Vol.38, No.3, Summer2006

Vol. 38, No. 3, Summer 2006

Vol. 38, No. 3, Summer 2006

Publication Date: September 12, 2006

 

ARTICLES

 

Yishai Blank, Brown in Jerusalem: A Comparative Look on Race and Ethnicity in Public Schools, 38 Urb. Law. 367 (Summer 2006).
The devolution of control over public educational systems from the central government to localities has been justified by two sets of arguments: first, by free-market inspired “jurisdictional competition” theory; second, by multicultural ideology. Notwithstanding the advantages stemming from such decentralization—efficiency, wealth-maximization, cultural accommodation—this article identifies various harms associated with it, including problems of cooperation, distributive injustice, reproduction of pre-existing segregation along lines of race and ethnicity, and an accelerated fragmentation of the civic body. Examining the Israeli case and drawing analogies to the American example, the article provides a thick factual description and theoretical analysis of the way that background legal norms, social and economic baseline conditions and public choice dynamics have shaped public schools in both countries. This description especially reveals that the profound decentralization of Israel’s public education system resulted in a deep segregation—between Jews and Arabs as well as within the Jewish community, between Jews who emigrated from Arab countries (Mizrahi Jews) and Jews of European descent (Ashkenazi Jews)—that threatens to undermine the main goals of a public education system in a liberal state. The structural similarities that this article finds between processes that took place in Israel and in the United States strengthens the realization that court decisions such as Brown, which can be narrowly construed as merely prohibiting state-sanctioned segregation, are incapable of fulfilling the promise of racial integration. This is why a Brown-like decision in Jerusalem, still much anticipated by many, might also prove to be a hollow hope. I thus conclude by pointing to various policy suggestions that can overcome the structural barriers that impede integration.

R.S. Radford, Just a Flesh Wound? The Impact of Lingle v. Chevron on Regulatory Takings Law, 38 Urb. Law. 437 (Summer 2006).
In Lingle v. Chevron USA, Inc., the Supreme Court reversed twenty-five years of precedent and held, reversing the doctrine of Agins v. City of Tiburon, that a land use regulation that fails to substantially advance legitimate state interests does not (with only limited exceptions) violate the Takings Clause of the Fifth Amendment. Instead, failure of the “substantial advancement” test will generally set out a due process violation, resulting in the invalidation of the offending measure. Although Lingle has been portrayed as a major setback for the constitutional rights of property owners, this article contends that the actual impact of the decision will be minor. By affirming the availability of a due process remedy for substantial advancement claims, the Lingle Court has opened a new avenue for relief in the Ninth Circuit, which has barred such complaints for the past decade. Moreover, when property owners can show significant economic injury from the application of such regulations, allegations that previously would have supported a substantial advancement claim will continue to set out a Takings Clause violation under the “character of the state action” prong of Penn Central Transportation Co. v. City of New York.

Daniel A. Jacobs, Indigestion from Eating Crow: The Impact of Lingle v. Chevron U.S.A., Inc. on the Future of Regulatory Takings Doctrine, 38 Urb. Law. 451 (Summer 2006).
First, this article, in Part II, travels the path of the Supreme Court’s development of regulatory takings doctrine noting the intermingling due process and takings analysis leading up to the Court’s decision in Lingle. Part III provides an analytical exposition of the Lingle opinion itself. In Parts IV and V, the article surveys both Lingle’s immediate impact on regulatory takings doctrine as well as its possible future implications. In sum, the Court’s decision creates little upheaval in federal and state jurisprudence, but through “eating crow” on the Agins “substantially advance” test, the opinion predicts a narrower scope of future successful regulatory taking claims alongside the obsolescence, outside of per se claims, of facial regulatory takings challenges.

Steven A. Haskins, Closing the Dolan Deal—Bridging the Legislative/Adjudicative Divide, 38 Urb. Law. 487 (Summer 2006).
The U.S. Supreme Court’s treatment of exactions is a prime example of the legal battle being waged on the Takings Clause. Sparked by local governments’ desire to slow down growth and development, governments began, in the 1970s, to bargain with (or coerce) developers to make property concessions in return for government approval of projects. Currently, the Supreme Court’s Dolan test determines when exactions go “too far.” Unfortunately, the test has not answered all exaction-related questions and lower courts continue to struggle as they decide how and when the Dolan test should apply. Chief among these open questions is whether the heightened scrutiny of the Dolan test should apply to “legislative” acts as well as “adjudicative” decisions. This article argues that the legislative and adjudicative distinction, while important in the due process context, is less important to the Takings Clause, with its emphasis on just compensation. Furthermore, although Dolan should be understood to cover a broad range of exactions, lower courts have made the mistake of relying on an unduly narrow understanding of the Dolan Court’s discussion of “adjudicative” decision making. Even if the Court distinguished between the two classes of exactions, many lower courts are currently misapplying the line between them to deny compensation, even in cases comparable to Dolan. By redefining its exactions jurisprudence, the Court can provide a better, more equitable rule for developers and cities to follow.

ANNUAL REVIEW OF THE LAW

 

Recent Developments in Environmental Law

John H. Minan, Wetlands Regulation and the United States Supreme Court, 38 Urb. Law. 523 (Summer 2006).
The Clean Water Act is the principal federal statute dealing with the regulation of water pollution in the United States. The exercise of federal regulatory authority over privately owned wetlands has generated considerable controversy during the last few decades. The application of CWA § 404 to wetlands lies at the center of this legal controversy. Today, the federal circuits are hopelessly split on the proper test for determining when a nonnavigable feature of a wetland should be, if at all, treated as “navigable waters” for regulatory purposes under section 404. The U.S. Supreme Court is poised to clarify the scope of federal power under the CWA in two consolidated cases from the Sixth Circuit that are a continuation of the legal battle involving the meaning of “navigable waters” and its application to federal wetlands regulation under the CWA: Carabell v. U.S. Army Corps of Engineers and United States v. Rapanos. The Court’s decision is apt to have reverberations on the other programs falling within the CWA—from storm water regulation to thermal discharges.

Richard J. Brickwedde, 2005–06 Solid Waste Hot Topics, 38 Urb. Law. 539 (Summer 2006) .
This article discusses four important sold waste cases decided in the federal courts this year.

Tina Brister, Emerging Litigation with Perchlorate Contamination, 38 Urb. Law. 545 (Summer 2006).
Perchlorate is quickly becoming one of the major groundwater contaminants of the decade. With the new ability to detect perchlorate at low-level concentrations and the increasing detection of perchlorate in drinking water supplies nationwide, perchlorate-related environmental claims are emerging across the country. Alongside these claims are ongoing developments within state and federal governments to set a maximum contaminant level. As the government works to find safe levels of perchlorate for human consumption, a struggle between science and policy is also emerging.

Laura Fabrick, Sustainable Development: A Call to Arms, 38 Urb. Law. 555 (Summer 2006).
Sustainable development is a pan-discipline. It seeks to better the lives of the world’s poor, in both developing and first world nations, while managing the natural environment to ensure that the needs of all will not tip the balance of the earth’s natural systems towards collapse. Amidst this multidisciplinary army, lawyers can, and already do, play a crucial role. This report is a call for lawyers to step out of the confines of traditional legal roles and into a new, less defined role between the scientific community and policymakers in order to facilitate implementation of sustainable development tools.

Harold Magistrale, An Introduction to the Information Quality Act and Its Application to Environmental Regulation, 38 Urb. Law. 561 (Summer 2006).
This article describes the Information Quality Act and its implementation by the Office of Management and Budget. The question this article addresses is whether the IQA will improve the quality of information used by federal government agencies in an efficient way. In addressing this question, Part II presents the statute, its history, and potential impacts; Part III looks at the implementation of the IQA; and Part IV gives examples of how the Act has operated with respect to environmental issues. To particularize the discussion, examples are given in the context of federal land management decisions that address environmental concerns. Next, Part V reviews recent court decisions on the justiciability of IQA issues, and Part VI discusses potential court review of the IQA and whether the goals of the IQA are achieved in an efficient manner.

Mekaela Mahoney, State and Local Governments Take the Reins in Combating Global Warming, 38 Urb. Law. 585 (Summer 2006).
Global warming is of rising concern to people across the world. Efforts to combat global warming on the international level have stagnated. The U.S. federal government has focused on cautious and conservative approaches, generally emphasizing voluntary action. However, some states and local governments have taken more aggressive measures. The most aggressive of these attempts have faced serious legal barriers. This article surveys the approaches that various cities and states have taken to fight against global warming and addresses the success of the various approaches.

Recent Developments in Government Operations and Liability

Ronald J. Kramer, Generation Y: Tattoos, Piercings, and the Public Employer, 38 Urb. Law. 593 (Summer 2006).
With every generation of employees, a new set of issues face private and public employers. The current new generation of employees has put a modern twist on an old problem. Instead of facial hair policies and requirements that women wear dresses, however, today’s legal disputes surround tattoos and piercings. Courts in the past have addressed issues involving uniforms, dress codes, grooming standards, and appearance rules on several grounds: the Fourteenth Amendment guarantees of equal protection and due process, First Amendment protections of religious and other expression and free speech, federal and state law protections against employment discrimination on the basis of race, sex, religion, and disability, etc. Prohibiting tattoos or piercings can raise both discrimination and constitutional issues, as the cases summarized in this report demonstrate.

Daniel P. Dalton & Brett J. Miller, The Ever Expanding Scope of the American with Disabilities Act: Whether Title II of the ADA Applies to Zoning Issues, 38 Urb. Law. 613 (Summer 2006).
As federal statutes go, the Americans with Disabilities Act (ADA) is fairly young. The ADA was born when it was signed into law on July 26, 1990. Now, in 2006, the ADA is sixteen years old, and, like any teenager, it is testing its bounds, attempting to determine just how far it can go and what it can get away with. Of particular concern is the judicial expansion of the ADA into traditional municipal affairs such as zoning. Many federal courts now hold that the ADA applies to local zoning issues. But was the ADA ever meant to expand this far, and does the DOJ even have the authority to make such a far-reaching rule? This article argues that the answer to both questions is no. This discussion focuses on the judicial expansion of the ADA into the zoning arena and argues that this expansion is both unwarranted and contrary to the judicial history of the statute. In addition, it focuses on the DOJ’s role in the ADA’s expansion into the realm of zoning and argues that the DOJ’s “accommodation” provision is actually an unconstitutional use of administrative power due to its affirmative requirement that municipalities change their rules to further a federal agenda.

Edwin Voss, Jr., The Potentially Expanding Scope of the American with Disabilities Act: How Title II of the ADA May Be Applied to State and Local Governments, 38 Urb. Law. 627 (Summer 2006).
This report focuses on the possible expansion of the Americans with Disabilities Act as it relates to local governments: facility accessibility. At first blush, it may appear that no controversy could exist on such a seemingly straightforward topic. After all, the ADA’s primary purpose is to provide accessibility to facilities and programs for those who are mobility impaired. A recent trend in litigation over the past few years is to swing the ADA hammer in ways that actually strike harder at the public fisc than what was probably intended by the crafters of the statute. This report is intended to provide a brief glimpse into the issues currently being raised by recent lawsuits. This report is not intended, however, to provide a detailed analysis of the ADA or to repeat the statutory background information presented elsewhere.

Recent Developments in Land Use, Planning and Zoning Law

Daniel J. Curtin, Jr., W. Andrew Gowder, Jr. & Bryan W. Wenter, Exactions Update: The State of Development Exactions After Lingle v. Chevron U.S.A., Inc., 38 Urb. Law. 641 (Summer 2006).
Last year’s exactions report examined situations in which the heightened scrutiny test set forth in Nollan and Dolan does not apply. This year we take a somewhat different tack and discuss the continuing applicability of Nollan and Dolan. In particular, we consider whether heightened scrutiny applies outside of the context of adjudicative land use exactions, including development impact fees. We also discuss a number of recent cases dealing with exactions and impact fees.

Robert B. Foster & Mitchell A. Carrel, Disguised as a Tree: Judicial Review of Land Use Decisions on Cellular Telecommunications Facilities Under the Telecommunications Act of 1996, 38 Urb. Law. 657 (Summer 2006) .
Section 704 of the Telecommunications Act of 1996 gives courts the authority to review a local zoning authority’s denial of an application for a cellular telephone tower or facility. Since 1996, courts have struggled to find the right balance between its sometimes contradictory goals. As the U.S. Court of Appeals for 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 zoning matters.” In 2005, courts, helped by the U.S. Supreme Court, continued to reach consensus on some issues under the TCA, such as the requirement for a written decision. On other issues, however, courts differed in their interpretation of the meaning of statutory terms such as “prohibiting service” and “substantial evidence” and in how those terms are applied to the actual decisions reached by local boards. Like a cellular tower disguised as a tree, just what is the meaning and application of the TCA continues to depend on which court is looking at it.

Patricia E. Salkin, Ethical Considerations in Land Use Decision Making: 2006 Annual Review of Cases and Opinions,38 Urb. Law. 669 (Summer 2006).
The annual review of ethics in land use cases continues to monitor reported cases and opinions documenting allegations of unethical conduct involved in land use planning and zoning decision making. The majority of the reported cases once again deal with real and perceived conflicts of interest situations based in part on personal financial interests (e.g., investments in real estate), employment, personal relationships, and familial relationships. In addition, a number of reported cases addressed bias, prejudice, and bad faith on the part of decision makers. Compatibility of dual office holding was also the subject of a number of opinions from state attorneys general. The annual ethics update is designed to provide land use lawyers with fact patterns in which ethics allegations are actually raised and the analysis that is used to determine whether the actions complained of constitute illegal and improper conduct. Although the facts in each specific case presented are naturally analyzed under relevant state laws, the general principles are, for the most part, instructive and the concepts are easily transferable from jurisdiction to jurisdiction.

Edward J. Sullivan, Recent Developments in Comprehensive Planning Law, 38 Urb. Law. 685 (Summer 2006).
This report traces the relationship between the comprehensive plan and zoning, subdivision, and other land use actions over the past year, i.e., October 1, 2004, through September 30, 2005. The report deals with the statutory requirement that zoning and other actions be “in accordance with a comprehensive plan” as required by the Standard Zoning Enabling Act or similar statutory standard dealing with that relationship.

Cecily T. Talbert, Nadia L. Costa & Alison L. Krumbein, Recent Developments in Inclusionary Zoning, 38 Urb. Law. 701 (Summer 2006).
As a housing shortage continues to proliferate nationwide, communities face the challenge of providing affordable housing opportunities to their residents. The scarcity of affordable housing results in part from rising housing costs that greatly outpace the earning power of individuals and families, as well as from housing construction that continues to lag behind demand. These realities place housing that is affordable out of reach for many. Faced with these problems, jurisdictions across the nation are attempting to further the goals of producing affordable units while combating exclusionary zoning practices. While local inclusionary zoning programs remain a popular and effective method of increasing affordable housing stock, states are also using other methods to address the affordable housing crisis on a more broad, regionwide basis, including the use of dedicated revenue sources, programs that require localities to provide for affordable housing, and statutes that limit the ability of localities to reject or condition housing projects in a manner that makes them infeasible.

Paul D. Wilson, Congratulations, You’ve Won a Steak Dinner: Recent Constitutional Claims for Damages in Land Use Litigation, 38 Urb. Law. 713 (Summer 2006).
Suppose you are a landowner denied the permit necessary to develop your land, and you have convinced the state court to overturn that denial. Suppose, even better, the state court has labeled the municipal permit denial as “arbitrary and capricious,” which you know to be the standard for a violation of your federal due process rights entitling you to damages. Better yet, suppose the state court has gone even further, actually declaring that the permit denial was “a denial of plaintiff’s [that’s you] due process and equal protection rights”? Wouldn’t you immediately file a federal due process and equal protection claim, seeking to cash in on this “constitutional” victory? Not so fast, said two U.S. circuit courts of appeal this year. The glee felt by landowners in Ohio and South Carolina, reading such promising phrases in the state court decisions awarding them their permits, turned to even greater irritation years later when federal courts rejected their constitutional claims for damages for unfair treatment by their municipalities. But all was not gloom and doom this year, for developers seeking damages for mistreatment in the permitting process. In 2005, another Ohio landowner survived a summary judgment motion and will reach trial on an equal protection claim, even without such “helpful” state court findings. And in New York, a federal district judge ordered a town to pay a landowner not only a five-figure damages verdict, but also to buy him a steak dinner.

With Cases Notes on:

Dominion Energy Brayton, LLC v. Johnson

Bright v. Westmoreland County

Baltimore Sun Co. v. Ehrlich

Johnson v. Hous. Auth. of Jefferson Parish

Speaks v. Kruse

Women’s Med. Prof’l Corp. v. Baird

Hinrichs v. Bosma

Kennedy v. City of Ridgefield

ANR Pipeline Co. v. 60 Acres of Land

Dep’t of Transp. of Colo. v. Marilyn Hickey Ministries

Catholic Charities of the Diocese of Albany v. Serio

Information

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