October 23, 2012

Vol. 31, No. 4, Fall 1999

The Urban Lawyer,
Vol. 31, No. 4, Fall 1999

Publication Date: January 24, 2000


Robert H. Freilich, Adrienne H. Wyker & Leslie Eriksen Harris, Federalism at the Millennium: A Review of U.S. Supreme Court Cases Affecting State and Local Government, 31 Urb. Law. 683 (Fall 1999).

This annual review of Supreme Court cases opens by reexamining a few of the critical issues The Urban Lawyer has covered over the years. Although the most newsworthy issue of 1999 was, of course, the impeachment of President Clinton by the Republican House of Representatives, the issue of federalism will be of utmost significance in the next decade for national, state, and local governments and their roles in the American federal system. The most important cases during the Term involved states' challenges to cases brought against them based on federal law or in federal court.



Joseph Z. Fleming, Recent Developments in Crisis Management Law: If Abraham Lincoln Died for Federalism, Did He Die in Vain?: Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank and United States, 31 Urb. Law. 777 (Fall 1999).

This report discusses Florida Prepaid Postsecondary Educ. Expense Board v. College Savings Bank and United States, an important case on the subject of states' rights and the basic principles that relate to our federal system.


Recent Developments in Land Use, Planning and Zoning La w

Rodney R. Akers & Robert W. Oast, Jr., Economic Development North and (New) South: A Tale of Two States, 31 Urb. Law. 793 (Fall 1999).

That a U.S. congressman felt that federal intervention was necessary to address an issue that is essentially a matter of state concern illustrates what a large and potentially divisive role is played by government-provided incentives in economic development. This report briefly reviews the economic development activities of two states: Pennsylvania and North Carolina. It summarizes these states economic history, explains their philosophies of economic incentives as reflected in their respective constitutions and laws, and describes their successes and failures. Although it is only coincidental that North Carolina and Pennsylvania are on opposite sides of the Mason-Dixon Line, what emerges is an interesting array of weapons available in the "Economic War Between the States."


Eric M. Braun, Growth Management and New Urbanism: Legal Implications, 31 Urb. Law. 817 (Fall 1999).

Local governments continue to struggle with growth management techniques designed to minimize urban sprawl, protect natural resources, and enhance the "liveability" of cities. This report discusses one such planning technique currently receiving publicity around the nation-"Neotraditional" development or "New Urbanism," so named because it is intended to reflect development techniques popular prior to World War II.

Peter A. Buchsbaum, Timed Growth Ordinances Rejected in New Jersey, 31 Urb. Law. 823 (Fall 1999).

This report discusses the controversy over timed growth controls in New Jersey and the movement for statutory change. It suggests that the regional implications of such schemes must be addressed as soon as possible.


Jonathan M. Davidson, Ronald H. Rosenberg & Michael C. Spata, Negotiated Development Denial Meets People's Court: Del Monte Dunes Brings New Wildcards to Exactions Law, 31 Urb. Law. 831 (Fall 1999).

This year's exactions and impact fee report focuses on Del Monte Dunes, namely its effects on negotiated development, trial practice, and on regulatory takings doctrine as defined by judges and juries in civil rights litigation.


Robert B. Foster & Mitchell A. Carrel, Towers of Babble: The Continuing Struggle over Wireless Siting Issues Under the Telecommunications Act of 1996, 31 Urb. Law. 849 (Fall 1999).

Section 704 of the Telecommunications Act of 1996 (TCA) was Congress' attempt to balance the interests of promoting competition in the wireless industry and of preserving local control over zoning matters. As cases brought under § 704 wended their way through the judicial system, certain consistent principles for interpreting the TCA began to emerge. By the end of 1998, these seemingly settled principles were being revisited and, in fact, turned out to be not so settled. This article summarizes several decisions, including the first decision by a U.S. court of appeal, in which courts declined to follow the emerging consensus, and instead opened up the airwaves to new rules and standards. As a result, 1999 brings a more fluid and uncertain landscape for both municipalities and wireless providers.

Robert A. Heverly, F ederal Regulation of Land Use, 31 Urb. Law. 863 (Fall 1999).

Federal regulation of land use-and especially preemption of zoning controls-has surfaced during the past year in a number of areas. Specifically, this report reviews preemption and regulatory activities in the areas of telecommunications and wireless siting, cemeteries, manufactured housing and building requirements, mining, and trademarks.

Lora A. Lucero, Water and the Disconnects in Growth Management, 31 Urb. Law. 871 (Fall 1999).

This report describes the evolution of water use and planning as it has unfolded in New Mexico and provides a synopsis of the serious "disconnects" that threaten potential growth management efforts.


Anita P. Miller, Public Lands and Waters: Who Will Prevail-Man or Beast?, 31 Urb. Law. 883 (Fall 1999).

This report revisits the constitutional doctrines that characterized attempts by ranchers and mining and timber interests to utilize the courts to gain control over the public lands in the West, which in 1998 appeared doomed to failure. Assertion of private rights in public lands were also getting nowhere in the U.S. district courts in Nevada and New Mexico. It reports on how proponents of these doctrines have found a new forum for their ideas, and may be more successful, at least at ground level, in the U.S. Court of Federal Claims.

Thomas G. Pelham, Adam U. Lindgren & Lisa D. Weil, "What Do You Mean I Can't Build!?" A Comparative Analysis of When Property Rights Vest, 31 Urb. Law. 901 (Fall 1999).

The law of vested rights balances two competing interests: (1) the public's interest in lower development costs; and (2) the public's interest in controlling land-use and land-use planning. This report presents different perspectives on how courts and legislatures have balanced these interests. On one hand, some states have taken an approach to either vest early or late in the land-use process but require a subjective determination. On the other hand, other states take an objective approach, leaving little room for question as to the date that the rights vest.


Edward J. Sullivan, The Role of the Comprehensive Plan, 31 Urb. Law. 915 (Fall 1999).

This report follows the analysis that divides state caselaw on this subject into three categories: the traditional approach, which gives no significance to the plan; the "planning factor" approach, which gives the plan a role in such determinations; and the "planning mandate" approach, which treats the plan as a dispositive standard for land-use regulations and actions. Once again, the caselaw is varied and interesting. Moreover, the author has added another category for the reader to ponder relating to the consequences of the plan as a binding document. In doing so, the issues of plan interpretation and application become important.

Alan C. Weinstein, Zoning Restrictions on Location of Adult Businesses, 31 Urb. Law. 931 (Fall 1999) .

This year's report concentrates on recent legal developments concerning regulation of the location of "adult entertainment businesses."

Paul D. Wilson, Nasty Motives: A Consideration of Recent Federal Damages Claims in Land Use Cases, 31 Urb. Law. 937 (Fall 1999) .

This report considers some interesting landowner claims that were treated in reported opinions during the past year or so. The non-exhaustive sampling focuses on federal court decisions, because it is usually federal law that a landowner-plaintiff cites as the basis of the rights that he is seeking to vindicate. In addition to the usual claims of deprivation of Fourteenth Amendment rights to due process and equal protection, this year's decisions also include claims that municipal officials violated the constitutional rights to religious freedom and to freedom from racial discrimination, as well as the Racketeer Influenced and Corrupt Organizations Act.


Recent Developments in Public Education Law

James C. Hanks & Elizabeth A. Grob, School Districts, 31 Urb. Law. 955 (Fall 1999).

This report summarizes litigation arising against school districts in 1998-99 involving student rights and responsibilities; special education; employee rights and responsibilities; religion, expression, and first amendment issues; and desegregation.


lelia B. Helms, Postsecondary Education, 31 Urb. Law. 973 (Fall 1999).

Litigation involving postsecondary institutions has grown dramatically during the past five years. Courts were busy again in 1998-99 deciding a range of claims, a large proportion of which involved employment related disputes. In addition, there were cases typically associated with academe involving issues of financial aid, tenure, discipline, due process, admissions, academic freedom, and so on. Much reported litigation, however, reflects larger trends in judicial decision-making, including decisions interpreting the scope of Eleventh Amendment sovereign immunity and redefining federal-state relationships, defining the scope of institutional responsibilities for discrimination based on sex, race and disability, and addressing a growing number of qui tam claims from institutional whistleblowers. The report identifies important decisions affecting postsecondary institutions as reported in the Education Law Reporter for the period from May 1, 1998, through April 30, 1999.

Thomas H. Odom & Marc R. Baloda, The Development of Process-Oriented Federalism: Harmonizing the Supreme Court's Tenth Amendment Jurisprudence from Garcia Through Printz, 31 Urb. Law. 993 (Fall 1999).

Fourteen years have passed since the Supreme Court decided Garcia. During that time, the Court has addressed the scope of Tenth Amendment protection afforded to states from legislation under the commerce power in five cases: South Carolina v. Baker, Gregory v. Ashcroft, New York v. United States, Printz v. United States, and Pennsylvania Department of Corrections v. Yeskey. The thesis of this article is that these cases may be harmonized. Part I outlines a theory to reconcile Garcia and the five subsequent Tenth Amendment cases. Part II discusses the reception the theory has received by four different U.S. courts of appeals that have addressed the issue in the context of challenges to the constitutionality of the federal Driver's Privacy Protection Act of 1994 (DPPA).

With a Book Review of

Bad Kids: Race and the Transformation of the Juvenile Court

Reviewed by Pamela L. Airey

And a Book of Note Reviewing

Reinventing Government-How the Entrepreneurial Spirit Is Transforming the Public Sector