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February 24, 2006

New York City "Equal Benefits" Law Preempted

An important recent case from New York's high court considers the preemptive effective of state and federal laws on a city requirement that city agencies not contract with contractors that failed to provide their employees' domestric partners with employment benefits equal to those provided to employees' spouses. Council of City of New York v. Bloomberg, __N.E.2d__, 21006 WL 346293 (N.Y. Feb. 14, 2006). 

In 2004, the Equal Benefits Law (NYC Admin Code S 6-126) was passed over the Mayor's veto.  The Mayor then unsuccessfully sought a temporary restraining order, asserting that the law was preempted by the General Municipal Law and the City Charter relating to municipal contracting as well as by the federal ERISA statute, and was invalid as curtailing the Mayor's powers without a referendum in violation of the Municipal Home Rule Law and City Charter.  The City Council in turn sued the mayor in an article 78 proceeding in the nature of mandamus to compel implementation and enforcement of the Equal Benefits Law.

A majority of the NY Court of Appeals concluded that Equal Benefits Law conflicted with the state's competitive bidding statute (rejecting the City Council's claim that the requirements imposed were "de minimis" on affected contractors, and that home rule powers allowed departure from generally applicable provisions of General Municipal Law s 103 which requires that municipalities contract with the lowest responsible bidder). The majority also found that the Equal Benefits Law was preempted by ERISA [relating to employee benefit plans] except to the extent that it governed benefits falling outside of ERISA's scope, rejecting the argument that a "market participant" theory should be incorporated into that statute as a way of permitting governments to use their marketplace powers to implement preferred policies.  Accordingly an action in the nature of mandamus could not lie to require the Mayor to engage in an unlawful act.

Justice Rosenblatt dissented, in an opinion joined by Chief Justice Kay and Justice Ciparick.  The dissent focused on the procedural dimensions of NY law, contending that the Mayor could not challenge the validity of the Equal Benefits Law as part of the article 78 proceeding, but should have executed the law until a court declared it invalid (which might have occurred had he continued to pursue a declaratory judgment action).  The dissent accordingly did not reach the preemption issues the majority found dispositive.

February 24, 2006 in Case Developments | Permalink | Comments (0) | TrackBack

New Metro Politics

A new report by Robert Land and Thomas Sanchez of the Metropolitan Institute at Virginia Tech interprets recent presidential elections using a county-based regional typology.  The authors focus on 417 counties in the top 50 metro areas in the US (including more than half of the nation's population), and considers five subsets:  core, inner suburbs, mature suburbs, emerging suburbs and exurbs.  The authors' analysis allows them to focus on the amount and nature of the "urbanized" population. That focus allows them to identify differences between "mature" and "emerging" suburbs that may have considerable significance, for example ("mature suburbs are adding more residents than emerging suburbs...[and include] more households with adults only compared to exurbs and emerging suburbs...[so that] the growing voting strength of mature suburbs is even greater than [their] poplations gains on their own would suggest." 

The analysis leads them to posit that for the new metro politics "it's the density, stupid," and to note that the "big divide between the suburbs is newness."  They conclude: 

"much of older suburbia dates to the post war era of the 1950s and 1960s.  On a superficial level these two areas may seem similar--perhaps old sprawl versus new sprawl...[y]et ...these places are now very much different.  A key concern for the old sprawl areas is that they are in rapid transition to a quasi-city like character...[and] policies that smooth this change and provide reinvestment opportunities in upgrading aging infrastructure are favored by these voters.  Voters at the metropolitan edge want policies that slow growth so that local service can catch up with demand.... The next several elections may be determined by who does a better job of addressing the new metro politics."

February 24, 2006 in Think Tanks and Organizations | Permalink | Comments (0) | TrackBack

February 23, 2006

School District Consolidation

On the theme of educational change... Nora Gordon and Brian Knight have a paper available from the National Bureau of Economic Research on "The Causes of Political Integration:  An Application to School Districts."  Their abstract reads:

"This paper examines the forces behind political integration through the lens of school district consolidations, which reduced the number of school districts in the United States from around 130,000 in 1930 to under 15,000 at present. Despite this large observed decline, many districts resisted consolidation before ultimately merging and others never merged, choosing to remain at enrollment levels that nearly any education cost function would deem inefficiently small. Why do some districts voluntarily integrate while others remain small, and how do those districts that do merge choose with which of their neighbors to do so? In addressing these questions, we empirically examine the role of potential economies and diseconomies of scale, heterogeneity between merger partners, and the role of state governments. We first develop a simulation-based estimator that is rooted in the economics of matching and thus accounts for three important features of typical merger protocol: two-sided decision making, multiple potential partners, and spatial interdependence. We then apply this methodology to a wave of school district mergers in the state of Iowa during the 1990s. Our results highlight the importance of economies of scale, diseconomies of scale, state financial incentives for consolidation, and a variety of heterogeneity measures."

February 23, 2006 in Academic Insights | Permalink | Comments (0) | TrackBack

No Child Left Behind

Today's New York Times reports that 20 states have sought waivers from certain aspects of the federal No Child Left Behind Act.  The requests seek to measure individual student progress over time rather than focusing so heavily on groups of students. The proposals would allow significant reductions in numbers of schools deemed failing under current procedures. The US Education Department issued its most recent statement on accountability requirements on February 21.For more on No Child Left Behind, take a look at the National Council of State Legislatures website,   

February 23, 2006 in Hot Topics | Permalink | Comments (0) | TrackBack

February 22, 2006

Good resource on TIF

The Lincoln Institute of Land Policy has a good short article on Tax Increment Financing (TIF) by Richard Dye and David Merriam.  The conclude as follows:

"Tax increment financing is an alluring tool. TIF districts grow much faster than other areas in their host municipalities. TIF boosters or naive analysts might point to this as evidence of the success of tax increment financing, but they would be wrong. Observing high growth in an area targeted for development is unremarkable. The issues we have studied are (1) whether the targeting causes the growth or merely signals that growth is coming; and (2) whether the growth in the targeted area comes at the expense of other parts of the same municipality. We find evidence that the non-TIF areas of municipalities that use TIF grow no more rapidly, and perhaps more slowly, than similar municipalities that do not use TIF."

February 22, 2006 in Academic Insights | Permalink | Comments (0) | TrackBack

Interstate Effects of State Tax Incentives

With the Supreme Court argument in the Cuno case upcoming on March 1, it's very timely that a new paper by Kirk Stark and Daniel Wilson asks "What Do We Know About the Interstate Economic Effects of State Tax Incentives?"  It's available now through SSRN and will appear in Georgetown Journal of Law & Public Policy, Vol. 4, 2005.

The paper's abstract describes the the scope of its analysis as responding to Ohio litigation as well as that  "underway in other states. In reaction to these developments, legislation has been introduced in Congress to protect the right of states to provide tax incentives. To shed light on the issues involved in these ongoing controversies, we offer an introduction to existing research concerning the economic effects of state tax incentives. There is a voluminous literature concerning the efficacy of state business subsidies. Surprisingly, however, very few econometric studies have examined the multistate impact of tax credits for physical investment (for example, the investment tax credit) or research and development (R&D tax credits). This focus may be due in part to the fact that, up until now, the issue was primarily one for state and local policymakers. Yet the interstate economic effects have significance for the Commerce Clause analysis of state tax incentives. Our goal is to provide a general introduction to these issues and to shed some light on the complexities involved in evaluating interstate economic effects."

Definitely worth reading.

February 22, 2006 in Academic Insights | Permalink | Comments (0) | TrackBack

Mexican Migrants: Economic Transition and More

The Pew Hispanic Center has issued the third part of its extensive survey of Mexican migrants in Chicago, Los Angeles, New York, Fresno, Raleigh, Dallas and Atlanta.  This part focuses on the economic transition of members of this important community.  Other important studies document patterns of Hispanic and white youth into college and the New Latino South

February 22, 2006 in Think Tanks and Organizations | Permalink | Comments (0) | TrackBack

Oregon Supreme Court Upholds Measure 37

In 2004, Oregon voters passed "Measure 37", ORS 197.352 (set out in full in the continuation of this post), which requires government to either compensate landowners for reductions of real property fair market value due to certain "land use regulation[s]" or modify, remove, or not apply such regulations.  The measure was challenged on state and federal constitutional grounds in the Oregon courts.  Although the lower court had found the provisions unconstitutional, the Oregon Supreme Court in a unanimous en banc decision yesterday reversed and upheld Measure 37as permissible under both state and federal constitutions.  MacPherson v. Department of Administrative Services, (CC No. 05C10444; SC S52875).

The court summarized its conclusions as follows:  "[W]e conclude that (1) plaintiffs' claims are justiciable; (2) Measure 37 does not impede the legislative plenary power; (3) Measure 37 does not violate the equal privileges and immunities guarantee of Article I, section 20, of the Oregon Constitution; (4) Measure 37 does not violate the suspension of laws provision contained in Article I, section 22, of the Oregon Constitution; (5) Measure 37 does not violate separation of powers constraints; (6) Measure 37 does not waive impermissibly sovereign immunity; and (7) Measure 37 does not violate the Fourteenth Amendment to the United States Constitution."

This is an exceptionally important case which may trigger more reactions against land use regulation around the country.  Because it effectively applies an eminent domain "just compensation" requirement to land use plans and requirements, it resonate with public unease in the aftermath of the Kelo decision which upheld the use of eminent domain in some circumstances relating to economic development.

Measure 37, codified at ORS 197.352, provides:

"The following provisions are added to and made a part of ORS chapter 197:

"(1) If a public entity enacts or enforces a new land use regulation or enforces a land use regulation enacted prior to the effective date of this amendment that restricts the use of private real property or any interest therein and has the effect of reducing the fair market value of the property, or any interest therein, then the owner of the property shall be paid just compensation.

"(2) Just compensation shall be equal to the reduction in the fair market value of the affected property interest resulting from enactment or enforcement of the land use regulation as of the date the owner makes written demand for compensation under this act.

"(3) Subsection (1) of this act shall not apply to land use regulations:

"(A) Restricting or prohibiting activities commonly and historically recognized as public nuisances under common law. This subsection shall be construed narrowly in favor of a finding of compensation under this act;

"(B) Restricting or prohibiting activities for the protection of public health and safety, such as fire and building codes, health and sanitation regulations, solid or hazardous waste regulations, and pollution control regulations;

"(C) To the extent the land use regulation is required to comply with federal law;

"(D) Restricting or prohibiting the use of a property for the purpose of selling pornography or performing nude dancing. Nothing in this subsection, however, is intended to affect or alter rights provided by the Oregon or United States Constitutions; or

"(E) Enacted prior to the date of acquisition of the property by the owner or a family member of the owner who owned the subject property prior to acquisition or inheritance by the owner, whichever occurred first.

"(4) Just compensation under subsection (1) of this act shall be due the owner of the property if the land use regulation continues to be enforced against the property 180 days after the owner of the property makes written demand for compensation under this section to the public entity enacting or enforcing the land use regulation.

"(5) For claims arising from land use regulations enacted prior to the effective date of this act, written demand for compensation under subsection (4) shall be made within two years of the effective date of this act, or the date the public entity applies the land use regulation as an approval criteria to an application submitted by the owner of the property, whichever is later. For claims arising from land use regulations enacted after the effective date of this act, written demand for compensation under subsection (4) shall be made within two years of the enactment of the land use regulation, or the date the owner of the property submits a land use application in which the land use regulation is an approval criteria, whichever is later.

"(6) If a land use regulation continues to apply to the subject property more than 180 days after the present owner of the property has made written demand for compensation under this act, the present owner of the property, or any interest therein, shall have a cause of action for compensation under this act in the circuit court in which the real property is located, and the present owner of the real property shall be entitled to reasonable attorney fees, expenses, costs, and other disbursements reasonably incurred to collect the compensation.

"(7) A metropolitan service district, city, or county, or state agency may adopt or apply procedures for the processing of claims under this act, but in no event shall these procedures act as a prerequisite to the filing of a compensation claim under subsection (6) of this act, nor shall the failure of an owner of property to file an application for a land use permit with the local government serve as grounds for dismissal, abatement, or delay of a compensation claim under subsection (6) of this act.

"(8) Notwithstanding any other state statute or the availability of funds under subsection (10) of this act, in lieu of payment of just compensation under this act, the governing body responsible for enacting the land use regulation may modify, remove, or not to [sic] apply the land use regulation or land use regulations to allow the owner to use the property for a use permitted at the time the owner acquired the property.

"(9) A decision by a governing body under this act shall not be considered a land use decision as defined in ORS 197.015(10).

"(10) Claims made under this section shall be paid from funds, if any, specifically allocated by the legislature, city, county, or metropolitan service district for payment of claims under this act. Notwithstanding the availability of funds under this subsection, a metropolitan service district, city, county, or state agency shall have discretion to use available funds to pay claims or to modify, remove, or not apply a land use regulation or land use regulations pursuant to subsection (6) of this act. If a claim has not been paid within two years from the date on which it accrues, the owner shall be allowed to use the property as permitted at the time the owner acquired the property.

"(11) Definitions - for purposes of this section:

"(A) 'Family member' shall include the wife, husband, son, daughter, mother, father, brother, brother-in-law, sister, sister-in-law, son-in-law, daughter-in-law, mother-in-law, father-in-law, aunt, uncle, niece, nephew, stepparent, stepchild, grandparent, or grandchild of the owner of the property, an estate of any of the foregoing family members, or a legal entity owned by any one or combination of these family members or the owner of the property.

"(B) 'Land use regulation' shall include:

"(i) Any statute regulating the use of land or any interest therein;

"(ii) Administrative rules and goals of the Land Conservation and Development Commission;

"(iii) Local government comprehensive plans, zoning ordinances, land division ordinances, and transportation ordinances;

"(iv) Metropolitan service district regional framework plans, functional plans, planning goals and objectives; and

"(v) Statutes and administrative rules regulating farming and forest practices.

"(C) 'Owner' is the present owner of the property, or any interest therein.

"(D) 'Public entity' shall include the state, a metropolitan service district, a city, or a county.

"(12) The remedy created by this act is in addition to any other remedy under the Oregon or United States Constitutions, and is not intended to modify or replace any other remedy.

"(13) If any portion or portions of this act are declared invalid by a court of competent jurisdiction, the remaining portions of this act shall remain in full force and effect."

Measure 37 defines the term "land use regulation" as follows:

"(i) Any statute regulating the use of land or any interest therein;

"(ii) Administrative rules and goals of the Land Conservation and Development Commission;

"(iii) Local government comprehensive plans, zoning ordinances, land division ordinances, and transportation ordinances;

"(iv) Metropolitan service district regional framework plans, functional plans, planning goals and objections; and

"(v) Statutes and administrative rules regulating farming and forest practices."

February 22, 2006 in Case Developments, Hot Topics | Permalink | Comments (0) | TrackBack

February 20, 2006

Smart Growth/Smart Code

For those interested in how local governments can regulate land use in the current age, there are many resources regarding "Smart Growth."  A copy of the "Smart Code" is now available for free from "Placemarkers.com".  Other resources on smart growth include the federal EPA and Smart Growth America

February 20, 2006 in Hot Topics | Permalink | Comments (0) | TrackBack

Cities, Development, Terrorism

I've recently had a chance to catch up on some reading.  Edward Ziegler has an interesting piece entitled "American Cities and Sustainable Development in the Age of Global Terrorism:  Some Thoughts on Fortress America and the Potential for Defensive Dispersal II" in a recent symposium, 30 Wm & Mary Envtl. L. & Pol'y Rev. 95 (2005).  Ziegler reviews the history of "defensive dispersal" away from cities in times of war or threat, and discusses efforts to "harden" cities as a means of protecting against terrorist threats.  Ultimately, he argues that urban sprawl coupled with failure to maintain key infrastructure is itself a risk, and that significant costs of security preparations are adversely affecting cities.  He urges use of "new urbanist" development strategies (characterized by higher density, mixed use, and more integrated pedestrian-friendly development) to increase the density of older suburbs and outlying areas.

If you're interested in these issues, you might want to take a look at Glaeser & Shapiro's 2001 paper, Cities and Warfare:  The Impact of Terrorism on Urban Form, available throught the National Bureau of Economic Research

February 20, 2006 in Academic Insights | Permalink | Comments (0) | TrackBack