International Municipal Lawyers Association - Local Government Blog

Happy New Year: Rapanos Resolution and Turnaround Teaser | January 6, 2009

Posted by: Dwight Merriam, Partner, Robinson & Cole, LLP

The December 8 posting “Wonder Where Wetlands Wander? Guidance Gives Goose Egg” addressed the continuing problems of applying the rule in the Rapanos wetlands case. As of right before New Years, one thing became certain – John Rapanos’ resolution for the New Year is likely to be that he won’t fill wetlands without a permit. The Department of Justice announced that Rapanos and related defendants have agreed to pay a $150,000 civil penalty and recreate approximately 100 acres of wetlands and buffer areas at an estimated cost of $750,000 to mitigate for 54 acres of wetlands filled without a permit. He has also agreed to preserve an additional 134 acres of undisturbed wetlands by conveying a conservation easement to the State of Michigan.

Click here to read the announcement of the settlement and click here to see the consent decree.

The Associated Press on December 29 reported Assistant Attorney General Ronald Tenpas as saying: “We are pleased to reach a settlement that so strongly benefits the environment and serves the public interest.” The same article noted that Rapanos had not admitted any wrongdoing and quoted the formulaic comment by Rapanos’ lawyer, Arthur Siegal: “I don’t want to characterize things as victories or defeats. … Neither side walks away with everything they want. If they did, it wouldn’t be a settlement.”

Now, how about the real estate development economy in 2009? Private and public sector lawyer friends across the country are telling me the same, obvious story – things are very slow, worse than the early 1990s downturn. But there is hope and I have proof! I just came from a speaking engagement with the Colorado CLE which just happens to be in Vail with lectures scheduled from 7-9 am and then 4:30-6:30 pm daily, I guess so you can study the materials during the day. I went with my youngest to Copper, Vail and Arapahoe Basin to have lofty thoughts.

Anyway, right there in Vail, as pained as the western ski resorts seem to be in this economy, was proof positive of the enormous strength of our real estate economy. The Vail Daily at page A10 on January 2 reported: “$500K parking not only pricey option in Vail”. Vail resident Buzz Schleper is offering to sell his slope-side parking spot for $500,000. Click here for the article. He’s had no offers yet. Other less desirable spots are on the market for $350K. For just $285K a year, you can get underground parking, ski valet service and locker rooms, but of course you don’t own any part of it.

Then again, these are asking prices….not closed deals…


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This blog is made possible by the International Municipal Lawyers Association (IMLA), but may include guest bloggers (who are attorneys with experience in local government matters) who might or might not work for IMLA. Their views (and those expressed on this site) do not necessarily express the views of IMLA.

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