NPU-D Report

by Jim Martin
james.martin@me.gatech.edu

The November 24 th NPU-D meeting was pretty quiet. The only important business was when we elected our officers for 2010 as our bylaws required. Next year, I will remain the Chairman, Karyn Hudson will remain the Vice Chairman, and Karl Goodhew will remain the secretary. It was almost as exciting as the BPNA elections the week before. We dealt with two other business items. In the first, we endorsed Harry Leon's appeal to the BZA protesting the rescission of the citation issued to CSX for handling hazardous materials without a permit in the Howell rail yard. I wrote about this in last month's newsletter. In the second, we approved a liquor license for the Corner Tavern, which is moving into the new development at the corner of Huff Road and Ellsworth Avenue.

The hot topics of discussion at the meeting involved the Department of Watershed Management. One was the draught surcharge that people have been complaining about for some time. Kamilah Carter from the DWM told us that there is not now and has never actually been a draught surcharge. It was apparently proposed, but never enacted during the draught. Several people questioned this assertion and said that the surcharge was listed as an item on their water bills just like the homeland security surcharge. When I got home after the meeting, I checked my bill and could find no mention of it. It seems odd that people would have been complaining so much about a thing that never existed when there are so many extant things worthy of complaint. As far as I can tell, either that is the case or DWM has executed an effective cover up. Since DWM does not have a reputation for effectiveness, I am betting on the former.

On December the 10 th Harry Leon's appeal regarding CSX was heard by the board of zoning adjustment (BZA). There were seven of us there to support him. Three of us spoke in support of his appeal. The BZA denied the appeal based largely on the testimony of the city's attorney who parroted the contention of the three CSX attorneys in attendance that the city did not have the authority to enforce its codes against the railroads, because it was preempted by federal laws shielding interstate commerce from local regulation. There are many troubling things about this assertion both regarding what CSX is doing in the Howell yard and what they might choose to do in the future. This argument could be easily extended to protect almost any activity on that site from local regulation. After the hearing, I asked the CSX attorney if it would permit the handling of nitroglycerine, plutonium, or cyanide in the Howell Yard. His answer was “It would, but that would be regulated by federal laws…”. I did not find this reassuring. I was also troubled by the assertions of CSX's attorneys that they were doing everything possible to protect public safety in the Howell Yard. If that were in fact the case, it does not seem like they would have had difficulty obtaining appropriate permits for their actions, which makes their extraordinary efforts to avoid obtaining these permits difficult to understand.

Ultimately, the problem with Harry's case was that the relevant issue was the city's standing to enforce its laws against a railroad and this could only be decided in court. In order to bring the case to court, the city would first have to assert its own authority rather than having this asserted by a third party. By announcing that the city was not willing to do this, the city attorney placed the BZA in the unusual situation of deciding a dispute outside of their mandate or expertise (i.e. a question of constitutional law), where their only expert advisor was also effectively the defendant in the case before them.