October 23, 2012

Vol. 41, No. 4, Fall 2010

The Urban Lawyer


Vol 41, No. 4 Fall 2009 

Publication Date : January 19, 2010


J. David Breemer, Ripeness Madness: The Expansion of  Williamson County ’s Baseless “State Procedures” Takings Ripeness Requirement to Non-Takings Claims , 41 Urb. Law. 615 (Fall 2009).
In this article, David Breemer critically examines the extension of Williamson County’s state procedures ripeness requirement to claims beyond takings claims. Breemer argues that the extension is improper given the origin and limited scope of the state procedures requirement, precedent establishing critical differences between the standards, injuries and remedies relevant to a takings claim and those applicable to other claims, and precedent allowing multiple causes of action from the same facts. Ultimately, Breemer concludes, the state procedures ripeness requirement must be abandoned because it is doctrinally bankrupt and dysfunctional in practice. In the meantime, courts must cease applying this takings ripeness doctrine to due process and equal protection property claims because there is no authority for this trend, and its amounts to a jurisdictional coup d’état that illegally rescinds 42 U.S.C. § 1983 for property owners.

Gary D. Taylor & Mark A. Wyckoff, Intergovernmental Zoning Conflicts Over Public Facilities Siting: A Model Framework for Standard State Acts, 41 Urb. Law. 653 (Fall 2009).
Professors Gary Taylor and Mark Wycoff examine the problems of public facilities siting with the goal of developing a more comprehensive solution that will be acceptable to legislators in Standard Acts states. While two organizations have undertaken major efforts in the last thirty-five years to develop model state land use codes that respond to the current challenges of growth and change, the 1976 American Law Institute’s Model Land Development Code  and the 2002 American Planning Association’s Growing Smart SM Legislative Guidebook, only a few relatively fast-growing states have incorporated select concepts into their own laws, or undertaken serious growth management efforts of their own. This evidence suggests that state legislatures, by and large, remain unwilling to divest local governments of their broad authority over land use matters. Given the likelihood that planners’ projections of population growth and municipal expansion are accurate, what is needed is a new “model” that is an improvement over existing (or nonexistent) piecemeal, uncoordinated approaches and, at the same time, politically palatable for legislators in these states. This article suggests the framework for a new model state law that will meet this need for Standard Act states. In this context “model” is not meant to be synonymous with “ideal,” but rather to represent a workable, replicable solution to intergovernmental conflicts over facility siting. It builds on the lessons learned from judicial tests, existing legislation, and previous model codes, while taking into account the reality that Standard Act states have shown little willingness to create new state agencies, give existing state agencies new oversight responsibilities, or divest local governments of the primary responsibility for land use decision-making, even on issues of greater-than-local concern.

  Lauren Ashley Smith, Alternatives to Property Tax Increment Finance Programs: Sales, Income, and Nonproperty Tax Increment Financing, 41 Urb. Law. 705 (Fall 2009).
In her article, Lauren Smith, a former student of Professor Dan Mandelker, examines state and local tax increment financing programs based on taxes other than the property tax. Smith’s article analyzes the benefits of including nonproperty taxes in the tax increment, most notably early repayment of project costs, and the adverse effects of such programs, including the volatility of nonproperty tax revenues, the diversion of additional revenue from taxing jurisdictions, and the discouragement of noncommercial development projects. This analysis incorporates examples of how some states’ nonproperty tax increment finance programs have effectively balanced increasing the availability of revenues to retire project debt while limiting the negative impact of tax increment financing on taxing jurisdictions. Smith concludes by finding that the inclusion of nonproperty taxes in the tax increment is preferable to repaying development costs with property taxes alone, and that the adverse effects of capturing both property and nonproperty tax increments can be limited by specific statutory provisions.

Phillip J.F. Geheb, TIF Bonds as Debts Understate Constitutional Debt Limitations , 41 Urb. Law. 725 (Fall 2009).
In this paper, Philip Geheb, Professor Dan Mandelker’s former student, examines state court approaches to whether TIF obligations constitute constitutional debt. After first providing a general background on TIF projects and the process of issuing TIF bonds, Geheb summarizes the variety of forms of state constitutional debt limitations, including debt ceilings and public referenda, their purposes and their inconsistencies. The article then examines and analyzes how state courts apply the public authority, special fund, and moral obligation and non-appropriation debt doctrines to TIF bonds. Finally, this article discusses the tensions TIF presents for state courts interpreting constitutional debt limitation provisions and suggests that the current economic crisis may persuade courts to adopt a more conservative approach in future TIF bond challenges.

  Laura M. Bassett, Tax Increment Financing as a Tool for Redevelopment: Attracting Private Investment to Serve a Public Purpose—The Example of Michigan , 41 Urb. Law. 755 (Fall 2009).
Laura Bassett addresses the role of TIF in the redevelopment of Detroit and larger economic revival of the state of Michigan, though the information presented is applicable to any economically depressed area seeking to increase revenues. She presents the legal framework for TIF, including constitutional limitations that may apply to TIF. Since TIF involves the use of public tax revenues to fund improvements that may benefit private entities, Michigan courts have analyzed the constitutionality of TIF plans with respect to the diversion of tax revenues, limitations on state and municipal lending of credit and the public purpose doctrine. Part III discusses public policy implications of TIF, including criticisms that TIF provides economic benefits to private businesses while existing tax revenues fail to meet other, more pressing municipal needs. TIF has also, and perhaps most convincingly, been challenged for relying on overly optimistic predictions of market growth, which if unmet, may cause a municipality to dip into other funds or issue additional bonds to service the debt. Part III also presents the importance of TIF to revitalize distressed Michigan cities and summarizes some of the projects TIF has been used to fund in the City of Detroit. In her article, Bassett concludes that TIF can effectively stimulate private investment in an area where other incentives have been ineffective or insufficient. TIF remains a viable option to further the public purpose of economic development in Detroit, the revitalization of which depends on the availability of significant incentives, and throughout the State of Michigan.

  David Ray Papke, Keeping the Underclass in Its Place: Zoning, the Poor, and Residential Segregation, 41 Urb. Law. 787 (Fall 2009).
In his article, Professor Papke of Marquette University explores the complex and sometimes contentious recognition of the underclass by state and local governments that started in the late 1970s. In the first section, he outlines how suburban zoning ordinances keep the underclass out of the suburbs. In the second section, he examines the difficulties a complainant might encounter in challenging such zoning as unconstitutionally exclusionary. Professor Papke highlights the reasons the suburbs might want to keep the underclass out and also reflects on why the power structure in general would want the underclass to remain concentrated in the center-cities. Papke captures an oppressive aspect of American life and the role law plays in it.

  Joseph Michaels, Amortization and the Constitutional Methodology for Terminating Nonconforming Uses, 41 Urb. Law. 807 (Fall 2009).
In his article, which earned second place in the APA’s Smith-Babcock-Williams writing competition, Joseph Michaels considers the problems of nonconforming land uses, long a thorn in municipalities’ sides. Traditionally, three primary methods of terminating nonconforming uses existed—abandonment, discontinuance, and destruction—but none of those methods gave a governing body proactive control in the termination. Governing bodies were forced to wait patiently for some act, or failure to act, to extinguish the nonconforming use. Amortization is vastly different in this regard. Amortization allows a municipality to regulate the termination of a nonconforming use at the expense of the property owner. While it does not extinguish title to the land, it does extinguish a particular, often profitable, but no longer permissible use of the land. Consequently, amortization raises both takings and due process claims. This article addresses those challenges to amortization.

With Cases Notes on :

Equity Lifestyle Properties, Inc. v. County of San Luis Obispo

Nordyke v. King

Poirier v. Mass. Dep’t of Corr.

Cooper v. SEPTA

Lonberg v. City of Riverside

Rose Acre Farms, Inc. v. United States  

Ohio ex rel. Scaggs v. Brunner

In re Sony BMG Music Entm’t

North County Community Alliance, Inc. v. Salazar

Washington v. Chu

Palmer/Sixth Street Properties, L.P. v. City of Los Angeles

Lee & Lamont Realty v. Planning and Zoning Comm’n of Vernon

Randolph v. City of Brigantine Planning Bd.