Local Government Law
Author:
Reynolds Jr., Osborne M.
Edition:
4th
Copyright Date:
2016
35 chapters
have results for Local Government Law
Chapter 1. The Study of Local Government Today 37 results (showing 5 best matches)
- But all the communities share certain characteristics, patterns, and problems; courses in Local Government Law concentrate on these common features. An attorney can, in a number of ways, be drawn into dealing with modern municipal problems; and the Local Government course may prove highly useful in at least four ways: (1) Some attorneys work within a local government themselves, as where they work in the city attorney’s office, as attorney for a school district, etc. (2) Even the private practitioner who does not have any local government for a client may frequently encounter problems of Local Government Law—zoning matters, tort actions against a city, etc. Private citizens can seldom escape from some dealings with various units of local government, and many of these dealings require the help of an attorney. (3) Lawyers often become involved, quite aside from their law practice, in local politics and government—as officeholders or candidates for office, or simply as concerned...
- An effort has been made to cover those topics most often dealt with in basic law-school courses in Local Government Law (or, to use the older name, “Municipal Corporations”). Since a “crash course” in Land Use Controls is often a part of Local Government, a considerable amount of land-use material is included herein—though courses devoted exclusively to that subject will probably go into more depth. Four topics relevant to Local Government Law have not, it should be noted, been included here in any detail, as they are so broad as to require entire volumes by themselves—or at least lengthy chapters that would have extended this work beyond reasonable limits: (1) Constitutional law as applied to local governments and their actions. This, obviously, is best covered in a separate law-school course; and a Constitutional Law course is a helpful basis for, though not an absolute prerequisite to, the study of Local Government. ...3) Overlapping the prior topic—the law of schools and school...
- On the application of U.S. constitutional law to local governments, see Gelfand, Federal Constitutional Law and American Local Government (Michie 1984). See also Tushnet, Red, White and Blue: A Critical Analysis of Constitutional Law (Harvard Univ. Press 1988), reviewed 22 Urban Law. 171 (1990).
- The original edition was Fordham, Local Government Law (1949) reviewed 3 Okl.L.Rev. 123 (1950); the latest edition is Fordham, Local Government Law (2d rev. ed. 1986). On the “Jeffersonian revolution” caused by the first edition, see Mandelker, Managing Our Urban Environment vii–viii (1966) (Preface to 1st ed.—found at xvii–xviii in 2d ed. 1971), noting also the new emphasis placed on environmental concerns by that book. Mandelker also observes that there is continuing debate over whether land-use controls (zoning, etc.) should be taught as part of property courses, within local government courses, or as the subject-matter of a separate course; all three methods have been, and continue to be, employed. Mandelker, ...Redlich, The Scope of Urban Legal Studies, 8 Osgoode Hall L.J. 365 (1970) (part of a symposium on urban legal studies). On the importance of Jefferson Fordham and his casebook, see also “Call for Nominations: 11th Annual Jefferson B. Fordham Awards,” 32 State & Local...
- A good article on the trends in the relationship of the federal government to other governments within the United States is Freilich, Frye & Carpenter, The New Federalism—American Urban Policy in the 1980’s: Trends and Directions in Urban, State and Local Government Law, 15 Urban Law. 159 (1983). See generally Symposium, Federalism: Issues Before the Supreme Court, 18 Urban Law. 483–705 (1986). See also Section 7.1 and cites therein. For differing views on the superior ability of local, as opposed to state and federal, governments to solve problems, compare Briffault, Our Localism, 90 Colum. L. Rev. 1, 346 (1990) (criticizing the frequently expressed idea that local power is superior), with Frug, Whose Localism Is “Our Localism”?, Ass’n of American Law Schools Section on Local Government Newsletter, Dec., 1990, at 4. See generally Lake (ed.), Readings in Urban Analysis (Center for Urban Policy Research 1983); Martinez & Libonati, State and Local Government Law—A Transactional...
- Open Chapter
Chapter 7. Relationship of Municipalities to Federal Government 88 results (showing 5 best matches)
- Bromage, Introduction to Municipal Government and Administration 142–59 (2d ed. 1957); Foley, Recent Developments in Federal-Municipal Relationships, 86 U.Pa.L.Rev. 485 (1938); Hanks, Neglected Cities turn to the United States, 35 Nat’l Mun.Rev. 172 (1946). See generally Gelfand, A Nation of Cities—The Federal Government and Urban America, 1933–65 (Oxford Univ. Press 1975); Mandelker, Netsch, Salsich & Wegner, State and Local Government in a Federal System (4th ed. 1996), earlier edition reviewed in Martineau, The Status of State Government Law in Legal Education, 53 U. Cinc. L. Rev. 511 (1984). A later edition of the State and Local Government in a Federal System casebook, cited , is Mandelker, Netsch, Salsich & Wegner, State and Local Government in a Federal System: Cases and Materials (5th ed. 2002). On trends toward shifting more functions away from the federal government and toward state and local governments, see Freilich, Frye & Carpenter, The New Federalism—American...
- See Fordham, Local Government Law 137 (2d rev. ed. 1986), but noting that under what is now 5 U.S.C.A. § 84b, Congress has to withholding in the case of state income taxes, and more recently, under 5 U.S.C.A. § 5520, to withholding of income taxes of units of general local government.
- States and local governments have increasingly passed legislation that the immigration area. See Symposium, Breaching Borders: State Encroachment into the Federal Immigration Domain?, 51 Washburn L. J. 189–347 (2012). Sometimes the touching relates only to the enforcement of federal law by the state and local government, as is usually allowed; but even this may have limits. See Bach, State Law to the Contrary? Examining Potential Limits on the Authority of State and Local Law Enforcement to Enforce Federal Immigration Law, 22 Temple Political & Civ. Rts. L. Rev. 67 (2012).
- As a general rule, the laws on immigration are made by the federal government, which, however, can and does call on state and local governments for of those laws. See Fandl, Immigration Passes U.S. Immigration Law and Local Enforcement Practices, 34 J. Legis. 16 (2008); Kim, The Limits of State and Local Immigration Enforcement Regulation, 3 Albany Gov’t L. Rev. 242 (2010); Motomura, The Discretion that Matters: Federal Immigration Enforcement, State and Local Arrests, and the Civil-Criminal Line, 58 U.C.L.A. L. Rev. 1819 (2011); Parra-Chico, An Up-Close Perspective: The Enforcement of Federal Immigration Laws by State and Local Police, 7 Seattle J. for Soc. Just. 321 (2008); Stumpf, States of Confusion: The Rise of State and Local Power Over Immigration, 86 N.C.L. Rev. 1557 (2008); Su, Police Discretion and Local Immigration Policymaking, 79 U.M.K.C. L. Rev. 901 (2011); Note, With a Little Help from My Friends: The Federal Government’s Reliance on Cooperation from the States in...
- On “localism” in the law, see the leading articles by Briffault, Our Localism: Part I—The Structure of Local Government Law, 90 Colum. L. Rev. 1 (1990) & Our Localism: Part II—Localism and Legal Theory, 90 Colum. L. Rev. 346 (1990). See also Davison, Cooperative Localism: Federal-Local Collaboration in an era of State Sovereignty, 93 Va. L. Rev. 959 (2007), examining numerous instances of “cooperative localism”: interactions of three willing partners—state, federal, and local—in an enterprise. Compare Comment, The Dual-Faceted Federalism Framework and the Derivative Constitutional Status of Local Governments, 2012 B.Y.U.L. Rev. 1585. See also Martin, Federalism and Municipal Innovation: Lessons From the Fight Against Vacant Properties, 46 Urban Law. 361 (2014).
- Open Chapter
Chapter 2. Units of Local Government 185 results (showing 5 best matches)
- Committee for Economic Development, Modernizing Local Government 28 (1966). For a critique of local government in the United States, and suggestions for possible improvement, see Liebmann, The New American Local Government, 34 Urban Law. 93 (2002).
- See Valente & McCarthy, Local Government Law 5 (4th ed. 1992). Cf. 1981 Municipal Yearbook 180 classifying units of local government according to their form of government.
- See Fordham, Local Government Law 27–29 (2d rev. ed. 1986); Valente & McCarthy, Local Government Law 7–8 (4th ed. 1992). See generally Bollens, American County Government (1969). For a long time, counties were not important units of government in Hawaii, but they now exist and can enjoy broad home-rule powers. See Hawaii Government Employees’ Ass’n v. County of Maui, 59 Haw. 65, 576 P.2d 1029 (1978).
- On regionalism in local government, see generally Griffith, Regional Government Reconsidered, 21 J.L. & Pol. 505 (2005); Note, Regionalism, the Supreme Court, and Governance: Healing Problems that Know No Bounds, 8 Howard Scroll 21 (2006). For a critique of the various methods used to implement some degree of regional government, particularly through the creation of regional special districts or public authorities, see Laurie Reynolds, Local Governments and Regional Governance, 39 Urban Law. 483 (2007). As to the general advantages of regionalism v. localism, see Saiger, Local Government Without Tiebout, 41 Urban Law. 93 (2009), discussing Tiebout, A Pure Theory of Local Expenditures, 64 J. Pol. Econ. 416 (1956), and observing that “Regionalization abandons the advantages of local governance with respect to whatever functions are regionalized, which, for most proponents, are most of the important ones.” Saiger,
- See Jennings, Principles of Local Government 187 (3d ed. 1948). On the importance of the central government in England throughout much of that country’s earlier history, see Dicey, Introduction to the Study of the Law of the Constitution 175 (5th ed. 1897).
- Open Chapter
Chapter 25. Local Contractual and Quasi-Contractual Liability 78 results (showing 5 best matches)
- In 1979, the American Bar Association promulgated a Model Procurement Code for State and Local Governments, covering bidding requirements and other procedures and standards for public contracting. In 1982, a Model Procurement Ordinance for Local Governments, based on the Model Code and specially adapted to meet the needs of local jurisdictions, was approved by the Public Contract Law and the Urban, State, and Local Government Law sections of the American Bar. See Del Duca, Falvey & Adler, State and Local Government Procurement: Developments in Legislation and Litigation, 18 Urban Law. 301 (1986). See also Ethridge & Moul, Recent Developments in State and Local Procurement: Implementation of the Model Procurement Code Picks Up Pace, 17 Urban Law. 977 (1985).
- What limits exist on a local government’s powers to contract? Or, to ask the question in a different way, under what circumstances will a municipality’s contract be void, so that any recovery by the other party must be on one of the above-stated theories (quasi-contract, ratification, or estoppel)? A locality has basically the same scope of power in entering into contracts that it enjoys as to engaging in activities in general. Thus, it has been said that a city’s power to contract may result from (1) the inherent power of the city to perform indispensable acts, (2) express provisions of a state statute or the city’s own home-rule charter, Local governments are usually accorded, by statute or home-rule charter, a general power of entering into contracts; and this authority has been interpreted to be as wide as necessary to accomplish any purposes that are not ultra vires. ...any such expansion must come through legislation. (2) There is also fear of extravagance on the part of local...
- See 1A Antieau, Municipal Corporation Law § 10.03[1] (1998). On the duty of persons contracting with the local government to inquire, at their peril, into the power of the government to make that contract, see Duncan Parking Meter Corp. v. City of Gurdon, 146 F.Supp. 280 (W.D.Ark.1956).
- The general rule is that a bid, once submitted, may not be revoked; it creates a vested contract right in the local government, and the government may not be deprived But over the years, the courts have recognized a qualification to the general rule; and they will usually now allow a bidder, if he has not ratified his bid or waived his right of withdrawal, to revoke a bid containing a mistake, and obtain return of any bond or deposit he has made, if 5 conditions are satisfied: (1) the mistake concerned a material aspect of the contract; (2) the mistake is serious enough that enforcement of such a contract would be unconscionable; (3) the mistake occurred without any violation of legal duty or failure of reasonable care; (4) the local government will not be seriously harmed by the withdrawal, except for losing the bargain; (5) notice of the mistake was promptly given the local government.
- It appears certain that contracts by which a local government conveyed to others its power to govern would be against public policy and hence void. But contracts in which this is found to have happened are seldom encountered. An agreement providing that disputes under a municipal contract will be submitted to arbitration is now generally agreed not to amount to an unlawful delegation of governing power, unless there is legislation declaring that local authorities alone have power to decide the particular matter. Similarly, contracts for the appraisal of property in the locality have been held not to delegate the discretionary or governmental power of the local government and thus not to be invalid.
- Open Chapter
Chapter 8. Powers of Municipalities 63 results (showing 5 best matches)
- the theory in the United States has been that the state pre-dates the municipal corporation and that the state, in granting a charter to a municipality, thereby delegates, for purposes of local self-government, a portion of the state’s powers. —and indeed, has at times been called a state, as opposed to a municipal, law. implied in its charter, or that somehow can be derived therefrom. It also means that in cases of conflict between state and local law, state law will prevail on statewide matters, local on local questions. Where there is no conflict between state and local law on a subject, both laws will stand together. And where one level of government (that is, the state the locality) has enacted law on a subject but the other level hasn’t, that law, if validly enacted, will govern the matter, regardless of whether the matter is of statewide concern or merely local.
- All cities—whether or not having home-rule—do have one thing in common: They are creatures of the law established for special purposes, and their powers must be granted by law: in the case of home-rule governments, by the home-rule charter that has traditionally been applied, and is still often used, to determine the total scope of power of local governments. This says that such governments have (1) those powers above-stated majority view as to local powers, a municipality will have only those same powers as to matters of statewide concern—but as to local matters, will have authority to do anything not forbidden by general state law or home-rule charter, and thus need not bother with Dillon’s Rule as to local matters.
- Assuming that a municipality has a particular power, how is it to be exercised? It is usually said that unless the power’s exercise is clearly limited by some law, the method of exercise is left to the reasonable discretion of local officials. There is a vague, general standard of reasonableness that the actions of local governments must meet; but seldom is it applied so as to strike down any actions. Thus, where such a government acts in a legislative capacity, as by passing an ordinance, the action will not be found “ultra vires” ( , outside the scope of the government’s authority) so long as it is “fairly debatable” whether or not the government is acting properly. -legislative actions of the locality are concerned, as with the internal administration of a city’s government, much is also left to the discretion of officials, and conduct will be declared invalid only if malicious, ...determining whether the exercise of a power is within the scope of local authority blends sometimes...
- The history of Dillon’s Rule and the criticisms of it are well summarized in “From Dillon’s Rule to Home Rule,” in Briffault & Reynolds, State and Local Government Law 266–69 (6th ed. 2004). See generally Swiney, John Forrest Dillon Goes to School: Dillon’s Rule in Tennessee Ten Years After , 79 Tenn. L. Rev. 103 (2011) (Dillon’s Rule has, over past 10 years, regained importance in Tennessee law, particularly in contractual situations where local government attempts to repudiate terms of a contract; also, Rule has been applied to a county board of education).
- As to the possible justifications for local regulation of hydrofracking, see Note, Local Government Fracking Regulations: A Colorado Case Study, 33 Stan. Envtl. L. J. 61 (2014).
- Open Chapter
Chapter 26. Local Governmental Liability in Tort and Related Theories 169 results (showing 5 best matches)
- City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 98 S.Ct. 1123, 55 L.Ed.2d 364 (1978), noted 45 Brooklyn L.Rev. 165 (1978); 11 Conn.L.Rev. 126 (1978); 28 Drake L.Rev. 513 (1978–79); 92 Harv.L.Rev. 277 (1978); 15 Wake Forest L.Rev. 89 (1979). A later, even more sweeping decision is Community Communications, Inc. v. City of Boulder, 455 U.S. 40, 102 S.Ct. 835, 70 L.Ed.2d 810 (1982) (home-rule city’s three-month moratorium on expansion of cable television business not immune from anti-trust laws). See Melton, The State Action Antitrust Defense for Local Governments: A State Authorization Approach, 12 Urban Lawyer 315 (1980). Cf. Cantor v. Detroit Edison Co., 428 U.S. 579, 96 S.Ct. 3110, 49 L.Ed.2d 1141 (1976) (where state policy was “neutral,” a state-regulated utility was not immune from antitrust liability for distributing free light bulbs to its electricity customers). The ...; Rose, Municipal Activities and the Antitrust Laws After City of Lafayette, 57 U.Detroit J...
- 15 U.S.C.A. §§ 34–36. In passing the law, Congress rejected proposals that all types of antitrust actions based on governmental activities of local governments be precluded. See Yuhas & Fluker, Recent Developments in Government Liability, 17 Urban Law. 765, 767–75 (1985). Regarding the importance of this change in the law as to the land-use area, see Duerksen & Bean, Land and the Law 1985: A Run on the Bank, 17 Urban Law. 827, 833–38 (1985). See generally Harris, Local Government Antitrust Act of 1984, 8 Urban, State & Local L. Newsletter, No. 3, at 1 (Winter, 1985).
- Another developing category of lawsuits against municipalities is anti-trust litigation. For years, anti-trust liability was considered generally impossible on the part of local governments because immunity, under anti-trust laws, was accorded “state action” by the U.S. Supreme Court decision in Parker v. Brown. doctrine” exempts, from the anti-trust laws, only state or local anti-competitive conduct that (1) is authorized or directed by the state, liability of local governments in a variety of areas, and it has been noted that many activities of such governments have potential anti-trust consequences. Before the Court had fully clarified the law, however, Congress acted by passing the Local Government Antitrust Act of 1984, which bars anti-trust damage recovery against local governments and officials, though leaving the possibility of injunctive relief against local governmental activity that falls outside judicially developed immunity for state action.
- (2) A few courts have indicated that liability may be circumscribed by exceptions even wider than the above-mentioned legislative and judicial exception—for instance, a rule of continuing immunity as to “discretionary” actions by any agent of the local government, judicial action on the matter. A number of states now have statutes covering the liability of municipal corporations; and most of the statutes contain exceptions—specified torts or activities (such as “discretionary functions”) for which the local governments remain immune. , the policy against penalizing innocent taxpayers and perhaps jeopardizing the financial stability of the government, from whose services all citizens are presumed to benefit) precludes the assessing of punitive (also called “exemplary”) damages against a local government. , liability without fault) of a municipal corporation or other entity of local government remains in doubt in most jurisdictions. Unless such liability is specifically authorized by...
- In some areas of local activity, the Similarly, the enforcement of an ordinance is clearly a function of the local government a governing power and therefore falls within the scope of immunity, even if the law enforced is declared invalid. And the failure of a local government to enforce laws—statutes, ordinances, etc.—also involves an exercise of governmental, not corporate or business-like, power and cannot be made the basis of tort liability.
- Open Chapter
Chapter 15. Finances of Local Governments 158 results (showing 5 best matches)
- As to the implications of casinos and horse racing tracks for land use control by local governments, see McClenathan, Land Use Implications of Casinos and Racinos on Local Governments in New York State, 39 Urban Law. 111 (2007).
- Local-government expenditures have been increasing in recent times at an even faster pace than those of state and federal government. As more and more activities have been undertaken by local units and as an ever greater concentration of economic and social difficulty has occurred in urban areas, municipalities have often turned to the federal government for financial help. Federal transfers of funds to state and local governments increased more than four-fold just in the period from 1965 to 1974. ...took the form of “categorical grants”—so called, because they were issued for various categories of programs, such as urban renewal, law-enforcement activities, etc. Each program of federal assistance was largely separate from all other such programs; each had its own requirements and conditions (often including requirements that localities receiving federal aid contribute a certain amount of financial support themselves to the program); and most involved considerable “red tape...
- On some of the effects of California’s approval of the measure designed to limit property taxation—“Proposition 13”—see Chase, California’s Public Services Suffer from Tax-Revolt Spending Cuts, Wall St. J., Feb. 16, 1982, at 23, cols. 5–6; Rader & Lang, Proposition 13 and the Poor: The New Alchemy in the Golden State, 12 Clearinghouse Rev. 681 (1979). The constitutionality of this measure was upheld in Nordlinger v. Hahn, 505 U.S. 1, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992); Amador Valley Joint Union High School v. State Board of Equalization, 22 Cal.3d 208, 149 Cal.Rptr. 239, 583 P.2d 1281 (1978) (no violation of equal protection, of federal contract clause, etc.). See generally Rappaport, The Constitutionality of Proposition 13 Under the Equal Protection Clause, 26 Real Prop. Prob. & Tr. J. 235 (1991). The measure’s adoption led to proposal and/or adoption of similar limitations in a number of other states. See Review of Local Government Law, 11 Urban Lawyer 576–83 (1979); The Annual...
- Nathan, The Uses of Shared Revenue, 30 J.Finance 557 (1975). Cf. Reagan, The Pro and Con Arguments, 419 Annals Am.Acad.Pol. & Soc.Sci. 23 (1975) (part of a symposium on revenue sharing; Reagan notes that many cities have been unable, despite revenue sharing, to initiate new projects since the funds have been consumed by the increasing cost of existing services); N.Y. Times, April 4, 1974, at 27, col. 3, noting a Brookings Institution report that local governments were spending only 31.4% of revenue-sharing funds on new programs. In 1977, the Census Bureau reported that the largest part of revenue-sharing funds was spent on education and police protection. See “Around the Nation—Revenue Sharing Spent on Education and Police,” N.Y. Times, July 7, 1980, at A12. See generally Macbeth & Sofaer, Recent Developments in Local Government Law, 7 Urban Law. 1–7 (1975). Though revenue sharing programs have been popular with local governments, the fear was expressed that such programs may...local
- As a last resort, bankruptcy procedures for municipalities are provided by federal law, and have been used by some of the local governments discussed in notes 162 and 165.
- Open Chapter
Chapter 9. Delegation of Powers 16 results (showing 5 best matches)
- The state legislative power—that is, the exercise of the policymaking judgment and discretion on state matters that state constitutions vest and recognize in the legislature—cannot be delegated to some other person or body but must rest with the legislature itself. Thus, the legislature cannot delegate to a commission the power to determine the form of government, powers, and functions of proposed municipalities since these matters require legislative judgment. But the details of organization of its own government can be left to a municipality, limited only by general state law; and such basic state powers as the police power, taxing power, and power of eminent domain can be, and almost always are, delegated to local governments for their use for local purposes. The rule against delegation of state legislative authority is no barrier to the delegation of powers of local self-government to local units. Some state constitutions even allow the legislature to delegate to local
- See Valente & McCarthy, Local Government Law 98 (4th ed. 1992), citing several such provisions. Cf. the discussions of such provisions in Chapter 5
- See People ex rel. Adamowski v. Public Building Commission, 11 Ill.2d 125, 147, 142 N.E.2d 67, 79 (1957); Fish Creek Park Co. v. Village of Bayside, 274 Wis. 533, 537, 80 N.W.2d 437, 439–40 (1957). Thus, in Cogswell v. Sherman County, 238 Kan. 438, 710 P.2d 1331 (1985), the court noted that the constitutional maxim against delegation of legislative power to any body or authority other than the state legislature is not violated by vesting cities and counties with powers of legislation as to matters of purely local concern. Such delegation was said to recognize that local governments are better judges of their immediate needs than is the state legislature. Cf. State ex rel. Tomasic v. Kansas City, 230 Kan. 404, 636 P.2d 760 (1981) (statutes authorizing cities and counties to create local port authorities properly delegates powers of local legislation). But municipalities have only those powers that they derive from their respective states—even in those states of the East where...
- Municipal corporations, and other units of local government, are often said to perform certain acts. But obviously this means that those acts are performed by agents of the government. Like a private corporation, a municipal corporation can only act through its various officers and employees. Thus, if it is to function at all, a municipal government must delegate different tasks to its agents. Basically the same restrictions that limit delegations by the state legislature also apply to delegations by the municipal
- On the other hand, a city can enlist the aid of members of the real estate community to bring compliance with rent-control laws where no power to enact or change any laws is given the realtors; and contracts between local governments and developers have usually been upheld where the developer agrees to pay for certain improvements to a tract (such as street improvements) if the area is rezoned for his desired use. Considerable litigation has involved so-called “consent provisions” in land-use laws under which certain uses of property are permitted or denied according to whether or not neighboring property-owners give their consent. The automatic imposition of restrictions on property, without any action of the local governing body, on the mere signature of a petition by a designated number or percentage of neighbors has been held clearly invalid. ...limited exception, not making a basic change in the law, though it seems this practice may destroy comprehensive planning at times—and...
- Open Chapter
Chapter 23. Local Regulation of Trade, Business, and Other Enterprises 149 results (showing 5 best matches)
- The suppression of gambling, or certain types of gambling activity, is occasionally pre-empted by a state government. And, even in the absence of state pre-emption, state law will prevail over local regulations and prohibitions (even those of home-rule cities) in cases of But aside from those qualifications, local governments have power to enact legislation aimed at suppression of gambling, since this activity tends to corrupt public morals. and towns have been upheld in banning particular gambling devices and games, so long as these were not sanctioned by state law; and, on the other hand, local governments can authorize, regulate, and/or license particular forms of gambling that are not prohibited by state law.
- Some local governments have imposed minimum wage limitations, which can be valid if not pre-empted by, or in conflict with, state law. See Gillette, Local Redistribution, Living Wage Ordinances, and Judicial Intervention, 101 N.W.U.L. Rev. 1057 (2007).
- On the implementation of recycling programs by many local governments, see Copelan & Anderson, Government Recycling Objectives Frustrated by Lack of Demand, 15 Urban, State & Local L. Newsletter, No. 1, at 1 (Fall, 1991). See also O’Reilly, Recycling and Municipal Liability: Environmental Benefits and U.C.C. Risks, 23 Urban Law. 97 (1991).
- , it was widely believed that local governments had lost much of their power to control the movement of trash because it amounted to interference with the movement of an article of commerce. But in United Haulers Ass’n v. Oneida–Herkimer Solid Waste Management Auth., 261 F.3d 245 (2d Cir. 2001), cert. denied, 534 U.S. 1082, 122 S.Ct. 815, 151 L.Ed.2d 699 (2002), the Second Circuit held that local governments without running afoul of the U.S. Constitution’s Commerce Clause. This helped revive flow control of solid waste by local governments. See Diederich, Municipalities Regain Control Over Trash, 35 Urban Law. 687 (2003).
- Two problems of great modern importance are water pollution and air pollution. Regulation to reduce such pollution has been undertaken by the federal government; but there is generally still room, and often the need, for state and local regulation—some of which pre-dates the federal activity. While laws in this area can apply to all persons, businesses are particularly affected by many restrictions.
- Open Chapter
Chapter 6. Limits on State Control of Municipalities: Constitutional and Statutory Home Rule 151 results (showing 5 best matches)
- Home rule in the United States was sometimes envisioned in its early days as giving the cities to whom such rule was granted full-fledged sovereignty over local affairs, thus bringing about dual state and local sovereignty along the national plan of federal and state governments. But such local sovereignty has never developed, nor have any clear-cut distinctions between state and local power. But most arrangements rest on vague constitutional or statutory language granting powers of “local self-government” to qualifying municipalities; most are judicially interpreted to give home-rule municipalities at least sufficient power so that municipal laws prevail over state laws as to matters of “purely municipal concern” (but not as to matters of state-wide concern); and thus in most instances, the gist of the home-rule problem becomes the determination of what are local matters and what are state matters.
- McBain, The Law and Practice of Municipal Home Rule 673–74 (1918). See Fordham, Local Government Law 96–99 (2d rev. ed. 1986). See generally Diller, The City and the Private Right of Action, 64 Stan. L. Rev. 1109 (2012); Serkin, Public Entrenchment Through Private Law: Binding Local Governments, 78 U. Chi. L. Rev. 879 (2011).
- (1) Under constitutional home rule, the constitution itself, by means of a charter obtained thereunder, grants the locality all necessary powers for the government and administration of local affairs. (2) Under constitutional home rule, the qualifying city may legislate even on matters of or statewide concern unless specifically forbidden by general state law or by the locality’s own charter. (3) Under legislative home rule, the home-rule city has at least such powers as are included in its own charter and authorized by the state statutes. (4) Under either form of home rule, state legislative acts must yield to local laws when those acts deal with basically local concerns are in conflict with laws of the municipality. On the other hand, since even home-rule cities are subject to state laws, state law prevails, in cases of conflict between state and city law, as to matters of ...affairs, and state laws on these matters become inapplicable to home-rule cities even where... ...local...
- Questions relating to powers of cities—as derived from state constitutions and statutes and local charters—are considered in Chapter 8, . But questions of limitations on state control of localities, and of the relationship of state and municipality, are those raised by points 4, 5, and 6 in the above paragraph. All these turn on the question of what matters are of statewide concern and what are of purely, or basically, local concern. Here too, some generalizations are possible. A city’s form of government and method of enacting and publishing ordinances are, so long as no basic constitutional provisions are violated, of purely local concern, and the law of a home-rule city will prevail over state law. The home-rule city may determine the make-up of its own government, establish any kinds of boards and commissions, provide the means for nomination, election, or appointment of local officials, and provide (or not provide) for initiative and referendum—and on all these matters, city
- A conflict is usually said to exist where a local ordinance prohibits an act that a state statute permits, or permits an act that a state statute prohibits. Since even home-rule municipalities are subject to the general laws of the state, if there is, as to a matter of general concern, a conflict between state law and the law of the home-rule city, the state law must prevail. But local laws prevail as to local matters.
- Open Chapter
Chapter 16. Local Inducements to Business and Industry 24 results (showing 5 best matches)
- Sometimes, rather than merely aiding financially the construction of business and industry, a local government attempts to enter the business world itself, as by constructing and operating a hotel. Here, of course, there is a degree of competition with comparable local businesses (if any), and to that extent the government is not necessarily aiding, but may actually be harming, local private enterprise. But the local government may contend—particularly where businesses of the type involved are scarce in the vicinity—that it is improving the local economic base by providing a needed facility. Thus, a municipality’s operation of a hotel may surely stimulate the tourist and convention trade in that area. In the past, some courts nonetheless struck down local-government operation of businesses as not for a public purpose—and specifically as using tax money for private purposes. But it is clear that there is no federal constitutional objection to a local government’s conducting an...
- On the questionable wisdom of luring businesses to a community by giving tax breaks, particularly at times of revenue shortfalls in the local government, see McFarlane, Local Economic Development Incentives in an Era of Globalization: The Exploitation of Decentralization and Mobility, 35 Urban Law. 305 (2003).
- has developed, somewhat contrary to that of municipal governments engaging in private business, is the turning-over by municipalities of some formerly public services to private enterprise. Such “privatization” often allows municipalities to cut their payrolls and save money. See Gold, The Privatization of Prisons, 28 Urban Law. 359 (1996); “Want to Buy a Fire Dept.?,” Newsweek, April 25, 1983, at 55, stating, “Faced with shrinking revenues and rising prices, local governments are increasingly turning to businessmen to provide fire and police protection, collect garbage, run airports and operate libraries.” As to the possible privatization of airports that were formerly government operated, see Saulny, In Chicago, Private Firm Is to Run Midway Airport, N. Y. Times, Oct. 1, 2008, at A16 (Natl. Edition). See also “Schools for Profit,” Time, Oct. 17, 1994, at 48, on Hartford, Connecticut’s experiment with turning public education over to a private company. Such private enterprises may...
- from property taxes may validly be authorized by state law except as such exemptions are prohibited by the state constitution. local governments to create categories of exempt businesses, or to contract with certain businesses regarding exemptions or more favorable tax treatment. Exemptions granted by local governments are generally held valid only where authorized by state law; otherwise, exemptions are likely to be struck down as in violation of the principles of equality and uniformity of taxation.
- One solution to the financial problems of urban areas is the increasing of the tax base through encouragement of businesses to settle in the community. Such encouragement has been much discussed, and sometimes actually undertaken, in the past—and is increasing today as the need for a solution to urban economic problems becomes more urgent. The encouragement has taken four main forms: (1) direct donations and/or lending of credit from state or local government to businesses; (2) advertising and promotions to convince people of a locality’s desirability for business and tourism; (3) tax exemptions, or favorable tax rates, for businesses—or at least “new businesses”—within a locality; and (4) the construction of facilities by the government for lease to private business. Related to these activities—though not always done as an inducement to other business—is the direct entry of a local government itself into business activities.
- Open Chapter
Chapter 13. Public Officers 107 results (showing 5 best matches)
- An attempt by the federal government to extend the minimum-wage and maximum-hour provisions of the Fair Labor Standards Act to employees of state and local governments was once struck down as in excess of Congress’s power under the commerce clause. National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), on remand 429 F.Supp. 703 (would have impaired states’ ability to function in a federal system). But the Supreme Court subsequently upheld application of the Age Discrimination in Employment Act to state and local governments. Equal Employment Opportunity Comm’n v. Wyoming, 460 U.S. 226, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983). See Comment, When the Walls Come Tumbling Down: What Remains of , upheld application of the minimum-wage and overtime requirements of the Fair Labor Standards Act to local government employees, and indicated that the commerce power is not exceeded unless a law is destructive of state sovereignty or violative of some constitutional...
- Problems may arise when a local government officer or employee is also an officer in the United States armed forces. Exceptions are sometimes specified in, or “read into,” relevant legislation forbidding dual “office-holding,” and the common-law rule may be considered inapplicable if no incompatibility is found, as where the person is not on active military duty.
- Amendments to the Fair Labor Standards Act were enacted in 1985 mitigating the effect of that law on local governments. 29 U.S.C.A. § 203 (1985). But the basic principles of the
- The U.S. Supreme Court has continued to endorse the broad goals of affirmative action. See Local No. 93, International Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501, 106 S.Ct. 3063, 92 L.Ed.2d 405 (1986) ...between city and minority firefighters might include benefits to individuals who had not themselves been victims of discrimination); Local No. 28, Sheet Metal Workers’ Internat’l Ass’n v. Equal Employment Opportunity Comm’n, 478 U.S. 421, 106 S.Ct. 3019, 92 L.Ed.2d 344 (1986) (district court’s appointment of administrator to supervise union’s compliance with court’s orders to establish an affirmative action program with a specified non-white membership upheld as a remedy for past discrimination). But a school board’s policy of extending preferential protection against layoffs to some employees because of their race, during an economic crunch, was held to violate the Fourteenth Amendment. Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d 260...
- Any right to compensation for a local government officer or employee must be based on some valid legislation authorizing the payment. Without such authorization, local government workers have no claim to pay, and the rendition of services by them will be considered gratuitous. Often, statutes or charters require that there have been an appropriation prior to hiring certain personnel, in order to ensure that adequate funds are available for compensating these workers. Where no such appropriation has been made, the person hired in violation of these provisions cannot recover pay. This is based partly on the idea that everyone—here including the worker hired in violation of legal requirements—is held to know the law.
- Open Chapter
Chapter 27. Extraordinary Actions and Remedies as to Local Governments 48 results (showing 5 best matches)
- In many jurisdictions, the state constitution or a state statute provides that local governments may enact legislation through the process of initiative— , a process by which the electorate petitions for and votes on a proposed law. can never be broader than the general powers of the local government; and an initiative measure must, just like any other law of the local unit, be within those powers expressly or impliedly given that unit by state statute or home-rule charter. And a law passed by initiative even in a home-rule city must yield to any conflicting state law as to all matters of state-wide, or general, concern.
- Apart from legislative and judicial remedies, a citizen with a complaint against a local government may also be able to avail himself of the services of an “ombudsman” or “ombudsperson.” This may be defined as an officer or agency, detached from politics and independent of other branches of the government, that supplies information about the government, and receives and investigates complaints. The origin of this institution is usually traced to Sweden in 1809; in recent times, it has become a highly popular concept throughout much of the world and has been employed at levels of government ranging from local to national. upon the request of a citizen. It is hoped that the increased use of this and similar devices may improve governmental responsiveness to citizen complaints and may aid local governments in fulfilling their long-standing purpose: serving the needs of their citizens.
- See Philadelphia Mayor’s Ad Hoc Committee on Improvement in Municipal Standards and Practices, Final Report (1962), relevant part reproduced in Fordham, Local Government Law 294–97 (2d rev. ed. 1986). Compare, describing a unique program in Utah to resolve property rights disputes, Call, Resolving Land Use and Impact Fee Disputes: Utah’s Innovative Ombudsman Program, 42/43 Urban Law. 375 (2010–11). See generally on ombudsmen S.V. Anderson, Ombudsman Papers: American Experience and Proposals (Institute of Governmental Studies, University of Calif.1969); R.V. Peel (ed.), The Ombudsman or Citizen’s Defender; A Modern Institution (American Academy of Political & Social Science 1968); Moore, Ombudsman and the Ghetto, 1 Conn.L.Rev. 244 (1968); Tibbles, Ombudsman: Who Needs Him?, 47 J.Urban L. 1 (1969); Toxey, Ombudsman in the Common Law System—Administrative Justice, 11 Wm. & M.L.Rev. 138 (1969). See also Hill, Institutionalization, the Ombudsman, and Bureaucracy, 68 Am.Pol.Sci.Rev....
- See Fordham, Local Government Law 635–36 (2d rev. ed. 1986). See generally Ferris & Ferris, The Law of Extraordinary Legal Remedies (Thomas Law Book Co. 1926); Note, Mandamus of Unexecuted Executive Discretionary Powers, 33 Ark.L.Rev. 765 (1980); Note, Mandamus Proceedings Against Public Officials, 9 N.M.L.Rev. 195 (1978–79). See also Freeman v. Gregoire, 171 Wash. 2d 316, 256 P.3d 264 (2011) (to compel an action in mandamus, a duty must be mandatory and ministerial). On the use of mandamus in one particular jurisdiction, see Koehler & Williams, Mandamus Decisions of the Texas Supreme Court, 64 S.M.U. L. Rev. 393 (2011).
- It has frequently been ruled by the courts that the initiative power extends only to “legislative” ordinances, not those dealing with merely administrative matters. A measure is considered legislative if it establishes a new law or policy, but is looked upon as administrative if it only provides for the enforcement of existing law or policy. proposed laws establishing the salaries of local officers or employees have been ruled administrative and not subject to the initiative, as have laws setting rates for utility services.
- Open Chapter
Chapter 3. Forms of Government Within Local Units 87 results (showing 5 best matches)
- On the probable effect of the ongoing digital revolution, such as the Internet, on the quality of service offered by mayors and other local government officials, see Ellickson, Monitoring the Mayor: Will the New Information Technologies Make Local Officials More Responsible?, 32 Urban Law. 391 (2000).
- Snider, Local Government in Rural America 119 (1957). Cf. Fordham, Local Government Law 31 (2d rev. ed. 1986). Typical of the county offices often filled by popular election are those specified in California as to counties not having a home-rule charter (unless these offices are specifically made appointive by the voters): the treasurer, county clerk, auditor, sheriff, tax collector, district attorney, recorder, assessor, public administrator, and coroner. West’s Ann.Cal.Gov.Code § 24009.
- On the executive branch of local governments in general, see The Most Dangerous Branch? Mayors, Governors, Presidents, and the Rule of Law: A Symposium on Executive Power, 115 Yale L.J. 2215–2651 (2006).
- note 10, at 6. Cf. Fordham, Local Government Law 34 (2d rev. ed. 1986), commenting “Little wonder the plan has lost much ground.”
- note 11. Cf. Sato & Van Alstyne, Local Government Law 220 (2d ed. 1977).
- Open Chapter
Chapter 14. Public Employees 103 results (showing 5 best matches)
- (3) At common law, most courts have held that local governments may not validly enter into governing body; as inconsistent with the civil-service system; as not reasonably necessary because the dangers of exploitation of labor and undue profit-seeking that are found in the private sector of the economy don’t exist in the public sphere; and as involving an undue delegation of governmental power, thus leading to a government of people and not of laws. A few cases at common law, generally involving transit or utility workers, have upheld collective bargaining by local entities. Some authority now allows collective bargaining with public workers—but this is largely brought on by the legislatures, not the courts. Statutes in many states now authorize collective bargaining with some or all local-government workers.
- At common law, sickness or other disability usually does not deprive an officer of his salary, But provisions for disability leaves or pensions for employees of local governments are now quite common and have been upheld. of local governments so that rights thereunder cannot be abridged by subsequent legislative action.
- Officers and employees of local governments often attempt to assert their collective rights through unionization, and increasingly this is being allowed. In the past, legislative bans on unionization by police officers and firefighters were very common and were generally sustained. Bans on unionization of other local government workers were often upheld also. the right of local officers and employees to unionize, and city laws to the contrary are then invalidated simply on the basis of the conflict with state law. (3) In states having “right-to-work laws,” any ban on unionization of public workers may be considered in violation of those laws, since the “right-to-work” provisions declare that no one shall be denied employment because of union membership or non-membership.
- The grounds for discharge of local government personnel are usually stated in legislation: the state constitution, statutes, city charter, and local ordinances. The grounds thus specified are generally held to be exclusive, In general, a local government’s arbitrary dismissal of an officer or employee will violate the due process clause of the 14th Amendment to the U.S. Constitution. held that a government worker could not be ...about the local entity for which she worked, since this would violate the worker’s right of free speech. A number of qualifications were, however, expressed; the prohibition was stated not to apply (1) where the statements were made with knowledge of their falsity, or in reckless disregard of their truth; (2) where the statements were so without foundation as to call into question the worker’s fitness for the position; (3) where there was a breach of confidentiality involved, and the position is such as to justify a need for confidentiality; (4) where the...
- The early 1980’s brought a slow-down in the growth of public employment in some areas, necessitated by economic downturns and tax cuts. See “Now the Belt Tightens on Public Employees, Too,” U.S. News & World Rep., July 26, 1982, at 59; “The Pinch on Public Employees,” Bus. Week, June 23, 1980, at 71. But in general, the number of state and local government employees continued to soar during the last decades of the twentieth century, though the number of federal employees remained stable. See “Local Government’s Deceptive Charm,” Bus. Week, May 1, 1995, at 166. State and local governments employ over 1 out of 8 of all U.S. workers, with 53% of those state and local employees working (as of 1995) in education services. Holmes, United States Population—A Profile of America’s Diversity—The View from the Census Bureau, 1998, in World Almanac and Book of Facts 373, 374 (1999).
- Open Chapter
Chapter 22. Efforts to Establish “New Towns” 18 results (showing 5 best matches)
- While there have long been examples of various kinds of “new towns,” there have also been problems in their development as true model communities—particularly problems concerning their government and financing. Indeed, there may be problems in the establishment, in the first place, of any such communities since incorporation may be made difficult by population and election requirements of relevant state laws. Once the community is started, the developer—or anyone with a substantial financial involvement—will surely want to retain some control over the town’s continued growth; such persons will not, for instance, want the community’s residents to be able, by the electoral process or otherwise, to prevent completion of the developer’s plan, thus perhaps jeopardizing the investment. But state and local governments—and residents of the community—will also want a “say” in the area’s development. One authority has suggested three methods by which local governments might exercise some...local
- continued interest—what of giving the developer some continuing control while also supplying the area with a form of municipal government? A non-profit corporation has often been established to manage privately financed new towns—with most members of the controlling board being chosen initially by the developer, but with power to select such members gradually passing to the residents as the town is completed. This corporation—often called a “homeowners’ (or homes) association”—serves as a kind of local government, providing such services as local level. The homeowners’ association is given power to enforce restrictive covenants, servitudes, etc. Numerous variations on these methods are possible; one of the advantages of new communities is that they offer a chance for experimenting with new forms of local governance—with, for instance, increased participation in government by neighborhood-level associations and by various groups of social planners.
- note 2, at 514–15. Cf. State ex rel. Davis v. Town of Lake Placid, 109 Fla. 419, 147 So. 468 (1933), holding that the legislature’s power to establish communities does not extend to the incorporation of towns in rural, unoccupied areas. On problems—and possible solutions—regarding incorporation of new towns, see generally Mullarkey, Evolution of a New Community, 6 Harv.J.Legis. 462 (1969). Following the article is a proposed statute, designed to solve many of the problems of incorporating a new town. A New Community Local Government Act, 6 Harv.J.Legis. 484 (1969).
- Whatever system of government may be devised for a new community, the problem of financing remains. Large amounts of “patient money” will be needed— , money that cannot be repaid—and on which no substantial profit is likely to be earned—for a considerable length of time. Without government aid, few private sources could make the necessary investments. Federal governmental support for new towns was foreshadowed by 1966 legislation which provided mortgage insurance for privately financed land developments—including new-community developments.
- note 2, at 521–22; Comment, Democracy in the New Towns: The Limits of Private Government, 36 U.Chi.L.Rev. 379 (1969). This method has been used, for instance, in the widely praised new towns of Reston, Virginia, and Columbia, Maryland. See Wedemeyer, New Towns Creating a Utopia, Houston Chronicle, Aug. 16, 1970, § 2, at 2. See generally Reichman, Residential Private Governments, 43 U.Chi.L.Rev. 253 (1976). An excellent suggestion for the use of . See also Perrenod, Special Districts, Special Purposes: Fringe Governments and Urban Problems in the Houston Area (Texas A. & M. Univ. Press 1984), reporting on suburban special districts in the Houston metropolitan area, including districts utilized for the governing of new communities in that area.
- Open Chapter
Chapter 19. Municipal Acquisition of Property: Eminent Domain and Other Methods 115 results (showing 5 best matches)
- Local governments usually have express, or clearly implied, power to accept property, though occasionally there are requirements that must be met, such as approval by local planning commissions of the acceptance of realty. One of the most common forms of donation to local governments is Dedication exists at common law; matter, a dedication that is ineffective under the statutes may nonetheless be valid by the common law. The requisites at common law are (1) an intention to donate on the part of the owner, (2) an actual transfer of control to a public body, and (3) acceptance of the dedication on behalf of the public. At common law, the offer to dedicate can be
- The exercise of eminent domain by local governments receives considerable attention because of the limitations surrounding, and litigation arising from, this method of acquisition—and because eminent domain has been much utilized in connection with such recent, and sometimes controversial, municipal activities as urban renewal. But local governments may acquire real property in three other principal ways: by purchase, by gift, and by lease.
- of property by local governments—at least to private individuals—are generally banned by statute or as a matter of common law;
- easements, and that the courts would do well to stick consistently to the dedication theory in regard to public ways. Fordham, Local Government Law 972 (1975 rev. ed.) But there a number of cases recognizing that a local government may acquire property by adverse possession, just as an individual may. See City of Bowling Green v. Board of Education, 278 S.W.2d 726 (Ky.1955); Terry v. City of Independence, 388 S.W.2d 769 (Mo.1965); New York v. Carleton, 113 N.Y. 284, 21 N.E. 55 (1889); Polanski v. Town of Eagle Point, 30 Wis.2d 507, 141 N.W.2d 281 (1966). And may acquire an easement by prescription. See Town of Paden City v. Felton,
- , see Whitcomb & Huett, Recent Developments in Regulatory Takings Jurisprudence, 41 Urban Law. 445 (2009), noting that 25 years after the Baseless “State Procedures” Takings Ripeness Requirement to Non-Takings Claims, 41 Urban Law. 615 (2009). On the need to seek a variance before challenging a zoning ordinance as a taking (also noted in Section 18.6, note 137 ...of subdivision proposal in absence of final and authoritative determination by county planning commission as to how it would apply challenged regulations to property in question). Accord, Lake Nacimiento Ranch Co. v. County of San Luis Obispo, 841 F.2d 872 (9th Cir.1987), cert. denied 488 U.S. 827, 109 S.Ct. 79, 102 L.Ed.2d 55 (1988) (to establish that regulation has gone too far, plaintiff must show that government has made a final and authoritative determination concerning type and intensity of development legally permitted on subject property). Compare Pennell v. City of San Jose, 485 U.S. 1, 108 S.Ct. 849, 99 L.Ed.2d 1...
- Open Chapter
Acknowledgments 2 results
- Special thanks to Clara Walker, who was my high-school American Government teacher and first inspired my interest in the field of Local Government Law; to Sharon and Miles Pabst, and to Rick, Tim, Minh, and Sarah Weldon for friendship and support over many years; to Sandra Hathy and to the Bates and Postic families for their encouragement and loyalty; to my many students in Local Government Law, Land Use Control and Directed Research whose research papers provided me with insights and ideas; to Misti Box, Misty Lasater, Dawn Tomlins, Donna Wade, and the entire Faculty Support Staff (past and present) of the University of Oklahoma College of Law, who worked tirelessly, patiently and most competently in the preparation of this book; and to the administration (past and present) of the University of Oklahoma College of Law for summer research grants.
- This book—in both its original and its current edition—could best have been written by Prof. James E. Westbrook of the University of Missouri School of Law. He was originally scheduled to write the first edition, but had to forego the opportunity because of the press of administrative duties while he served at that time as Dean/Director of the University of Oklahoma Law Center. My thanks to him for recommending me to undertake the task.
- Open Chapter
Chapter 21. “Planning” At the Local Level 92 results (showing 5 best matches)
- See Yannacone, Rahenkamp, & Cerchione, Impact Zoning: Alternative to Exclusion in the Suburbs, 8 Urban Lawyer 417 (1976). Some municipalities have passed ordinances requiring “impact statements” before major public or private projects are undertaken. See Macbeth & Sofaer, Recent Developments in Local Government Law, 7 Urban Lawyer 1, 34 (1975), noting examples of such ordinances in Bowie, Maryland, and Modesto, California. It has been held that such statements could, under state law in California, be required even of the state government itself. City of Orange v. Valenti, 37 Cal.App.3d 240, 112 Cal.Rptr. 379 (Dist.Ct.1974) (suit filed by city). But state and local requirements will generally be inapplicable to federal land. See Ventura County v. Gulf Oil Corp., 601 F.2d 1080 (9th Cir.1979), aff’d, 445 U.S. 947, 100 S.Ct. 1593, 63 L.Ed.2d 782 (1980) (lessee of federal government could not be required to obtain “open space use permit” from county planning commission; oil lease of...
- building and development. Generally, once the master plan is adopted by the local government’s legislative body, that local government must submit any proposals regarding public buildings, streets, parks, etc. to the local planning commission for that commission’s determination of whether or not the proposed action conforms to the master plan. For instance, a proposal to open a new street, or close an old one, must be so submitted. If the planning commission disapproves an action that had been proposed by municipal officials, those officials can appeal to the local governing body itself. That governing body then makes the final determination—which will not be reversed by the courts unless arbitrary action or an abuse of discretion is shown. However, a local building of public improvements, unless state law so provides.
- As to the “green movement” and its effect on urban planning, see Millan, Green Buildings and Plugging the Gaps in Environmental Laws, 27 Tulane Envtl. L. J. 43 (2013); Freilich, Sitkowski & Mennillo, Greening Local Government: Legal Strategies for Promoting Sustainability, Efficiency, and Fiscal Savings (ABA Section of State & Local Government 2013).
- On the “New Urbanism” movement, which emerged in the late 1970s and early 1980s and which seeks to reform conventional planning and real estate development in many areas, such as urban and suburban infill development, see Braun, Growth Management and New Urbanism: Legal Implications, 31 Urban Law. 817 (1999); Sitkowski & Ohm, Enabling the New Urbanism, 34 Urban Law. 935 (2002) (New Urbanist developments are intended to reflect techniques popular prior to World War II, such as more compact, pedestrian friendly, mixed-use communities). See generally Ohm & Sitkowski, The Influence of New Urbanism on Local Ordinances—The Twilight of Zoning?, 35 Urban Law. 783 (2003). See also Ohm & Sitkowski, Integrating New Urbanism and Affordable Housing Tools, 36 Urban Law. 857 (2004), noting that despite New Urbanism’s supposed emphasis on diversity of housing, “observers have criticized traditional neighborhood developments and other New Urbanist-influenced projects for not meeting diversity of...
- Stones v. Plattsmouth Airport Authority, 193 Neb. 552, 228 N.W.2d 129 (1975); Marracci v. Scappoose, 26 Or.App. 131, 552 P.2d 552 (1976). Cf. Bone v. City of Lewiston, 107 Idaho 844, 693 P.2d 1046 (1984) (court refused issuance of mandamus to compel city to rezone property in accordance with comprehensive plan; plan said only to indicate projected land uses for the future, not the presently appropriate uses); State by Rochester Association of Neighborhoods v. City of Rochester, 268 N.W.2d 885 (Minn.1978) (city need not amend land-use plan before adopting inconsistent zoning ordinance; ordinance may nonetheless be valid); Pohrman v. Klamath County Commissioners, 25 Or.App. 613, 550 P.2d 1236 (1976) (plan adopted by county was less restrictive than zoning law adopted by local government; local government need not immediately make ordinance consistent with plan).
- Open Chapter
Chapter 12. Territorial Composition of Municipalities 82 results (showing 5 best matches)
- A municipal corporation, or other entity of local government, normally needs three things in order to engage in effective action: (1) territory over which the government has some control, (2) people to perform the functions of government, and (3) money with which to pay the costs of activities. This chapter will consider the first of these requisites: the territorial make-up of local units. First, we will consider the process by which local units and their boundaries are established—generally called “incorporation”—and then consider the processes by which territorial boundaries may be expanded (“annexation”) and other methods of changing or terminating the territorial control of local governments (de-annexation, consolidation, dissolution, etc.).
- Another limitation occasionally encountered is a prohibition of the annexation of land in a county other than that in which the annexing municipality is located. See 1 Antieau, Local Government Law § 3.08[3] (2d ed. 2000).
- See Fordham, Local Government Law 202–03 (2d rev. ed. 1986).
- note 98 (permit issued by de facto government valid). See generally Field, The Status of a Municipal Corporation Organized Under an Unconstitutional Statute, 27 Mich.L.Rev. 523 (1929); Fordham, Local Government Law 256 (1975 rev. ed.), both indicating that collateral attacks on municipal corporations, based on alleged unconstitutionality of the statute under which the corporation was organized, are generally not permitted. It has been concluded that if a statute is found unconstitutional, it could not be taken as sufficient color of authority to uphold a unit of local government as a de facto creation, but that sufficient color of authority may be supplied by the recognition of the potential existence of such units by the general laws or constitution of the state. See Tooke,
- Hunter v. Pittsburgh, 207 U.S. 161, 28 S.Ct. 40, 52 L.Ed. 151 (1907); Douglas v. City and Borough of Juneau, 484 P.2d 1040 (Alaska 1971) (consolidation can be ordered by legislature even though home-rule municipalities are involved); Brown Deer v. Milwaukee, 2 Wis.2d 441, 86 N.W.2d 487 (1957). Much recent “consolidation” has involved the unifying of county government with the governments of cities within the county. See Bollens & Schmandt, The Metropolis 303–04 (1970); Note, Decentralization of Metropolitan Government: Reform in Indianapolis, 4 Law Reform 310 (1970); 61 Nat’l Civic Rev. 417–19 (1972). See generally Chapter 2 ...of these consolidations has been upheld. Jackson v. Consolidated Government of Jacksonville, 225 So.2d 497 (Fla.1969); Dortch v. Lugar, 255 Ind. 545, 266 N.E.2d 25 (1971) (act consolidating Indianapolis and Marion County upheld); Frazer v. Carr, 210 Tenn. 565, 360 S.W.2d 449 (1962) (legislative act authorizing consolidation of Nashville and Davidson...
- Open Chapter
Chapter 18. Local Control of the Use of Property: Zoning and Related Methods 213 results (showing 5 best matches)
- One local government is not, in its governmental activities, subject to the zoning of another local government: City of Scottsdale v. Municipal Court, 90 Ariz. 393, 368 P.2d 637 (1962) (sewage disposal plant; strong dissent); City of Bloomfield v. Davis County Community School District, 254 Iowa 900, 119 N.W.2d 909 (1963) (school district’s gasoline storage tank and pump); Village of Larchmont v. Town of Mamaroneck, 208 App.Div. 812, 203 N.Y.S. 957 (1924), aff’d as modified per curiam 239 N.Y. 551, 147 N.E. 191 (village water works). But one local government may be subject to the zoning of another locality where the former is acting in its proprietary capacity. City of Treasure Island v. Decker, 174 So.2d 756 (Fla.App.1965) (toll gate on causeway). Cf. Wilmette Park Dist. v. Village of Wilmette, 112 Ill.2d 6, 96 Ill.Dec. 77, 490 N.E.2d 1282 (1986) (park district held not immune from village’s zoning laws regarding the kind of lighting permitted, since there was no clear statutory...
- It has been suggested that climate change may make necessary some changes in local zoning laws, perhaps making desirable a revamping of our entire zoning system since federal involvement may now be needed in that system, though historically the federal government has not participated there. Flatt, Adapting Laws for a Changing World: A Systemic Approach to Climate Change Adaptation, 64 U. Fla. L. Rev. 269, 292 (2012). See Heinzerling, Climate, Preemption, and the Executive Branches, 50 Ariz. L. Rev. 925 (2008), and Stewart, States and Cities as Actors in Global Climate Regulation, 50 Ariz. L. Rev. 681 (2008), both parts of Symposium, Federalism and Climate Change: The Role of the States in a Future Federal Regime, 50 Ariz. L. Rev. 673–938 (2008). See generally Sussman, Climate Change Adaptation: Fostering Progress Through Law and Regulation, 18 N.Y.U. Envtl. L. Rev. 55 (2010); Trisolini, What Local Climate Change Plans Can Teach Us About City Power, 36 Fordham Urb. L. J. 863 (2009);...
- ....2d 488, 139 P.3d 1096 (2006), applying the Washington State statute and defining “agricultural land” under the Act as land that is not already characterized by urban growth and that is primarily devoted to the commercial production of agricultural products, including land in areas used or capable of being used for production based on land characteristics. The court said that land should be designated as “agricultural” based not only on soil and land characteristics but also on farm industry’s projected needs. The county’s exclusion of “farm centers” and farm homes for agricultural-land designation was held erroneous, as was the allowing of residential subdivisions and other non-farm uses within the designated areas. Compare Seward County v. Navarro, 35 Kan.App.2d 744, 133 P.3d 1283 (2006) (training of horses for racing purposes was not agricultural use). Cf. Wetherell v. Douglas County, 342 Or. 666, 160 P.3d 614 (2007) (in determining whether land is suitable for farm use, local...
- It has also been recognized that the police power covers regulation of hydraulic fracturing by the oil and gas industry and thus may be subject to regulation by local governments the state has not pre-empted the field. See Note, Moving Past Preemption: Enhancing the Power of Local Governments Over Hydraulic Fracturing, 98 Minn. L. Rev. 385 (2013); Comment, Regulating Hydraulic Fracturing Through Land Use: State Preemption Prevails, 85 U. Colo. L.Rev. 817 (2014). See generally Symposium, Legal Aspects of Hydraulic Fracturing, 49 Idaho L. Rev. 241–517 (2013). On the situation in New York State, see Note, Zoning Out Fracking: Zoning Authority Under New York State’s Oil, Gas, and Solution Mining Law, 40 Fordham Urb. L. J. 869 (2012); Note, Drawing Lines in the Shale: Local Zoning Bans, the Taking Clause, and the Clash to Come If New York State Promulgates Hydrofracking Regulations, 64 Syracuse L. Rev. 489 (2014); Symposium, Fractured Communities: Hydraulic Fracturing and the Law in New...
- As to whether hydrofracking is most appropriately regulated at the federal, state, or local level—or some combination of these—, compare Freilich & Popowitz, Oil and Gas Fracking: State and Federal Regulation Does Not Preempt Needed Local Government Regulation, 44 Urban Law. 533 (2012), with Burford, The Need for Federal Regulation of Hydraulic Fracturing, 44 Urban Law. 577 (2012). See generally Nolon & Polidoro, Hydrofracking: Disturbances Both Geological and Political: Who Decides?, 44 Urban Law. 507 (2012). See also Burger, The (Re)federalization of Fracking Regulation, 2013 Mich. St. L. Rev. 1484; Wegemer, Drilling Down: New York Hydraulic Fracturing, and the Dormant Commerce Clause, 28 B.Y.U. J. Pub. L. 351 (2014).
- Open Chapter
Chapter 11. Municipal Legislation: Forms and Procedures for Enactment 67 results (showing 5 best matches)
- Sometimes in this ordinance-v.-resolution area, as in so many areas of local government law, a distinction is made between governmental activities of a municipality and proprietary (or corporate or “business-like”) activities. Where proprietary functions are involved, a city’s use of a resolution, as in selling an electric plant or other utility, is more likely to be upheld than where governmental functions are concerned.
- Fordham, Local Government Law 352 (2d rev. ed. 1986). Cf. Duquesne Light Co. v. City of Pittsburgh, 251 Pa. 557, 97 A. 85 (1916), discussing the nature of a title and a preamble.
- See Fordham, Local Government Law 329 (2d rev. ed. 1986), saying that where notice of a special meeting must be given the public, and must include a list of the business to be transacted, the council should not, even by unanimous consent, be able to take action on an unlisted matter.
- See Fordham, Local Government Law 353 (2d rev. ed. 1986). Publication of municipal enactments is not necessary except as required by statute or city charter. Houston v. Kirschwing, 117 Colo. 92, 184 P.2d 487 (1947); City of Paducah v. Ragsdale, 122 Ky. 425, 92 S.W. 13 (1906); Forbes v. Woburn, 306 Mass. 67, 27 N.E.2d 733 (1940). But requirements that publication occur either during the enactment process or immediately after enactment are extremely common and are usually considered mandatory. See 1 Antieau, Municipal Corporation Law § 4.21 (1998).
- Fordham, Local Government Law 330–31 (2d rev. ed. 1986) (“nearly three-fourths of the states”). There is generally held to be no common-law right, nor any implied right under U.S. or state constitutions, for members of the public or of newsgathering organizations to attend governmental meetings. Abood v. League of Women Voters, 743 P.2d 333 (Alaska 1987). See Watkins, Open Meetings Under the Arkansas Freedom of Information Act, 38 Ark. L. Rev. 268 (1984).
- Open Chapter
Index 85 results (showing 5 best matches)
Chapter 4. Limits on State Control of Municipalities: Inherent Home Rule 28 results (showing 5 best matches)
- But it has been noted that it has a “persistence in the romantic literature of local government law”
- The inherent home-rule principle may be based on the theory that a natural right of local self-government goes with legislative creation of a municipal corporation. It is sometimes also said that the right of local self-government is one of those retained by or reserved to the people under the 9th and 10th amendments to the U.S. Constitution. In making the necessary distinction under this doctrine between matters of local concern and those of statewide import, courts may utilize the related distinction between ...and proprietary activities. Thus, as a rule of thumb, governmental matters may be considered of statewide concern, as they are matters in which the city acts as a kind of agency of the state. Proprietary matters, on the other hand, are those in which the city, by definition, is acting in much the same role as a private business, as, for instance, when the city operates a water utility. These proprietary matters may be considered as a general rule to be of purely local...
- In those relatively few cases actually applying inherent home rule, the situation presented was often that of the state legislature attempting to create and/or appoint boards or agencies to deal with local matters, such as operation of a city utility. It is understandable that both local governments and state courts might rebel against this interference, but inherent home rule is not essential to overthrowing such actions. Today the interference could often be invalidated under state constitutional prohibitions of special legislation or of state commissions to deal with municipal property, such as are discussed in the following chapter. The need for a doctrine of inherent home rule has also been lessened by the adoption in most states of constitutional or statutory methods under which certain qualifying cities may obtain a home-rule charter. When such a charter is obtained, the effect is then much the same as if inherent home rule were applied: state law prevails as to statewide...
- See McBain, The Doctrine of an Inherent Right of Local Self-Government, 16 Colum.L.Rev. 190, 299 (1916). But see Eaton, The Origin of Municipal Incorporation in England and the United States, 25 Rep.Am.Bar Ass’n 292 (1902), supporting the doctrine. See generally McQuillin, Constitutional Right of Local Self-Government of Municipalities, and Principles Applicable to Central Control, 35 Am.L.Rev. 510 (1901).
- Amyot v. Caron, 88 N.H. 394, 190 A. 134 (1937); Booth v. McGuinness, 78 N.J.L. 346, 75 A. 455 (1910); State ex rel. City of Minot v. Gronna, 79 N.D. 673, 59 N.W.2d 514 (1953); City of Providence v. Moulton, 52 R.I. 236, 160 A. 75 (1932); Madison Metropolitan Sewerage District v. Committee on Water Pollution, 260 Wis. 229, 50 N.W.2d 424 (1951). The power of the state legislature to force a municipality to pay a nonbinding demand, where an equitable obligation exists, has even been recognized. Forman v. Sewerage & Water Board, 135 La. 1031, 66 So. 351 (1914) (but legislature cannot compel payment where is no moral or equitable obligations); McBain, The Law and Practice of Home Rule 24–25 (1916). But it has been held in a few cases, and said in a number of others, that due process prevents a state from compelling a city to levy a tax or incur a debt for a purely local purpose. See McBain, Due Process of Law and the Power of the Legislature to Compel a Municipal Corporation to Levy...
- Open Chapter
Table of Contents 77 results (showing 5 best matches)
Chapter 5. Limits on State Control of Municipalities: Specific Constitutional Limitations 83 results (showing 5 best matches)
- See Stason & Kauper, Municipal Corporations 28–30 (3d ed. 1958). Cf. Fordham, Local Government Law 65–69 (2d rev. ed. 1986).
- Fordham, Local Government Law 61 (2d rev. ed. 1986), discussing the typical provision found in Missouri. On a modern method of lending state credit to cities by means of the state’s guaranteeing payment of municipal securities, see generally Minge, Guarantying Municipal Bonds, 1974 Wis. L.Rev. 89.
- See Fordham, Local Government Law 64–65 (2d rev. ed. 1986), citing Mo. Const. Art. 6, §§ 3–6.
- See Sato & Van Alstyne, State and Local Government Law 133–34 (2d ed. 1977), noting the difficulties presented by the rigid requirements for counties set forth in some state constitutions. See Winters, State Constitutional Limitations on Solutions of Metropolitan Area Problems 50 (1961).
- See, with citations to relevant provisions, 1 Antieau, Municipal Corporation Law § 2.11 (1998); Fordham, Local Government Law 63 (2d rev. ed. 1986); Stason & Kauper, Municipal Corporations 28 (3d ed. 1958). The history of these provisions, sometimes called “ripper clauses,” is thoroughly discussed in Porter, The Ripper Clause in State Constitutional Law: An Early Urban Experiment—Parts I & II, 1969 Utah L. Rev. 287, 450.
- Open Chapter
Half Title 1 result
Chapter 20. Urban Renewal and Public Housing 101 results (showing 5 best matches)
- On the various nonprofit and nongovernmental institutions—community development organizations, limited equity cooperatives, etc.—working to achieve urban redevelopment, see Simon, The Community Economic Development Movement: Law, Business, and the New Social Policy (Duke University Press 2001), reviewed by Barron, The Community Economic Development Movement: A Metropolitan Perspective, 56 Stan. L. Rev. 701 (2003). See also Sections 16.1–16.3, on local government incentives to business.
- It has been noted that federal policy has shifted away from supply-side subsidy programs and toward a more demand-side orientation, in which the government concentrates less on construction of housing projects and more on subsidizing tenants; but local jurisdictions, including New York City, have not always joined in this shift. See Zeidel, Affordable Housing: The Case for Demand-Side Subsidies in Superstar Cities, 42 Urban Law. 135 (2010).
- A notable development of recent times in the United States has been the growth in the share of the housing market made up of condominium apartments. See generally Barton & Silverman, Common Interest Communities, Private Governments and the Public Interest (Univ. of Calif. Press 1994). reviewed 27 Urban Law. 631 (1995); Comment, Areas of Dispute in Condominium Law, 12 Wake Forest L.Rev. 979 (1976); Note, Living in a Condominium: Individual Needs versus Community Interests, 46 U.Cin.L.Rev. 523 (1977). On the Uniform Condominium Act, see Jackson & Colgan, Uniform Condominium Act from a Local Government Perspective, 10 Urban Lawyer 429 (1978); Judy & Wittie, Uniform Condominium Act: Selected Key Issues, 13 Real Prop. Prob. & Trust J. 437 (1978). The creation of condominiums and cooperatives may be considered a part of the general trend toward “privatization”—the turning over of traditionally governmental services to private organizations. See Section 16.2, note 33, ...Law. 325–69...
- The federal goal of integrated housing was further emphasized by the provisions of the Housing and Community Development Act of 1974, 42 U.S.C.A. §§ 5301–19. See Fishman, Title I of the Housing and Community Development Act of 1974: New Federal and Local Dynamics in Community Development, 7 Urban Law. 189 (1975). The 1974 law emphasized “block grants” to communities, with the communities left much discretion on how to use funds, rather than the old project-by-project system of funding. See Freilich, White-Wasson & Cofer, 1979–80 Annual Review of Local Government Law: Municipal Liability and Other Certain Uncertainties, 12 Urban Law. 577, 645 (1980). See generally Goering (ed.), Housing Desegregation and Federal Policy (Univ. of North Carolina Press 1986). See also Note, Enforcing the Fair Housing Act: Can Agency Interpretations Override Congressional Intent in Anti-discrimination Legislation?, 9 N.Y.U.J. Legis. & Pub. Pol’y 535 (2005–06); Note, Making Exclusionary Zoning Remedies...Law
- purposes or to justify spending of public money) because the property will often end up in the hands of private redevelopers. But the first argument has consistently been rejected because adequate standards of what is “blighted” or “slum” are found to have been provided by legislation and/or because decisions of the local authority are usually subject to approval or rejection by the local governing body itself. the courts often being influenced in this determination by the considerable control over permissible land uses generally retained by the local government. Contractual provisions—often involving covenants running with the land—can bind the redevelopers and/or purchasers to abide by the plan, thus assuring a degree of continued governmental control; and upon non-performance of the contractual obligations, courts can order a reconveyance of the property to the local government or its redevelopment authority.
- Open Chapter
Chapter 17. Local Operation of Utilities 31 results (showing 5 best matches)
- § 17.1 Relationship of Local Governments to Privately Owned Public Utilities
- § 17.1 Relationship of Local Governments to Privately Owned Public Utilities
- It has been held that such local governmental activities as operation of a utility may come within federal antitrust laws. City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 98 S.Ct. 1123, 55 L.Ed.2d 364 (1978). See generally Section 26.7
- For what reasons does a local unit of government enter the utility business? Municipal operation of a utility provides, of course, a service to municipal residents—and thus relates to the following chapters on activities of cities and towns. But the operation may also result in revenue for the municipality—and thus relates to the prior chapters on municipal finances. It is generally held that a municipality is entitled to earn a fair return on its utility investment the same as would a privately owned utility company. , they are set by the contract between the utility and its customer, and any such agreement, if valid under general rules of contract law, is enforceable.
- Federal legislation largely covers the regulation of cable television but specifically leaves some matters to municipal control. See Ciamporcero, Is There Any Hope for Cities? Recent Developments in Cable Television Law, 18 Urban Law. 369 (1986). It has been held that a municipality may not deny a cable television company access to public facilities, such as utility poles and conduits, when those facilities are physically capable of accommodating the company, as such denial would infringe the company’s First Amendment rights. Preferred Communications, Inc. v. City of Los Angeles, 754 F.2d 1396 (9th Cir.1985), aff’d and remanded for determination of fact questions 476 U.S. 488, 106 S.Ct. 2034, 90 L.Ed.2d 480 (1986). And the U.S. Supreme Court has ruled that federal regulations have pre-empted any state or local controls over the signals carried by cable television systems, thus precluding a state or locality from banning commercials for alcoholic beverages on out-of-state cable...
- Open Chapter
Summary of Contents 14 results (showing 5 best matches)
Table of Cases 52 results (showing 5 best matches)
- Wood Village, City of v. Portland Metropolitan Area Local Government Boundary Commission …………… 225
- Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc. …………… 632, 633
- Ashcroft, State ex inf. v. Kansas City Firefighters Local No. 42 …………… 322
- Bellevue Fire Fighters Local 1604 v. City of Bellevue …………… 282
- Billings Firefighters Local 521 v. City of Billings …………… 109, 119
- Open Chapter
Chapter 24. Local Controls on Criminal Activity 41 results (showing 5 best matches)
- Historically, some gun-control ordinances of local governments have been sustained. Thus, there is possible room for local regulation—though occasionally, a government may be found to have pre-empted the field in that jurisdiction.
- The crowded conditions, racial unrest, and poverty of many urban areas have made enforcement of the criminal laws one of the most difficult tasks of local governments—especially the governments of our larger cities. “Violent crime in the United States,” it has been observed, “is primarily a phenomenon of large cities.”
- The legislation creating the federal Law Enforcement Assistance Administration, and providing for federal grants through this agency to state and local units, is found at 42 U.S.C.A. §§ 3701–81. On the federal grants, see Clynch, Spending of Law Enforcement Assistance Administration Block Grants by the States: A Report, 2 Justice System J. 157 (1976). See generally Leonard, Bar and LEAA, 45 Wis.B.Bull. 37 (1972); Law Enforcement Assistance Administration: A Symposium on Its Operation and Impact, 5 Colum.Human Rights L.Rev. 1–214 (1973). See also McPheters & Stronge, Law Enforcement Expenditures and Urban Crime, 27 Nat. Tax J. 633 (1974). The first major emphasis on the need for federal assistance in local crime-control and crime-prevention programs was found in Title I of the Omnibus Crime Control and Safe Streets Act of 1968. See the up-dated authorization of expenditures in 42 U.S.C.A. § 3768, and Historical Note thereto. See also Note, Title II of the Omnibus Crime Control...
- rather than of local governments. Municipalities thus possess only such powers in this area as are clearly delegated by the state; and municipal police officers actually serve the whole state, not merely their own municipality. State laws defining crimes and their punishment will, in cases of conflict, prevail over municipal laws to the contrary—even municipal laws of home-rule cities.
- See Suter v. City of Lafayette, 57 Cal.App.4th 1109, 67 Cal.Rptr.2d 420 (Ct. App. 1997) (city had power to regulate sale, lease, or transfer of firearms); Township of Chester v. Panicucci, 62 N.J. 94, 299 A.2d 385 (1973) (ordinance banned possession of loaded gun within 300 feet of any dwelling or 400 feet of a school playground); People v. Judiz, 38 N.Y.2d 529, 381 N.Y.S.2d 467, 344 N.E.2d 399 (1976) (sale or possession of toy or imitation pistols covered; court says local ordinance entitled to same presumption of constitutionality as is a state law on the subject); City of Portland v. Bingham, 3 Or.App. 430, 474 P.2d 15 (1970) (unlawful to possess firearm unless ammunition removed and firing mechanism disassembled). It has been held that ...; Firearms: Problems of Control, 80 Harv.L.Rev. 1328 (1967); Annot., Validity and Construction of Gun Control Laws, 28 A.L.R.3d 845 (1969). See also Annots., Constitutionality of Statutes Restricting Right of Aliens to Bear Arms, 34 A.L.R....
- Open Chapter
Chapter 10. Municipal Legislation: Requirement of Definiteness and Certainty 18 results (showing 5 best matches)
- of its wording is unconstitutionally vague, so long as the vague words can be severed in such a way as to leave the remaining legislation meaningful and reasonably clear. See City of Farmington v. Phillips, 92 N.M. 304, 587 P.2d 451 (App.1978) (words “common” and “ill-governed” are too vague, but “disorderly house” is sufficiently clear). Similarly, a law will not be invalidated for vagueness merely because it shows a potential for arbitrary enforcement; there must be evidence of a history of actual arbitrary application. See Haggblom v. City of Dillingham, 191 P.3d 991 (Alaska 2008) (city ordinance providing that an animal that bites a person without provocation is to be euthanized held not void for vagueness); State of Arizona v. Putzi, 223 Ariz. 578, 225 P.3d 1154 (App. 2010) (ordinance not rendered unconstitutionally vague because there is a theoretical potential for arbitrary enforcement and some assessment by a law enforcement officer may be required; ordinance prohibiting...
- See Plummer v. City of Columbus, 414 U.S. 2, 94 S.Ct. 17, 38 L.Ed.2d 3 (1973) (invalidating an ordinance providing that no persons shall abuse another by using menacing, insulting, slanderous, or profane language); Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972). Vagueness of the law as applied to third persons, though the law clearly does apply to the defendant, can successfully be raised only if the law applies to pure speech, not conduct. Similarly, the overbreadth argument can be raised as to third persons if pure speech is restricted or if the overbreadth is real and substantial, judged in relation to the legislation’s plainly legitimate sweep; but if conduct and not pure speech is restricted and there is no substantial overbreadth, an accused person cannot raise the issue of overbreadth as to other persons. See Houston v. Hill, 482 U.S. 451, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987) (municipal ordinance punishing intentional verbal interruptions of police...
- If a municipality possesses a particular power, adheres to any relevant limits as to time and territory in exercising the power, and does not make a delegation of unbridled discretion to any agent or employee, is there any other limitation on the municipality’s use of the power? There is one other rule of particular importance: Any municipal law must “set forth with clarity some norm or standard by which all persons may know their rights and obligations thereunder.” And the requirement applies with particular force to all measures of a penal nature because legislation forbidding an act in terms so indefinite that people of common intelligence cannot understand what is forbidden violates the first essential of due process of law. (1) to prevent trapping citizens who try to be law-abiding, (2) to ensure that a defendant accused of violating an ordinance can make a reasonable effort to defend himself against the charge, (3) to prevent arbitrary enforcement of the law against some...
- 1 Antieau, Municipal Corporation Law § 5.17, at 5–62 (1998), citing Dunn v. City of Wilmington, 58 Del. (8 Storey) 569, 212 A.2d 596 (1965).
- A city ordinance authorizing a penalty for “unsightly” accumulation of refuse has been held unconstitutionally vague on the ground that the term “unsightly” is purely subjective and qualitative and could thus lead to arbitrary enforcement of the law. City of Independence v. Richards, 659 S.W.2d 795 (Mo.App.1983).
- Open Chapter
Advisory Board 9 results (showing 5 best matches)
- Distinguished University Professor, Frank R. Strong Chair in Law, Michael E. Moritz College of Law, The Ohio State University
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Chancellor and Dean Emeritus, Hastings College of the Law
- Professor of Law, Yale Law School
- Professor of Law, Pepperdine University Professor of Law Emeritus, University of California, Los Angeles
- Open Chapter
- Publication Date: October 16th, 2015
- ISBN: 9781628101218
- Subject: Local Government
- Series: Hornbooks
- Type: Hornbook Treatises
- Description: This new edition continues the emphasis of prior editions on such topics as the relationship of local governments to state and federal governments; the needs of local governments for territory, for personnel, and for adequate financing; and the principal activities and possible liabilities of local government. There is increased attention to land use control, an area of growing activity on the part of institutions, ranging from the U.S. Supreme Court to local zoning boards. This includes material not found in some books in this field, on such important concepts as “smart growth,” “new urbanism,” and “regulatory takings.”
