Are courts environmentally uninformed?

The recent Texas Supreme Court opinion dealing with beach erosion has gotten me thinking (again) about whether our courts have kept pace with our vastly increased knowledge of how various ecosystems work and are interrelated and how we continue to depend on them for our very existence. I question whether judges are giving adequate weight to the wealth of scientific knowledge that has appeared since the publication of Rachel Carson’s Silent Spring.

In this particular case, the majority in a sharply divided 5-3 decision tried to make a distinction between a shift in shoreline that occurs gradually (erosion) and one that occurs suddenly (avulsion). In the case of the former, the state’s easement for public access will move with the erosion; but now the court has held the easement will be extinguished in the case of avulsion.

Port Aransas, Texas

Geologists have been quick to point out that there is no bright line between erosion and avulsion (and that the latter is a concept typically used in riverine not coastal situations). James Gibeau, a coastal geologist with the Harte Institute, went even further accusing the justices of being “. . . way out of step with mainstream science”.

The aftermath in this instance is the significant weakening of Texas’ 53-year old Open Beaches Act and the potential for lengthy and costly legal disputes over whether a particular shoreline movement is the result of erosion or avulsion. More troubling, however, is a pattern in judicial decisions in which courts seem reluctant to embrace the most current scientific understanding of our natural world. That failure puts the environment and all of us who depend on it at unnecessary risk.

Stadium blowback – at last?

Updated: April 24, 2012

Updated to reflect bill being sent to floor of house for vot.

Updated: April 21, 2012

Updated to reflect action by senate committee.

Earlier this week the House Government Operations Committee in Minnesota voted against the proposed funding measure for a new $975 million Vikings stadium. After years of wrangling it had appeared that the measure, which is strongly backed by Governor Mark Dayton, was poised for passage. It would have provided $398 million in state funding raised from charitable electronic gaming alongside $427 million from the team and NFL (relatively generous compared to many recent stadium deals) and $150 million from the city of Minneapolis.

Proposed Vikings stadium

Like many states, Minnesota has been wrestling for the past several years with extraordinary budget challenges and this measure had difficulty garnering any support from members of the governor’s DFL party or even those from the host city on the committee. Having already funded a baseball stadium, a university football stadium (Query: Why couldn’t the Vikings have shared that stadium with the Gophers as the Steelers do with Pitt?) and a hockey/basketball arena, this was apparently the straw that broke the camel’s back.

The NFL is left with few options other than to raise the specter of relocation (LA anyone?) and trot out Commissioner Roger Goodell to issue dire warnings about whether the market is adequately supporting the Vikings. One wonders why 15 years of sell-outs is not considered sufficient “support” by the league.

One local observer has suggested this vote may signal the end of the era of publicly funded sports facilities. Given the track record of each of the four major sports in garnering billions of dollars of public funds for these sports palaces, I am not so sanguine about his prediction. Dave DeLand does offer some compelling statistics. According to him, the inflation adjusted cost of the current 1982 stadium was $161 million; the projected cost for the proposed stadium is over $1 billion. I think it is fair to ask whether NFL owners would have engaged in a stadium “arms race” over the past two decades (perhaps best epitomized by Jerry World in Dallas) if public dollars had not been so readily available. Would we be so much worse off as a nation if we were still watching games in stadiums and arenas with 1960s era comfort levels?

DeLand points out that in 1991 the NFL’s Fan Cost Index (i.e., the cost of a family of four attending a game) was $151.55. After two decades of public funded stadiums, the Index has skyrocketed to $427.21. So taxpayers have paid for the privilege of paying even more to see their favorite teams play.

One could argue that sports facilities are an addiction that U.S. cities cannot afford but which they cannot resist. The real action today isn’t in major league cities, but in second and third tier cities which are trying to emulate their big brothers in a kind of perverse trickle down fashion. For example, El Paso (!) elected officials are considering a ballot measure that would provide $150 million for an arena, $45 million for a minor league baseball stadium, $50 million for upgrades to the Sun Bowl, and perhaps another $100 million for a soccer stadium.

I suspect that Minnesota will find a way to pass this measure to avoid losing its beloved Vikings. In fact, days after the house committee rejection, a senate committee voted to approve a similar funding measure giving the project renewed life. Subsequently the bill was also revised in the house with an unrecorded positive voice vote in a different committee paving the way for a floor vote.

No single city is likely to be able to stem the tide of public financing for sports facilities. Doing so would take unprecedented concerted action by a group of several dozen cities or legislative action at the federal level. Neither seems likely. A broad-based, multi-jurisdictional taxpayer revolt may be the only way to force a reexamination of how sports facilities are funded in this country.

Regulatory takings – and givings

One of the favorite targets of those who are concerned with protecting private property rights is so-call regulatory takings. In Lucas v. South Carolina Costal Council, 505 U.S. 1003 (1992), the U.S. Supreme Court held that a land use regulation which eliminates all economically beneficial uses of a parcel constitutes a taking and just compensation must be paid to the landowner by the jurisdiction that enacted the regulation.

Lots that were the subject of the Lucas case

For property rights advocates the Court did not go far enough; so they have resorted to legislative efforts in numerous states. Some of the more noteworthy measures include those in Oregon, Florida, Arizona, and Texas have enacted measures either legislatively or by referendum that require compensation be paid when a regulation reduces the value of a parcel of property by a state amount (e.g., 25% diminution in Texas). There is a wealth of literature about the effectiveness of these measures, their impact on land use regulation and the lawsuits they have spawned.

Most recently this issues has been raised in Maine where the legislature is wrestling with a proposed regulatory takings bill that would required compensation when 50% or more of a parcel’s value is lost due to regulation.

Delving into all of that is not the purpose of this post. I simply want to ask if landowners should be compensated when a land use regulation diminishes the value of their property, should the state or local jurisdiction be compensated by landowners when they increase zoning densities or construct infrastructure at public cost that increases the value of a private party’s property?

The truth of the matter is that in its natural state the value of most land is attributable to one’s ability to raise crops, harvest timber, harness water power, and extract minerals. In order to make use of land for anything other than extremely low density residential development requires a combination of infrastructure that is usually publicly funded (e.g., roads, sewer, storm water, water, electricity, telecommunications, schools) and regulations that bestow the right to make use of this infrastructure for various land uses and at various densities. All of this focus on how land use regulation may reduce the value (though not render it without economic value) of individual parcels of land loses sight of the forest for the trees as it ignores the fact that much of the value that remains is in fact the result of public investment and public regulation.

Texas Supreme Court tries to play King Canute

Legend has it that King Canute of Denmark demonstrated his limitations to his courtiers by sitting at the edge of the sea and commanding the tide to stop. When the water inevitably continued to rise and dampened his feet, he contrasted his limited powers with the unlimited powers of God.

In an opinion announced this week, the Texas Supreme Court has asserted its power to stop nature and the oceans from redrawing property lines. The Court held that while hurricanes may change the physical location of beaches that will not change the location of the public portion of the beaches as they existed prior to the hurricane. Of course, those public portions may well be underwater permanently as a result of the storms. The upshot of this ruling is that the State of Texas will not be able to enforce its Open Beaches Act which had been used to reestablish public access in the wake of hurricanes even if it meant requiring landowners to demolish structures that were encroaching on the water’s edge post-storm.

West Galveston beachfront after Hurricane Ike

This was the rehearing of the Court’s initial decision which sparked an outcry from state officials and environmental groups alike. The result was the same though the three dissenting judges voiced strong objections.

The Court gives the State two options: (i) reacquire the public beach access easement by paying the landowner or (ii) relinquish public beach access in the affected area. Given the cost of purchasing such easements and the dynamic nature of beachfront ecosystems, over time this ruling is likely to dramatically restrict the ability of Texas residents to access the oceanfront.

Stadiums as historic landmarks

I happened across an article today about the City of San Antonio moving towards designating Alamo Stadium as a city historic landmark. With my curiosity piqued, I soon learned that this stadium was built as a WPA project during the Depression and with a seating capacity of 23,000 is the largest high school football stadium in Texas.

This got me wondering about how many stadiums (and arenas) have been designated as historic landmarks by city, state or federal governments. It doesn’t appear that there is a master list of such designations (or at least I have not come across one). But I did learn that Harvard Stadium, the Yale Bowl, the Rose Bowl and the Los Angeles Memorial Coliseum all have received the most prestigious such designation as National Historic Landmarks. I find it a bit ironic that two Ivy League facilities and two from Los Angeles make up this quartet. Conversely, Soldier Field lost its National Historic Landmark status as a result of the massive renovation completed in 2003.

Before you ask, yes, Fenway Park is a National Historic Landmark; but you may be surprised to learn that designation was made only this month! Another iconic baseball stadium, Wrigley Field, was deemed eligible for designation back in 1987 but has not requested it be formalized in the ensuing quarter century.

One wonders which, if any, of the current generation of sports facilities will be around long enough to be considered as candidates for historic preservation.



What should the useful life of a sports facility be?

Residents of Orlando will be able to watch the implosion of the Amway Arena on March 25. Completed in 1989 at a cost of $110 million and paid for entirely with public funds, the arena was the home to the NBA Orlando Magic for 21 years before moving to the $500 million Amway Center.

Original Amway Arena

Should cities expect to have to replace their sports facilities every 20 years; and, if so, how should this be taken into account when they make the initial decision to build a sports facility? Other pieces of civic infrastructure (e.g., courts, libraries, museums, hospitals) are not regularly torn down after 20 years. Furthermore some of our most treasured sports venues – Fenway Park, Wrigley Field, Dodger Stadium, Madison Square Garden – have remained viable for decades longer than that.

Perhaps municipalities need to pay more attention to the lifecycle of their sports facilities when the negotiate financing and use agreements at the outset to insure that they are properly maintained and keep up to date. In the long run, such an approach is likely to save taxpayers a great deal of money.

Sports facilities as infrastructure

Should sports facilities be thought of as pieces of a metropolitan area’s infrastructure rather than as another building type like shopping centers or multi-family housing? Doing so might enable city officials and taxpayers to take a more honest and realistic approach to analyzing the value of a proposed sports facility project.

In Waco, Texas, Baylor is planning to construct a new $250 million football stadium on a site along the banks of the Brazos River. Proponents of the project hope that it will jump start development of a long delayed effort by Waco to create their own version of San Antonio’s famed River Walk. 

Putting aside for the moment whether institutions of higher learning have lost there way in the swamp of college athletics, it seems to me that whenever the public sector makes an investment of the size required for any sports facility it ought to be accomplishing multiple public policy objectives. One such objective is advancing a city’s capital improvements program for infrastructure. Perhaps the best examples of the connection between sports facilities and urban infrastructure are the way in which various Olympic host cities have used the games as a catalyst for spurring completion of transit, highway, park, and other infrastructure projects.