This page includes posts from
September 11-24, 2005 in the usual reverse
order. Each posting on the home page is perma-linked to these
About 140 Deputy Attorneys General descended upon Dewey Beach for the last two days, for the annual Attorney General's retreat.
One nice aspect of the conference was that my normal 40-mile each-way commute shrank to only five miles or so instead.
The program was also very good, highlighted by a stimulating session on constitutional law presented this morning by Yale Law School professor Akhil Reed Amar.
These sessions are counter-scheduled with a state judicial conference during the same period. With the courthouses closed, nearly the entire complement of state attorneys are able to come to the retreat. It's a welcome and rare opportunity for the office, and very enjoyable.
I’ve been thinking about some of the opportunities that the Hurricane Katrina disaster could provide for folks whose homes were ruined if not completely obliterated by the storm surge, wind, and flooding from the levee breaks.
This post outlines an idea about how to restore much of that lost housing in a way that enhances the opportunity for maintaining the distinctive look and individuality of these old neighborhoods, while also using mass production techniques that most likely were not been applied before in the Big Easy.
I assume a few initial conditions apply to any such reconstruction effort. At a minimum this includes cleaning up the toxic debris and poisoned soil in the ruined residential areas, either by removal, or by taking a cue from Brownfields practices and capping the areas with bentonite or other appropriate materials. It also includes dealing with the risk of future flooding, by either improving the levee system to handle higher-level storm events, adding fill to raise the overall ground level of the neighborhoods, or both, which would be my preference.
Finally, I also assume that the City of New Orleans will not rezone these renewal areas to alter the existing property lot lines or its current setback requirements under its zoning code.
For example, as noted in a fascinating website devoted to the Bywater area of New Orleans, lot sizes tend to be about 35 feet in width. In several locations, the homes are built as twins, with a party wall on one side and a single side yard access to the rear from the open side. These lot dimensions helped inspire several forms of the famous shotgun houses that dot the city landscape, so many of which are most likely beyond saving.
On the other hand, there is a relatively simple way to restore this indigenous architectural style back to the City, in an improved state, without affecting current ownership of the lots on which these homes are placed.
It’s a combination of Levittown and the factory method of basic home construction, sometimes called modular housing.
Levittown was one of the first, remarkably successful suburban tract development projects in the post-World War II era. It began on 1200 acres of former potato fields in Long Island, and one critical element of its success was copied all over the country--the developers offered only two basic house designs.
Over the years, the homeowners added their own improvements to these very simple homes, including additional rooms and garages. For as much as these Levittown homes looked all the same at the beginning, they certainly aren’t now.
The limitations of the city’s lot dimensions also suggest that a similarly simple approach to reconstruction in New Orleans would be the fastest way to bring new housing stock online.
Modular home builders could quickly set up and install the basic elements of several fundamentally New Orleans home styles, including Creole cottages, shotgun houses, camelback houses, or sidehall homes.
This time, however, these homes can be significantly improved over the ruined homes they replace, with better insulation, duct work for heat pump/air conditioning systems, and updated plumbing and electrical fixtures.
Local talent can build the foundations for these homes and complete the finish work on the new modular shotguns, thus putting the owner’s own stamp on their replacement. In addition, these internal improvements I've described wouldn’t necessarily be so obvious on the outside, thus bringing a real sense of restoration to these neighborhoods.
The advantage of modular construction for this purpose is pretty obvious. It can bring a nearly complete home (and joined twin, if desired) to each site on a far speedier schedule than a massive stick-built on-site effort. The finish work, on the other hand, will provide more than enough work opportunities for local craftsmen, as well as a chance for significant training for similar work for hundreds of others.
I’m not actually running for the new job of housing reconstruction czar for New Orleans, on the This Old House® ticket. Nonetheless, if enough folks are interested in bringing back their old house designs, now ruined by Katrina, I’ll bet the modular housing industry would be happy to hear from them.
It’s not at all unusual for state and local governments to issue rules and regulations about folks putting up signs in the rights-of-way.
In most places, the money that was spent on building highways wasn’t intended to also provide unrestricted opportunities for those seeking to post their own personal messages to the rest of us, be they commercial, personal, or political.
In most jurisdictions, the published rules outlaw placing nonofficial signs within certain limits. On the other hand, most governments make a distinction between the literal installation of such signs in the ground, and carrying them around to be seen by passersby.
Think of union picketers parading on a sidewalk in front of a business entrance, for example. Carrying a sign or banner as part of that activity doesn’t run afoul of typical sign regulations, and is also generally recognized as a legitimate endeavor protected from unreasonable governmental intrusion by the First Amendment.
Even so, some limits to such activities can be imposed without crushing someone’s civil rights, as outlined in a recent 10th Circuit Court opinion.
Wendy Faustin has engaged in anti-abortion protest activities in the Denver, Colorado area for a good while. Her efforts included holding up banners as she stood on a highway overpass within city limits, with the message “ABORTION KILLS CHILDREN.”
Denver police repeatedly asked her to stop, and she refused. After several such attempts to dissuade her, the police eventually charged Faustin with violating the city’s anti-posting ordinance. That charge was dismissed when the city prosecutor learned that she had been holding the banner, and had not actually attached it to the overpass.
Faustin filed suit, challenging the city’s actions under the First Amendment. After a series of legal skirmishes over Denver's posting ordinance and other issues, the District Court then addressed the city’s defense based upon an admittedly unpublished police department policy to block such banner displays from highway overpasses.
Here is the city’s description of that policy, as contained in an affidavit filed with the court:
The lower court held that this unwritten enforcement policy was overbroad and vague, and ruled for Faustin.
On appeal, however, two members of the 10th Circuit panel disagreed.
As for Faustin’s vagueness argument, the panel majority ruled that in light of her own repeated experience with the no-overpass policy, she had no case:
U.S. District Judge Ted Stewart was on the panel, and dissented from this last part of the decision. As he saw the facts of the case, Denver’s unwritten enforcement policy was simply too fuzzy to withstand constitutional attack:
I think Judge Stewart has the better position on this last issue. Although it’s a perfectly defensible policy choice as a matter of balancing highway safety and First Amendment rights, this unwritten policy seems more like an afterthought than anything else.
I’m not one to suggest that every enforcement practice adopted by the police has to be written out, but this one certainly wouldn’t take much effort to reduce to a standard memorandum. Besides providing clear guidance to the Denver P.D., it would have also readily eliminated any arguable constitutional claims from folks like Ms. Faustin, who have plenty of other places to share their messages with the rest of us.
At some level you have to give the City of Chicago points for persistency, if nothing else.
Nonetheless, there comes a time when even a major city government should recognize that there are some folks who can make it very clear that they’re the ones in charge, and not the City’s leadership.
Several years ago Chicago joined with several other big cities and announced with great fanfare that they were suing firearm manufacturers.
The complaints typically sought millions of dollars in reimbursement for the cities’ “response costs” to the plague of illegal conduct within their borders, enhanced as those costs were by the weapons used by the local criminal element.
It was an admittedly novel argument, with several potential responses—such as the occasionally inconvenient assertion that the city governments’ own failures of administration in law enforcement, education, and social welfare policy exacerbated the rise in crime in their own neighborhoods.
Undaunted by their eventual defeat in the courts on this attempted shift in responsibility, the Chicago city leadership pressed on. They filed a new Freedom of Information demand on the Federal Bureau of Alcohol, Tobacco, and Firearms (ATF), seeking access to the information in the agency’s Trace Database and Multiple Sales Database.
The ATF tried to block access, arguing that certain FOIA privacy and law enforcement exemptions barred access to the information. The District Court disagreed, and the Feds appealed.
During the appeals, Congress intervened, twice passing appropriations bills that specifically forbade the use of Federal funds to comply with any such demand. The Supreme Court remanded the case to determine what effect these new laws had on the lawsuit. In response, the Seventh Circuit ruled that while Congressional action barred the use of Federal funds, nothing prevented the use of Chicago’s money to pay for the cost of retrieving the information from the databases.
The ATF felt differently, and sought yet another rehearing. During that process, Congress stepped in once again, and expressed itself even more forcefully in a 2005 appropriations act:
The shorthand version of this can be described as “Not Nobody Gonna See This Stuff, Not Nohow, 'Cept for Crime Fightin'.”
Last week the Seventh Circuit issued its latest decision in the controversy, and recognized the latest Act of Congress for what it was:
The City raised several new arguments against the plain meaning of the new law, but the panel ruled against each point.
Perhaps the best portion of the circuit court’s decision was its bluntly worded footnote 1, discussing one of the City’s contentions:
On the other hand, the City’s non-friends had an appropriate point to make here—along with the power to make that point both obvious and enforceable.
Chicago’s time and money would be better spent on some tried and true methods of reducing the costs of crime in its streets, instead of searching for deep pockets from out of town to blame for its own problems.
Hurricane Ophelia has been just erratic enough over the last few days that I thought we should take advantage of the evening's pleasant weather for a short cruise.
By tomorrow it could be an open question when we'd be able to take the next one.
I took this picture looking west from just offshore of the Rehoboth Bay Sailing Association, south of Dewey Beach:
The moon rose quickly while we were messing about. Here's a view of Love Creek, looking southeast as it leads to Rehoboth Bay:
I also had plans to finish and publish some more thoughts about Hurricane Katrina and the various opportunities it provided, despite the awful destruction it unleashed upon the Gulf States. With Ophelia bearing down on the Mid-Atlantic states, however, I decided not to push my luck.
Younger daughter seems to be acclimating herself quite well to freshman year of college, several hours’ drive from home.
She’s already made several new friends, for whom meeting younger daughter is their first exposure to someone from Delaware, and from a beach resort at that.
In an effort to advance her fellow students’ knowledge of some of the primary cultural touchstones of her life here, younger daughter tacked to the wall of her dorm room an email that a hometown buddy sent her some time ago. She sent us a copy over the weekend.
The only thing I’ve done with this text is to add the occasional bit of evidentiary proof of these statements.
Of course, some of these bits of local knowledge apply to many other places in this country. Even so, we think living here is something special, since it’s not likely that this entire collection fits anywhere else.
For a somewhat broader perspective that includes the rest of Delaware, a version of this list appears at this site.
September 11, 2005
This blog didn't exist on September 11, 2001.
However, by that time Glenn Reynolds had been running his new Instapundit site for just over a month or so, and I'd been reading his posts for about two weeks.
After the terrorists did their worst that awful day, I felt compelled to write something. Glenn graciously posted the email I sent him that evening:
I believe that my prediction turned out to be correct. Much good came from the nation's reaction to 9/11, and much good remains to be done.
It also remains an awful price to pay, however, and I can't easily imagine ever saying it was worth it.
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