American Bar Association
Section of State and Local Government LawState & Local News
Vol. 23, No. 3, Spring 2000
RECENT DEVELOPMENTS
By Peter A. Buchsbaum
Local governments provides endless fascination. There are tens of thousands of them in our country. Each is different in important ways. Even so, many across the country have similar problems that deeply affect our society. There is thus good reason on the national level to try to address some of the problems that local governments face.
This "Recent Developments" column starts with three such ongoing efforts. Pride of place, as the most comprehensive, goes to the American Planning Association's (APA) Growing SmartSM Project, and its just released special report entitled Planning Communities for the 21st Century. This is an overview at century's end of the state of the states in the reform of planning enabling laws. The explosive growth of "Edge Cities," with their large consumption of undeveloped land, traffic snarls, and lack of inexpensive housing, have resulted in a nationwide debate over better land-use planning tools. Having edited a book just seven years ago in which we struggled to get reports on ten states, I can only admire the APA's comprehensive survey of all fifty jurisdictions' efforts to improve state planning legislation.
The monograph includes in depth profiles of six states that have gone further than others (although they may be giving New Jersey, my home state, too much credit) and a profile by this Section's Patty Salkin of the balance. Of great interest also are the introductory essays by Stuart Meck, principal investigator for the Growing SmartSM project, and Rodney Cobb, a senior staff attorney at the APA. The Meck essay describes the principal characteristics of the current planning reform movement while the Cobb essay asks a more normative question-what should be the elements of good local planning? He suggests that the occasionally overlooked subjects of affordable housing and economic development need to be considered by local land-use commissions. Copies of the special report may be obtained by calling the APA at either 202-872-0611 or 312-431-9100.
The second effort may be a classic attempt to fit a square into a circle. Last June, this Section and the Rocky Mountain Land Use Institute hosted a three-day retreat on the takings issue. We hoped that a group of experts representing diverse viewpoints might be able to agree on directions in this very confused and convoluted area of the law that implicates the daily stuff of land-use regulation. The retreat produced a report written/compiled by this author that deals with ripeness, partial takings and segmentation of property, investment-backed expectations, and temporary takings. Needless to say there were strong dissents, both at the retreat and afterwards, because the report expressed dissatisfaction with much of existing law, especially the confusion caused by the ripeness doctrine as expounded in Williamson County. The International Municipal Lawyers Association has convened a special task force to consider the Report at its midyear meeting in Washington in April. The Section Council will be considering whether to approve the report and recommend it to the ABA House of Delegates at the Section's Spring Meeting in Scottsdale, Arizona, May 4-7, 2000. The full text of the report is available at the Section's webpage at www.aba.org/statelocal and has been published on the Section's land-use List Serve, which you are welcome to join (visit the Section website for information). We welcome any and all comments. This is a debate that no local government practitioner can ignore.
The third effort, regarding national standards for the siting of group homes under the Federal Fair Housing Act, is described in depth elsewhere in this issue. As with the takings issue, the Section has been involved in the debate. Two of the key participants in the Group Home study, Cameron Whitman, for the National League of Cities, and Michael Allen, convener of the Coalition of Preserve the Fair Housing Act, a group of advocates for people with disabilities, appeared at a Section panel during the ABA Annual Meeting in Atlanta last summer. Their comments at that time showed that there was a prospect of at least some consensus on this fractious interaction between federal civil rights goals and local autonomy. The study can be obtained from the National League of Cities by writing to NLC Publications Center, P.O. Box 491, Annapolis Junction, MD 20701, or by sending an e-mail to www.nlc.org. It is a fascinating document in that it explicitly spells out areas where municipalities and the coalition agree and where they disagree.
The discussion of recent doings outside the courts does not leave as much room as usual for the case law update. One item is a particular attention grabber, however. On remand from the U.S. Supreme Court, the Federal District Court for Western Texas has held that the Texas IOLTA program did not constitute a taking. The Supreme Court had found that the interest on small trust accounts given to the Texas' and clearly other states' IOLTA programs was the private property of the account holders. This holding appeared likely to doom IOLTA efforts which took the interest on these accounts and used them for public purposes, often Legal Services programs. However, the Western District found that these small accounts would never have earned interest had they not been aggregated into the IOLTA program-the costs of maintaining such small sums in an interest bearing account would have eaten up the interest earned. Therefore, no taking occurred because the owners had not suffered any economic loss and the program had not frustrated reasonable expectations of earning interest. Washington Legal Foundation v. Texas Equal Access to Justice Foundation, 68 L.W. 1451 (W.D. Tex. Jan. 28, 2000).
Finally, read page 14 of the January 19, 2000 issue of the Land Use Law Report if you want to see-in contrast to its national implications-how "down-home" local government can get. On that one page is a case from the Maine Supreme Judicial Court holding that only full-time residents, and not summer residents, could have boarders under the South Portland, Maine, zoning ordinance. Next door, and in the next column, the New Hampshire Supreme Court found that an unsalaried family member counted as an employee that made the family business exceed the employee limit for customary home occupations. Nothing like the vigilance of neighbors making sure that our local laws are not breached.
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.
State & Local Law News home page | Table of Contents
State and Local Government Law home page
ABA Network home page