Cape Cod Town Rebels Against “Starter Castles”

The tiny, rural Cape Cod town of Truro is tackling a big problem. Troubled by the trend for property owners to tear down modest, older seaside homes and replace them with behemoths referred to as “McMansions” or “starter castles,” some residents are pressing the town to enact limits on the size of new homes.

Truro, the narrow “wrist” of Cape Cod, is home to only 2,000 souls. The town boasts beaches that lure families and surfers, a charming harbor, restaurants that bustle during summer, and a vibrant arts community.

Seventy percent of Truro was absorbed into a national park in 1961 when President John F. Kennedy established the Cape Cod National Seashore to protect the fragile Cape environment. Within Truro’s National Seashore district are 200 privately-owned properties. About three-quarters are modest cottages and homes with less than 2,500 square feet of living space. Advocates for an amendment to Truro’s zoning bylaw view these properties at risk of being demolished and replaced by residential mammoths.

Two Truro residents, John Marksbury and Chuck Steinman, watched and worried as they saw modest, older homes torn down and replaced. They launched a grassroots organization named “Save Truro’s Seashore,” and spearheaded efforts to change the town’s zoning bylaw to restrict the size of newly-constructed homes. With numerous 3-acre lots, Truro’s Cape Cod National Seashore properties could succumb to the trend in destination resorts toward developer-owned vacation rentals, according to the “Save Truro’s Seashore” website. Marksbury said new buyers of properties in the National Seashore zoning district have deciphered local zoning weaknesses and are building homes of 4,000 square feet or larger.

Truro is one of a number of waterfront vacation destinations struggling to manage how to regulate the size of new dwellings. Residents of the Martha’s Vineyard town of Chilmark were inspired to take action after watching new home size mushroom over a period of years. The tipping point occurred when Adam and Elizabeth Zoia tore down a small home and replaced it with a 8,500 square foot home and two “accessory” buildings with a total of 20,000 square feet of space. The newly released documentary film, “One Big Home,” lays out how development has gobbled up open space on Martha’s Vineyard. Shot over twelve years by Massachusetts filmmaker and carpenter, Thomas Bena, “One Big Home” chronicles how mansionization spurred Chilmark residents to reign in new home size through the unpredictable process of direct democracy known as town meeting action.

Limiting how large an owner may build a home can uncover a clash of values: The right to control private property on one hand and a community’s desire to maintain its cultural heritage, community character, open space, and healthy environment on the other. Massachusetts land use attorney and planning expert, Joel Russell, wrote, “Good planning requires a balance between protecting property rights and protecting public welfare.”

In Massachusetts, the number of people living in each home is dropping while, at the same time, house size is expanding. The average size of a Massachusetts home in 1950 was 800 square feet; by 2000 18% of new homes were over 3,000 square feet. The growing size of homes has significant “collateral” effects. Large dwellings use more energy, produce more pollution, and eat up land at high rates.

In Truro, the proposed zoning amendment would limit the square footage of livable floor space relative to the size of a property. For example, on a lot less than one-half acre, the maximum house size would be 2,500 square feet. A zoning special permit process would be offered under certain conditions to permit larger homes, but the maximum size home allowed on any lot would be 4,500 square feet—if the bylaw amendment passes. Advocates for this zoning change acknowledge that zoning laws place limits on what people can do with their property and that the law must be fair and reasonable.

While Chilmark, Massachusetts, was successful in curbing unlimited new house size by amending its zoning bylaw in 2013, it is unclear how the Truro effort will fare. Voters will determine their community’s future at Truro’s spring 2017 town meeting.

photo

This newly constructed 9,570 sq. ft. Truro house sleeps 22 people, has a home theatre, 7 bedrooms, 8 bathrooms, an outdoor recreation complex and private beach. It’s available to rent. (Credit: Save Truro’s Seashore, savetruroseashore.org).

Related Film:

Thomas Bena’s One Big Home: www.onebighomethemovie.com

Sources:

Sarah Gardner, The Impact of Sprawl on the Environment and Human Health, in Urban Sprawl: A Comprehensive Reference Guide (David Soule ed. 2006).

John Ives, Truro Opens a Debate on Limiting the Size of Houses, Provincetown Banner, (Aug. 14, 2016), http://provincetown.wickedlocal.com/news/20160814/truro-opens-debate-on-limiting-size-of-houses.

John Marksbury, Preserving an American Treasure in Truro, Provincetown Banner (Jul. 21, 2016).

Joel Russell, Massachusetts Land-Use Laws–Time for a Change. 54 Land Use Law & Zoning Digest 3 (2002).

Save Truro’s Seashore, Market Trends (2016), http://www.savetruroseashore.org/market-trends.

Save Truro’s Seashore, Our Proposed Zoning Amendment (2016), http://www.savetruroseashore.org/our-proposed-zoning-amendment.

Mark Shanahan, Filmmaker Focuses on Vineyard’s Big ‘Starter Castles,’ Bos. Globe (Aug. 26, 2016), http://www.bostonglobe.com/metro/2016/08/26/big-houses-vineyard-draw-filmmaker-attention/R9HPKAVQIipEbbXRnbWSoM/story.html.

Remy Tumin, Hearing on Large Chilmark Home Airs Neighbors Claim of Violations, Vineyard Gazette (Jul. 26, 2012),

https://vineyardgazette.com/news/2012/07/26/hearing-large-chilmark-home-airs-neighbors-claim-violations.

Town of Truro Town, About Truro (2016), http://www.truro-ma.gov/about.

DON’T QUIT YOUR DAY JOB: Imputed Income as it Applies to Voluntary Impoverishment

Often, the breakdown of a relationship that produced a child is accompanied by obligations to pay child support. Child support is a hotly debated point of contention, both in and out of court, and can lead to emotional and financial turmoil for both parties. Courts apply Child Support Guidelines to determine which parent is the obligor (paying parent) and which one is the non-obligor (receiving parent). In most cases, the obligor parent is the non-custodial parent. Pursuant to the Child Support Guidelines, the obligor is required to pay an amount commensurate with his or her income. Oftentimes, the obligor parent believes this amount is too high and, in some cases, believes that becoming underemployed or unemployed will reduce his or her child support obligation. This is commonly referred to as voluntary impoverishment. However, this is not recommended, as the courts have incorporated the practice of imputing income to payor parents who have been found to be voluntarily underemployed or unemployed for the purposes of avoiding child support obligations.

Courts do not recognize a presumption that a reduction in salary is a purposeful attempt to avoid paying child support obligations. Thus, the burden is on the non-obligor parent to prove that the obligor parent is voluntarily under- or unemployed. The court will not impute income to a parent who is involuntarily under- or unemployed because punishing people who have been laid off is in contravention to public policy. Additionally, a recent Massachusetts Appeals Court decision added another provision to the attribution of income when the court held that income cannot be imputed to an under- or unemployed obligor parent unless the court makes a factual finding that the spouse is not engaged in a reasonable job search.

However, a parent’s obligation to his or her children is a well-established bulwark of family law in every state. Income attribution is appropriate in cases where an obligor parent voluntarily reduces their salary by becoming under- or unemployed, notwithstanding their ability and capacity to earn a higher income through reasonable effort. In these cases, the trial judge will not use actual income but the earning capacity of the obligor parent to determine child support obligations. Judges calculate earning capacity using a totality of the circumstances calculation. Factors considered include previous work history and salary, education, training, age, current job market, and efforts to secure employment.  Wide discretion is given to the trial judges through statute and case law that permit them to make assumptions based on these factors and their decisions will only be vacated upon abuse of discretion.

What about an obligor spouse that is voluntarily impoverished because of a good faith reason, such as returning to school, retirement, staying home to raise small children, wanting a less stressful environment, or just plain happiness? Even in these cases, the decision to change positions or become unemployed is not left to the sole discretion of the obligor spouse. Instead, courts have consistently held that those reasons “must be balanced against his [or her] obligations to support his [or her] former family.” Courts will not punish children for the decisions of the obligor parent. The exception to this is when an obligor parent is suffering from a physical or mental disability making full-time work virtually impossible. In these cases, courts will not impute income.

Obligor parents who are trying to avoid paying child support should understand that taking action to become (and remain) voluntarily impoverished will put the obligor parent in a more precarious financial situation. Courts will not reduce their child support obligations. The result is a lower paying job or no job at all with the same child support obligations. If an obligor parent does not put the best interests of the child first, the courts will compel him or her to do so. The message from the courts is clear: the rights of the child are paramount.

The Massachusetts state laws governing child support are: M.G.L. ch. 19, 208, 209, 209c.

Sources:

Charles P. Kindregan and Christina M. Knopf, Attributing Income in Massachusetts Domestic Relations Cases, Massachusetts Bar Association (Dec. 2012), http://www.massbar.org/publications/lawyers-journal/2012/december/attributing-income-in-massachusetts-domestic-relations-cases.

Child Support Guidelines, § IIH and G.L. c. 208 § 53(f).

Renee Lazar, Do Not Change Jobs to Lower Your Child Support in Massachusetts, Law Offices of Renee Lazar (Dec. 21, 2015), http://www.reneelazarlaw.com/blog/2015/12/do-not-change-jobs-to-lower-your-child-support-in-massachusetts.shtml.

Ulin v. Polansky, Mass App. Ct. 11-P-1450 (2013).

David W. Griffin, Earning Capacity and Imputing Income for Child Support Calculations: A Survey of Law and Outline of Practice Tips, 26 Journal of the American Academy of Matrimonial Lawyers 365 (2014), http://www.aaml.org/sites/default/files/MAT208_4.pdf.

Kristina Otterstrom, Child Support and Figuring Your Fair Share: Imputed Income, Lawyers.com, http://family-law.lawyers.com/child-support/imputed-income-in-child-support-calculations.html.

Annette T. Burns, What’s Necessary to Prove Imputed Income for a Spouse?, Annette T. Burns Attorney at Law (Feb. 11, 2011), http://heyannette.com/whats-necessary-to-prove-imputed-income-for-a-spouse/.

Cyber Law and the Tallinn Manual 2.0

The desire for mankind to become more interconnected has posed a multitude of new legal issues that cross multiple jurisdictional boundaries. Internationally, cyber topics have gained notoriety as humanity has developed new technologies used in the cyber realm. The cyber world is rampant with reports of child pornography, human-trafficking, and child grooming. There are an abundance of computer crimes like purchasing anonymous credit cards, bank accounts, encrypted telephones, and false passports, or identify theft. And these are only increasing in frequency as humans become more technologically interconnected. Even more concerning to some is the threat of the takeover of information networks and computers through cyberspace to execute acts of terrorism.

The legality of many issues within cyberspace are undefined and uncertain when compared to other international legal practice areas. In fact, common definitions for many cyber terms are malleable like: cyber security, cybercrimes, cyber defense, cyberattacks, and cyber warfare. As this field develops, there have even been disagreements about the proper terms themselves. The biggest questions surround the lack of a unique international legal framework to identify what is and is not acceptable behavior in cyberspace.

The Tallinn Manual, written by a group of international experts, examines how international law applies to cyber conflicts and cyber warfare. The project was initiated by the NATO Cooperative Cyber Defence Centre of Excellence though it does not represent the views of the Centre, the sponsoring nations, or NATO. The Tallinn Manual focuses particularly on jus ad bellum and international humanitarian law. Jus ad bellum, the law of wars, are those ‘rules’ to consult before engaging in war, whereas international humanitarian law focuses on jus in bello, the limitations to acceptable wartime behavior. The scope of the Tallinn Manual also touches on related subjects such as the law of state sovereignty, and the law of sea within the context of cyber topics.

The excitement for this practice area comes with the expected release of the Tallinn Manual 2.0. This second edition is planned to focus on providing guidance on applying existing international norms to the cyber context, similar to the first Tallinn Manual. However, it will expand the scope considered in the original Tallinn Manual and it will address cyber issues during peacetime international law. The focus here will be the challenges of daily cyber operations that do not rise to the level of armed attacks. It will touch on related subjects such as State responsibility, the law of the sea, international telecommunications law, space law, diplomatic and consular law, and human rights law within the context of cyber topics.

The Director of both editions is Professor Michael Schmitt, a Senior Fellow at the Centre, from the United States Naval War College in Newport, RI, and the University of Exeter in the United Kingdom. Professor Schmitt is an international law scholar, with a long list of accolades and contributions to international law.

The Tallinn Manual 2.0 is expected to be released in the latter part of 2016.

What Steve Jobs Taught Me About Brexit

When Britain ended its economic ties with the European Union, I found myself unabashedly ill with rage. Why? Because I believe this decision was made without vision as to what the future of the UK will and should be. Severance was done without any regard for what consequences lie in wait. People were afraid of immigration and terrorism and convulsed in stupendous confusion by lashing out involuntarily at a symbol of internationalism: the EU. Leaving the EU was a nationalist, reactionary move made from fear, not a move following a thoughtful mission pursuing a clear vision, as demonstrated by the British public’s frantic Google searches asking “what is the EU” just hours after the vote was concluded. This is not to diminish the massive policy challenges that Britain faces from either immigration or terrorism, but rather to emphasize the massive economic and geopolitical ramifications of this sudden, ill-understood severance. What, for example, will become of Britain’s farmers who received £2.4 billion pounds in subsidies last year?  This should serve as a reminder of what may lie in wait for the U.S. electorate should it be swayed by similarly misguided rhetoric.

I think this move was made by people Steve Jobs would have described, as he did in his famous Stanford speech, as people whose values are “old and need to be washed away.” This has nothing to do with age. This has everything to do with vision. As Jobs goes on to describe, these conservative separatists are “trapped by dogma, which is living with the results of other people’s thinking.” Populist conservatives and their followers are trapped by the rhetorical ignorance of nativism that plagued the 20th century repeatedly, and will follow us for the foreseeable future throughout the 21st. 

But what does this have to do with me? How does this play into my vision and my mission as a law student, as a writer, and as a United States citizen? 

My mission at this moment is to improve myself mentally, academically, and emotionally for the rigors of political life and change. My vision for the future is to help lead and inform a constituency of like-minded individuals into a future with dialogue, innovation, and equal opportunity for all.  When I leave law school and management school, I want to work for the State Department to gain experience with the realities of our international relations, using the skills I have gained to succeed there. After that work as a public servant, if I am so lucky, I would like the opportunity to serve as a policy-maker. I have a clear vision of what the future could be for me, and what I believe could bring about a better world for my country and humanity. I hope that by learning the realities of business and the law, by meeting more people who see that we must build coalitions among ourselves and other peoples, I can navigate the harsh realities with thoughtful mission to make it happen. 

Frankly, I cannot go quietly into a future knowing, as “Brexit” demonstrates, that it is still being so swayed by fear to accept ignorance of the negative externalities . It offends everything that previous generations have taught us through their follies and triumphs. World War I. World War II. The Holocaust. Genocide in Rwanda. Genocide in Bosnia. How can we face ISIS, those cowards and abusers of human dignity, when we still hold on to our unconscious reaction of “Let’s just think about us and forget our commitments to the rest of the world?”

We can’t. We simply cannot survive or afford to. That is why my mission is to become the best individual I can through my legal and management studies, so that I will be more capable to achieve whatever else we must to bring about our vision of a better world.

Steve Jobs wanted to make a dent in reality with his time here, and by all measures he did that with his all too brief time on this planet. One man was able to accomplish that through his intellect and courage to go forth purposefully. Imagine what we could all do, if we took that same Jobsian challenge together. What a wonderful world this could be. As Jobs said, “Remember we are all going to die, so we have nothing to lose.” So let’s give it shot and make a dent not for profit, not for fame, but for each other, for our kids, and for a better tomorrow.

Property Rights In Outer Space

The final frontier is wilder than the Old West. Beyond the sheer awe of vast and seemingly endless space—who would own property in space?

The classic legal answer: is that it depends. And it depends precariously on the intricacy and interpretation of treaties and international principles established years ago.

The Outer Space Treaty—the main legal authority on space law—provides the international community with guidelines on expected national behavior in space. The treaty entered into force on October 10, 1967. The United States Department of State describes it as the second ever non-armament treaty. And the treaty says that outer space—including celestial bodies and the moon—is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means. Rather, this treaty purports to treat outer space exploration as the “province of all mankind.”

Some scholars have interpreted this language to assert that all extraterrestrial property rights are banned by the Outer Space Treaty. Others argue that the non-appropriation provision of the Outer Space Treaty applies only to national governments and therefore private parties are implicitly allowed to claim property. If true, imagine the door to the final frontier wide open for private companies to walk through and claim title and ownership to celestial bodies.

Just last year, Rosetta, a European Space Agency space probe was the first to orbit a comet. Its lander module, Philae, made the first successful soft landing on a comet nucleus on November 12, 2015. The lander will drill into the surface, collect data on its composition, and observe critical changes to the comet as it approaches the sun.

Alongside the striking reality that the vast unknown is slowly becoming more known, is the certainty that outer space is prime to become the next place for commercial exploration and expansion.

There has been a lot of privately funded movement to go to space—for more reasons than just scientific exploration. For instance, Virgin Galactic founded by Richard Branson expects to provide leisure travel to the highest reaches to paying tourists on regularly scheduled spaceflights. Spaceport America, a government built spaceport, is a connected development, built in the desert of New Mexico, hosting both: Virgin Galactic and SpaceX. SpaceX led by CEO Elon Musk has already completed contracts with NASA delivering payloads of crew supplies, station hardware and science experiments to and from the International Space Station. SpaceX’s Falcon 9 has made successful landings, first in December 2015 on a landing pad at Cape Canaveral, then in April 2016 on a drone ship named “Of Course I Still Love You.” In May 2016, again the Falcon 9 successfully landed on the same drone ship, but under increased difficulty because of the increased speed during booster separation. Planetary Resources Inc., previously known as Arkyd Astronautics, and founded by multiple billionaire entrepreneurs, intends to expand Earth’s natural resource base with long-term plans to develop a robotic asteroid mining industry. In April 2015, a test satellite was launched and successfully transported into orbit, and thereafter deployed to the International Space Station.,

Considering these transitions in the motivations to develop the space industry and the ever developing technological advances, it seems only a matter of time until the law must move forward to match the technology. However, for now the treaty interpretation debates are best left to legal academics, because the technology for private companies to venture into outer space and establish commercial enterprises is not quite there. Certainly with the recent technological strides, like a space probe orbiting and descending its module onto a moving celestial body, the idea of property ownership in space becomes thought provoking. It is cutting edge and an achievement that will likely change the perspective of comets, asteroids, and planets in the final frontier for many.

 

-Felicia Carboni