This page includes posts from
June 19-July 2, 2005 in the usual reverse
order. Each posting on the home page is perma-linked to these
July 1, 2005
Iíve worked up a first draft of an announcement that Iím thinking of making soon, in light of todayís news that Justice Sandra Day OíConnor is retiring from the Supreme Court.
It's intended to be similar to the emails and letters I expect a lot of folks will begin receiving as early as this weekend.
As I see it, the only difference between this draft and what weíll soon be told by some self-described public interest groups is that Iím being a little more obvious about where my real interests lie.
But only a little.
June 29, 2005
Yesterday State Senator Dave McBride (D) introduced Senate Bill 221, in direct response to the Kelo eminent domain decision. The bill would require the Superior Court to dismiss any condemnation action where the entity attempting to exercise its eminent domain authority failed to provide
for the property being taken. Furthermore, the term "public use" specifically excludes "revenue generation or economic development" from the accepted definition. According to the new bill as amended, the legally acceptable public uses
The bill passed the Democrat-controlled Senate this evening, and is now awaiting action in the Republican-controlled House.
This year's session is supposed to end on June 30, so it'll be interesting to see if the House majority is as quick to act on this issue as their counterparts.
I wonder if they'll have some fun with that phrase "may include" in the definition section.
June 28, 2005
Mindles H. Dreck of Asymmetrical Information asked two great questions today about the potential implications of the Kelo eminent domain decision, involving a land use policy choice used by folks with significant means at their literal disposal.
He's observed that in some parts of New England and New York, owners of sizeable acreage have set up conservation land trusts or similar conservation easements. There are significant tax benefits for those who make such arrangements, and there are other effects as well:
Dreck then posed two questions:
Here's what I wrote in his comments section:
I thought I'd amplify this comment a little bit.
The notion that a property that is already devoted to open space or similar limitations on its use is somehow sacrosanct from the clutches of those with the power of eminent domain is pretty common, but that sentiment essentially represents more hope than reality.
See, for example, City of Wilmington v. Lord, 385 A.2d 777 (Del. Supr. 1977), an interesting land use case I wrote about in another context a while ago. The City owned a public golf course that sat on land that included an easement setting it aside for park purposes only. The Public Works Department decided that the City's water distribution system needed a major upgrade, including a new water tower. The golf course met their needs perfectly, sitting as it did on a high spot overlooking the southwest edge of town.
It also sat directly across from an upscale residential subdivision. The property owners there did not want that water tower anywhere in their sights. They sued the City to block the construction of the water tower, but the Court recognized that the only real obstacle in the City's path to progress was the fact that it hadn't condemned the park use restriction on the golf course property.
The City went ahead and condemned its own parcel for the segment needed for the tower, and up it went.
The implications of this decision, as well as the Kelo case, are pretty straightforward, as Dreck correctly notes. High-minded conservation easements and other restrictions, even if grounded in not-so-high-minded exclusionary intentions, are no match for a state or local government with economic development on its mind and no significant limits on its powers of eminent domain.
The only major exceptions to this general rule would be if a Federal easement were placed on these parcels, or if that 4(f) exception applied. Normal Federal supremacy principles could then block the locals' ability to take the property in the first instance, or in the second instance push them to prove they've exhausted all other reasonable alternatives to meet their goals.
All the more reason, therefore, for folks to consider pushing for stronger restrictions on the exercise of this extraordinary governmental power.
June 27, 2005
The Rehoboth Beach Film Society is running its summer film series again, and I went to tonight's screenings.
The series runs on Monday and Tuesday nights during most of the summer, in the upstairs screening room at the Movies at Midway on Route 1. The Society likes to obtain preliminary feedback on some of the movies submitted for selection for the annual Film Festival, to be held this year from November 9-13. The summer showings usually include one short and one feature, and there's a handy form to give one's initial impressions of the offerings.
Tonight's short was an animated screed about movie piracy, called Flix.
The feature film was Mrs. Stevens Hears the Mermaids Singing, and it generated a spirited discussion afterward.
If you're in the neighborhood this summer, you might consider dropping in to see a free movie or two. The Society would love a good crowd.
June 26, 2005
The strong reaction to the Supreme Court's Kelo decision last week is encouraging.
It's nice to know that millions of fellow citizens have not lost their sense of appropriate righteous indignation about serious risks to their civil rights.
For all the hand-wringing about the potential impact of this eminent domain opinion, however, I think that Justice Stephens's opinion for the 5-4 majority also signaled the best solution to the risk that Kelo will be followed in short order by a wave of new and objectionable takings:
All true. Now's the time to add to those existing limitations.
For example, Delaware's Department of Natural Resources and Environmental Control can be the recipient of open space by a bequest, or it can buy the property in a normal transaction, but it can't use eminent domain to convert citizen's property into parkland for the rest of us. My clients at DelDOT can use their eminent domain authority for transportation purposes, but that's the extent of their power to condemn property.
I discussed Delaware's constitutional limits on eminent domain a while ago, citing a 1986 decision that barred the Wilmington Parking Authority from taking a swath of private property for the primary benefit of the Wilmington News-Journal. Wilmington Parking Authority v. Land with Improvements, 521 A.2d 227 (Del. 1986).
As Kelo shows, the ability to use eminent domain to remove blight is where the real risks are; one man's middle-class bungalow can be someone else's eyesore.
The folks who really, really don't like the result in Kelo have an obvious path to obtain the policy choices they prefer. State legislation and, better yet, state constitutional amendments can limit eminent domain powers to the provision of clearly public purposes such as transportation, schools, and prisons. Even in those areas where blight reduction or elimination is accepted as an appropriate use of this extraordinary authority, there should also be some commonly accepted, strict standards that define blight in terms that the community as a whole would accept.
Given the overwhelmingly negative reaction to New London's example, it looks to me that the nation's citizens should accept the Court's invitation to deal with the issue with their state and local legislators.
It certainly provides a useful reminder of the benefits of the federal system. There's nothing about Kelo that says what happened in New London has to happen everywhere else.
UPDATE: See Virginia Postrel's post for an example of the limiting legislation I'm suggesting here.
June 26, 2005
I posted a new golf book review at Hole By Hole this morning.
These Guys are Good is a rare treat--a really well-done coffee table book.
June 23, 2005
We went for an evening cruise on Rehoboth Bay and the Lewes & Rehoboth Canal.
During this part of the summer season, there aren't too many other folks out on the water during the week. The real crowds come on the weekends.
We really didn't mind.
June 22, 2005
Sometimes I have been far more righteous about something I've said or done than any objective analysis of the situation would support.
In other words, sometimes I screw up, but compound the problem by continuing to think I'm right, and won't admit I was wrong.
When this happens, and the offended party is clearly looking for an apology, I have made things far worse by saying something infuriating like "I'm sorry you got upset."
And sometimes a loved one, such as darling bride, have minced no words in forcefully explaining that such a statement is not an apology at all.
I try not to repeat stupid actions, so this kind of foolishness doesn't happen much anymore.
In fact, as I've become older it's become easier and easier to just simply admit it when I'm wrong.
Sometimes it's surprising how disarming a straightforward "I screwed up, I'm sorry" can be. For some folks, it's obvious that they've only rarely heard such a thing, and they deeply appreciate it. It seems to help the problem blow over remarkably quickly.
The fact is that the consequences of a direct confession of error are often far less than imagined. Besides which, at some level it feels a lot better to make a caveat-free apology. Perhaps that's because a caveat-loaded apology really isn't an apology at all.
My views on this matter may be affected by my Catholic upbringing, with its sacrament of Penance. Nonetheless, when I see someone make the same mistake I have, I think it might help if I remind them of the liberating influence of confession.
It's not too late to take this step. However, now you have a bit more to apologize about than the original mistake you made.
Thanks for listening. Glad to help.
Your fellow Democrat,
June 20, 2005
Since last Tuesday I've been futzing with the computer. It refused to accept a small download of digital images from the camera.
Let's just say this doesn't help with the completion of a golf column that usually includes at least one photograph or two in the hardcopy edition.
I tried several different techniques and nothing was working. For some reason the software kept saying that there was no connection between the camera and the computer during the download sequencing, even though the computer would also report that there was a Kodak cable connection at one of the USB ports.
A friend of mine suggested that the fact I'd recently renewed my antivirus subscription might be the reason. He suggested I disable it during the operation.
That didn't work.
Eventually I gave up the home remedy method and went to the Kodak website. The support center there offered a download of updated software for the system, so I took the hint and installed it. Then I removed the USB cable and reconnected it, and again disabled the antivirus software.
It worked. I don't really know why, but I hesitate to ask.
And that's why I haven't posted much here in the last week. There's only so much computer time I have available, and hours spent rebooting, removing old programs, and trying other digital maintenance tasks to fix a balky unit can be a real drag, literally and figuratively.
In the meantime, Happy Father's Day to those who qualify.
June 16, 2005
Like many other states, Delaware is seeing some pleasant increases in its net tax revenues this year.
Next week's meeting of the Delaware Economic Financial Advisory Council (DEFAC) will provide the final revenue estimate figures that the General Assembly will use to complete the state budget and bond bill for FY06. In the meantime, the Governor and the Republican legislative leadership have managed to reach a broad-ranged deal on a mix of tax cuts and budget increases.
I'm happy to note that the deal includes an income tax measure I suggested here last January, when there were already some good signs that the state's financial picture would be much brighter than it had been the last few years.
For the first time, Delaware will have its own version of the Earned Income Tax Credit for working families:
When I suggested the EITC in January, I expressed no preference as to whether the credit would be limited to the taxes paid, or whether the credit would follow the more generous refund model used in the Federal version. Given the fiscally conservative approach to government finance followed by both major parties in Delaware, however, I'm not really surprised that the negotiators limited the credit as they did.
That's okay. It's still a good step toward encouraging initiative and work, and the folks who will receive the credit could certainly use the help.
Official small print disclaimer: This is, after all, a personal web site. Any opinions or comments I express here are my own, and don't necessarily reflect the official position of my work as a government attorney or any of my clients.
That fact may become obvious later on, but it needs to be said here anyway.
© Frederick H. Schranck 2002-2005