Sneaking Suspicions
Archives-- August 14-27, 2005

This page includes posts from August 14-27, 2005 in the usual reverse order. Each posting on the home page is perma-linked to these archive pages.

September 10, 2005
The benefits of self-publishing

The days of relying upon the mainstream media for the images and reporting of today’s events are surely numbered.

Events such as Hurricane Katrina can only speed the process of spurring independent publications that bring an immediacy and authenticity to reportage.

Jonah Goldberg recently pointed to a great new example of this--a slide show by Alvaro R. Morales Villa, a Nicaraguan whose photos and commentary from the French Quarter and elsewhere in New Orleans are simply remarkable.

Read and watch the whole thing, as they say.

There are a few typos, but one of them, in which Villa describes one scene as "aweful," is in a sense more accurate.

September 8, 2005
Best movie of the year

Last night we took a stress break and went to see the great new documentary, March of the Penguins.

This is without question the best movie we've seen this year. It should win the documentary Oscar at the very least, and frankly should win the best movie Oscar in the unrestricted category.

The wonderful visuals, an unobtrusive yet moving soundtrack by Alex Wurman, and great narration by Morgan Freeman combined for a delightful evening that was sorely needed.

September 7, 2005
Traffic Report

Despite the somewhat erratic pace of publishing here lately, visitors continue to stop by, for which I'm deeply appreciative.

As of yesterday, Sneaking Suspicions has been open for three years and eight months, with 431,123 visitors reading 580,413 pages.

I plan to return to a more routine posting schedule soon, and appreciate your patience in the meantime.

September 6, 2005

I've been thinking about several different aspects of the response to Hurricane Katrina's devastation, and may be posting something here about that soon.

In the meantime, two others' essays come close to expressing some of the same points I've been mulling about.

Here are the links. Please read them both in their entirety. They are well worth your time:

Bill Whittle's newest essay.

The John Tierney's column.

Hat tip--Glenn Reynolds.

August 30, 2005
Blog Break

I'm taking a break from blogging for a while. While I'm gone, take a look at the prior posts, if you'd like.

Thanks again for your patronage.

August 29, 2005
Apparently winning isn’t everything

You might think that if you win a land-use appeal that clears the way for you to build what you desired, that would be the end of the matter, and you’d leave the courthouse smiling.

You might be mistaken, if some folks who sued the City of Myrtle Beach, South Carolina are any indication.

The Sunrise Corporation and some related entities bought the St. John's Inn, a combined restaurant and hotel operation in Myrtle Beach in 1996, sited on less than three acres. In 1998, the new owners filed for approval of a major change in the property—namely, a 14-story, 98-unit hotel tower, with related amenities. In every relevant respect, the application complied with the city zoning code.

In addition to the normal zoning regulations, however, Myrtle Beach also has an esthetic code, requiring an additional permit approval from the Community Appearance Board.

(We’ll pause right here to smile about the notion that Myrtle Beach has an esthetic code. Based on what I’ve seen over the last fifteen years while on golf vacations, I must say this is a truly surprising fact about Myrtle Beach government. I always have a great time there, but I sincerely doubt that Myrtle will ever be confused with Carmel By-the-Sea, California, or other such beach communities.)

Anyway, the community reacted negatively to the new developers’ proposal, and the Board turned it down. The appeal to the City Council didn’t work, either, and so the developers sued. Among other claims, they sought to recover pre-development costs and lost profits from pre-selling some of the units in the yet-unapproved tower.

The Defendants then removed much of the case to Federal Court. The parties agreed to stay the civil rights and inverse condemnation claims, pending the state court’s handling of the zoning appeal.

In less than a year, the Court of Common Pleas overturned the City’s decision. The state court ruled that the permit denial was

arbitrary, subjective, without evidentiary support, an abuse of discretion, and a denial of plaintiffs’ due process and equal protection rights.

Other than that, the decision wasn’t so bad for the City, I suppose.

The Court also determined that a remand to the City would be futile, and ordered Myrtle Beach to issue the permit. Not long thereafter, the plaintiffs sold the site for $4 million.

Undaunted, the City appealed the court order, but lost two successive appeals that ended in 2001.

Once the State Supreme Court made its views known, the parties revived the Federal lawsuit. The District Judge dismissed the case, and the developers appealed.

At this point one can legitimately wonder why they bothered. After all, they won their case, and the permit could now be used by the folks who bought the property from them.

Two words come to mind for the semi-cynical among us—attorney’s fees.

Fortunately, the Fourth Circuit Court of Appeals was understandably skeptical about keeping the case alive under these circumstances, in a decision issued last week.

First, the appellate panel reminded the parties about the actual character of the state court decision:

That proceeding was nothing other than a court review of an administrative determination by local zoning authority…. It is no indication that such federal Constitutional rights were decided in the decision of the South Carolina Court of Appeals, and we so hold.

Second, the circuit court expressed a practical view of the due process claims:

[P]laintiffs received due process, both procedural and substantive. Plaintiffs claim that their due process rights were violated because the hearings they received were unfair. Even if true, which we do not decide, this does not change the fact that plaintiffs received four levels of review, in each of which they were permitted to present their side of the controversy [note omitted]. 

While it is true that there were several levels of judicial and administrative review, plaintiffs received the very remedy they sought, the permit to develop the property. Indeed, the very extent of review is an indication of the existence of procedural due process, rather than its absence. Costs incurred securing a permit are part of the process, and we have never held them to be compensable.

Third, there was no violation of Plaintiffs equal protection rights:

There is no evidence in the record that [Plaintiff] was subjected to purposeful, invidious discrimination. At most the evidence shows that the public was opposed to the project for a number of reasons, some relevant to Board review and some not. This evidence that the Board and City Council responded to the public opposition does not rise to the level of a Constitutional violation, because we have recognized that matters of zoning are inherently political, and that it is a zoning official’s responsibility to mediate disputes between developers, and local residents [citation omitted].

Finally, there was simply no valid takings claim:

As a general rule, a delay in obtaining a building permit is not a taking but a non-compensable incident of ownership. [citation omitted]. …[T]he delay at issue in this case was not extraordinary. Plaintiffs first applied for Board approval in August of 1998. By that November they had been through the entire process twice. At no point did defendants take more than 15 days to issue their final decisions. The bulk of the delay that plaintiffs claim was extraordinary was a result of the process to appeal the defendants’ decision. There is nothing in the record to suggest that defendants had any control over how quickly the case moved under state law through the various judicial appeals processes, or that the defendants acted in bad faith or engaged in deliberate delay during that process. Accordingly, any delay was nothing more than the law’s delay as lamented for some 400 years, and not an extraordinary delay that could give rise to Constitutional implications.

Thus endeth the lawsuit--finally.

It's understandable that the struggle to obtain a land use permit can generate some strong emotions, while also adding to the cost of development. On the other hand, those burdens did not convert this relatively normal zoning dispute into a Federal civil rights case.

August 28, 2005
Quiet around here

Last week we drove younger daughter and a car full of her stuff down to college for her freshman year. The move went fine.

When we returned home, however, there was an unmistakable sense of quiet in the house.

For now, it’s just my wife and I and the dog. Older daughter has been out-of-town for a long vacation, and will be back later this week.

The girls’ absence is really noticeable--far more so than the usual sense when they were younger, and staying overnight with friends or off on other short trips from home.

This stillness is short-lived, for now. Older daughter will be back soon, and younger daughter will return for school breaks and summers.  

Even so, over the last few days we have heard, felt, and to some extent smelled what it will be like around here when they both move away permanently.  

This is going to take some getting used to.


Contact Information:

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


Home Page
Table of Essays
Table of Essays 2004
Table of Essays 2003
Table of Essays 2002
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 2002-2005