October 23, 2012

Vol.39, No.3, Summer2007

Vol. 39, No. 3, Summer 2007

Publication Date: October 8, 2007



Laurie Reynolds , Local Governments and Regional Governance, 38 Urb. Law. 483 (Summer 2007). The increasing stratification of municipalities into regional “winners” and “losers” is a fact. How best to stem the tide, however, is not so obvious. This article considers how local government legal structures might help with that endeavor. It first surveys the debate, identifying the wide-ranging ideological differences that come together in support of regionalism and describing the policies that motivate the adoption of existing techniques. Because the creation of limited purpose governments has long been the preeminent regional solution, in subsequent sections I examine them more closely. The author argues that the failure of regional governance efforts to achieve a more equalized standard of regional prosperity is not surprising and is in fact predictable. So long as residents and governments in the affluent segments of the region are able to practice a selective regionalism, participating in regional efforts that redound to their advantage without having to cooperate in efforts that would address problems more prevalent in central cities and inner ring suburbs, the fundamental inequality and maldistribution of metropolitan area resources, services, and opportunities are likely to remain and, perhaps, to intensify. In the article’s final section, the author suggests state statutory reform. She concurs with a growing critique of regional special districts and highlights the overlooked wisdom of the Advisory Commission on Intergovernmental Relations and the Committee for Economic Development, two entities that mounted persuasive, yet unheeded, attacks on regional special districts decades ago. At the same time, because the author recognizes that the staunch, widespread public opposition to proposals for an elected general purpose regional government or for city–suburb consolidation appears unlikely to reverse course, she suggests that the solution must lie within existing local government structures.

Gideon Kanner , We Don’t Have to Follow Any Stinkin’ Planning—Sorry About That, Justice Stevens, 38 Urb. Law. 529 (Summer 2007). This article examines the law that governs the implementation of the municipal plans underlying the use of the eminent domain power for redevelopment. In the process it takes a look at the aftermath of several high-profile condemnation cases arising from projects that either proved to be failures or did not follow the plans underlying the condemnations that preceded them. It demonstrates that the vaunted comprehensive character of the municipal plans that so impressed Justice Stevens and the Court’s majority, and formed the pillar on which the Kelo Court’s reasoning ultimately rests, are not enforceable. Once title to the taken property is transferred to a condemnor those plans are of no binding effect and not worth the paper they are written on. The article concludes that the Court’s reasoning is not rooted in reality, that in this instance it has jettisoned the doctrine of checks and balances for the sake of unenforceable municipal plans, and that it de facto facilitates government profligacy and abuse of faultless citizens. Even on its own premise, the prevailing Supreme Court right-to-take jurisprudence only raises the question whether the Justices understand the huge gap between the precondemnation plans so uncritically accepted by them and the reality of those plans’ implementation.

Edward J. Sullivan, Through a Glass Darkly: Measuring Loss Under Oregon’s Measure 37, 38 Urb. Law. 563 (Summer 2007). The planning process in Oregon has clearly been transformed by the passage of Measure 37. After the failure of multiple constitutional challenges to its enactment, Measure 37 is now part and parcel of the Oregon planning program and, as a political matter, is not likely to be excised completely any time in the near future. Oregonians have now twice voted for government payments for regulation, and the argument that the voters did not understand the impacts of these ballot initiatives seems unavailing. Valuation is an issue of particular ambiguity—and, hence, controversy—within Measure 37. The Measure says very little on the subject (aside from creating a statutory right to “just compensation” if the fair market value of land is devalued by a land use regulation). In eminent domain law the words “just compensation” mean the price a willing buyer would pay for land from a willing seller with both parties having knowledge of the marketplace. Measure 37, however, uses this eminent domain term to establish the obligation of a public body to pay for regulation, even though that public body is not seeking to acquire property for public use, as it would be under eminent domain law. This article is divided into six parts. Following the introduction, Section II discusses the structure of the Measure itself and current practice in administering Measure 37 claims. Section III illustrates the importance of assessing the exact quantification of the alleged loss in each Measure 37 claim, prior to any decision whether to pay or waive on behalf of the local governments. Section IV provides a review and critical analysis of proposed valuation methods. Section V assesses each of the valuation methodologies against the text, context, and legislative history of Measure 37 to determine its legal validity. Finally, the best of these valuation methods is selected and explained in terms of the Measure.


Joni Armstrong Coffey , Whither State Compensation Remedies for Regulatory Takings?, 38 Urb. Law. 619 (Summer 2007). The private property rights movement saw a strong resurgence in 2006. In the wake of nationwide publicity about Kelo v. City of New London, many states enacted measures limiting the use of eminent domain to transfer property from one private owner to another as part of a redevelopment plan. The Kelo publicity also afforded a fresh opportunity to revisit the issue of monetary remedies for partial regulatory takings, an issue that first gained national attention and state legislative response more than a decade ago. For years, commentators have pondered whether the threat of monetary consequence chills needed government regulation or fosters undue compromise and waiver of regulations to benefit property owners who have monetary damages claims in their litigation arsenals. For these reasons, an analysis of the real financial consequence experienced in the United States to date may help decode the merits of arguments that governments are failing to govern for fear of financial catastrophe, as well as the corollary question of whether much-feared compensatory measures for partial regulatory takings can expect a long shelf life.

Robert B. Foster & Mitchell A. Carrel, Alice in Towerland: Judicial Review of Land Use Decisions on Cellular Telecommunications Facilities Under the Telecommunications Act of 1996, 38 Urb. Law. 633 (Summer 2007). Section 704 of the Telecommunications Act of 1996, codified at 47 U.S.C. § 332(c)(7) (TCA), 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 worked to find the right balance between its sometimes contradictory goals. As the First Circuit describes, the TCA “works like a scale that, inter alia, attempts to balance two objects of competing weight: on one arm sits the need to accelerate the deployment of telecommunications technology, while on the other arm rests the desire to preserve state and local control over zoning matters.” In 2006, courts struggled to adjust both to changing interpretations of the TCA and changing methods in the telecommunications industry for siting wireless facilities. These changing standards, applied to new methods, have led some providers to argue that they have entered “ Alice in Wonderland.” The courts beg to differ. Like Lewis Carroll’s heroine, courts and litigants continue to navigate a “curiouser and curiouser” world using their old good sense.

W. Andrew Gowder, Jr. & Bryan W. Wenter, Exactions and Impact Fees 2007: The Limits of Local Authority, 38 Urb. Law. 645 (Summer 2007). Some of the most significant decisions in the law of exactions and impact fees published over the last twelve months concern the limits of local governmental authority. These cases explore the foundations on which physical exactions or impact fees are imposed, whether the sources of power for such exactions and fees are conferred by charters created under state constitutions, enabling laws enacted by state legislatures’ police power, common law, or executive action. Other notable decisions examine the constitutional restraints required by the United States Constitution, or various state constitutions, using the Nollan/Dolan “dual rational nexus” template to the imposition of exactions and impact fees by local governments in exchange for development approval. All of these cases illustrate the courts’ continuing attempts to balance the need for local governments to finance the additional infrastructure required by new development with the constitutional and statutory constraints limiting the reach of local government regulation.

David A. Marcello , Community Benefit Agreements: New Vehicle for Investment in America’s Neighborhoods, 38 Urb. Law. 657 (Summer 2007). Developers and city officials need to know about a new vehicle for community involvement in the land use planning process for major public-private developments. If they have not already arrived in your town, Community Benefit Agreements may be coming soon to a neighborhood near you.

Lynda J. Oswald, Can a Condemnee Regain His Property If the Condemnor Abandons the Public Use?, 38 Urb. Law. 671 (Summer 2007). While the economic redevelopment transfers of Kelo and its ilk have gotten most of the media and public attention, there are other common ways in which eminent domain takings can result in a transfer of condemned property to private parties. For example, a condemnor may mistakenly take more land than it ultimately needs for its stated public use, and so be left with a surplus of land at the completion of its project. Similarly, if a state or municipality condemns property for a public use that ceases to go forward for some reason, the condemnor will be left with land it no longer needs for a public use it will no longer pursue. A highly publicized recent example involved the Seattle Monorail Project, where the City of Seattle condemned large tracts of land only to have the voters reject the Project in a 2005 election. Instances such as these raise a host of interesting questions. May the condemnor simply sell the unneeded land to other private parties to recoup its expenses or investment (or even to reap a profit), or does the condemnee have the right to regain her condemned property if the condemnor abandons the public use or deems the land surplus? If the condemnee does have the right to reclaim her land, are there any time limits on her ability to do so? Does the condemnee have to pay to regain her land, and if so, how should the price be measured? The post- Kelo eminent domain reforms in several states have addressed these topics and put in place greater protections for condemnees seeking to regain their land once the public use has failed or been abandoned. As a result, condemnees in many states now have a much stronger basis for seeking reconveyance of their property than they did in even the recent past.

Edward J. Sullivan, Recent Developments in Comprehensive Planning Law, 38 Urb. Law. 681 (Summer 2007). Once again, the role of the comprehensive plan in land use law is examined over a discrete period, i.e., October 1, 2005 through September 30, 2006, to determine how the typical statutory requirement that zoning and other land use actions be “in accordance with a comprehensive plan” is implemented. These cases fall into three major categories. The first category, the “unitary view,” holds that there is no requirement for a plan that is separate from the zoning regulations and that any existing plan has no legal effect. The second category gives the plan some significance as a factor, but not as the exclusive or even the most significant one, in evaluating land use regulations and actions. Finally, the third category comprises those cases in which the plan is described as a quasi-constitutional document that governs the regulatory ordinances and actions of the local government implementing the plan. This report includes other categories for analysis on plan significance, including standards and method for interpretation of comprehensive plans and amendments to such plans. The two theses of these reports over the years are that (1) 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 in place, are a significant, if not decisive, factor in evaluating regulations; and (2) the judicial discussion of comprehensive plans has tended to shift away from whether such plans are required and towards the manner of implementation of the plans.

David S. Warner & Emily R. Schey, Recent Developments in Vested Rights: Maintaining the Status Quo, 38 Urb. Law. 695 (Summer 2007). In 2006 courts continued to muddle through the “amorphous law” of vested rights and equitable estoppel. While several opinions clarified state statutory and common law vested rights doctrines, none took the bold step of overhauling existing law to better address the practical difficulties inherent in governing large, modern, multi-phased development projects. Instead, courts tweaked existing laws to reach equitable solutions or took shelter in the safety of outmoded bright-line tests based on the date of a particular type of governmental act such as a building permit. This report examines how various courts applied state vested rights laws in 2006. While each state has its own unique interpretation of the doctrine, the common elements identified above are generally found in any vested rights analysis. Thus, these decisions can be instructive in interpreting such laws in any jurisdiction.

Paul D. Wilson, “I Don’t Live Next Door, But I Do Drive by On the Nearby Highway”: Recent Developments in the Law of Standing in Court Cases Challenging Land Use Permit, 38 Urb. Law. 711 (Summer 2007). During the past year, appellate courts in at least five states have considered challenges to the standing of “someone” who appealed a land use permit. Although all five courts were applying the same legal standard—or so they said—their decisions varied dramatically as to what a plaintiff had to allege to meet that standard. The courts further differed on the quantum of proof that the plaintiff had to put forward to defeat a motion to dismiss. Examining these five cases, this article will analyze what sort of injury the plaintiff must claim to establish his standing to appeal a land use permit and the quantum of proof of injury that plaintiff must bring forth if his standing is challenged by the developer defendant.

Recent Developments in Public Finance

Kenneth W. Bond, GASB 45: What It Means to Local Governments, 38 Urb. Law. 723 (Summer 2007). The Governmental Accounting Standards Board (GASB) was organized in 1984 by the Financial Accounting Foundation (FAF) to establish financial accounting and reporting standards for state and local governments, including school districts. FAF also oversees the Financial Accounting Standards Board (FASB) which sets financial accounting and reporting standards for private businesses and nonprofit organizations. GASB’s mission is to establish and improve standards of state and local governments in the areas of financial accounting and reporting so that users will find useful information in financial reports. GASB is important because its standards are recognized by the American Institute of Certified Public Accountants. Any material departure from a GASB standard in a local government’s financial reports must be noted. Failure to comply with GASB standards could result in bond rating downgrades, higher costs to borrow, and/or denial of market access to long-term funding.

With Cases Notes on:

Brown v. Earthboard Sports USA, Inc.

Chesher v. Neyer

Prime Media, Inc. v. City of Brentwood

Teen Ranch, Inc. v. Udow

Crawford v. Marion County Election Board

Level 3 Comm. v. City of St. Louis

Parker v. District of Columbia

Parker v. Hurley

New York City Transit Auth. v. New York State Pub. Employment Relations Bd.