Sneaking Suspicions

Archives-- August 4-10, 2002 (Week 31)

Commentary from a practical perspective

rwbstripe.gif (1115 bytes)

This page includes posts from August 4-10, 2002 in the usual reverse order. Each week's postings on the home page are perma-linked to these pages.

August 10, 2002

Gotta love that quote

The New York Times reported on an agreement to sell the once multi-billion dollar telecom giant Global Crossing for a total of $250 million.

Boy, I’ll bet Democratic National Committee head Terry McAuliffe is thinking he’s one lucky guy for cashing out when he did.

In any event, the blogworthy part of the story was the following quote, for which even a high Claude rating seems completely inadequate:

"It's a very difficult world today in the telecommunications industry,'' said Arthur Newman, the adviser, a senior managing director for the Blackstone Group.

Frankly, I’m stunned.

August 9, 2002

Party Poopers

Some people have absolutely no sense of humor.

They don’t even realize that their own sanctimony blunts the effectiveness of their arguments. Worse yet, they don’t seem to have any understanding of how their excessive piety comes across to others.

The animal rights folks at PETA fit this category just a little too well, as illustrated by a story in today’s Washington Post by Neely Tucker.

The DC Commission on the Arts and Humanities is overseeing an outdoor art exhibit this summer called The Party Animals. It being Washington, the artists were expected to provide approximately 200 polyurethane models of donkeys and elephants spread throughout the District.

There was an intended overall theme beyond the donkey/elephant motifs, of course:

[T]he arts commission wrote that its display was to showcase "the whimsical and imaginative side of the nation's capital . . . to have FUN."

Well, "fun" is a relative term.

A few organizations decided to go just a tad political with their attempts at providing a good time for all.

[The commission allow[ed] the inclusion of an elephant decorated in a mosaic pattern with a panel reading, "Just Say No to Ivory" near its tusk. Also included was an elephant with pictures of children of different skin colors – and the slogan, "Our Differences Make Us Strong." Another elephant design, patterned after the Monopoly board game, was called "GOPoly" and featured game board spaces labeled "$TAX CUTS$ and "In GOP we trust."

(I could be wrong, but I’m thinking that last elephant was not created by an actual Republican.)

Anyway, the animal rights advocates pointed out these examples in their inevitable lawsuit, and achieved the result they wanted:

PETA's offering for the street art project is a teary-eyed elephant with his right front leg chained.

He wears a blanket reading, "The CIRCUS is Coming, See SHACKLES – BULL HOOKS – LONELINESS All Under The 'Big Top.'"

… [U.S. District Court Judge Richard J.] Leon ordered that the shoulder-high polyurethane statue be displayed in a "prominent location," according to a copy of his ruling.

"The Court has concluded that the Commission's rejection of PETA's entrant was unreasonable because of its inconsistent treatment of other similarly noncompliant entrants," Leon wrote. "This inconsistency . . . constituted impermissible discrimination in violation of the First Amendment."

The attorney representing PETA provided a good object lesson in how to appear completely oblivious:

"Pain and fear is the bitter reality of the life of circus elephants," [Matthew] Penzer said. "A number of exhibits were clearly message-based, but for some reason the arts commission thought animal cruelty was not an appropriate topic to present to the public."

Perhaps the Commission just didn’t understand the meaning of the word "FUN".

I know when I’m walking around town, I'd be entertained and amused to see a statue of a mistreated elephant. Nothing makes me smile more than to see a whimsical, imaginative statue of a pachyderm being poked, prodded, and needlessly punished.


How self-righteous can PETA be?

Quite a bit, apparently.

Looks quite a bit like Margaret Hamilton, doesn't she?
A PETA Member?

August 9, 2002

Rock On

(This post expands upon an e-mail I sent today to Alabama’s finest government architect, Terry Oglesby, which he then posted on his own site. You’ll see why very shortly.)

Last night my younger daughter performed with her fellow rock 'n' roll campers at The Rusty Rudder in Dewey Beach . They were the opening act for the regular weekly appearance of Love Seed Mama Jump, a popular local band with a new national CD to their credit.

It was the culmination of two weeks of collaborative musicianship, involving over 20 kids ranging in age from about 8 to 16.

The kids displayed startlingly good musical talent and a comfortable stage presence.

The younger musicians started off with some classics, such as the Beatles' Hard Day’s Night, the Doors’ Hello, I Love You, Santana’s Oye Como Va, and, of course, Johnny B. Goode.

In the middle of the show, the crowd’s overall reaction underwent a significant shift, from warm yet polite applause to overwhelming approval. This occurred when a mix of younger and older kids put on an amazingly well done performance of Lynyrd Skynyrd’s Sweet Home Alabama.

After that song, the band had the crowd in its collective palm.

The older kids, including our own budding rock star, finished the show with three songs they had only begun to practice the day before the show.

They played Green Day’s When I Come Around, complete with stage jumping by the guitarists and singers. Then they announced their intention to play homage to Black Sabbath, and wailed away with a loud, driving performance of Paranoid.

A few dozen cigarette lighters glowed above the hundreds of applauding spectators at that point.

The topper came with a 13-year-old guitarist’s stunning rendition of Jimi Hendrix’s Star Spangled Banner, followed immediately by the band’s rousing, wild version of Purple Haze.

Major credits go to Walt Hetfield, the Cape Henlopen music teacher who ran the camp. It was a great time, and the huge grins on the kids’ faces after their performance were a wonderful, memorable sight.

Note: Here's the local paper's story about the camp, as well as a photograph of these talented kids:

rocknroll.jpg (26921 bytes)

August 8, 2002

Cottonwood Update

Thanks to Ann Salisbury to tipping me off to U.S. District Judge David Carter’s preliminary injunction decision, blocking the City of Cypress’s attempted condemnation of church-owned property for a retail establishment. (Wienerlog also deserves credit.)

I last wrote about this case May 31. At that time I understood that the City tried to meet the public purpose requirement for the condemnation by claiming that it needed the property tax revenue from the parcel that wouldn’t be generated if it were developed as a church. From my perspective, that was the best argument on the Church’s behalf that I thought the City could make, in that it seemed remarkably weak. And yet, that seemed to be the basis of the City’s argument.

At least according to Judge Carter’s decision, the City’s position was even more feeble than I thought.

The quick recap—

  • Cypress, California is in northwestern Orange County, near Los Angeles. A sizable hunk of its 4,257 acres sits fallow for a long while, burdened in part by a voter initiative requiring a special election to approve any rezonings. Conditional use permits (CUPs) are legally possible, however, for churches seeking to use portions of these parcels. The City adopts an initial redevelopment plan for the area, but nothing happens for over 10 years.
  • Meanwhile, the Cottonwood Church, in nearby Los Alamitos, is booming. Attendance and membership are reaching Crystal Cathedral dimensions, and they far outgrow their existing facilities. The Church buys up six parcels in the redevelopment area, creating an assemblage of 18 acres that would fit their intended move and expansion. They notify the City of their plans, and begin the process of obtaining a CUP.
  • Shortly thereafter, the City begins to ramp up its own redevelopment plans for the area in general and the Church parcel in particular. The City receives a proposal from Costco, a discount retail outlet. The Church doesn’t receive its CUP, but instead receives notice from the City that it will move forward with condemnation of the parcel, for the sake of the Costco deal.
  • Dueling lawsuits result, in state and federal court.

Judge Carter’s decision relied on several different elements, but especially relied upon the relatively new Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. Section 2000cc-2.

The primary benefit of the RLUIPA provisions, at least at first glance, is that it subjected the City’s actions to strict scrutiny. That means that the government’s land use decision could only burden the church’s property if it was

(A) … in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest.

42 U.S.C. Section 2000cc(a)(1).

As constitutional lawyers of a certain somewhat sarcastic bent know, applying "strict scrutiny" to a governmental decision usually means that the judicial review will be strict in fact and fatal in law.

That happened again here, but the facts as recited by the Judge make me think that the City would have had a tough time defending itself even under a far less rigorous standard of review.

Consider the following:

  • Less than 10% of the total redevelopment acreage had been developed in its first 12 years. It wasn’t until Cottonwood put together its assemblage that the City stepped up its redevelopment efforts.
  • Far more than half of the remaining redevelopment area would remain undeveloped if the Church built its project. Nonetheless, while the City claimed that the Church property was

the cornerstone of its redevelopment plan, the City’s plans for the rest of the retail area remain[ed] a mystery to the Court.

  • In fact, the new City redevelopment project for Costco

[c]onveniently … consists only of the Cottonwood Property.

  • The City didn’t need the property tax money from the 18 acres. The Mayor’s most recent State of the City address bragged about banking 25% of its reserves and avoiding the implementation of a utility tax.
  • The City’s "blight" determination is 12 years old, and as noted above, didn’t seem to stir the City into action until Cottonwood made its investment in the acreage.
  • There was no evidence that the Church’s construction would cause the City to expand its road system or otherwise burden city services, while the Costco project would

substantially increase the traffic use of the present streets during the high-traffic daytime and evening hours, seven days a week.

  • The Court took a very dim view of the turnover element of the condemnation, in contrast to the usual deference given to normal eminent domain proceedings. Unlike condemnation for obvious public purposes such as roads or schools, this deal was obviously and primarily intended to benefit Costco. As the judge put it:

The framers of the Constitution … might be surprised to learn that the power of eminent domain was being used to turn the property over to a private discount retail corporation.

Ann says the judge is a good one, and there’s nothing in the opinion to give me any different impression. Reading between the lines of the 36-page opinion, he was giving some very clear signals to the City to consider very, very carefully the risks of further litigation in this matter.

If the City’s counsel has any influence, and if the Church’s representatives restrain from exercising an understandable urge toward triumphalism, this decision could be the last one either side really needs to obtain to bring the matter to a final conclusion.

After all, there’s still plenty of space for Costco on nearby land. The Church members might even want to stop by after services and take advantage of a sale or two.

August 7, 2002

Sometimes the only difference between a sidewalk and a street is the width of the pavement

Nowadays, one of the hardest things to do in providing new transportation infrastructure is to obtain a consensus on where to put it.

My clients go through this difficult exercise routinely. Each year they run dozens of public workshops and hearings on all sorts of improvements to the state’s network of streets, roads, and even bus shelters.

Delaware’s transportation responsibilities are remarkably broad. If a street or highway is not a municipal street or privately-owned, it’s the state’s job to maintain it. This includes almost all of the thousands of miles of tree-lined suburban streets in hundreds of residential subdivisions.

When the General Assembly passed legislation directing the State to assume control of these streets many years ago, it also fortunately gave the Department a set of standards as well as discretion to determine the conditions under which it would agree to accept the streets for "perpetual maintenance," as it’s called.

In over a thousand such agreements since at least the early 1950's, DelDOT carefully refrained from accepting responsibility for the sidewalks within these developments, even as it assumed responsibility for the street surfaces.

This farsighted approach could be classified under the "We may be dumb but we're not stupid" category of governmental decision-making.

Currently there are nearly 1000 miles of such sidewalks throughout the State. The three counties, especially the most populous one, would love to be able to slough off the myriad complaints they receive about crumbling sidewalks onto the State’s shoulders. Thus far, the General Assembly has shared the Department’s less than enthusiastic response to the suggestion that it assume such a role.

Nonetheless, whenever the Department plans for major improvements on its other roads in the urbanized areas of the state, it must incorporate new sidewalks into its plans if

there is a need for sidewalks or [if] it can be reasonably anticipated that the need for sidewalks will exist.

17 Del.C. Section 132(f). The state is then responsible for the maintenance of these new pathways.

As it turns out, the real difficulty in meeting this task is obtaining local approval of or at least local neutrality to installing new sidewalks where none previously existed. On some sizable projects, the only remaining continuing controversies are over whether to have sidewalks, on which side of the road the sidewalks should be placed, how wide the sidewalks must be, how the state will deal with the old trees in the area, and so on.

The emotion that is evident during the discussion over these little paths is often far more heated than the debate over the actual road improvements.

Therefore, I could only nod my head in rueful recognition when I read a story about a sidewalk in Bethesda, Maryland, where a similar drama is now unfolding:

WaPo staff writer Brigid Schulte reports that the fight concerns a possible four-foot-wide concrete strip that would run along a street that connects an elementary school and a middle school. As in my clients’ experience, emotions are running hot:

Some neighbors have stopped talking or no longer look each other in the eye as they stroll under the towering pin oaks and Norway maples of Maryknoll Avenue. Others have taken to peering out their windows to keep up on enemy movements. And, as in any battle, the disinformation, the rounding up of powerful allies and the nasty sniping are intense....

What's at stake depends very much upon which side is doing the talking. For some, it's a matter of public safety. For others, the sidewalk is nothing less than an urban assault on a hard-won piece of quiet in a sprawling region, to say nothing of the destruction of 40 years' worth of landscaping.

The local officials seem a bit dumbfounded at the uproar:

"We've had some controversy before, but it's never escalated to this level," said Rick Earp, who, as director of the county's sidewalk program, builds as much as 20 miles of the concrete pathway each year. "This is a first for me." …

County Executive Douglas M. Duncan (D), who has made pedestrian safety a top priority, said the intensity of the complaints over the Maryknoll sidewalk has forced the county to change the way it decides when to build one. "This may be the first public hearing on sidewalks," he said. "I'm sure it won't be the last."

The modest project is expected to cost $78,000. According to some, however, the cost is much higher:

John and Carol Anderson, who […] live across the street from the proposed sidewalk, wrote to a local paper that only a few children walk to school: "For these eight to 10 children, 40 years worth of work and caring will be destroyed and the lives of virtually every household on Maryknoll Avenue will be disrupted."

The county will make a decision after a public hearing today. From the tenor of the story, however, I really doubt that the controversy will end any time soon.

August 7, 2002

Traffic Report

My web host dropped several days of statistics from their records, and unfortunately can’t seem to retrieve them. I used an averaging method to estimate the missing numbers of visits and pages (eliminate highest and lowest days of the month, and average the rest).

With all that, I estimate the site traffic as of the seven-month anniversary as follows: Visits 35,267; Pages 43,920.

As ever, thanks very much for your patronage. This site is far more popular than I thought it would be.

August 6, 2002

Three Claudes for a census study headline

For those who know their American history, geography, or sociology, the inclination to award more than three Claudes for the following headline would be pretty strong:

Census Finds Immigrants Lower City's Income Data

I’m giving the NYT headline writer a bit of a break, on the assumption that I can trace the relative cluelessness of the banner’s contents to the decline in education standards in the last 15-20 years.

As reported by Janny Scott, the story sets out the 21st-century version of an old story--the American immigrants and their effect on major metropolitan areas:

The surprising drop in median income in New York City that has puzzled demographers studying the results of the 2000 census appears to be traceable in large part to immigration, according to new census data that show income declines concentrated heavily in neighborhoods in the Bronx, Brooklyn and Queens that have become magnets for new arrivals.

The data, released yesterday, indicate that median household incomes rose across most of Manhattan in the 90's, with especially big leaps in places including TriBeCa and parts of Harlem. Simultaneously, drops occurred in much of the Bronx, Brooklyn and Queens, often in neighborhoods like Jackson Heights and eastern Flushing, where longtime residents have moved out and been replaced by immigrants.

Adjusted for inflation and particular locations within New York City, the same results could be read in a story written in August 1902.

The news is not cause for concern, from my perspective. If anything, it gives me hope for the country. America should continue to benefit from the peculiar drive and ambition that new immigrants bring with them. I see these qualities whenever I meet the folks from Central America, Asia, and elsewhere that my wife teaches in her ESL classes. From the similar stories of immigrants posted by Ginger Stampley and others, I’m sure that our local experience is not unique.

As for the income data, it’s simply a basic truth that most immigrants don’t bring with them to America the annual household income found in Scarsdale and reported in this story. (For that matter, only a tiny percentage of American-citizen households earn Scarsdale-sized wages.) I just don’t see any significant impediments to the chances that today’s low-income immigrants will improve their lives significantly, now that they’ve come here.

August 6, 2002

The Book

A few weeks ago a gentleman from a British publishing house contacted me about the possibility of working with them on a satirical book about golf fashion. Apparently they had come across a copy of a golf column I’d written a while ago on the subject. He wondered if there was a chance that the sorts of things discussed in the column could be expanded to book length.

After several e-mails back and forth, we finally had a very pleasant telephone conversation in late July, working out a schedule and other details.

I sent the draft book outline to them on Monday, and now I’m waiting for their comments.

If this works out, expect significant and utterly shameless marketing activities to occur on this very site.

Contact Information:

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


Home Page
Table of Essays
Links to the Weekly Archives

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