Showing papers in "Fordham Urban Law Journal in 1975"

Challenging Exclusionary Zoning: Contrasting Recent Federal and State Court Approaches

Abstract: The zoning power, though based on the police power of the states, has traditionally been granted to local communities through various state enabling statutes. These enabling statutes permit local enactment of zoning ordinances only to the extent that they bear a substantial relation to the “health, safety, morals, or general welfare” of the community. With the migration of middleclass city dwellers to thc suburbs after World War II, zoning has become more than a means of maintaining the proper mix of land-use patterns in a community. Rather, in fear of overly rapid development and irreversible alteration of their community character, towns have utilized the zoning power in an exclusionary fashion by such devices as minimum lot size, lot width, and exclusion of multiple dwellings. The effect of these practices is essentially cumulative and has added to the already serious housing problem. If one town zones in an exclusionary manner, the effect on surrounding communities is negligible. However, where many do so, the effects are substantial, causing an increase in the price of suburban housing and a decrease in the amount of such housing available to lowand middle-income persons. In recent years, several constitutional and common law arguments have been directed at exclusionary zoning. No argument has been met with consistent acceptance and thus exclusionary zoning remains a very unsettled area of the law. In recent years, there has been a marked contrast in the decisions reached in state and federal courts in exclusionary zoning cases. This Note will examine recent judicial approaches to the exclusionary zoning problem and attempt to delineate the proper function of the courts in this area.

Tidal Title and the Boundaries of the Bay: The Case of the Submerged "High Water" Mark

Abstract: There is no particular policy reason why the same line should be used for both the upland boundary of the jus publicum and the seaward boundary of parcels bounded “by the sea.” In interpreting the language used in grants of private interests, the ostensible object of the inquiry is to ascertain the parties (particularly the grantor’s) intent. Subject only to limitations on the grantor’s estate or power to convey, it is that intention which controls the extent of his transfer. On the other hand, in setting the upland boundaries of lands subject to the jus publicum, the courts are essentially making a policy determination, i.e., which lands are subject to what mode of use-allocation,” a question of law in which private intentions play no role. Nonetheless, for reasons which seem largely historical, the rule of construction for grants extending ”to the sea” has been held to result in the same boundary line as the line which, by law, defines the upland limits of the jus publicum. In the case of both, the line is the ”high water” line. This article explores judicial resolutions in New York to the question: ”Where is the high water line?”

A Legal History of Expense Budgeting in New York City

Abstract: An examination of the history of budget-making in the City of New York will show that the City has never operated from a sound, comprehensive budget system. That does not mean that the City has proceeded irresponsibly, or without regulation. Statutes to control the budget have existed in New York City since at least the beginning of the nation itself. And, most commendably, those very first statutes show a proper concern by the City for the needs of all its citizens. The difficulty has been, rather, the lack of a comprehensively drafted body of law to handle, as an integrated whole, all aspects of City budgeting. Consequently, it has always been possible to defeat, at least to some extent, some budgetary controls. The purpose of this Article is to examine in detail the history of the budget process in order to determine the extent to which the enacting of a budget by the City legislature is, in effect, illusory, and, in so doing, to assemble in one place the current legal materials relating to the appropriations side’ of the New York City expense budget.

Federal Magistrates and the Implications of Consensual References

Abstract: The significance of the magistrate in the efficient operation of the federal court system makes it important to analyze the extent of the magistrate’s powers as well as the limitations placed thereon. This note will examine the matters which may properly be referred to a magistrate and the standard of review which is used when the magistrate’s decision goes before the district court. A major consideration in this discussion will be whether parties, by their consent, can expand the scope of magistrate’s powers.

Religious Discrimination in Employment: The 1972 Amendment -- A Perspective

Abstract: This Note evaluates the effect of the 1972 amendment to the Civil Rights Act, which clarifies that the term “religion” includes ”belief” as well as practices and actions based on the belief, and requires reasonable accommodation to the employee’s religious needs unless the employer can show that an undue hardship is thereby imposed on his business. The Note determines whether the amendment has resulted clarification of the law governing religious discrimination. It focuses on three key terms in the amendment: religion, reasonable accommodation, and undue hardship. Finally, it considers the problem of employees whose beliefs preclude their membership in labor unions. RELIGIOUS DISCRIMINATION IN EMPLOYMENT: THE 1972 AMENDMENT-A PERSPECTIVE

Environmental Interest Litigants Are Not Entitled to an Award of Fees for Promoting Public Interests Absent Statutory Authorization. Alyeska Pipeline Service Co. v. Wilderness Soc'y, 421 U.S. 240 (1975).

Abstract: The Wilderness Society and other interested groups brought suit in the district court, seeking to enjoin construction of the Trans-Alaskan Pipeline on the grounds that: (1) the right of way granted the defendant violated the width restrictions of Section 28 of the Mineral Lands Leasing Act of 1920 and (2) the environmental impact statement required under Section 4321 of the National Environmental Policy Act (NEPA) was inadequate. The district court, after granting a preliminary injunction, reversed itself by dissolving the preliminary injunction and denying permanent relief. The Court of Appeals for the District of Columbia Circuit reversed, holding that the Secretary of the Interior lacked the power to grant permits to projects which violated provisions of the Mineral Lands Leasing Act. The merits of the action were effectively mooted by Congress, which passed legislation authorizing the pipeline project as it stood. Shortly thereafter, plaintiffs moved in the court of appeals for an award of attorneys’ fees. The motion was granted, and fees were awarded against defendant Alyeska Pipeline Service Company. In granting the motion, the appellate court implemented the ‘’private attorney general exception” to the so-called American rule, which normally protects a party to litigation from liability for his opponent’s attorneys’ fees. This exception springs from the rationale that, in certain instances, a private plaintiff’s suit may become a vehicle for the vindication of a public right. After finding the award of attorneys’ fees to be justified, the court ordered Alyeska to pay one-half of the total fees awarded, but no fees were ordered to be paid by either the United States government or the state of Alaska. The Supreme Court reversed the court of appeals, holding that adoption of any exception to the American rule was beyond the power of the courts, and that only the legislature could alter the substantive law in this manner. The decision curbs what has been an expanding tendency of federal courts to award attorneys’ fees to victorious plaintiffs in a variety of situations. Prior to Alyeska this tendency had elicited much judicial and scholarly support.

Economic Tipping: An Approach to a Balanced Neighborhood

Abstract: In the recent decision of Trinity Episcopal School Corp. v. Romney, a court, for the first time, was confronted with a proposal to apply a “tipping” standard solely on the basis of income, rather than racial grounds. The case involved a group of middle-income residents seeking to enjoin the State and City of New York, as well as the Department of Housing and Urban Development (HUD) from increasing an area’s low-income population through the building of various housing projects. ”Tipping” has been defined as ”that point at which a set of conditions has been created that will lead to the rapid flight of an existing majority class under circumstances of instability which result in the deterioration of the neighborhood environment.” The court in Trinity refused plaintiffs’ request to expand the tipping doctrine to include economic classifications because of the absence of legal precedent for such an argument and the inherent difficulty in expressing the tipping concept in economic terms. Although one court has recognized and accepted the concept of racial tipping, no court has extended this concept into the area of economics. Because all forms of tipping are relatively new concepts, parties using this argument must generally be wary of other problems; i.e., questions of standing and the evidentiary validity of sociological data and research statistics. These parties, recognizing the legal weaknesses of a tipping theory, have also added equal protection arguments where possible to encourage the courts to accept their position. Therefore, to be persuasive, an economic tipping argument should be fashioned after an argument for racial tipping.

Institutional Innovation in New Towns: The Dual Developer Concept

Abstract: New communities have long been celebrated as models for increased order and quality in the process by which rural land is brought into urban use and urban land into more intensive use. At the community level, innovations may be more readily tested in new communities rather than in existing settlements. While much attention has been focused upon innovations in technological and social systems, little attention has been given to institutional and financing innovations. Nonetheless, new institutional and financing techniques have been quietly introduced in the development of new communities. The most significant of these innovations address the problem of assuring the acquisition of capital in the improvement of land for public use. Initially, these innovations have been directed at public service facilities usually classified as amenities. However, they may also serve as alternative vehicles for the development of more traditional public services and facilities. This Article will survey several modes of financing the development of new communities. It will examine the relationship between private developers and state and local governments in this development process, and it will also consider the federal government’s role in stabilizing the development process of new communities.