State and Local Government Law Commons^™

Recent Developments In Land Use Ethics, Patricia E. Salkin

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Current events across the country reveal no shortage of allegations of unethical conduct in the land use review process. Sadly, there are countless other media accounts of alleged and proven conflicts of interest and other ethical misconduct. In this annual review of reported decisions involving ethics in land use, recent decisions are discussed in the hopes that municipal attorneys will use this information as the basis of ongoing training for members of planning boards, zoning boards, and local legislative bodies who must be routinely reminded of not only their legal but ethical responsibilities in upholding the public trust.

Municipal Attorneys Can Find Answers In The Newly Released Third Edition Of Commercial Litigation In New York State Courts, Patricia E. Salkin

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This article contains a book review of the newest edition of Commercial Litigation in New York State Courts (West), edited by former New York County Lawyers President Robert Haig of Kelley Drye & Warren LLP. The author of this book review details why this treatise is an invaluable addition, not for the library shelf, but for prime desk space on the busy working lawyer’s desk. The author further notes that while the most recent edition of the treatise has been widely reviewed statewide, prior to this book review there has been little, if any, attention to the value of the …

Federal - State Tax Coordination: What Congress Should Or Should Not Do -- Testimony Of Walter Hellerstein On Tax Reform: What It Means For State And Local Tax And Fiscal Policy, Before The Committee On Finance, Walter Hellerstein

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Testimony of Walter Hellerstein, Francis Shackelford Professor of Taxation Distinguished Research Professor, before the Committee on Finance, hearing on Tax Reform: What It Means for State and Local Tax and Fiscal Policy, United States Senate, April 25, 2012.

Standing Of Intervenor-Defendants In Public Law Litigation, Matthew I. Hall

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Unless the plaintiff has a personal stake in the outcome, Article III of the United States Constitution requires federal courts to dismiss a plaintiff’s claim for lack of standing. That much is clearly established by decades of precedent. Less understood, however, is the degree to which Article III also requires defendants to possess a personal stake. The significance of defendant standing often goes unnoticed in case law and scholarship, because the standing of the defendant in most lawsuits is readily apparent:any defendant against whom the plaintiff seeks a remedy has a personal interest in defending against the plaintiff’s claim.

But …

Preserving The Past In The Present For The Future: Las Vegas Chapter Of The National Bar Association Archive At The Wiener-Rogers Law Library, Jeanne Price, Rachel J. Anderson

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This co-authored article documents the establishment of the Las Vegas Chapter of the National Bar Association (LVNBA) Archive in 2011 at the Wiener-Rogers Law Library at the University of Nevada, Las Vegas, William S. Boyd School of Law, which may be the first of its kind in the nation. The LVNBA archive was established in cooperation with the LVNBA, the local affiliate of the National Bar Association, which is the nation’s oldest minority bar and largest national association of over 44,000 predominately African-American lawyers, judges, professors, and law students. Materials donated by the LVNBA and its members document the role …

The Quiet Revolution And Federalism: Into The Future, Patricia E. Salkin

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This Article offers an examination of the federal role in land use planning and regulation set in the context of varying theories of federalism by presenting a historical and modern overview of the increasing federal influence in local land use planning and regulation, specifically highlighting how federal statutes and programs impact local municipal decision making in the area of land use planning. Part II provides a brief introduction into theories of federalism and their application to local land use regulation in the United States. Part III provides a brief overview of federal legislation in the United States which affected local …

Engaging Deliberative Democracy At The Grassroots: Prioritizing The Effects Of The Fiscal Crisis In New York At The Local Government Level, Patricia E. Salkin, Charles Gottlieb

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Part I of this Article discusses many of the factors contributing to the fiscal crisis at the local level in New York including historic decreases in federal and state revenue sharing, the imposition of a new property tax cap, the failure of New York to address meaningfully the subject of unfunded mandates on local governments, and the dependency of some local jurisdictions on the timely adoption of a state budget. Part II discusses concepts of deliberative democracy and how local residents might be engaged to become partners with local officials in making difficult fiscal decisions that impact all community residents. …

An Illusory Right To Appeal: Substantial Constitutional Questions At The New York Court Of Appeals, Meredith R. Miller

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The jurisdiction of the New York Court of Appeals has long been shrouded in mystery. When the Court dismisses an appeal, it provides a boilerplate, one-sentence decretal entry, which gives the litigants little, if any, meaningful indication of the Court’s reasons for dismissal. In February 2010, however, the world received a rare glimpse into the Court’s jurisdiction when, in Kachalsky v. Cacace, 925 N.E.2d 80 (N.Y. 2010), Judge Robert Smith dissented from the Court’s sua sponte dismissal of the appeal. Judge Smith voted to retain the appeal, arguing that the Court was using the requirement of “substantiality” to invoke discretion …

Rhetorical Federalism: The Value Of State-Based Dissent To Federal Health Reform, Elizabeth Weeks Leonard

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This Article makes the affirmative case for the widespread trend of state resistance to the recently enacted, comprehensive federal health reform law, the Patient Protection and Affordable Care Act of 2010, or ACA. A significant number of states have engaged in various forms of objection to the new federal laws, including filing lawsuits against the federal government, enacting laws providing that ACA will not apply to residents of the state, and refusing to cooperate with implementing the new laws. This Article identifies reasons why those actions should not be disregarded simply as Tea Party antics or election-year gamesmanship but instead …

State Constitutionalism And The Right To Health Care, Elizabeth Weeks Leonard

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This Article examines state constitutions and health care rights. Notably, close to a third of states’ constitutions recognize health while the U.S. Constitution contains no reference. Ample scholarly commentary exists on the absence of a right to health care under the U.S. Constitution but little attention has been paid to state constitutional law. This Article begins by explaining the absence of a federal right and the rationale for looking to state constitutional protections for health. The Article then provides a comprehensive survey of state constitutional provisions and judicial decisions enforcing or interpreting them. The survey reveals certain common themes and …

What Would Coase Do? (About Parking Regulation), Michael Lewyn

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Like many government regulations, municipal minimum parking requirements exist to prevent externalities - most notably the congestion, pollution and greenhouse gas emissions that occur when motorists drive around a city searching for scarce parking. But because such regulations make parking (and thus driving) cheaper, such regulations may in fact increase congestion and pollution, thus creating, rather than reducing, externalities.

Linking Land Use With Climate Change And Sustainability Topped State Legislative Land Use Reform Agenda In 2008, Patricia E. Salkin

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Linking land use with climate change and sustainability topped state legislative land use reform agenda in 2008. The only discernible state land use reform trends in 2008 have focused primarily on themes surrounding sustainability. Many states pursued statutory reforms to address the strong linkages between land use and climate change, green development and affordable housing. Only one state, Michigan, focused on recodification of its planning and zoning enabling acts.

Kyoto Comes To Georgia: How International Environmental Initiatives Foster Sustainable Commerce In Small Town America, Peter A. Appel, T. Rick Irvin, Julie M. Mcentire, J. Chris Rabon

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This Article posits that in response to adoption of Kyoto Protocol targets by governments and multi-national corporations overseas that comprise significant portions of the global economy as well as global financial markets, businesses and state and local governments in the U.S. are also being driven by necessity to undertake sustainable commerce initiatives. Businesses in the EU and other Kyoto-compliant regions that have implemented sustainable commerce programs now require overseas vendors and suppliers-including those in the U.S.-to implement their own sustainable commerce initiatives as a condition of approved supplier status. New EU environmental regulations developed in part to meet Kyoto-specified emissions …

Why Pedestrian-Friendly Street Design Is Not Negligent, Michael Lewyn

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In recent decades, American state and local highway officials have built wide streets and roads designed primarily to accommodate high-speed automobile traffic. However, such high-speed streets are more dangerous for pedestrians and bicyclists than streets with slower traffic, and thus fail to adequately accommodate nondrivers. Government officials design streets for high-speed traffic partially because of their fear of tort liability. An influential street engineering manual, the American Association of State Highway and Transportation Officials' Green Book, has generally favored the construction of such high-speed streets, and transportation planners fear that if they fail to follow the Green Book's recommendations, they …

Federalism And Accountability: State Attorneys General, Regulatory Litigation, And The New Federalism, Timothy L. Meyer

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This Comment will examine how one particular state institution, state attorneys general (SAGs), has operated within a unique set of institutional and political constraints to create state-based regulation with nationwide impact in policy areas including consumer protection, antitrust, environmental regulation, and securities regulation. This state-based regulation casts doubt on one of the principle rationales advanced in the Supreme Court's anticommandeering line of cases for limiting federal power; namely, that such a move enhances electoral accountability, a concept central to our democracy. If in the absence of federal regulation a series of narrowly accountable state-based actors can create nationwide regulation in …

Failure To Connect: The Massachusetts Plan For Individual Health Insurance, Elizabeth Weeks Leonard

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This Article briefly describes the key features of the Massachusetts Health Care Reform Act, focusing particularly on the Connector. It then offers preliminary thoughts on the expected effect of that mechanism for creating quality, affordable health insurance products for individuals. Observers anticipate that commercial insurers will offer scant coverage and high-premium, high-deductible plans through the Connector, which coverage ultimately may be neither more affordable than products currently or more helpful to covering the cost of health care than no coverage at all. If the Connector fails to facilitate the individual insurance mandate, Massachusetts's promise of universal coverage may begin to …

Planners Gone Wild: The Overregulation Of Parking, Michael Lewyn

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No abstract provided.

Ensuring Continuing Community Amenities Through Golf Course Redevelopment, Patricia E. Salkin

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This article examines some of the issues faced by municipalities hoping to preserve their golf courses or to ensure their strategic redevelopment and focuses on how local governments can most effectively employ planning and zoning techniques to ensure that community amenities, including affordable housing and recreational areas, are an important part of golf course redevelopment projects.

Five Myths About Sprawl, Michael Lewyn

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In Sprawl: A Compact History, Robert Bruegmann, an art historian, has painted a superficially convincing case for the status quo, asserting that sprawl is "a natural result of affluence that occurs in all urbanized societies." Bruegmann's book has generated glowing media publicity. This article suggests that Bruegmann overestimates the universality of sprawl, by overlooking the differences between pedestrian-friendly cities with some sprawling development and cities in which automobile-dependent sprawl is the only choice available to most consumers. In addition, Bruegmann understates the harmful social effects of sprawl, especially the effect of automobile-dependent development upon non-drivers. Bruegmann also consistently underestimates the …

You Can Have It All: Less Sprawl And Property Rights Too, Michael Lewyn

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Some commentators believe that smart growth and property rights are at loggerheads - and to be sure, these theories do lead to differing positions on a few issues (most notably urban growth boundaries and similar anti-sprawl regulations). But as to a wide variety of issues, smart growth advocates and property rights theorists can find common ground. Both groups can support eliminating zoning regulations that mandate automobile-dependent, sprawling development, such as single-use zoning, minimum parking requirements and minimum lot size requirements.

Squaring The Circle On Sprawl: What More Can We Do?: Progress Towards Sustainable Land Use In The States, Patricia E. Salkin

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With almost ten years of nationwide dialogue and experimentation with the legal implementation of smart growth concepts at the state and local levels, this paper pauses to consider whether and to what extent success has been realized. The one certainty in this dynamic intersection of land development and conservation is that there is no one best model adaptable to all fifty states. Rather, to accommodate national diversity in local government structure, cultural relationships of people to the land, and differences in geography and a sense of place, the best lesson learned is that advocates and lawmakers alike must shape and …

How Government Regulation Forces Americans Into Their Cars: A Case Study, Michael Lewyn

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No abstract provided.

Cooperative Federalism And Healthcare Reform: The Medicare Part D 'Clawback' Example, Elizabeth Weeks Leonard

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This symposium article recounts recent litigation by several states over a provision of the Medicare Modernization Act Part D prescription drug benefit: The clawback, which requires states to pay the a potentially substantial portion of new federal program. I then examine the unique federalism implications of the clawback for ongoing state and federal health reform initiatives.

In spring 2006, several states petitioned the United States Supreme Court for original jurisdiction to hear a challenge to one provision of the new Medicare Part D prescription drug law. The federal government, while taking over prescription drug coverage for dually eligible beneficiaries, required …

The Spirit Of Serrano: Past, Present And Future, Anne Dupre, John Dayton

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A decades-long school funding revolution continues in the United States. The litigation sparked by the Supreme Court of California's 1971 decision in Serrano v. Priest continues to reshape the legal, political, and educational landscape in the United States, affecting the lives of children, parents, educators, and taxpayers throughout the nation. Serrano-inspired lawsuits have transformed school funding policies nationwide, resulting in billions of dollars in new funding and a notable redistribution of resources among school districts. Serrano-inspired litigation has changed public schools in many states to a degree second only to the transformation that followed Brown v. Board of …

The Status Of Administrative Agencies Under The Georgia Constitution, David E. Shipley

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This Article discusses the place of administrative agencies under the Georgia Constitution. The rules of the Georgia Supreme Court on these issues, like the comparable rulings from the U.S. Supreme Court, make excellent reading for anyone interested in Georgia law, government, politics, and history. Most of the decisions surveyed in this Article are correct, but not necessarily for the reasons given by the Georgia Supreme Court. Some of the opinions offer comprehensive treatises on sections of the Georgia Constitution and aspects of administrative law, while others reach conclusions without much explanation. Some results are at odds with prior decisions that …

New Urbanist Zoning For Dummies, Michael Lewyn

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No abstract provided.

Zoning For Home Occupations: Modernizing Zoning Codes To Accommodate Growth In Home-Based Businesses, Patricia E. Salkin

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This article offers readers ideas and examples of ways to modernize local zoning laws to balance the growing demand by residents to engage in legitimate home-based businesses while protecting community character and the health, safety, and welfare of neighbors in residential zoning districts.

States Beginning To Recognize That Training Is Essential For Members Of Planning And Zoning Boards And Local Legislative Bodies, Patricia E. Salkin

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Members of planning and zoning boards and local legislative bodies constantly make decisions that may be worth millions of dollars to applicants and that may have serious impacts on public health and safety. Unlike other players in the land use decision making process members of local legislative bodies and land use boards have no specific education or training in land use matters prior to their election or appointment putting them in the position to learn solely from “on the job training”. Five (5) states currently require mandatory training and continuing education courses for members of planning boards and zoning boards …

The Law Of Sprawl: A Road Map, Michael Lewyn

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No abstract provided.

Examining Land Use Planning And Zoning Ethics From A Planner’S Perspective: Lessons For All Stakeholders In The Real Estate Game, Patricia E. Salkin

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This article examines the Code of Ethics and Professional Conduct of the American Institute of Certified Planners (AICP). Only two states, Michigan and New Jersey, license planners as a profession. This makes ability for planners to achieve certification from the AICP important and raises the prominence of the AICP Code of Ethics, since as a condition of membership, each AICP member agrees to abide by the Code.