State & Local News
Vol. 22, No. 1, Fall 1998
Recent Developments
By Peter A. Buchsbaum
Interesting developments over the last few months include the following.
Property Tax Enhancement-Polluted Property-Constitutionality
The Minnesota Supreme Court has upheld an unusual property tax on the amount of market value reduction that is granted for property tax purposes because of the presence of contaminants. Most significant for other states is the court=s rejection of an attack on the statute based on the tax uniformity requirement contained in the Minnesota Constitution and in many other state constitutions. The taxpayer had argued that singling out the contaminated property for an extra property tax burden beyond its fair market value violated the uniformity clause. Westling v. Mille Lacs County, 67 U.S.L.W. 1060 (July 9, 1998).
Cigarette Advertising-Preemption
The District Court for the Northern District of Illinois held on July 29 that a City of Chicago ordinance imposing substantial restrictions on the advertising of cigarettes in "publicly visible locations" was preempted by the federal Cigarette Labeling and Advertising Act. Chicago had followed a Baltimore ordinance sustained by the Fourth Circuit. However, the Illinois district judge rejected the Fourth Circuit's approach and found the ordinance occupied the same field as the federal law which specifically stated that cigarettes, which were properly labeled under federal law, should not be subject to state law advertising or promotional restrictions. Federation of Advertising Industry Representatives v. Chicago, 67 U.S.L.W. 1089.
Sovereign Immunity-Fair Labor Standards Act-State Courts
Citing Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996), the Maine Supreme Court has rejected efforts to enforce in state court the requirements of the Fair Labor Standards Act (FLSA) with respect to state employees. Accordingly, it dismissed a suit by a state probation officer seeking overtime pay under the FLSA. The court held that while the Eleventh Amendment was not strictly applicable - it only dealt with suits against states in federal courtC the thrust of that amendment, and principles of sovereign immunity, would be violated if the state were forced to entertain an identical suit under federal law in state court. The court's approach would appear effectively to doom any FLSA protections for state employees. Alden v. Maine, 67 U.S.L.W. 1094 (Aug. 4, 1998).
Notwithstanding the above, the Seventh Circuit has ruled that the states are not immune under the Eleventh Amendment and Seminole Tribe from suits under the Equal Pay Act. Warner v. Illinois State University, 67 U.S.L.W. 1070 (July 21, 1998) .
Visual Impact-Big Box Retailers
After a lengthy controversy, the North Elba, New York, Planning Board rejected a Wal-Mart which was to be located on the road leading to the historic and scenic city of Lake Placid - nestled among the high peaks of New York's Adirondack Preserve. The Appellate Division of the New York Supreme Court has just affirmed the Planning Board's action. The court specifically found that rejection was justified because of the noticeable change in the visual character of the area that would be caused by the Wal-Mart. The court also found that the impacts on Lake Placid, as a resort and tourist town, justified the Planning Board's finding that the use, though permitted, was not desirable at the location in question which was partially within a scenic preservation overlay area. This area was established to protect the view of a nearby mountain on which many Olympic events had taken place during the two times the Winter Olympics were held in Lake Placid. Wal-Mart Stores, Inc. v. Planning Board of North Elba, 668 N.Y.S.2d 774.
Chicago Navy Pier-Free Speech
Since our Section has had several meetings on Navy Pier, we note that the Seventh Circuit just ruled that the Pier's sidewalks are not traditional public forums. Thus, leafleting and distributing t-shirts had to be permitted on the Pier even though demonstrations and speeches inconsistent with the Pier's commercial functions could be banned. Also, Chicago could not rent the Pier for $1.00 to the Democratic Party for an event while charging other, less respectable(?) groups full fees for use. The next column may contain a report as to whether this opinion resulted in any change in the Pier visible during the mid-September State and Local Government Law Section Council meeting. ACORN v. Metropolitan Pier and Exposition Authority, 67 U.S.L.W. 1074 (July 21, 1998).
New Jersey School Reform
And finally, after over a quarter century of litigation, the New Jersey Supreme Court has ended its involvement with school finance litigation by essentially approving Governor Whitman's plans for school reform. To win court approval, the state had agreed to engage in thoroughgoing curriculum reform in the twenty-eight urban needs districts and also to assist the construction of over $1 billion in inner city school buildings. The court also ordered the Commissioner of Education to implement full-day kindergarten as well as half day pre-school programs for three and four year olds as expeditiously as possible in these districts. Abbott v. Burke, 710 A.2d 450 (May 21, 1998).
Now that summer is over, please send your interesting, bizarre, or unusual cases to me at pbuchsbaum@greenbaumlaw.com.
Peter A. Buchsbaum is chair of the Section's Land Use Committee and practices law with Greenbaum, Rowe, Smith, Ravins, Davis & Himmel in Woodbridge, New Jersey.
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