal status of the world’s cities and, therefore, on the kind of cities the world will have. For that reason, its emergence raises fundamental questions about who should determine the legal framework within which cities operate and what that framework should be. This article examines this new development. In doing so, the authors have three goals. First, they want to demonstrate that a focus on international local government law differs from other ways in which scholars have begun to think about cities and their place in the world. Second, the authors seek to introduce the topic of international local government law into the field of international law. The final goal in this article is to offer an analytic framework for evaluating the content of international local government law at this initial stage of its development.
Jerry L. Anderson & Daniel Luebbering, Zoning Bias II: A Study of Oregon’s Zoning Commission Composition Restrictions, 38 Urb. Law. 63 (Winter 2006). Oregon has one of the nation’s most comprehensive land use management programs. Moreover, Oregon is one of the few states to have imposed greater controls on the composition of zoning boards. The authors of this article decided to survey Oregon commissions to determine whether occupational restrictions result in improved board composition. After describing Oregon’s unique land use control system, they detail the results of their survey of Oregon municipalities. They compare the results to a similar Iowa survey, published in 2004, to determine whether Oregon’s more stringent law is achieving better representation. Finally, the authors suggest improvements to the law they think may result in zoning boards with even less potential for bias.
J. David Breemer, Playing the Expectations Game: When Are Investment-Backed Land-Use Expectations (Un)reasonable in State Courts?, 38 Urb. Law. 81 (Winter 2006). This article surveys selected state court case law in an effort to briefly corral, or at least catch a glimpse of, the doctrine of reasonable investment-backed expectations. Part II briefly reviews the Supreme Court’s treatment of the expectations doctrine. Through a review of selected state court decisions. Part III summarizes the most common ways in which state appellate courts have calculated the reasonableness of investment-backed land use expectations and then identifies less well-known factors that state courts have considered. Part III also observes that the state courts’ refusal to draw hard lines around the expectations doctrine allows takings litigants to advance new reasonableness considerations. Part IV concludes that litigants can take advantage of the lack of firm rules by crafting reasonableness standards arising from the facts of each case.
Benjamin M. Gerber , 22nd Smith-Babcock-Williams Student Writing Competition Winner: “No -Law ” Urban Height Restrictions : A Philadelphia Story, 38 Urb. Law. 111 (Winter 2006). “The skyline of the city has long been a dominant element in urban design and should be . . . a major determinant in city-building.” Through the enactment of zoning laws, cities such as Washington, D.C., have effectuated a symbolic or architecturally significant structure’s supremacy; this article is a case study of a once operative height restriction without law. As the paradigmatic example of the operation and influence of a “no-law” urban height restriction, the Philadelphia Gentlemen’s Agreement implicates city planning in an unconventional way. Through a detailed analysis of the impulses that led to the formation and continuance of the Gentlemen’s Agreement, this article tells the story of how a truly unique restriction shaped the character of a city. The author narrates the story through the lens of the law, using ideas of contract, property, and economics to deconstruct the demise of the Gentlemen’s Agreement, the rise of One Liberty Place, and the sudden emergence of the Philadelphia skyline. Cities such as Paris, Washington, D.C., and St. Louis provide the comparative framework necessary for understanding the Philadelphia story within the broader context of urban design.
Robert J. Sitkowski & Brian W. Ohm, Form-Based Land Development Regulations, 38 Urb. Law. 163 (Winter 2006). Recently, several communities—among them Contra Costa County, California; Arlington County, Virginia, Petaluma, California, Hercules, California, Kendall, Florida, and Azusa, California—have put into place the latest iteration of new urbanist-influenced land development regulations: “form based codes.” The form-based approach to new urbanist land use regulation has, up until recently, been applied mainly in private-covenanted regimes—Kentlands, Seaside, and their progeny—a legal atmosphere quite different from the public regulatory sphere. This moving along the continuum from private to public, of course, starts to reveal the legal issues attendant to these types of regulations. This article serves as an introduction to form-based codes for lawyers and presents three primary legal issues that arise when local governments begin to enact these design-based land use regulatory tools.
Deborah A. Vennos & James P. Ray, Property Damage Claims for Environmental Contamination: The Problems Inherent in Attempting to Bring Them as Class Actions, 38 Urb. Law. 173 (Winter 2006). A recent trend in environmental class action litigation has arisen from the realization of plaintiffs’ attorneys that raising personal injury claims allegedly arising from environmental contamination are too expensive, too difficult, or too likely to result in class certification being denied. To better their odds for class certification, plaintiffs’ attorneys are abandoning personal injury claims and are instead focusing on property damage claims alone. The decision to abandon personal injury claims, however, raises serious due process issues, as the named plaintiffs can not adequately represent those class members with legitimate personal injury claims. Government lawyers caught up in the mess of such litigation may be able to use the weakness inherent in this trend to fend off claims. When governments are plaintiffs, they would be well advised to consider the downside of recasting personal injury claims as class action property claims.
With Cases Notes on:
Air Pegasus of D.C., Inc. v. United States
Grace United Methodist Church v. City of Cheyenne
Ross v. City of Memphis
Utah Gospel Mission v. Salt Lake City Corp.
Coast Range Conifers, LLC v. State
Viking Prop. Inc. v. Holm
Joffe v. Acacia Mortgage Corp.
Majlinger v. Cassino Contracting Corp.
Valov v. Dep’t of Motor Vehicles
Whalen v. Mayor of Baltimore
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