This page includes posts from
November 20-December 3, 2005 in the usual reverse
order. Each posting on the home page is perma-linked to these
I like Ann Althouse's blog, and not just for the Wisconsin law professor's legal discussions. She writes well on several other subjects, and also posts some intriguing photographs and artwork.
The caption above one recent photo of herself in a dimly-lit Madison restaurant brought a smile almost immediately:
No small irony, there.
Bloggers have many characteristics, but by the very nature of their contributions to the Internet, being "humble" is not among them--and Ann knows that, I'm sure.
A fairly straightforward zoning appeal decision issued last week by Delaware Superior Court Judge E. Scott Bradley could easily have included a single additional footnote, if it was written by someone else.
The Town of Henlopen Acres, Delaware is a tidy little enclave, sitting on the Atlantic Ocean just above the City of Rehoboth Beach. With about 200 residents, it is a charming community, especially for those who don’t mind spending between 3 million to 10 million dollars for their “summer place.” It’s also the home of the Rehoboth Art League, where the traffic generated during its summer art fair during two August weekends always causes some angst for the rest of the Town.
To some extent, Henlopen Acres’ zoning code reads more like a set of deed restrictions for a highly exclusive community, complete with minimum and maximum square footage requirements (1,800 sf and 6,000 sf respectively), as well as a rule that no more than 30% of the residential lot areas can be used for structures. Imagine that.
A couple sought a building permit for a new home in the community, but the building inspector balked. As he calculated it, the single-roofed building was not-so-modestly scaled at 6,704 square feet, including a garage space that was integrated into the two-story design.
The frustrated home builders then appealed to the Town’s Board of Adjustment, but the Board affirmed the inspector’s decision. They then took their appeal to Superior Court.
Judge Bradley had no major difficulty in upholding the Board’s determination:
Judge Bradley is known as a fairly genial sort. If this decision were issued by certain other members of the judiciary, however, I would not have been surprised to read an additional footnote for this case, somewhat along these lines:
*One may reasonably ponder what relative benefits there may be to having a single family residence that takes up 6,704 square feet. Surely the appellants could find some way to live comfortably within the confines of 6,000 square feet instead. We must leave that question unanswered, however, as it is beyond the scope of this court’s jurisdiction.
Somehow, I just have to believe that the architect designer should be able to squeeze off the necessary space to meet the Town’s generous zoning requirement.
Writing for the panel, Judge Posner vacated a prior award of these charges against a corporation that filed a frivolous appeal, after caustically reviewing the successful litigant’s work product both in the original appeal and in the paperwork relating to the fee request.
My own sense of the situation was that the attorneys failed to exercise billing judgment, i.e.,
Even if the hours and fee rates were factually correct, there appeared to be a disconnect between the work product and the hours taken to produce it. If true, then the application should have been modified to support an award that would stand a good chance of being made, as opposed to being second-guessed.
That assessment is based on my own experience in billing clients in private practice, as well as 26 years in public practice, which includes a number of occasions of reviewing the attorneys’ fee applications filed by others.
I’ve also assumed that the three judges on this panel have had years of experience reviewing lots of fee applications in dozens of cases during their tenure on the bench, plus whatever legal billing experience they may have had before going on the bench.
Commentary from other bloggers on this issue is by no means uniform, however.
Here are links to several posts on this interesting issue:
Ted Frank doesn’t see this decision the same way I do. I still love his name, of course.
Someone named S. Cotus didn’t think much of Frank’s argument.
Gail Herriot of The Right Coast shared my point about billing judgment, while agreeing with Frank:
Will Baude suggests that Posner and his fellow judges used this case as a way to object to what Baude sees as shifting the costs of training young lawyers to the other side.
The comments to Baude’s post are also extensive, and continue the debate at some length. They are well worth reading.
Almost two years ago I wrote a post about sidewalk responsibility in the City of Wilmington, inspired by a recent state Supreme Court decision on the subject.
A woman slipped and fell on a sidewalk, and sued the adjacent property owners for her damages, winning a $230,000 verdict. On appeal, the property owners successfully convinced the Court that the City ordinance placing the sidewalk’s maintenance responsibility on these landowners was fatally flawed. As the Court read the City Charter, the City alone had that responsibility. It couldn’t shift the duty onto others without a Charter amendment authorizing an ordinance for that purpose.
At the time, I thought the City would quickly move along the lines suggested by the Supreme Court:
My timing was off, but I was right about the City’s preferred solution to the problem. The News-Journal ran a story in the Sunday edition today noting that City officials had obtained legislative support for the Charter change. A bill will be introduced in the General Assembly in January.
The mildly ironic element to this story, however, is the way that the News-Journal reporter completely bought in to the City’s spin on the issue.
Consider the lede:
Actually, no. Anyone who looks into this issue knows exactly who bears this duty--it’s the City.
After noting the discrepancy between the Charter and the now-defunct ordinance, the reporter continued down this merry path:
Actually, no--on both counts. The Supreme Court decision wiping out the ordinance is the reason for the current problem. Under the Charter, the City simply has no authority to slough off this duty onto adjacent property owners. A separate law, the Tort Claims Act, limits the City’s liability for decrepit sidewalks, as noted in the prior post.
A friend of mine, the City’s Chief of Staff, did some spinning on the topic that the reporter didn’t catch:
Actually, no. It’s not that nobody knows who to sue, it’s that there’s nobody who can be sued, under the current legal framework.
In the eighth and ninth paragraphs, the reporter explains the legal problem now facing the City. For anyone reading the piece, the alleged confusion at the beginning of the story should be eliminated after reading those two passages.
Except that the reporter then quotes another friend, State Representative Joe DiPinto, who plans to sponsor the bill that the City wants:
Actually, no—there doesn’t need to be any more clarification. It’s very clear right now who is responsible. On the other hand, in order to carry out the City’s policy preferences, there needs to be a Charter change.
I don’t really mind the City’s mild spinning on this issue. I also don’t have any policy dispute with the decision to seek this amendment to Wilmington’s Charter. An ordinance that imposes sidewalk maintenance responsibilities on adjoining property owners is a common approach to the problem in many municipalities.
What is mildly troublesome, however, is that the reporter took their bait so easily.
Charles Hill's birthday is today. Take a rewarding trip to his website and give him some blogging love.
The Washington Post ran two interesting pieces today about the recovery efforts in Louisiana and Mississippi from the devastation wrought by the hurricanes.
Michael Powell's long report on the vast problems continuing to face Mississippi's Gulf Coast communities should discourage any Pollyanna-types reading it.
The Post's editorial is fairly level-headed and practical in describing a few of the more promising approaches to reconstructing New Orleans. The last passage, however, while appropriately focused on the responsibilities of Louisiana officials, also finished on a somewhat jarring note:
I respectfully suggest that the impetus for restoring the City of New Orleans should not be centered upon bringing back to the city the folks who were forced to abandon it.
I hasten to add that if those folks want to return, great for them, and great for the city. Nonetheless, the point of all the billions of Federal dollars in aid should not be simply to bring 'em all back. The goal should be far more broadly defined.
NOLA had more than its share of longstanding problems before Katrina. Among other issues, the crushing poverty, persistent violent crime, and the constant, low grade fever of official corruption combined to discourage old businesses to stay and new businesses to locate there. Newspaper stories from cities and towns where Katrina refugees relocated show that many of these folks are discovering how much better their lives could be if they stayed where they are now. Having now seen that the Big Easy's problems are not the norm everywhere else, most of these former residents are going to demand far more than levee repairs in order to be convinced to go back.
However awful the devastation that hit New Orleans and the rest of the Gulf Coast, I'd be more comfortable with the recovery effort if the folks in charge openly recognized the situation for the opportunity it presents to clear up some of these systemic issues. If their plans and actions showed that they are making a genuine effort to improve the schools, the criminal justice system, and the business climate beyond the tourism industries, then plenty of Katrina's victims will be encouraged to return--and a lot of other hopeful people would join them.
The City of Rehoboth Beach is moving forward with an idea to update one of the more interesting fiscal limitations in its City Charter.
The Charter puts a limit on the city’s ability to borrow money without a taxpayer referendum at $2 million. According to a recent news story, the new proposal, generated in part by the ongoing Streetscape project, would raise that limit to $6 million. The change could be enacted by the Delaware General Assembly during the next legislative session.
All municipal charters are subject to change by the state legislature, subject to a two-thirds vote by both Houses. Sometimes city governments quietly seek these changes from the legislators, instead of directly asking their residents to approve the charter change.
Not everyone is a huge fan of direct democracy, y'know.
I’d be happy to support this charter change if the Commissioners would also seek (and then act upon) a separate update to Rehoboth’s Charter—namely, Article 29 a. 30.
This provision limits the property tax that the City can collect to a total of $1 million from all taxable parcels in the square-mile, oceanfront municipality.
This section hasn’t been changed since 1976, and it’s past due. The City’s current property tax system, based on a general re-assessment last adopted in 1968, now brings in just below the million-dollar limit.
City officials often use this limit to justify their failure to reassess all properties, since there are other statutory limits on how much taxes can be raised to pay for the reassessment. They also trot out this revenue limitation to explain away the fact that a truly startling percentage of the city’s revenue base is dependent upon parking meter revenues and other taxes and fees paid by folks from out of town.
How convenient, especially for city residents who’ve lived in Rehoboth since at least, oh, I don’t know, 1968.
If the City simply updated the total tax limit to match inflation’s effects since 1976, the new limit would be just over $3.4 million.
We could just round that number to $3.5 million, and start re-thinking how the City divides up its tax burden.
After all, as one of the Commissioners said about their current debt-limit idea,
Howzabout we just add one more item on that to-do list, then?
This was time-consuming, but a lot of fun to make. It tasted great, too, he said modestly.
Liberally season the chicken pieces with Creole seasoning and black pepper.
Heat two tablespoons of olive oil in a large heavy sauté pan, and cook the celery and bell pepper for a few minutes until softened. Add another tablespoon of olive oil to the pan, and sauté the chicken pieces in the mixture for a few minutes until lightly browned. Remove the mixture from the pan and set aside.
Heat the chicken stock with half of the white wine (3/8 cup) in a saucepan until just below boiling, and lower to simmer.
In the sauté pan, add the remaining tablespoons of olive oil, and cook the onions and garlic together for a few minutes until softened. Lower the heat to simmer, add the rice, and cook for a few minutes until the rice is completely coated. Add the rest of the wine to the pan. When the wine reduces to half its original volume, begin adding the chicken stock to the rice in 1/3 cup increments, stirring frequently as the stock is slowly absorbed by the rice. Wait until each increment is nearly absorbed before adding the next 1/3 cup. This process should take at least 20 minutes.
When the stock is fully absorbed, add to the risotto the seasoned chicken/pepper/celery mixture, along with a light dusting of parsley flakes and paprika. Then mix in the butter and the parmesan cheese, stirring completely. Remove from heat and let it sit covered for a few minutes.
Serve in pasta bowls. This should be enough for 3-4 people, depending on what else is for dinner.
This morning I posted my most recent golf book review, which you can read here.
Chris Millard's Golf’s 100 Toughest Holes is a coffee table book that could generate some fun arguments about his selections.
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