RECENT DEVELOPMENTS

By Peter A. Buchsbaum

This issue’s cases from the world of state and local government law include the following:

• States—Employees—Computer Searches. According to the U.S. Court of Appeals for the Second Circuit, a state employee can have a reasonable expectation of privacy in the contents of his on-the-job computer. This particular employee, an accountant employed by the New York State Department of Transportation, had a private office with a door, did not share use of his computer or the office with other employees, and was not subject to a general practice of routine employer searches. However, agency officials had reasonable grounds for a search based on specific anonymous allegations against the employee. Applying a balancing test, the court held that the employee’s Fourth Amendment rights were not violated by a search of his computer, which showed that he had been pursuing his private tax preparation business on the side during office hours. Accordingly, the employee’s suit under 42 U.S.C. § 1983 was dismissed. Leventhal v. Knapek, 266 F.3d 64 (2d Cir. Sept. 26, 2001).

• Public Purpose—Taking for Presidential Library. Despite the vicissitudes of his presidency, and even his suspension from law practice in Arkansas, President Clinton does carry some respect from the Arkansas Supreme Court. In a recent decision, that court held that taking private property for a park to be used to house the Clinton Presidential Library constituted a public purpose. Little Rock, Arkansas’ condemnation of land was thus sustained. Pfeifer v. City of Little Rock, 2001 Ark. LEXIS 613 (Ark. Nov. 1, 2001), reported at 29 Land Use Law Rep. 177.

• Free Exercise—Establishment—"Eruv." In a case pitting the Establishment Clause against the Free Exercise Clause, the U.S. District Court for New Jersey held that the Borough of Tenafly did not violate the First Amendment rights of Orthodox Jews by refusing their request to designate public rights of way as the boundaries of an "eruv." Under traditional Jewish law, items such as a baby carriage cannot be brought from a private place to a public place on the Sabbath. By demarcating an area an eruv, even an entire community can become a private place so as to allow Orthodox Jews to move about with relative freedom. Tenafly, with a substantial Jewish population, declined to permit an eruv and was sued. In response, the district court held that the Tenafly Borough Council was within its rights in ordering the removal of vertical black rubber-coded casings known as "lechis" mounted on utility poles, which serve as the symbolic doorways of the eruv whose boundaries are marked by public utility wires. The court found the poles were not traditional public fora. Further, the government had under the Free Exercise Clause no obligation to facilitate religious activities and could enforce its neutral laws regarding rights of way and utility poles. Tenafly Eruv Ass’n v. Borough of Tenafly, 155 F. Supp. 2d 142 (D. N.J. Aug. 9, 2001), reported in 29 Land Use L. Rep. 169.

• Government Grant—Retaliation—Fair Housing Act. Don’t bite the hand you feed. That is the lesson of a recent U.S. Court of Appeals for the Ninth Circuit decision in favor of a housing counseling group that operated under a city contract. The Fair Housing Foundation of Long Beach (FHF) had participated in a press conference concerning a lawsuit filed by tenants in a housing complex in Lakewood, California. The group there asserted that "another generation of young African-Americans" is "still not welcome in middle class cities like Lakewood." Lakewood then refused to renew FHF’s contract. On appeal, the court held that FHF had alleged sufficient facts demonstrating a potential violation of the Fair Housing Act, which bans coercion, intimidation, or threats or interference with any person who encourages another person to exercise rights under the Fair Housing Act. Analogizing the case to a retaliatory failure to hire under Title VII or a retaliation for the exercise of free speech, the court sustained the claim under the Fair Housing Act. However, it dismissed FHF’s claim under the First Amendment stating that since FHF was in a confidential position vis-à-vis the city it could be fired for political reasons. Walker v. City of Lakewood, 263 F.3d 1005 (9th Cir. Aug. 31, 2001), reported in 29 Land Use L. Rep. 153.

• Right to Bear Arms—Second Circuit—Individuals. The Fifth Circuit parted company with other circuits in holding that the Second Amendment’s right to bear arms protects the rights of individuals not just militia to keep and bear firearms. Nonetheless, the court sustained a conviction under a federal statute barring firearm possession by individuals subject to protective orders. Reversing the dismissal of an indictment under 18 U.S.C. § 922(g)(8), the court found that the federal statute was narrowly tailored and hence constitutional. It held that the nexus between firearm possession by a party subject to a protective order and the threat of lawlessness and violence was sufficient, "though barely likely so," to support restrictions on the Second Amendment right to keep and bear arms. (The concurring judge wrote that the Second Amendment analysis was dictum since the indictment was ultimately sustained.) United States v. Emerson, 70 U.S.L.W. 1230 (5th Cir. Oct. 16, 2001).

• Risk. Finally, building at your own risk can be just that. In three cases reported in the October 10, 2001 issue of Land Use Law Report, courts in Wisconsin, Florida, and Colorado have all forced the demolition of buildings constructed between the time a permit went into effect and when the grant of the permit was reversed on appeal. 29 Land Use L. Rep. 161, 163, 165 (Oct. 10, 2001), describing Lake Bluff Housing Partners v. City of South Milwaukee, 632 N.W.2d 485 (Wis. Ct. App. June 12, 2001), Pinecrest Lakes, Inc. v. Shidel, 795 So. 2d 191 (Fla. Ct. App Sept. 26, 2001), and Olson v. Hillside Community Church, 2001 Colo. App. LEXIS 1509 (Colo. Ct. App. Sept. 13, 2001). As a result, two apartment buildings will have to be torn down in Wisconsin, as well as five in Florida, including three that had been occupied, along with a church addition in Colorado. These situations show that builders cannot depend on the vagaries in estoppel doctrine, or a balancing of the equities argument in relying on a permit subject to challenge. However, these cases may also point to problems with the judicial system—in many states, the time needed to resolve disputes over planning and zoning approvals at the trial level and then on initial appeal far exceeds normal economic timetables for implementation of development activity.