October 23, 2012

Vol.37, No.3, Summer2005

Vol. 37, No.3, Summer 2005

Publication Date : October 4, 2005




David L. Callies, Common Interest Communities: An Introduction, 37 Urb. Law. 325 (Summer 2005). The common interest development or community in the United States raises a host of concerns about exclusion, social fabric, control, and governance. At some point, standards more appropriate to public governance of the use of land may in some measure need to be engrafted onto the private running covenant body to forge a new theory of CIC governance. Reform of CICs appear to be in the air. This article introduces an American Association of Law Schools symposium on common interest developments.

Michael A. Heller, Common Interest Developments at the Crossroads of Legal Theory, 37 Urb. Law. 329 (Summer 2005). This article examines the theoretical basis for common interest communities. According to the author, the intersection is between the axis of rights allocation and the axis of governance institutions. He places the CID in the context of other methods for solving “blended, intermediate level collective action dilemmas.” He points out that liberal commons forms include not only CIDs but also corporations, partnerships, family property, trusts, and co-ownership. The author sees CIDs as particularly useful as a group resources regime that solves complex problems of property governance―in other words, classic examples of a successful liberal commons.

Paula A. Franzese, Privatization and Its Discontents: Common Interest Communities and the Rise of Government for “the Nice”, 37 Urb. Law. 335 (Summer 2005). Finding solutions to the paradox that common interest communities can be anything but true communities is important because community does matter. In a time of increasing disconnection, isolation, and division, played out on local, national, and global landscapes, common interest communities have a role to play in the very challenging task of rebuilding social capital and reinventing forms of civil and civic engagement. Thankfully, meaningful antidotes to the ills of privatization run amok are now emerging, as state legislatures take up the task of reform, a cohesive body of case law continues to emerge, and market pressures likely compel developers to reconfigure existing paradigms.

Susan F. French, Making Common Interest Communities Work: The Next Step, 37 Urb. Law. 359 (Summer 2005). As common interest communities have become more prevalent, the legal and social challenges they pose have become more apparent. The first challenge is to ascertain the legal nature of the common interest community association. Community associations occupy a space that lies somewhere between public governments and private businesses or associations. In this article the author sometimes use “cities” to refer to local public governments that provide municipal services and land-use regulation, and “corporations” to refer to business corporations and private associations. The article begins by listing some of the similarities and differences between community associations and these well-established legal entities. After concluding that they are different in important respects, it goes on to discuss the developing body of community association law and then proposes that more is needed: states should take the next step and provide administrative support for community association governance.




Recent Developments in Environmental Law

John H. Minan, The Clash Between Farmers and the Endangered Species Act: “Whose Water Is It?”, 37 Urb. Law. 371 (Summer 2005). Western water managers continue to struggle with meeting a wide array of water needs. Satisfying the thirst of agricultural and urban water users, while at the same time meeting the needs of the environment, is an ongoing challenge. The link between applying the provisions of the Endangered Species Act (ESA) and meeting water deliveries to water users is an important part of this ongoing challenge. The focus of this environmental “hot topic” is on two cases that involve water delivery cutbacks to agriculture prompted by the ESA: Tulare Lake Basin Water Storage District v. United States and Orff v. United States.

Scott I. Steady, Cost Recovery and Contribution Actions After Cooper Industries, Inc. v. Aviall Services Inc ., 37 Urb. Law. 381 (Summer 2005). The Supreme Court’s ruling in Cooper Industries Inc. v. Aviall Services Inc. has created some serious hurdles for plaintiffs to surmount in order to be successful in a cost recovery and contribution action brought under CERCLA §§ 107 and 113.

Recent Developments in Government Operations and Liability

Paul Boudreaux, The Three Levels of Ownership: Rethinking Our Restrictive Homebuilding Laws, 37 Urb. Law. 385 (Summer 2005). Housing has become extraordinarily expensive in the United States. For John and Jane Doe (or in today’s more diverse America, perhaps Juan and Jamila Doe), the sale price of a typical single-family home has recently skyrocketed to more than four times the median household’s annual income. Although homeownership remains at an all-time high, high prices threaten the American Dream for a sizeable segment of the population. While a number of factors no doubt play a role, a compelling new study by Harvard and Penn economists places much of the blame squarely at the feet of laws restricting new housing construction. New construction in the right places, filling in developed regions, and allowing sensible new development on the outskirts may be needed to match the growing American demand for housing.

David Basil , A Primer on the Public Duty Doctrine as Applied t o Police Protection , 37 Urb. Law. 403 (Summer 2005). The evolving relationship between the public and the government’s protective services has been debated for centuries. The seventeenth century English philosopher, Thomas Hobbes, described in his masterwork, Leviathan, the elementary principles of a social contract between rational, free and equal persons and a sovereign. Whether a law enforcement entity could have prevented a crime is often the subject of intense scrutiny. Ostensibly, the utter agitation that is held by some people to hold law enforcement responsible for failing to provide adequate police protection emanates, in part, from the teachings of Hobbes. To Hobbes, the political legitimacy of a government entity is justified by the people on whether the government can effectively protect those who have consented to obey it. When the protection ceases, the political obligation to the sovereign authority ends. When law enforcement fails, the Hobbesian social contract is transformed in this modern day to a question of tort law and whether the police should be liable for failing to provide adequate police protection.

Ronald Kramer & Mark Casciari, Government Accounting Standards Board (GASB ): Statement No. 45 Makes Public Employers Revisit Retiree Health Insurance, 37 Urb. Law. 427 (Summer 2005). Many commentators have attributed the precipitous decline in the availability of employer-sponsored retiree health benefits in the private sector to Statement No. 106 (FASB No. 106), which was issued by the Financial Accounting Standards Board (FASB) in 1990. Public employers, like their private sector counterparts before them, will feel additional pressure to reduce or eliminate retiree health benefits under the new rules. The extent to which public employers can eliminate or reduce benefits will depend on a variety of factors involving current benefit plans, collective bargaining agreements, state laws, and state and federal constitutional standards.

Edwin P. Voss, Jr. & Meredith Ladd, Recent Developments Under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 37 Urb. Law. 449 (Summer 2005). The Religious Land Use and Institutionalized Persons Act (RLUIPA) was Congress’s response to the Supreme Court’s decision in City of Boerne v. Flores, in which the Court ruled that Congress, in enacting the Religious Freedom Restoration Act, exceeded its enforcement power under section 5 of the Fourteenth Amendment. Congress limited RLUIPA’s application to two areas of state and local government action—land use and institutionalized persons—based upon testimonial evidence received by Congress concerning discrimination in these areas. This report discusses recent court decisions involving RLUIPA.

Recent Developments in Homeland Security

Ernest B. Abbott, Representing Local Governments in Catastrophic Events: DHS/FEMA Response and Recovery Issues, 37 Urb. Law. 467 (Summer 2005). This report highlights some of the most significant issues that attorneys representing local government are likely to grapple with in federally declared disasters.

Ernest B. Abbott & Otto J. Hetzel, A Checklist for State and Local Government Attorneys to Prepare for Possible Disasters, 37 Urb. Law. 489 (Summer 2005). This checklist, first published in draft in late 2002, has reached a wide audience of state and local government lawyers, federal lawyers who work on intergovernmental issues, practitioners in law firms that service state and local governments, clients that frequently work with those governmental bodies, and academics in such fields as public health, land use, urban development, and emergency management law. The checklist incorporates legal issues that will likely result from emergency situations regardless of cause. Emergencies―and the legal issues they create for state and local governments―are triggered by all manner of catastrophic events.

Recent Developments in Land Use, Planning and Zoning Law

Cecily T. Talbert & Nadia L. Costa, Current Issues in Inclusionary Zoning, 37 Urb. Law. 513 (Summer 2005). As the affordable housing crisis persists, more and more jurisdictions are relying on inclusionary zoning programs in the hopes of increasing their affordable housing stock. This trend is likely to persist given the current state of jurisprudence, which tends to view the adoption of inclusionary zoning programs as a proper exercise of local police power used to advance legitimate government interests. It is anticipated, however, that the implementation of such programs will continue to spur controversy and litigation.

T eresa A. McQueen, Tulare Lake Basin Water Storage District v. United States: Takings Victory or ESA Reform Test Case?, 37 Urb. Law. 529 (Summer 2005). The case of Tulare Lake Basin Water Storage District v. United States has gained a unique place in the history of water law litigation in that it is the first case ever to stand for the premise that governmental enforcement of the Endangered Species Act (ESA) amounts to a physical taking of private property under the Fifth Amendment. Since settlement has rendered the federal court’s opinion void of any precedential or evidentiary value, Tulare Lake won’t have the power to influence pending litigation such as the ongoing Klamath River Basin case, but the mere fact that the government agreed to settle the case without appeal virtually guarantees that this case will have plenty of political influence, as it appears inevitable that Congress will review the ESA in the near future.

Daniel J. Curtin, Jr., W. Andrew Gowder, Jr. & Bryan W. Wenter, Exactions Update: When Nollan/Dolan Heightened Scrutiny Does Not Apply , 37 Urb. Law. 539 (Summer 2005). The imposition of conditions upon development remains a contentious topic in jurisdictions throughout the United States, as discussed in previous editions of this report prepared for the Exactions Subcommittee of the Land Use Committee of the American Bar Association’s Section on State and Local Government Law. In the last two years we have discussed significant recent exactions cases in addition to the issue of when and how the Nollan/Dolan rules apply in such cases. In this year’s report we continue the theme, examining circumstances in which the heightened scrutiny test set forth in Nollan/Dolan has been held not to apply.

Robert B. Foster & Mitchell A. Carrel, Tell Me What You Really Think: Judicial Review of Land Use Decisions on Cellular Telecommunications Facilities under the Telecommunications Act of 1996, 37 Urb. Law. 551 (Summer 2005). Section 704 of the Telecommunications Act of 1996 gives courts the authority to review a local zoning authority’s denial of an application for a cellular telephone tower or facility. Since 1996, courts have struggled to find the right balance between its sometimes contradictory goals. By 2004, courts have begun to question more closely the rationales that both municipalities and providers have given for their positions, attempting to discern what the parties really did during the application process as opposed to what they claim before the court. This trend seems to have resulted in more vigorous and consistent decisions, a process helped by the first U.S. Supreme Court decision on one of the more vexing questions under the TCA. A coherent and uniform application of the TCA appears to be in sight.

Paul D. Wilson, “A Forty-Foot Boat and Two Girls” Equals Damages: Recent Constitutional Claims for Damages in Land-Use Litigation, 37 Urb. Law. 561 (Summer 2005). It is never easy for a landowner to successfully sue a municipality for damages for delaying or denying permission to develop his land. Landowners traditionally turn to the Fourteenth Amendment in seeking relief, but due process claims regularly flounder because the landowner lacks a “property right” to build, while equal protection claims often capsize for lack of a suspect classification or fundamental right. This year’s appellate cases indicate that due process claims are becoming even more problematic. In fact, the most successful landowner plaintiff this year did not even bother to bring a due process claim, relying entirely on a newly developing theory under the Equal Protection Clause that focuses on the outrageousness of, and motive for, government’s conduct rather than on the race or gender of the plaintiff.

Patricia E. Salkin, Back to Kindergarten: Pay Attention, Listen and Play Fair with Others―Skills That Translate into Ethical Conduct in Planning and Zoning Decision Making—A Summary of Recent Cases and Decisions on Ethics in Land Use Law, 37 Urb. Law. 573 (Summer 2005). The annual ethics in land use law updates are designed to provide land use lawyers with fact patterns in which ethics allegations are actually raised and the analysis that is used to determine whether the actions complained of constitute illegal and improper conduct. While the facts in each specific case are analyzed under relevant state laws, the general principles are, for the most part, instructive and the concepts are easily transferable from jurisdiction to jurisdiction.

Edward J. Sullivan, Recent Developments in Comprehensive Planning Law, 37 Urb. Law. 595 (Summer 2005). The two theses of this report are (1) that slowly and incrementally, the comprehensive plan has been invested with an increasing role in judging land use regulations or actions so that, either by legislation or court decision, separate plans are required and, once present, are a significant, if not decisive, factor in evaluating regulations; and, (2) that the judicial discussion of comprehensive plans has tended to shift away from whether such plans are required and towards the manner of implementation of plans. This past year has been no exception, although there are more cases than in past years dealing with the growing influence of a comprehensive plan.

Lora A. Lucero & Harrison T. Higgins, Citizens Taking Matters into Their Own Hands , 37 U rb. Law. 607 (Summer 2005). This report briefly describes some of the challenges (and opportunities) that may arise from the increasing reliance on initiatives and referendum. A case currently before the South Dakota Supreme Court is shared as an example to underscore some of the issues. The authors do not present any conclusions or recommendations, with the exception perhaps that direct democracy may be the equivalent of a tsunami hitting land use professionals and so should be taken seriously.



Robert R.M. Verchick, Loving Las Vegas, 37 Urb. Law. 619 (Summer 2005). This article attempts to show how Las Vegas has influenced the rest of the country on matters of gambling and entertainment. It begins with a short history of the city, and then provides brief analyses of gambling and entertainment trends in the rest of the United States. As someone who was born and raised in Las Vegas, the author’s sentiments for this city are unusually positive. But America should be careful in its quest for bigger-than-life revenues and citizen diversion. At its core, Las Vegas is a city devoted to escape and fantasy, noble enough qualities for a tourist resort in the desert, but dangerously insubstantial for the country as a whole.

With Cases Notes on:

Hudson v. Craven

Passions Video, Inc. v. Nixon

Cooper v. Dillon

Lyon County Bd. of Comm’rs v. U.S. EPA (In re Lyon County Landfill)

Green Mountain R.R. v. Vermont

Castille v. Lafayette City-Parish Consolidated Gov’t

Voice of the Cornerstone Church Corp. v. Pizz a Prop. Partners