Engaged in Resilience But Flirting with Disaster

The Section’s Annual Meeting sessions began with a panel on how communities can deal with what nature brings their way and become resilient to same. Section member Edward Thomas, President, National Hazard Mitigation Association, Quincy, Massachusetts, moderated this session.

Dr. Jennifer Jurado of Fort Lauderdale, Florida, first described the South Florida Regional Climate Compact and Action Plan. Land use planning now has both the city and the developer take responsibility for measured response to rising sea levels, groundwater, and floodwater together with resiliency planning. This was needed to respond to rises in both groundwater and floodwater elevations.

Rick Sacbibit, P.E., of FEMA’s Washington, D.C., office, described the process of mapping floodplains and the data behind the national Flood Insurance Rate Maps, which are intended to affect construction practices. Infrastructure presents its own challenges in that a workplace built above a floodplain may be unreachable by roads built years ago well below that elevation.

John Marshall, Assistant Professor of Law at Georgia State, spoke of limitations in the federal and state response to disasters, including recovery. He noted the role of local zoning codes, such as allowances for variances from buffers and setbacks, as allowing unforeseen “collateral damage” to adjoining structures. Mr. Marshall has prepared an index of state and local laws on this subject.

Complete speakers’ biographies are available at https://www.americanbar.org/content/dam/aba/events/state_local_government/2017/2017%20Annualmaterials/Bios/engagedcombined.pdf.

Tomorrow’s Power Grid Today: Innovative Energy Solutions

Section member Alexander Judd of Day Pitney LLP, Hartford, Connecticut, moderated this session. The speakers explored how new forms of energy are generated, stored, and used and their effects on various uses of real property.

Christopher Dann of PriceWaterhouse Cooper’s San Francisco office described the current and future state of national energy infrastructure from a financial perspective. Many generating plants are near the end of their useful lives; nuclear powered electric generation may be gone by 2030; and coal powered generation is threatened by very low prices for natural gas. He described the macroeconomics of investments in renewable sources of energy.

Adam Perque of Direct Energy North America Distributed Energy, New York City, addressed the relationship between resiliency, reliability, facilities sustainability, and how the economics of all those measures factor into construction, reconstruction, and maintenance of energy generation and transmission infrastructure.

Ellen Zielinski and Sergey Shabalin of the New York City Department of Citywide Administrative Services, Energy Management, described how their agency partners with 28 other city entities and funds 20 different energy related positions in those entities to plan to reduce carbon emissions citywide by 2025 and to meet the Paris Accord goals for same by 2050, independent of federal efforts. Carbon emissions in the city are declining, notwithstanding continued population growth, with the aid of demand reduction programs.

John Shipman of Con Edison’s Electric Vehicle Programs, New York City, compared his work to that of a “distribution system platform provider.” Electric motor vehicles can be seen as power storage on wheels. Motor vehicles are the source of 40% of greenhouse gas emissions in New York. The issue for electric power generators is how to manage the highly variable loads placed on the grid by charging electric vehicles, including load control using “smart home” charging devices, curbside charging with the load managed by the city, and use of the vehicles’ batteries for other purposes than motor transport.

Speakers’ complete bios are available at https://www.americanbar.org/content/dam/aba/events/state_local_government/2017/2017%20Annualmaterials/Bios/tomorrowcombined.authcheckdam.pdf.

Cyberethics: Understanding Your Ethical Obligations in a Cybersecurity Breach

Lai Sun Yee, Section member and a principal in the FEMA Region 2 Office in New York City, moderated this session with professionals from PriceWaterhouse Coopers (PWC), a Section activity sponsor.

David Wheeler, partner at Chapman Spingola, Chicago, addressed ABA Model Rules and Canons of Ethics and presented a framework for principles and best practices in cybersecurity.

Devika Kewalramani, partner and co-chair, Legal Ethics and Law Firm Practice at Moses & Singer LLP, New York City, spoke of a reasonable care standard as to use of cloud storage for client communications and documents. She discussed New York State Bar opinions on the subject and California and ABA ethics opinions on conducting research on a client matter and client communications over a public WiFi network.

Douglas Bloom and Neal Pollard of PWC in New York City, then conducted an interactive “tabletop exercise” with the audience on dealing with anonymous tips about leaks or hacks of sensitive client information, including the proper response when the media learns of and is about to publish the information. The exercise included discussion of the means and methods of internal investigations and the proper use of outside counsel, forensics, and public relations.

The Section has available to its members a wallet card and checklist for cybersecurity measures. To obtain a copy, follow this link: https://www.americanbar.org/groups/state_local_government/Cybersecurity.html.

Speakers’ complete bios are available at https://www.americanbar.org/content/dam/aba/events/state_local_government/2017/2017%20Annualmaterials/Bios/Completebios.pdf.

Sanctuary Cities—The Role of State and Local Governments in Addressing Undocumented Immigrants

Section Vice-Chair Ron Kramer, partner, Seyfarth Shaw LLP, Chicago, moderated this session; it was attended by members of the press and was reported on widely.

Bitta Mostofi, New York City Mayor’s Office of Immigrant Affairs, explained that New York City is proudly immigrant-inclusive and prepared to defend and advocate for immigrant New Yorkers who represent nearly 40% of the population. The city has achieved record-low crime alongside record-high immigration in part thanks to smart policing strategies by the NYPD, including building trust with immigrant communities. The city will continue to partner with federal immigration enforcement but not at the cost of breaking up families or making New York City less safe by creating fear in immigrant communities that limits their trust and their cooperation with law enforcement.

Michael Hethmon, senior counsel of the Immigration Reform Law Institute (IRLA), posited that the regulation of immigration is exclusively a federal matter, with limited invitations to state and local jurisdictions to cooperate. He acknowledged that some municipalities are advancing claims of Tenth Amendment immunity against federal action and claimed violations of the Fourth Amendment when local police engage in civil detentions of aliens on behalf of the Department of Homeland Security. IRLA believes that well-developed Supremacy Clause doctrine in the field of immigration makes these claims illusory.

Dennis Herrera, attorney for the City and County of San Francisco, distributed copies of pleadings filed to enjoin the Executive Order on sanctuary cities. San Francisco has been joined by some 600 jurisdictions across the country in adopting similar laws to protect against police “holds” of suspected illegal immigrants. The President lacked the legal and constitutional authority simply to withhold federal funding or try to place conditions on funding that was approved by Congress without such conditions.

Speakers’ complete bios are available at https://www.americanbar.org/content/dam/aba/images/state_local_government/2017%20Annual%20Materials/1Combined.pdf.

Pleadings filed by Mr. Herrera’s office are available at https://www.americanbar.org/content/dam/aba/events/state_local_government/2017/2017%20Annualmaterials/Completedsanc.pdf.

Murr and Beyond: Implications for Regulatory Takings.

Section member Honorable Peter Buchsbaum (ret.), now with Lanza & Lanza, Fleming, New Jersey, moderated this panel. This was a joint effort with the ABA Real Property, Trust and Estate Law Section.

The Murr v. Wisconsin panel addressed the Supreme Court’s decision on an inverse condemnation claim on the issue of the impact of a land use rule on the parcel as a whole. All four speakers had directly participated in the Supreme Court proceedings. The State of Wisconsin had deemed two separate adjoining lots, one of them improved with a house, as a single parcel under a local law that required adjoining, same ownership, undersized lots to be consolidated or “merged” as a condition of any proposal for new- or re-development. The owners argued that the rule thus deprived them of all beneficial use of the adjoining vacant parcel.

Misha Tseytlin, Solicitor General, Wisconsin Department of Justice, asserted that the decision upholding dismissal of the suit was not a real win for the state: Justice Kennedy’s opinion did not adopt the desired bright line test that the merger of the two lots required by state law conclusively established a single parcel for determining whether a taking had occurred. 

John Groen, Executive Vice President of the Pacific Legal Foundation, had argued for the property owners at the Supreme Court. He asserted that the Court’s multiple factor test would be difficult to apply in future cases. His argument was that each parcel’s legal metes-and-bounds description should be the “denominator” in comparing the value of the property before and after the alleged taking. That is to say, he argued, that the state law requiring consolidation or merger effectively eliminated all value of the smaller, vacant parcel if that parcel were considered alone. 

Nancy Stroud of Lewis Stroud & Deutsch, P.L., Boca Raton, Florida, had filed an amicus brief on behalf of the American Planning Association. She agreed with others that the Supreme Court’s test for determining the parcel as a whole and the effect of the regulation on that parcel, would be difficult for local governments to understand and implement.

Incoming Section Chair Robert Thomas of Hawaii also had submitted an amicus brief. He offered an historical perspective on the decision. He noted that Justice Scalia may have wanted to render a pro-property rights decision anticipating Hillary Clinton’s election. He believed that the court could and should have adopted a traditional test relying on the unities of description, interest, and use.

Speakers’ complete bios are available at https://www.americanbar.org/content/dam/aba/events/state_local_government/2017/2017%20Annualmaterials/Bios/combinedmurr.pdf.

Selected materials from this session are available at https://www.americanbar.org/content/dam/aba/events/state_local_government/2017/2017%20Annualmaterials/CompleteMurr.pdf.

The Sharing Economy Matures—Will State or Local Control Win?

This panel was moderated by Sharing Economy Committee Chair and Past Section Chair Janice Griffith, professor of law, Suffolk University Law School, Boston, Massachusetts, who also participated as a speaker.

Nestor Davidson first spoke to the “friction” between providers of shared services and local government regulation. Short-term residential rentals carry with them issues of multiple dwelling laws and private covenants, hotel occupancy taxes, parking, and similar neighborhood effects. Shared car services have labor and employment law implications, civil rights issues as to equal accommodation (an issue also with short-term residential occupancy), personal data protection and privacy, and liability and property insurance coverage. At least four states (Arizona, Florida, New York, and Utah) have preempted local regulation in favor of statewide laws.

Matt Gewolb, legislative director for the New York City Council, spoke of different ways of using existing local regulatory structures.

Nicole Benincasa, regulatory counsel for Uber Northeast, New York City, described the company’s approach to local regulatory efforts and shared some solutions to regulatory concerns.

Janice Griffith addressed shared economy business models and reasons for regulation. She advocated for a regional versus statewide approach to regulation. Attempts at state preemption should consider a balance between local and state interests. She believes that state statutes are the best means to address common safety and insurance issues, data collection and privacy, and equal accommodation.

Speakers’ complete bios are available at this link: https://www.americanbar.org/content/dam/aba/events/state_local_government/2017/2017%20Annualmaterials/Bios/combinedsharing.pdf.