October 23, 2012

Vol. 40, No. 4, Fall 2008

Vol. 40, No. 4, Fall 2008

Publication Date: January 26, 2009



Jerry L. Anderson, Aaron E. Brees & Emily C. Reninger, Study of American Zoning Board Composition and Public Attitudes Toward Zoning Issues, 40 URB. LAW. 689 (Fall 2008). Important land use decisions are often made by local administrative bodies composed of citizens appointed by the mayor or city council. Courts accord those decisions a presumption of validity and employ a deferential standard of review, which is based in large part on the premise that they are neutral administrative bodies. Unfortunately, that may not be the case. In 1937, Dr. Robert Walker conducted a survey of thirty-one of the largest cities in the country to determine the occupations of their planning commission members. Walker’s study showed that about 80% of commission members were drawn from what he called the professional and technical class, including business owners, lawyers, architects, engineers, and realtors. Of course, he recognized that members of those occupations provided the necessary expertise concerning planning options. Nevertheless, Walker was concerned that the resulting commission membership failed to represent a cross-section of the community, and that blue-collar interests, in particular, were almost entirely excluded from the decision-making process.

In this Article, Professor Jerry Anderson and his co-authors reveals the results of his survey replicating Walker’s study to determine whether, seventy years later, zoning boards in the United States continue to be populated primarily by white-collar members, especially those tied to development and business interests. The study gathered data on the occupational composition of both the Planning & Zoning Commission (P&Z) and the Board of Zoning Adjustment (BZA) for 137 of the nation’s largest cities and analyzed the occupations of 442 BZA members and 982 P&Z Commission members. The results confirm that these boards have not changed much from Walker’s 1937 study. In addition, zoning boards continue to be dominated by a few types of occupations: business owners, developers, attorneys and politicians. These results, however, raise the question of whether the occupational skew makes a real difference in the planning and zoning decision-making process. In order to address that issue, the authors conducted a survey of citizens to solicit their opinions on various controversial land use issues and sought to determine whether the views of the ordinary citizen differ from the views of the typical representative of the professional, managerial, and technical class. The authors also explored how other demographic factors, such as race, age, income or educational level, correlate with zoning attitudes and reached some surprising conclusions.

Julie M. Cheslik, Aimee Morrison & Tyler J. Scott, Supreme Court Report 2007–2008, 40 URB. LAW. 747(Fall 2008). This article reviews the decisions of the U.S. Supreme Court for the 2007-2008 Term that are of particular relevance to state and local governments including those involving voting and elections, speech, class-of-one equal protection claims, immunity, taxation, preemption, and the Fourth and Sixth Amendments. Against the backdrop of the 2008 presidential election between Democrat Barack Obama and Republican John McCain, and an economy plagued by recession and federal bailouts of the finance and mortgage industries, the Court continued in a largely conservative vein, reflecting the policies and predilections of the majority of justices. The Court reasserted its distaste for unfettered punitive damage awards, and facial constitutional challenges, but continued to enforce the habeas rights, as it did last Term, of those caught up in the Bush administration’s far-reaching war on terrorism. For state and local government lawyers and officials, the Court gave with one hand and took away with the other, sometimes enforcing the decisions of states and local governments as the Court did when it upheld the Indiana voter identification law in Crawford, but other times leaving them adrift as the Court did in Heller when it struck down the District of Columbia’s attempted solution to the problem of urban gun violence.

Gerald A. Fisher, The Comprehensive Plan Is an Indispensable Compass for Navigating Mixed-Use Zoning Decisions Through the Precepts of the Due Process, Takings, and Equal Protection Clauses, 40 URB. LAW. 831 (FALL 2008). This article begins with a review of the history of zoning with an emphasis on notable Supreme Court cases wherein the Court repeatedly upheld zoning ordinances which insulate single-family uses from non-residential uses. Mr. Fisher notes that the comprehensive plan has provided the guidance needed for communities to create valid zoning ordinances that honor the separation of uses. With the advent of mixed-use zoning, Mr. Fisher cautions communities to review how authorizing mixed uses in a single-family zone relates to the comprehensive plan. As Mr. Fisher points out in this article, “this new zoning format may amount to an exercise of power that raises issues with constitutional implications.” Mr. Fisher identifies specific issues which could expose a community to challenges of mixed-use zoning under the Due Process, Equal Protection, and Takings Clauses. This article offers guidance to zoning authorities in order to withstand both facial and as-applied Due Process claims and the importance of avoiding exclusionary zoning to stave off Equal Protection claims. Mr. Fisher then provides two analyses under the Takings Clause: investment-backed expectations and reciprocity of advantage. In light of these types of constitutional challenges, Mr. Fisher concludes that “a community would be well advised to configure its comprehensive plan to serve as an indispensable compass for navigating mixed-use zoning decisions.”

John W. Ragsdale, Jr., Possession: An Essay on Values Necessary for the Preservation of Wild Lands and Traditional Tribal Cultures, 40 URB. LAW. 903 (Fall 2008). This article proposes a paradigm-shift for lawmakers and courts dealing with conflicts between threatened tribal lands and the demands of rational but cold free market economics, with the hope that both the endangered sites and the traditional tribal cultures can be paid their due respect and be afforded the protection they deserve.

Stacey Graham, ABCs of Stream Crossings: Reducing Flooding and Barriers to Aquatic Life Passage under Current Federal and State Regulation of Wetlands, 40 Urb. Law. 953 (Fall 2008). New wetlands mitigations rules and guidelines promulgated by the Environmental Protection Agency and the Army Corps of Engineers are meant to reduce flooding issues and eliminate barriers to aquatic life passage resulting from structural failures in stream crossings. However, these rules and guidelines have just added to the already complicated and time-consuming assortment of federal, state and local regulations that have flooded landowners with red tape and created barriers to applying for stream crossing permits. This article guides municipalities, developers and individual landowners through the various regulations related to stream crossings and provides information to assess risks associated with the acquisition and development of land parcels that require stream crossings. In addition, various legal challenges for delayed or denied stream crossing permits are highlighted and potential remedies are analyzed.

Books of Note

America Votes! A Guide to Modern Election Law and Voting Rights
Reviewed by Robert H. Freilich The Zoning of America: Euclid v. Ambler
Reviewed by Patricia E. Salkin

With Cases Notes on:

Air Transport Ass'n of America, Inc. v. Cuomo

Abner v. Kansas City S. Ry. Co.

Reliable Consultants, Inc. v. Earle

Chicago Lawyers' Comm. for Civil Rights Under Law, Inc. v. Craigslist

IFC Credit Corp. v. United Bus. & Indust. Fed. Credit Union

Budnick v. Town of Carefree

Green Party v. Land

City of Fort Smith v.McCutchen

State v. Harris

Clay County Realty Co. v. City of Gladstone

State ex rel. City of Blue Springs v. Nixon