Spring 2015 (47:2)

 

Real Property Trust and Estate

Planning & Zoning for Group Homes: Local Government Obligations & Liability Under the Fair Housing Amendments Act

Across the diverse landscape of local land use matters, few regulatory issues and approval processes elicit as much emotion and opposition as planning and zoning decisions relating to housing for persons with disabilities. While such facilities have proven invaluably beneficial in the care and treatment of one of the most underserved populations in the United States — those with disabilities — community discrimination against people with disabilities has limited, and in some cases has wiped out, the willingness of local governments to approve such housing. As advances in the medical, sociological, and psychological fields have encouraged movement away from the early-to-mid twentieth century approach of large-scale institutionalization of persons with physical and cognitive disabilities and mental illnesses, and as civil rights organizations have exposed the mistreatment of people with disabilities that has pervaded much of history, pressure has increased on non-profit organizations and local communities to provide housing for people with disabilities in smaller congregational settings located in predominantly residential areas generally occupied by persons without disabilities. Consequently, local governments are increasingly called upon to decide the fate of applications by social service organizations and other treatment facility operators to locate and operate housing facilities for people with disabilities in local jurisdictions.

In this Issue

Environment

State Preemption of Local GMO Regulation: An Analysis of Syngenta Seeds, Inc. v. County of Kauai

The Federalism debate has been an enduring feature of American political dialogue for centuries.1 Although implicating many of the same concerns, the parallel discussion on the role of local governments within states has received comparatively little attention. In recent years, however, with the emergence of new technologies in several key American industries, — the practice of hydraulic fracturing (“fracking”) by natural gas companies and the development of genetically modified organisms2 (“GMOs”) by agricultural corporations, for instance — the debate over the relationship between state and local governments has been thrust into the limelight.3 Invigorated by concerned constituencies and faced with inaction on the federal and state level, many local governments have sought to regulate the perceived dangers of GMOs.4 In the ensuing lawsuits, courts must consider difficult questions: To what extent do local governments have authority independent from the state to act? What is the proper relationship between state laws and local ordinances? At what point do they conflict, and what happens when they do? To resolve these issues courts must turn to the state preemption5 doctrine.

Federal Government

Public-Private Partnership: An Innovative Solution for a Declining Infrastructure

DETERIORATING INFRASTRUCTURE CONDITIONS IN THE UNITED STATES beg for an increase in funding, which, due to the current economic conditions, would be difficult to attain without the help of the private sector.1 Public-Private Partnerships (“PPPs” or “P3s”) are a way for federal, state, and local governments to fund infrastructure projects that they may not otherwise be able to afford.2 However, PPPs are not likely to solve the problem of funding infrastructure on the scale that is needed until there is a statutory definition and regulatory framework for PPPs, clarifying the nature of these agreements and the associated legal ramifications.3 When implementing PPPs, the following questions arise and there are no clear answers: (1) are PPPs subject to procurement laws;4 (2) are PPPs subject to prevailing wage laws;5 (3) are PPPs subject to § 1983 claims;6 and (4) are PPPs subject to bonding requirements.7 To answer these questions, this article explores the deficiencies in governmental regulations regarding PPPs and the associated legal ramifications.8 Part II of this article lays the foundation for understanding PPPs by defining the term and providing a historical overview of their development.9

Federal Government

Municipalities & Religion: The Lessons of Town of Greece v. Galloway

I. Introduction PICTURE AN AVERAGE TOWN IN AMERICA. Every month, the governing body of this town holds an open meeting to discuss town issues and connect with citizens. The meetings are not well attended as the only people who show up, besides the town board members, are people with problems to raise and solutions to request. The small crowd slowly gathers in the meeting room. Papers shuffle as nervous citizens review the presentations and supplications they are about to make to the town board. Maybe there are a few conversations in the background; perhaps the room is silent. The board members enter and call the meeting to order.