October 23, 2012

Vol. 39, No. 4, Fall 2007

Vol. 39, No. 4, Fall 2007

Publication Date: January 22, 2008



Julie M. Cheslik, Andrea McMurtry & Kristin Underwood, Supreme Court Report 2006–2007: Closing the Courthouse Doors?, 39 Urb. Law. 739 (Fall 2007). The expectation that the Court would shift to the right came to fruition in the 2006–07 term if not by its decisions on the merits, by the sheer lack of clear decisions on the merits. Time and again, the Court decided cases on the standing issue, never reaching the merits and frustrating litigants and citizens attempts to define their rights. Yale law professor Judith Resnick went so far as to call this term “the year they closed the courts.” Many of the cases that were decided were sharply divided resulting in numerous 5–4 splits, and even 4–4 decisions in eagerly anticipated cases. It was a “series of very vigily divided five to four decisions” that seemed to be the principal cases of the term. Chief Justice Roberts arguably failed to bring about the “harmony and unanimity” he was aiming for when he testified before the Senate Judiciary Committee stating that he “would be working more and more toward . . . consensus” this term, “getting away from these 5–4 decisions.” The Court issued only sixty-eight signed opinions this term, the fewest total number of cases the Court has decided since 1953, with 24 of the 68 being decided by a 5–4 margin. Even the conservatives were split among themselves on occasion.

Steven J. Eagle, Does Blight Really Justify Condemnation?, 39 Urb. Law. 833 (Fall 2007). This article asserts, contrary to existing law, that blight condemnation is inconsistent with the fundamental distinction between eminent domain, which arrogates private goods for public use, and the police power, which protects the public from harm. When conditions on a parcel constitute a threat to public health and safety, the landowner should be ordered to abate. If the owner is unable or unwilling to do so, the dangerous condition should be abated by government under its police power. The cost of abatement should be treated as a betterment assessment, which becomes a lien on the land and, if unpaid, should result in a foreclosure sale. Thereafter, the land could be redeveloped by the purchaser or its designee. One practical result of abatement and foreclosure is that an owner has an incentive to abate, or to sell to a neighbor or redeveloper who would abate, perhaps in combination with abatement on other nearby parcels similarly situated. Should the parcel go through foreclosure, its redeveloper is selected through a transparent process of competitive bidding. This likely would reduce unjustified blight condemnation resulting from rent seeking manifested through political favoritism towards selected redevelopers. Also, re-channeling redevelopment through market actors would reduce grandiose and wasteful redevelopment schemes.

Edward H. Ziegler, American Cities, Urban Planning, and Place-Based Crime Prevention, 39 Urb. Law. 859 (Fall 2007). Nearly a generation after Oscar Newman first wrote about the issues of place-based crime prevention and defensible space, cities large and small throughout the world are showing interest in what is now generally known as the field of “Crime Prevention Through Environmental Design” (CPTED). This field of research is influencing the physical design of projects in the revitalization and redevelopment of both central cities and older suburban areas. The goals of CPTED are to increase public safety and to promote a sense of physical security through the physical design and planning of the built environment. In the later part of the twentieth century, American cities took a new interest in managing urban planning and design of the built environment with the hope of utilizing place-based crime prevention principles to reduce urban crime generally and, in particular, to deal with the high level of criminal activity at low-income public housing projects and its disproportionate impact on the poor and less affluent. This article provides a brief overview of the literature related to CPTED principles and programs and of the local governmental legal mechanisms and regulatory devices used in the implementation of CPTED principles and programs by American cities.

Randall W. Sampson, Theory and Practice in the Granting of Dimensional Land Use Variances: Is the Legal Standard Conscientiously Applied, Consciously Ignored, or Something in Between?, 39 Urb. Law. 877 (Fall 2007). The variance process allows for an exemption from the strict application of the land use regulations under certain circumstances. Like the rezoning process, consideration of a variance request typically takes place in a quasi-judicial forum, but most often is conducted by a board of adjustment, board of zoning appeals, or similarly titled citizen board rather than a planning commission or the municipality’s governing body. The inherently narrower focus on whether the application of a particular land use regulation to a particular member of the community is fair, combined with the usual absence of opposition from neighboring landowners, may well create a different dynamic or psychology among members of variance-granting boards, or place a different set of pressures upon them. Variance-granting boards, unlike planning commissions and other land use boards, historically have been seen as frequently engaging in an abuse of their limited authority, manifested in the granting of an excessive number of variances under circumstances in which a reasonable application of the relevant approval criteria to the facts of individual cases would strongly suggest different outcomes. Indeed, a grand and cohesive body of literature, impressive in both its size and continuity over decades, has developed to give credence to the historically questionable reputation of the variance-granting board. It is this reputation that is, in a geographically limited way, revisited and examined in this article.


Janice C. Griffith, Recent Developments in Public Finance Law: Special Tax Districts to Finance Residential Infrastructure, 39 Urb. Law. 959 (Fall 2007). The need for infrastructure construction and financing in undeveloped areas that are ripe for residential development has spurred the creation of special districts that function very much like private corporations. Once a locality approves the formation of such a district to operate within its jurisdiction, the district manages its affairs with little governmental oversight. In Florida, these districts are called community development districts, and a number of them have been created. In 2007, the Georgia General Assembly passed comparable enabling legislation authorizing the creation of infrastructure development districts. This article focuses on the Florida and Georgia privatized infrastructure model designed to facilitate new residential developments.

Ronald Kramer, Recent Developments in Government Operations and Liability: Garcetti v. Ceballos: The Battle over What It Means Has Just Begun, 39 Urb. Law. 983 (Fall 2007). In May 2006, in a 5–4 decision, the Supreme Court held in Garcetti v. Ceballos that public employees who make statements pursuant to their official job duties are not protected by the First Amendment and are subject to discipline by their employers. Free speech advocates no doubt feared that it would quell employee free speech. Public employers likely hoped it would restore their control over the public workplace and eliminate unnecessary litigation. While the dust has yet to settle, the early results indicate that the ultimate impact of Garcetti will be litigated long into the future.

James D. Jorgensen & Lelia B. Helms, Recent Developments in Public Education Law: Postsecondary Education, 39 Urb. Law. 1017 (Fall 2007). Courts in 2006 continued to define the parameters of student and institutional rights and obligations with respect to numerous constitutional, statutory, and common law provisions. In particular, the courts issued important rulings on First Amendment concerns, sex and disability discrimination issues, immunity under the Eleventh Amendment, search and seizure rights, open records law, and the False Claims Act. The author’s review of postsecondary education cases follows the same format as in previous years where they cover cases reported in West’s Education Law Reporter for the 2006 calendar year. Both federal and state cases are included when instructive to practicing attorneys. The review begins with cases involving students before turning to cases focused on employee and institutional issues.

With Cases Notes on:

Ye v. United States • 1045

First Am. Title Co. v. Devaugh • 1046

U.S. EEOC v. City of Independence • 1047

 Citizens for Clean Gov’t v. City of San Diego • 1048

Flint v. Dennison • 1049

In re NOS Communications • 1050

Forest Guardians v. U.S. Forest Service • 1052

 Prairie Band of the Potawatomi Nation v. Wagnon • 1052

IMS Health, Inc. v. Ayotte • 1054

Hernandez v. City of Hanford • 1055

Glenn v. State • 1056

Steffes v. City of Lawrence • 1057

Centene Plaza Redev. Corp. v. Mint Props. • 1058

Comm. for a Better Twin Rivers v. Twin Rivers Homeowners’ Ass’n • 1059

 Okeson v. City of Seattle • 1060