October 23, 2012

Vol. 38, No. 2, Spring 2006

Vol. 38, No. 2, Spring 2006

Publication Date: June 19, 2006


Timothy J. Dowling, How to Think About Kelo After the Shouting Stops, 38 Urb. Law. 191 (2006) . This article explores how best to think about Kelo once the initial shockwave subsides. The Court invited states and localities to consider carefully the benefits and burdens of using eminent domain for economic development, but these deliberations should be based on facts, not emotion and ideology. This article is a summary of the key points that should inform the continuing debate over eminent domain.

Gideon Kanner, Kelo v. New London: Bad Law, Bad Policy, and Bad Judgment, 38 Urb. Law. 201 (2006). Last term’s five-to-four Kelo decision has precipitated a great deal of controversy. Large numbers of Americans were dismayed and angered to find that anyone’s unoffending home may be seized and razed to convey the site to a municipally favored redeveloper, on the theory that redevelopment will increase revenues and wages, thus tending to revitalize the community. The decision has precipitated a flood of proposed (and in some cases enacted) legislation to curb this breathtaking expansion of unreviewable and unaccountable government power. It has also inspired an instant emergence of a cottage industry among government officials, redevelopment professionals, and the usual academic suspects who have reacted to the Supreme Court’s decision, by asserting that the legal and civic revolution wrought by the Court in the applicability of the eminent domain power was no revolution at all, but merely the invocation of long-standing precedent. In light of what the Kelo Court did decide, these assertions bring to mind a scene in the movie Jumbo, where Jimmy Durante is caught trying to sneak an elephant out of a circus, and when confronted by a guard, says, “Elephant? What elephant?”

Edward J. Sullivan , Year Zero: The Aftermath of Measure 37 , 38 Urb. Law. 237 (2006). The adoption of Measure 37 on November 2, 2004, has significantly altered the land use planning landscape in Oregon. In brief, the Measure requires either payment for “lost value” of real property due to land use regulations—or, alternatively, waiver of those regulations—enacted after acquisition of the property by the “present owner.” On February 21, 2006, the Oregon Supreme Court found the Measure constitutional. The article opens with a discussion of the Oregon land use planning system before adoption of the Measure. Next, it explores how the Measure operates based on the experience of public entities dealing with the first claims made under the Measure. The article continues, suggesting how the state’s land use planning program can cope with the Measure in its current form and explores some of the likely areas where the Measure may be amended by either the legislature or through the initiative process. The article closes with predictions regarding the short- and long-term impacts of Measure 37 including loss of farmland, further sprawl, loss of a cohesive and coordinated land use program, and, most importantly, the onset of sclerosis of the state’s land use planning system.

Margaret H. Clune , Government Hardly Could Go On: Oregon’s Measure 37, Implications for Land Use Planning, and a More Rational Means of Compensation , 38 Urb. Law. 275 (2006). In the November 2004 election, voters in Oregon passed what appears to have been a major victory for the property rights movement. The initiative, called “Measure 37,” provides that if government, through its imposition of a land use regulation, had at some point diminished the value of landowners’ property, then the landowner is entitled to compensation from the government. But without the funds to pay such claims, how will governments comply with the new law? Therein lies the initiative’s true import—its proponents included in the law a provision stipulating that governments could comply either by paying compensation, or by rolling back the offending regulations. The rights and remedies implicated when government regulation affects the value of private property have been thoroughly examined and balanced in the U.S. Supreme Court’s takings jurisprudence. Measure 37 completely bypassed the considerations weighed in takings analysis, staking out instead a rigid rule requiring compensation in the event of any diminution in property value caused by virtually any land use regulation. Measure 37 thus deserves examination not only because of its threatened destruction of Oregon’s land use planning system, but also because similar initiatives will likely be proposed elsewhere. Without understanding and proactively responding to the voter sentiment laid bare by Oregon’s Measure 37, local governments across the country may find their efforts to direct and manage future development constrained by the fondest hopes and wishes of the anti-planning movement, translated into voter-enacted law.

Bret Jackson Coppage, Balancing Community Interests and Offender Rights: The Validity of Covenants Restricting Sex Offenders from Residing in a Neighborhood, 38 Urb. Law. 309 (2006). This article addresses the validity of covenants that prohibit convicted sex offenders from residing within a neighborhood and urges courts to closely scrutinize the actions of common interest communities to ensure that offenders’ rights are not trampled in an effort (which may be ineffective) to enhance community safety.

William W. Wade, “Sophistical and Abstruse Formulas” Made Simple: Advances in Measurement of Penn Central’s Economic Prongs and Estimation of Economic Damages in Federal Claims and Circuit Courts , 38 Urb. Law. 337 (2006). This article reviews the Supreme Court’s lacking clarity about the economic prongs of the Penn Central test in contrast to recent decisions from the Federal Claims Court and the Federal Circuit Court to show how those courts have advanced the framework of the Penn Central test and measurement of damages. Specifically, these decisions clarify how to apply, measure, and evaluate the elements of the Penn Central test to determine when a compensable taking has occurred. In order to establish a predictable legal standard for the Penn Central test, the Supreme Court needs only to adopt the lessons learned in the Federal Claims Court and Federal Circuit Court since 1999.

With Cases Notes on:

United States v. Olson • 359

Doe v. Miller • 360

Willis v. Town of Marshall • 361

White v. McGowen • 363

Mendota Golf, L.L.P. v. City of Mendota Heights • 363

In re New York City Transit Auth. v. New York State Pub. Employment Relations Bd. • 364