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    Fall 2014 (46:4)

     

    Public Infrastructure

    After Koontz: Recent Developments in Exactions & Impact Fees

    by W. Andrew Gowder, Jr.

    Exactions are conditions imposed on developers in exchange for permission to develop land, to aid local government in providing public infrastructure.1 Exactions come in many forms, including conveyances of an interest in land and development impact fees.2 Exactions are typically imposed to provide land or funding for facilities such as water and sewer lines, road construction, new schools, parks, and open space.3 The power to impose exactions is part of local government’s police power.4 If that power is exercised properly, an exaction that serves the same legitimate police power as a refusal to issue a permit will not constitute a taking. On the other hand, an exaction that, outside the context of the permitting process, would constitute a taking and require just compensation may run afoul of the doctrine of unconstitutional conditions as articulated in the decisions of Nollan v. California Coastal Commission5 and Dolan v. City of Tigard.6

    Articles

    Local Government

    Not Your Mother's Suburb: Remaking Communities for a More Diverse Population

    by Amanda C. Micklow & Mildred E. Warner

    The American suburb is at a crossroads, a pivotal moment when demographic and economic changes exist in tension with the ideal and design of the suburban landscape. The suburban ideal is a postwar cultural construction of the American Dream — a single family detached house, surrounded by a yard, and inhabited by the nuclear family. However, as the suburb becomes more ethnically and economically diverse, scholars and communities are faced with an important decision: will they embrace and support this shift or undermine it with a rigid adherence to historical conceptions of family type and zoning rules?

    Public Infrastructure

    The Power of Eminent Domain in the Aftermath of Hurricane Katrina: Should Common Interest Communities Be Compensated for the Loss ofAssessments?

    by James R. Conde

    In 2005, Hurricane Katrina flooded New Orleans and destroyed approximately 80% of the city’s housing stock.1 The New Orleans flood generated a corresponding flood of litigation against the Army Corps of Engineers (the “Corps”). In a class action lawsuit, residents of the greater New Orleans area alleged inter alia that the Corps was negligent in the construction and maintenance of the city’s levees, canals, and other navigational channels,2 which rendered the City vulnerable to flooding.3 As the district court found in its consolidated order, while the City canals “serve[d] as conduits for the drainage of excess water from the streets of New Orleans during rain events, these same canals bec[a]me channels for incoming storm surge” during hurricanes.4

    Eminent Domain

    Apples to Apples: Yes, There Is (Or Can Be!) a Unified Approach to RLUIPA Ripeness

    by Ryan M. Budd

    In the past decade or so, many courts and scholars have addressed the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”) and its application to local land use decisions.1 This article addresses a threshold RLUIPA inquiry: when religious plaintiff is challenging a local government’s decision, at what point is the claim “ripe” for review? Different federal circuit courts have addressed this question differently, causing confusion among courts and parties, but a close reading of these cases reveals that a unified framework for analysis is available.

    Public Infrastructure

    The Use of Dispute Resolution Boards for Construction Contracts

    by Michael T. Kamprath

    Dispute resolution is a key aspect to construction contracting, and all construction contracts should contain provisions for dispute resolution. Even the most carefully drawn up plans and specifications give rise to disputes when placed into action in the field. A relatively new (compared to arbitration and litigation) and successful means of dispute resolution is the dispute resolution board process.

    Eminent Domain

    Recent Developments in Land Use Ethics

    by Patricia E. Salkin

    Current events across the country reveal no shortage of allegations of unethical conduct in the land use review process. For example, in the Northeast, the mayor of Trenton, New Jersey was convicted on six federal corruption counts for soliciting bribes from parking garage developers.1 In Newark, New Jersey, a high-profile case that came to light five years ago with the arrests of dozens of corrupt politicians, ended quietly when the final defendant in the biggest federal corruption sting in New Jersey history admitted she pocketed a portion of the $15,000 in cash a federal informant gave her campaign in exchange for her vote on a bogus real estate project.2 In the town of Nutley, New Jersey, a resident raised conflict of interest concern because the Nutley Planning Board Chairman is married to the Nutley Zoning Board Attorney.3 In Connecticut, a local resident filed a complaint seeking to overturn the Planning and Zoning Commission-approved football field project because a commission member who took part in the vote had an apparent conflict of interest given his past involvement with the Darien Athletic Foundation and the Darien Junior Football League.4