33. One way for cities to legislative is for them to have HR authority and not be
preempted. That really focuses on relation between city and state. Other frame for
analysis is to focus on when city is protected from feds by 10th Amendment. Usery,
Garcia, Printz
36. Rationate: Trad govt functions doesn’t work. States protect themselves in congress.
39. Court says city not spending funds in violation of fed law so OK. Residents sought
mobilize fed crim law to bring a taxpayer action to stop city, court said no violation
largely because no state action run through NGO
40. Preempted
42. S said that fed can’t condition funding participation in one program (Medicaid
expansion) by threat to withdraw funding for another (regular Medicaid). Sebelius says:
threat to cut off all Medicaid funds if state doesn’t accept expansion is economic
dragooning violates 10th. Suit against EO successful.
44. Looking both at tools by which local governments fragment. And looking at tools by
which cities exclude
45. Unless there is discrimination, legal takeway is broad deference to state to set rules.
And we say that rules are set in general so as to make incorporation easy and annexation
hard. Incorporation—can limit vote to just affected territory, makes it easy. Remember
Sacramento v. LAFCO case. We talked about the Utah St. Lake City school case; 10th cir
said—up to state to develop rules, not unconstitutional for state to permit breakaway
district by voters of that district. But general rule requires concurrent majority, so hard.
46. Mechanisms of exclusion or preference of local residents. So we have these rules that
permit fragmentation, then what do cities do with it? What are consquences?
47. Boston OK under MP exception to dormant. Camden not OK under PI clause,
discriminates against out of state residents
48. Also remember Leydon—park access for nonresidents. 1st amendment free speech;
restrictions violate as applied not reasonable.
50. We say ML as the exception that proves norm, NJ SC ruling that zoning for housing
is actually an issue that is not local in character, so cities can’t do it on their own terms,
requires fair share, lots of litigation and subsequent legislation. Creative use of law by
court.
51. No EPC violation for discriminatin on basis of wealth.
52. But not OK under state constitution, produces disparities in educational quality.;
focuses on general diffusion of knowledge, different standard than SA which focused on
lack of suspect class. District power equalizing up to 1.5%
56. Looked at use of initiative power, which we think of as direct democracy, being
sometimes antidemocratic in that it can harm minority groups. Here by preventing zone
change for multifamily housing that would benefit low income people. Court says no
delegation because people own the decision and so can’t delegate what it already has.
57. Here, the attack was on discrimination grounds and court said, for EPC purposes, we
look at official actions, not those of voters. Because no evidence of state complicity in
discrimination, no luck here challenging initiative.
60. We talked about some standards in CA for taxes and fees. Cities can’t impose
additional taxes on property value. Can impose “special taxes” like on commercial leases
to fund childcare or gross business receipts to fund homeless in SF; have to pass by 2/3
vote of city. Talked about fees, which have to match the benefit conferred or harm
imposed and can’t be greater than that cost. Like user fee for waste service, library use,
parking.
61. Specifically with respect to fees imposed as a discretionary matter in the development
process, a subcategory of so called exactions, not only does that fee have to meet any
relevant state standards, it has to pass constitutional muster under regulatory takings test.
62. Court said, with respect to impact fee imposed on wetland development, yes N/D
applies, remand to determine if legal.
63. ED focused on Kelo, see that city has power of ED to promote development even if
the parcels at issue are not blighted.
66. NIMBY: Remember these zoning cases are about whether to apply SS or RB. If RB,
challengers typically (but see Cleburne not always) lose. To show SS, have to have
suspect class or infringement on fundamental right. Here, court says neither. Cleburne
fails rational basis because group home permit not related to articulated NIMBY
interests, talked about why the justifications of low density, parking, safety were not
exclusive to group home so were deemed arbitrary and suggestive of animus toward the
group.
69. Court this does not violate HR, because bond market contagion not local; and no
1p1v violation b/c state doesn’t have to provide for elected officials, so state can appoint
them directly.
70. Bankruptcy freezes obligations, city doesn’t have to pay retiree health care during
pendency under Bankruptcy act. And as it negotiations plan, retirees have little power.
71. If theory is local mismanagement, then maybe receivership is better; but we talked
about lack of local accountability. Bankruptcy has more local accountability but to most
influential long term interests and doesn’t address mismanagement directly