Sneaking Suspicions
Archives-- July 17-30, 2005

This page includes posts from July 17-30, 2005 in the usual reverse order. Each posting on the home page is perma-linked to these archive pages.

July 30, 2005
Asked for a bit too much

Small-town elections are sometimes way more intense than big-city folks think. Even if they are allegedly nonpartisan (that is, no formal D or R), tempers easily flare as real or imagined slights crop up during the relatively short campaign season.

We're having a local example of this right now in Rehoboth Beach, complete with a Federal lawsuit over campaign sign removals by city workers.

In the late afternoon of July 28, U.S. District Judge Kent Jordan issued a memorandum order denying the plaintiffs the injunction they sought. [Follow the links on that page to the opinion, in pdf format.]

Several parts of the decision are well-worth noting for those interested not only in First Amendment law, but in how pride can affect folks' judgment.

Rehoboth's sign ordinance Section 74-16 sweeps with a wider broom than some similar laws elsewhere, but it's not all that unusual:

No person shall keep, maintain or post any private advertisement, poster, or sign upon or on any beach or strand or public boardwalk, park, sidewalk, street or other public property or way within the limits of the city.

Shortly after July 4, a challenger to the long-time incumbent mayor and two allies seeking city council seats in the August 13 election put up several signs throughout the square-mile city. Not long thereafter, City workers removed several of these signs from the rights-of-way, stirring up a hornet's nest of police visits, calls for criminal prosecution, and a few more instances of signs being removed from some streets, including the grass strips between the sidewalks and the curbs. 

This naturally angered the campaigners, who operated on what they understood was a relatively relaxed approach to enforcing the literal terms of the ordinance.

As Judge Jordan noted, the quick tempers may have led to quick legal action:

Perhaps because of the fast-approaching election day, or the failure of the principals to actually speak to each other, or the remarkably rapid rise in the temperature of the rhetoric thrown about by those involved in the dispute, no resolution of the sign placement issued was seriously discussed before this suit was filed [note omitted].

The court hearing took most of Tuesday, and the judge's 17-page opinion issued almost 48 hours later.

The decision is a good primer on the First Amendment issues surrounding sign control laws affecting public rights-of-way.

The judge had little difficulty with the plaintiff’s challenge to the validity of the ordinance on its face. The plaintiffs made no attempt to challenge the city’s assertion that the purpose of the ordinance was to enhance traffic safety and aesthetics. He held that Section 74-16 allows the government to put up its signs in the rights-of-way consistent with its police powers, and was otherwise content-neutral.

On the other hand, the haphazard way in which the City actually enforced this law was a real cause for concern.

I liked how the judge described the evidence supporting this conclusion: 

How far back from the road a sign must be before the City will accept it as appropriately placed, which side of the sidewalk a sign can be place on, whether signs must be behind an imaginary boundary marked by the line of utility poles when there is no sidewalk, whether landscape ties are a permissible boundary for determining the placement of signs, whether signs for other non-profit organizations, like the community arts league, are permissible—all these questions are, it seems, answered by unwritten “rules of thumb” that only the City cognoscenti know. That may be a satisfactory way of doing business as long as no one objects. But it’s not a constitutionally valid way of doing business [citation omitted]….

I have the distinct impression someone’s going to be drafting some enforcement policies very soon.

Nonetheless, the plaintiffs didn’t receive their injunction because they literally asked for too much. Their request included a demand that the City cease from enforcing any part of the ordinance against them, even though it was facially valid. Judge Jordan wouldn’t go that far. In addition, he noted that the campaigners had other means of reaching the voters besides the rights-of-way: 

[I]n light of the accessibility of private property for the posting of signs, and given the availability of other forms of campaigning, such as direct mail, newspapers, and door-to-door canvassing, I cannot say on the present record that there are inadequate alternative channels for communication.

In a final footnote, he also restated some practical advice he gave the parties at the close of the injunction hearing. It's well worth repeating here:

[T]he parties ought to be speaking to each other in an effort to appropriately maximize the opportunity for the voters of Rehoboth to be advised of the candidacies of those running in the August 13th election, including the plaintiffs. …I hope that hearing one another in court and reading this Order will be of some assistance to the parties in setting aside any rancor associated with litigation, so that their shared interest in benefiting the City and its residents will predominate and they can cooperate in facilitating a fair election.

As for alternative means of communication, no one involved was waiting for this order to be issued. For example, yesterday’s Cape Gazette included sixteen letters to the editor devoted to the Rehoboth election, at least five advertisements, and several stories, including the usual candidate profile/Q&A stuff. There'll be plenty more of that stuff in the upcoming editions next week.

Otherwise, it will be interesting to see how the City and the campaigns for both sides deal with this legal decision and the good advice of a well-meaning judge.

Note: I worked closely and well with Judge Jordan on a major case when he was an Assistant U.S. Attorney, and supported his nomination to the bench when he asked me if I would be a reference. I’m sure I would have come to the same conclusions about his handling of this case anyway, but that personal connection should be noted.

July 29, 2005
Let's not kid ourselves about original intentions

The developers of the residential subdivision where we live started selling their lots in late 1985. When we bought our half-acre here in the spring of 1986, we had no idea that this would be one of the last subdivisions that was not required to have its own stormwater management systems on site.

The street pavement uses 20 feet of the 50-foot right-of-way. For most storms the grass swales in the right-of-way on either side of the pavement handle the runoff, if any. Excess runoff from major storms goes through a drain system to a creek that empties into Rehoboth Bay.

That's now changed. In the late 1980s, following a directive of the Delaware Department of Natural Resources and Environmental Control, the counties changed their subdivision regulations to require housing tracts to keep their stormwater on site.

To handle this and other common-area infrastructure issues within these developments, the subdivision regulations also forced the creation of homeowner associations. These HOAs were to oversee these common-area responsibilities in the new neighborhoods, including the costs of maintenance and repairs.

At least with respect to the stormwater ponds, this experiment with private micro-government has not exactly worked out as intended. Here's how a News-Journal editorial today described it:

Current Executive Chris Coons announced this week the county is facing a stormwater management crisis. Given devastating flooding around New Castle County, water runoff calls for immediate action.

The editorial writers note that there are now 450 such ponds in New Castle County alone, and many of these facilities are not in good shape. According to the News-Journal, over 70 such ponds need serious work right away.

The editorial notes that the State government budgeted over $3 million for this purpose for FY06, and that New Castle County budgeted an additional $4 million.

Nonetheless, what really caught my eye about the editorial was this passage:

A pending ordinance in County Council clarifies the division of maintenance responsibilities between residents and the county, and authorizes immediate work on the seriously malfunctioning ponds. County officials also describe the ordinance as a one-year amnesty that relieves civic associations from immediate financial liability for pond upkeep. But the notion that civic associations will raise sufficient money to pay for annual pond maintenance is absurdly unrealistic. Most civic associations struggle to collect dues from property owners, and there are no laws or regulations that require people to pay.

Stormwater retention ponds were a good idea 15 years ago that have unexpected consequences now. The state and county should start budgeting for the millions of dollars that will be needed for their repair and maintenance. Flood control is clearly a public safety issue, not merely a matter of local development. Residents didn't ask for retention ponds, and the government can't expect they will pay for them.

But the state and county governments did have that expectation. This particular unfunded mandate couldn't have been more clearly articulated when it was originally imposed.

Let's not kid ourselves. The state and local governments decided that stormwater from new impervious surfaces needed to stay on-site as much as possible, and required the creation of HOA systems to handle that responsibility. The original scheme was absolutely intended to have the residents pay for their own ponds, and the regulations and deed restrictions made that very clear.

On the other hand, what may not have been fully appreciated when these new rules were adopted is a critical distinction between this unfunded mandate and those that governments frequently impose on subordinate government entities, be it federal on state, or state on county and city:

An HOA is simply not a real government.

And if enough HOAs fail to meet their statutory obligations, as happened here, the county and state will inevitably pick up some of the burden.

Given the experience of the last 15 years, it's unrealistic to assume that HOAs will now decide to comply with the original intentions of this land use policy, or accept the new mandate described in the editorial. On the other hand, I think there should be some mechanism adopted to have the immediate local beneficiaries of these systems pay directly for at least some of these maintenance costs.

Similar systems are already in place.

For example, state law permits the creation of lighting districts for residential subdivisions. The annual cost of electricity for the lights is divided up and paid by each homeowner in the neighborhood, as part of their annual county property tax bill.

The same approach could be adapted to handle stormwater management costs. The county can assume the basic responsibility for upkeep and maintenance, with the affected property owners picking up the tab for these maintenance costs in their new, pond district portion of their property tax bill.

This experiment in unfunded mandates didn't work as originally intended. On the other hand, there are other ways to meet the same basic goal.

July 27, 2005
Fateful second

Today I spent some time with my clients on a few legal issues surrounding an awful accident that happened yesterday.

A small aircraft attempting to land at a private strip near Georgetown, Delaware collided with an SUV that was passing by along a road at the leading edge of the landing area. The Piper Archer's left fuel tank ruptured, and the leaking aviation gas ignited the now-overturned GMC Jimmy.

The freak crash killed a father and his young daughter in the SUV, and the plane's passengers were injured. The pilot suffered a fractured back and other serious injuries.

DelDOT administers the state's aeronautics program, including financial support for public use airports and a land use law concerning developments within those airports' approach paths. This private strip is not regulated by the state, however, and so the NTSB and the FAA will take the lead on the subsequent investigation.

It's an terrible accident, made more so by the knowledge that a timing difference of a single second could have kept the plane from hitting the SUV.

If any accident could be considered as fated to happen, this one would certainly be a candidate.

The incident may also cause a re-examination of current land use practices relating to private landing strips and their proximity to property boundaries.

July 24, 2005
High speed massive resistance

Joe Queenan has a great piece in today’s Sunday NYT about an important issue that involves one of the broadest exercises of civil disobedience that this country has ever experienced.

I refer, of course, to the general disdain with which millions of drivers treat the legal speed limits on the nation’s highways.

As Queenan notes, things have now reached a stage where following the law is far riskier than not:

Adhering strictly to the speed limit in New Jersey is either a willfully antisocial gesture or the vehicular expression of a social death wish. At least this is the way it is construed by the truck drivers who threaten to mow you down, by the commuters who shout unseemly remarks about your mother or sexual orientation, and by anyone else unfortunate enough to enter the lane directly behind you.

His interviews with police officers confirmed their quietly practical approach to enforcement, while maintaining a politically correct official stance:

The police officers I have consulted preface any discussion of this topic by noting that the speed limit is the speed limit, and that those who exceed it are breaking the law. But privately they admit that the police monitor traffic to make sure that it is moving along in an expeditious fashion, and are mostly keeping their eyes peeled for those who are weaving in and out of lanes, failing to use their turn signals, significantly exceeding the posted limit, or generally misbehaving. "Give them 9, take them at 10," was how one ex-policeman described the practical use of the radar gun.

This enforcement standard is essentially what is used by the Delaware State Police (your experience with certain small town police departments in Delaware may vary, however, and by a significant amount—don’t say you were never warned).

The average daily commuter speed from the beach to the state capital on State Route 1 used to be about 5-7 miles over the limit, when I first began making this trek well over a decade ago. In the last few years, however, the average speed on Route 1 (officially 55 mph) is far closer to 65-67 for those who use it every weekday.

On the other hand, all bets are off on summer Fridays. It’s common to look in one’s rear view mirror and see a few cars approaching at something close to mach speed—or at least 80-85 mph, anyway. Almost without exception, as these cars blow by one sees that their license plates are from New Jersey or Pennsylvania--or they sport a Delaware plate with unmistakable decals showing their upstate origins.

It’s as if these tourons believe The Starboard, The Summer House, and The Blue Moon won’t be serving any alcohol after 5:30.

I don’t have a major beef with most speeders. On the other hand, the ones that jerk from one lane to the next and back again, treating other cars as if they were slow-moving pylons, frankly scare me.

Few scenes along Route 1 make me smile so broadly as when I see one of these idiots shoot past me, and when I see them again a few miles later they are resting comfortably on the side of the road, with a state police car’s flashing lights just behind them.

The other motoring annoyances that really fry me are based on some drivers’ overweening sense of self-importance. For example, consider the folks who ride the shoulder to bypass blocked traffic, and then try to zip back into the right lane when they see a 12-foot long open space open up. Or, even worse, I really hate it when the yahoos fill up an intersection after their light turns yellow or red, blocking traffic trying to enter or cross the main highway from the side roads. It makes me wish that a giant heavy-lift helicopter would pick up the blockers and deposit their cars unceremoniously in a nearby stormwater pond.

Sure, it would cost a lot to keep a Sikorsky on standby. But it would make a lot of other drivers very, very happy.

July 22, 2005
Portland, Oregon

Last night I returned from my trip to Portland, Oregon

My initial impressions were that it’s a very interesting, pleasantly appealing city. It was easy to see why so many city planner types I know praise Portland as highly as they do, especially the way that mass transit is integrated into the downtown districts. On the other hand, at times there were some jarring elements.

The Portland Airport seems to be about the same size as BWI. Like BWI, there’s also a light rail connection to downtown, which they call MAX. I used it to reach the Portland Marriott Downtown Riverfront, where the TRB conference was held.

Three things were noteworthy about the MAX ride, in addition to the cheap ($1.70) fare.

First, the bike rack inside the rail car was a nice touch that I hadn’t seen elsewhere, and someone used it while I rode into town.

A bike hook hangs down from the top center of the picture, with a hanger strap on the right side.

Some mass transit design elements look like good concepts on paper, but don’t actually work out in practice. In this case, however, I frequently saw these racks in use during my stay.  In fact, based on the pavement markings and other signs, it’s obvious that Portland is a very bike-friendly place, similar to many cities with a large university student population. 

Second, I also thought the poetry posted on the wall edge near the ceilings was a pleasant break from the usual commercials.

On the other hand, I thought the stern language used on the MAX to warn others away from the priority seating for seniors and the disabled was too cold for the circumstances.

Maybe folks in the Northwest are simply more manners-deficient than those from other regions, and need a more-strongly worded reminder than what I’ve seen in similar surroundings—but I doubt it.

I stayed mostly downtown, but on Sunday, July 19, our group took a short trip east to see the Columbia River Gorge from the Vista House at Crown Point State Park.

Looking west toward Portland from Vista House.

We then continued east to Multnomah Falls.

Multnomah Falls, Oregon

Our dinner that evening was held at the nearby Skamania Lodge in Washington State, a beautiful conference center with a great view of the Gorge north of the Bonneville dam.

Speaking of meals, there are some fine dining opportunities in downtown Portland. 

For example, I can highly recommend the ceviche sampler at the Oba! Restaurant, as well as the Dungeness crab cakes.

The raw oysters at The Heathman Hotel were delicious, as was the charred tuna.

In addition, while the Reuben sandwich at the Rock Bottom Brewery was nothing special, the Sunny Day brew I had with it was a very pleasant, light IPA. 

On another occasion I tested the Hefeweizen made by the folks at Widmer, another Oregon microbrewery. It passed with flying colors.

I also considered it a plus to see so many coffee shops that were not part of the Starbucks or Seattle’s Best chains, though they were much in evidence as well.

Someone here at home also recommended that I stop at Powell’s Books, at 10th and Burnside. Now, asking me to simply stop at a new and used book emporium that is a city block long and several stories high is a bit of a joke. I spent over two hours in there and could have easily spent several more, but a pleasant dinner with two other conference participants from the West Coast intervened.

I walked through several downtown areas, including part of Portland State University’s campus as well as the trendy Alphabet District. A few of us also took a short trolley ride to the Portland Art Museum, which until September is running a wonderful exhibit of John Singer Sargent’s paintings of children. It is well worth the ticket price.

One of the other sights during the trip acted as a short sharp reminder that no place is uniformly wonderful. I saw this sign repeated at several spots along a stretch of raised flower beds next to a downtown office building:

Plant Area Monitored by Camera

One would think that no such surveillance is necessary. Unfortunately, but that view is just a bit too Pollyannish.

This was an intriguing city, with far more to take in than could be accomplished over just a few days--especially when most daylight hours were spent in conference rooms. I’ll just have to figure out some way to return to Portland and see what else is out there. 

And as for the conference itself, my First Amendment presentation was well-received by an overflow audience. There’s a good possibility it will be repeated at TRB’s Annual Meeting in Washington, DC in January 2006.


Contact Information:

Fritz Schranck
P.O. Box 88
Nassau, DE  19969


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© Frederick H. Schranck 2002-2005