October 23, 2012

Vol. 38, No. 4, Fall 2006

Vol. 38, No. 4, Fall 2006

Publication Date: January 23, 2007


Julie M. Cheslik, Jamie Landes, Leah Pollema & Michael Shelton, The Supreme Court Report 2005–06 , 38 Urb. Law. 737 (Fall 2006).
The Court’s 2005–06 Term began with much speculation as one, then a second new Justice joined the Court. After the close of the 2004–05 Term, the Court suffered the loss of Chief Justice William Rehnquist, who succumbed to the thyroid cancer that had plagued him during that Term. President Bush ultimately replaced him with Judge John G. Roberts, who began the new Term and authored his first opinion, the traditional 9–0 opinion of a new Justice, in a death penalty case, United States v. Holmes. The Term began with Justice Sandra Day O’Connor still sitting, although she had announced her retirement from the Court even before the death of Justice Rehnquist. O’Connor’s replacement, Justice Samuel A. Alito, Jr., ultimately joined the Court replacing her with a Justice who was not seen as the moderate force O’Connor had been. O’Connor did participate in the parental notification abortion case, the Court’s first in five years, a case that was slated to determine the continuing viability of O’Connor’s “undue burden” standard and expected to give conservatives an opportunity to replace that standard with one more to their liking. That did not happen this Term, however, and, in that case, like in many others this Term, the fears that the new Court, with its new Bush appointees, would take a sharp right turn did not yet materialize. In fact the Court handed the President and the Administration a major defeat in the most important case of the term, Hamdan v. Rumsfeld.

Steven Siegel, The Public Role in Establishing Private Residential Communities: Towards a New Formulation of Local Government Land Use Policies That Eliminate the Legal Requirements to Privatize New Communities in the United States, 38 Urb. Law. 859 (Fall 2006).
This article examines the critical and insufficiently understood role that government plays in the widespread and ever-growing establishment of private residential communities in the United States, particularly in the high-growth Sunbelt states. The author argues that local governments, on a broad scale and independent of market forces, effectively have required developers of new subdivisions to create community associations to operate and maintain the subdivision in lieu of the municipality providing traditionally municipal services to the subdivision, including such services as street maintenance, sewer service, water supply, drainage, curbside refuse collection, parks, and even traditional police patrols of public streets. This article aims to partly fill a gap in the literature and in the scholarly commentary. Part I catalogs and assesses the significant demographic, social, and economic factors that have contributed to the phenomenon of the explosive growth in the number of private communities in the United States. Part II traces the history of the PUD zoning concept and how this concept evolved from a mechanism to interject greater design flexibility into the zoning approval of new subdivisions into a vehicle for municipal privatization decisions affecting traditionally public facilities and services. Part III sets forth substantial evidence of the active and direct role played by local governments, through the exercise of their plenary regulation of new residential development, in the rise of the territorial community association as the standard template for new community development in the fastest growing areas of the United States. In Part IV the focus of the inquiry shifts from the empirical to the normative. In particular, the author identifies the adverse effects of a municipal land use policy that effectuates the privatization of the operation and maintenance of traditionally municipal infrastructure by way of the de facto or de jure requirement that a subdivision developer establish a community association (to operate the infrastructure) as a condition of subdivision approval. Part V explores potential judicial remedies as well as legislative policy recommendations aimed at reducing the future municipal imposition of public service exactions in new community development, as well as mitigating the effects of public service exactions in existing communities. If the public role in enabling private residential communities were to be more clearly delineated and analyzed (as this article seeks to do), then the groundwork can be laid for serious public discussion of the future of new community development in the United States and for a thorough and public assessment of what has been called “the most significant privatization of local government responsibilities in recent times.”

Daniel P. Selmi, Themes in the Evolution of the State Environmental Policy Acts, 38 Urb. Law. 949 (Fall 2006).
This article examines the evolution of State Environmental Policy Acts by identifying ten themes in the development of those laws. The purpose is not to summarize the features of the SEPAs; in states with the most active SEPAs, detailed treatises undertake that task. Nor does the article attempt to document all possible variations in the SEPAs. Instead, it identifies the principal points at which states have faced significant choices in structuring their environmental reporting laws, often opting to diverge from the National Environmental Policy Act model, and the consequences of those choices. The evolution of the SEPAs shows states experimenting with the features of a law initially passed at the federal level and molding it to fit the policies that individual states view as important. The SEPA “laboratories” thus suggest how environmental law, whose main outlines are now largely dictated at the federal level, might have developed in a less overtly federalized framework. Finally, the state experience provides a context for considering whether impact reporting requirements are worth their considerable cost.


Jonathan Remy Nash, The Illusion of Devolution in Environmental Law, 38 Urb. Law. 1003 (Fall 2006).
There is a sense that the federal government is devolving greater and more authority to regulate the environment upon the states and upon local governments. This article argues that, to whatever extent there may be some devolution of environmental authority, that movement is not as great as generally thought. It elucidates two categories of explanations for federal intervention in environmental regulation, both of which justify setting federal regulatory floors and purport to leave room for more stringent state regulation. Part III offers three examples in which state attempts to exercise this freedom to provide greater environmental protection have been, or may be, frustrated. Part IV offers theoretical explanations that explain why, despite the legal green light to provide greater environmental protection, states may find it difficult in practice to go down that path. In the end, however, there is reason to question whether in practice these externalities are truly large enough to justify effective federal preemption of state laws that offer greater protection of the environment.

Kirsten Engel, State and Local Climate Change Initiatives: What Is Motivating State and Local Governments to Address a Global Problem and What Does This Say About Federalism and Environmental Law?, 38 Urb. Law. 1015 (Fall 2006).
The study of modern environmental law is primarily the study of federal environmental statutes and their implementation and enforcement by federal and state agencies. At least this is how things generally work with respect to environmental issues other than climate change. With respect to climate change, the tables are turned. Here it is the state governments that are actively pursuing programs to reduce emissions of greenhouse gases and sequester carbon while the federal government has adopted a nonregulatory, and, many would argue, a mostly do very little approach. This role reversal raises a host of interesting questions, only a few of which are addressed in this brief essay. One is why, exactly, are states addressing a global problem such as climate change? Another is what will be the long-term significance of the states’ activities, both in terms of the nation’s response to climate change and for the structure of federalism in environmental law? Is there any long-term significance in this role reversal either in terms of mitigating climate change or in terms of the development of new approaches to environmental protection? This article attempts to lay out some preliminary answers to these questions, or at least to suggest ways in which they might be approached.

Robert L. Fischman, Habitat Federalism, 38 Urb. Law. 1031 (Fall 2006).
This essay discusses cooperative federalism for habitat conservation. Habitat federalism focuses more on ecology than chemistry, more on cities and counties than states, and more on place-based variation than on uniform standards. It is about how land use control relates to federal natural resources law, especially the Endangered Species Act (ESA). The ESA in particular, and natural resources law in general, present special challenges for intergovernmental coordination that the pollution control side of environmental law has neglected. Part II reviews the narrow model of pollution control law and then describes some alternative schemes. Nonetheless, the pollution control model of enlisting state institutions to implement permit and planning programs that meet federal standards offers important advantages for advancing habitat protection. Part III describes an ESA experiment adapting the pollution control model to salmon habitat protection and enhancement in the Puget Sound region. The ESA example illustrates a kind of Gresham’s Law of regulatory choice: lax standards drive stringent standards out of circulation. In whatever form it manifests, habitat federalism will play an increasingly important role in environmental law. Urban lawyers will contribute their planning and land use control expertise to the design and implementation of habitat federalism. And, as the southeast portion of the Puget Sound region illustrates, conflicts over habitat conservation are important urban and regional growth issues.



Patricia E. Salkin & Amy Lavine, Measure 37 and a Spoonful of Kelo : A Recipe for Property Rights Activists at the Ballot Box, 38 Urb. Law. 1065 (Fall 2006).
The impact of the Measure 37 has been to effectively paralyze the state, local, and regional land use authorities. Aside from the several narrow exceptions, which except certain types of regulations from the Measure’s scope, the Measure overwhelmingly favors claimants. The Measure is also retroactive in application, permitting claims related to regulations that are decades old. In addition, Measure 37 does not provide a source of funding for paying claimants, placing the government in the difficult position of having to either draw funds from the public purse or waive contested regulations. Importantly, the Measure also fails to address exactly how decreases in property values should be determined. Furthermore, it is questionable whether the loss in fair market value should be determined by the “windfall gain” that an owner would receive through a restriction’s waiver, but this is the approach most commonly taken in Measure 37 claims. Determining fair market values also raises a host of related problems with regard to lands neighboring Measure 37 properties, as their values will often decrease in the wake of restriction waivers. The Measure neither provides a process for involving such neighbors in the claims process nor does it address the overall decrease in property values that is likely to be caused by the fragmentation of comprehensive development plans. Another issue left unresolved by the legislation is whether waivers granted under the Measure are specific to the property owner who files the claim, or whether such waivers run with the land.  

Shane Mecham, The House That Consensus Built: Consensus Building in Stadium Construction, 38 Urb. Law. 1087 (Fall 2006).
Professional sports is one of the most highly subsidized industries in the United States. In the 1990s, approximately $11 billion in tax dollars were spent on new sports facilities that offered huge financial benefits to team owners and players. Given that the public pays for new stadiums, it should have input into if and how they are built. Using tax dollars to build a multi-million-dollar stadium without involving taxpayers and other essential parties in the decision-making process poisons the long-term relationship that communities and professional sports teams hope to share. To preserve this relationship, governments should initiate a consensus building process to address the issue of stadium construction. While consensus building is not a panacea that will solve all problems in all cases, it does offer substantial benefits over both unilateral decision making and referendums. Part II of this article explains the prisoner’s dilemmas that both teams and cities face in the status quo. Part III outlines what a consensus building process in the stadium context should look like. Part IV illuminates the benefits of this approach over the traditional alternatives of unilateral decision making and referendums.

Kenneth Pearlman, Elizabeth Linville, Andrea Phillips & Erin Prosser, Beyond the Eye of the Beholder Once Again: A New Review of Aesthetic Regulation, 38 Urb. Law. 1119 (Fall 2006).
It is the purpose of this article to take a new look at the status of aesthetics in land use regulation. It examines how state approaches to aesthetics have changed over the last twenty-five years and documents a movement toward greater acceptance by the states of aesthetics as a basis for action pursuant to the police power. While there has been an increase in the number of jurisdictions allowing for aesthetics alone, it has not been dramatic. On close examination of the cases, the authors concluded that there were several important gradations among the states that permitted aesthetics to be used but did not positively support the use of aesthetics without other factors. Accordingly, this article divides the states into four categories: (1) states that clearly allow aesthetics to be used alone as a basis for police power regulation; (2) states that permit aesthetics to be used in conjunction with other factors but in which judicial language appears, in the opinion of the authors, to indicate some possible favorable movement toward aesthetics alone; (3) states that permit aesthetics to be used in conjunction with other factors, but in which there is no indication of a more favorable judicial attitude toward aesthetics alone; and (4) states that have firmly concluded that aesthetics alone is not permissible. It should be emphasized that while the authors believe that this categorization is accurate, state courts are not always consistent in their language and, hence, not all cases in some jurisdictions clearly support what the authors believe to be the correct analysis of that jurisdiction. The authors did not consistently take the most conservative approach, which would have been to place states in category three unless there were strong language to the contrary; rather, the authors tried to provide their best judgment as to what might be likely to happen were a state supreme court to get an aesthetics alone case.


Paul R. Koster, Election Battles and Their Impact on the Public Employer, 38 Urb. Law. 1187 (Fall 2006).
This article addresses the potential ramifications for taking adverse actions against public employees because of their political candidacies, examining two of the most common “candidacy-related” claims: (1) First Amendment retaliation claims and (2) due process claims. This article then provides tips that local governments can employ to prevent these candidacy-related claims.  

James D. Jorgensen & Lelia B. Helms, Recent Developments in Public Education Law: Postsecondary Education, 2005-06 , 38 Urb. Law. 1201 (Fall 2006).
This year the authors have altered the temporal scope of review of cases involving higher education to coincide with the calendar year. As a result, they pick up where their 2004–05 review left off beginning in May 2005 and continuing through December 2005. Despite the abbreviated time period, courts at all levels ruled on numerous noteworthy cases, including three decisions from the U.S. Supreme Court, one dealing with student loan debt, one ruling on an Eleventh Amendment issue, and a unanimous ruling on a constitutional challenge to the Solomon Amendment requiring higher education institutions that accept federal funds to provide access to military recruiters.

Steven J. Eagle, Recent Developments in Condemnation Law, 38 Urb. Law. 1223 (Fall 2006).
Property rights generally are not on the Supreme Court’s front burner, and the Court may or may not decide one such case in a given Term. By now, however, most readers are aware that the Supreme Court issued three major decisions affecting private property rights as it concluded its 2004–05 Term last summer.

Leonard A. Zax, Using Law to Help the Environment, Revitalize a City, and Improve the Quality of Urban Life: A Book Review of Mastering Boston Harbor, by Charles M. Haar, 38 Urb. Law. 1253 (Fall 2006).
At a time when political support for judicial activism is at an all time low, an important new book provides a riveting case study of the problems and potential of judicial activism in the real estate world. Mastering Boston Harbor is the study of one state court judge who was ready, willing, and able to halt all new real estate development in the Boston region to clean up the awful pollution of Boston Harbor. The book combines the serious scholarship of a distinguished Harvard Law School professor with his unique vantage point as a player in the litigation that resulted in the clean up of Boston Harbor in a way that turned out to be good for both the environment and for the Boston region.

With Cases Notes on:

Cent. Va. Comty. College v. Katz

Betancourt v. Bloomberg

MacWade v. Kelly

Center for Individual Freedom v. Carmouche

Mikeska v. City of Galveston

Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n

K.C. v. Fulton County Sch. Dist.

Doe v. Se. Greene Sch. Dist.

Small Prop. Owners v. City of San Francisco

State v. Hayes

Advisory Opinion to the Attorney Gen. RE: Indep. Nonpartisan Comm’n to Apportion Legislative and Cong. Dists. Which Replaces Apportionment by Legislature