October 23, 2012

Vol.40, No.3, Summer2008

Vol. 40, No. 3, Summer 2008

Publication Date: September 10, 2008



Daniel R. Mandelker, Legislation for Planned Unit Developments and Master-Planned Communities, 40 URB. LAW. 419 (Summer 2008) . Planned unit developments are the major share of suburban and infill development in many metropolitan areas. They are a complex form of land development that requires statutory authority for sophisticated regulation, but in many states this authority is either missing or inadequate. This statutory failure raises a serious problem that imperils the legality of planned unit development regulation in many jurisdictions.

This article discusses the legislation that is needed to authorize the regulation of planned unit development at the local government level, and the legislative authority this legislation must contain. It first discusses the planned unit development concept, and the statutory authority problem created when zoning statutes do not authorize their regulation. It finds that case authority upholding planned unit development regulation when there is no statutory authority is weak. The article then reviews examples of proposed model legislation that authorizes regulation and finds it is inadequate to cover the statutory authority problem. It then reviews existing state legislation for planned unit developments, concludes that statutory authority is nowhere complete, and that more attention must be given to legislation that can successfully authorize the regulation of planned unit developments.

J. Spencer Hall, State Vested Rights Statutes: Developing Certainty and Equity and Protecting the Public Interest, 40 URB. LAW. 451 (Summer 2008). This article discusses the uncertainty surrounding vested rights disputes in the real property development context. Although the vested rights doctrine has long been established by common law, the doctrine is unclear and gives developers little guidance for calculating the risk associated with new projects, as the modern application yields unpredictable and often times unfair outcomes. Eighteen states have implemented legislation in attempt to clarify the problematic aspects of vested rights disputes. The author analyzes these statutes, which vary considerably in scope and application, in attempt to create a comprehensive approach to vested rights. Although each state takes a different approach to vested rights, the author makes several suggestions that, if implemented, could create equity and certainty for real estate developers.

Casey T. Wallace & Sandy D. Hellums, A Long and Winding Road: Federal Funding for Interstate Toll Roads, 40 URB. LAW. 495 (Summer 2008). Toll roads enjoy a long and storied history as an integral part of the national interstate highway system. From the earliest Pennsylvania turnpike built in the late 1700s to the controversial I-69 toll project, toll roads have been consistently utilized by the states as an alternative means of designing and funding new road projects. As concerns about congestion, the environment, and lack of funding increasingly plague state transportation agencies, the toll road concept has grown in popularity. The federal government—long opposed to the funding of interstate toll roads—loosened the purse strings in the early 1990s and began providing some federal funds for toll road construction. This tide seems to have turned as several large scale toll road projects have suffered recently at the hands of Congress. This Article examines the development of federal funding for toll roads as it has evolved from the creation of the Interstate highway system. Federal funding for Interstate toll roads has long been a contentious issue and Congressional support for such programs has gone full circle—from an almost complete prohibition at the Interstate highways inception, to innovative new toll project pilot programs, and back again.

Ashley L. Taylor, Jr., Anthony F. Troy & Katherine W. Tanner Smith, State Attorneys General: The Robust Use of Previously Ignored State Powers, 40 URB. LAW. 507 (Summer 2008). This article examines several instances over the past decade, such as the tobacco Master Settlement Agreement and Microsoft antitrust cases, and describes the processes used by modern-day state attorneys general in dealing with the complex issues facing the several states. Traditionally, state Attorneys General took a focused, “silo approach” to investigating a company for wrongdoing, focusing on antitrust, Medicaid fraud, consumer fraud, or criminal charges. Companies responded to these investigations in the same narrow way with a focused defense that did not consider or guard against other possible claims the Attorney General could assert. Today, the trend for these investigations is heading toward a "war on all fronts" with state Attorneys General using more of the power and resources they have always had to investigate companies. State Attorneys General are using a multi-faceted and often multi-state strategy to launch high pressure investigations against companies. By using this approach, state Attorneys General are maximizing the monetary and non-monetary settlements they receive.

Robert B. Foster, A Novel Application: Recent Developments in Judicial Review of Land Use Regulation of Cellular Telecommunications Facilities under the Telecommunications Act of 1996, 40 URB. LAW. 521 (Summer 2008). Courts must balance the goal of extending cellular telecommunications coverage with the rights of local governments to regulate land use. In his annual review of the interplay between land use regulations and the Telecommunications Act, Robert Foster summarizes the 2007 litigation as adding a “new weight . . . to the balance.” The cellular industry has traditionally attacked land use regulations under the judicial review provisions in § 332(c)(7) of the Act. Recently, the industry has taken a new approach by successfully challenging zoning ordinances under § 253(a), the Removal of Barriers to Entry provision of the Act. This report discusses the impact of this new approach on judicial interpretation of the Act and how it has impacted local attempts at regulation.

Paul D. Wilson, Of Synagogues and Nude Juice Bars: Can a Municipality Settle Land Use Litigation Without a Permitting Process?, 40 Urb. Law. 535 (Summer 2008). This article examines conditional use permits and the appropriateness of settlement agreements between municipalities and controversial zoning permit applicants. The author examines a recent ninth court decision, League of Residential Neighborhood Advocates v. City of Los Angeles, in which the court struck down a settlement agreement between a city and an Orthodox Jewish synagogue wishing to locate in a residential zone, finding that the settlement was not a substitute for a conditional use-permit. The author then examines several analogous cases which present variations of the issue and possible solutions for municipalities.

Edward J. Sullivan, Recent Developments in Comprehensive Planning Law, 40 URB. LAW. 549 (Summer 2008). Sullivan updates his annual research on courts’ view of the import of a comprehensive plan in evaluating land use regulations and decisions. The author reviews and cites specific cases decided over the past year in which state courts adopt either the unitary view, the planning factor view, or the planning mandate view of the relevance of the comprehensive plan. The cases decided this year reflect the growing view by courts that comprehensive plans should be given great weight in evaluating land use decisions.

Patricia E. Salkin, Crime Doesn’t Pay and Neither Do Conflicts of Interest in Land Use Decisionmaking, 40 URB. LAW. 561 (Summer 2008). This article discusses the ethical and sometimes criminal dilemmas that can arise when municipal officials that participate in community development decisions have invested interests in the outcomes of those decisions. The author examines the common situations that give rise to potential conflicts of interest, as well as the legal and/or criminal implications of an ethical violation.

W. Andrew Gowder, Jr. & Bryan W. Wenter, Recent Developments in Exactions and Impact Fees, 40 URB. LAW. 587 (Summer 2008). The contours of the laws governing exactions and impact fees continue to evolve. In recent years, the authors have reviewed cases that explored local government’s authority to impose exactions and impact fees. Such 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 governmental regulation. The recurrent issues are whether the governmental action is legislative or adjudicative, whether the Nollan and Dolan rules apply to the exaction or fee, and whether the exaction or fee is properly tied to capital expenditures for the infrastructure needed to serve a particular development. This year’s report on the latest developments in exactions and impact fees addresses these commonly litigated issues, along with the uncommon circumstance of a local government encouraging private individuals to seize another’s private property.

Daniel Dalton, The Religious Land Use and Institutionalized Persons Act Update, 40 URB. LAW. 603 (Summer 2008). The Religious Land Use and Institutionalized Persons Act (RLUIPA), passed by Congress in 2006, was almost immediately put to the test in the courts. In this update, Dan Dalton provides an overview of recent (2007) litigation surrounding the key components of the Act. He offers a concise summary of each case, identifying the facts and holdings most important to professionals practicing in this area. He then reviews the issues most likely to face further consideration by the courts.

Jesse W. Abair, Green Buildings: What It Means to Be “Green” And the Evolution of Green Building Laws, 40 URB. LAW. 623 (Summer 2008). This article examines the increasingly important area of environmentally-friendly construction and building maintenance techniques. The author discusses what makes a building “green”, specifically focusing on the Leadership in Energy and Environmental Design (LEED) rating system. The author also discusses the current and proposed avenues lawmakers are suggesting to promote environmentally-friendly construction techniques.

Lelia B. Helms & James D. Jorgensen, Recent Developments in Public Education Law: Postsecondary Education, 40 URB. LAW. 633 (Summer 2008). This article is a comprehensive review of cases involving higher education issues that were included in West’s Education Law Reporter in the past year. Courts at all levels ruled on roughly 325 cases, although none of the issues were addressed directly in Supreme Court opinions. The article focuses on major cases, and the issues include student Constitutional rights, financial aid, employee rights, institutional rights, intercollegiate athletics, accreditation, testing, and technology.

Book of Note
ROBERT FREILICH & S. MARK WHITE, 21ST CENTURY LAND DEVELOPMENT CODE (American Planning Association 2008) Reviewed by Daniel R. Mandelker, 40 URB. LAW. 667 (Summer 2008).

With Cases Notes on:

Miller v. Brown

Braun v. Ann Arbor Charter Twp.

Graoch Assocs. v. Louisville/Jefferson County Metro Human Relations Comm'n

Murphy V. Cockrell

Rement Corp. & US Fire Insurance Co. v. City of Chicago

NRDC v. Winter

Pac. Merch. Shipping Ass'n v. Goldstene

Nelson v. Dean

Mount St. Scholastica, Inc. v. City of Atchison, Kansas

City of Okoboji v. Okoboji Barz, Inc.

Nouhan v. Bd. of Adjustments

Riley v. R.I. Dep't of Envtl. Mgmt

Oakbrook, 7th Addition Homeowners Assoc. v. Newhouse