This page includes posts from September 7-13, 2003 in the usual reverse
order. Each posting on the home page is perma-linked to these
We went into Rehoboth
Beach for dinner the other night. At that point in the evening it was close
to high tide on the ocean. We took a short walk up to the Boardwalk for a
look both before and after our meal, and were a bit stunned to see all the
beach erosion that had occurred in just a few days. There was a sharp
dropoff about 20 yards from the boardwalk, and the water ran under the
boards at many locations.
The recent Atlantic storms that
passed by here brought some heavy surf and rain, but nothing like the full
fury of a hurricane. However, the beach sand at Rehoboth was already in
relatively short supply, after last winter’s harsh treatment and a
slower-than-usual recovery this spring.
Last night brought another strong
storm, and we went up to the Boardwalk again. This time the rain literally
stung our faces, and there was little to see but 8- to 10-foot high surf and
whitecaps in the darkness. It was closer to low tide, but the water was
still coming close to covering the entire beach, what there was of it.
Today’s weather news suggested
that Delaware might be
in the path of the next hurricane.
(Link via Drudgereport).
Even if it doesn’t take a direct
hit, however, Rehoboth Beach is already in fairly bad shape for a glancing
The Corps of Engineers is to
beach replenishment project
for Rehoboth, to begin next spring.
In the meantime, however, the
resort community needs to hit an unusual trifecta over the next six months—a
mild winter, no fall hurricanes, and no beach-gouging n’oreasters.
The only problem is that the odds
of hitting any trifecta are pretty steep, and this one’s no different.
September 12, 2003
Those tolls are for thee—and what would you do without them, by the way?
I love reading
newspaper reports about proposals to cut or completely eradicate turnpike
tolls, mostly because of what’s usually missing from these stories.
As in, so how do you
want to pay for your roads, if you eliminate the tolls?
Steve LeBlanc wrote a
fairly typical example of this kind of story for the AP this week,
[F]or millions of New England drivers, the Massachusetts Turnpike's
utilitarian ribbon of asphalt is a transportation lifeline.
And not a cheap one. Commuters who rely on the 50-year-old road to
drive back and forth to work can easily shell out hundreds of dollars each
year on tolls….
Most recently, a member of the board that runs the turnpike has
suggested selling 11 service plazas to pay off the debt, which originally
was supposed to be eliminated by 1994, and free the highway of tolls.
Meanwhile, some toll foes are hoping to put a question on next year's
state ballot to accomplish the same goal….
"The people of Massachusetts pay enough taxes as it is, and yet here we
are saying that we have to pay extra taxes to drive on a state highway,"
said Alisia Jezierny, a 24-year-old restaurant worker from Newton. "It's
called a toll, but it's just another tax."
LeBlanc reported that a mid-1990’s bond
issue will extend the current debt service until 2017, unless the bonds are
redeemed before maturity. In addition, Mass Pike tolls are now pledged to
pay down the massive tab for the Big Dig tunnel/bridge project through
The AP writer also noted a few
interesting facts about toll revenues and rates. For example, in 2002 the
Pike generated $168.5 million, with a toll set at about 3.4 cents per mile.
Ever hopeful to deflect criticism, the
Mass Pike administrators pointed out that my clients charge an admittedly
steep 18.2 cents per mile for the JFK Turnpike in Delaware (a portion of
I-95), about which The New Republic’s
Jonathan Chait wrote
screed last summer.
Once again, LeBlanc’s
story (at least in the edition I read) gave no indication of what
Massachusetts would do to make up for the cut in toll revenues, or whether
the state would actually reduce its transportation program by an equivalent
That second option
is, to be blunt, highly unlikely. Highways and bridges have maintenance and
long-term replacement costs that do not magically disappear, even if a prime
source of funds for that maintenance and replacement does. What’s left is
the only real option, i.e., finding some way to pay for all the concrete,
asphalt, steel, lighting, snow removal, etc.
Fuel taxes are a
common transportation revenue source, but for small states with significant
pass-through traffic, such as Delaware and Massachusetts, there are limits
to how much money can be raised from that tax, for a few reasons.
First, there’s the
issue of how much fuel tax rates would need to be increased to replace the
now-missing toll money. In Delaware, that could easily reach 13-15 cents per gallon above the existing
23-cent rate. Each penny now raises about 4 to 5 million dollars, and toll
revenues from the Delaware Turnpike are about
Second, there’s the
issue of competing fuel tax rates in the neighboring states. Gas station
owners along the state’s borders would either scream bloody murder or simply
go out of business if they had to compete with stations in nearby states
with a huge disparity in state fuel tax rates.
A third consideration
is looming larger than it once did. Fuel tax revenues are based in part on
fuel economy per vehicle. The Federal vehicle fuel efficiency rules affect
these funds. In addition, some folks are already worrying about the
potential tax consequences of a viable hydrogen fuel cell technology.
Several states are
taking steps to reduce some of the less desirable aspects of toll highways,
even as they continue to depend on the money. For example, EZPass and
similar electronic toll collection systems cut down on tollgate congestion.
Delaware and a few other states now use
toll lanes, which by eliminating tollbooths also eliminate their
associated congestion/delay problems. More such lanes are
in the works for I-95 in Delaware, which might make Mr. Chait happier.
I certainly don’t
expect folks to be happy about paying turnpike tolls. On the other hand,
it’s hard to take such complaints seriously when they are unaccompanied by
any suggestion of a replacement revenue source.
September 11, 2003
Keep at it
Today was gorgeous--cool, sunny, and a light breeze,
just like the same day two years ago.
Things did become a bit spooky, however.
I left my clients' headquarters building during
lunch break and went out to the west parking lot, mostly to enjoy the sun.
The new construction along the north end was raising some dust.
Then I heard the helicopter engines.
The sound took me right back to when I heard and
watched the large military copters carrying the dead from the September 11
Pentagon jet-bombing to Dover AFB a
half-mile away, where the morticians did their assigned tasks.
I looked around and didn't see anything flying
Then I saw where the sound was originating.
It was a jackhammer tamper, working in one of the
construction ditches several yards away.
Fooled myself fairly well.
Every so often similar memory-triggers about
the events of September 11 occur, frequently under completely incongruous
conditions such as this one. I sometimes just stop and think about what
happened, what's been done about it since then, and what remains to be done
to go after those who want us dead.
Reasonable minds can differ over strategy and
tactics in deciding how to defeat the terrorists and their sponsors, but I
have yet to hear a convincing argument that there's no need to defend
What's beyond dispute is the plain and simple truth
that we have to keep at it.
September 10, 2003
Beach house building bingo
The Associated Press ran a story today
residential building standards adopted by several communities in North
Carolina's Outer Banks. The two counties and several town governments had
The tide of real-estate cash
that washed up on the shores of the Outer Banks in recent years has
brought prosperity and problems: grand "mini-motel" beach houses,
road-clogging traffic, and overloaded garbage and sewage systems….
One of the homes that sparked
the backlash is a 16-bedroom, 12,000-square-foot monster now under
construction in south Nags Head.
In the future, the size of
homes will be limited to a maximum of 5,000 square feet and eight
bedrooms. Houses on lots that are less than a third of an acre may have no
more than four bedrooms. Builders get extra credit toward a required
permit by adding more on-site parking spaces and may not build sewage
systems that can handle more than 18 occupants.
The problems created by building
seashore McMansions can reflect a certain, shall we say, moral obtuseness
about community impacts. A rental manager for several of these properties
was a bit more diplomatic:
“The market is demanding
bigger homes. The bigger homes are performing magnificently. The problem
that arose is that the developers of the bigger homes were failing to meet
their own needs in terms of parking," he said.
With land values so high,
developers reap much greater reward from crowding as many buildings onto a
lot as possible - and leaving the parking problem to the adjoining
When a dozen family members
drive six different cars to the beach for the weekend, two end up on the
property and the rest are parked on nearby roads, a neighbor's lawn, over
the septic system.
And don't even think about the
garbage generated, or the extra sewage overwhelming small municipal water
The City of Rehoboth Beach has somewhat different concerns, as a beach
community that is further along the development curve than the Outer Banks.
It was first laid out in 1876, with most residential lots only 50’ x 100’.
Some are even smaller.
A few McMansions are in place, primarily
limited to double-lot properties. In addition, the resort’s 25-30% annual
price appreciation over the last few years has created a different incentive
than building big.
Several property owners have demolished
older larger houses, sold off one of their lots, and built a new house on
their remaining parcel. With lots in the beach block running at more than $1
million, that’s a real temptation.
Rehoboth’s other residential rules
inhibit the creation of giant monuments. Forty percent of the lots must
remain in open vegetation, and the city also requires two offstreet parking
spaces. The building height requirement is also limited to 35 feet, measured
from the center of the adjacent street (a regulation that can create some
intriguing survey arguments).
Even with these rules, the building
boomlet of the last decade has given Rehoboth preservationists a case of the
willies. Their concerns are reflected in the town’s recently adopted
Architectural Survey of Rehoboth Beach, prepared by Delaware’s Historic
Preservation Office, lists over 70 properties built prior to 1920 as
eligible for the National Register of Historic Properties. By 2001,
one-fifth of these structures had been demolished and replaced. If the
high property value growth experienced by Rehoboth in the 1990's
continues, or even if land values don’t rise but simply remain at their
current high levels, this pattern of demolition and replacement will
almost certainly go forward.
In the search for an appropriate means to “manage” the
visual and historic texture of the Rehoboth Beach of the future, the City
realizes that community design is both an art and a science and that
appropriate solutions are difficult and prey to many political and
economic judgments. … It may be appropriate, for example, to “go slow” and
apply any new standards only to entirely new construction, to substantial
increases in existing size, or to modifications to only a substantial part
(e.g., 75% or more) of existing space. Or it may be that a public
consensus actually emerges first for modest quantitative changes (e.g.,
slightly greater setbacks, slightly reduced floor area ratios, or
additional height/roof-type restrictions) while more long-term solutions
are further explored.
In both cases, some of
the pressure to adopt these new rules would diminish if folks took the time
to think about how their beach property fits with others in the surrounding
areas, and cared enough about the full impact of their building plans.
Of course, it’s
impossible to legislate good taste. If enough folks don’t bother to think
about anyone other than themselves, however, those who write the rules for
building new homes will surely make the attempt.
September 9, 2003
Won’t be hearing them now, or anytime soon for that
It’s one thing to
develop a communication technology that becomes wildly popular with its
users, such as cellphones.
It’s a whole ‘nother
thing to clear all the required land use hurdles before putting into place
the basic infrastructure elements required for the new technology.
Sometimes it seems as
if the wireless companies forget to focus sufficient effort into adopting
politically palatable solutions to meet that second, equally critical goal.
Minneapolis, Incorporated may have learned that lesson as a result of the
Seventh Circuit decision issued yesterday.
VoiceStream owns an
FCC license to provide personal communication services within Wisconsin and
Minnesota. The terms of the license, as well as good business sense,
required the company to make sure its systems work well in as many places as
In and around
St. Croix County, Wisconsin
that’s not easy, for a couple reasons.
First, it’s hilly.
The undulating terrain makes it more difficult to maintain the desired
line-of-sight wireless connections between the users and the radio
Second, it’s the site
of the Lower St. Croix National Scenic
Riverway. In addition, across the river sits the
City of Marine on
St. Croix, which includes its
own Historic District on the National Register of Historic Places.
that it needed one big tower to improve service in the area, and found a
nice high location for that purpose at a place called Somerset. The problem
was that the tower location was easily visible from the St. Croix rivershed
and from Marine. A whole crowd of local folks and parks officials did not
care for this new tower being within sight of the Riverway and the historic
The National Park
Service objected, but also suggested to VoiceStream that it might look
favorably on another concept, using strategically placed smaller towers that
would be less intrusive on the Riverway.
VoiceStream did some
preliminary work on multi-tower locations, but when the company appeared
before the local land use officials, it stuck to the one tower idea:
alternatives to the Somerset site were suggested by both the County and
VoiceStream, these alternatives were not pursued such that VoiceStream
thoroughly investigated the viability of other alternatives…. [T]here is
no evidence in the record to indicate that VoiceStream made a significant
effort to investigate any multiple-tower alternatives despite the repeated
requests of the Board of Adjustment.
The local authorities ruled against
VoiceStream, which then appealed the denial to the Federal courts under the
Telecommunications Act of 1996. The company argued that County’s decision
had the illegal effect of prohibiting personal wireless services, and asked
for an injunction to force the grant of the land use permit for their
Neither the District Court nor the Seventh
Circuit expressed much sympathy for their claims.
The unanimous appellate panel noted that
prior case law supported the rational use of aesthetic considerations in
making land use decisions about wireless technology:
…[W]e stated that
“[n]othing in the Telecommunications Act forbids local authorities from
applying general and nondiscriminatory standards derived from their zoning
codes, and . . . aesthetic harmony is a prominent goal underlying almost
every such code.” [citation omitted]. Indeed, every circuit to consider
the issue has determined that aesthetics may constitute a valid basis for
denial of a wireless permit if substantial evidence of the visual impact
of the tower was before the board….
In this case, the
district court correctly determined that substantial evidence supported
the County’s conclusion that the design and location of VoiceStream’s
tower as proposed would have an adverse visual impact on the Lower St.
Croix Riverway and surrounding area.
In addition, the predominantly
single-minded approach to the single-tower concept doomed the company’s
The disparity in
substance between what the Board of Adjustment received from VoiceStream
on the Somerset site and what they received on multiple-tower alternatives
is telling. Although VoiceStream provided extensive maps, diagrams,
environmental assessments and historic assessments for the Somerset site,
VoiceStream provided no maps, diagrams, or any type of assessment on
multipletower configurations as alternative sites. Instead, the record
contains only conclusory statements. Such conclusory statements by the
applicant, without more, are insufficient to establish that the applicant
has exhausted thoroughly the possibility of other viable alternatives.
VoiceStream’s conclusory statements that multiple-tower alternatives are
not feasible are insufficient to prove that the Board of Adjustment’s
denial of its Somerset site application “prohibit[s] or ha[s] the effect
of prohibiting the provision of personal wireless services.” 47 U.S.C §
If VoiceStream really wants to increase
wireless service to the St. Croix area, the company couldn’t have received a
much clearer signal on how to obtain the necessary approvals than the
Seventh Circuit provided in this opinion.
September 8, 2003
The Mayor of Chutzpah
Karl Gaytan had an
unfortunately all-too-common approach to public service as a city councilman
and then-Mayor of Colton, California—what’s in it for me?
Gaytan acted on this
approach, taking bribes that influenced his votes on certain land use
the Feds charged him under 18 U.S.C. Section 666 (the city receives more
than $10,000 in federal grants and other assistance, hence the Federal
jurisdiction). Gaytan pled guilty to bribery, which under the circumstances
was probably the smart thing to do.
sense of chutzpah overcame that momentary spark of wisdom. Gayton appealed
the District Court’s order to reimburse the City of Colton the grand total
of $61, 506.33, a sum that closely matched the amount the Feds could prove
Gayton obtained through bribe-taking.
Last Friday, in a
short, sharply worded unanimous opinion,
Ninth Circuit turned aside the former mayor’s argument:
Gaytan contends that the
City did not suffer any actual loss when Gaytan accepted the bribe money.
He posits that any harm to the City is “speculative and conjectural.” We
disagree. The City of Colton lost the honest service of a public servant
whose vote was purchased by developers seeking approvals for their
projects which, when authorized, entitled them to tax rebates, loans, and
loan guarantees. The citizens of Colton may have lost much more, for
Gaytan’s vice “endangers the very fabric of a democratic society.”
United States v. Miss. Valley Generating Co., 364 U.S. 520, 562 (1961)
(noting that “democracy is effective only if the people have faith in
those who govern, and that faith is bound to be shattered when high
officials . . . engage in activities which arouse suspicions of
malfeasance and corruption”); see also City of Findlay v. Pertz, 66
F. 427, 435 (6th Cir. 1895) (describing the self-dealing of a public
official as “utterly vicious, unspeakably pernicious, and an unmixed
Some folks don’t
seem to know that they should quit when they’re behind.
And sometimes the
criminal justice system is there to remind them.
September 7, 2003
First convoy of the season
There are some welcome telltale
signs of the seasons in Sussex County, tied to its primary focus on
For example, each spring farmers
everywhere disk their fields to prepare them for seeding. In Sussex and
other coastal counties, however, the disks are always followed by huge
flocks of seagulls, picking up some fast and easy pre-sliced worm food.
This afternoon I saw my first
Sussex County agri-convoy of the late summer/early fall. About twenty miles
north of Rehoboth Beach, a line of 7 or 8 bright yellow harvester combines
trudged their way up State Route 1.
Unlike the tractors with their
disks, however, these combines weren’t followed by seagulls. Instead, their
slow movement managed to create a separate flock of cars, backed up nearly a
mile behind the convoy. The harvester drivers were keeping the massive
vehicles in the right lane and right shoulder, but there were just enough
nervous drivers who found it difficult to pass in the northbound left lane.
Hence the huge backup, rolling north at what appeared to be about 20 miles
I always enjoy seeing these
convoys—especially when I’m in the other lanes, heading in the opposite
Convoys of harvesters such as these will be a
common sight in Sussex County over the next 10 weeks or so.
September 7, 2003
6 marked the
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