October 23, 2012

Vol.37, No.1, Winter2005

Vol. 37, No.1, Winter 2005

Publication Date : April 15, 2005


Alan D. Cohn, Mutual Aid: Intergovernmental Agreements for Emergency Preparedness and Response, 37 URB. LAW. 1 (Winter 2005).
Success in responding to a major catastrophic incident depends on effective pre-incident marshalling of resources. This article discusses various methods by which state and local governments can accomplish this goal. It discusses common pitfalls encountered in marshalling these resources. The article is excerpted from a forthcoming legal deskbook for state and local government attorneys on emergency preparedness to be published by the ABA Section on State and Local Government Law.

Edward J. Sullivan & Isa Lester, The Role of the Comprehensive Plan in Infrastructure Financing, 37 URB. LAW. 53 (Winter 2005).
This article reviews select historic and modern infrastructure financing mechanisms and concludes that different mechanisms are more appropriate for different stages of development. It explores the spectrum of standards of review courts apply when developers challenge the imposition of infrastructure financing. The authors posit that promoting economic fairness instead of simply avoiding constitutional challenges should be the goal of any infrastructure financing scheme. The comprehensive plan can promote fairness and predictability in infrastructure financing requirements. The article reviews the historic role of the comprehensive plan in infrastructure financing and suggests some of the components of a comprehensive infrastructure financing scheme. The article concludes that using the plan to orchestrate infrastructure financing should effectively establish limits on the local government’s use of financing requirements. If a local government acts within these self-imposed limits, legal challenges to financing requirements should be reduced. Furthermore, the legislative quality of the requirements should increase judicial deference to the requirements, whatever standard of review a court applies.

Dr. Padraic Kenna, Housing Rights—The New Benchmarks for Housing Policy in Europe?, 37 URB. LAW. 87 (Winter 2005).
Rights to housing are regularly proposed as the solution to poor housing and homelessness by advocates and campaigning organizations. This approach is viewed as having the critical international acclaim and legal clarity to cut through the Gordian knots of political wrangling, resource deficiencies, programmatic and policy conflicts, and theoretical dissonance in housing approaches. Most States have ratified rights to housing at an international level in a range of instruments, from the United Nations to the Council of Europe. Each ratifying State regularly produces monitoring reports for the relevant international treaty body on how these rights are being given effect, legally, at the policy level, and programmatically. In the age of New Public Management, however, regular attempts are made to reduce such internationally established human rights norms to the level of nonlegal approaches, such as customer charters rights to “participation” and administrative complaint systems. There are, however, important contextual issues for the development of housing rights within industrial economies with hegemonic housing market ideologies and developed welfare systems, especially in European countries. The Council of Europe has recently developed a modern monitoring procedure in relation to Article 31 of the Revised European Social Charter 1996, which defines many international obligations in relation to housing rights. This article discusses the development of this machinery for measuring European States compliance with housing rights standards, which have significant implications in the context of the new European Constitution.

Robert W. Doty, Expanding Responsibilities: Recent Disclosure Actions Involving Municipal Securities Issuers, 37 URB. LAW. 113 (Winter 2005).
Securities law applied to state and local governments has been a fixture of the municipal bond market for the three decades since the New York City moratorium. Altogether, the author counts seventy-five enforcement actions against issuers and obligated persons and fifty-four against officials. That count excludes dozens of private actions. Within the past twelve to fifteen months, significant developments have occurred with substantial implications for issuers and officials and for their methods of financing their projects and programs. The Securities and Exchange Commission has now imposed the first monetary penalty against an issuer in an enforcement action, and issuers (and even governing board members) have paid or agreed to pay substantial monetary settlements in private actions. In addition, the SEC has advanced arguments against both a financial advisor and a lawyer focusing on asserted failures to render advice to issuers covering a broad range of subjects. The arguments characterize such failures as important elements in securities law violations asserted by the SEC against those professionals. The bottom line is that the actions pursued and arguments advanced by the SEC and private investors require everyone involved in municipal finance transactions—issuers and professionals alike—to pay closer attention to the intricacies of disclosure content and the inquiry and disclosure processes.

Richard G. Opper, The Brownfield Manifesto, 37 URB. LAW. 163 (Winter 2005).
It is the thesis of this article that despite congressional recognition of the problems CERCLA has created, the path taken by Congress has so far been of only modest value in helping to bring these brownfield properties back to useful life in their communities. Worse yet, the historic precedents from significant past CERCLA litigation provide a very poor “fit” for the situations present in modern brownfield sites, and the judiciary is constrained in its ability to find appropriate remedies for brownfield problems. Most historic CERCLA precedent evolved from quite different circumstances as those now presented to the courts. The executive branches of the various states and the federal government are still slow to respond with policies and regulatory frameworks that are geared to brownfields and that recognize the critical importance of the marketplace. As a result, the problems of brownfield redevelopment not only continue, but are frequently exacerbated at all levels of government. Each of the three branches of government continues to labor under old processes and precedents, which inhibit good (or even possible) solutions. The result is unsatisfactory, but no clear leadership for its repair is yet evident. Meanwhile, the pressure on our cities for more and “smarter” housing and amenities continues to grow.


Robert R.M. Verchick, Same-Sex and the City, 37 Urb. Law. 191 (Winter 2005).
Six months after gays and lesbians began tying the knot in Massachusetts, American voters responded with a crushing blow, approving, in eleven states, constitutional amendments outlawing same-sex marriage. The new year will soon see a new flock of law review articles on the subject, assessing this latest chapter of what Justice Scalia calls our “kulturkampf,” a struggle that seems bound to include the Bush Administration’s push for a proposed amendment to the federal Constitution banning same-sex marriage and at least twenty new lawsuits in eleven states seeking to allow the same. In preparation for these events, the author takes a brief look at the issues through the lens of state and local governance. What he finds is an array of overlapping interests that will pit cities against their home states, states against the federal government, and force Americans once more to assess the true value of secular marriage.