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1. Text: Gerald E. Frug, Richard T. Ford & David J. Barron, Local Government Law: Cases and Materials (West Group: 4th ed. 2006)
Ch. 1 INTRODUCTION TO THE PROBLEMS OF DECENTRALIZATION
A. Decentralization of Power to Local Government: The Pros and Cons (p. 1-22) (Class 1)
Italo Calvino, Invisible Cities (p 3)
Alexis de Tocqueville, Democracy in America (p 4)
(Is this a “Locke-ian” perspective? Liberal vs. Communitarian – Antifederalist influences?)
2. • Inefficient
3. - Reform/Mistake – Change
4. • Participation
5. - Ownership
6. - Dynamism/Constructive
7. - Legitimacy
8. • Greed
The Federalist No. 10 (Madison) (p 12)
• Factions
- Individualism/Zero sum
- Delegation/Scale
- Local/National
- Spread
Romer v. Evans, 517 U.S. 620 (1996) (p 17) *
The city and County of Denver, and the cities of Aspen and Boulder, all enacted ordinances that banned discrimination in many transactions and activities, including housing, employment, education, public accommodations and health and welfare services, for reason of their sexual orientation. In response, a statewide referendum (Amendment #2) to amend the Constitution of the State of Colorado was adopted. Amendment repeals the local ordinances and prohibits all legislative, executive or judicial action at any level of state or local government designed to protect the named classes of homosexuals, lesbians or bisexuals. (State trying to preempt local) Challenged on 14th Amendment (equal protection) grounds.
SOR: Rational Basis – “If a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end.”
Court (Kennedy): “It identifies persons by a single trait, and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented … We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. “ Unconstitutional
Dissent (Scalia with Chief Justice Rehnquist and Thomas): The only denial of equal treatment homosexuals have suffered is that they may not obtain preferential treatment without amending the State Constitution. Amendment 2 sought to counter both the geographic concentration and the disproportionate political power of homosexuals by (1) resolving the controversy at the statewide level, and (2) making the election a single-issue contest for both sides. It put directly to all the citizens of the State, the question: Should homosexuality be given special protection? They answered no.
• 14th Amendment
- government & individual
• Locality/individual (right to petition for redress)
- faction – gays- minority – concentrated/political
- faction – gov’t – oppression.
B. The City as a Public or Private Entity (p 22-56) (class 2)
Competing theories of decentralization with regards to public v. private.
What is the difference between public and private?
Public/Private
1. Restriction of rights … access v. exclusion
Private property Gov’t
2. Government involvement in 1.
Rights/power corporation
Origin/creation
3. purposes/goals Individual
Gerald Frug, City Making: Building Communities Without Building Walls (1999) (p 24)
The exercise of legislative power was perceived as a threat to corporate rights, the exercise of corporate rights risked the curtailment of legislative powere thought necessary to protect the welfare of the people.
Where to draw the line between public and private for corporations? In Trustees of Dartmouth College v. Woodward, decided in 1819, the US Supreme Court gave its response to this question, an answer that came straight from Locke: what needed protection was property.
• Dartmouth (property)//Associational Rights
• Arguments
- Formalism – Rajneeshpuram
- Functionist – Marsh
- Historic/Tradition – Lee
• Oregon v. City of Rajneeshpuram, - holds that a private religious community cannot legitimately become a city; (p 30)
- property ownership ( creation ( exclusion/access
• Marsh v. Alabama, treats a privately owned company town as a city over its objections
- Act like a town then can’t exclude (p 34)
• International Society for Krishna Consciousness v. Lee, - treats a government-owned airport as if it were a private entity, thereby upholding its ability to limit the freedom of speech (p 39)
- forum based
- public v. proprietary
- 3 kinds of public property
• New Jersey Coalition Against the War in the Middle East v. J.M.B. Reality – provides at least some protection for freedom of speech at a private shopping mall (p 45)
1. normal use
2. public invitation
3. purpose in relation to public/private use
• Council of Organizations v. Engler (1997) (p51)
Is a charter school a “public” school?
Purposes and goals (not historic/traditional)
* state issues and can revoke charter, so state has ultimate control
• No requirement that state have exclusive control
• No requirement that school be under control of voters.
All arguments are leaned toward concept that charter school is public, however, purpose of creation is to make it seem more private.
Similar to port authority?
What about administrative law approach, like an agency?
Does not conform to historical models of schools.
Review (1st two classes)
Decentralllization v. centralization – class 1
class 2
State
corporations
Individuals
Models ( formal, function, historic/traditional
C. The Forms of Local Power (p 56-92) (class 3)
Robert Ellicson, Cities and Homeowner Associations (1982) (p 57) (CID)
Homeowners Associations – powers of a city, but all voluntary residency
public/
private ( voluntary constituted
Frug – Cities lack power, because of fear of state power, and apathy
thinks city should be more private – city power comes from individual which reduces individual power.
Contrasts with Frug – thinking CID’s solve problems alluded to by Frug.
State
Romer
v/ (
Evams Local
People
Evan Mckenzie, Privatopia (1994) (p 60)
Voluntary constituted? ( 1. Is creation the right measure?
2. In fact voluntary? For who? Developer created.
Gary J. Miller, Cities by Contract (1981) (p 68)
Rolling Hills – Public or Private?
Public for public good – just smaller public
Private – restricted access like Rajeeshpurem.
_________________________________________________
Segmented society
outward looking – ghetto – being forced to stay in
Inward looking – Rolling Hills
• Tocqueville – great involvement of citizens in gov’t
• Frug – cities lack power, people give up rights plus have apathy
• Ellickson - CID’s voluntary – All participate in gov’t
• Mckenzie – Apathy takes away voluntariness
Municipal Building Authority v. Lowder, (Utah 1985) (p 69)
Community needed new jail. Taxpayers were unwilling to pay for it, kept voting it down. Board of Commissioners created Iron County Building Authority, to build jail, and lease it to county.
1. Public Authority
2. Debt doesn’t track to tax increase. (leased)
Court – Does not violate express terms of state constitution. (is lawful)
Ball v. James, (U.S. 1981) (p 74)
System for electing the directors of a large water reclamation district (Salt River Project) challenged. Produces electricity for ½ Arizona, but at creation, primary business was to store and deliver water.
Court (Stewart):
• functional – limited power
• historic/traditional – electric not gov’t / public (like Lee)
• size doesn’t matter
• formal – created for land use – water for land owners.
Kessler v. Grand Central District Management Association, Inc. (2nd Cir. 1998) (p 83)
Grand Central Business Improvement District (BID) challenged on EP grounds that it denied 1 man 1 vote. (Like Reynolds v. Sims and Ball v. James) The point of a public authority is to act like a business.
• BID
- State enabled , City created. ( Still ultimately responsible
Threshold
_________________
- Limited Purpose
• Residential/Commercial Area
Input ( “value” Output ( Quality of Life Renters/Tenants v Owners
D. The City and Democratic Theory: Part One (p 92-112) (class 4)
Italo Calvino, Invisible Cities (p 93)
Charles Tiebout, A Pure Theory of Local Expenditures (1956) (p 93)
Market System
1. Choice through mobility (assumes perfect mobility) Subjective Preferences
2. Services/costs ( Optimal size
3. Individuals Choose because of services Focus on the individual
1. Choice/mobility
2. Economic “goods”
3. Optimal
Robert Nozick, Anarchy, State and Utopia (1974) (p 96)
1. No single community that is right for everyone Subjective Preferences
2. Cultural (as well as services)
3. Leaving would have costs/benefits for both individual and community
1 Choice/Mobility
2. Non-economic Focus on the individual
James M. Buchanan, Principles of Urban Fiscal Strategy (1971) (p 101)
Assumes wealthy pay more, so should get more.
1. Attractions (Assumes restricted mobility) Subjective Preferences
Art/Culture
Differentiation of services free riders and externalities
2. Increased cost of leaving
1. Choice/Mobility
2. Economic/Non-economic
3. Attract Focus on the individual
4. Close off
Frank I. Michelman, Political Markets and Community Self-Determination: Local Government Legitimacy (1978) (p 104)
1. Models
1. Public Choice
2. Public Interest Objective Preferences
Two sub-theories to make public interest work –
“big bribe” and “market failure”
2. Objective – Searching for an objective norm –- not attainable by public choice.
Individuals will settle slightly, to gain “individualistic public interest”
Focus on the Community
1. Choice/Participation
2. Preference discovery
Option expanding
Big Bribe/Market Failure
Iris Young, Justice and the Politics of Difference (1990) (p 106)
1. Diversity of Communities
vs
Diverse Community ( Boundary lines
2. Conflict Voice/Exit
3. Preference
1. Choice/Participation + Mobility Focus on the Individual
2. Critizue of ideal of community Liberal
3. Preference Diversity/tension Liberal
Normative ideal “city”
Ch. 2 THE RELATIONSHI0P BETWEEN CITIES AND STATES AND BETWEEN CITIES AND THE FEDERAL GOVERNMENT
A. The Relationship Between Cities and States
1. The City-State Relationship as a Matter of Federal Constitutional Law (p 113-138) (class 5)
(#1)Hunter v. City of Pittsburgh, (U.S. 1907) (p 115)
City of Pittsburgh sought to consolidate with city of Alleghany. Majority of proposed consolidated city residents (Pittsburgh and Alleghany) voted for consolidation. Majority of Alleghany voted against. Pittsburgh’s larger population, who voted yes, outweighed negative vote of Alleghany.
1. voting scheme
2. “city” property
Associational right
Private property rights
3. Takings
Decision known for concept that city is merely a part of the state.
Millicen v. Bradley (U.S ) (p 120)
Busing across school district lines? No.
Court – State must recognize district boundaries
(#2) Hunter v. City of Pittsburgh
Amendment to city charter by state forbidding housing preferences? No
Court – Right to petition would be violated.
Washington v. Seattle School District No. 1, (U.S. ) (p 121)
State initiative aimed at banning the use of mandatory busing as a means of promoting integration? No.
Court- Acknowledged the State’s formal authority over local school districts, but it can’t interfere with the locality.
Romer v. Evans, 517 U.S. 620 (1996) (p 17)
The city and County of Denver, and the cities of Aspen and Boulder, all enacted ordinances that banned discrimination in many transactions and activities, including housing, employment, education, public accommodations and health and welfare services, for reason of their sexual orientation. In response, a statewide referendum (Amendment #2) to amend the Constitution of the State of Colorado was adopted. Amendment repeals the local ordinances and prohibits all legislative, executive or judicial action at any level of state or local government designed to protect the named classes of homosexuals, lesbians or bisexuals. (State trying to preempt local) Challenged on 14th Amendment (equal protection) grounds. Court: State can’t interfere. Does this protect individual rights or associational rights?
City of New York v. State of New York, (NY Ct. of Appeals 1995) (p 118)
State changed funding scheme for public schools. City and school board sued alleging 3 claims. (1) funding scheme denies NYC kids educational rights guaranteed by the Education Article of the State Constitution; (2)funding provides separate and unequal treatment for the NYC schools in violation of the EP Clauses of state & federal constitution; (3) the disparate impact of the funding scheme for public education on minority groups in the city violates title VI of the Fed. Civil Rights Act of 1964.
Court: No legal capacity to sue. (Hunter 1)
Dissent: case falls under exception that if school district follows state rule, will be violating state constitution. Invokes Milliken, Seattle, and other state court cases.
Coalition for Economic Equity v. Wilson, (9th Cir. 1997) (p 122)
State of California adopted initiative amending constitution that prohibits discrimination against or preferential treatment to individuals or groups on basis of race sec, color, ethnicity or national origin, in the operation of public employment, education or contracting. Challenged by groups of minorities and women, on equal protection grounds. (Affirmative action which this removes, provides equal protection.) Plaintiff cites Hunter v. Erickson (US 1969).
Court: cites Romer, but distinguishes because affirmative action is not equal protection. Comes down to preferential vs. antidiscrimination. State amendment is okay.
Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, (6th Cir. 1997) (p 128)
City of Cincinnati passed ordinance prohibiting City government agents from enacting any special class or preferential treatment for homosexuals, bisexuals or lesbians. Lower court invalidated ordinance.
Court: Cincinnati ordinance less restrictive state initiative in Romer. Cincinnati rule only prevents preferential treatment, does not deny equal protection.
Individual right - - < preferential treatment (above baseline)
anti-discrimination (baseline protection)
Associational rights - -< delegation & autonomy
(Romer, Wilson) Instrumentality
How argued determines outcome/prong of attack.
2. Dillon’s Rule (p 138-168) (class 6)
John Dillon, Municepal Corporations (1911) (p 140)
Dillon’s Rule – Municipal powers
1. express delegation
2. necessarily and fairly implied and incidental
3. essential to objective/purpose
4. any fair, reasonable doubt is resolved against corporation and power denied.
Construction
1. Strict reading of the text
2. Ambiguities resolved in favor of State.
Compare Dillon/State creature
Olesen v. Town (City) of Hurley, (SD 2004) (p 146)
Restaurant owner sues City for operating full service restaurant, after years of only serving drinks and snacks. (As a bar)
Court: Express language of charter allows for operation of bar.
Incidentals of allowed function is okay.
Food sales revenue is larger than alcohol sales, and is not incidental.
Arlington County v. White, (Va 2000) (p 148)
County gives benefits to domestic partners as part of self-funded insurance plan. The state statute authorized benefits to “dependents.” County says dependents included unmarried couples and same sex couples.
Court: Since state didn’t recognize common law or same sex marriage, county can’t expand definition and give status to those partners.
1. Atty. Gen. definition – nowhere suggests domestic party
2. State defines dependent as “totally dependent (more than ½)
3. County defines dependent as “financially interdependent” and listed on income tax as dependent.
Dillon --- Mode / Power
defer to locality defer to state
How to decide which is mode issue and which is power issue?
Power is invested in these local entities, but virtually no legal authority.
What is a bar? What is a dependent? Is this micromanaging?
What is Arlington Co. were a private corporation?
Contractual? Private?
Proprietary aspect of gov’t? Is Dillon’s rule more expansive than previously thought?
State v. Hutchinson, (Utah 1980) (p 153)
Defendant, a candidate for the office of Salt Lade County Commissioner, was charged with having violated § 1-10-4, Revised Ordinances of Salt Lake County, which requires the filing of campaign statements and the disclosure of campaign contributions. Defendant contends that because state did not expressly grant the county the power to enact such legislation, it cannot do so.
Court: Strict construction and Dillon’s rule are archaic. Ultimate limitation of abuses is the people. County delegated authority.
3. Constitutional Prohibitions Against Local or Special Legislation (p 159-168) (class 6 cont.)
Chicago National League Ball Club, Inc. v. Thompson, (Ill. 1985) (p 160)
Baseball club challenged new county ordinance (EPA and noise pollution) that would prohibit night games at Wrigley field. Ordinance carefully crafted, so that Wrigley field was the only stadium affected.
Court: Each part of the ordinance, passes rational review standard, and “The creation of classifications is for the judgment of the legislature, and its amending or modifying is not for courts to decide.
Morial v. Smith & Wesson Corporation, (La 2001) (p 164)
Mayor and City of New Orleans files suit against gun manufacturers, to recover costs associated with firearms. State passes legislation banning suits by government entities against firearms manufacturers, including suits already filed (retroactive).
Court: Municipal corporations not due protections that are reason against retroactive legislations. Legislation is within realm of state authority.
4. Home Rule Initiative (p 168-207) (class 7 – 2 days)
Home Rule Movement
Give power back to localities
Give discretion back that a lot viewed Dillon as taken away
Has to be a realm in which localities can act independently
Against special legislation
David J. Barron, Reclaiming Home Rule (2003) (p 171)
Too stark a difference between local and state
Too many opinions in what a community is under Home Rule
old conservative
administrative
social variants
Home Rule is not anti-regionalism
A different vision of local power v. state power
City of Ocala v. Nye , (Fla, 1992) (p 177)
City wants to exercise eminent domain over an entire tract of land, not just the portion needed to widen a street, to save money. Argues that under Home Rule, can do so, since county and DOT can do so.
Court: If a state or county can save money by acquisition, then a locality can too.
McCrory Corporation v. Fowler, (Md. Ct. of Appeals 1990) (p 178)
Did enactment of Montgomery County Code, which creates a private cause of action for employment discrimination entitling a claimant to sue for damages, injunctive or other civil relief, exceed the authority delegated to chartered home rule counties?
Court: State has addressed this issue in Article 49B of MD Code. County goes too far, this is not just a local problem; there is a statewide interest.
Type Issue Standard
HR Initiative Municipal Affairs Any local Any state
HR Immunity public interest interest
(Nye) (Bradley
Fowler)
-- Balancing –
La Grand Dissent &
N.O. Living wage
Civil/Private Constitutional Limits
(Marshal House) (Marshal House)
(New Orleans Living Wage)
Structural/Substantive
(La Grande & Schweiker)
Interfering w/ state police power
(New Orleans Living Wage)
Factors Who Decides Rational
Scope of Impact Courts (Bradley) Competency
Scope of Issue Locality (Nye, N.O. Dissent) Uniformity
History/Tradition State (Schweiker) Efficiency
Marshal House, Inc. v. Rent Review and Grievance Board of Brookline, (Mass. 1970) (p 183)
Rent control ordinance challenged. State constitution expressly limits power to enact law governing civil relationships to that which is incidental. Town argues that it is an economic relationship, not civil. Landlords (Marshal House) argues that it is a civil, landlord/tenant relationship. Is rent control a local concern? Yes, but not only local concern. Statewide concern.
Court: Constitution (§7(5)) prevents local rent control law. There is an absence of explicit delegation.
5. Home Rule as a Protection Against State Power (p 187-207) (class 7 – cont.)
City of La Grande v. Public Employees Retirement Board, (Oregon 1978) (p 194)
State law required all police and firemen to be brought within the state’s retirement system, unless the local system was equal or better. City argued that it was a home rule, local affair. Retirement board argued that it was a statewide concern.
Court: Statewide interest and concern. Rule didn’t create government bodies or say how they worked. Court worried about court’s role (legislating from bench.) Says that it is a structural concern.
Dissent: Old test looked at both sides and determined whether state or local had greater interest.
Johnson v. Bradley, (Ca 1992) (p 203)
City ordinance regarding limits on campaign contributions, not spending and providing public funding. State law says no public monies.
Court: Local law is not related to state issue.
(p 207-238) (class 8)
City of Philadelphia v. Schweiker, (Pa 2004) (p 207)
Parking Authority in Philadelphia. State law adds members to formerly governor appointed board and requires money to be paid to school districts.
Court: Parking authority is administration of state not city.
Very Dillon’s Rule / State creature case. Structural argument – home rule doesn’t even enter picture. Court deferential to legislature – state says statewide = statewide. (State determination of structural question)
Town of “Telluride v. Lot Thirty-Four Venture, (Co 2000) (p 212)
Land use code imposes requirement for low cost housing for all new developments. Developers given 4 options under city rule. Build, buy or give money to mitigate problem. Developer says this is rent control. State has law against rent control. City says not rent control, or alternately, home rule immunity.
Court: rent control, what about home rule ?
Is state interest sufficient to justify preemption of home rule authority?
1. Need for statewide uniformity of regulation.
2. Impact on individuals outside of community
3. Is subject matter traditionally governed by state or local?
4. Does Colorado constitution commit issue to either state or local?
Conclusion – Mixed interests, state and local. Because the two measures conflict, state interests wins.
Dissent: Not rent control, but land use controls, because of options for mitigations.
New Orleans Campaign for a Living Wage v. City of New Orleans, (La 2002) (p 219)
State had law prohibiting local governments to establish a minimum wage that private employers would have to pay employees. City of New Orleans passed ordinance for minimum wage for workers in the city. State constitution has 9B rule that local home rule cannot be used to abridge state police powers.
Court: State legislature used reasonable exercise of police power.
Concurrence: Ordinance invalid because of its effects on private and civil relationships, not effect relative to police power.
Dissent: Strips locality of all power, no evidence of state interest (liked local’s experts better and would give deference to local.
6. State Legislative Preemption
Town of “Telluride v. Lot Thirty-Four Venture, (Co 2000) (p 212)
Cincinnati Bell Telephone Company v. City of Cincinnati, (Ohio 1998) (p 227)
American Financial Services v. City of Oakland, (Ca. 2005) (p 230)
Ordinance regulating predatory lending (for mortgages) is pre-empted by state legislation enacted 6 days after ordinance.
Court: Tradition/history, efficiency, uniformity. Balance between lenders and the secondary market (mortgage purchasers), and civil/private relationships. State legislation pre-empts.
Dissent: Looks at intent and unique circumstances of Oakland.
David J. Barron, Gerald E. Frug, & Rick T. Su, Dispelling the Myth of Home Rule: Local Power in Greater Boston (2004) (p 235)
B. The Relationship Between Cities and the Federal Government (p 238-278) (class 9)
See list of cases in footnote #2, including:
United States v. Lopez, (US 1995) (p 239)
Holding Congress lacked affirmative power under the Commerce Clause to enact the Gun-Free School Zones Act of 1990, which made it a federal offense to knowingly possess a fire-arm in a school zone.
National League of Cities v. Usery, (U.S> 1976) (p 240)
Federal government enacted Fair Labor Standards Act and 40 years later says that the minimum wage applies to local government workers. Feds argue “Congressional power over areas of private endeavor, even when its exercise may preempt express state law determinations contrary to the result which as commended itself to the collective wisdom of
Congress, has been held to be limited only by the requirement that “the means chosen by Congress must be reasonably adapted to the end permitted by the Constitution”.” (Heart of Atlanta Motel v. U.S. (1964)). And it is categorical – minimum wage.
Court (Rehnquist): Structural/Substantive – how government is formed/designed to function is local only. Federalism – Regulation would interfere with how State government is structured. The exercise of congressional authority does not comport with the federal system of government embodied in the Constitution.
Concurrence (Blackmun): Balancing test – leaves open other areas where the Federal interest would be greater, such as EPA.
Dissent (Brennan): Structural safeguards are in place, the congress is made up of people from states. The courts shouldn’t decide, there are political remedies there to protect the states.
Dissent (Stevens); Line drawing. There are already many similar regulations like tax withholding etc. Concerned about judicial role in line drawing.
Garcia v. San Antonio Metropolitan Transit Authority, (U.S. 1985) (p 246)
Revisits NLC, but concerns employees of municipally owned transit authority. OVERRULES NLC!
Court (Blackmun – who concurred in NLC): Viewed as government immunity question. Look at 4 conditions necessary for immunity. (1. Fed statute must regulate the states as states; 2. must address matters that are indisputably attributes of state sovereignty; 3. State compliance with the federal obligation must directly impair the states’ ability to structure integral operations in areas of traditional governmental functions; 4. the relation of state and federal interests must not be such that the nature of the federal interest justifies state submission. Focus on #3. Federalism must let locals make laws whether traditional or not. Falls back on Brennan’s dissent in NLC that political process is the safeguard.
Printz v. United States, (U.S. 1997) (p 254)
Brady Act required local officials to run background checks for gun purchases until the federal system was put in place. The states and cities argued that this was commandeering (the local officials).
Court (Scalia): Separation of powers (structure), Federal control of state or local officials at no cost unbalances system. If locals do fed work, must be accountable. Must have categorical division. \
This is ANTI-federal government, as opposed to Pro-state like NLC.
** Compare NLC, Garcia, Printz and Lopez.
Lawrence County v. Lead-Deadwood School District, (U.S. 1985) (p 265)
Payment in Lieu of Taxes paid by Feds to local government. South Dakota statute required local government to distribute in the same way as general tax revenue – 60% to school. Fed. law doesn’t specify use. County (Lawrence) decides not to give 60% to school district. School district sues county.
Court (White): Congress intended local government to be managers of funds, not merely the state’s cashiers. Supremacy clause. Preemption. Alternate argument Spending clause – Feds didn’t have to give money, State (or its creature) didn’t have to take it. Could put conditions, like seatbelt or drinking age.
Nixon v. Missouri Municipal League, (U.S. 2004) (p 268)
Missouri enacted law that forbid municipalities from entering telecommunications market. FCC/US statute forbids states from prohibiting “any entity” from entering into telecommunications.
Court (Souter): Federal statute only applies if state is trying to prevent “private” entity. Feds can’t give power to a creature of the state, that the state denies to that creature. NOT preemption.
C. The City and Democratic Theory: Part Two (p 278-29 class 10 – part 1)
Robert Dahl, Dilemmas of Pluralist Democracy (1982) (p 279)
6 Dilemmas = Inclusive/exclusive; rights/utility; equality of individual/equality of organizations; uniform/diverse; central/decentral; and concentration/dispersion of resources.
Michael Zuckerman, Peaceable Kingdoms (1970) (p 287)
“No one suspected that the representatives of a free people would dare to act contrary to the declared sense of their constituents.”
Richard T. Ford, Law’s Territory (A History of Jurisdiction) (1999) (p 297)
Decentralization/Centralization. Boundaries and identifications reinforce central control. (Small factions controlling larger (central) government.) Opposite of Madison’s ideas. Minorities gain power by isolation and segregation. (Like Romer).
Ch. 3 RELATIONSHIP AMONG NEIGHBORING CITIES
A. City-Suburb Relationship
1. An Introduction to the Relationship Between Cities and Suburbs. (p 304-333 class 10 continued)
Peter Hall, Cities of Tomorrow (1988) (p 306)
Kenneth T. Jackson, Suburbs Into Neighborhoods (1985) (p 309)
Annexation to increase city size – wanted by villages pre-civil war, not so much after.
Lewis Mumford, The City in History (1961) (p 314)
“Lonely crowd” – cut off from human contact.
Kenneth Jackson, The Federal Housing Administration (1985) (p 317)
Richard T. Ford, The Perpetuation of Racially Identified Spaces: An Economic/Structural Analysis (1994) (p 323
Economic/race analysis – Conclude there would be the same result, with or without racism.
2. City Formation (p 333-349, class 11 part 1)
Richard Briffault, Our Localism: Part I – The Structure of Local Gov’t Law (1990) (p 335)
Boundaries not set in stone – political and arbitrary. Courts sometimes find “community of interest.”
Gary J. Miller – Lakewood Plan p. 337
Easy to incorporate
Little judicial interference
Main selling point: avoidance of increased property taxes of annexation
Rational: “way out for property owners who didn’t want to pay for the municipal provision of private or re-distributional services.” Also, limited bureaucracy less likely to push for new or expanded services. Also, zoning to control population rejects local identity and local control rationales.
Robert E. Land and Dawn Dhavale – Reluctant Cities (2003) (p. 340)
Unincorporated CDPs [Census Designated Places (unincorporated areas of urban development)] and incorporated places differ in that the latter have legal powers and responsibilities, while CDPs can function as de facto cities without official designation.
Two main conditions explaining CDP’s
Strong county-level government that assumes the role of municipal services AND/OR
Private governments such as homeowners’ associations
Board of Supervisors of Sacramento Co. v. Local Agency Formation Commission (1992) p. 343
California Supreme Court case in which members outside of proposed incorporation area challenged the state law specifying that the vote regarding proposed incorporation be conducted only among those residing within the proposed incorporation’s limits, on equal protection grounds. Process = Petition w/ 25% of voters or landowners ( Commission approval and hearing ( voter confirmation.
No constitutional right to vote on municipal incorporation or annexation
Right to vote does not necessarily require application of strict scrutiny.
Under strict scrutiny, Compelling interest measure must be applied if a classification has a real and appreciable impact upon the equality, fairness and integrity of the electoral process
State plenary power entitles state to identify as differing in degree the interests of those who may vote and those who may not. Therefore: Rational basis standard
Creatures of the state (Trumps right to vote)
Issue is not the right to vote but rather the state’s plenary power to set the conditions under which its political subdivisions are created.
Legitimate purpose and fairly related to declared purpose
City of Tuscon v. Pima County (2001) Az. Ct of Appeals p. 348
Is it constitutional for the Arizona state legislature to require the consent of a proximate municipality before an area may incorporate? Yes
No constitutional right to vote on municipal incorporation or annexation
Reasonably related to a legitimate state interest and all persons within established class are treated equally
5. The Ability Of Cities To Annex Outsiders (p 388-402 class 11 continued)
Who needs to agree before one city can annex another?
Both annexing and annexed all votes counted together
Hunter v. Pittsburgh (1907) p.115
Only those in annexing city
Murphy v. Kansas City, Missouri (1972)
Only those in annexed city
Moorman v. Wood (Ky 1980)
Both annexing and annexed – separate votes, both requiring majority
Town of Lockport v. Citizens for Comm. Action (NY then US 1977) p. 390
Hunter v. Pittsburgh (1907) (p. 115)
City of Pittsburgh sought to consolidate with city of Alleghany. Majority of proposed consolidated city residents (Pittsburgh and Alleghany) voted for consolidation. Majority of Alleghany voted against. Pittsburgh’s larger population, who voted yes, outweighed negative vote of Alleghany. 1. voting scheme 2. “city” property. -- Associational right/Private property rights 3. Takings
Decision known for concept that city is merely a part of the state.
Town of Lockport v. Citizens for Comm. Action (NY then US 1977) (p. 390)
Justice Stewart
Majority of city voters approved the charter for Niagara County which created new offices of County Executive and County Comptroller, while majority of non-city voters disapproved. However, the combined votes added up to a majority approval.
Two Issues:
1. Is there a genuine difference in the relevant interests of the groups that the state electoral classification has created?; and if so,
2. Whether any resulting enhancement of minority voting strength nonetheless amounts to invidious discrimination in violation of the Equal Protection Clause.
NY subdivisions of government (County, City, Town & Village) provide for differing functions of those units as deliverers of government services. New charter may operate to transfer functions or duties from towns or cities to county, or even abolish them.
If posed in the context of annexation proceedings, the fact … of impending union alone would not so merge them into one community of interest as constitutionally require that their votes be aggregated.
David Rusk – Lessons from Urban America (1995) (p. 395)
The real metropolis is the city plus suburb.
Most minorities live in the cities.
The City must be elastic to grow.
Annexation is the most common way for a city to stretch/grow.
Elastic cities capture suburban growth, inelastic cities contribute to suburban growth. Suburbs will incorporate to block annexation.
Racial prejudice shaped growth patterns because inelastic cities are more segregated.
Fragmented local government fosters segregation/ unified fosters integration.
REDISTRIBUTIVE objective (inelastic cities cannot make suburbs share the burden)
Gary J. Miller – Municipal incorporation under LAFCO (1981) (p. 399)
Local Agency Formation Commission (California)
Incorporations don’t prevent the imposition of political externalities by neighboring municipalities, they impose political externalities on their neighbors by depriving them of a relatively high tax base that was capable of serving a broader population.
Also could be seen as zero sum game for potential property and sales tax revenue.
LAFCO’s makeup only increased political and economical problems with competing cities trying to annex a community trying to incorporate to avoid annexation by any. All three cities ended up annexing portions of the would-be incorporated community.
Goodyear Farms v. The City of Avondale (Az 1986) (p. 402)
Petition signed by land-owners can initiate annexation. Goodyear argues that denying non-property owners the right to participate in the annexation decision violates equal protection.
Court determined that:
* unlike elector signature on petition, property owner signature on petition is a private right rather than the political right, and is not analogous to voting.
* Petitioners are mere supplicants and have no power or right to require annexation. The decision is entirely discretionary with the city or town’s governing body.
6. Secession: The Ability to become Outsiders ( p 407-418 class 11 continued)
City of New York v. State of New York (NY Ct. of Appeals 1990) (p. 409)
Per Curiam
NY State legislation to allow non-binding referendum regarding secession of Staten Island from NYC, that could later be enacted by legislature, challenged by NYC. Supreme Court of NY granted State’s cross motion for summary judgment, holding that the State has plenary power to change municipal boundaries without home-rule constraints.
Affirmed on different grounds.
Impact of the law is speculative or anticipated. Since the law does not authorize secession, or commit any power of legislature, does not impact on home-rule issue.
Equal protection also not an issue, since only allows Staten Islanders to voice view, not enact change.
Gerald Frug, Is Secession from LA a good idea? (2002) (p 415)
The governments of larger cities become too remote for individual participation and cannot answer to specific neighborhoods, boroughs, etc. What use is local governments? What about Madison’s fear that small (local) governments would become factions?
____________________________________________________________________
Incorporation
Annexation
Secession
Reynolds v. Sims – 1 man = 1 vote (Congressional redistricting)
Sacramento – Annexed (plus county commission)
Tucson – Annexing
Hunter – Total Area (Deference to state)
Lockport -- Duel Box
Goodyear – Annexed
NY – Annexed
LA – Duel Box
Significance of drawing boundary lines and what constitutes the community? In US, usually residency.
When has state gone too far? Reynolds v. Sims – Congressional Redistricting
3. The Distinction Between Residents and Non-Residents (p 349-363 Class 12 part 1)
Holt Civic Club v. City of Tuscaloosa (US 1978) (p 351)
Residents of Holt, an unincorporated community outside the city limits of Tuscaloosa, Ala., by Alabama statute are within the “police jurisdiction” (3 mile radius) of the city, yet are denied franchise in the municipal elections. They sought franchise, under the equal protection clause of 14th Amendment.
Court (Rehnquist):
A government unit may legitimately restrict the right to participate in its political processes to those who reside within its borders. No voting rights issue.
The number, nature and duration of the powers conferred upon municipal corporations and the territory over which they shall be exercised rests in the absolute discretion of the state. No “compelling interest” argument? Deference to state legislature.
Other States authorize extraterritorial lawmaking powers and tradition/history are used as supporting arguments. “Traditional Local government powers”
No equal protection issue.
Dissent (Brennan, White and Marshall)
In the past, geographical boundaries have proved to include excluded voters, due to the level that they were affected by the decisions of the governing authority. The residents of Holt are even more affected than the excluded voters in the cases that established that the geographical boundaries of residency were acceptable means of distinguishing qualified from unqualified voters.
Strict judicial scrutiny should be used unless residency requirements were appropriately defined and uniformly applied, with appropriately defined deriving from the purpose of such requirements. (to preserve the basic conception of a political community.)
Dissent’s read of majority opinion is that residents of Holt are not “governed enough” to need to be included in political process. Dissent feels that clearly the “real” community is the outside boundary, that area including the police jurisdiction.
May v. Town of Mountain Village (10th Cir. Ct. of Appeals 1997) (p 360)
Resort town voted (residents only) to pass charter, allowing non-resident property owners to vote in municipal elections. Some residents challenged on equal protection grounds, asserting vote dilution.
*Vote not restricted but expanded.
*Rule: Where a law expands the right to vote causing voting dilution, the rational basis test has been applied by the vast majority of courts. (Strict scrutiny requires suspect class)
*Non-resident property owners have sufficient interest in town affairs to make it rational for the town to include them in the political process.
Wit v. Berman (2nd Cir. Ct. of App 2002) (p 363)
Two men who are part-time residents of NYC, and registered to vote in another locality in NY state. They would be eligible to vote in NYC, if they were not registered in the other locality. They argue that they should be able to vote in NYC municipal elections, for equal protection reasons. (By not being allowed to vote in NYC, they are being treated differently.)
Election Law uses residence as qualifier for voting, and defines residence to one location, which the voter can choose if more than one is possible.
One or the other rule stands because it is constitutional, and multiple homes multiple vote system would be too chaotic.
3. The Ability of Cities to Favor Their Residents Over Outsiders (p 366-385 class 12 continued)
Martinez v. Bynum (US 1983) (p 368)
Child (US citizen) living with sister who is not guardian is denied tuition-free schooling, due to statute that requires residency for parent or guardian. Statute challenged on equal protection grounds.
Court (Powell): A bona fide residence requirement, appropriately defined and uniformly applied, furthers the substantial state interest in assuring that services provided for its residents are enjoyed only by residents. Statute is not unconstitutional. Local control for education. This is impact legislation, like Plessy.
Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of Nat. Resources (US 1992) (p 370)
Michigan statute prohibits landfills from accepting waste from outside the county. Challenged under Dormant Commerce Clause. On face similar to Philadelphhia v. New Jersey.
Michigan argues that is distinguished because treats all waste from within state, but outside county same as waste from outside state. Also purpose is for planning purposes, not protectionist.
Court: (Stevens)
*A state statute that clearly discriminates against interstate commerce is therefore unconstitutional unless the discrimination is demonstrably justified by a valid factor unrelated to economic protectionism. (New Energy Co of Indiana v. Limbach)
*A state or one of its political divisions may not avoid the strictures of the Commerce Clause by curtailing the movement of articles of commerce through subdivisions of the state rather than through the State itself.
*The state bears the burden of proving that they further health and safety concerns that cannot be adequately served by nondiscriminatory alternatives.
Dissent (Rehnquist):
*When confronted with a dormant Commerce Clause challenge the crucial inquiry must be directed to determining whether the challenged statute is basically a protectionist measure, or whether it can fairly be viewed as a law directed to legitimate local concerns, with effects upon interstate commerce that are only incidental. (Phil. v. NJ)
*But I cannot agree that such a requirement, when imposed as one part of a comprehensive approach to regulating in this difficult field, is the stuff of which economic protectionism is made.
Substantive local concern, and substantive economic concern.
White v. Mass. Council of Construction Employees, Inc. (US 1983) (p 374)
Boston executive order required that all construction projects funded in whole or in part by city funds, or funds which the city had the authority to administer, should be performed by a work force consisting of at least half bona fide residents of Boston. Challenged on Commerce Clause grounds.
Court (Rehnquist):
*Nothing in the purpose animating the Commerce Clause prohibits a State, in the absence of congressional action, from participating in the market and exercising the right to favor its own citizens over others. (Alexandria Scrap Corp.)
*Alexandria Scrap and Reeves, therefore, stand for the proposition that when a state or local government enters the market as a participant it is not subject to the restraints of the Commerce Clause.
*There is a single inquiry: whether the challenged program constituted direct state participation in the market.
*The application of the mayor’s executive order to contracts involving only city funds does not represent the sort of attempt to force virtually all businesses that benefit in some way from the economic ripple effect of the city’s decision to enter into contracts for construction projects to bias their employment practices in favor of the city’s residents.
*Everyone affected by the order is, in a substantial if informal sense, working for the city.
Dissent (Blackmun):
*The city has not attempted merely to choose the parties with whom it will deal. Instead, it has imposed as a condition of obtaining a public construction contract the requirement that private firms hire only Boston residents for 50% of specified jobs. Thus the order directly restricts the ability of private employers to hire nonresidents, and thereby curtails nonresidents’ access to jobs with private employers. Public/Private.
United Building & Construction Trades Council v. Camden (US 1984) (p 379)
City of Camden, NJ, ordinance requires that at least 40% of the employees of contractors and subcontractors working on city construction projects be Camden residents. Challenged as violating Privileges and Immunities Clause.
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
Court (Rehnquist):
*Does not violate Commerce Clause.
*The Immunities Clause applies to laws passed by a municipality (as a creature of the state) and applies to laws that discriminate on the basis of municipal residence, as well as state citizenship.
*An out-of-state citizen who ventures into NJ will not enjoy the same privileges as the NJ citizen residing in Camden. (NJ citizens not residing in Camden will be affected by the ordinance as well as out-of-state citizens.)
*Only with respect to those privileges and immunities bearing upon the vitality of the Nation as a single entity must the State treat all citizens, resident and nonresident, equally.
*Is an out-of-state resident’s interest in employment on public works contracts in another state sufficiently fundamental to the promotion of interstate harmony so as to fall within the purview of the Privileges and Immunities Clause? Yes.
*Is there substantial reason for the difference in treatment?
*The inquiry in each case must be concerned with whether such reasons do exist and whether the degree of discrimination bears a close relation to them.
*Nonresidents must somehow be shown to constitute a peculiar source of the evil at which the statute is aimed.
*Impossible to evaluate Camden’s justification on the record as it now stands. Remanded for the necessary findings.
Dissent (Blackmun):
*Discrimination on the basis of municipal residence is substantially different in this regard from discrimination on the basis of state citizenship. The distinction is simple but fundamental: discrimination on the basis of municipal residence penalizes persons within the State’s political community as well as those without.
*Political process provides avenue of relief.
*Discrimination on the basis of municipal residence simply does not consign residents of other states, in the words of Toomer, to the uncertain remedies afforded by diplomatic processes and official retaliation.
B. Conflicts Among Cities
1. Exclusion: Race and Class Segregation (p 418-453 Class 13)
Village of Arlington Heights v. Metropolitan Housing Dev. Corp. (US 1977) (p 422)
Arlington Heights Board denied rezone that would have allowed multifamily housing (for low to middle income) in an area zoned for detached single-family housing. Because the decision had a disproportional impact on racial minorities, the decision was challenged as racially discriminatory.
Court (Powell):
*Official action will not be held unconstitutional solely because it results in a racially disproportionate impact. Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination. (Washington v. Davis 1976)
*Davis does not require a plaintiff to prove that the challenged action rested solely on racially discriminatory purposes.
*When there is proof that a discriminatory purpose has been a motivating factor in the decision, judicial deference is no longer justified. Discriminatory treatment.
*Respondents failed to carry their burden of proving that discriminatory purpose was a motivating factor in the Village’s decision. Lower courts’ findings affirmed.
Decision by planning board is consistent with previous rulings. Decision made in fair manner. Exclusion is okay.
Southern Burlington County NAACP v. Township of Mt. Laurel (NJ 1975) (Mt. Laurel 1) p. 425
NJ town zoned in a fashion to only include the economically advantaged. (Middle to upper class incomes.) Outlier case, not followed by other courts. Also revisited by same court in Mt. Laurel II, (1983) with even stronger language and controls. Not race, but socio-economic based discrimination.
Court: State interst – fair share
*Developing municipalities – Almost every one acts solely in its own selfish and parochial interest and in effect builds a wall around itself to keep out those people or entities not adding favorably to the tax base, despite the location of the municipality or the demand for varied kinds of housing.
*We conclude that every such municipality must, by its land use regulations, presumptively make realistically possible an appropriate variety and choice of housing. More specifically, presumptively it cannot foreclose the opportunity of the classes of people mentioned for low and moderate income housing and in its regulations must affirmatively afford that opportunity, at least to the extent of the municipality’s fair share of the present and prospective regional need therefor.
*However, it is fundamental and not to be forgotten that the zoning power is a police power of the state and the local authority is acting only as a delegate of that power and is restricted in the same manner as is the state. So, when regulation does have a substantial external impact, the welfare of the state’s citizens beyond the borders of the particular municipality cannot be disregarded and must be recognized and served. (Dillon)
*Obligation of such municipalities is presumptive – procedurally and substantively.
-Procedurally-- A facial showing of violation of substantive due process or equal protection shifts the burden to the municipality to establish a valid basis for its action.
-Substantively – Relating to the specifics of the regulations and the basis for them.
*Mt. Laurel’s zoning ordinance is presumptively contrary to the general welfare and outside the intended scope of the zoning power in the particulars mentioned. A facial showing of invalidity is thus established, shifting to the municipality the burden of establishing valid superseding reasons for its action and non-action.
*Reasons advanced but insufficient:
-Seeking and encouraging the good tax ratables of industry and commerce and housing to attain or approach paying their own way tax-wise.
-The present environmental situation of the area
Exclusion forbidden
Board of Supervisors of Fairfax County v. Degroff Enterprises, Inc. (Va. 1973) (p 439)
Zoning ordinance amendment would require developers to rent or sell 15% of the dwelling units in the development to persons of low or moderate income at rental or sale prices not fixed by a free market, but by government agency.
*Socio-economic zoning is prohibited.
*Amendment exceeds authority granted because it is socio-economic zoning and attempts to control the compensation for the use of land.
*Also invalid because it requires the developer to rent or sell at prices not fixed by a free market, violating the guarantee in Va.’s constitution that no property will be taken for public purposes without just compensation.
Sheryll Cashin, Middle-Class Black Suburbs and the State of Integration (2001) (p 440)
Blacks and whites both want to live in a community that is integrated, but with their own race in the majority. Typical black enclave sits as a buffer between core black poverty areas and suburban white areas.
Richard T. Ford, Geography and Sovereignty (1997) (p 446)
Administrative v. legislative
Division of state for Organic social groups
convenience (synthetic) (constructed)
Note on Milliken v. Bradley (1974) p. 452
Can’t order inter-district busing. (Localities not at fault/responsible for creating segregation.
B. Conflicts Among Cities
2. The Distribution and Redistribution of Local Wealth (p 453 – 494 class 14)
(District Power Equalizing)
San Antonio Independent School District v. Rodriguez (US 1973 ) p 458
This suit attacking the Texas system of financing public education was initiated by Mexican-American parents whose children attend the elementary and secondary schools in the Edgewood Independent School District, an urban school district in San Antonio. They brought a class action on behalf of schoolchildren throughout the State who are members of minority groups or who are poor and reside in school districts having a low property tax base.
Court (Powell):
*The Equal Protection Clause does not require absolute equality or precisely equal advantages.
*No evidence that the financing system discriminates against any definable category of “poor” people or that it results in the absolute deprivation of education – the disadvantaged class is not susceptible of identification in traditional terms.
*Education is not among the rights afforded explicit protection under our Federal Constitution.
*To the extent that the Texas system of school financing results in unequal expenditures between children who happen to reside in different districts, we cannot say that such disparities are the product of a system that is so irrational as to be invidiously discriminatory.
System is constitutional
Dissent (Marshall & Douglas)
*It is apparent that the State’s purported concern with local control is offered primarily as an excuse rather than as a justification for inter-district inequality.
________________________________________________________________________________
Strict Scrutiny
Group Rights – Fundamental
People
Not Fed. Fundamental Rt.
Wealth Education
Areas Adequate – not equality
Rational Review
Legitimate Government Interest
Conflict between education for all kid &
family’s desire for best education for their own kid.
Federal Authority
v.
Local control of local funds
Fair share
Efficiency Slippery slope
Public/Private
_____________________________________________________________________________
Joan Williams, The Constitutional Vulnerability of American Local Government: (1986) (p 466_
* “Local Autonomy decisions” – Jeffersonian
Burger and Powell -- Consistently stress the virtues of local autonomy, community and local control. (Self-government at the local level)
Rehnquist -- Stresses the negative consequences of excessive federal power.
*If local units such as municipalities and school districts are mere subdivisions of the states, how can their inviolable core of local sovereignty function to limit federal courts’ ability to enforce fourteenth amendment mandates on the states?
*The Court’s local sovereignty principle enabled it to eviscerate fourteenth amendment equal protection requirements in the large number of cases in which discrimination in housing or schools cannot be remedied without alteration of local boundaries or local duties.
Edgewood Independent School District v. Kirby (Tex. 1989) p 470
Supreme Court of Texas case regarding the financing scheme of Texas for the public school system, with regards to the Texas State Constitution.
*Property-poor districts are trapped in a cycle of poverty from which there is no opportunity to free themselves. Funding doesn’t cover buildings, etc.
*The amount of money spent on a student’s education has a real and meaningful impact on the educational opportunity offered that student.
*We conclude that, in mandating “efficiency,” the constitutional framers and ratifiers did not intend a system with such vast disparities as now exist. (Equality?)
*A band-aid will not suffice; the system itself must be changed.
*The state’s school financing system is neither financially efficient nor efficient in the sense of providing for a general diffusion of knowledge statewide, and therefore that it violates article VII, section 1 of the Texas Constitution.
*Children who live in poor districts and children who live in rich districts must be afforded a substantially equal opportunity to have access to educational funds.
*The legislature’s responsibility to support public education is different because it is constitutionally imposed.
*Nor does it mean that local communities would be precluded from supplementing an efficient system established by the legislature; however any local enrichment must derive solely from local tax effort. (Adequacy focus – funding and social issues.)
Claremont School District v. Governor. (NH 1997 ) (p 474)
Case on appeal declaring the NH system of financing elementary and secondary public education unconstitutional. (State Constitution)
*The local school district, an entity created by the legislature … exists for the public’s benefit, to carry out the mandates of the State’s education laws. (Dillon)
*Providing an adequate education is thus a duty of State government expressly created by the State’s highest governing document, the State Constitution. (In NH, a constitutionally adequate public education is a fundamental right.)
*Although the taxes levied by local school districts are local in the sense that they are levied upon property within the district, the taxes are in fact State taxes that have been authorized by the legislature to fulfill the requirements of the NH Constitution. (Dillon)
*We hold, that the varying property tax rates across the State violate part II article 5 of the State Constitution in that such taxes, which support the public purpose of education, are unreasonable and disproportionate.
*When an individual school or district offers something less than educational adequacy, the governmental action or lack of action that is the root cause of the disparity will be examined by a standard of strict judicial scrutiny. Our decision does not prevent the legislature from authorizing local school districts to dedicate additional resources to their schools or to develop educational programs beyond those required for a constitutionally adequate public education.
Focus on equal taxation. Input issue – focus.
Sheff v. O’Neill (Conn. 1996 ) (p 478)
Public school financing with regards to the State Constitution of Conn. = Unconstitutional
*Directly or indirectly, the state has always controlled public elementary and secondary education in Conn. In 90-91 and 91 -92 school years, overall per pupil state expenditures in Hartford exceeded the average amount spent per pupil in the twenty-one surrounding suburban towns.
*The 1909 districting statute is the single most important factor contributing to the present concentration of racial and ethnic minorities. The districting statute is of critical importance because it establishes town boundaries as the dividing line between all school districts in the state.
*Defendants urge that plaintiffs must prove intentional governmental discrimination against a suspect class. (like San Antonio v. Rodriguez) Court rejects this.
*There is no right to education under the US Constitution.
*The Conn. Constitution contains a fundamental right to education and a corresponding affirmative state obligation to implement and maintain that right.
*We can perceive no principled distinction between judicial intervention to require legislative action to protect the fundamental right to vote and to require equal educational opportunity.
*The findings regarding the causal relationship between the poverty suffered by Hartford schoolchildren and their poor academic performance cannot be read in isolation.
*Further judicial intervention should be stayed to afford the General Assembly an opportunity to take appropriate legislative action.
*Conn. Constitution forbids segregation (Art. I, § 20)
Dissent: There are no facts in the record to support what the majority asserts are the devastating effects that racial and ethnic isolation have had on plaintiffs education. Virtually all of the differences in performance between Hartford students and those in other towns, can be explained by differences in socioeconomic status and the background factors that socioeconomic status represents. The majority concludes, that the plaintiffs have been so deprived solely because of their racial and ethnic isolation.
Note on the Sheff v. O’Neill Settlement p. 487
Richard Schragger, Consuming Government (2003 ) (p 491)
Homevoter = a homeowner who votes
*Fischel – local government decisions are reflected in house values -- has intuitive appeal.
*The existence of externalities means that the quality or availability of local amenities is often beyond the control of a specific local government.
2. Sprawl and Efforts to Control It (p 494 – 527 class 15)
What is sprawl? What causes it?
Sprawl
1. Suburgbanization
expansion
2. Building over renovation
efficiency
3. Population Density
4. Sprall of wealth
5. Frustration of Centralized/traditional form of cities
6. Auto/mass transit
7. “planning”
“leap frog” development
_________________________________
Cause
• Cultural
Preference Tradition
• Government/Economic Policy
Available Options
John M. Findlay, Magic Lands (p 496)
Langdon Winner, Silicon Valley Mystery House, (p 501)
Edward Soja, Postmodern Geographies (p 505)
Joe Garreau, Edge City (p 508)
American Planning Association, Growing Smart Legislative Guidebook (p 509)
Gerrit Knaap and Arthur C. Nelson, The Regulated Landscape (p 511)
Carl Abbott, The Portland Region (p 514)
Note on Oregon’s Proposition 37 (p 521)
Gregg Easterbrook,
Comment on Danielsen, Lang, and Fulton’s “Retracting Suburbia” (p 524)
C. Regional Solutions to Inter-local Conflict
1. Joint Undertakings (p 528-531 class 16 part 1)
Inter-local Bargaining (Agreements)
• two communities cooperate to provide a government service (by contract) such as fire, police, water, trash, etc.
* Localities retain distinctness – just cooperate and bargain
* Problem – different interests can make agreements difficult. also – unequal power and economic situations.
• Bottom up governing – but structural constraints.
Gerald Frug, Empowering Cities in a Federal System (1987) (p 531)
Free choice v. participation theories.
2. Public Authorities & Special District Regional Authorities (p 538-549 class 16 part 2)
* State created entity to provide a service to community (s) independent of city control. Authority extends across city boundaries.
* Limited purpose – regional issue
* Take politics out of issue (experts/professionals)
* Privatized (efficiency and avoid constraints that cities have)
* Usually funded through service or user fees. ** Limited purpose may affect/include other powers/concerns. (Georgia Regional Trans. Auth. p. 546)
People Ex Rel. Younger v. County of El Dorado, (Ca. 1971) (p 541)
California and Nevada, with the approval of Congress, entered into the Tahoe Regional Planning Compact, the purpose is to provide for the region as a whole the planning, conservation and resource development essential to accommodate a growing population within the region’s relatively small area without destroying the environment.
Richard Briffault, Our Localism: Part II – Localism and Legal Theory (1990) (p 540)
Authorities provide services without intruding on suburban autonomy.
3. Regional Planning (p 550-556 class 16 part 3)
* Federal creation (funding and incentives
* Top Down – but little power delegation
4. Regional Government (p 557-563 class 16 part 4)
* Consolidation (3 – tier)
5. Beyond Regional Government (p 574-575 class 17 part 1)
Gerald Frug, City Making: Building Communities Without Building Walls (p 575)
We must start by recognizing the arbitrariness of the city/suburb lines that now fracture America’s metropolitan areas.
* Beyond borders (Agro-graphical)
- distinctions between city and suburbs are not as strk. (Cities have residential areas and suburbs have office space and shopping)
- Interests are not as divided, or bounded by municipal boundaries. People have interests and concerns in other areas than where they live
* Critique of residency (under inclusive)
* 2 proposals: Regional Legislature & Electoral Allocation (5 local votes ea.)
D. The City and Democratic Theory: Part Three (p 575-613 class 17 part 2)
Italo Calvino, Invisible Cities (p 586)
Rosabeth Moss Kanter, Commitment and Community (p 587)
Philippe Aries, The Family and the City in the Old World and the New (p 600)
Saskia Sassen, The Global City: New York, London, Tokyo (p 608)
Ch. 4 THE RELATIONSHIP BEWEEN CITIES AND THEIR CITIZENS
A. City Control of Community Character (p 614 -650 class 18)
Village of Belle Terre v. Boraas (US 1974 ) p. 16
Unrelated college students living in Long Island town zoned only for single families.
Court (Douglas)
* Does not impinge on any fundamental right (association or privacy) . Only needs to be reasonable, not arbitrary, and bear a rational relationship to a permissible state objective. (Rational basis) Reed v. Reed, 404 US 71.
* Reasonable objectives of family values, youth values, and the blessings of quiet seclusion and clean air (traffic).
* Every line drawn by a legislature leaves some out that might well have been included.
Deference to local control. Who represents students? Are they a discrete insular minority?
Dissent (Marshall)
* Involves the Fundamental rights of association and privacy. Strict review required.
* Clear showing that the burden imposed is necessary to protect a compelling and substantial governmental interest. (Shapiro v Tthompson 394 US 618 (1969).
* Does not limit size of families, so places different standards on those who are related than those who are not.
White/Camden – right to travel – never really worked on local ordinances.
City of Cleburne, Texas v. Cleburne Living Center (US 1985 ) p. 622
City required special permit for group home for the mentally retarded. Did not require special permit for apartments, fraternity houses, sanitariums, nursing homes, etc. (Does for insane, feebleminded, alcoholics and drug addicts.) City denied permit to group home for mentally retarded. Court of appeals ruled that mentally retarded were quasi-suspect group, and ordinance requiring permit subject to heightened scrutiny.
Court (White):
* Court of appeals was in error to rule on quasi-suspect category and requiring heightened scrutiny. Rational basis review is all that is required.
* No rational basis for city to treat mental retardation group homes different than other land uses like hospitals and fraternity houses. Negative attitudes and fear of offenders are not permissible reasons. Ordinance is invalid, on equal protection grounds.
Concurrence (Marshall, Brennan & Blackmun) in part:
* Explanation for heightened scrutiny of decision used by majority. History of discrimination and importance of the interest. (Sounds like Quasi-suspect)
City of Renton v. Playtime Theaters, Inc. (US 1986 ) p. 632
City without any adult theaters passes ordinance in 1980 restricting their locations to not in residential, school, church zones. Company buys 2 theaters in restricted area, challenges ordinance on 1st and 14th Amendment grounds. Before challenge is heard, city amends ordinance to provide reasons for ordinance. (crime etc.)
Court (Rehnquist)
* Standard for reviewing 1st Amendment restriction legislation is content based/neutral content, time place and matter. Content neutral time, place, and manner regulations are acceptable so long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communications.
* Fits time place and manner category. Doesn’t fit into either content based or content neutral category. District court found content neutral because ordinance primarily concerned secondary effects, not content. Court of appeals rejected district court view, and found any motivating factor enough to invalidate ordinance.
* Predominate intent standard used by district court is correct. Ordinance is consistent with content neutral rule.
* Locations in city available outside of restricted area satisfies alternate avenues of communications leg.
* Can rely on studies from Seattle, don’t need new ones.
* City can restrict by dispersing or concentrating adult theaters to further interest.
Dissent (Brennan and Marshall)
* Ordinance discriminatory on its face, because other theaters and other forms of adult entertainment are not also restricted, suggesting content based. (Majority says that city can enact other ordinances to deal with adult entertainment businesses)
* Should have strict scrutiny, where city would have to prove that it is a precisely drawn (narrowly tailored) means of serving a compelling government interest.
* Also, fails on alternate avenues of communications, since much of the available sites were already used for other purposes, or were unsuitable.
Michael Warner, The Trouble with Normal (1999) (p 639)
• The right to the city extends to those who use the city. It is not limited to property owners.
• The politics of privatization endangers sex publics .
• Zoning to move sex publics from urban to suburban was driven by real estate interests.
• All issues conflicted with public/private tension. Sex (private) for money (public),
• Not all of the thousands who visit Christopher street use the porn shops, but all benefit from the fact that some do. (Bars, boutiques etc.)
Richard T. Ford, Bourgeois Communities: A Review of Gerald Frug’s City Making (2003) (p 644)
San Francisco should come up with a plan that stops encouraging the poor and homeless from moving to the city for the benefits, and find a way to encourage the poor and homeless to move to a place that is less expensive to live, and provide services to the homeless who are making an effort to change their situation, and extract some benefit to the city from the homeless who stay and take advantage of the benefits (like a work for benefits program), and incorporate the homeless into the community, instead of just a burden on it. All this is because the homeless are making the city unattractive to tourists, and the city needs the tourists to survive.
B. Community Self-Defense Against Changes in Character (650 -689 class 19)
Italo Calvino, Invisible Cities (p 652)
Keith Aoki, Race Space, and Place (1993) (p 652)
The inner city refurbishment was a manifestation of the planners’ objective to once again make the central city attractive to those who could reconstruct its eroded tax base and infrastructure. In their efforts to placate powerful interest groups, redevelopment planners allowed the predatory motives of developers and contractors to manipulate urban renewal plans to serve their own ends. Also, they assumed that the numerous problems of the slums stemmed from poor design and that a clean, new, modern environment would inevitably lead to a healthy new social order.
Robert Caro, The Power Broker (1974) (p 657)
The story of how Robert Moses destroyed a NYC neighborhood, by routing the expressway through it, deliberately.
William H. Simon, The Community Economic Development Movement (2002) (p 668)
Audrey G. McFarlane, When Inclusion Leads to Exclusion (2001) (p 673)
Evan Mckenzie, Private Gated Communities in the American Urban Fabric (p 674)
Maready v. The City of Winston-Salem (NC 1996 ) (p 676)
Challenge to State legislation authorizing local governments to make economic development incentive grants to private corporations on public purpose clause (NC Constitution) grounds.
Court: Controlling case is distinguished, due to changing times and new legislation.
Two prong test:
1. It involves a reasonable connection with the convenience and necessity of the particular municipality, and
2. The activity benefits the public generally, as opposed to special interests or persons.
Economic development is a proper governmental function.
An expenditure does not lose its public purpose merely because it involves a private actor.
Legislation is constitutional.
Dissent:
• No evidence was presented that incentives improved the unemployment rate or resulted in meaningful economic enhancement.
• While economic times have changed and will continue to change, the philosophy that constitutional interpretation and application are subject to the whims of “everybody’s doing it” cannot be sustained.
Kelo v. City of New London (US 2005 ) p. 682
City of New London, Conn. developed comprehensive plan for economic development. All but 15 properties were purchased. City used eminent domain to take those last properties, even though they were not blighted, and the property owners or their relatives actually lived on them. Is city’s proposed use within 5th amendment’s definition of public use?
Court (Stevens)
Economic development is a recognized public purpose. Must not look at each piece “piecemeal” – must look at comprehensive plan as whole. Higher usage.
Dissent (O’Connor, Rehnquist, Scalia and Thomas)
No property is safe is government can take it and give it to another private interest that will put it to “higher use” increasing jobs or taxes for public interest.
Emphasis should be on what is being destroyed, not on what will be created, for purposes of public good. Should be used to remedy harm/blight.
Dissent (Thomas)
Disproportionate results on racial minorities and poor and elderly. Shouldn’t take private property to remedy harm or to improve economics. Can always think of a higher usage of property.
C. Paying the City’s Expenses
1. Taxes and Fees (p 690-715 class 20 part 1)
Nordlinger v. Hahn (U.S. 1992 ) (p 694)
Proposition 13 (1978) amended the California Constitution imposing strict limits on the rate at which real property is taxed and on the rate at which real property assessments are increased from year to year. This suit challenged Prop. 13, under EP Clause of 14th Amendment.
Court (Blackmun)
As a general rule, “legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality.” (McGowan v. Maryland, 1961).
The State has a legitimate interest in local neighborhood preservation, continuity, and stability. (Village of Euclid v. Ambler Realty Co., 1926)
No fundamental right, or protected class, so rational review standard.
Amendment furthers legitimate purposes.
Dissent (Stevens): Two families with equal needs and equal resources are treated differently solely because of their different heritage. Prop. 13 sweeps too broadly and operates to indiscriminately to “rationally further” states interest in neighborhood preservation.
Jonathan Schwartz, Prisoners of Proposition 13: Sales Taxes, Property Taxes, and the Fiscalization of Municipal Land Use Decisions. (p 699)
California Legislative Analyst’s Office, Reconsidering AB 8: Exploring Alternative Ways to Allocate Property Taxes (p 702)
Laurie Reynolds, Taxes, Fees, Assessments, Dues, and the “Get What You Pay for” Model of Local Government (p 703)
2nd Roc-Jersey Associates v. Town of Morristown, (NJ 1999) (p 706)
Are assessments imposed on real property in a municipal Special Improvement District unconstitutional because residential properties are excluded from the assessments?
Court; No. The Uniformity Clause of the Constitution (NJ) is inapplicable to special assessments. This is a special assessment.
Volusia County v. Aberdeen at Ormond Beach, L.P., (Fla. 2000) (p 711)
Public school impact fees assessed on new homes constructed in Aberdeen. Challenged by Mobile home park for retirees, that has a minimum age requirement. No children ever lived there, by deed restriction.
Court; Volusia County’s public school impact fees are unconstitutional as applied to Aberdeen.
Duel rational nexus test for determining the constitutionality of impact fees; the local government must demonstrate reasonable connections between (1) the need for additional capital facilities and the growth in population generated by the subdivision and (2) the expenditures of the funds collected and the benefits accruing to the subdivision.
2. Land Use and “Linkage” (p 716-730 class 20 continued)
Dolan v. City of Tigard, (U.S. 1994) (p 722)
State of Oregon enacted a comprehensive land use management program in 1973. It required all Oregon cities and counties to adopt new comprehensive land use plans that were consistent with the statewide goals. The city of Tigard adopted a plan and codified it in its community development code (CDC). They also adopted a Master Drainage Plan, that inter alia, required certain greenways. Petitioner Dolan owns a plumbing and electric supply store on Main Street.. Granted permit to expand business, on condition that she dedicate 10% of the property as a pedestrian/bicycle pathway. Petitioner appealed to Land Use Board of Appeals on the ground that the city’s dedication requirements were not related to the proposed development, and therefore those requirements constituted an uncompensated taking. Board conclude reasonable relationship, affirmed by Oregon Court of Appeals, and Oregon Supreme Court.
Nollan – Must have an essential nexus between the legitiamate state interest and the permit condition exacted by the city. (Coastal commission’s requirement for public access across private beach as condition for permit to replace bungalow with house unconstitutional because no “essential nexus”)
Right to exclude is “one of the most essential sticks in the bundle of rights that are commonly characterized as property.” Petitioner would lose this right with respect to the dedicated portion.
We conclude that the findings upon which the city relies do not show the required reasonable relationship between the floodplain easement and the petitioner’s proposed new building.
3. City Property Ownership (732 -761 class 21)
Durand v. IDC Bellingham (Mass. 2003) (p 732)
Power company offered $ 8 million as incentive to rezone to build 2nd power plant. Challenges as a “contract zoning.” Trial court invalidated rezone, which otherwise would have been valid because of “extraneous considerations.” Reversed on Appeal.
Gerald Frug, Property and Power (1984) (p 737)
David Osborne and Ted Gaebler,
Enterprising Government: Earning Rather Than Spending (p 742)
American Telephone and Telegraph Company v. Village of Arlington Heights (Ill. 1993) (p 747)
Municipality cannot raise revenue by coercing telephone companies into franchise agreements. What about land rights? If the government did it, would have to pay – Loretto (cable boxes on buildings).
Toledo Edison Company v. City of Bryan (Oh 2000) ( p 752)
Warner Cable Communications, Inc. v. City of Niceville (11th Cir. 1990) (p 756)
Bagford v. Ephraim City (Utah 1995) (p 758)
D. Performing City Functions
1. Delivering City Services (p 774-802 class 22 part 1)
E. Citizen’s Ability to Sue the City for a Violation of Their Rights (p 813-829 class 22 continued)
F. Citizens’ Ability to Influence City Policy Through Voting
1. Voting Equality (p 838-874 Class 23)
Avery v. Midland County, () (p 841)
Comes after Reynolds v. Sims – 1 person, 1 vote. Does Reynold v. Sims apply to local government?
court (White): yes
Lani Guineir, No Two Seats: The Elusive quest for Political Equality (1991) (p 852)
Alternatives
*Intensity (If four seats, each voter gets 4 votes)
*Bonding
_____________________________________
* Infighting *Apathetic *Already line drawing
* Accountability *Power *Limitations of voting
City of Eastlake v. Forest City Enterprises, Inc. (U.S. 1976) (p 864)
Does a city charter provision requiring proposed land use changes to be ratified by 55% of the votes cast violate the due process rights of a landowner who applies for a zoning change?
Ohio Supreme Court concluded that enactment of zoning and rezoning provisions is a legislative function, and permitted the police power to be exercised in a standardless, hence arbitrary and capricious manner.
Court (Burger) A referendum cannot be characterized as a delegation of power. All power derives from the people, who can delegate it to representative instruments, which they create. Charter provision is valid and constitutional.
(Not subset of voters, city-wide vote)
City-wide vote – public interest
Subset of voters – self interest
Frank I. Michelman, Political Markets and Community Self-Determination: Competing Judicial Models of Local Government Legitimacy (1978) (p 869)
Eubank v. Richmond, 226 U.S. 137 (1912)
Court invalidated a city ordinance, which conferred the power to establish building setback lines upon the owners of two-thirds of the property abutting any street. (Subset of voters)
Washington ex rel Seattle Title Trust Co. v. Roberge, 278 U.S. 116 (1928)
Court struck down an ordinance which permitted the establishment of philanthropic homes for the aged in residential areas, but only upon the written consent of the owners of two-third of the property within 400 feet of the proposed facility. (Subset of voters)
Thomas Cusack Co. v. Chicago, 242 U.S. 526 (1917)
City ordinance which excluded billboards from predominately residential blocks, except when a majority of the owners in the block would give written consent. Allowed, because it allowed neighbors to remove restrictions, not impose restriction.
2. The Initiative and the Referendum (p 885-887 class 23 continued)
City of Cuyahoga Falls v. Buckeye Community Hope Foundation, (U.S. 2003) (p 885)
Voters, by referendum, repealing approval of site plan for low income housing complex.
Court determined no proof of racially discriminatory intent or purpose. Referendum valid.
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