October 23, 2012

Vol. 28, No. 2, Spring 1996

The Urban Lawyer,
Vol. 28, No. 2, Spring 1996

Publication Date: May 17, 1996

Tirza S. Wahrman, To Dredge or Not to Dredge: Navigating the Shoals of Single-Medium Analysis in the Disposal of Contaminated Sediment, 28 Urb. Law. 173 (1996).

Dredging, the "physical removal of earthen materials which gather in harbors, access channels, berthing areas, and docks," is necessary in many urban ports to maintain the necessary depths to accommodate modern, deep-draft vessels, otherwise, the insufficient depths would necessitate transportation by other means. The disposal of dredged material poses difficult challenges because (1) some sediment may be contaminated with pollutants; (2) science only recently has been able to measure minute contaminants and the health risks of such minute levels is uncertain; and (3) urban land-based sites are scarce or non-existent. Dredging and moving sediment to other ocean sites often resuspends the contaminated matter causing bioaccumulation and toxic effects in marine species harming not only that life, but the humans and other species who ingest them. Such problems have caused the Environmental Protection Agency ("EPA") to formulate regulation that restricts dredging in ports. However, such regulation may harm human and environmental health more than dredging.

The volume of heavy trucks on urban highways carrying the goods meant for port transportation can substantially affect air quality, impact roads, and traffic conditions. Such cargo diversion has been demonstrated by case studies, including the Port Newark/Elizabeth, and EPA studies to have a greater adverse impact on human and environmental health than not dredging ports. The enormous volume of exhaust from land-based transportation has a substantial effect on human health by decreasing road safety by heavy traffic congestion and increases atmospheric ozone.

Already ozone levels in major urban areas often exceed national limits causing inflammation of the lungs, respiratory irritation, and impairment of the body's immune system. Long-term studies show long-term exposure to such levels can lead to permanent lung damage. The tens of thousands of additional trucks into urban regions carrying the cargo once transported by marine vessels through ports, will only further contribute to ozone levels which presently exceed the legal threshold. Further, the substantial impact of diversion of cargo for land-based transportation may violate the National Environmental Policy Act which ensures that federal agencies are aware of the environmental impact of their decisions. The harmful effects of ozone from increased trucking outweigh the impact of the low levels of dioxin found in dredged material.

The recent regulation by the EPA in dredging port sediment results in a more harmful environmental impact by aggravating the already harmful levels of ozone in urban areas. Improved dredging technology and containment facilities for the removed material minimize the environmental impact of dredging ports and is effective in minimizing health risks rather than restricting it altogether. To best protect the environment and human health it makes more sense for the EPA to examine all potential health impacts of decisions instead of analyzing only one in isolation.

Pinkowski, Brian J., Simplifying CERCLA Defenses to Liability, 28 Urb. Law. 197 (1996).

Superfund, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), was designed by Congress to address inactive or abandoned hazardous waste facilities by holding "owners, operators, generators, and transporters" accountable and liable for all costs ranging from removal of the wastes to all incidental costs including health effects studies. Because of the wide encompassing strict liability nature of CERCLA, multiple parties are often found liable.

In determining which parties are liable and the proportion of damages each party is responsible, courts are allowed by CERCLA to employ some common law principles. However, the courts' current approach is logically inconsistent and causes confusion about the definitions and utilization of "liability" and "joint and several liability." Further, litigation strategy complicates and obscures this approach.

Currently, courts first determine whether a party is liable under CERCLA and, unless a party can prove a divisible harm, or other defenses under §107(b) of CERCLA, a party is held to be jointly and severally liable. Then a separate action is commenced by the liable parties to determine apportionment of damages. However, joint and several liability concerns apportioning damages, therefore, it makes no sense to employ a common law concept and then deny its traditional common law defense. Although parties strongly liable with "deep pockets" may prefer two actions to compel marginally liable parties to contribute to their damages in settlement negotiations, two actions waste money, create substantial needless litigation, and in no way furthers CERCLA's purposes. By keeping issues in one proceeding, certainty is established in a much shorter time frame translating into reduced transaction costs.

This article suggests a three step approach that avoids this inconsistency and inefficiency. (1) Courts should consider whether Congress intended parties in the defendant's position to be held accountable and defendants should be limited to only the § 107(b) defenses as they now are; (2) courts should consider what damages an accountable party is liable for and should look to CERCLA for guidance; and (3) courts should determine the allocation of damages among the accountable parties. Thus, the courts reasoning is structured properly, however this three step approach combines it into one action and, accordingly, defenses can be properly brought into the action for the third step without the complication of attorneys bringing them in anyway for a variety of litigation defense strategies under the current analysis. This approach will add clarity to CERCLA liability and will unlikely cause courts to reach different results in their determination of liability.

Thomas, David A., The Illusory Restraints and Empty Promise of New Property Protection Laws,28 Urb. Law. 223 (1996).

There has been much new state legislation on takings actions hoped by legislators to "placate property owners without risking compensation provisions that get out of control." The legislation seems to provide more stringent safe guards for property owners in takings actions in an environment that imposes heavy regulation on privately-held real property rights.

This article analyzes private property protection legislation of the following states: Arizona, Delaware, Florida, Idaho, Indiana, Kansas, Missouri, Montana, Tennessee, Texas, Utah, Washington, West Virginia, and Wyoming. The legislation displays a wide variety of approaches and methods to resolve governmental private property takings. Each above state's legislation is analyzed in eleven categories.

  1. Each state's legislation is summarized. For example, in Missouri, the act may require a takings analysis for any proposed rule or regulation that limits or affects use of real property and such is to be conducted by the promulgating agency and the Secretary of State gives the only required certification. In Texas, government immunity is waived in suits determining whether takings have occurred. Many of the states in this category allow judicial review in takings actions.
  2. A comparative summary is made of the statutes' various features such as whether provisions have phrases that explicitly signify private property protection.
  3. The year of enactment or taking effect of the statute is noted except Arizona's which was repealed but included for interesting comparison.
  4. The explicit or implied purposes of the acts are examined.
  5. Summary and analysis of the legislative purposes in is made in two levels. In the first, the stated or implied purposes is grouped around the concept of identifying actions resulting in takings. Three states aim to give more substantive relief to private property owners. Five states call for more evaluation or analysis. At the second level, the ultimate policy objectives of the acts are examined. Only seven states offer legislative language to express or imply a policy objective.
  6. This category looks at what agency or party the acts require action from. In Delaware, the attorney general is required to review proposed rules and regulations and state agencies must obtain such review before promulgating any rule or regulation.
  7. This category focuses on the circumstances when the above action is required. In Delaware, action is required when a rule or regulation is promulgated. In Florida action is required when a specific action of a governmental agency has inordinately burdened an existing used of real property or a vested right to a specific use of real property.
  8. Standards for inappropriate takings are discussed in this category such as takings without compensation to owners when compensation is required.
  9. The consequences for inappropriate takings may be as in Idaho where there are no consequences following from failure to comply with the act and no right to seek judicial relief that could mandate compliance. However, some states, such as Texas, may allow judicial relief and compensation including attorneys fees, costs, and expenses if the suit is successful.
  10. The judicial and administrative review processes created are explored.
  11. This category contains a graphic compilation and representation of the above data.

In conclusion, "the new acts generally require only that takings be better and sooner identified allowing the agencies or governmental entities to make better informed decisions about implementing the regulatory actions." The author questions whether these "illusory restraints" accomplish placating property owners. If not and property owners continually protest takings administration, states may have to move to similar legislation as federal proposals which try to compensate private owners with a minimum of procedural obstruction instead of merely limiting the incidences of takings and leaving conventional litigation as the only means for property owners to seek compensation as many of the new states proposals design.

White, S. Mark, State and Federal Planning Legislation and Manufactured Housing: New Opportunities for Affordable, Single-Family Shelter, 28 Urb. Law. 263 (1996).

Although decent shelter and homeownership is referred to "as the cornerstone of the American dream" and is on the rise, high costs, zoning restrictions, and inadequate local community planning leave many obstacles for lower-income and first-time buyers forcing them to struggle in attaining their dream. Manufactured housing, often referred to as "mobile homes," has increasingly become the home and shelter for many Americans and production has increased dramatically, almost 80%, since 1990. Although manufactured housing is plagued with misperceptions about its quality, safety, and compatibility, the National Manufactured Housing Construction and Safety Standards (NMHCSS), a uniform national code, has improved manufactured housing standards making them virtually indistinguishable from site-built housing. The affordabililty (approximately 50% or less of site-built homes) and high quality of manufactured housing make it a great route for lower-income and first-time buyers to attain the American dream.

The noted misperceptions of manufactured housing restrict production in some communities. Exclusionary zoning legislation and state legislation has helped "erode" some of these restrictions and remain as useful tools for this purpose. However, comprehensive planning legislation is needed to determine the level of need for housing and provides a more efficient barrier against manufactured housing restrictions than expensive and antagonistic litigation.

This article examines the recent state planning legislation's and federal legislation's (NMHCSS and Housing and Urban Development Code) impact on manufactured housing and examines fourteen states which now have legislation restricting manufactured housing discrimination. Such legislation has induced municipalities to alter their policies and balance them with affordable housing objectives. Court decisions follow the guide established by the landmark decision in Village of Euclid v. Amber Realty Company, 272 U.S. 365 (1926), which "suggested the future 'possibility of cases where the general public interest would so far outweigh the interest of the municipality that the municipality would not be allowed to stand in the way.'" Court decisions now look at municipal decisions that limit affordable public housing in a more scrutinizing fashion.

The advent of comprehensive planning legislation, developed from the legislation and case law, has helped in fighting against exclusionary zoning of manufactured housing. Manufactured housing, because of its low costs and affordability to low and moderate income households, serves as a valuable tool for the implementation of comprehensive planning legislation. Further, they allow more space for families than he traditional high-density public housing, stabilize infill neighborhoods, and upgrade housing quality. Moreover, the agility and adaptability of manufactured housing provide opportunities for designing sites that preserve open space and environmental resources. Such aid in community planning could eliminate problematic population densities and improve the implementation of strategic public transportation.

Finally, comprehensive planning legislation requires communities to identify their need for affordable housing. Once this need is established, their policies would be required to accommodate or not restrict that need. "Sound state and local planning should improve the quality of residential neighborhoods while providing needed housing opportunities for low and moderate income households." Residential property owners need not worry about manufactured housing development near their community because recent studies suggest even rental manufactured communities (which traditionally are regarded as lower quality than owned manufactured homes) do not significantly affect adjacent residential property values. Communities geared for promoting affordable housing will be able to improve the quality of people's lives and attain the American dream.

Elin, Seth J., Comment: Curb Cuts Under Title II of the Americans with Disabilities Act: Are They Bringing Justice or Bankruptcy to Our Municipalities?, 28 Urb. Law. 293 (1996).

Lack of curb cuts (ramps in curbs creating gradual downward slopes making sidewalks flush with streets) are described as the "'primary obstacle' for those with disabilities to integrate into the 'commerce of daily life.'" Title II of the Americans with Disabilities Act ("ADA") mandates public entities, namely municipalities, to modify their existing facilities, and make all future facilities and alterations handicap accessible. Curb cuts are necessary for incorporating disabled individuals into society consistent with the ADA's purpose of eliminating their intentional societal exclusion and inferior opportunities; however, curb cuts represent severe financial burdens on municipalities. Burdens courts may force these burdens with little or no regard for a municipality's financial condition. Although curb cuts are not specifically mentioned in Title II but are derived from its legislative history, the court in Kinney v. Yerusalim, 9 F.3d 1067 (3d Cir. 1993), requires curb cuts in all adjacent street corners every time municipalities resurface a street regardless of the cost.

A large segment of society is affected by ADA requirements and streets without curb cuts. For example, a Chicago Tribune reporter counted one person with either a wheelchair, walker, or cane crossing a do