International Municipal Lawyers Association - Local Government Blog
And the Rockets’ Red Glare, the Bombs bursting in air,… – Francis Scott Key (1814)
Leave a Comment
Special July 4, 2009 Edition
Posted By: Dwight Merriam, Partner, Robinson & Cole, LLP
Happy Independence Day. By the time this is posted, I hope to be celebrating our country’s birthday at Block Island aboard our J/105 sailboat, ORIANA.
Fireworks are a serious business. Look at this sign, for example:
Courtesy Missoula County
Sweetwater County, Wyoming has a useful form for the seasonal sale of fireworks.
York County, South Carolina has a list of requirements for temporary fireworks stands.
Irwindale, California has some detailed regulations. The provision I like the best is this one at Section 8.16.090: “…nor shall any person smoke within such stand or other places of sale or within twenty-five feet thereof.” You would think this kind of thing doesn’t need to be said.
Oklahoma County, Oklahoma charges a fee based on the length of the fireworks stands.
Litigation over fireworks usually seems to start with a fire and an explosion, as in the nonconforming use case of Midwest Fireworks v. Deerfield where the fireworks company proposed to rebuild at four times the size of the buildings destroyed. What happens when the fireworks stand is closed down most of the year and wants to reopen after a new, restrictive law goes into effect? The Municipal Technical Advisory Service has an 11-page, single-spaced opinion letter on the subject, at least as to Tennessee, though much of the discussion cites cases across the country and is useful elsewhere.
Happy Fourth of July!
Sorting Out Sonia Sotomayor
Leave a Comment
Posted By: Dwight Merriam, Partner, Robinson & Cole, LLP
According to the Washington Post this morning, 62% of Americans think Sonia Sotomayor should be confirmed for the U.S Supreme Court because she is “about right” ideologically. The question is, how good will she be for municipal attorneys?
Pablo Martinez Monsivais/Associated Press
I was privileged to attend Yale Law School when she did. I’m almost eight years older and she graduated a class behind me, but I had been off in Vietnam and elsewhere with the Navy for 7 years. Yale Law School is a small place with only 170 or so in class. Regrettably, however, I didn’t get to know her well. When she was nominated, I began to read everything I could about her and to consider the decisions she wrote or joined in to try to get a bead on her.
The short answer is that she can’t be pigeon-holed.
Judge Sotomayor has participated in 3,600 (not a typo) decisions, I assume most of which are routine motions and the like. In the 10 years on the Second Circuit, she has authored over 150 decisions.
The case most talked about among property rights and government types alike is Didden v. Port Chester in which she voted with the majority 5-4 in 2006, after Kelo, in a short unsigned opinion to uphold Port Chester, New York’s taking of private property to enable a 27-acre urban renewal project.
The pro-property rights advocates were quick to look for a wooden stake to drive through her heart because of this decision. “This is the worst federal court takings decision since Kelo,” said Ilya Somin, who teaches property law at George Mason University and was quoted in a New York Times article. “It’s very extreme, and it is significant as a window into Judge Sotomayor’s attitudes toward private property.”
On the other side of the ledger is Brody v. Village of Port Chester. There, she wrote an opinion a year earlier finding that publication in the newspaper of a proposed eminent domain taking failed to meet the requirements of due process.
In Riverkeeper Inc. v. USEPA, she authored an opinion in 2009 that held costs to industry need not be considered in determining how to protect fish from power plant discharges. The decision was described as “anti-business.”
The U.S. Supreme Court granted certiorari and reversed in April holding that cost-benefit analysis is not categorically forbidden by the Clean Water Act. Entergy Corp. v. Riverkeeper Inc.
On the other hand, or was that the same hand? – I’m running out of hands here – in Natural Resources Defense Council v. Abraham (2003), her panel ended up on the side of a coalition of states and environmental groups that had sued the federal government for weakening the energy conservation standards for appliances.
In New York v. National Service Industries (2006), Judge Sotomayor wrote a decision for the court in a Superfund case in which the State of New York sued a company to recover the state’s costs of cleaning up a hazardous waste site. The court held that the company was not liable for what a remotely-connected firm had done.
Not a property rights, environmental or land use case, but certainly one of municipal law that is getting much press is Ricci v. DeStefano. The case is about white firefighters in New Haven who were not promoted when no black firefighters qualified for advancement. Her three-judge panel of the Second Circuit in an unsigned opinion rejected the race discrimination claim of the white firefighters, including a Hispanic. The court in a per curium opinion declined to rehear the case. The Supreme Court took the case, arguments were held in April, and the decision is pending was released this morning. [UPDATE 06/29/2009: From the New York Times -- Justices Rule for White Firefighters in Bias Case -- The Supreme Court ruled on Monday that white firefighters in New Haven, Conn., were unfairly denied promotions because of their race, reversing a decision that Sonia Sotomayor, a Supreme Court nominee, endorsed as an appeals court judge. Read More: http://www.nytimes.com/?emc=na]
Here are a couple [1 and 2] of gossipy personal items which might help you fill out your own picture of Judge Sotomayor. She has been married and divorced, never had any children, is generous to her clerks and staff, has little accumulated wealth, and won $8,283 at a casino last year while visiting a casino with her mother.
To sum up Sonia Sotomayor…
I believe it is fair to say, based on the totality of her record, that she is a liberal of the non-dogmatic variety, makes narrow decisions sharply focused on the cases before her, is not a judicial activist, will be an active questioner in oral arguments unlike Justice Thomas, respects private property rights, understands the needs of government especially to carry out the common good, and will prove to be more of a centrist.
“You throw the sand against the wind…and the wind blows it back again.” – William Blake … but is it a taking?
Leave a Comment
Posted By: Dwight Merriam, Partner, Robinson & Cole, LLP
The big news this last week was that on Monday, June 15th the U.S. Supreme Court granted certiorari in a takings case, Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, et al. (Florida Supreme Court, decided September 29, 2008, rehearing denied December 18, 2008). Click here for the Florida Supreme Court opinion. Here is the Florida Court of Appeal decision which gives more details.
Municipal lawyers will want to follow this for two reasons. First, it ends a four-year hiatus since the U.S. Supreme Court took on a takings case (last decided were Kelo, Lingle and San Remo Hotel) and it will be the first for the new chief justice. Second, at root, the case is about global warming and, specifically, the government’s role in adaptation planning. For a primer on the latter, see the recent Pew Center report.
As a planner and land use lawyer, I see adaptation planning as the leading regulatory issue of the next decade.
The case was covered by inveresecondemnation.com on June 16th with several good links. It was also addressed by the Eminent Domain Law Blog.
The Court will be deciding whether Florida’s state legislation, the Beach and Shore Preservation Act, effects a per se taking of the upland owners’ property. Click here for the relevant portion of the statute.
This is the provision at the center of the controversy, a vesting statute contrary to the common law of accretion, that basically gives the state the ownership of the land it creates when it fills seaward of the “erosion control line” which becomes the new property boundary:
161.191 Vesting of title to lands.
(1) Upon the filing of a copy of the board of trustees’ resolution and the recording of the survey showing the location of the erosion control line and the area of beach to be protected as provided in s. 161.181, title to all lands seaward of the erosion control line shall be deemed to be vested in the state by right of its sovereignty, and title to all lands landward of such line shall be vested in the riparian upland owners whose lands either abut the erosion control line or would have abutted the line if it had been located directly on the line of mean high water on the date the board of trustees’ survey was recorded.
(2) Once the erosion control line along any segment of the shoreline has been established in accordance with the provisions of ss. 161.141-161.211, the common law shall no longer operate to increase or decrease the proportions of any upland property lying landward of such line, either by accretion or erosion or by any other natural or artificial process, except as provided in s. 161.211(2) and (3). However, the state shall not extend, or permit to be extended through artificial means, that portion of the protected beach lying seaward of the erosion control line beyond the limits set forth in the survey recorded by the board of trustees unless the state first obtains the written consent of all riparian upland owners whose view or access to the water’s edge would be altered or impaired.
Under the statute the state renourishes beaches, adding sand to them to combat erosion. The project which started the current litigation would widen the beach at Destin, Florida by 210 feet for a length of 6.9 miles. Who owns that “new” (actually “restored” given that it is renourishment after all) beach? The State of Florida says it’s theirs; the littoral owners see the restored beach as belonging to them, not the state.
Take a look at the beach, courtesy of the Environment News Service.
The beach at Destin, Florida (Photo by Jennifer Lee)
The takings question before the Florida Supreme Court was this: “On its face, does the Beach and Shore Preservation Act unconstitutionally deprive upland owners of littoral rights without just compensation?” The Florida court found no per se taking. It’s a matter of avulsion, not accretion, said the court. In following the case you’ll come to learn the critical difference between the two and be able to impress family and friends. The sound bite version is that avulsion deals with large, sudden changes, while accretion is little bits on new land very slowly over a long time. Hurricane Opal (1995) was avulsive.
Hurricane Opal's 8 to 14 foot storm surge damaged hundreds of structures along the Florida Panhandle in October 1995. (Photo courtesy UACE 1995).
The questions presented to the U.S. Supreme Court are:
The Florida Supreme Court invoked “nonexistent rules of state substantive law” to reverse 100 years of uniform holdings that littoral rights are constitutionally protected. In doing so, did the Florida Court’s decision cause a “judicial taking” proscribed by the Fifth and Fourteenth Amendments to the United States Constitution?
Is the Florida Supreme Court’s approval of a legislative scheme that eliminates constitutional littoral rights and replaces them with statutory rights a violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution?
Is the Florida Supreme Court’s approval of a legislative scheme that allows an executive agency to unilaterally modify a private landowner’s property boundary without a judicial hearing or the payment of just compensation a violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution?
This is a case to watch. And with your other eye, keep track of Casitas Municipal Water District v. United States, 543 F.3d 1276 (Fed. Cir. 2008), reh’g and reh’g en banc denied, — F.3d –, 2009 WL 367528 (Feb. 17, 2009). The U.S. Court of Appeals for the Federal Circuit held that it was a per se taking to require the water district to provide a fish ladder at its facilities and divert some of its water to protect the fish under the Endangered Species Act. Watch for a certiorari petition. Two motions for extension of time have been granted so the Solicitor General has until July 15th to file.
Zoning Vesting according to Ollie: “Well, here’s a another nice mess you’ve gotten me into.” – from “Another Fine Mess” (1930)
Leave a Comment
The lessons learned (as if we didn’t know them already) are:
- Local governments should have good rules and procedures for staff sign-offs of zoning opinions and approvals.
- Developers shouldn’t always take a staff letter as the last word on whether the use is permitted and vested.
- Everyone should be reading the statutes.
In this case, an outfit known a Crucible, Inc. has a school of sorts — a “security training facility” — in Stafford County, Virginia, where it “primarily trains government agents and employees in ‘individual protective measures,’ including ‘firearms training,’ ‘unarmed combative defensive tactics,’ ‘surveillance detection,’ and ‘anti-terrorist evasive driving.’” This does not sound like “Little Miss Bo Peep’s Pre-School” but they presented themselves as a school nevertheless.
Crucible had a contract for $2.25 million to buy more land to expand its facility. The zoning administrator, the planning staff and Crucible staff met and Crucible presented information on why its operation was a school, permitted as of right, under the regulations. The county officials agreed and the zoning administrator issued a “Zoning Verification” letter. Crucible closed on the additional land.
A month later – funny how these things happen right after one another – the Board of Supervisors amended the zoning to require a conditional use permit for any school in the A-1 district – whether it trained pre-schoolers in finger-painting or federal agents in anti-terrorist evasive driving.
By the way, here’s their driving facility from the website http://www.cruciblesecurity.com/
And here is a shot, also from Crucible’s website, of the main training facility.
I wonder if they have recess at the Crucible? ”Show and Tell” must really be something. And where do they go on field trips? Think about it — a school zone where guns are required…
John Delaney wrote an article in 2000 which is a comprehensive overview of vesting. Click here for a copy.
The New Jersey Supreme Court Has Been Reading John Muir
1 Comment
Posted By: Dwight Merriam, Partner, Robinson & Cole, LLP
John Muir (1838-1914), naturalist and author,
courtesy of Wikipedia
said: “I never saw a discontented tree. They grip the ground as though they liked it, and though fast rooted they travel about as far as we do.”
The New Jersey Supreme Court went far this last week in supporting local tree ordinances.
This is a Bonus Blog in addition to the usual weekly fare, thanks to my friend, Andy Davis, a lawyer and Vice President at Paulus, Sokolowski & Sartor (www.psands.com) a multi-disciplinary engineering and architecture firm based in New Jersey. Andy was with the Hackensack Meadowlands Development Commission when I was consulting with them for most of a decade on land use and wetlands matters. He sent me the advance sheet of the decision and, since I just did a posting on trees, I thought it apropos to bring this case to your attention as soon as I could. CLICK HERE for the decision.
The sound bite version is this – the court upheld a local tree removal ordinance under the police power on a rational relationship basis. The ordinance requires replacement of any trees removed on private property or, if they can’t be replaced, a replacement fee paid into a fund which the township uses to plant trees in public places. The ordinance, the court held, is “…a generic environmental regulation, and not a planning or zoning initiative.” At 20. It is not subject to the state’s land use planning and regulation enabling law, the Municipal Land Use Law.
The court applied the rational relationship test at the most minimal level, finding the ordinance rational if there wasn’t a sufficient showing to the contrary and saying “The job of the reviewing court is not to weigh the evidence for or against the enactment, or to evaluate the wisdom of the policy choice made.” At 22.
The court also said that “…the trial judge took a wrong turn when he placed the burden on the Township to justify the ordinance…” At 22. Municipal attorneys in New Jersey must be dancing in the streets.
The Township needs only to show that the ordinance “advance[s] the cause it was intended to achieve.” At 24.
The court said that the challenging builders group “cannot see the forest for the trees.” (I doubt the builders chuckled over that one…) At 26. And finally, the court held the fee was not a tax. At 28.
In New Jersey, it’s Trees 1 – Builders 0.
Tags: Dwight, Merriam, muir, ordinance, rational, tree
