• Urban Law Bulletin

The Urban Law Bulletin: August 6, 2018

Updated: Aug 4, 2020

The Urban Law Bulletin is a bi-weekly e-newsletter highlighting significant news and legal developments in the field of urban law.


City-State Relations and Preemption #preemption

A Legal Victory for Cities Working to Advance Equity: Urban Law Center’s Faculty Director, Nestor Davidson, comments on the 11th circuit’s “welcome decision reversing the dismissal of Fourteenth Amendment Equal Protection claims arising from the State of Alabama’s preemption of Birmingham’s minimum wage ordinance.”

PA Supreme Court Upholds Soda Tax: The Pennsylvania Supreme Court ruled for the city of Philadelphia after its tax on soda was challenged by the beverage industry.

In a 4-2 opinion, the court found that the city had not violated state law by taxing soda producers. The plaintiff's argument centered on a Depression-era law known as the Sterling Act, which gives cities the power to tax only those items not already taxed by Pennsylvania. Their lawyers claimed that since soda is already taxed under Pennsylvania sales tax, the city was in violation of the Act.

The court disagreed, differentiating between sales tax paid by consumers and distribution tax paid by manufacturers. Striking a somewhat bewildered tone, Chief Justice Thomas G. Saylor wrote "for whatever reason...the General Assembly has left extant the 'enormously broad and sweeping power of taxation' granted to the city by the Sterling Act."

In his dissent, Justice David Wecht said the distinction between tax types was a legal fiction. "A rose by any other name smells just as sweet, whether styled a retail tax or a distribution tax," he wrote, emphasizing that the Sterling Act was passed to prevent goods from being taxed twice.

The city has utilized the 1.5 cent-per-ounce tax to fund improvements to Pre-K programs, schools, parks, and libraries. The projected revenue for this year is $78 million, but that figure is expected to drop in the future as soda consumption declines. The tax is a signature achievement of Mayor Jim Kenney, who said in a press conference that it "will fuel the aspirations and dreams of those who have waited too long for investments in their communities." The decision ends nearly two years of litigation, which began immediately after Philadelphia became the first major city to pass a soda tax in 2016.

The program remains staunchly opposed by a coalition behind Big Soda. Small business owners, Teamsters, and consumer advocacy groups have organized against the tax and seek to make this fall's mayoral election a referendum on what they see as an unfair burden. The group is currently lobbying in the state legislature to pass a bill that would eliminate the tax through preemption.


Public Health #health

How to Grow a Fresh Garden on Your Rooftop (or Not): Tatiana Pawlowski provides recommendations on how cities (with New York City as a prime example) can improve their policies for helping urban agriculture flourish in food deserts. Read more on her recommendations for how cities can improve their zoning laws and develop comprehensive plans to establish better urban agriculture programs.


City Administration and Urban Governance #administration

Are cities invading your privacy for quick cash?: With data becoming more and more valuable in today’s data driven world, some cities have decided to join in on the easy moneymaker. Except unlike Facebook and other social media platforms where you can simply log off, one city has gone as far as to threaten to raid your home and sell your possessions if you don’t comply with providing private and detailed information about yourself.


Housing and Development #housing

The New “Opportunity” Zones Program: From the Tax Cuts and Jobs Act of 2017, springs a little-known program that draws commonalities between a major chain hotel and an affordable housing complex. The “opportunity zones” program allows those who invest in areas designated as 'economically-distressed’ the benefit of deferring taxes on capital gains income until 2026, as long as 90% of the investment stays within these communities. However, the Treasury Department has yet to provide clear-cut rules for the program.


Environment and Sustainability #sustainability

Texas AG Warns 11 Cities Not to Ban Plastic Bags: A recent Texas Supreme Court ruling is examined in this article that forbids municipalities from passing on the responsibility to incur the costs of waste.


We thank the Urban Law Center's Urban Law Student Fellows and Undergraduate Interns for assisting in preparation of The Bulletin, which provides news in all major areas of urban law, and categorizes the stories as follows:

If you have an article, legal decision, or opinion that you would like to share in an upcoming Bulletin, please e-mail it to theurbanlawbulletin@gmail.com.

Subscribe to The Urban Law Bulletin here.

The Urban Law Center at Fordham University School of Law

Nestor M. Davidson

Faculty Director, Urban Law Center

Geeta Tewari

Associate Director, Urban Law Center

Urban Law Student Fellow Contributors

Daniel Katter

Daniel Lavian

Victoria Lee

Michel Pickett

Steven Stern

Shirley Ureña

Urban Undergraduate Student Intern Contributors

Natalie Rodriguez

Matene Toure