October 23, 2012

Vol. 29, No. 2, Spring 1997

The Urban Lawyer,
Vol. 29, No. 2, Spring 1997

Publication Date: May 30, 1997

Robert H. Freilich, Editor's Comments: Planning Blight: The Anglo-American Experience, 29 Urb. Law. vii (1997).
The U.K. government was concerned with the potential adverse effects on property values, and resultant heightened compensation payments, brought about by the anticipation of major developments. Recognizing the differences between the American law of eminent domain (usually referred to as "condemnation") and the English law of eminent domain (usually referred to as "compulsory purchase"), the purpose of this editor's comment is to provide insight into current American law and experience which will also suggest solutions for the U.K. problem of "generalized blight," utilizing the American experience.

Symposium: Urban Sprawl

Robert W. Burchell, Economic and Fiscal Costs (and Benefits) of Sprawl, 29 Urb. Law. 159 (1997).
This article examines the literature of the sprawl versus growth management experience in order to classify and analyze what is known about growth management's effect on land use and infrastructure as well as on local housing and public service costs. Do the patterns of development spawned by growth management actually reduce the amount of land needed and thereby save infrastructure costs? Do they drive up housing costs? Do they have an effect on public service costs? It examines the implications of planned versus more traditional development on four areas: (1) land consumption and natural habitat, (2) public capital construction or infrastructure, (3) private capital construction in the form of housing, and (4) fiscal impacts involving direct development to areas of excess service capacity and away from those locations that would have to expand public services and infrastructure.

Robert H. Freilich & Bruce G. Peshoff, The Social Costs of Sprawl, 29 Urb. Law. 183 (1997).
As history has shown, and this article identifies, political, institutional, and social factors have contributed to the continuing, outward urban to suburban/rural exodus, referred to as suburbanization or sprawl. Sprawl has engendered six major crises for America's major metropolitan regions. These crises are: (1) central city and first- and second-ring suburban decline; (2) environmental degradation through loss of wetlands, sensitive lands, and air and water quality degradation; (3) massive gasoline energy overutilization; (4) fiscal insolvency, infrastructure deficiencies, and taxpayer revolts; (5) devastating agricultural land conversion; and (6) housing inaffordability. As communities attempt to strike a balance between jobs, the environment, and social well-being across a constantly evolving and changing landscape, this article discusses the concepts of "sustainability," "growth management," and "fiscal conservatism" that form the basis for comprehensive plans and subdivision regulations that encourage responsible development.

David Listokin, Growth Management and Historic Preservation Best Practices for Synthesis, 29 Urb. Law. 199 (1997).
This article addresses growth management and historic preservation. It begins with an overview of the evolution of both historic preservation and growth management in the United States, and then discusses how, in theory, growth management should significantly foster historic preservation. This strong support is contrasted with the reality. The article concludes with a consideration of why there needs to be greater interconnection between growth management and historic preservation and offers some suggestions to realize that objective.

Judy S. Davis & Samuel Seskin, Impacts of Urban Form on Travel Behavior, 29 Urb. Law. 215 (1997).
This article looks at how urban form, employment and residential density, and the mix of uses and urban design, influence travel behavior. It draws on the best available data from the United States. Two measures of travel behavior are used: vehicle miles of travel, which primarily measures auto use, and mode choice. Tables and graphs are included.

Charles L. Siemon, Successful Growth Management Techniques: Observations from the Monkey Cage, 29 Urb. Law. 233 (1997).
If one surveys the universe of so-called "growth management" techniques invented during the last thirty years, it is not clear which, if any, deserve to be considered successful. Success, like beauty, may only be in the eye of the beholder. For those whose livelihood depends on the travails of navigating the growth management systems that local governments have created in response to the mandates of the Local Government Comprehensive Planning and Land Development Regulation Act of 1985, the jury is in and from that perspective, the system is a failure. Nevertheless, this article discusses the principles of responsible and effective growth management that have emerged during the last thirty years, which, when honored, yield demonstrably beneficial results.

Kenneth B. Bley & Tina R. Axelrad, The Search for Constitutionally Protected "Property" in Land-Use Law, 29 Urb. Law. 251 (1997).
This article focuses on judicial attempts, within the land-use context, to define what types of interests and relations about land are indeed constitutionally protected "property" under the Fourteenth Amendment. The authors take issue with some courts' use of an "entitlement analysis" to determine whether an owner of land who is denied the use of that land must demonstrate a "property" interest in the permit before being afforded constitutional protection under the Fourteenth Amendment's Due Process Clause. Taking its cues from Blackstone and Bentham, as well as from land-use holdings emanating from the U.S. Supreme Court and a large number of federal circuit courts, this article argues there is a constitutionally protected property right inherent in the mere possession and ownership of land. The result is that governmental action must be subject to the limitations imposed by the Due Process Clause both procedural and substantive and the Takings Clause.

Aaron J. Reber & Karin Mika, Democratic Excess in the Use of Zoning Referenda, 29 Urb. Law. 277 (1997).
While mandatory referendum might not be an unlawful delegation of legislative powers, it might be an unnecessary step that actually thwarts zoning legislation. With limited voter turnouts and the complexity of ballot language on zoning issues, voters may knowingly or unknowingly regulate a neighbor's property use, and additionally may knowingly or unknowingly hinder the efforts of city planners who have painstakingly attempted to regulate land use in compliance with what would otherwise be regarded as constitutionally acceptable guidelines. The article argues that the Supreme Court's conclusion in Eastlake v. Forest City Enterprises, Inc., that referenda are constitutional because their results may be challenged, is not a realistic vision of the zoning process as it now exists. Rather the Supreme Court's previous standards articulated in Euclid v. Ambler Realty Co. and Moore v. East Cleveland should be sufficient to ensure an efficient process of municipal management without the necessity of challenging the results of a public referendum.

Deborah L. Markowtiz, A Practical Guide to Hiring and Firing Public Employees, 29 Urb. Law. 293 (1997).
In the face of increased litigation by employees, municipal attorneys must evaluate their communities' existing policies and procedures governing the hiring and termination of public employees with a view toward building an effective and satisfied workforce, preventing future lawsuits, and placing the municipality in as good a position as possible in the event that the municipality becomes involved in wrongful termination litigation. This article details relevant items to keep in mind when formulating an effective employment administration.

Andrea Wortzel, 13th Annual R. Marlin Smith Student Writing Competition Award Winner Greening the Inner Cities: Can Federal Tax Incentives Solve the Brownfields Problem?, 29 Urb. Law. 309 (1997).
Providing an incentive through the tax code results in a loss in the amount of revenue collected through the tax system. Accordingly, evaluation of the brownfield tax incentive proposal made by the Clinton Administration must consider whether the benefit of the program will exceed the cost of the revenue foregone. In making this determination, one must question whether the brownfield program would be more efficiently administered through a direct subsidy. In conjunction with this analysis, one must ask whether the subsidy, regardless of its form, would work. This article demonstrates that the goals of the Brownfield program will not be achieved through the use of a tax incentive.

Terrence S. Welch & Bonnie Lee Goldstein, Comment: The First Amendment and Independent Contractors: The Supreme Court Expands Governmental Liability, 29 Urb. Law. 341 (1997).
The purpose of this article is twofold: (1) to provide a brief factual overview of the Umbehr and O'Hare Truck Service cases, and (2) to provide practical guidance in addressing the ramifications of these cases.

With Cases, Statutes, and Recent Developments covering:


American Mining Congress v. United States Army Corps of Engineers, 1997 WL 31153 (D.D.C. 1997).
Avenal v. United States, 100 F.3d 933 (Fed. Cir. 1996).

Native Americans

Babbitt v. Youpee, 117 S. Ct. 727 (1997).


Ruedlinger v. Jarrett, 1997 WL 47604 (7th Cir. 1997).

Land Use, Planning, and Zoning

Desert Outdoor Advertising, Inc. v. City of Moreno, 103 F.3d 814 (9th Cir. 1996).
Tri County Indus. v. District of Columbia, 104 F.3d 455 (D.C. Cir. 1997).


Munns v. Martin, 930 P.2d 318 (Wash.).


Committee to Save the Rio Hondo v. Lucero, 102 F.3d 455 (10th Cir. 1996).
National Association of Home Builders of the United States v. Babbitt, 1996 WL 724939 (D.D.C. 1996).