October 23, 2012

Vol. 39, No. 2, Spring 2007

Vol. 39, No. 2, Spring 2007

Publication Date : July 2, 2007



Henry W. McGee, Jr., Seattle’s Central District, 1990–2006: Integration or Displacement?, 39 Urb. Law. 167 (Spring 2007). This study explores the continued process of displacement of African Americans from a Seattle community in which they were once captive to their dispersal throughout the southeast sections of the city, the so-called Rainier Valley, and to the inner suburbs of Renton and Kent, once working and middle class white communities in which African Americans could not safely walk after dark. The study commenced on the assumption that the disappearance of African Americans from Seattle’s core, just a mile or so from downtown Seattle, was a net loss in the zero-sum game that might describe American racial dynamics in which blacks usually lose when they have something Euro Americans want. What then follows is anecdotal information that surveys African American attitudes toward the gentrification and the gain and loss presented by Euro American demand for housing in their once vibrant community. The study concludes in equipoise on the outcome of the gentrification. Rather than determining whether the displacement is “good” or “bad,” the ultimate question is whether Seattle will see a stable and successful inter-racial area emerge at the expense of black political power in Seattle.

Robert D. Zeinemann, Overlooked Linkages Between Municipal Incorporation and Annexation Laws: An In-Depth Look at Wisconsin’s Experience, 39 Urb. Law. 257 (Spring 2007). This article provides an in-depth case study of the development and operation of the incorporation and annexation laws of Wisconsin. The overall picture that emerges from this case study is one of development and implementation of uncoordinated and inconsistent annexation and incorporation laws. This article suggests that reforms are needed. Ultimately, however, it is for the reader to decide what lessons Wisconsin’s experience with incorporation and annexation holds for it and other states. Part II of this article is a short exploration of the shared constitutional underpinnings of annexation and incorporation to provide readers a solid foundation for understanding those processes. Similarly, Part III provides important background regarding the early formation and use of annexation and incorporation in Wisconsin. In Part IV, the Wisconsin Supreme Court’s current annexation and incorporation doctrines, and their development, linkages, and shortcomings, are explored. The history of Wisconsin’s current annexation and incorporation statutes is discussed in Part V. The linkages between various doctrines and statutes are revealed in Part VI. Part VII examines the practical linkages between annexation and incorporation through two case studies partly drawn from firsthand knowledge the author gained while implementing Wisconsin’s incorporation and annexation statutes while working within the Wisconsin Department of Administration. Finally, Part VIII concludes the article by summarizing the linkages between annexation and incorporation. Given their linkages, a common doctrine is suggested to advance a more rational jurisprudence that is consistent. Wisconsin courts do not have to look far for a starting point in developing such a doctrine: the Lammers Doctrine and Smith v. Sherry offer guidance.

William W. Wade & Robert L. Bunting, Average Reciprocity of Advantage: “Magic Words” or Economic Reality—Lessons from Palazzolo, 39 Urb. Law. 319 (Spring 2007). “Average reciprocity of advantage” (ARA) is a legal term of art without a settled definition, a phrase even more vexing to regulatory takings than the Penn Central test. ARA means nothing outside the narrow confines of land use law. Even within the practice of land use law, Supreme Court and lower court decisions have obscured rather than clarified the concept. Law journal articles mostly gloss over the phrase; only a handful of articles deal with ARA in depth and only one of these is not polemic. Without a settled meaning for ARA, the contention of some legal scholars that ARA “justifies a law of regulatory takings that is confined to truly extreme cases” has no substantive support. This article investigates whether average reciprocity of advantage is accurately described by Gideon Kanner as a “triumph of ‘magic words’ over economic reality.”

Gabor Zovanyi , The Role of Initial Statewide Smart-Growth Legislation in Advancing the Tenets of Smart Growth, 39 Urb. Law. 371 (Spring 2007). The growth-management movement that emerged in the United States during the latter 1960s and early 1970s evolved into a smart-growth movement by the late 1990s. The smart-growth movement advocates several principles that governments should use to help shape the future growth of cities across the nation, to create more livable cities and to reverse some of the suburban isolationist trends that have emerged in the post-World War II era. The second section of this article surveys the nature of growth-management considerations prior to the emergence of the smart-growth movement. The third and fourth sections portray the broad array of smart-growth principles advanced by participants in the smart-growth movement, group those principles under headings that are suggested to represent the five major tenets of smart growth, and characterize the nature of smart growth by elaborating on those tenets. These sections illustrate the degree to which smart-growth tenets have expanded the realm of growth-management considerations beyond that of earlier decades. Section five reviews statewide growth-management laws passed prior to the advent of the smart-growth era to assess the degree to which those legislative enactments addressed the tenets of smart growth. Section six, in turn, surveys the initial statewide smart-growth bills passed in Maryland, Wisconsin, Pennsylvania, and Delaware to determine whether these laws are more supportive of smart-growth tenets than earlier statewide growth-management laws. Section seven concludes the article with final observations on the degree to which initial statewide smart-growth laws advance the tenets of smart growth and speculation on what these new smart-growth laws represent in terms of a new direction for growth-management initiatives in America.

Shruti Ravikumar Jayaraman , Unplanned Change—Challenging Tradition in Land Use Controls: The Case of New Haven’s Planned Development District , 39 Urb. Law. 415 (Spring 2007). In 1998, a well-connected New Haven catering establishment looked to expand. In so doing, it embroiled the city in a dispute with lasting political and emotional charge. The stakes were intensely local and personal: the management of a thriving business; property values; political power; and the economic, social, and aesthetic conditions of a neighborhood. The underlying tension was one that confronts every municipal government: If land use matters, just how flexible should its regulation be? This article examines an intriguing, real response to the challenges of land use decision making. It focuses on New Haven’s peculiar procedure for approving individual large-scale exceptions to underlying zoning, a process that consists of both formal review and informal deal making. While the Planned Development District (PDD) ordinance lays out few constraints, the actual process is one of engagement and compromise. New Haven’s PDD achieves flexibility while safeguarding the value of neighboring property. The PDD in New Haven is a contested mechanism. More litigation looms on the horizon. Inquiry into the PDD’s forty years of operating history and into recent criticism is therefore timely. This article proceeds in six parts. Part I explores the tension between planning and flexibility in land use and introduces New Haven and its Planned Development District mechanism in this context. Part II examines New Haven’s PDD process in detail. Part III describes the interests at stake and the events that gave rise to the recent legal challenge. Part IV gives a normative evaluation of the PDD mechanism. Part V considers—and rejects—alternatives. Finally, Part VI concludes, drawing on preceding analysis and criticism.

  With Cases Notes on:

Hawkins v. United States

D.D. v. N.Y. City Bd. of Educ.

Lussenhop v. Clinton County, N.Y.

Woods v. Rondout Valley Cent. Sch. Dist. Bd. of Educ.

Entm’t Software Ass’n v. Blagojevich

Sylvester v. Fogley

ACLU of Nevada v. City of Las Vegas

Lewis v. Harris