Vol.41, No.3, Summer2009

The Urban Lawyer

Vol 41, No. 3 Summer 2009

Publication Date: October 13, 2009

ARTICLES

Seth M.M. Stodder & Nicolle Sciara, Rippeon State and Local Governments and Immigration Laws, 41 Urb. Law. 387 (Summer 2009)
. This article explores how states and local governments have worked to deal with the issue of illegal immigration through enforcing federal immigration laws, through refusing to do so, or through enacting their own laws dealing with immigration and aliens. It is aimed at providing guidance to state and local officials in determining which enforcement policies or laws will likely be upheld by courts, and which will likely be invalidated. This is a fast moving area of law and policy. As a result of perceived paralysis in Congress and the Administration with regard to the federal government’s ability to address the issue of illegal immigration, states and local governments over the last few years have moved into the breach, with scores of state and local governments enacting measures aimed at combating what many view as a crisis of illegal immigration. This goes far beyond the widely-publicized immigration enforcement efforts of “Sheriff Joe” Arpaio in Maricopa County , Arizona . Indeed, in 2007, forty-six states enacted a grand total of 194 new immigration-related laws; triple the number of the previous year, according to a list by the National Conference of State Legislatures. These laws have sparked significant litigation in federal and state courts around the country. In short, this is a hot topic, and one to watch over the next few years as these cases wind their way up the courts.

Mildred E. Warner, Regulatory Takings and Free Trade Agreements: Implications for Planners, 41 Urb. Law. 427 (Summer 2009) .
International trade agreements bring a new dimension to the ongoing debate between public regulation and private property rights. Since NAFTA U.S. free trade agreements have promulgated an expanded view of private property rights, elevating foreign investors to the level of nation states, challenging government regulations as unfair barriers to trade, requiring governmental compensation for partial (regulatory) takings, and substituting private tribunals for the public courts. Articulated at the global and national scales, these new definitions have profound implications for planners at the state and local levels. The implications for planning deserve more serious consideration.

ANNUAL REVIEW OF THE LAW

Christopher M. Whitcomb & Mary Lynn Huett, Recent Developments in Regulatory Takings Jurisprudence, 41 Urb. Law. 445 (Summer 2009) .
Jurisdiction over federal regulatory takings claims is discussed, focusing on recent cases interpreting the state-court litigation rule in the Williamson County decision. 

James D. Jorgensen & Lelia B. Helms, Recent Developments in Public Education Law: Postsecondary Education, 41 Urb. Law. 455 (Summer 2009).
This article reviews reported education law cases that modify, clarify, or expand legal standards that are frequently encountered by higher education practitioners and administrators. For the covered period, calendar year 2008, West reported almost 350 such cases, up from approximately 325 reported cases in 2007. While there were no United States Supreme Court rulings relating directly to higher education this year, several appellate and trial courts issued important rulings on First Amendment issues interpreting the Supreme Court’s recent holding in Garcetti v. Ceballos as well as the definition of an adverse employment action in the context of retaliation claims in the Burlington Northern & Santa Fe Railway Co. v. White case. The article focuses first on noteworthy cases involving students before turning to cases involving employees and institutions.

Erin Burg Hupp, Recent Trend in Green Buildings Laws: Potential Preemption of Green Building and Whether Retrofitting Existing Buildings Will Reduce Greenhouse Gases and Save the Economy, 41 Urb. Law. 489 (Summer 2009).
The economy’s impact on green building regulations is discussed, as well as the chance that such regulations will be federally preempted. The author, an associate in land use and climate change, focuses on both existing structures and new construction, and the current trend toward strict regulation.

Robert B. Foster , What the Meaning of “May” May Be: Recent Developments in Judicial Review of Land Use Regulation of Cellular Telecommunications Facilities under the Telecommunications Act of 1996, 41 Urb. Law. 499 (Summer 2009) .
This article describes recent developments regarding the Telecommunications Act of 1996. The author summarizes the Act, and then focuses on section 704 of the Act, and how courts have addressed two competing objectives of the Act: preserving local zoning authority and encouraging competition 

 
W. Andrew Gowder, Jr., & Bryan W. Wenter, Recent Developments in Exactions and Impact Fees, 41 Urb. Law. 511 (Summer 2009) .

This article addresses recent developments of common litigation issues regarding 
exactions

and impact fees. After summarizing the rules established in two landmark cases, Nollan v. California Coastal Commission and Dolan v. City of Tigard, the authors discuss how recent cases have interpreted and applied those established rules.

 
Patricia E. Salkin , 2009 Ethical Considerations in Land Use, 41 Urb. Law. 527 (Summer 2009 )
.
Recent trends in the area of unethical conduct in land use matters are discussed. The author, an expert in ethics and land use, highlights issues surrounding conflicts of interest, prejudice, bias, and bad faith.

  
Edward J. Sullivan, Recent Developments in Comprehensive Planning Law, 41 Urb. Law. 545 (Summer 2009) .

This report is the latest in a series of articles tracing the role of the comprehensive plan (sometimes referred to as the “general plan” or “master plan”) in the land use regulatory process for the year ending on September 30, 2008. The report also summarizes decisions related to plan interpretations and plan amendment decisions for that same period.

  
Robert H. Thomas, Recent Developments in Public Use and Pretext in Eminent Domain, 41 Urb. Law. 561 (Summer 2009) .

This article focuses on recent developments regarding the Fifth Amendment’s public use requirement. After describing the Supreme Court’s analysis of the public use requirement in Kelo v. City of New London, the article discusses recent decisions and different interpretations of lower courts in Hawaii , California , Pennsylvania , New York , and the U.S. Court of Appeals for the Second Circuit.

  
Paul D. Wilson & Jennifer K. Alcarez, But It’s My Turn to Speak! When Can Unruly Speakers at Public Hearings Be Forced to Leave or Be Quiet ? , 41 Urb. Law. 577 (Summer 2009) .
While dangerous speakers at public hearings are not unknown, the disruptive speaker is a common problem particularly at public hearings on zoning, permitting, and other land use issues, where proponents and opponents of a measure can see themselves as defending their homes or businesses. When emotions run high, speakers can be disruptive, or even dangerous. In the face of such risks, how can government boards and commissions balance public safety and the legitimate interest in orderly hearings against a speaker’s First Amendment rights? Inspired by a decision this year by the Fourth Circuit, this article surveys recent case law on the question and offers guidelines for handling disruptions within the framework of the First Amendment.

With Cases Notes on: 

Video Software Dealers Ass’n v. Schwarzenegger

Powers v. Richards 0

Gorum v. Sessoms

Dietrich v. John Ascuaga’s Nugget

Yes on Term Limits, Inc. v. Savage

ACLU v. Santillanes

Ramsey Winch, Inc. v. Henry

Maloney v. Cuomo

Newark Parents Ass’n v. Newark Pub.
Sch.

Toll Bros., Inc. v. Readington Township 

Ashley County
v. Pfizer, Inc.

City of Kansas City v. Ku

Steel Los III, LP v. Power Auth. of New York

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