RECENT DEVELOPMENTS

By Peter A. Buchsbaum

First, I am pleased to report that two readers have responded to my "beseeching" for interesting cases. First, from Jeff Arnold of Chicago we have the following:

• Taking—Public Use vs. Public Purpose Parking Lot Expansion. Over a two-member dissent, the Illinois Supreme Court has thrown out a taking of land for a parking lot as being primarily designed for private use, even though it may have had a public purpose. The Southwestern Illinois Development Authority had condemned land owned by a recycling center to provide additional parking for a private racetrack, which had been financed several years earlier with agency bond monies. Although there was much testimony about the importance of the racetrack to the local economy and its need for parking, the court was disturbed by the lack of any public study of the parking situation at the track or any economic plan for additional parking. Further, the agency had advertised that it would condemn lands needed by private developers for a fee. With these facts, the court found that while the track might serve a generalized purpose of providing additional employment, it appeared that the agency’s true intentions were to act as a default broker in land for purely private parking enterprises. Thus, the taking was not for a public use. Southwestern Illinois Development Authority v. National City Environmental, L.L.C. (Ill. Sup. Ct. Apr. 4, 2002), digested in 30 Land Use L. Rep. 59 (Apr. 10, 2002). Copies can be obtained at http://www.state.il.us/court/ Opinions/SupremeCourt/2002/April/opinions/html/87809.htm.

From James Gilbert, assistant city attorney in Salem, Massachusetts, comes the following:

• Subsidized Housing Mortgage Prepayment—Public Contracts Obligations. The Salem Heights Apartments have been operated since 1973 under a section 236 mortgage that provided a 1 percent net interest rate to make the housing affordable. In 2000, the owners attempted to prepay the mortgage. Such prepayment would have lifted the rental and income restrictions. The city argued in opposition that there were contracts and regulatory agreements with the developer that provided a forty-year term for the affordability restrictions. These agreements were part of the rezoning of the property in 1972. The court agreed that the term in these contracts still bound the project and accordingly rejected the owners attempt to prepay the mortgage. The court further found that the owner was obligated under Massachusetts urban redevelopment statutes to seek leave from the state Department of Housing and Community Development for leave to change the development from a fully subsidized one into something else. City of Salem v. Salem Heights Apartments Co., 2001 WL 1562418 (Mass. Housing Ct. 2001).

There are a gamut of other cases, including one, as you will see below, provided by another reader.

• Electioneering—First Amendment—Distance from Polling Places. In Burson v. Freeman, 504 U.S. 191 (1992), the U.S. Supreme Court upheld a ban on electioneering within 100 feet of a polling place. Now, a federal district court has sustained a broader Kentucky statute banning electioneering within 500 feet of polling stations. The court relied heavily on reports by a state attorney general’s task force and a legislative research commission that showed the prior 50 foot separation statute had been wholly inadequate in protecting voters from electioneering, improper influence, and vote solicitation. On this basis, the court found that the 500-foot distance was necessary as well as narrowly tailored to serve a compelling interest in an impartial election process. Anderson v. Spear, 189 F. Supp. 2d 644 (E.D. Ky. Mar. 21, 2002), available also at http://pub.bna.com/lw/99189.htm.

On the preemption front, states have been successful in one of two cases in which federal law was alleged to supercede state statutes.

• Assisted Suicide—Controlled, Dangerous Substances—Regulation of the Medical Profession. In a highly publicized decision, a federal district court judge in Oregon has determined that the 1994 Oregon Death with Dignity Act was not preempted by the Federal Controlled Substances Act. The issue was the so-called "Ashcroft Directive," in which the Attorney General declared that assisting suicide was not a legitimate medical purpose. Accordingly, the Attorney General had ruled that administering federally controlled substances to assist suicide violated the federal Controlled Substances Act (CSA). In response, the district court voided the "Ashcroft Directive." It noted the abrupt reversal of the prior Department of Justice position, under the Clinton Administration, that no preemption of the Oregon law existed. The court found that Congress did not intend the CSA to override a state decision concerning what constitutes legitimate medical practice. Nor did it grant the Attorney General unilateral power to define medical practice. The court observed, interestingly, that since the regulation of the practice of medicine was normally within the discretion of the state, it would require very clear congressional expression of intent to override local regulation to find preemption. No such expression under the CSA existed. The court thus protected an area of state regulation from federal incursion. The court also found that Oregon had standing by virtue of the potential injury to the enforceability of its own statutes. State of Oregon v. Ashcroft, 192 F. Supp. 2d 1077 (D. Or. Apr. 17, 2002). Thanks to Ed Sullivan of Portland, Oregon, a member of the Section Council, for providing many of his friends with a copy of this opinion. One question—is medical marijuana the next treatment to be exempted from federal oversight?

• Air Pollution—Preemption—Restraint on Interstate Commerce. New York was less successful in its attempt to curtail acid rain that originates from sulfur dioxide (SO2) emissions from power plants in the Midwest. The Clean Air Act provides a nationwide cap on SO2 emissions. Individual sources are given pollution allowances to the extent they are permitted to emit SO2. If they do not use those allowances, they can sell them to other emitters. Citing the effect of acid rain on its very beautiful Adirondack Preserve, the State of New York sought to prevent New York power plants from selling unused SO2 allowances to power plants in the Midwest. It did this by requiring the entire proceeds of the sale of such allowances to go to the state treasury unless there were a restrictive covenant against sales to Midwestern utilities. Although sympathizing with New York’s plight, the federal district court rejected New York’s program as both preempted by the Clean Air Act and as an interference with interstate commerce. The court found that the curtailment of sales to Midwestern utilities thwarted the congressional objective of a single nationwide market for pollution allowances. Further, the restrictive provisions operated as a restraint to interstate commerce of such allowances. Accordingly, the New York program had to be set aside. Clean Air Markets Group v. Pataki, 70 U.S.L.W. 1632 (N.D.N.Y. Feb. 8, 2002).

• Elections—Different Machines—Equal Protection. Bush v. Gore was not a one-time phenomenon, according to a federal judge in the Northern District of Illinois. The State of Illinois had allowed its counties to choose among several different voting mechanisms—punch cards and optical scan systems—that had different levels of accuracy. In response to a suit by minority voters, the court found both equal protection and due process violations, even though it did not rule that the rights of a suspect class had been impaired. Just allowing some counties the option to choose the more error generating punch cards was unconstitutionally arbitrary. Shades of November 2000. Black v. McGuffage, 70 U.S.L.W. 1614 (N.D. Ill. Apr. 16, 2002).

A couple of notes in passing: A study by the Harvard Institute of Economic Research has found a positive correlation between restrictive zoning and housing costs in certain tight housing markets. See Edward L. Glaser & Joseph Gyourko, The Impact of Zoning on Housing Affordability, available without charge from http://post.economics.harvard.edu/hier/ 2002papers/2002list.html. Also, the American Planning Association has released its Growing Smart Legislative Guidebook for model planning statutes. It is available for purchase from the American Planning Association or can be downloaded, if you have lots of paper, from the APA website, http://www. planning.org. For a description of the debate over the Growing Smart project, see 30 Land Use. L. Rep. 63 (Apr. 10, 2002).

And finally, the U.S. Supreme Court, in the context of a federal tax lien case, made some interesting comments about what constitutes property for federal law purposes. United States v. Craft, 70 U.S.L.W. 4249 (Apr. 17, 2002). It reiterated that federal law, not state law, was controlling in determining whether a husband’s interest in assets owned by the entireties was his property in determining whether a federal tax lien could attach. Guess what—it was and he lost.

Peter A. Buchsbaum practices law with Greenbaum, Rowe, Smith, Ravins, Davis & Himmel in Woodbridge, New Jersey.