Obstacles to bargaining between local governments: The case of West Haven and Orange, Connecticut

Urban Lawyer

Volumn 37, Issue 4, 2005, Pages 853-892

  Myers III, Minor ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

BARGAINING; COMPARATIVE STUDY; URBAN POLITICS;

CONNECTICUT; NORTH AMERICA; UNITED STATES;

EID: 33644627537     PISSN: 00420905     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (339)

1. David Rusk, Cities Without Suburbs (1993);
2. Richard Briffault, The Local Government Boundary Problem in Metropolitan Areas, 48 Stan. L. Rev. 1115, 1117-19 (1996);
3. Sheryll D. Cashin, Localism, Self-Interest, and the Tyranny of the Favored Quarter. Addressing the Barriers to New Regionalism, 88 Geo. L.J. 1985, 2037-42 (2000);
4. Laurie Reynolds, Intergovernmental Cooperation, Metropolitan Equity, and the New Regionalism, 78 Wash. L. Rev. 93, 160 (2003) ("this Article joins the chorus in support of the New Regionalists' call for fairer allocation of resources and opportunities in metropolitan America");
5. David J. Barron, Reclaiming Home Rule, 116 Harv. L. Rev. 2255 (2003).
6. E.g., Clayton P. Gillette, Regionalization and Interlocal Bargains, 76 N.Y.U. L. Rev. 190 (2001).
7. Roger L. Parks & Ronald J. Oakerson, Comparative Metropolitan Organization: Service Production and Governance Structures in St. Louis (MO) and Allegheny County (PA), 23 Publius 19 (1993).
8. Parks and Oakerson found in those areas "well-ordered, understandable service production structures and extensive cooperation for police, fire protection, streets, and education." Id. at 29.
9. See John C. Bollens & Henry J. Schmandt, The Metropolis: Its People, Politics, and Economic Life 292-311 3d ed. 1975) (a more general summary of (older) research).
10. Marissa Yaremich, West Haven's Rail Station Plan Shares Costs, Melds Projects, New Haven Reg, Jan. 26, 2005.
11. Richard Weizel, Target Opponents Disheartened by Ruling, New Haven Reg, Aug. 9, 2003.
12. Robert L. Bish, The Public Economy of Metropolitan Areas 55 (1971) ("the costs and benefits do not accrue completely within the boundary of the political unit providing the public good").
13. See also, Briffault, supra note 1, at 115.
14. A third consequence of local boundaries, beyond the scope of this article, is redistributional - those in need of public redistribution (i.e., the poor) often do not reside in the same locality as those with the most resources to redistribute (i.e., the wealthy). See, e.g., Gerald E. Frug, City Services, 73 N.Y.U. L. REv. 23 (1998).
15. This concern, for many commentators, incites condemnation more than any other shortcoming related to economies of scale or cost spillovers. For instance, one commentator noted that "the distributive consequences of localism" motivated her critique of William Fischel's "efficiency-based normative defense of local government." Lee Anne Fennell, Homes Rule, 112 Yale L.J. 617, 619 (2002)
16. (reviewing William A. Fischel, The Homevoter Hypohesis: How Home Values Influence Local Government Taxation, School Finance, and Land Use Policies (2001)).
17. For example, many small neighbors of Los Angeles, California, could not procure their own water and thus were willingly annexed by Los Angeles, which had its own aqueduct. See Vincent Ostrom, Water and Politics (1953).
18. See, e.g., David Rusk, Cities Without Suburbs (1993). No doubt the consolidation movement is driven, for many commentators, by the desire to facilitate redistribution.
19. Charles M. Tiebout, A Pure Theory of Local Expenditures, 64 J. Pol. Econ. 416 (1956).
20. See also Polycentricity and Local Public Economies: Readings from the Workshop in Political Theory and Policy Analysis (Michael D. McGinnis ed., 1999) [hereinafter Polycentricity].
21. See Gillette, supra note 2, at 190.
22. Roger B. Parks & Ronald J. Oakerson, Metropolitan Organization and Governance: A Local Public Economy Approach, 25 Urb. Aff. Q. 18, 21 (1989).
23. Id.
24. Id.
25. Id. ("[s]ome small providers may choose to contract with other production units").
26. See infra Part III.C.
27. See Gary J. Miller, Cities by Contract: The Politics of Municipal Incorporation (1981).
28. Id. at 20-21.
29. Id. at 20.
30. Id.
31. Id. at 21.
32. Parks & Oakerson, supra note 3, at 27 (1993).
33. Id.
34. Id. at 38.
35. Robert L. Bish & Vincent Ostrom, Understanding Urban Government: Metropolitan Reform Reconsidered 99 (1973).
36. Bish, supra note 6, at 55-56.
37. Richard Briffault, Our Localism: Part II - Localism and Legal Theory, 90 Colum. L. Rev. 346, 432-33 (1990).
38. Bish, supra note 6, at 56.
39. Gillette, supra note 2, at 197.
40. Id. at 263-69.
41. Bish makes the theoretical argument on both fronts. "Economies of scale ... are not relevant criteria for determining the optimum size of political units to articulate demand ...." Bish, supra note 6, at 54.
42. For spillovers, he argues that "[t]here is no more probability of gaining efficiency in handling externality problems between groups of citizens in different political units by combining all functions in a single unit than there would be in attempting to internalize all externalities in the private sector by putting everyone affected into the same firm." Id. at 55.
43. Vincent Ostrom et al., The Organization of Government in Metropolitan Areas: A Theoretical Inquiry, 55 Am. Pol. Sci. Rev. 831 (1961),
44. reprinted in Polycentricity, supra note 10, at 31.
45. Gillette, supra note 2, at 192.
46. For a history of Orange, see History of Orange: Sesquicentennial 1822-1972 (1972) [hereinafter Sesquicentennial]
47. and Mary R. Woodruff, History of Orange (North Milford), Connecticut, 1639-1949 (1949) [hereinafter History of Orange].
48. For a history of West Haven, see Workers of the Writers Program of the Work Projects Administration in the of Connecticut, History of West Haven, Connecticut, 1648-1940 (1940) [hereinafter History of West Haven].
49. History of West Haven, supra note 34, at 6.
50. Sesquicentennial, supra note 34, at 8.
51. When incorporated, the town's name was the Ecclesiastical Society of North Milford. It changed its name to the Town of Orange in 1841.
52. History of West Haven, supra note 34, at 17.
53. Sam Bass Warner, Jr., Streetcar Suburbs: The Process of Growth in Boston, 1870-1900 (2d ed. 2004).
54. Id.
55. History of West Haven, supra note 34, at 21.
56. Sesquicentennial, supra note 34, at 24.
57. History of West Haven, supra note 34, at 21.
58. West Haven had "[a]n abundant supply of semi-skilled labor." History of West Haven, supra note 34, at 24.
59. Warner notes that the appeal of the street car suburbs was that they provided the middle-class with "a safe, sanitary environment, new houses in styles somewhat in keeping with their conception of family life, and temporary neighborhoods of people with similar outlook." Warner, supra note 39, at 157.
60. History of West Haven, supra note 34, at 22-24.
61. Id. at 24.
62. Sesquicentennial, supra note 34, at 20.
63. Id. at 31.
64. History of West Haven, supra note 34, at 22.
65. Id.
66. Id.
67. Id.
68. Id.
69. Sesquicentennial, supra note 34, at 31.
70. Id.
71. Id.
72. Id. at 40.
73. Id.
74. Sesquicentennial, supra note 34, at 40.
75. Id. at 42.
76. Id. at 42-45.
77. Id.
78. Connecticut Department of Economic and Community Development, Town Profiles - West Haven, Connecticut (2002), http://www.et.gov/ecd/LIB/ecd/ 20/14/westhaven00.pdf [hereinafter Town Profiles - West Haven].
79. Id.
80. Id.
81. Id. The average per capita income in Connecticut was $32,317 in 2001.
82. Id.
83. Connecticut Department of Economic and Community Development, Town Profiles - Orange, Connecticut (2002), http://www.et.gov/ecd/LIB/ecd/20/ 14/orange00.pdf [hereinafter Town Profile - Orange].
84. Id.
85. Only Woodbridge is higher, with a per capita income of $59,507. Connecticut Department of Economic and Community Development, Town Profiles - Woodbridge (2002), http://www.et.gov/ecd/LIB/ecd/20/14/ woodbridge00.pdf.
86. Town Profiles - Orange, supra note 67.
87. Id.
88. Warner, supra note 39, at 158-59.
89. Id.
90. This is of course how West Haven lured business during the late nineteenth and early twentieth centuries. See supra text accompanying note 34.
91. Each town's "mill rate" is its property tax rate. One mill is equal to $1.00 of tax for every $1,000 of assessed property value. Thus, a property with an assessed value of $500,000 in a town with a mill rate of 30 would pay $15,000 in taxes annually.
92. Town Profile - West Haven, supra note 63.
93. Town Profile - Orange, supra note 67.
94. Richard Weizel, State Wants New Station, But Where to Build It?, N.Y. Times, June 17, 2001, at 14CN.
95. Interview with Raymond Collins, Representative of the 117th District in the Connecticut House of Representatives, in West Haven, Conn. (Dec. 5, 2002).
96. See Mark Zaretsky, Bayer Urges New Train Station, New Haven Reg., Feb. 12, 2000, at B8.
97. Id.
98. Id.
99. Id.
100. Statement of Gary Toczylowski, Director of Health, Environment and Safety, Bayer Pharmaceuticals, from the minutes of the South Central Regional Council of Governments, Dec. 19, 2001 meeting, at 4.
101. Mark Zaretsky, 7,000 Petition for W. Haven Train Stop, New Haven Reg., Apr. 5, 2000.
102. Ann DeMatteo, Possible Sites for Train Depot Narrowed Down, New Haven Reg., Feb. 4, 1995, at A18.
103. Kimberly Shearin, RR Station Urged, Long After Old One Razed, New Haven Reg., Dec. 20, 1990.
104. Pamela McLoughlin, West Haven Train Stop Study Planned, New Haven Reg., Apr. 30, 1993, at A1. What is now the Bayer AG campus was formerly Miles Pharmaceuticals, Inc., a subsidiary of Bayer that took on the name of its parent company in 1995.
105. Interview with Raymond Collins, supra note 78.
106. Id.
107. Id.
108. DeMatteo, supra note 84, at A18;
109. Ann DeMatteo, West Haven Debates Rail Station Site, New Haven Reg., Feb. 9, 1995, at A1;
110. Allan Drury, West Haven Pushes for Metro-North Stop, New Haven Reg., Mar. 26, 1998;
111. Andrew J. Martin, Train Station Plan Meets Foes, New Haven Reg., Apr. 30, 1998.
112. Interview with Raymond Collins, supra note 78.
113. Id.
114. Id.
115. See also Richard Weizel, Firm Offers to Finance Station, New Haven Reg., Oct. 27, 2001, at A1.
116. Interview with Raymond Collins, supra note 78.
117. Id.
118. Id.
119. See Weizel, supra note 93.
120. Weizel, supra note 93.
121. Zaretsky, supra note 83.
122. Mark Zaretsky, W. Haven Starts Push for Train Station, New Haven Reg., July 28, 2000.
123. Interview with Raymond Collins, supra note 78.
124. Zaretsky, supra note 83.
125. Zaretsky, supra note 99.
126. Id. (quoting Michael Mercuriano).
127. Id.
128. Mark Zaretsky, West Haven, Orange Line Up Supporters for Train Station, New Haven Reg., Dec. 5, 2000.
129. Richard Weizel, Bayer Now Backs Orange Train Stop, New Haven Reg., Dec. 15, 2000.
130. Mark Zaretsky, Orange, West Haven Has a Bad Case of Train Station Envy, New Haven Reg., Dec. 10, 2000.
131. Id.
132. Weizel, supra note 106.
133. Richard Weizel, Collins Submits Bill to Legislature to Fund Train Station in Orange, New Haven Reg., Jan. 25, 2001.
134. Richard Weizel, Firm Offers to Finance Station, New Haven Reg., Oct. 27, 2001;
135. Mark Zaretsky, West Haven Comes Up With New Financing Idea for Railroad Station, New Haven Reg., Feb. 26, 2001.
136. Interview with Harry Harris, Bureau Chief for Public Transportation, Connecticut Department of Transportation, in New Haven, Conn. (Dec. 12, 2002).
137. Mark Zaretsky, West Haven Jumps the Gun with Billboard, New Haven Reg., March 10, 2001.
138. Id.
139. Id.
140. Frederic R. Harris, Inc., Site Study: New Train Station, Orange or West Haven, Connecticut 20 (Sept. 2001) (on file with author) [hereinafter Harris Report].
141. Id.
142. Id.
143. Id.
144. Id. at 27.
145. Harris Report, supra note 116.
146. Id. at 28.
147. Id.
148. Id. at 15.
149. Id. at 16.
150. The Orange site has at least one human problem, though: 82-year-old Sylvester Salemme, a World War II veteran who watched his mother's home demolished to build I-95 and now lives in one of the homes that would be condemned to build the station, insists he will not leave his home under any circumstances. "They're going to have to come in here and shoot me to get me out of here," Salemme has declared. Richard Weizel, Move Again? Not This Time, N.Y. Times, June 17, 2001.
151. Richard Weizel, Orange Looks Forward to Rail Station, New Haven Reg., Sept. 25, 2001.
152. Manuela Da Costa-Fernandes, Group Backs Rail Station in West Haven, New Haven Reg., Dec. 6, 2001.
153. Id.
154. Id.
155. Mark Zaretsky, Panel Favors Orange Rail Site, New Haven Reg., Dec. 13, 2001.
156. Mark Zaretsky, Regional Panel Delays Decision on RR Station, New Haven Reg., Oct. 11, 2001.
157. Zaretsky, supra note 130.
158. Id.
159. Mark Zaretsky, Crowd Forces Shift in Rail Meeting Site, New Haven Reg., Dec. 18, 2001.
160. Interview with Harry Harris, supra note 112.
161. Richard Weizel, Goldblatt Fights for Train Station, West Haven Stop More Costly, Inefficient, New Haven Reg., Jan. 2, 2002.
162. Mark Zaretsky, West Haven Fixes on Gaining Rail Station, New Haven Reg., Nov. 11, 2003.
163. Id.
164. Interview with Henry Szadkowski, Assistant Corporation Counsel, City of West Haven, in West Haven, Conn. (Dec. 5, 2002).
165. Mark Zaretsky, Panel Says Orange Must Pay Bill, New Haven Reg., Dec. 20, 2002.
166. Id.
167. Agreement between Orange and West Haven (1985) (on file with author).
168. Id.
169. Id.
170. Id.
171. Id.
172. Id.
173. Arbitration Brief for the City of West Haven, Nov. 12, 2002, at 1 (on file with author) [hereinafter West Haven Brief].
174. Id.
175. Id.
176. Mark Zaretsky, West Haven Sewage Leak, 7th of '89, Riles Homeowners, New Haven Reg., June 13, 1989.
177. Id.
178. Id.
179. Zaretsky, supra note 151.
180. Interview with Henry Szadkowski, supra note 139.
181. Id.
182. Id.
183. Id.
184. West Haven Brief, supra note 148.
185. Id.
186. Id.
187. Id.
188. Id. at 15.
189. Arbitration Brief for the Orange Water Pollution Control Authority and the Town of Orange (on file with author).
190. Interview with Henry Szadkowski, supra note 139.
191. Id.
192. Zaretsky, supra note 140.
193. Id.
194. Interview with Henry Szadkowski, supra note 139.
195. Id.
196. Interview with Paul J. Grimmer, Executive Director, Orange Economic Development Corporation, Orange, Conn., (December 9, 2002).
197. Id.
198. Mark Zaretsky, West Haven May Aim at Target, Too, New Haven Reg., Nov. 13, 2001.
199. Mark Zaretsky, Will Sawmill Ever Be Developed? West Haven Mayor Thinks Time is Right, New Haven Reg., Nov. 3, 2002, at A1.
200. Paul Grimmer, director of the Orange Economic Development Corporation, says that the Target developer is not interested in West Haven. Interview with Paul J. Grimmer, supra note 171.
201. Zaretsky, supra note 174.
202. Id.
203. Id.
204. Id.
205. Richard Weizel, Decision on Target Store Delayed, New Haven Reg., Nov. 21, 2001.
206. Id.
207. Conn. Gen. Stat. Ann. § 8-3b (West 2002). The report must also consider the environmental impact of the zoning change on the Long Island Sound; the SCRCOG report found none.
208. Town of Orange, Summary of Zone Map Change Report, dated Mar. 4, 2002 (on file with author).
209. Weizel, supra note 180.
210. Id.
211. Id.
212. Id.
213. Interview with Paul Grimmer, supra note 171.
214. Richard Weizel, ZBA Rejects Target Plans for Post Road, New Haven Reg., Dec. 4, 2001.
215. Richard Weizel, Target Revises Orange Plans, New Haven Reg., Dec. 10, 2001.
216. Id.
217. See id. ("The new application will be submitted directly to the Town Plan and Zoning Commission").
218. Richard Weizel, Orange OKs Target Plan; Zone Change Paves Way, New Haven Reg., May 21, 2002.
219. Id.
220. Id.
221. Richard Weizel, Target Hit with More Hurdles, New Haven Reg., May 29, 2002.
222. Id.
223. Richard Weizel, Orange Zoners Clear Path for Target Store, New Haven Reg., June 5, 2002.
224. Richard Weizel, Opponents Take Aim at Target, New Haven Reg., June 11, 2002.
225. Richard Weizel, Orange Neighbors File 2nd Suit Over Proposed Target Store, New Haven Reg., June 19, 2002.
226. Weizel, supra note 199.
227. Richard Weizel, Orange Wins Suit Over Target Store, New Haven Reg., Aug. 8, 2003.
228. Luther Turnelle, Developer Closes on Target Site, New Haven Reg., Nov. 6, 2003.
229. Brian McCready & Richard Weizel, Target, Dick's May Anchor Expanded Westfield Mall, New Haven Reg., Aug. 4, 2004.
230. See, e.g., Edgar K. Browning & Mark A. Zupan, Microeconomic Theory And Applications 171 (5th ed. 1996).
231. See also Scott E. Masten, Introduction, 3, 4 in Case Studies in Contracting and Organization (Scott E. Masten ed., 1996) (noting that "all potential gains from trade would be realized but for the costs of reaching and enforcing agreements").
232. Richard A. Posner, Antitrust Law 15 (2d ed. 2001). Rent dissipation is also a powerful tool in patent law.
233. See, e.g., Mark F. Grady & Jay I. Alexander, Patent Law and Rent Dissipation, 78 Va. L. Rev. 305, 316 (1992).
234. Local governments in Connecticut, like those in most states, have an exclusive right to tax the property within their boundaries.
235. Presumably the precise opposite hypothesis holds true for locally undesirable land uses (LULUs).
236. Brian McCready, It's Official: Target Store Will Open in Milford, New Haven Reg., Feb. 20, 2004.
237. Interview with Fred A. Messore, Executive Director, West Haven Economic Development Corporation, West Haven, Conn. (Dec. 13, 2002).
238. This is not to say that all West Haven resistance was purely opportunistic. To be sure, the Target store will impose some costs on the city. See infra Part IV.A.
239. One potential payoff, though, might be keeping the noise or traffic levels low. An alternative, though less likely, explanation for why West Haven opposed Target and not Best Buy is because the nuisance Target imposes on West Haven is more acute than that Best Buy imposes. Perhaps both motivations - reducing noise and hoping Target moved to West Haven - were behind the city's opposition.
240. Ann DeMatteo, Possible Sites for Train Depot Narrowed Down, New Haven Reg., Feb. 4, 1995, at A18.
241. Interview with Harry Harris, supra note 112.
242. Mark Zaretsky, Survey Reveals Strong Interest in Rail Station, New Haven Reg., June 15, 2001, at B1.
243. Centerprise Advisors, Economic Impacts Associated with the Development of the Proposed Orange/West Haven MetroNorth Rail Station (Nov. 7, 2001) (on file with author).
244. City of West Haven, Supplemental Information: New Train Station, Orange or West Haven 5 (2001) (on file with author).
245. The report concludes: [T]he "true" costs of the Orange site have been underestimated by millions of dollars. Coversely, there are alternatives to the West Haven site that could make it easier to construct (no high platform over the tracks, etc.) and eliminate the need to replace the railroad bridge (reducing the West Haven costs by #9.5 million dollars.... We believe these factors equalize the project costs and remove it as a differentiating factor. Id.
246. Mark Zaretsky, Officials Tour, Compare Proposed Rail Station Sites, New Haven Reg., Nov. 30, 2001, at A1.
247. Id.
248. Id.
249. Gillette, supra note 2, at 214-15.
250. This assumes that the towns' bargaining stances (particularly West Haven's) are affected by actual information, as opposed to sentiment. See infra Part V.C.
251. DOT Public Transportation chief Harry Harris concurs. Interview with Harry Harris, supra note 112.
252. Approximately 22% of the residents of each town commute to other communities along the Metro-North line. Town Profile - Orange, supra note 67;
253. Town Profile - West Haven, supra note 63.
254. Interview with Raymond Collins, supra note 78.
255. Mark Zaretsky, W. Haven Starts Push for Train Station, New Haven Reg., July 28, 2000.
256. Interview with Raymond Collins, supra note 78.
257. Mark Zaretsky, New Railroad Station's Location Dominates Candidates' Debate, New Haven Reg., Oct. 25, 2000.
258. For instance, farmers may organize a cooperative in order to avoid monopsonistic purchasers. For an extended treatment of the organizational adaptation, see Henry Hansmann, The Ownership of Enterprise (1996) (Chapter 7 in particular focuses on agricultural cooperatives).
259. Oliver E. Williamson, The Economic Institutions of Capitalism 17 (1985).
260. Id. at 29.
261. Gillette argues that local governments are limited in their ability to respond to transaction costs through organizational adaptation: Municipal corporations have less flexibilty to adjust organizational arrangements in order to reduce the costs of allocating contractual benefits. While boundaries may expand to match an ideal service area, legal constraints on the abandonment of sovereignty and practical restrictions obligate each party to retain and organizational structure that only can be adjusted in highly regulated ways. Gillette, supra note 2, at 216. transaction costs through organizational adaptation: Municipal corporations have less flexibilty to adjust organizational arrangements in order to reduce the costs of allocating contractual benefits. While boundaries may expand to match an ideal service area, legal constraints on the abandonment of sovereignty and practical restrictions obligate each party to retain and organizational structure that only can be adjusted in highly regulated ways. Gillette, supra note 2, at 216.
262. The patent law literature on rent dissipation is chiefly considered the property right (i.e., the patent) in order to minimize dissipated rents. See Grady & Alexander, supra note 206, at 316.
263. Ostrom et al., supra note 32.
264. See Gillette, supra note 2, at 248 ("Repeat play among the parties (and thus the threat of retaliation for defection) can be assured as long as exit costs are sufficiently substantial, a condition that is satisfied where the parties are geographically bound."); the threat of retaliation for defection) can be assured as long as exit costs are sufficiently substantial, a condition that is satisfied where the parties are geographically bound.");
265. see generally Robert Axelrod, The Evolution of Cooperation (1984).
266. Vincent Ostrom argues that it falls to "larger units of government [to provide] a structure of institutional arrangements for the resolution of conflicts that cannot otherwise be resolved by mutual adjustment and mutual agreement." Vincent Ostrom, Polycentricity (Part I), in Polycentricity, supra note 10, at 72.
267. An alternative mechanism for accounting for interlocal spillovers is transfer payments through a superior level of government. There is reason to think that the system of interlocal property rights would be more effective in internalizing the spillovers from interlocal decisions. The local government is a sub-unit of the state (the firm). Ordering within the firm (that is, among the local governments) can either be centrally managed by the state or organized more market-like with each sub-unit. Giving the local governments the ability to resolve the spillovers themselves offers two benefits that reduce the costs remedying them. It (1) allows them to take advantage of their superior information about the incidence and effect of spillovers and (2) allows them to bargain over the spillovers.
268. Robert C. Ellickson, Public Property Rights: Vicarious Intergovernmental Rights and Liabilities as a Technique for Correcting Intergovernmental Spillovers, in Essays on the Law and Economics of Local Governments 51, 100 (Daniel L. Rubinfeld ed., 1979).
269. See Clayton Gillette, Expropriation and Institutional Design in State and Local Government Law, 80 Va. L. Rev. 625 (1994).
270. E.g., Associated Home Builders of Greater Eastbay v. City of Livermore, 557 P.2d 473 (Cal. 1976);
271. S. Burlington County NAACP v. Township of Mount Laurel, 336 A.2d 713 (N.J. 1975);
272. Berenson v. Town of New Castle, 341 N.E.2d 236 (N.Y. 1975).
273. This could be recast as a debate over what constitutes a "spillover" and what is "redistribution."
274. Ellickson, supra note 238, at 89.
275. Thus, there is no need to consider the institutional question - whether courts or legislatures will produce more efficient interlocal rules. I would tend to agree with Ellickson that legislatures are "clearly the best institutions to undertake the job." Id. at 93.
276. Id at 70.
277. Guido Calabresi & Jon T. Hirschoff, Toward a Test for Strict Liability in Torts, 81 Yale L. J. 1055, 1060 (1972).
278. Ellickson, supra note 238, at 71.
279. The placement of the initial entitlement, for bargaining between local governments, can be crucial. Gillette argues that the assignment of the initial entitlement matters a great deal when contracting costs are high. Gillette, supra note 2, at 195.
280. Ellickson, supra note 238, at 70-71.
281. Id. at 72.
282. Id. at 94.
283. The trickier issue is whether West Haven could recover these costs if Target did not require the zoning changes or any city permits. Then the costs would be more easily anticipated by West Haven, but there would still be a cross-boundary spillover.
284. Eric A. Posner, Law and the Emotions, 89 Geo. L. J. 1977, 2006-10 (2001) ("Money damages are the superior remedy when the nuisance creates anger and hard feelings.... Injunctions are more suitable when emotion is unlikely to interfere with bargaining.").
285. In his article, Ellickson agrees that damages would be the appropriate remedy for interlocal spillovers. Ellickson, supra note 238, at 72. remedy for interlocal spillovers. (Daniel L. Rubinfeld ed.)
286. Bish & Ostrom, supra note 25, at 67-68.
287. Ellickson, supra note 238, at 95.
288. Id.
289. Id.
290. I suggest that localities use voluntary tax sharing agreements. Some of the most notable tax sharing arrangements currently in use, however, are mandatory schemes imposed by state legislatures. For instance, in Minneapolis-St. Paul, Minnesota, each local government in the metropolitan region must contribute 40% of the increase of its tax rolls
291. The collected funds were then distributed to municipalities using a formula of the number of residents and per capita market value of property in the municipality; the lower the per capital value, the higher the distribution from the regional tax pool. In the Meadowlands area of New Jersey, local governments must pay forty percent of the increase of their tax revenues from 1970 to the pool. Localities receive payments based on the number of schoolchildren they have and the proportion of the town's land that is designated as wetlands. New Jersey Meadowlands Commission - Tax Sharing, http://www.hmdc.state.nj.us/ commission/Tax_Sharing.cfm.
292. Joseph Straw, Is It Time Suburbs Did More to ... SHARE THE WEALTH?, New Haven Reg., Feb. 17, 2002, at A1.
293. Id.
294. Id.
295. Id.
296. Interview with Mitchell Goldblatt, First Selectman, Town of Orange, Orange, Conn. (Dec. 17, 2002).
297. Straw, supra note 256.
298. Interview with Mitchell Goldblatt, supra note 260.
299. Id.
300. The statute says that Connecticut towns may strike interlocal bargains in these areas: Fire prevention and fire fighting; police protection and police service; supply of water, gas or electricity; garbage collection and disposal; sewer lines and sewage treatment and disposal; refuse collection and disposal, and establishment or use of public dumps; storm drainage; establishment or use of airports or landing fields; gymnasiums, playgrounds, swimming pools, community centers, recreation centers or other recreational areas or facilities; establishment and preservation of open spaces; control of air and water pollution; planning services; engineering services; lighting; ambulance service; fire and police radio communication systems; hospital service; public health services; mental health services; establishment or care of cemeteries; library or bookmobile services; suppression or control of plant and animal pests or diseases; flood control; water conservation; public shade tree protection services; traffic services; transportation services; redevelopment services, and publicizing the advantages of the region.
301. Conn. Gen. Stat. Ann. § 7-339b(a)(1) (West 2002).
302. The doctrine of ultra vires applies to interlocal agreements. The statute expressly dissallows a local governments from providing any services or activity "by means of an interlocal agreement, if it does not have constitutional or statutory power or authorization to... provide the same or substantially similar services... on its own account." Id. § 7-339b(b).
303. Id. § 7-148bb (allowing chief elected officials to agree to "share revenues received for payment of real and personal property taxes" so long as the agreement provides for amendment, termination, and withdrawal and is approved by all involved legislative bodies).
304. See also Conn. Gen. Stat. Ann. § 8-196 (West 2002) (allowing Connecticut municipalities "by vote of their respective legislative bodies" to share "property tax and rental receipts" for joint development projects).
305. Telephone Interview with Robert W. Santy, President, Regional Growth Partnership (Jan. 6, 2003).
306. Straw, supra note 256.
307. Id.
308. Id.
309. Id.
310. Telephone Interview with Robert W. Santy, supra note 266.
311. Id.
312. There may be a reciprocity story here. As each town makes small investments in the project, other towns will make like investments, and the project will grow step-by-step. See, e.g., Dan M. Kahan, The Logic of Reciprocity: Trust, Collective Action, and Law, Yale Law School, Public Law Research Paper No. 31;
313. Yale Law & Economics Research Paper No. 281, http://ssrn.com/ abstract=361400.
314. Antieau on Local Government Law § 14.04(2) (2d ed. 2005)("Contracts between local governments stand on the same footing as contracts of natural persons and are governed by the same considerations in determining their validity").
315. Plant Food Co. v. City of Charlotte, 199 S.E. 712 (N.C. 1938). In that case, the court held that: Amongst the powers ... which cannot be suspended or controlled by contract, are usually classed the legislative powers of the governing body, - the power to make ordinances and decide upon public questions of a purely governmental character (and under this head must be classed most of the strictly governmental discretionary powers, since the body acts as a whole and usually by ordinance or resolution); the power to lay out and maintain streets; to build bridges and viaducts over which they lead, preserve civil order, to regulated rates, (where power to do so is given in the charter); to levy taxes, make assessments, and the like.
316. Id. at 713.
317. T.V. Transmission, Inc. v. City of Lincoln, 374 N.W.2d 49, 55 (Neb. 1985).
318. Daly v. Stokell, 63 So. 2d 644, 645 (Fla. 1953).
319. Omaha Gas Co. v. City of Omaha, 249 F. 350, 354 (D. Neb. 1914).
320. Mealey v. City of Hagerstown, 48 A. 746, 749 (Md. 1901).
321. City of Colorado Springs v. Colorado City, 94 P. 316, 319 (Colo. 1908).
322. City of Owensboro v. Cumberland Tel. & Tel. Co., 230 U.S. 58, 66 (1913).
323. City of Detroit v. Detroit Citizens St. Ry. Co., 184 U.S. 368, 382 (1902).
324. Richard Weizel, Goldblatt Fights for Train Station, West Haven Stop More Costly, Inefficient, New Haven Reg., Jan. 2, 2002, at B1.
325. Interview with Harry Harris, supra note 112.
326. Zaretsky, supra note 173.
327. Zaretsky, supra note 107.
328. Interview with Fred Messore, supra note 210.
329. Id.
330. Id.
331. Id.
332. Zaretsky, supra note 228.
333. Interview with Fred Messore, supra note 210.
334. Such political pressure can also obstruct a political leader's ability to make credible commitments. As James Clingermayer and Richard Feiock have argued, "[e]lected officials who are wary of displeasing contending interest group coalitions or fickle alliances of constituents may not be able to make credible commitments to contractors. New leaders who come into office during the fife of a contract or service arrangement may" not be satisfied with the provisions of the agreement and "may wish to renegotiate or reinterpret its terms." James C. Clingermayer & Richard C. Feiock, Institutional Constraints and Policy Choice: An Exploration of Local Governance 63 (2001).
335. Interview with Fred Messore, supra note 210.
336. A great irony is that there is little evidence that the train station will produce any appreciable benefits in West Haven.
337. Interview with Raymond Collins, supra note 78.
338. Interview with Mitchell Goldblatt, supra note 260.
339. See Ward Farnsworth, The Economics of Enmity, 69 U. Chi. L. Rev. 211 (2002).