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Let's suppose this is upstate New York. A homeowner has a floor drain
in the basement, which may or may not connect to the storm sewer
ditch out by the street. This is the exit point for water from the
washing machine and a utility sink. All waste water from the first
floor goes to the septic tank. The house is 50 years old.
The town passes a storm-water ordinance making this arrangement
illegal, not only for new construction but for existing construction.
Connecting the washer and sink to the septic thank would cost about
$1500 according to a plumber, for pipes and a pump. On top of this
would be operating and maintenance costs for the pump.
Does the homeowner have any property rights in the existing setup?
Has the homeowner's private property been taken for public good
without compensation?
Even if the homeowner has a case, is it likely to cost more to pursue
than the homeowner would recover?
--
If you e-mail me from a fake address, your fingers will drop off.
I am not a lawyer; this is not legal advice. When you read anything
legal on the net, always verify it on your own, in light of your
particular circumstances. You may also need to consult a lawyer.
Stan Brown, Oak Road Systems, Tompkins County, New York, USA
http://OakRoadSystems.com
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Stan Brown wrote:
[statute forces costly mods to gray water system]
Does the homeowner have any property rights in the existing setup?
Has the homeowner's private property been taken for public good
without compensation?
This is one of those cases like if Social Security is 'legal' or not.
You got guys running around MT, ND, SD, and WY who make good cases that
it's not but if they try to not pay the tax, they just get run over. A
court just will not hear their case.
I can say that what you've hit is very common and deemed necessary by
the State and other governments so, likewise, I doubt you'd get a
hearing because the outcome would be against the public interest if you
should win.
We're facing the same in one of our houses. When the well / septic
system was initially put in, there were virtually no regs on it. However
today there are regs which must be adhered to if the house is to be
transferred. So we're looking at $8k - $15k to upgrade the well / septic
before we can sell the house.
In your specific case, I'd say if you must have a legal reasoning, you
have not had a taking because you have no 'right' to discharge. That is,
you have no equity in the discharging of gray water into the public system.
Even if the homeowner has a case, is it likely to cost more to pursue
than the homeowner would recover?
I'd say that's a slam dunk obvious 'yes'.
-paul
ianal
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On Sat, 08 Mar 2008 07:57:49 -0500, Stan Brown <the_stan_brown@fastmail.fm>
wrote:
Let's suppose this is upstate New York. A homeowner has a floor drain
in the basement, which may or may not connect to the storm sewer
ditch out by the street. This is the exit point for water from the
washing machine and a utility sink. All waste water from the first
floor goes to the septic tank. The house is 50 years old.
The town passes a storm-water ordinance making this arrangement
illegal, not only for new construction but for existing construction.
Connecting the washer and sink to the septic thank would cost about
$1500 according to a plumber, for pipes and a pump. On top of this
would be operating and maintenance costs for the pump.
Does the homeowner have any property rights in the existing setup?
Yes.
Has the homeowner's private property been taken for public good
without compensation?
That depends on whether a court views the regulation in question as
taking property or simply abating a common law nuisance or noxious
use of the property.
Since it may actually be illegal to discharge grey water like this,
it's probably within the state's authority to regulate against this.
Even if the homeowner has a case, is it likely to cost more to pursue
than the homeowner would recover?
It comes down to whether the burden on the property is so substantial
that it effectively deprives the owner of use.
"Whether regulatory statute substantially advances legitimate state interest is
not valid method of identifying regulatory takings for which just compensation
is required; such test does not address magnitude or character of burden
imposed, nor does it assist in identifying those regulations whose effects are
functionally comparable to government appropriation or invasion of private
property." Lingle v Chevron U.S.A., Inc. (2005, US) 161 L Ed 2d 876, 125 S Ct
2074, 18 FLW Fed S 303, on remand, remanded (2005, CA9 Hawaii) 2005 US App LEXIS
14321.
It seems if the cost of fixing the problem is $1,500, it could not even be
possible to litigate the issue for even an order of magnitude greater than that
amount.
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Paul Cassel <pcasselremove2@comremovecast.net> wrote in
news:gkk7t3958rf15704sm8bnfoq4v292krmi5@4ax.com:
Stan Brown wrote:
[statute forces costly mods to gray water system]
This is one of those cases like if Social Security is 'legal' or not.
You got guys running around MT, ND, SD, and WY who make good cases
that it's not
A lot of guys may be running around various states making cases that Social
Security is illegal, but none of these is a "good" case. The Supreme Court
ruled on the legality of Social Security in the 1930s.
but if they try to not pay the tax, they just get run
over. A court just will not hear their case.
Hard to believe, given how "good" their cases are, eh?
<snip>
-paul
ianal
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In article <1i25t3l7cmj8q9mgd5ko03pneje1v38kl1@4ax.com>,
Stan Brown <the_stan_brown@fastmail.fm> wrote:
Let's suppose this is upstate New York. A homeowner has a floor drain
in the basement, which may or may not connect to the storm sewer
ditch out by the street. This is the exit point for water from the
washing machine and a utility sink. All waste water from the first
floor goes to the septic tank. The house is 50 years old.
The town passes a storm-water ordinance making this arrangement
illegal, not only for new construction but for existing construction.
Connecting the washer and sink to the septic thank would cost about
$1500 according to a plumber, for pipes and a pump. On top of this
would be operating and maintenance costs for the pump.
Does the homeowner have any property rights in the existing setup?
Sure. At a minimum, he owns the piping on his property. <grin>
You will find, if you dig deep enough, that one _pays_ for the privilege
of 'connecting to' the city sewer system, and ongoing fees for the use
thereof (frequently collected as part of the water bill, and based on the
amount of water used.)
If you're _not_ connected to the city sewer system, then you are discharging
on/into the ground, which may happen to run into the storm-sewer system.
There are very clear "public health and welfare" considerations for
governmental prohibitions or restrictions on such 'used' water exiting
your property.
It is 'somewhat more arguable' with regard to prohibiting 'untreated
discharge' onto ones own property. However, by looking at all the cases
of widespread groundwater pollution from industrial sources, there is a
solid argument to be made that such behavior has demonstrated impacts that
extend beyond the lot-line, and is thus a legitimate target of governmental
action.
If there are _completely_separate_ 'storm' and 'sanitary' sewer systems,
then one doesn't have to go through the sewage treatment process for the
water in the storm system. This can be a substantial cost savings to
the operator. Where there is 'co-mingled' usage, or only a single combined
system, then _all_ the water has to be 'treated' before release -- this
requires much larger (tax-funded) facilities, with significantly higher
(tax-funded) costs.
Has the homeowner's private property been taken for public good
without compensation?
_What_ property ?? It seems like the city is simply refusing to 'carry
away' _his_ property -- the waste water -- that he no longer wants to
keep.
He simply has to find a new way to throw away his trash -- the city isn't
going to haul it off 'for free' any more. :)
Even if the homeowner has a case, is it likely to cost more to pursue
than the homeowner would recover?
I'd bet on it. *grin*
The city _undoubtedly_ has to meet state and/or federal standards for
'water quality'. If they can't eliminate the cr*p before _entering the
'storm' system they have to have the sewage treatment capacity to deal
with it 'on the back end'. Want to *guess* who's going to pay for those
additional costs? <evil grin>
On that note, such a system has to be 'big enough' to hold and process
the *peak* water volume that would happen during the worst rain-storms.
household generation is fairly predictable, rainfall (over the short term)
is *not*. Hence it takes _much_ bigger (read "way more expensive")
systems to handle the storm run-off. Yeah, only 'some' of it is contaminated
and needs to be processed, but there ain't no way to sort it out when
it runs in the same pipe. (this is getting _way_ off the strictly legal
issue, but it is the 'why' for the prohibition. You can pay the plumber, or
you can pay the government; *believe*me*, it's cheaper to pay the plumber!)
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On Mon, 10 Mar 2008 07:48:40 -0400, bonomi@host122.r-bonomi.com
(Robert Bonomi) wrote:
_What_ property ??
The property would be part of the value of the house. The city has
diminished the value of his house by the amount that it will cost an
owner to comply with this new regulation.
But I think there are much stronger cases than this one where the
owner still loses. It bothers me too, especially those stronger
cases, like I think it bothers Paul.
It seems like the city is simply refusing to 'carry
away' _his_ property -- the waste water -- that he no longer wants to
keep.
He simply has to find a new way to throw away his trash -- the city isn't
going to haul it off 'for free' any more. :)
If you are inclined to email me
for some reason, remove NOPSAM :-)
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Deadrat wrote:
A lot of guys may be running around various states making cases that Social
Security is illegal, but none of these is a "good" case. The Supreme Court
ruled on the legality of Social Security in the 1930s.
I can't repeat their arguments because it's been a number of years, but
they struck me as sound if a bit excessive in original intent sort of way.
Hard to believe, given how "good" their cases are, eh?
Easy for me to believe. The courts hear only cases they wish to hear and
then, at least in the case of higher courts, decide based what they they
is the appropriate outcome.
Frex, Marshall in arguing Brown cited various studies showing that
separate schools meant a worse education outcome for black kids. The
court agree. Neither Marshall or that court actually NAMED a single
study. I ask you to show me those studies Marshall claimed (and the
court said were there) which support this.
In this case, like in so many others, the courts decided on an outcome
and then fetched a case as an excuse. Likewise, I find it perfectly
reasonable to believe that courts don't want to deal with a solid legal
argument against SS because they don't want to rock that particular boat.
-paul
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On Tue, 11 Mar 2008 06:58:19 -0400, Paul Cassel
<pcasselremove2@comremovecast.net> wrote:
. . . .
Easy for me to believe. The courts hear only cases they wish to hear and
then, at least in the case of higher courts, decide based what they they
is the appropriate outcome.
Frex, Marshall in arguing Brown cited various studies showing that
separate schools meant a worse education outcome for black kids. The
court agree. Neither Marshall or that court actually NAMED a single
study. I ask you to show me those studies Marshall claimed (and the
court said were there) which support this.
. . . .
The plaintiffs' brief in Brown is reproduced at
http://www.pbs.org/beyondbrown/brownpdfs/appellantbrief.pdf. On page
10, the brief refers to an appendix identifying the research. I have
not yet located the appendix.
Daniel Reitman
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In article <4dpct3letlga67t18f05ktutg5d8vji4kf@4ax.com>, pcasselremove2
@comremovecast.net says...
Frex, Marshall in arguing Brown cited various studies showing that
separate schools meant a worse education outcome for black kids. The
court agree. Neither Marshall or that court actually NAMED a single
study.
Whoever told you that didn't read the decision.
I ask you to show me those studies Marshall claimed (and the
court said were there) which support this.
Footnote 11 of the Brown decision itself cites:
K. B. Clark, Effect of Prejudice and Discrimination on Personality
Development (Midcentury White House Conference on Children and Youth,
1950); Witmer and Kotinsky, Personality in the Making (1952), c. VI;
Deutscher and Chein, The Psychological Effects of Enforced Segregation:
A Survey of Social Science Opinion, 26 J. Psychol. 259 (1948); Chein,
What are the Psychological Effects of [347 U.S. 483, 495] Segregation
Under Conditions of Equal Facilities?, 3 Int. J. Opinion and Attitude
Res. 229 (1949); Brameld, Educational Costs, in Discrimination and
National Welfare (MacIver, ed., (1949), 44-48; Frazier, The Negro in the
United States (1949), 674-681 And see generally Myrdal, An American
Dilemma (1944).
--
josh@phred.org is Joshua Putnam
<http://www.phred.org/~josh/>
Braze your own bicycle frames. See
<http://www.phred.org/~josh/build/build.html>
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Paul Cassel <pcasselremove2@comremovecast.net> wrote in
news:4dpct3letlga67t18f05ktutg5d8vji4kf@4ax.com:
Deadrat wrote:
I can't repeat their arguments because it's been a number of years,
but they struck me as sound if a bit excessive in original intent sort
of way.
Please forgive me if I don't take your word for this given your ignorance
of the workings of the US court system in general and of Brown v Board in
particular.
Hard to believe, given how "good" their cases are, eh?
Easy for me to believe. The courts hear only cases they wish to hear
and then, at least in the case of higher courts, decide based what
they they is the appropriate outcome.
US District Courts must hear every proper case brought before them. By
"proper," I mean that there is a valid, timely legal issue, the
plaintiffs have standing, and the court has jurisdiction. US Courts of
Appeal must consider every case appealed to them. The Supreme Court, on
the other hand, chooses the cases it wishes to hear.
By "appropriate outcome," I assume you mean that the judges or justices
decide cases based on their personal feelings and not the law. Perhaps
you could back up this expansive claim.
Frex, Marshall in arguing Brown cited various studies showing that
separate schools meant a worse education outcome for black kids. The
court agree. Neither Marshall or that court actually NAMED a single
study. I ask you to show me those studies Marshall claimed (and the
court said were there) which support this.
I'm going to have to assume that you know little about the case and
haven't read Marshall's brief. Marshall's brief outlined the legal basis
for overturning the District Court's ruling. The District Court had
ruled, finding as a matter of fact, that the segregation of schools had a
deleterious effect on black children. This wasn't a point of contention
for the Supreme Court. The District Court had ruled that in spite of its
finding, segregation wasn't illegal because the facilities were roughly
equal. Marshall argued that the law didn't support this outcome.
The Court didn't have to name (or NAME, if you prefer) any studies about
the effects of educational segregation, however, plenty of evidence for
such was presented to the Court. You may go here
http://curiae.law.yale.edu/pdf/347-483/021.pdf
to read the amicus brief of the ACLU, which details the studies you claim
weren't presented.
In this case, like in so many others, the courts decided on an outcome
and then fetched a case as an excuse.
I'm having trouble parsing this. What does "fetched a case as an
excuse" mean?
If you mean that in Brown v Board the Court adopted a position based on
evidence not presented, then you're simply wrong. Perhaps you merely
mean the the Court reached an erroneous concluson (or one you don't
like). That's different.
I'm assuming by "like in so many others," you simply mean that you have
no other cases in mind.
Likewise, I find it perfectly
reasonable to believe that courts don't want to deal with a solid
legal argument against SS because they don't want to rock that
particular boat.
Well, of course you do. But (see above) you're an ignoramus.
-paul
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Paul Cassel <pcasselremove2@comremovecast.net> wrote:
.... Likewise, I find it perfectly reasonable to believe
that courts don't want to deal with a solid legal
argument against SS because they don't want to rock that
particular boat.
The courts did deal with it in Helvering v. Davis. If you
can raise an argument not settled by that case, go for it.
Dick
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