IS A STORM WATER PUBLIC UTILITY IN YOUR FUTURE?

Management of storm water increasingly is a hot issue for municipalities. Several drivers are contributing to this situation, including:

1. The federal Clean Water Act and USEPA regulations that may require collection and treatment of contaminated storm water.

2. Environmental laws and regulations that may require separation of storm water mains from wastewater mains. When storm water is allowed to enter into the wastewater system, wastewater mains can become surcharged, causing basement backups, and wastewater biological process treatment facilities can wash out. (See my blog, "Illegal Storm Water Connections...Going Away From The Flow", May 7, 2010).

3. Flooding of properties, buildings and streets upon major rain events.

One possible approach for storm water management may be for municipalities to form and operate storm water public utilities, much in the manner that they may own and operate water, wastewater or electric public utilities. A recent Florida example is discussed in City of Gainesville v. State, 778 So.2d 519 (FL. App. 2001).

The City formed a storm water public utility and billed properties in the city a utility charge for storm water management utility services. The charges are based on the cost of providing storm water management services to different classes of properties. The charges are computed based upon equivalent residential units (ERU) of 2,300 square feet, representing the average impervious area for all developed, detached single family homes in the city. The ERU for commercial properties is computed based upon measurement of the developed, impervious area of each property. Undeveloped properties and properties which do not contribute to storm water runoff are exempt. Credits are available to property owners who retain all or a portion of storm water runoff from their property.

The Court held that, under Florida law, the city had authority to establish storm water management systems and to finance them by collecting utility charges. Of course, the availability of the storm water public utility approach depends on the legislative authority of a particular state. See also State v. City of Charleston, 513 S.E.2d 97 (1999). For a related discussion, also see "Strapped Cities Hit Nonprofits With Fees", Wall Street Journal, December 27, 2010, Sec. A-1, p.1.

IS THERE A SANTA CLAUS?

At this Holiday time of year, it is difficult to find a water topic that is appropriate. However, the general scope of the law does not disappoint. So, I digress temporarily to see what the law may say about Santa Claus.

One may recall the classic movie "Miracle On 34th Street" where a judge, after a trial. found a jolly old man to be Santa Claus because the Post Office delivered tons of mail to him addressed to Santa Claus. Of course, the movie is both fictional and dated, as today the Post Office likely would deliver only tons of catalogs addressed to "occupant."

There are, however, real court decisions involving Santa Claus, and I will share three of them.

In an Ohio case, a man petitioned the court to change his name to "Santa Robert Claus." The court noted that he "is a rotund gentleman with a full white beard and wears wire glasses, which he says attributes to people commenting on his resemblance of Santa Claus." According to the court, the petitioner stated "I don't want people to say you look like Santa, I want to be Santa."

The Court denied the petition, finding it to be against public policy. The court reasoned as follows:

"The court finds that there is an economic value to the name of Santa Claus. The court finds no fraudulent intent of the petitioner to take advantage of the economic value for the use of the name. However, the court finds public policy reasons to deny the petitioner's request, particularly the interference with the rights of others. The petitioner is seeking more than a name change. He is seeking the identity of an individual that this culture has recognized throughout the world, for well over one hundred years. Thus, the public has a proprietary interest in the identity of Santa Claus, both in the name and the persona. Santa Claus is really an icon of our culture; he exists in the minds of millions of children and adults.

"The history of Santa Claus-the North Pole, the elves, Mrs. Claus, reindeer-is a treasure that society passes on from generation to generation, and the petitioner seeks to take not only the name of Santa Claus, but to take on the identity of Santa Claus. Although thousands of people every year do take on the identity of Santa Claus around Christmas, the court believes it would be very misleading to the children in the community, particularly the children in the area that the petitioner lives, to approve the applicant's name change petition." (In re Name Change of Handley, 736 N.E. 2d 125 (Ohio Prob. 2000)).

An opposite result was reached in a Utah decision. A man petitioned to change his name to "Santa Claus." The trial court denied the petition. It found that such a name change would likely create confusion and misunderstanding, and might discourage people from ever suing someone named Santa Claus. On appeal, the Utah Supreme Court reversed, ordering the name change to be granted. It said that there was no evidence that confusion and misunderstanding would result from the name change. It noted that the man already tells others that he is Santa Claus, and allowing him to legally change his name to reflect his practice is more likely to avoid confusion. A dissenting opinion cited the Ohio decision in the Handley case in support of denial of the petition. (In the matter of the Application of David Lynn Porter, 31 P. 3rd 519 (Utah 2001)).

It appears that being Santa Claus may not avoid legal issues either. In another Ohio case, a man was charged with a misdemeanor because he displayed to a police officer an Ohio identity card which identified him as Santa Claus. The man presented various documents in support of his motion to dismiss the charge, including:

A certificate of birth for one Santa Claus born at the North Pole December 25 in 383 A.D. to Mr. Claus and Holly Noel with Dr. Snowflake attending;

Ohio identification cards for various years issued to Santa by the state, with photos and indicating residence at i Noel Drive, North Pole USA;

A certificate of title and vehicle registrations issued to Santa at the same address for a 1965 Volkswagen.

The court dismissed the charge. It stated, in part: "Santa routinely paid (and the state of Ohio accepted) taxes and registration fees under the name of Santa for many years....To sustain the burden of going forward, the state must make a showing that Santa knowingly displayed an identification card that was 'fictitious'. This the state has not done. The fact that Santa had an ongoing relationship for 20 years with the BMV is not indicative of 'artificiality or contrivance' for, in fact, under the publicly held records of the Ohio Bureau of Motor Vehicles, Santa has been a 'real person' since as early as 1982." (State of Ohio v. Hayes a.k.a. Santa Claus, 774 N.E. 2d 807 (Ohio Mun. 2002)).

So, is there really a Santa Claus? You be the judge.