State & Local News Vol. 22, No. 4, Summer 1999 RECENT DEVELOPMENTS By Peter A. Buchsbaum After a hiatus, we have the following breaking news from the legal front: Drug Testing-Public Schools-Extracurricular Activities The Eighth Circuit has held that public secondary schools may require students to agree to random drug tests if they wish to participate in extracurricular activities. Agreeing with the Seventh Circuit, the Court held that the public school environment provides a "lower expectation of privacy" and thus limits the scope of Fourth Amendment rights. The concerns about drug abuse justify the imposition of the testing requirement even where the school does not have a current severe drug problem and even where activities such as radio club, prom committees, or a quiz bowl are all that the student seeks to do. Miller v. Wilkes, 67 U.S.L.W. 1603 (8th Cir. Mar. 31, 1999). Telecommunications Act-Diversity of Rulings Recent cases suggest a trend in favor of municipalities under the federal Telecommunications Act of 1996, but still considerable ambiguity in the law. The District Court for New Jersey held in Cellular Telephone Co. v. Board of Adjustment of Ho-Ho-Kus, 24 F. Supp. 2d 358 (D.N.J. 1999) (yes, that town name is correct; I used to live near it) that a 125 foot monopole in a residential area could be excluded where it violated height and set back restrictions, lacked vacant space around the base of the monopole, and was located extremely close to a number of public facilities and a heavily traveled train line. The municipality also scored an initial victory in Town of Amherst v. Omnipoint Communications Enterprises, 27 LAND USE L. REP. 67 (Mar. 30, 1999). Denial of four 190 foot tall towers was held not to be an effective prohibition of personal wireless services in violation of the Act. The court suggested that Omnipoint had not shown that the denial constituted a total ban and that it was free to propose alternate plans. This ruling smacks of the feasible development proposal required to ripen Fifth Amendment takings cases-a requirement which would appear to have no place in the enforcement of a specific federal statute like the Telecommunications Act. In any event, the court, while refusing to overrule Amherst in this case, suggested that the sides settle and further suggested that Amherst had to show some flexibility under the Act by allowing towers somewhere. And in Aegerter v. City of Delafield, 27 LAND USE L. REP. 68 (7th Cir., Apr. 19, 1999) the court upheld a Wisconsin city's rejection of a 360 foot tall tower on its highest hill on the ground that the one way wireless paging service proposed by the applicant was not functionally equivalent to two-way cellular telephone service, and thus was not protected by the Act. Finally, the Ohio Supreme Court, applying Ohio law, held cell towers exempt from zoning under state statutes that preempted local control over public utility facilities in nonresidential areas. Campenalle v. AT&T Wireless Services, 67 U.S.L.W. 1588 (Ohio Sup. Ct. Mar. 24, 1999). Thus, the recent score card appears to be three losses for wireless towers under the Telecommunications Act with the only victory depending on a quirk of state law. Federal Fair Housing Act-Rezoning-Housing for the Handicapped While courts have held that a single unit group home residence must be allowed in a single family zone, relatively few have addressed the question of rezoning from single to multi-family use to accommodate housing for people with disabilities. The Seventh Circuit now has ruled that rezoning a single family lot for multi-family use at 8.7 units per acre is not required under the Fair Housing Act, even where there was a diversity of uses surrounding the lot where the town was willing to rezone for up to 7.3 units per acre. The mere fact that the lower permitted density would result in somewhat more expensive housing was not by itself denial of reasonable accommodation. Anything otherwise, said the court, would in effect doom all land-use controls that had some affect on housing prices and would make the Fair Housing Act an engine for the destruction of zoning. Hemisphere Building Co., Inc. v. Village of Richton Park, 27 LAND USE L. REP. 51 (Mar. 10, 1999). Finally, I would briefly comment on the new takings text, The Takings Issue, written by Dwight Merriam, Robert Meltz, and Richard Frank and published by Island Press. The book is a comprehensive treatment of takings law, from the general rules governing what is a take, to the procedural rules such as the ripeness morass. In addition, the book explores the takings issue in a variety of program specific settings, such as wetlands, wildlife habitat preservation, mining, billboard control, and other statutory contexts. This aspect of the book is quite useful since it helps the reader find out the latest doings in takings law with respect to particular subject areas. But perhaps the greatest virtue of the book is its pulling together and elucidating the various theoretical strands of takings law that have developed since the original "Takings Issue" book was written by Bosselman, Callies, and Banta in 1973. It is interesting to read how we have gone from investment backed expectations (Penn Central), to arbitrary and unreasonable activity (Del Monte Dunes), and then to denial of all reasonable use (Lucas) as doctrines governing the same constitutional right. When to this evolution is also added Nollan/Dolan "unconstitutional conditions" under the Fifth Amendment, the reader begins to realize why we have such doctrinal confusion about takings-and then you add in ripeness. Overall this book, which has footnotes updated to the beginning of 1999, and thus many of the latest cases, is a valuable addition to both the government and private practitioner's bookshelf. 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