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Category Archives: Ozarks

Pondering intentional flooding: why are we in this mess?

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The random aspect of tornado damage is one thing. But people have put themselves in the paths of floodwaters. Now the Missouri River’s flood is moving downstream. Who knows what it will do to the Mississippi?

But can you blame people for building homes and businesses in the floodplains? We spent billions to control our rivers and create an economy that depends on our controlling them.

Have we lost the ability to manage our environment, or we were just kidding ourselves that our engineering ability (incorporating politically-mandated compromises) would be effective?

I ponder these things in a longish essay: Unnatural disasters: flooding from managed rivers and what to do. Of course, I don’t know what to do. Maybe you have an idea.

Please read and comment.

Can a city’s utility charges be a tax? It’s a tough case to prove.

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The City of Hermann provides water, sewer, natural gas, electricity and trash pickup to its residents, allowing them no choice of providers. When the City jacked up the rates and transferred the “profits” to other City accounts, some residents resented the City’s flexing of its monopoly power. They sued, claiming that the City’s governing board had sidestepped Missouri’s constitutional requirement (Article X, sections 16- 24, known as the Hancock Amendment) that tax increases be approved by voters. The court had to decide whether a utility rate increase was a disguised tax.

Here’s an overview of the Missouri Supreme Court’s 26-page opinion in Arbor Investtment Company LLC v. City of Hermann, released May 31, 2011, in which the court determined that the  City of Hermann’s utility fees were not taxes.

The Five (or Six or Seven) Factors

The Missouri Supreme Court identified five factors in the 1991 case Keller v. Marion County Ambulance District which may be applied to distinguish user fees (not requiring a vote of the people) from a tax (which requires a vote). These factors, the court pointed out, are not exhaustive, but provide a framework for analysis:

  1. When is the fee paid?
  2. Who pays the fee?
  3. Is the amount of the fee affected by the level of the service that it is for?
  4. Is the fee for a good or a service?
  5. Is the good or service one that has been historically provided by the government?

The City of Hermann’s utility charges are paid in response to monthly billing, after the services have been metered. This resembles a user charge, rather than a tax that is paid annually. Of course, it also resembles a sales tax that is paid upon a sale.

The City’s utility charges are assessed only against utility customers, unlike some kinds of taxes, which are charged without reference to who is using government services. For example, sales taxes are charged to non-resident and residents alike.

The amount of the City’s utility charges, at least above minimums and flat charges, is related directly to use, other than for Hermann’s “communications fee,” which is used to support the 911 network.

The City’s utility charges fees are imposed for goods or services, rather than being a general tax to be used however the City government chooses. This factor was not at issue in this challenge, though the plaintiffs claimed that the amount of the fees were in excess of the reasonable capital and operating costs incurred in providing the services.

The Supreme Court found the fifth factor in favor of a finding of a tax, though the City of Hermann has a long history of providing these services in Hermann. The court indicated that the City’s prohibition of any other provider offering these goods and services supports a finding that the utility charges are a tax, without explaining why, other than to state that the lack of alternatives was a part (a sixth factor?) of the analysis. Even so, a finding that the utility charges resembled a tax on this point was not enough to overcome the opposite findings on the other factors.

Borrowing from its opinion in Beatty v. Metropolitan St. Louis Sewer District, the court looked at a sixth factor, whether the payment was enforceable by imposition of a lien on the user’s property or merely by disconnection or discontinuance of the service. Without taking judicial notice of the fact that many if not most private and municipal utilities have the right to impose liens for non-payment of utility charges–in addition to disconnection– the court considered that a tax, such as a property tax, is secured by a lien, while utility providers have the right to disconnect the services to enforce payment.

The court upheld the City of Hermann’s utility rates, stating, “There simply has been no showing that the amount charged is so excessive as to not constitute the provision of a service or good in return for the amount paid.”

Municipal rates are unregulated, but does this lead to excessive rate levels?

We should be concerned with the quality of the facilities for providing our water supply, treatment and management of wastewater and stormwater, and delivery of electricity and telecommunications services. The infrastructure for these essential things was constructed in the 19th and 20th centuries. Repairing, replacing and upgrading them is enormously expensive and in many cases has been deferred.

But private and governmental providers face stiff resistance in raising revenues to confront these challenges. For many private providers, utility commissions determine the extent to which rate increases are allowed. For other providers, such as cooperatives, homeowner associations and local governments, rate increases are within the discretion of elected officials, who have wide discretion and motivations that may extend beyond the provision of utility services.

In my experience, local governments, looking at water and sewer rates, generally look around to neighboring communities and communities of the same size elsewhere in the state, hoping to stay somewhere below the top. While this strategy may be effective for helping elected officials to remain in office, it may not produce sufficient revenue for maintaining utility systems.

 

The Corps of Engineers can only release water, not solve problems

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As a lawyer, I first encountered the economic ruin and heartache from controlled discharge from a Corps’ reservoir about 25 years ago. The Corps had opened the gates at the Keystone reservoir west of Tulsa, filling the entire floodplain from Mannford, through Sand Springs and Tulsa. My client packaged fresh salads in a building on the edge of the floodplain that was not known to have ever flooded.

The Small Business Administration offered disaster loans to businesses, and my client’s only hope for survival was to accept a loan.

Unfortunately, the six-month interruption of my client’s business resulted in a loss of market share and employees. The SBA loan and insurance didn’t cover nearly all the losses. There was no revenue to cover the regular bills due in the weeks after the flood. The business had been marginally profitable, only because it had little debt. The SBA loan required the owner to sign a personal guarantee. The eventual result of the SBA loan was that my client became bankrupt (at age 70), since the business couldn’t generate enough money to service the debt and pay its other expenses.

I could find no legal basis for challenging the Corps’ management of the Keystone dam and the Arkansas River basin. The Corps operates under broad statutory authority that has many competing goals, the least of which seems to be protecting homes and businesses built in floodplains below the dams.

The Corps has no control over rainfall. In responding to rainfall, or lack of it, the Corps must respond to those who have statutory claims on impounded water for drinking, power generation, irrigation, recreation, and maintenance of the depth of water in navigation channels. The Corps is constrained by the design of its dams and the storage capacity of its reservoirs. To meet all its goals, the Corps has only one tool: controlling the rate of release of water.

Even if the Corps didn’t have governmental immunity from liability for many of its actions, persuading a judge or jury that the Corps made bad decisions would be an enormously expensive and difficult task.

The lesson is that the economic benefits and protection provided by federal and state projects are extremely uneven in application. We should make decisions based on our own situations.

If you’re a beneficiary of a specific federal program, you can probably count on whatever protection that offers, but only for now. If we expect federal, state and local governments to protect us from weather, we end up in the situation we’re already in.

Partial giraffes sighted in the Ozarks


Giraffe houses are a distinctive feature of Ozarks architecture. Builders used flat stones set on edge for siding. With the mortar painted or stained a uniform and contrasting color to the stone, the effect is something like the pattern on a giraffe. As you can see from the Rock House in Reeds Spring, which is Jeanette and Bruce’s home and performing arts center, the resemblance is striking:

Partial giraffe houses are much less common. With these houses, the stone slabs only go part way up the sides of the house, as in the example below from Forsyth, Missouri:

The above example is typical. The house is a simple rectangle, with the ridgeline of its roof running longwise, making a single gable at each end. The walls above the stone veneer are stucco. While I don’t remember seeing a house built this way, from seeing demolition, it appears that building paper (thick paper impregnated with asphalt) would have been attached to the exterior stud walls with laths (furring strips). A wire mesh (such as chickenwire) would have been stapled to the laths. The stucco (a mix of cement and sand) would have been troweled on to the wire mesh. The stone slabs would have been laid onto the stucco.

Placing the stone only part way up requires less stone and labor than covering the entire wall surfaces. Generally these are modest houses, and the stone veneer on the lower part of the walls gives protection against moisture where it is needed most.

But sometimes, the partial stone veneer  (with random stones well above the lower portion) is artistic in effect, as seen in this rambling house in my neighborhood in the old part of downtown Branson, Missouri:

The partial stone veneer, integrating the chimney, gives great charm to this Branson cottage:

For more info about the giraffe buildings of the Ozarks, check out these sites:

Glaize Creek Sewer District blows condemnation case, but gets new chance


At a condemnation trial, Glaize Creek Sewer District (in Jefferson County, Missouri, just south of St. Louis), didn’t put on any admissible evidence of damages to the Gorhams’ property. The Gorhams put on proper evidence of damages, showing that the value of their property after the sewer line was installed declined by $29,000. The Missouri Court of Appeals reversed the jury verdict of zero damages (based on an appraiser‘s unsubstantiated opinion testimony), and sent the case back for a new trial.

Two things are unusual about this case: Read the rest of this entry

Hate unions, but love your occupational license?


The decline of union membership and public support for labor unions has corresponded rather precisely to the rise in the percentage of Americans who hold occupational licenses.

Occupational licensing would not have grown without broad support. Here’s an economist’s explanation of why:

Governmental officials benefit from Read the rest of this entry

Waters of March


I feel a surge of happiness when I see Ozarks streams running full of cold, clean water.

This season brings to mind one of my favorite songs, “Waters of March,” written by Antonio Carlos (“Tom”) Jobim, a Brazilian composer and musician who was at the forefront of the wave of popularity of bossa nova music in the 1960s.

The Wikipedia entry for “Waters of March” reveals how popular the song has been. Even after 40 years, this song is continually discovered by jazz and pop singers from several countries.

Jobim wrote Portuguese and English lyrics for the song, to reflect that the month of March is the end of summer in Brazil, while it is the end of winter in the Northern Hemisphere, bringing the promise of spring. The lyrics of both versions, which you can read here, tell no story, but refer to the simultaneous joy of nature and frustration of human endeavor in the rainy season.

Since 1972, dozens of great and not so great pop and jazz singers have recorded “Waters of March.” Its tricky rhythm and complex harmony challenge performers. This version by Sofia is a good contemporary interpretation. The Irish indie duo Lisa Hannigan and Damien Rice also have a nice version, paired with another Jobim standard, Desifinado.

My three favorite versions are by Susannah McCorkle, Joao Gilberto and a duet version of Tom Jobim and Elis Regina.

Susannah McCorkle

Image via Wikipedia

McCorkle, daughter of an American anthropologist, spent part of her childhood in Brazil and was fluent in several languages, including Brazilian Portuguese. She sang both English and Portuguese words to “Waters of March,” modifying Jobim’s English lyric a bit to make it seem more conversational to Americans. It’s a good place to start.

Gilberto’s version includes only his soft guitar and his relaxed and intimate voice and is a good example of his influential bossa nova style.

Some people prefer the playful duet of Jobim and Elis Regina, in which the game they’re playing with one another seems to take over.

Sometimes judges really are funny


Judge Warren White of Greene County, Missouri, displayed a droll sense of humor, as recounted by the late John K. Hulston (1915-2004), in An Ozarks Lawyer’s Story, 1946-1976.

After conducting a new trial of George Wilkerson, who had served part of a six-year sentence in the state penitentiary before a successful appeal, Judge White found Wilkerson guilty and ordered him back to prison, in this 1941 case.

Wilkerson complained, “Judge, I can’t take it. That’s too long. I’m too old a man to serve a sentence like that. It will kill me. I’ll die up there.”

“Well, do all of it you can,” Judge White replied.

Kimberling City’s acceptance of sewer system didn’t negate contractor’s warranty


Kimberling City occupies several ridges and valleys where Missouri Highway 13 crosses the heart of Table Rock Lake. You would have a hard time finding a place where the installation of a sewer system was more difficult and expensive per customer, due to the steep and rocky terrain and the necessity of pumping the wastewater collected in each valley over the hills to eventually reach the treatment plant.

Kimberling City grew from almost nothing to a population of nearly 5,000 since the completion of the dam that created Table Rock Lake in 1959. Permanent residents and vacationers are attracted to Read the rest of this entry

Where am I? Still in Branson?


When we awake, we have to figure out where we are. This may be easy for you, but it’s not for me, because I am apparently an extreme systemizer and cannot keep from thinking about things in the way I’ll present here.

When I press my internal on button and begin to log my brain onto to the consciousness server, I’ll be on my second cup of coffee before I know my place in the universe. There are many connections to verify, a process that takes a few minutes.

Geography

First, I need to locate myself geographically, based on latitude: 36° 38.5, longitude: -94° 44.6.

Galaxy: Milky Way

Solar system: Sun

Planet: Earth

Hemispheres: Northern and Western

Continent: North America

Physiographic Region: Ozark Highlands

Physiographic sub-region White River Hills

Climate zone: Humid sub-tropical

USDA Plant Hardiness zone: 6b

Watershed: Atlantic Ocean

Sub-watershed Mississippi River

Sub-Sub-watershed White River

Time Zone UTC-6

I should have gone into considerably more detail on geography, especially biomes.

Political

Geography is the best part of the answer to the question of where am I, but I also live in a political world, subject to governmental authorities, which control and tax me; issue currency; provide me with roads, mail service and drinking water; collect and treat my wastewater; and stand ready to extinguish a house fire, educate my kids (I’m not sure that the school system taught my kids where they were at the level of detail that I think is appropriate), and haul me to the jail or hospital when I need to go.

Country: United States of America

US Congressional District:  Seventh

Zip Code 65616-3114

Census Tract: 9801

State: Missouri

State senate district: 29

State representative district: 62

County: Taney

City: Branson, Ward 2

School District Branson R-IV

Ambulance District Taney County Ambulance District

Where am I in the Cyber World?

All of the foregoing is important, but I live and work in a cybernetic world, defined by communication systems. My location from a geographic and political perspective is mostly defined by a fixed point (the latitude and longitude of my property and my person), but location in the cyberworld has to do with membership in domains and connections to fluid networks, some of which change in the course of a day.

Languages: American English. I’m on the border between two dialect groups, Midland and Mountain Southern. In my work, I speak to other lawyers, using that kind of language, as well as people from around the country and people who have come to the Ozarks from other places. I have to pay attention to how we use spoken and written language and non-verbal signals.

Landline telephone: I have a 417 334-XXXX home number, which originated in Branson, Missouri, but it has been ported from the old carrier to a CLEC. I can take the number anywhere.

Cell phone: My Verizon cell phone connects to towers wherever in Verizon’s CDMA system that I go. Because it is a BlackBerry, it also connects to the BlackBerry radio system. In remote areas, I may have Verizon phone service, but no BlackBerry radio connection for data.

Office phone: When I closed my Branson office, I kept my Branson phone number, which rings at the Ozark office, but is forwarded to my Verizon cell phone. My office phone system uses VOIP, which means my phones are plugged into the internet, so that I could get local calls from Branson, even if I plugged my phone in an internet connection in Africa.

Computer networks: I have a network in my house, which is wired and wireless (protected by encryption). I can connect my laptop from home, via the internet, to my office network.

While my iPad, Mac, BlackBerry and Windows computers don’t always connect well with one another though my networks, my Gmail is equally accessible from all of them, using IMAP to keep my inboxes synchronized. I also use Dropbox.com to share and synchronize files across the various kinds of devices that I use.

Television: DirectTV satellite.

Next time you see me, you probably won’t ask, “How are you?”

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