Wednesday, September 30, 2009

Kirk Bromley: The National Parks - America's Best Idea

Recently released, The National Parks - America's Best Idea, a new film by Ken Burns, looks to do for our millions of acres of protected wild lands what Burns did for the Civil War, baseball and jazz - provide them with a stirring, informative biopic that will stand as a template for all future discussions of such historical phenomenon. The first installment, Scripture of Nature (1851 - 1890), appeared a couple nights ago on television, but it, and all the episodes, are available at

While Burns definitely has his detractors and quibblers, there's no denying that he has created a grand vision woven together with an inspiring narrative thread - that our national parks are not only central to our nation's health and wealth, but that they also emerged from and continue to feed our democratic ideals. Very few things in America are truly "for everyone," but those who founded our parks system saw them as such, and they continue so to this day. Big government? Yes. Therefore bad? No. Only the government could have taken the lead in keeping these lands from developers, and as such it proved its value in our lives. Whether or not that means it has value in other aspects of our lives is irrelevant. The national parks was a bureaucratic home run, and Burns proves it.

The photography in this series would be enough to warrant it a masterpiece, but what really crowns its greatness is Burns's research into the officials, intellectuals, and outdoors enthusiasts whose passion for nature led them to battle to save it. You can feel their love for the land, and in seeing it so movingly represented, you really start to feel that yes, indeed, the national parks are our best idea, if only for the way in which they symbolize our many other great ideas.

Boston Globe: Burns' National Park Series Reaches "New Heights"

New heights for Burns and PBS
By Ed Siegel | September 30, 2009

A SIX-PART SERIES on national parks? I was skeptical, even with Ken Burns as producer/director. The closest I’ve come to a national park is flying over the Grand Canyon on my way to Vegas. And with last Sunday’s first part competing against some of television’s best shows - “Mad Men,’’ “Dexter,’’ and “Curb Your Enthusiasm’’ - I gave it a half-hour to make its case.

Two hours later, I was still transfixed. Burns has become something of the poster child for what the pioneers of television thought television could achieve. Though often satirized for romanticism and sentimentality, Burns has made subjects as diverse as the Civil War, jazz, baseball, and Mark Twain the matter for water-cooler discussion. No small feat when that dialogue usually revolves around Paula Abdul and Jay Leno.

Something else that’s rare for television artists - Burns connects people to their better selves. “The National Parks: America’s Best Idea,’’ which runs through the week, takes you out of your normal workaday mindset with its magnificent, Kubrickian photography and sharply etched historical profiles of inspirational figures like John Muir and Frederick Law Olmsted and the fight they waged to keep these places from becoming kitschy overdeveloped theme parks.

You could say the same about public television. Early attempts at privatizing places like Niagara Falls resulted in hucksterism and the despoiling of the landscape, despite the claims of entrepreneurs that places like Yosemite would be better preserved in private hands. It’s reminiscent of anti-PBS screeds of 20 years ago by the likes of George Will saying that there was no need for funding of public television because cable did the same job better, citing services like A&E and Bravo.

That argument was, at best, shortsighted. These two cable services have long since given up the ghost of arts coverage. The same night that “The National Parks’’ was premiering on PBS, A&E was airing reruns of “CSI: Miami’’ and “Criminal Minds’’ while Bravo had a “Law & Order: Criminal Intent’’ marathon, competing with a James Bond night on BBC America. Programming on Ovation and Discovery is less commercial, but they’re still a far cry from PBS.

And it isn’t just the occasional Burns series. I recently got an advance look at a riveting “Masterpiece Contemporary’’ drama, “Endgame,’’ about the behind-the-scenes negotiations leading to the end of apartheid in South Africa, and caught a repeat of an excellent “American Masters’’ documentary on choreographer Jerome Robbins. As good as the HBO TV movies are, I can’t imagine HBO would have found “Endgame’’ commercial enough. Ovation’s arts documentaries aren’t in the same league as “American Masters.’’

As other television entities turn their valuable places on the dial into the video equivalent of the early Niagara Falls, it’s all the more important to have one station that has something besides numbers in its programming philosophy. “Nature gives strength to body and soul alike,’’ said Muir, and the same can be said for PBS at its best.

Not that it’s always at its best. The lack of funding often results in safe programming, particularly around pledge time, but to me that’s always been an argument for more government money, not less. (I haven’t included radio in this discussion because I’m an indirect beneficiary of public funding, as a contributor to arts and entertainment coverage on public radio station WBUR.)

Some time during Sunday night’s first show, my wife and I concluded that we ought to forget about France and get me a little closer to the national parks. What more can you want from television than both bringing the world into your living room and taking you out of your living room into the world?

Conservative bloggers have identified “The National Parks’’ as propaganda for big government, but they miss the larger picture. As historian William Cronon said, the national parks are “closer to paradise than anything Europe has to offer.’’ For showing us that, Ken Burns, as he has in the past, makes you proud to be an American.

Freelance writer Ed Siegel is a former television and theater critic for the Globe.

Help Celebrate 100th Anniversary of National Park Service With St. Augustine National Historical Park, Seashore and Scenic Coastal Parkway

Last night's episode of Ken Burns' series, "THE NATIONAL PARKS: America's Best Idea," presented in sharp repose the tension between developers and preservationists.

In the case of the Grand Canyon National Park, one of the fiercest opponents of the park was a businessman whose activities were ruining the park. He was elected U.S. Senator in 1920.

A St. Augustine national park was first proposed before World War II. Nothing came of it, apparently due to inertia and entrenched economic interests, people who did not see the public benefit (and the benefit to themselves) of protecting land.

If a park had been adopted after World War II, we could have saved most of Anastasia Island.

As Tennyson said, "It is not to late to seek a newer world."

Now we can combine at least five state parks, the coastline and historic sites in one manageable unit, managed by the National Park Service.

We can protect our environment, educate our children, preserve our history (including Native American, African-American and Civil Rights history, and Spanish, English, French, Greek, Minorcan, Territorial, Civil War, Flagler Era and World War I & II history, and Civil Rights history).

Read more below and at the links at left.

"If You Love St. Augustine," You Will Support St. Augustine National Historical Park, Seashore and Scenic Coastal Parkway

From 1 Corinthians, Chapter 13

"Love is patient, love is kind. It is not jealous, (love) is not pompous, it is not inflated, it is not rude, it does not seek its own interests, it is not quick-tempered, it does not brood over injury, it does not rejoice over wrongdoing but rejoices with the truth. It bears all things, believes all things, hopes all things, endures all things. Love never fails."

"... When I was a child, I used to talk as a child, think as a child, reason as a child; when I became a man, I put aside childish things."

"... So faith, hope, love remain, these three; but the greatest of these is love."

Public Employees for Environmental Responsibility: Closing California Parks Would Cost More Than "Savings" -- Legal Memo Below

For Immediate Release: September 15, 2009
Contact: Kirsten Stade (202) 265-7337

CALIFORNIA FINDS CLOSING PARKS NOT SO EASY — Liabilities, Lawsuits and Losses Threaten to Swallow Savings from Park Shutdowns

Sacramento — The looming shutdown of up to 100 California state park facilities is fraught with unexpected expenses, large financial uncertainties and a big basket of legal headaches, according to a state legal analysis posted today by Public Employees for Environmental Responsibility (PEER). Unanticipated problems include both short and long-term liabilities, increased risk of wildfires, marijuana plantations on unmonitored parklands and “increased danger to the public” due to absence of lifeguards and other protective services.
The extraordinary September 14, 2009 memo by the California Department of Parks and Recreation Legal Office analyzes “potential liabilities if units of the State Park System close, partially close, or are operated at reduced service levels.” The memo is being distributed as a guide to park managers for “mitigating risks.”

In sobering terms, the memo outlines an array of legal and fiscal thickets from park closings, including:

Legal liabilities from “dangerous conditions” in unstaffed parks, deteriorating facilities and risks to adjoining property from occurrences such as wildfires. The memo concludes “From a liability standpoint, closing the parks would probably not benefit State Parks and could in fact increase its liability for dangerous condition of public property;”
Contractual obligations from grants, land donations, concessionaire contracts and earmarked federal and state funds may leave the parks legally obligated to keep operating despite a claim of funding shortfalls; and
Public safety dangers and legal claims from nuisance uses and trespass. The memo predicts that state losses from theft, encroachments and other unauthorized uses “will only increase if State Parks cannot take immediate and effective action….”
“Closing parks may be far more expensive than keeping them open and operating,” stated California PEER Coordinator Karen Schambach. “Paradoxically, in order to avoid losses of life and property, California will need to spend its supposed savings to keep families out of beaches, parks and recreation areas.”

In addition to potential liabilities, the state legal memo concedes that the state may be vulnerable to lawsuits under the California Environmental Quality Act, the California Coastal Act and the federal Endangered Species Act, among other statutes. These suits could force the state to keep park units designated for closure open.

“It is clear that the consequences of park closures have not been thought out – a glaring oversight that is only going to make a bad situation worse,” added Schambach. “We have pointed out that there are ready alternatives to state park shutdowns if only the factions in Sacramento will set aside their turf wars.”

PEER is urging the state to tap California’s Off Highway Vehicle Trust Fund monies that are now limited to projects benefiting dirt bikes and other off-road vehicles, despite the fact that these vehicles generate just 17% of the $60 million of fuel tax revenue that goes to the OHV program. Significantly, none of the State Vehicular Recreation Areas (off-road parks) is slated for closure, and the OHV Division added 82 positions this year.


See legal memorandum below


State of California, Department of Parks and Recreation

The Director has asked the Legal Office to analyze the potential liabilities if units of the State Park System close, partially close, or are operated at reduced service levels or by other entities due to cuts to California State Parks’ (“State Parks”) budget. Below is such analysis categorized by subject matter. Attached to this memorandum is a Parks Closure/Reduction in Services Procedure Checklist, which is intended to assist Park Operations in mitigating risks that likely will result from closures or reduced services at a park unit. Please note that this analysis is made according to general rules of law and is intended to provide a general overview of potential liabilities if units of the State Park System close, partially close, or are operated at reduced service levels. This memorandum focuses on likely potential liabilities; due to the many risks inherent with land ownership, there may be exposures to risk not herein addressed. In order to fully analyze the potential liabilities to State Parks related to the closure or reduced operations of a particular park unit, the Legal Office would be required to analyze the units’ acquisition documents, contracts, real and personal property, operations, etc., on a case-by-case basis as each unit of the State Park System is unique in regards to deed restrictions, contractual obligations, assets, and operations. Additionally, as this analysis is a general overview, and not a fact specific analysis, nothing herein is meant to opine on the merits of a particular lawsuit should one be filed arising out of or related to closure or reduced operations of a park unit. Furthermore, nothing herein waives any right, remedy, or defense State Parks may have related to any cause of action arising out of related to closure or reduced operations of a park unit.
I. Dangerous Condition of Public Property
A dangerous condition means a condition of property that creates a substantial (as distinguished from a minor, trivial, or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used. A public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either: (a) a negligent or wrongful act or omission of an employee of the public entity created the dangerous condition; or (b) the public entity had actual or constructive notice of the dangerous condition a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.
Potential liability exists as long as people are using the parks. In order to avoid potential liability for dangerous conditions on its property, State Parks would have to completely exclude the public from park property. Even if a park is officially closed, State Parks could incur liability if the public uses the park. Liability for a dangerous
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condition of public property is not dependent on whether the users are invitees or trespassers, so State Parks has a duty to protect even those who may be in the park illegally from dangerous conditions.
Turning a blind eye to public use of a closed park is problematic. As a public entity, State Parks can be held responsible for dangerous conditions that it should have known existed on its property, as well as those it actually knew existed. The “should have known” element (constructive knowledge) is most effectively countered by conducting regular inspections intended to inform the public entity whether the property was safe for the uses for which it was intended and for uses that the public entity actually knows were being made of the public property (i.e. the public entity argues that it inspected the premises and did not find the condition that was dangerous to the foreseeable users). However, if State Parks has no staff to conduct inspections of, or observe, the property, some dangers might go undetected and increase. The lack of monitoring could make it more difficult to refute a claim by a plaintiff that State Parks should have known of a dangerous condition and should therefore be liable for injury caused by that condition.
Natural condition, trail, and hazardous recreational immunities would still limit liability for such things as hiking or riding on trails, but State Parks could incur liability for injury and damage caused by existing improvements and structures such as sidewalks, picnic and camping areas, culverts, parking lots, railings, porches and stairs, among other things, which might continue to be accessed by the public. The unmaintained, shuttered facilities themselves could also pose an increasing hazard as they deteriorate. The majority of State Parks’ dangerous condition lawsuits involve outdoor conditions, so just closing buildings, but not the entire park, is not likely to eliminate all potential liability. In fact, lack of monitoring and ongoing maintenance could result in increased liability.
Further, State Parks would continue to have potential liability for dangerous conditions that threaten adjacent properties. This includes falling trees, and landslides that cause injury to persons. Courts have said that natural condition immunity does not protect against injury or damage on adjacent property because the adjacent property owner has not assumed the risk by using the property on which the dangerous condition is found. There may be some potential for State Parks to be liable for fires that spread from its property to adjacent property. However, the case law on natural condition immunity for damage to adjacent property is not extensive, so the issue of liability is somewhat unsettled, especially with regard to wildfires.
Although State Parks can always attempt to defend a lawsuit by arguing that the practicability and cost of taking preventive measures was too burdensome in relation to the probability and gravity of potential injury, it is unknown whether this immunity would be effective if State Parks closes a park and takes no preventive measures at all.
As long as people are using the parks, closed or not, State Parks will risk being sued for personal injuries. Even in a case where State Parks is ultimately found to have no liability, defending the lawsuit can cost tens of thousands of dollars, not including the cost of Attorney General representation. From a liability standpoint, closing the parks
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would probably not benefit State Parks and could in fact increase its liability for dangerous condition of public property.
II. Nuisance
Under Civil Code §3479, a nuisance is anything that is “an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property…”
While it is impossible to anticipate all the ways a nuisance might arise, any problematic condition on park property that results from lack of attention and which affects neighboring property could theoretically become a nuisance. Homeless camps, marijuana farms, dangerous trees, and illegal partying on park property come to mind as possibilities.
Nuisance may also arise from a natural condition. One California appeals court has opined that liability for nuisance may result from a natural condition if there is a finding of negligence in dealing with that natural condition. Fire hazards could potentially constitute a nuisance.
III. Lack of Services
State Parks is not likely to incur liability if it fails to provide such services as lifeguards on the beaches, because it generally has no mandatory duty to do so. However, such lack of services likely will result in increased danger to the public. Further, if in any situation, State Parks has assumed a duty to provide a protective service to the extent that the public has come to rely on it, State Parks would have to adequately notify the public that such service is no longer being provided.
IV. Warning Signs
In order to mitigate the potential for liability, State Parks should provide extensive signage informing the public of what areas are closed, hazardous conditions and any significant changes in protective services or conditions that deviate from what the public had come to expect at the particular park unit.
V. Parks Operated by Private Entities
Public Resources §5080.30 allows State Parks to enter into operating agreements with other governmental agencies. In order for State Parks to enter into an operating agreement with a private entity, such as a non-profit, legislation granting State Parks such authority is required.
If a park is operated by a private entity, the private entity and State Parks could be jointly liable for any damages or injury resulting from a dangerous condition of the park property. In order to shift the responsibility for liability to the private entity, State Parks would have to require the private entity to indemnify State Parks. The private entity
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would not be protected by the same immunities that apply to public entities, such as State Parks. Thus, many private entities might be unwilling to take on such risks.
The exception is that some public land trusts may be eligible to claim immunities for natural conditions, landslides, trails, and hazardous recreational immunities if they meet the qualifications of Government Code §831.5. The statute says a “public entity,” for purposes of those immunities, includes a public land trust which is (1) a 501(c)(3) non-profit organization under the Internal Revenue Code; (2) has articles of incorporation that has among its principal charitable purposes the conservation of land for public access, agricultural, scientific, historical, educational, recreational, scenic or open-space opportunities; and (3) has an agreement with the State Coastal Conservancy, the California Tahoe Conservancy or the State Public Works Board to hold the public land in trust or to hold the lands to provide non-discriminatory public access consistent with the protection and conservation of the coastal or other natural resources. Whether this statute could be adapted or amended to apply to private entities operating units of the State Park System is unknown.
In some cases, special legislation has allowed a non-profit to operate units of the State Park System. Examples include El Presidio de Santa Barbara State Historic Park and the Marconi Conference Center. Those operating agreements have provisions whereby the operating entity indemnifies State Parks for liability.
Other statutes also allow private entities to conduct some operations within State Park property. It is worth exploring ways that these operations may be expanded to include minimal services in order to keep certain parks operating at a low level without turning over the entire operation to another entity and/or requiring a complete park closure. Relationships to explore for expansion possibilities include concessions (Public Resources Code §5080 et seq.), cooperating associations (Public Resources Code §513), and Public Resources Code §5010.1 service agreements. Sole source or exemptions from bidding should also be explored to accommodate the temporary expansion of services in order to cover services that State Parks can no longer provide at this time. Legislation relaxing or exempting bidding requirements for these contracts could also be narrowly crafted in order to facilitate keeping certain parks open during desperate budget times and should be considered.
VI. Contractual Obligations Related to Real and Personal Property
It is impossible to know all the restrictions that apply to every piece of real or personal property State Parks owns. State Parks would have to conduct a comprehensive survey to make such determination. Alternatively, it could wait until any contractual or deed violations are brought to its attention through a claim or lawsuit. Below are general restrictions related to State Parks’ real and personal property.
A. Donation Agreements
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State Parks may have contractual obligations that come with its property. For example, real property that was donated might have deed restrictions requiring that the property be used only for state park purposes and be made accessible to the public for recreation. Closure of the park for a prolonged period might violate the donation agreement. Such deeds might also have a reversion clause that would require State Parks to return the property to the donor upon violation of the terms of the donation. This could especially be possible if the property was acquired from a land trust.
Personal property, such as museum collections or artifacts, may also be subject to use requirements, public display, or reversion to the donor.
State Parks may also have obligations to other governmental agencies that could not be ignored, even if the park closed. For example, in some cases State Parks acquired property from a donor to satisfy the donor’s mitigation obligations to agencies, such as the U.S. Fish and Wildlife Service or U.S. Army Corps of Engineers, as a result of destruction of endangered species habitat, or the California Coastal Commission, as a result of development within the Coastal Zone. In such cases, State Parks is usually required to maintain and manage the habitat in perpetuity and provide public access and could not suspend these obligations upon closure of the park.
B. Grant Contracts
State Parks has received grant funds from various sources for acquisition and development of the State Park System. Generally, receipt of grant funds are conditioned upon the obligation that the property benefitting from the grant funds be accessible to the public. Below are just two examples of the many grant programs requiring public access from which State Park properties have benefitted. Other grant programs that require public access to benefitting properties include the California Cultural and Historical Endowment and the California Heritage Fund.
i. Land and Water Conservation Fund Program
State Parks has received Land and Water Conservation Funds (“LWCF”) for acquisitions and development of state park property. Title 14, California Code of Regulations, §4900, the LWCF Procedural Guide, and the grant contract between the National Park Service (“NPS”) and State Parks require public access to lands acquired or developed with LWCF monies. Closing parks will be a breach of contract making State Parks liable for damages. NPS may enforce the provisions of the contract by demanding damages (repayment of LWCF monies) or an injunction for specific performance of the contract.
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ii. Habitat Conservation Fund
The Habitat Conservation Fund (“HCF”), Fish and Game Code §§2785-2799.6, appropriates monies to State Parks for habitat conservation. State Parks, along with the Coastal Conservancy, the Santa Monica Mountains Conservancy, the California Tahoe Conservancy, and the Wildlife Conservation Board, received money from the HCF (Fish and Game Code §2787.)
The funds allocated to State Parks are to be used for (1) projects located in the Santa Lucia Mountain Range, (2) units of the State Park System, and (3) grants to local agencies. It is unlikely that park closures would incur contractual liability if HCF funds were from these sources. However, it could be argued that State Parks has a statutory duty to provide public access pursuant to Fish and Game Code §2799.5, which states that “reasonable public access to lands acquired in fee with funds made available pursuant to [the HCF] shall be provided except when that access may interfere with habitat protection.”
State Parks may have also been a recipient of HCF funds from the other state agencies that administered HCF funds (i.e. Coastal Conservancy, the Santa Monica Mountains Conservancy, the California Tahoe Conservancy, and the Wildlife Conservation Board). If so, the agreement between the two entities will govern the relationship. Such contract will likely contain the language from Fish and Game Code §2799.5. Park closures resulting in no public access may make State Park liable for damages. The granting agency may enforce the provisions of the contract by demanding damages (repayment of HCF monies) or an injunction for specific performance of the contract.
C. Concession Contracts
State Parks has 188 concession contracts with various entities throughout the State Park System. Per such contracts, State Parks is required to provide the concessionaire the right, privilege, and duty to develop, equip, operate and maintain a concession operation on park premises. If closure of a unit of the State Park System resulted in State Parks no longer providing concessionaire park premises, it is likely that State Parks would be in breach of contract and concessionaire would be entitled to the profits he or she would have received had the contract been performed for the remaining term of the contract.
The more complicated question is whether State Parks would be in breach of contract if State Parks continues to provide the premises to the concessionaire but closes the related park unit resulting in the curtailment of concessionaire’s business. Most of State Parks’ concession contracts contain a clause stating State Parks makes no stipulation as to the type, size, location, or duration of public facilities to be maintained at this unit, or the continuation of State ownership thereof. However, it is unknown whether this language would excuse State Parks from performance of the concession contract as the expectation of the parties at the time of entering the concession contract is that the park will remain open to the public. Thus, it is likely that State Parks would be liable for breach of contract under this scenario as well.
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D. Public Works and Services Contracts
State Parks has hundreds of public works and services contracts with various entities throughout the State Park System. Services contracts allow for termination for convenience upon thirty days notice. Thus, as long as proper notice is provided, if State Parks terminated a service contract due to closing a park unit, State Parks would not incur liability for breach of contract. Public works contracts do not provide termination for convenience. Thus, if State Parks were to terminate a public works contract due to closure of a park unit, it is likely that State Parks would be in breach of contract and contractor would be entitled to the profits he or she would have received had the contract been performed.
E. Tucker Consent Decree
The Americans with Disabilities Act and other federal and state laws require the programs of State Parks be accessible. Pursuant to the Tucker Consent Decree, State Parks shall have accessible programs and be compliant with federal and state accessibility laws no later than June 30, 2009 through June 30, 2016, depending on the park unit.
If a park is closed to the public, there is no need to make the park accessible. However, liability for breaching the Consent Decree is a separate issue based on contract law and a court order. Granted, the state’s budget crisis was not anticipated by the parties at the time of entering the Consent Decree. However, if State Parks were to cease the work of accessibility improvements due to park closures and not meet the deadlines stated in the Consent Decree, plaintiffs could bring suit to force State Parks to continue making such improvements. Plaintiffs would most likely argue that closure of parks should make no difference in continuing the work of accessibility improvements if the closure is temporary and the park will reopen in the future. It is unlikely State Parks could use lack of funding as a defense to making parks accessible.
VII. Trespass and Encroachments
Trespass and encroachments on park property are a significant problem. If State Parks closes parks and no longer monitors it borders, it is likely that adjacent property owners will continue to build encroachments on park property. This means that it will be more difficult to eject the trespassers and State Parks will have to expend more funds in the future to protect its boundaries. State Park currently spends hundreds of thousands of dollars a year defending against trespass. These costs will only increase if State Parks can not take immediate and effective action against the trespass. Furthermore, trespass causes irreparable harm to State Park property.
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VIII. Intellectual Property
A. Trademarks
State Parks has established numerous recognizable trademarks as an identifiable source of quality and good will. State Parks has also established long standing trademarks in connection with successful concession operations located within the State Park System. Many of these trademarks have historical significance, tied to the interpretation of the property. Finally, State Parks has created a brand image that consumers and commercial products and services want to identify with. This brand image will be lost with the loss of trademarks, if use is discontinued.
Trademarks are acquired, maintained, and enforced through use. Many of State Parks’ trademarks are common law marks, acquired through use in commerce over at least the last 50 years. If there is a cessation of use, the priority of ownership of the marks will be lost. Some of State Parks’ trademarks have been registered with the California Secretary of State’s Office and some have been federally registered. These marks require updated filings and proof of continued use in order to avoid abandonment. Even with the strength of the marks and extra protection of registration, these marks will be deemed abandoned if use is not continuous.
Once a trademark is lost by abandonment through discontinued use, State Parks would have to start from square one to re-establish rights through use. Not only would this effort cost hundreds of thousands of dollars, but priority of use would be lost to any intervening user of the mark. It is likely that this would happen fairly quickly if State Parks were to close units of the State Park System. State Parks has already had to fight to defend its trademarks against third parties who are waiting to jump on the opportunity to capitalize on the brand image that State Parks has established. For example, State Parks was recently called upon in court to establish continuous use of the Malibu Pier trademark in order to avoid losing it to an unscrupulous litigant.
If State Parks were to cease using its trademarks, even on a temporary basis, the important marks would likely no longer be available at a future date should State Parks wish to resume use. Thus, current trademarks should be maintained at any level possible. Registered marks should be maintained with minimal required filings and a low level of monitoring in order to avoid abandonment. Commercial use of both registered and common law marks should be continued at some level, even if relevant parks are closed. State Parks should consider using a central source like the State Parks’ website to maintain some level of trademark use of all current State Parks’ trademarks. Ideally this would include the e-store and offering the sale of merchandise and printed materials. It could also include programs and/or the provision of parks and recreational services elsewhere on the State Parks’ site.
B. Sponsorships
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In addition to losing its valuable trademarks, State Parks could experience liability and significant loss in revenue if sponsorship or Proud Partner contracts can not be performed. The value of sponsorships and joint ventures with companies wishing to increase their environmental awareness in a visible way is just starting to be realized. This potential income would be lost if operations cease. Moreover, State Parks would risk being in breach of contract under current sponsorship deals, if the exposure and promised consideration can not be delivered.
An inventory of sponsorship agreements should be examined in order to determine which, if any, contractual obligations will be impacted by closure. Proactive negotiation of alternative benefits that could be offered by State Parks would be a way to mitigate potential liability and/or damaged relationships.
C. Copyright
Finally, copyrights would also be at risk if State Parks were to close units of the State Park System. While copyright protection for original created works is not considered abandoned without use, active enforcement is necessary to protect the integrity of the works themselves. Without oversight of policing protections, all of State Parks’ materials, including photographic archives, and massive amounts of online materials should be pulled from public access. The other option would be to allow uncontrolled use of the materials, recognizing that State Parks would have no way to undo the public domain status. This would mean that any objectionable use of State Park materials could not be controlled or stopped in the future. Also, the materials can be taken by commercial users and licensed or used for private profit rather than public good.
In addition to limiting access to materials where oversight will no longer be possible, important copyrights should be registered with the United States Copyright Office in order to increase protection of the materials. Minimum levels of monitoring are still recommended.
IX. California Environmental Quality Act
Compliance with the California Environmental Quality Act (“CEQA”) is triggered by a discretionary decision. It may be argued that State Parks’ determination regarding which parks close, partially close, are operated on a reduced service level, or stay open is a discretionary decision requiring various choices. This discretionary decision may trigger CEQA analysis.
Public Resources Code §21080 (b) (4) allows a statutory exemption from CEQA for an emergency. CEQA generally requires an imminent threat (“a sudden, unexpected occurrence, involving a clear and imminent danger, demanding immediate action to prevent or mitigate loss of, or damage to life, health, property or essential public services; emergency includes such occurrences as fire, flood, earthquake …as well as such occurrences as riot, accident or sabotage). However, the fiscal emergency of the State of California may justify the emergency finding. (If the Governor were to declare a
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state of emergency due to a disaster, Public Resources Code §21080 (b) (3) provides a statutory exemption from CEQA.)
It might also be argued that the decision to close a certain number of parks in response to budget reductions is a ministerial decision, which is exempt from CEQA. (Public Resources Code §21080 9 (b) (1).) The argument would be made that the decision to close individual parks would be a delegated (or administrative) decision according to certain criteria and thus not subject to CEQA.
Regardless of whether State Parks’ determination regarding park closures ultimately requires CEQA analysis or an exemption applies, it is extremely likely that a number of entities desiring to keep parks open will sue State Parks for CEQA compliance in hopes this will prohibit or at least delay closure of a park. It may be advantageous to State Parks in terms of timing to assert a statutory exemption and wait to see whether a lawsuit is brought.
X. Endangered Species Act
State Parks would not exempt from the Endangered Species Act if a park is closed or operating at a reduced service level. If there is “take” of an endangered whether by poaching, unauthorized access, etc., by a person at a park that is closed or operating at a reduced service level, State Parks likely would be jointly liable for the take depending on the proximate cause (failure of State Parks to take measures to protect) of the take and foreseeability by State Parks that take is likely to occur.
XI. California Coastal Act
The California Coastal Act (“CCA”) contains, among other goals, the goal “to maximize public access to and along the coast and maximize public recreational opportunities in the coastal zone….” (Public Resources Code §3000.1.5.)
With this goal, the California Coastal Commission has zealously guarded public access to the Coast, and required consistency between State Parks General Plans and the CCA and the Local Coastal Plans adopted by local governments. The California Coastal Commission regulates “development” within the Coastal Zone. “Development” is defined as “on land, in or under water, the placement or erection of any solid material or structure; … change in the density or intensity of use of land, including but not limited to, subdivision… and any other division of land, including lot splits, except where the land division is brought about in connection with the purchase of such land by a public agency for public recreational use; change in the intensity of use of water, or of access thereto, construction, reconstruction, demolition or alteration of the size of any structure….”
It is not clear how the California Coastal Commission or a local government would go about requiring State Parks to obtain a development permit to close a park. Arguably, the closure of a park is a change in the intensity of use. The language seems to
Page 11 of 11
anticipate land divisions but includes the inclusive words of “including but not limited to”. If the California Coastal Commission requires State Parks to obtain a development permit to close a park, then it could be argued that State Parks might have to get a permit to open, or that State Parks has to get permits for their parks in general. This would be untenable. Either State Parks or the California Coastal Commission could file a declaratory relief action to ask a court whether State Parks needs some type of approval to close a state park in the Coastal Zone, or either agency could also seek an Attorney General’s official or unofficial opinion. We may want to take the first action.
Currently, State Parks and the California Coastal Commission are represented by the same set of attorneys at the Attorney General’s Office, so the potential conflict between the California Coastal Commission and State Parks would require analysis. It would be highly beneficial to State Parks to obtain outside counsel in a dispute with the California Coastal Commission, due to potential conflicts.
Regardless if closing a park within the Coastal Zone requires a CCA development permit, it is extremely likely that a number of entities desiring to keep parks open will sue State Parks for CCA compliance in hopes this will prohibit or at least delay closure of a park.

LA Times: Ken Burns' 'National Parks' pays tribute to people behind the idea

Ken Burns' 'National Parks' pays tribute to the men behind the idea
Politicians and philanthropists pushed to set aside breathtaking, unspoiled land. The filmmaker appreciates this, and you will too.


Television Critic

September 25, 2009

For Californians, Ken Burns' gorgeous and exhaustive six-part documentary on the National Parks poses something of a dilemma. In the 12 hours it takes for "The National Parks: America's Best Idea" to unfold, an Angeleno could easily visit any of a half dozen national parks. Without traffic, you could conceivably get to Yosemite, where it all started, tour the valley floor and be back before narrator Peter Coyote stopped talking.

No doubt the various men behind the National Parks system, from mountain prophet John Muir to the touring-car-bound Franklin Delano Roosevelt would recommend you do just that. Indeed, the main goal of Burns and his co-creator Dayton Duncan appears to be launching people off their backsides and into the wilderness. In this they will most certainly succeed, possibly to the detriment of their own ratings.

Enlivened by astonishing camera work and a few dramatic adventures -- an early Yellowstone explorer becomes lost for more than a month, a tourist is later shot there during an Indian war, a young honeymoon couple vanishes from the Grand Canyon -- "The National Parks" is a slow and careful walk through a very specific branch of American history.

As much as one admires Burns' refusal to acknowledge the conventional wisdom that the American attention span has shrunk to a hair's breadth, there is no denying he could have picked up the pace a bit here. (Also, fiddle and banjo music should be banned from documentary usage for the next five years.)

The title is the first red flag. Yes, the "best idea" part comes from novelist and historian Wallace Stegner and one hates to argue with Stegner, but as historian Clay Jenkinson says within minutes of the film's opening, America's best idea is equal rights for every citizen. But "America's Second-Best Idea" doesn't have the same ring, does it?

So Burns and Duncan content themselves with hammering home the idea that the parks are living symbols of democracy. And if you don't believe them, well, here's a bunch more people who think so too.

Although descriptive chronicles of early visitors to Yosemite and Yellowstone and the Grand Canyon are fascinating to hear (and if you are an American actor who was not asked to give voice to one, consider yourself snubbed), the ongoing testimony to the beauty and importance of nature becomes more than a little repetitive and unnecessary. In this case, a picture really is worth a thousand words, and possibly two whole hours.

The history of the national park crisscrosses the history of America and is therefore a bittersweet narrative. America comes into being at the expense of its natives, from the Indian tribes forced out of their homelands, including Yosemite Valley, to the passenger pigeon hunted into extinction.

The real value of "National Parks" is not its reminder of how beautiful the Grand Canyon is but Burns' and Duncan's endless curiosity about how the parks shaped Americans as Americans shaped the parks.

Coming at a time when the role and size of the federal government is the subject of vitriolic debate, it's difficult not to see in the film a rousing vote of confidence for big government.

Here, the parks are presented not just as places of beauty and refuge but as the soul-saving antidote to the ruthless nature of capitalism and American ambition. Which is certainly true.

Yet, as we quickly discover, their existence is due almost entirely to the personal desires and relentless life's work of a handful of men, many of them major capitalists. Most of the parks owe at least some of their acreage to the checkbooks of wealthy men (making them monuments to noblesse oblige as much as anything else). Meanwhile, President Theodore Roosevelt, brandishing the new and vaguely worded Antiquities Act, created a slew of National Monuments, a process that didn't require Congressional approval.So like the U.S., the parks are more complicated than patriotic catch-phrases would have them.

It is the narrative of those extraordinary men that moves "The National Parks" forward. From the early days of nature-loving Transcendentalism to the modern Green movement, strong-minded individuals determined that preserving certain lands was best for the country and they spent their lives pursuing that goal.

Muir personally swayed presidents, early newspaper accounts brought thousands of people on difficult journeys to see Bridal Veil falls and the Yellowstone Valley, stories in Field and Stream brought about protective legislation, John D. Rockefeller gave us Jackson Hole and much of the Tetons.

So "The National Parks" does chronicle a loss: the ethos of rugged individualism, the influence of a single dedicated voice. Now it seems too easy for voices like Muir's or Park Service founder Stephen Mather's to be lost in the cacophony of information, opinion and invective. Burns stands with the zealous subjects of the film. Like Muir, he is unwilling to bend to public taste. Yes, here are those darn fiddles and the headshot interviews, here are the letters and journals read by Tom Hanks and John Lithgow, here are all those photographs and more information about the National Parks than you'll ever be able to retain.

But his message from one documentary to another remains the same: Pay attention, take notes, listen to the people who were there at the time, because despite what you may have been taught, history is a gorgeously complicated thing.

Copyright © 2009, The Los Angeles Times

Good ideas alter the power balance in relationships, that is why good ideas are always initially resisted.

Our national park system really is America's best idea.

"Good ideas alter the power balance in relationships. That is why good ideas are always initially resisted. Good ideas come with a heavy burden, which is why so few people have them. So few people can handle it."
Hugh Macleod

A national park for St. Augustine was first proposed before World War II.

As elsewhere, selfish economic interests have fought a national park for decades.

The time for a St. Augustine National Historical Park, Seashore and Scenic Coastal Parkway is now.

It is time. It is right.

Tell your friends, co-workers, neighbors, fellow students, teachers and politicians.

We need a St. Augustine National Historical Park, Seashore and Scenic Coastal Parkway.

Don't let snobs and know-nothings cabin the debate, the way some people are trying to foist off a "National Heritage Area" as if it were a substitute for a park.

"National Heritage Areas" involve no land acquisition and no regulation -- they simply bestow a label (and funds to non-profit groups).

No "National Heritage Area" ever saved a single tree, protected a single wetland or preserved a single ecosystem or educated a single child.

The "National Heritage Area" is a case of Republican Bush Lite -- a non-starter, a snare, a delusion and an utter waste of our time.

See below.

Art in the Market: NPR Debate on City of St. Augustine Artist Suppression Ordinance

At 9AM Thursday October 1, Michael Kahn, special legal counsel to the City of St. Augustine will be on hand for First Coast Connect , Melissa Ross' program on National Public Radio affiliate ,WJCT FM 89.9. Artist Greg Travous aka Suvo will also be in the studio for this discussion and call in show. Whatever position you hold, call the number (904) 549-2937 and make it a lively show.

You may catch the program on streaming audio no matter where you live...

Ask Mr. Kahn about the June 15, 2009 State Attorney General opinion that says local governments can't create their own misdemeanors by ordinance, ex nihilo. That's the job of the Florida legislature, which has not seen fit to adopt visual artist suppression ordinances.

Ask Mr. Kahn the total amount of money the City of St. Augustine has spent suppressing artists and entertainers, and why.

Elkhart, Indiana Truth: County highway chief to testify before legislative panel -- Taylor to speak on fighting bureaucracy for funding.

The Truth - Local News
Published: Tuesday, September 29, 2009 -- The Truth, A
Last updated: 9/28/2009 11:33:04 PM
Truth Staff
GOSHEN -- A federal committee that's been following disbursal of federal stimulus money is seeking input from an Elkhart County official.

Transportation Manager Jeff Taylor, who heads the Elkhart County Highway Department, is to testify Thursday in Washington D.C. during a hearing of the U.S. House of Representatives' Committee on Transportation and Infrastructure, he said. The body, which held similar hearings in April, June and July, has been following implementation of the American Recovery and Reinvestment Act, or ARRA, the federal $787 billion program that aims to create jobs and jumpstart the down economy via spending and investment at the local level.

More specifically, Thursday's hearing aims to gather input on implementation of transportation projects funded via stimulus money, Taylor said. He's still preparing his remarks, but in the past has lamented the bureaucracy and forms required to tap into ARRA funding for roads projects.

"You can't call it a quick jobs ... bill when it takes you six months to fill out paperwork," he said.

He said Rep. John Mica of Florida, the ranking Republican on the committee, invited him to testify after reading about his views about the overwrought process in an story. Also set to testify, according to Taylor, is U.S. Transportation Secretary Ray LaHood.
Taylor already will be in nearby Virginia on personal business. The only expense to the county will be the cost of his transportation between Virginia and Washington D.C.

Story Link:
© Copyright 2009 Truth Publishing Co.

Energy and Environment Daily: Congress Faces Deadline [Today, September 30th] For Highway Extension

Congress Faces Deadline [Today, September 30th] For Highway Extension
September 29, 2009
Energy And Environment Daily

A deadline tomorrow looms for House and Senate leaders to strike a deal over how long to extend the current highway and transit law.

The two chambers began feuding over the extension's duration this summer, after it became clear that a crowded congressional schedule and uncertainty over how to finance the nation's road and rail work would prevent lawmakers from passing a full, multiyear transportation bill before the current law expires tomorrow.

The House last week cleared a three-month extension of the highway law, a move designed to keep pressure on lawmakers to pass Transportation and Infrastructure Chairman James Oberstar's (D-Minn.) six-year, $500 billion transportation bill by the end of the year (E&E Daily, Sept. 24).

The Senate, meanwhile, is pushing an 18-month extension of the current law to buy lawmakers more time to figure out how they will pay for what is likely to be a substantial increase in federal investment. The Senate plan calls for a multibillion-dollar transfer to fund the federal share of road and rail work through March 2011.

Despite the House's actions last week, Senate leaders have given little indication they are ready to sign on to the three-month plan.

Environment and Public Works Chairwoman Barbara Boxer (D-Calif.) said Thursday that she remained intent on moving forward with her 18-month fix. "That's our plan, that's what we're hoping for," she told reporters.

A spokesman for Majority Leader Harry Reid (D-Nev.) yesterday confirmed the leadership's preference for Boxer's bill, which is backed by President Obama, but added that Reid is "open to the best way to get that done."

Getting Oberstar and other House leaders to sign off on the larger extension by tomorrow would be a heavy lift for Boxer and Reid. Still, even if senators agree to the three-month extension, there is nothing to prevent the chamber from renewing its 18-month effort down the road -- most likely later this year as the three-month extension draws to a close.

A similar standoff this summer between the two chambers ended with a small, albeit temporary, victory for Oberstar.

The House passed a $7 billion transfer to the Highway Trust Fund shortly before leaving for August recess. The transfer served two purposes: The first was to prevent the account from running dry while lawmakers were home for the recess; the second was to block Senate efforts to pass a larger transfer coupled with an 18-month extension of the highway law. With the House gone and the clock ticking, the Senate temporarily abandoned its 18-month plan and instead quickly passed the House's $7 billion fix (E&E Daily, July 31).

Moving forward, however, the political landscape is likely to prove more difficult for Oberstar since he is no longer guaranteed the overwhelming support of House Republicans that he enjoyed this summer. The House cleared the $7 billion transfer, 363-68, but last week's extension drew heavy criticism from GOP leaders, many of whom claimed Oberstar would use the three months to rally support for a gas tax hike to pay for his bill.

Republicans were split on the extension vote, with 86 supporting Oberstar's three-month bill and 85 opposing it, including longtime Oberstar allies, T&I Committee ranking member John Mica of Florida and Surface Transportation Subcommittee ranking member John Duncan of Tennessee.

On truth-telling vs. Republicans' perception of it

“I never give them hell. I just tell the truth and they think it's hell.”
President Harry S Truman


The purpose of government is not to fatten carpetbaggers, carpet-bomb the Constitution or eviscerate nature.

The purpose of government is not to fatten the wallets of self-aggrandizing narcissists who destroy nature, kill trees, end wetlands and laugh all the way to the bank due to lax environmental regulation by our city, county, state and nation.

Evidently, the Builders Council and Ed Paucek are under the mistaken impression that their campaign contributions entitle them to abolish impact fees here in St. Johns County for several years, so they can devastate more trees, kill more wetlands and destroy more nature.

They are so selflsh they have no perspective. See below.

Not so fast.

You want to grow our economy?

Stop killing trees.

Stop ruining beaches.

Stop destroying nature.

Start working for a St. Augustine National Historical Park, Seashore and Scenic Coastal Parkway, "FOR THE BENEFIT AND ENJOYMENT OF THE PEOPLE"

In the immortal words of President Theodore Roosevelt, "Leave it as it is."

People love St. Augustine for our history, beaches, forests and nature.

People don't come to St. Augustine to worship developersd.

We Floridians love to hate developers.

We don't trust people who like developers.

We don't trust people who want to erase impact fees to appease developers.

Come to think of it, there are no City of St. Augustine impact fees. Wonder why? Our City Manager is such a tool of developers he would never let them happen.

One of the best bumper stickers ever, says, "Leaving Florida? Take a developer with you."

We don't need the likes of the Builder's Council and Ed Paucek making up public policy any more. Their indefensible mercantilist position is expressed by Robert Penn Warren, in All The Kings' Men, speaking about typical politicians: "Gimme, gimme, gimme, my name's Jimmy."

When there are no impact fees, economists tell us, the "external costs" of private development is paid by all of us in higher property taxes.

The developers say that we can "increase growth" by removing impact fees.

Oncologists say that you can increase cancer with enough poisons.

Do we want to increase growth when our roads are clogged and so much nature and so many species are endangered?

Do we want to poison our St. Augustine environment?

Or do we want to grow our economy without building any more ticky-tacky houses (80,000 currently authorized)?

We can grow our economy with a St. Augustine National Historical Park, Seashore and Scenic Coastal Parkway, "FOR THE BENEFIT AND ENJOYMENT OF THE PEOPLE"

With a St. Augustine National Historical Park, Seashore and Scenic Coastal Parkway, "FOR THE BENEFIT AND ENJOYMENT OF THE PEOPLE," we can have environmental and historic tourism take off, producing good jobs with good wages, while showcasing our 11,000 years of history to the world, including indigenous (Native-American), African-American, Spanish, Minorcan, Greek, British, American colonial, Civil War and Civil Rights history.

Thank the greedy developers for sharing their concerns.

Then vote against them (again), just as we have again and again in our county for several election cycles, ousting the likes of KAREN STERN, BRUCE MAGUIRE, MARC JACALONE and defeating the likes of RANDY BRUNSON.

This is our time, and the people of our area (and our Nation) deserve a St. Augustine National Historical Park, Seashore and Scenic Coastal Parkway, "FOR THE BENEFIT AND ENJOYMENT OF THE PEOPLE."

County: Study impact fee equity

Publication Date: 09/30/09

At a St. Johns County Commission workshop on impact fee questions, the commission decided to explore fair alternative ways to cover the cost of infrastructure yet still encourage business and industry to relocate here.

That seemed reasonable to the dozens of local builders, contractors and business owners who came to County Auditorium on Tuesday to ask the commission to waive or lower high commercial impact fees.

"There is no true economic incentive program in St. Johns County," said Ed Paucek, spokesman for the St. Johns Builder's Council. "Businesses go elsewhere. They don't come here."

He reminded the board that their campaigns all promised job creation and economic development.

Paucek suggested a few alternative ways of attracting industry: lowering or rebating new commercial utility connection fees, creating enterprise zones, putting money aside for job creation and taking a fresh look at commercial impact fee rates.

That last is what the commission decided to do.

Ben Williams of Fruit Cove said the fees are too high.

"We need to be business friendly," he said. "It's business that creates wealth and puts dollars into the pockets of our citizens. That makes it hard to understand why we should so something so foolish and counterproductive as overtax business."

The county uses business to subsidize residential development, creating an inequity, he said.

Businessman Michael Hirshberg of Jacksonville, whose company owns shopping centers in Florida and other states, said he would like to see any relief on impact fees.

"The last thing you want to do is choke out the motor you want to start," he said.

Construction company owner Michael Davis asked the commission to roll back the rates to 2004.

"What it's killing is local growth, the Mom and Pop stores that are the heart of this community," Davis said. "When people find out that impact fees are 15 to 20 percent of the cost of the building, they go to Clay County."

Commissioner Ken Bryan said impact fees don't seem to have raised the price of a home at all.

In 2007, he said, a 1,800-square-foot house cost $130 per square foot and was worth $234,000.

In 2009, that same type house costs $80 per square foot to build and is worth $144,000.

He thinks the builders should work with the county to determine a solution.

Commissioner Mark Miner said the county didn't need or want residential development.

"It doesn't pay for itself." he said.

Vice Chair Ron Sanchez said the county has $222 million in development agreements that are being paid off by impact fees. In other words, developers have built roads, water lines and other infrastructure and the county pays them back for that with impact fees.

"I'm willing to look at any (idea about impact fees). Impact fees will never fund what they are supposed to fund. It's only a small amount," he said.

The commission's consensus was for a committee to examine the impact fee ordinance and see if, as Commission Chair Cyndi Stevenson said, there can't be "a more robust incentive program."

Other ideas include a deferred incentive program, job centers, lower fees and enterprise zones.

County Administrator Michael Wanchick said a review of the ordinance would cost $20,000 to $25,000 and take six to eight months.

"There are a lot of things we can do, but waiving impact fees isn't one of them," he said.

Where impact fees are used:

Road improvements -- 46 percent

Schools -- 25 percent

Other public facilities -- 29 percent

(This includes parks, fire and law enforcement)

Click here to return to story:

© The St. Augustine Record

Developers tell St. Johns County lower fees would spark growth

By Peter Guinta Story updated at 3:54 PM on Friday, Sep. 18, 2009 EMAIL PRINT BLOG THIS COMMENT Buzz up!

A large contingent of St. Johns County builders, developers and material suppliers on Tuesday asked the County Commission if it would suspend or reduce its high impact fees to encourage business and job growth.

"If we sell nothing, nobody gets anything," said Ed Paucek of the St. Johns County Builder's Council.

The commission's answer: Let's hold a workshop.

Local builders said they often talk to people who come to St. Johns County and say they'd like to start a business here. But once they learn of the county's impact fees that add $100,000 or more to even a small commercial building, on top of high utility hookup fees, the newcomers decide it's cheaper somewhere else.

Florida has the second-highest average impact fees in the U.S., second only to California.

By the numbers

Mike Davis of the A.D. Davis Construction Co. said these are the toughest times the company has seen in 20 years.

"If people see they must pay $50,000 to $100,000 in impact fees for a development, we're going to lose that development," he said, saying impact fees have become 5 to 16 percent of the total cost of building. "Unemployment in construction is 20 to 25 percent. Every time we lose a project to another county, our residents don't get the work."

However, Growth Management Director Suzanne Konchan said impact fees have been suspended or waived in eight of Florida's 35 counties in which they are imposed.

"But no empirical data can be obtained indicating (that) waivers have resulted in significant additional development," she said.

Impact fees for 2009 amount to about $10.8 million. In 2010, they'll be about $11.1 million.

She also presented a list of road, park and public safety improvements that will be deferred if impact fees are suspended. In addition, the loss of impact fees would "subsidize new development to the detriment of developments who have previously paid impact fees."

County statistics show that in 2001, 1,968 building permits were issued. In 2009, there were 978.

'Soon' may be 'never'

Some employers said that half their employees are gone and that they pay far less in taxes than they have in previous years.

Ed Cooksey, 85, said he wants to expand his campground, but, "I'm not giving you $120,000 so I can build on my own land."

Fred Ashdji, a St. Augustine Beach builder, said he wants to build a $20 million hotel there but said impact fees and permits alone will cost $2 million.

" 'Soon' may be 'never,' " he said. "It would have hired 50 employees and gross $7 million annually. It would also collect $250,000 a year in bed taxes."

However, impact fees are also used to finance schools.

Tim Forson of the St. Johns County School District, said they are central to the district's building programs.

"In 1987 we had 10,000 students and 13 schools. Now we have 29,000 students and 32 schools," he said. "Fees paid for four schools and four school expansions."

Konchan said the county is trying to create new concurrency rules to help small businesses and developments. It's also not raising impact fees by 5.1 percent this year, as planned. Also, county staff is proposing a 5-year impact fee payment option on projects whose fees exceed $100,000.

The commission said it wanted to hold a workshop within 60 days on impact fees.

Frank DiMare of DiMare Construction said, "People coming to St. Johns County to open a business get the impression that 'The county doesn't want you here.' But we do. We just need an environment that cultivates business, cultivates a thriving economy."

Editorial: County's future: End 'bedroom' mentality

Publication Date: 09/27/09

The St. Johns County Commission, fresh from raising property taxes last week to cover essential community services, on Tuesday confronts the next single most important financial revenue issue -- impact fees.

Impact fees -- the money paid by property owners on new construction impacts -- are a hot topic because of the downturn in the economy, especially on the construction industry.

Builders want the County Commission to put a two-year moratorium on impact fees retroactive to Jan. 1. The builders say the county has to be more competitive with neighboring counties that don't have impact fees in attracting new development.

We see their point. Why should someone who wants to build a 100,000 square foot office complex come to St. Johns County and pay a six-figure impact fee when they can build the same building without an impact fee in Putnam or Clay counties?

County government is enjoying the ability to spend impact fees on quality of life, such as for parks and recreation and for public safety, road construction. County staff don't want to see impact fees ended or changed because the budget would take an $11 million- $12 million hit annually if they were eliminated.

Who can blame county staff wanting to keep such a source of revenue, because even in the downturn in the economy, some people are building and thus paying for their impacts?

Residents have weighed in on both sides. The ones who cannot build their dream homes complain that the gap between building and not is the impact fee required. Still others don't want builders and developers to be able to run rampant with construction, clogging roads and other public infrastructure, which they see as the outcome of no impact fees.

We understand the views of both camps, but our questions go beyond the fees themselves.

How much longer do we want St. Johns County to be a bedroom community?

How will the county ensure that the commercial tax base will grow to relieve residential from being the major driver of property taxes: 89 percent residential compared to 11 percent commercial?

Won't the long-term benefit of future tax collections from commercial developments outweigh the short-term benefit of the impact fees?

The County Commission will hold a special commission meeting at 9 a.m. Tuesday to discuss the requested two-year moratorium and impact fees in general. Because it is a special meeting, the commission can vote and take action.

This impact fee discussion is timely. The latest impact fee version was adopted in 2005 when the economy was on the upswing. Changes in the economy and property tax reform statewide have caused the county's tax base to erode.

St. Johns County has to be as competitive as possible with its neighboring counties for commercial growth. Our residents shouldn't have to commute outside our county for good-paying jobs. They don't need to spend their money daily in another county's stores, restaurants and gas stations, because they are more convenient to where they work.

Be forward thinkers, County Commissioners.

Should St. Johns County be a bedroom community, or should it make an effort to bring in more jobs?

The answer is clear. It's time to end the bedroom community mentality.

Click here to return to story:

© The St. Augustine Record

Builders seek zero impact fees -- Move would encourage construction and promote new jobs, advocates say

Publication Date: 09/13/09

Some St. Johns County commercial developers plan to ask the County commissioners on Tuesday if they'd agree to suspend all impact fees for two years to encourage new business to locate here.

That's a major request in tough times because in 2009 the county collected $7.3 million in impact fees.

However, Edward Paucek, spokesman for St. Johns County Builders Association, said impact fee relief would immediately attract outside business and industry to relocate or expand into St. Johns County.

"We've asked for this twice before. Staff is not supporting our request," Paucek said. "They don't want the loss of the revenue. But there is a substantial groundswell of support in the community."

He argues that with impact fees gone, the county would see more property and sales tax revenue, more high-paying jobs and higher property values, all of which could bring in more than is collected now.

"It takes political courage to try something that's not a tested situation," Paucek said.

But according to County Administrator Michael Wanchick, the impact fee issue isn't that simple.

Impact fees pay to offset the impact of new growth -- roads, parks, schools and emergency services.

"We recognize that the development community is experiencing very bad times," Wanchick said. "We're not unsympathetic. But by law we must have financial plan that accommodates new development. If we didn't have the impact fee revenue, we'd have to use tax dollars, which would be taxing our own residents to build facilities for newcomers."

Eliminating these fees would also be unfair to the developers, residents and businesses who already paid impact fees, he said.

"It would put them at a competitive disadvantage," Wanchick said.

Paucek said high impact fees are often "deal-breakers" and companies then choose areas that don't have them, such as Nassau, Clay or Putnam counties, which suspended or eliminated impact fees.

Duval County never had them but does impose a Fair Share system to pay for transportation.

Businessman Randy Brunson of St. Augustine said that up to four years ago, real estate locators who select sites for business expansion or relocation would meet with Chamber of Commerce and local officials to tour undeveloped parcels here and view the economic landscape.

"Now they don't come to St. Johns County," Brunson said. "We're considered unfriendly to business. We need to be more focused on the economy and jobs."

Paucek said zero impact fees are supported by the St. Johns County-St. Augustine Board of Realtors, the North East Florida Builders Association, First Coast Manufacturing Association, North East Florida Real Estate Association and the Florida Materials Suppliers Association.

Nick Sacia, executive director of the Chamber's Economic Development Council, said the Chamber hasn't taken a position on impact fees.

"But if you make it cheaper to do business, we support that," he said. "It takes less capital. And (no impact fees) makes it possible to be competitive in the economic arena. But if you're not willing to lower impact fees, it's just another hurdle to overcome."

Wanchick said the County Commission can tie impact fees to the rate of inflation.

"But this year, the commissioners didn't do that," Wanchick said. "We're trying to work with the development community."

Paucek said impact fees were first imposed in 1990, then went up dramatically four years ago.

The fee on a 9,600-square-foot house before the 2005 increase was $15,000. After, it was $56,000, he said.

Nobody knows if there are mathematical models to show how the zero impact fee plan would work.

Paucek said, "At least they should give us the opportunity to prove it."

Click here to return to story:

© The St. Augustine Record

County's impact fees kill construction

Wade Robertson
St. Augustine
Publication Date: 09/05/09

Editor: I have a lot in the Sea Grove neighborhood off of State Road A1A in St. Augustine Beach. My wife and I had started plans to build on the lot when we came upon all of the new fees and taxes associated with construction. There is a $9,800 impact fee, $3,000 permitting fee and at least $2,200 in sewer connection fees; $15,000 in taxes and fees before turning a shovel-full of dirt. Although the permitting fee is outrageous and the sewer connect is high, the impact fee is the deal killer.

I currently live in the county and my kids are in school here. I drive the roads daily. My moving will have no additional impact on the area. More importantly, this fee has killed my plans to build. It adds so much to the cost of building the house, that we have shelved the project.

How can this be good for St. Johns County or the economy here? The county is not going to get the fee anyway. Rather than stimulating the economy with a new project, a general contractor, architect, carpenter, plumber, electrician, concrete contractor, painter, roofer and drywall contractor will remain unemployed and on government benefits. Material suppliers will continue to suffer and close down.

These ill-advised fees instituted during the boom times to slow growth and better manage development are now an incredible drag on the recovery of the economy. There needs to be an effort by the County Commission or local builders to repeal these fees and maybe lower the permitting costs.

I'd like to do my bit for the local economy but the government is putting a building out of reach for my family.

Click here to return to story:

© The St. Augustine Record

Tuesday, September 29, 2009

Watch Part Three of Ken Burns' "THE NATIONAL PARKS -- America's Best Idea" Tonight on PBS

President Theodore Roosevelt: "Leave it as it is."

Watch Part Three of Ken Burns' "THE NATIONAL PARKS -- America's Best Idea" Tonight on PBS.

Then work tirelessly to enact the St. Augustine National Historical Park, Seashore and Scenic Coastal Parkway Act. Here's the latest draft:

111th Congress, 1st Session,
S. _____
St. Augustine National Historical Park, National Seashore and Scenic Coastal Parkway Act of 2009
to amend Title 16, United States Code, to establishing the St. Augustine National Historical Park, National Seashore and Scenic Coastal Parkway and associated Advisory Commission, authorizing donations and purchase of land, authorizing appropriations and for other purposes.
Section 1: Short Title. This Act may be cited as the St. Augustine National Historical Park, National Seashore and Scenic Coastal Parkway Act.
Section 2: Title 16, United States Code Section 410 is amended by adding a new section at the end thereof, as follows:
410______ St. Augustine National Historical Park, National Seashore and Scenic Coastal Parkway

(a) Findings and purposes
(1) Findings
The Congress finds that—
(A) the St. Augustine National Historic District and associated historic sites, including those described in subsection (c)(2) of this section, are National Historic Landmarks and are listed on the National Register of Historic Places as historic sites associated with the history of our Nation's Oldest continually-occupied European-founded city;
(B) the City of St. Augustine was founded by the Spanish explorer Pedro Menéndez de Avilés on September 8, 1565 and retains significant archaeological, architectural features, archival materials, and museum collections illustrative of the Spanish, Minorcan, Greek and British colonial periods;
(C) St. Augustine's historic resources provide unique opportunities for illustrating and interpreting indigenous (Native-American), African-American, Spanish, Minorcan, Greek, British, American colonial, Civil War and Civil Rights history and Northeast Florida's contribution to the economic, social, and environmental history of the United States and provide opportunities for public use and enjoyment;
(D) The year 2013 marks the 500th anniversary of the arrival of Spanish explorers and colonists on these shores and 2015 marks the 450th anniversary of the City of St. Augustine; and
(E) the National Park System presently contains only two small National Monuments associated with one part of St. Augustine's 11,000 years of human history.
(F) St. Augustine and St. Johns County are imbued and blessed with great natural beauty and biodiversity, including threatened and endangered species, including beach mice, butterflies, bald eagles and manatees.
(G) The St. Augustine area's precious environmental, historic and cultural heritage is in danger of destruction due to large-scale, rapid development and a lack of planning for parklands, preservation and public transportation.
(H) Several significant properties have been lost to development forever and more are imperiled.
(I) Roads are clogged and the enjoyment of the area's beauty is marred by lack of public transportation
(J) There is an urgent need for action on the part of the federal government to preserve the history and beauty of the area and to provide public transportation to serve the millions of visitors annually, while relieving local residents from traffic congestion, air pollution and energy waste associated with rapid development.

(2) Purposes
The purposes of this section are—
(A) to help preserve, protect, and interpret the resources within the areas described in subsection (c)(2) of this section, including architecture, seashores, vistas, settings, and associated archival and museum collections;
(B) to collaborate with the cities of St. Augustine and St. Augustine Beach and the government of St. Johns County, Florida and with associated historical, cultural, environmental, tourism and preservation organizations to further the purposes of the park established under this section;
(C) to provide opportunities for the inspirational benefit and education of the American people; and
(D) to preserve St. Augustine's history and natural beauty for future generations.
(E) to protect endangered species and scenery forever;
(F) to grow our economy and encourage historic and environmental tourism; and
(G) to preserve St. Augustine’s history and natural beauty for future generations.

(b) Definitions
For the purposes of this section—
(1) the term "park" means the St. Augustine National Historical Park, National Seashore and Scenic Coastal Parkway established by subsection (c) of this section; and
(2) the term "Secretary" means the Secretary of the Interior.

(c) St. Augustine National Historical Park, National Seashore and Scenic Coastal Parkway
(1) Establishment
In order to preserve for the benefit and inspiration of the people of the United States as a national historical park certain districts, structures, lands, waters and relics located in and near St. Augustine, Florida, and associated with the history of indigenous (Native-American), African-American, Spanish, Minorcan, Greek, British and colonial peoples and related social and economic themes in America, there is established the St. Augustine National Historical Park, National Seashore and Scenic Coastal Parkway.
(2) Boundaries
(A) The boundaries of the park shall be those generally depicted on the map numbered _____and dated _____. Such map shall be on file and available for public inspection in the appropriate offices of the National Park Service. In case of any conflict between the descriptions set forth in clauses (i) through (xx) and such map, such map shall govern. The park shall include the following:
(i) The area included within the City of St. Augustine Historic Preservation Districts;
(ii) Anastasia State Park;
(iii) Castillo de San Marcos National Monument and the associated Cubo Line and St. Augustine City Gates sites;
(iv) Fort Matanzas National Monument;
(v) Plaza de la Constitución (Slave Market Square);
(vi) Deep Creek State Forest;
(vii) Faver-Dykes State Park;
(viii) Fort Mosé State Park;
(ix) Guana Tolomato Matanzas National Estuarine Research Reserve (GTM NERR);
(x) Watson Island State Forest;
(xi) St. Johns River Water Management District's Twelve Mile Swamp, Deep Creek, Matanzas Marsh Moses Creek and Stokes Landing reservations located in St. Johns County, Florida;
(xii) Designated portions of the seashore owned by St. Johns County, Florida between the Duval and Flagler County lines;
(xiii) Designated portions of U.S. Route A1A between the Duval County and Flagler County lines;
(xiv) Designated portions of U.S. Route 1 between the Duval County and Flagler County lines;
(xv) The former Ponce de León Golf Course, Red House Bluff, Magnolia Avenue and other indigenous (Native-American) sites set forth in the map labeled as ______ and dated _________;
(xvi) Matanzas River between the Matanzas Inlet and its headwaters, including submerged lands and underwater artifacts
(xvii) St. Augustine Seawall;
(xviii) State-owned historic buildings deeded to the University of Florida;
(xix) beaches, submerged lands, marshes and other areas that are owned by the cities of St. Augustine and St. Augustine Beach and by the State of Florida in trust for the people of Florida, including marshes, reefs, shorelines and underwater archaeological artifacts;
(xx) Marineland, operated by the University of Florida;
(xxi) Such other areas and sites as Congress may in the future designate by legislation.
(B) In addition to the sites, areas, and relics referred to in subparagraph (A), the Secretary may assist in the interpretation and preservation of each of the following:
(i) Government House;
(ii) Spanish Quarter Village Living History Museum;
(iii) Lincolnville Historic District;
(iv) Designated Civil Rights sites;
(v) Lightner Museum and City Hall (former Alcazar Hotel);
(vi) Old St. Johns County Jail;
(vii) Alligator Farm Zoological Park;
(viii) Old St. Augustine Village;
(ix) St. Augustine Historical Society and Research Library;
(x) St. Augustine Lighthouse and Museum and the Lighthouse Archaeological Maritime Program (LAMP);
(xi) Ximinez-Fatio House;
(xii) St. Photios National Shrine;
(xiii) Mission de Nombre de Dios;
(xiv) Fountain of Youth Historical Park;
(xv) Gonzalez-Alvarez House (Oldest House);
(xvi) Oldest School House;
(xvii) Ponce de León Hotel (now part of Flagler College);
(xviii) Excelsior School Historical Museum;
(xix) Bridge of Lions;
(xx) St. Augustine Cathedral-Basilica;
(xxi) Grace United Methodist Church;
(xxii) Trinity Episcopal Church;
(xxiii) Ancient City Baptist Church;
(xxiv) Sons of Israel Congregation;
(xxv) Florida School for the Deaf and Blind;
(xxvi) National Guard Headquarters (former Franciscan Monastery or Priory);
(xxvii) St. Augustine National Cemetery and other historic cemeteries, including but not limited to the Huguenot, Tolomato, Evergreen, San Sebastian, Pinehurst, Woodlawn and other historic cemeteries;
(xxviii) Zorayda Castle;
(xxix) Casa Monica Hotel and other Henry Flagler era sites; and
(xxx) Flagler Model Land Community.

(d) Related facilities
To ensure that the contribution of all people in St. Augustine's history, including indigenous (Native-American) and of African-American people, are fully recognized, the Secretary shall provide—
(1) financial and other assistance to establish links between the St. Augustine National Historical Park, National Seashore and Scenic Parkway and local organizations.
(2) appropriate assistance and funding to establish a St. Augustine National Civil Rights Museum and a St. Augustine Indigenous Tribal Cultural Center.
(3) suitable off-site locations for park vehicles, trolley cars, maintenance facilities, warehouses and offices.
(4) suitable locations for archives, to make them available to scholars, researchers, genealogists and the general public at a suitable hurricane-resistant location in St. Augustine or St. Johns County, Florida.
(5) a reliable source of coquina for repairs to the Castillo de San Marcos, Fort Matanzas and other historic properties, trolley car routes, right-of-way features, roadbuilding, sidewalks and landscaping consistent with historic preservation principles.
(6) educational programs in conjunction with the University of Florida to provide cooperative educational arrangements for graduate students to work and live in the St. Augustine National Historical Park, National Seashore and provide archaeological and interpretation services on a continuing basis.

(e) Administration of park
(1) In general
The park shall be administered by the Secretary in accordance with this section and the provisions of law generally applicable to units of the National Park System, including sections 1, 2, 3, 4, and 461 to 467 of this title.
(2) Cooperative agreements
(A) The Secretary may consult and enter into cooperative agreements with interested entities and individuals to provide for the preservation, development, interpretation, and use of the park.
(B) Any payment made by the Secretary pursuant to a cooperative agreement under this paragraph shall be subject to an agreement that conversion, use, or disposal of the project so assisted for purposes contrary to the purposes of this section, as determined by the Secretary, shall result in a right of the United States to reimbursement of all funds made available to such project or the proportion of the increased value of the project attributable to such funds as determined at the time of such conversion, use, or disposal, whichever is greater.
(3) Non-Federal matching requirements
(A) Funds authorized to be appropriated to the Secretary for the purposes of—
(i) cooperative agreements under paragraph (2) shall be expended in the ratio of one dollar of Federal funds for each four dollars of funds contributed by non-Federal sources; and
(ii) sustainable, carbon-neutral, environmentally-friendly construction, restoration, and rehabilitation of visitors and interpretive facilities (other than annual operation and maintenance costs) shall be expended in the ratio of one dollar of Federal funds for each one dollar of funds contributed by non-Federal sources.
(B) For the purposes of this paragraph, the Secretary is authorized to accept from non-Federal sources, and to utilize for purposes of this section, any money so contributed. With the approval of the Secretary, any donation of property, services, or goods from a non-Federal source may be considered as a contribution of funds from a non-Federal source for the purposes of this paragraph.
(4) Acquisition of real property
For the purposes of the park, the Secretary may acquire by donation or purchase from a willing seller such lands, interests in lands, and improvements thereon within the park boundaries as are needed for historical and environmental preservation and essential visitor contact and interpretive facilities. The Secretary may acquire land or structures through condemnation if necessary to preserve them from destruction.

(5) Other property, funds, and services
The Secretary may accept donated funds, property, and services to carry out this section.

(f) General management plan
Not later than October 1, 2010, the Secretary shall submit to the Committee on Resources of the House of Representatives and the Committee on Energy and Natural Resources of the Senate a general management plan for the park, in consultation with the St. Augustine National Historical Park, National Seashore and Scenic Coastal Parkway Advisory Commission created in subsection (g), and shall implement such plan as soon as practically possible. The plan shall include a cost-effective, sustainable, carbon-neutral, environmentally-friendly means of transporting visitors and residents to and through the park's locations, using trolley cars resembling those in use in St. Augustine, Florida in 1928, with the goal of reducing hydrocarbon consumption, traffic congestion, air pollution and damage to historic structures. The plan shall be prepared in accordance with section 1a–7 (b) of this title and other applicable laws and may include suitable recommendations to Congress for modifications of the approved park boundaries and this Act.

(g) St. Augustine National Historical Park, National Seashore and Scenic Coastal Parkway Advisory Commission
(1) Establishment; termination
There is established a St. Augustine National Historical Park, National Seashore and Scenic Coastal Parkway Advisory Commission (hereinafter referred to as the "Commission"), to be governed by the Federal Advisory Committee Act (FACA), 5 U.S.C. Appendix 2, with a fairly balanced membership and open meetings and financial disclosures as required by FACA. The Commission shall terminate October 1, 2019.
(2) Membership; term
The Commission shall have a fairly balanced membership, embracing diverse persons knowledgeable of history, ecology, anthropology, archaeology, mass transit and trolley car systems and tourism and shall include a balanced group of residents, scholars, environmental, civil rights and civic activists and businesspeople, and will be composed of twelve diverse members, each of whom shall be appointed without regard to political affiliations or beliefs for a term of two years by the Secretary as follows:
(A) Two members to be appointed from recommendations made by the City of St. Augustine, Florida, City Commission;
(B) Two members to be appointed from recommendations made by the City of St. Augustine Beach, Florida, City Commission;
(C) One member to be appointed from recommendations made by the City of Palatka, Florida and the Town of Hastings, Florida, City Commissions;
(D) Two members to be appointed from recommendations of the Board of County Commissioners of St. Johns County, State of Florida;
(E) Two members to be appointed from recommendations of the Governor of the State of Florida;
(F) Two members to be appointed from recommendations by the President of the University of Florida; and
(G) Two members to be designated by the Secretary.
(3) Chair; vacancies
The Secretary shall designate one member to be Chair. Any vacancy in the Commission shall be filled in the same manner in which the original appointment was made.
(4) Compensation and expenses
A member of the Commission shall serve without compensation as such. The Secretary is authorized to pay the expenses reasonably incurred by the Commission in carrying out its responsibilities upon vouchers signed by the Chair.
(5) Majority vote
The Commission established by this section shall act and advise by affirmative vote of a majority of the members thereof.
(6) Consultation of Secretary with Commission
The Secretary or his designee shall, from time to time, consult with the members of the Commission with respect to the plan required in subsection (f) and all matters relating to the creation and preservation of St. Augustine National Historical Park, National Seashore and Scenic Coastal Parkway and shall consult with the members with respect to carrying out the provisions of sections ____ of this title.
(7) Advice of Commission for commercial or industrial use permits and establishment of public use areas for recreational activities
No permit for the commercial or industrial use of property located within the seashore area of the park shall be issued by the Secretary, nor shall any public use area for recreational activity be established by the Secretary within the seashore area of the park, without the advice of the Commission.

(h) Authorization of appropriations
(1) In general
Except as provided in paragraph (2), there are authorized to be appropriated such sums as may be necessary to carry out annual operations and maintenance with respect to the park and to carry out the activities under subsection (d) of this section.
(2) Exceptions
In carrying out this section—
(A) not more than $35,000,000 may be appropriated for construction, restoration, and rehabilitation of visitor and interpretive facilities, and directional and visitor orientation signage;
(B) none of the funds authorized to be appropriated by this section may be used for construction of any new building on Avenida Menéndez across from the Castillo de San Marcos National Monument. A central St. Augustine National Historical Park, National Seashore and Scenic Coastal Parkway Visitor Center shall be built in one or more historic or restored buildings along or adjacent to St. George Street; and
(C) not more than $2,000,000 annually of Federal funds may be used for interpretive and education programs pursuant to cooperative agreements under subsection (e)(2) of this section.

Section 3: Effective Date. This Act shall take effect within 30 days of the date of enactment.

Section 4: Severability Clause: In the event that any portion of this Act is held unenforceable, it shall be severed from the rest of this Act.