September 13, 2003
I wouldn't bet on our chances
 

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 blow.

The Corps of Engineers is to oversee another 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, concerning the Massachusetts Turnpike.

[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 Boston.

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 a flawed 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 amount.

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 $60 million.

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 highway speed 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 overhead.

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 ourselves.

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 about new residential building standards adopted by several communities in North Carolina's Outer Banks. The two counties and several town governments had their reasons:

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 streets.

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 treatment systems.

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 comprehensive plan:

The 1990 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 matter

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.

VoiceStream Minneapolis, Incorporated may have learned that lesson as a result of the 33-page 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 possible.

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 transmission towers.

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.

VoiceStream figured 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 district.

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:

Although several 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 desired design.

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 argument:

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 § 332(c)(7)(B)(i)(II).

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 issues. Eventually 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.

Nonetheless, his 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, the 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 evil”).

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 agriculture.

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 per hour.

I always enjoy seeing these convoys—especially when I’m in the other lanes, heading in the opposite direction.

Convoys of harvesters such as these will be a common sight in Sussex County over the next 10 weeks or so.

September 7, 2003
Traffic report

September 6 marked the 20-month anniversary of this site. As of that date, 146,401 visitors have viewed 188,950 pages.

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