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The Reasonable Probability Increment Continues to Boost Just Compensation For Wetlands Condemnation in Galarza v. City of New York - Farrell Fritz, P.C.
Early this year, the Supreme Court of New York, Richmond County issued a comprehensive opinion in Galarza v. City of New York, 58 Misc.3d 1210(A), reaffirming and clarifying the nuances of condemnation, takings and just compensation principles as they relate to wetlands restrictions. The court held that the owner of a 21,000 square-foot vacant lot (“Property”) condemned by the City of New York (“City”) as wetlands was entitled to just compensation in the amount of $669,000, where the fair market value of the undevelopable land was approximately $200,000.
In awarding upwards of 335% of the Property’s apparent value, the court found that the owner was entitled to an incremental increase in just compensation. This finding was based upon the nature of the wetlands restrictions vis-à-vis takings precedent. And, it is significant that the court awarded the higher value despite the owner having purchased the Property after it was already designated as wetlands and known to be undevelopable. This decision follows a late-2017 decision of the Appellate Division in In re New Creek Bluebelt Phase 3 (Baycrest Manor), 156 A.D.3d 163 (2d Dep’t 2017), where the Second Department affirmed, as modified, an increased award as just compensation for wetlands condemnation.
Claimant Ivan Galarza (“Owner”) purchased the Property at a tax lien foreclosure auction in 2003. At the time the Owner purchased the Property at auction, the Property was already designated as wetlands. The City later acquired the Property by condemnation as part of its New Creek Bluebelt Phase 4 project. The Owner and the City both agreed that the wetlands designation precluded the Owner from obtaining a permit to improve the Property and that the highest and best use of the Property, as regulated, would be to remain vacant. The parties disagreed, however, as to whether the wetlands restrictions constituted a regulatory taking. The regulatory taking issue is relevant and forms the crux of this entire case because it is precisely the finding of a “reasonable probability of success” in bringing a hypothetical regulatory taking claim to challenge regulations, e.g. wetlands restrictions, that entitles a property owner to the incremental increase in just compensation.
First, the court addressed the threshold issue of whether the Owner was barred from bringing a takings claim in the first place, because the Owner purchased the Property subject to the wetlands designation. Relying on Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), Galarza stated that the “logically antecedent inquiry” into a takings claim is whether “the proscribed use was part of the title to begin with.” Thus, before any owner can claim deprivation of economically beneficial uses of property, courts must first determine whether the right to use the property in the manner prohibited was actually part of the “bundle of rights” acquired with title.
In Lucas, the U.S. Supreme Court held that in order for a regulation not to constitute a taking where it prohibits all economically beneficial use of land, the regulation cannot be newly legislated or decreed, but must inhere in the title itself; the restriction must be a background principle of a state’s law of property and nuisance – already placed upon the ownership of property. After Lucas, the New York Court of Appeals issued four opinions simultaneously in 1997 known as the “takings quartet.” These four cases established the “notice rule” in New York, whereby any owner who took title after the enactment of a restriction was barred from challenging the restriction as a taking because the use prohibited was not part of the bundle of rights acquired with title by a buyer.
Almost a decade after Lucas, the U.S. Supreme Court’s decision in Palazzolo v. Rhode Island, 533 U.S. 600 (2001), up-ended New York’s “notice rule.” The high Court held that a per se notice rule was untenable and altered the nature of property because an owner would be deprived of the right to transfer an interest acquired with title (prior to the regulation). Moreover, the Court held that simply because an owner acquired property after the enactment of regulations does not transform those regulations into background principles of state law on property and nuisance.
In determining whether New York State’s wetlands restrictions affecting the Property are part of the background principles of New York’s law on property and nuisance, the Galarza court answered in the negative. Interestingly, the City argued, among other things, that protection of wetlands was grounded in common law and cited to medieval England’s use of wetlands restrictions. The court noted, however, that these restrictions pre-dated the creation of fee estates and that as individual ownership rights began to take shape, wetlands regulations were abandoned in favor of development.
The Galarza court also distinguished a 2016 Second Department ruling in Monroe Eqs. LLC v. State of New York, 145 A.D.3d 680, which held watershed regulations constituted background principles of New York law. Unlike wetlands regulations, watershed regulations prohibit a nuisance by preventing poisoning and pollution of water supplies and drinking water. Based upon this analysis, the court found the Owner in Galarza was not barred from bringing a takings claim.
To determine whether there was a reasonable probability of a successful regulatory takings claim, the court considered Lucas, Tahoe-Sierra Preserv. Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002) and Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978). Under Lucas, a regulation constitutes a taking per se “only in the extraordinary circumstance where no economically beneficial use of the land is permitted and the regulations have extinguished all of the property’s value.” In this scenario, no further analysis is necessary. Galarza highlighted the distinction between “economic use” (returns from actual use or development) and a “property’s value” (market value as regulated or otherwise), but noted that Lucas used these terms interchangeably. Later, the U.S. Supreme Court clarified Lucas in Tahoe-Sierra : “compensation is required when a regulation deprives the owner of all economically beneficial uses of his land…[and] is limited to the extraordinary circumstance when no productive or economic beneficial use of land is permitted.” Anything short of 100% loss of value is not a regulatory taking per se and requires additional analysis by the factors enumerated in Penn Central.
Specifically in Galarza, the Property had value as regulated because there is a market for wetlands in Staten Island (discussed below), but the Property had no economic beneficial use. The court considered two other cases in this respect, namely Lost Tree Vill. Corp. v. United States, 787 F.3d 1111 (Fed. Cir. 2015), and Florida Rock Indus., Inc. v. United States, 18 F.3d 1560 (Fed. Cir. 1994), to determine whether having value without any beneficial or economic use(s) precludes a taking per se. The court in Lost Tree, on the one hand, held that residual non-economic value (i.e. market value) does not preclude a per se taking because there are no longer any underlying economic uses and the market value (selling the property) is not an underlying economic use. Florida Rock, on the other hand, held that the value of property as a speculative investment is a proper consideration and that the associated market value precludes finding per se taking.
The court in Galarza agreed with Florida Rock, holding that there is an established market for wetlands in Staten Island (for reasons that are not entirely clear) and that these parcels are bought and sold with an expectation that the restrictions may eventually be changed, waived or modified, or that the parcels might be sold at a profit. Regardless of the motives and intentions, this market exists for parcels without permissible uses and this market must be considered in the takings analysis. The Property was found to have a market value of $200,000. Accordingly, because the Property has value in this market, the wetlands designation does not deprive the Property of all of its economic value (although it does deprive economic use entirely). Therefore, it cannot qualify as a regulatory taking per se under Lucas.
Having failed to meet the Lucas test, the court then turned to a partial regulatory takings analysis under Penn Central. This analysis is an “ad hoc, factual inquiry” and considers three factors: (1) the regulations’ economic impact upon the claimant, (2) the extent of interference with “reasonable” investment-backed expectations and (3) the character of the regulation as governmental action.
First, in evaluating the economic impact, courts must compare the value that the regulation has taken from the property with the value that remains with the property. Here, the court analyzed precedent set by four previous Second Department cases in wetlands taking cases (ranging from 1984 through 2017). Based upon these cases, the Galarza court found there was a reasonable probability of a successful regulatory takings challenge where regulations deprived the claimant of all rewarding uses of the property, e.g. development prohibition, and reduced the property’s value upwards of 80-90%.
In contrast, the court cited two other Second Department cases: Adrian v. Town of Yorktown, 83 A.D.3d 746 (2d Dep’t 2011), and Putnam County Nat’l Bank v. City of New York, 37 A.D.3d 575 (2d Dep’t 2007). In Adrian, the court did not find a regulatory taking where the property value was reduced by a 64% reduction and the claimant sold the 15-acre parcel for $3,600,000, although contended it was worth $10,000,000. In Putnam County Nat’l Bank, the court also did not find a regulatory taking. There, watershed regulations reduced the value by 80%, and although the claimant was denied a building permit for a 36-lot subdivision because a sewer could not be built within the watershed, approval was granted for an alternative 17-lot subdivision. The property was ultimately sold for $1,400,000. That court found this realization was a “reasonable return”, and the economic impact of the watershed restrictions was not sufficient to constitute a taking.
Here, after various arguments and evidence presented by the parties, the court found the Property to have the following set of values: $200,000 as regulated and undeveloped and $1,701,000 as fully developed. The court also found that it would cost $469,507 to develop the Property and, when the costs are deducted from the fully developed value ($1,701,000 less $469,507), the value of the return would be $1,231,493. The difference, then, between the regulated value ($200,000) and the developed value, after costs ($1,231,493), is $1,031,493. This figure is 84% of the fully developed value. Another way to view the calculation is that the regulated value ($200,000) is 16% of the fully developed value. Accordingly, the regulations reduce the Property’s value by 84%.
Penn Central’s second factor is the extent of interference with investment-backed expectations. Initially, courts must determine whose expectation to use. In the regulatory takings context, the expectation of the owner is used because it is his or her land that suffers from the restraint. To determine just compensation in the condemnation context, the expectation of the hypothetical buyer is used because this perspective determines the owner’s realization upon a sale.
Considering the hypothetical buyer’s expectations, the court must view the reasonableness of the expectation as an objective test: whether the regulation embodied a background principle of New York property and nuisance law. This is the same consideration in determining whether a regulatory claiming is barred at the outset. Essentially, it is unreasonable to expect to use property in such a manner prohibited as a background principle of law. Finding guidance from the U.S. Supreme Court in Palazzolo, Galarza concluded it is reasonable to expect to utilize property as if the regulations did not exist – unless the regulations are background principles, the analysis cannot begin by limiting expectations to only those uses allowed by the regulation if the regulation is not a background principle.
As noted above, the Staten Island wetlands market exists and contemplates that regulations may be changed, waived or modified in favor of future development. The court here ultimately determined it is not unreasonable for a hypothetical buyer to expect to develop the Property at some future date because, among other things, the wetlands restrictions are not background principles of law. Accordingly, because any development was totally prohibited by the wetlands designations, then the regulations substantially interfered with reasonable expectations to develop the Property.
The third factor under Penn Central is the character of the regulation. Courts consider whether it amounts to a physical invasion or, instead, merely affects property interests. Additionally, courts consider “reciprocity of advantage,” i.e. whether the regulation is part of a general scheme that provides some benefit to the regulated parcel, like a comprehensive zoning plan. The singling-out of a parcel with a disproportionate burden is indicative of a taking. The Galarza court found that while wetlands restrictions provide a benefit to the public in general, their burden falls disproportionately on a small group of owners, especially those whose entire parcels are classified as wetlands (as opposed to portions of parcels or parcels that are wetlands adjacent). Here, the wetlands regulations approach a physical taking because they prohibit development entirely and force the Owner to leave the Property vacant.
Therefore, the court held just compensation valuation must include the regulated value plus the incremental value to reflect the hypothetical buyer’s likelihood of successfully challenging the wetlands regulations as a regulatory taking. This increment is a portion of the difference of the valuation over-and-above the regulated value. Here, the regulated value was $200,000 and the developed value, after costs was $1,231,493; the difference between these figures is $1,031,493, and the increment is a portion of this difference. (The Owner already receives the regulated, fair-market value as just compensation, so this value is not included in increment calculation).
In determining the actual incremental value, courts consider the time, effort and expense in “de-regulating” the affected land, including without limitation exhausting administrative remedies, prosecuting the takings challenge and the financial cost of “carrying” the affected property. Here, the court found that the deregulation costs would be $391,882 and deducted these costs from $1,031,493, resulting in a “present day value” figure of $639,611. The present day value figure must be discounted for inflation and opportunity costs, among other things. The court determined that the present day value after the applied discount was $469,380 – and this is the incremental value to be applied. Finally, the court completed its calculation for its award of just compensation: it added the regulated value ($200,000) together with the increment ($469,380), resulting in an award of $669,380 (rounded to $669,000).
 The four cases are as follows: Gazza v. New York State Dep’t of Envt’l Conserv., 89 N.Y.2d 603 (1997), Basile v. Town of Southampton, 89 N.Y.2d 974 (1997), Anello v. Zoning Bd. of Appeals, 89 N.Y.2d 535 (1997), and Kim v. City of New York, 90 N.Y.2d 1 (1997). Gazza and Basile addressed wetlands restrictions.In determining the actual incremental value, courts consider the time, effort and expense in “de-regulating” the affected land, including without limitation exhausting administrative remedies, prosecuting the takings challenge and the financial cost of “carrying” the affected property. Here, the court found that the deregulation costs would be $391,882 and deducted these costs from $1,031,493, resulting in a “present day value” figure of $639,611. The present day value figure must be discounted for inflation and opportunity costs, among other things. The court determined that the present day value after the applied discount was $469,380 – and this is the incremental value to be applied. Finally, the court completed its calculation for its award of just compensation: it added the regulated value ($200,000) together with the increment ($469,380), resulting in an award of $669,380 (rounded to $669,000).
The cases that hold that one cannot consider speculative uses in valuing property in condemnation cases refer to non-current uses where it is not probable that the property would be put to such a use in the reasonable near future. This is different from investors who speculate in property by purchasing it on the possibility of expectation that it will increase in value at some point in the future. In this [latter] sense, speculative purchases represent investment backed expectation.
In addition, the court noted that dollars are fungible and that the land-speculation market provides owners with monetary compensation the same way as any other market. Moreover, the key inquiry for purposes of just compensation for condemnation is whether there was a reasonable probability of successfully bringing a takings challenge as of the date of vesting – not whether any expectations of future value might be met.
 The cases are as follows: Chase Manhattan Bank v. State of New York, 103 A.D.2d 211 (2d Dep’t 1984), Baycrest Manor, Matter of New Creek Bluebelt, Phase 4 (Paolella), 122 A.D.3d 859 (2d Dep’t 2014), and Friedenburg v. State of New York, 3 A.D.3d 86 (2d Dep’t 2003).

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1-42-1. Repealed by SL 1982, ch 17, § 52.
1-42-1.2. Repealed by SL 2009, ch 1, § 126.
1-42-2, 1-42-3. Repealed by SL 1982, ch 17, §§ 53, 54.
1-42-7 to 1-42-12. Repealed by SL 1982, ch 17, §§ 55 to 60.
1-42-13. Transferred to § 1-33-22.
1-42-15.1. Transferred to § 1-16G-1.
1-42-15.2. Transferred to § 1-16G-2.
1-42-15.3 to 1-42-15.9. Transferred to §§ 1-16G-12 to 1-16G-18.
1-42-17.1. Repealed by SL 2009, ch 1, § 127.
1-42-17.2 to 1-42-17.5. Repealed by SL 2003, ch 272, §§ 94 to 97.
1-42-17.6. Repealed by SL 2011, ch 1 (Ex. Ord. 11-1), § 98, eff. Apr. 12, 2011.
1-42-21.1 to 1-42-23. Transferred to §§ 1-52-14 to 1-52-16 by SL 2009, ch 1, § 129.
1-42-24. Transferred to § 1-16G-3.
1-42-25. Transferred to § 1-16G-4.
1-42-26. Transferred to §§ 1-16G-5 and 1-16G-8.
1-42-27. Transferred to § 1-16G-10.
1-42-28. Transferred to § 1-16G-11.
1-42-28.1. Transferred to § 1-16G-6.
1-42-29. Transferred to § 1-16G-9.
1-42-30. Transferred to § 1-16G-7.
1-42-31. Transferred to § 1-52-17 by SL 2009, ch 1, § 129.


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The jurisprudence regarding access to landlocked parcels spans many decades. In 1944, the Texas Supreme Court observed, "It is well settled that where there is conveyed a tract of land which is surrounded by the grantor's land, or by his and that of third persons, and to which the grantee can only have access to or egress from through lands other than that conveyed, the grantee has a right of way by necessity over the remaining lands of the grantor." Bains v. Parker, 143 Tex. 57, 61, 182 S.W.2d 397, 399 (1944). The Court similarly noted that earlier case law had established that "where a vendor retains a tract of land which is surrounded partly by the tract conveyed and partly by the lands of a stranger there is an implied reservation of a right of way by necessity over the land conveyed, where grantor has no other way out." Bains, 182 S.W.2d at 399, citing Alley v. Carleton, 29 Tex. 74, 78 (1867).
In Hamrick v. Ward, No. 12-0348, 2014 WL 4745575, at *3 (Tex. Aug. 29, 2014, pet. filed), the Texas Supreme Court reiterated its 1867 determination in Alley v. Carleton, 29 Tex. 74, 78 (1867), that a necessity easement results when a grantor, in conveying or retaining a parcel of land, fails to expressly provide for a means of accessing the land. Hamrick, 2014 WL 4745575, at *4. There the Court clarified that a party claiming a roadway easement to a landlocked, previously unified parcel must pursue a necessity easement theory. Id.
Hamrick relies in part on the court's opinion in Koonce v. Brite Estate, which echoed the holdings inBains and Alley, and again recognized, "Texas case law establishes that when a grantor conveys part of a tract of land while retaining the remaining acreage for himself there is an implied reservation of a right of way by necessity over the land conveyed, when no other access exists." Koonce v. Brite Estate, 663 S.W.2d 451, 452 (Tex. 1984), citing Bains, 182 S.W.2d at 399, citing Alley, 29 Tex. at 78.Hamrick reiterated that a party claiming a necessity easement must demonstrate: (1) unity of ownership of the alleged dominant and servient estates prior to severance; (2) the claimed access is a necessity and not a mere convenience; and (3) the necessity existed at the time the two estates were severed. Hamrick, 2014 WL 4745575, at *4 (a party seeking a necessity easement must prove both a historical necessity (that the way was necessary at the time of severance) and a continuing, present necessity for the way in question), citing Koonce, 663 S.W.2d at 452. An easement by necessity endures until the necessity terminates. Hamrick, 2014 WL 4745575, at *4 (citation omitted).

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List nine (9) laws concerning clergy that you have found by searching your state/provincial laws.
§ 2921.22. Failure to report a crime or knowledge of a death or burn injury.
(1) The information is privileged by reason of the relationship between ... member of the clergy, rabbi, minister, or priest and any person communicating information confidentially to the member of the clergy, rabbi, minister, or priest for a religious counseling purpose of a professional character.
§ 3101.08 Who may solemnize [marriages].
No person, except those legally authorized, shall attempt to solemnize a marriage, and no marriage shall be solemnized without the issuance of a license.
A minister upon producing to the secretary of state, credentials of his being a regularly ordained or licensed minister of any religious society or congregation, shall be entitled to receive from the secretary of state a license authorizing him to solemnize marriages in this state so long as he continues as a regular minister in such society or congregation. A minister shall produce for inspection his license to solemnize marriages upon demand of any party to a marriage at which he officiates or proposes to officiate or upon demand of any probate judge.
§ 3101.11. Recording of license.
The secretary of state shall enter the name of a minister licensed to solemnize marriages upon a record kept in the office of the secretary of state.
§ 3101.12. Record as evidence.
When the name of a minister licensed to solemnize marriages is entered upon the record by the secretary of state, such record and the license issued under section 3101.10 of the Revised Code shall be evidence that such minister is authorized to solemnize marriages in this state.
§ 3721.14. Duties of [nursing/residential care] home to implement rights; certain persons to have access to [nursing/residential care] home.
(6) A minister, priest, rabbi, or other person ministering to a resident's religious needs.
§ 3722.15. Persons authorized to enter [adult care] facility; access to records.
§ 3724.12. Right of entry [to community alternative homes] of certain persons.
Persons who may enter a community alternative home during reasonable hours are a resident's sponsor, residents' rights advocates, a resident's attorney, a physician or other person providing health care services to a resident, a prospective resident and prospective resident's sponsor, employees of county departments of job and family services, and a minister, priest, rabbi, or other person ministering to a resident's religious needs.
All sales of sacramental wine for religious rites shall be made only upon the written, signed, dated, and sworn application of the member of the clergy or official purchasing the same. Such application must have endorsed thereon the approval of the general administrative officer, if there is such an officer, of the religious group to which the purchasing member of the clergy or official belongs. The name, address, and official position of such administrative officer shall be certified to the division of liquor control in such manner as the liquor control commission by rule prescribes.
§ 4757.41. Exceptions from provisions [regarding restrictions on counseling].
§ 4758.03. Exceptions to provisions [on unauthorized practice as a chemical dependency counselor].


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The U.S. Court of Appeals for the D.C. and Sixth Circuits have issued differing opinions regarding the Food & Drug Administration’s graphic warnings rule for tobacco, making Supreme Court review highly likely. The appropriate amount of First Amendment scrutiny courts should apply when reviewing such compelled speech regulations will be directly at issue. If the Court agrees, as it should, with the D.C. Circuit’s approach, we hope the Justices take the opportunity to clarify a critical part of the so-called Central Hudson test courts use to examine commercial speech restrictions.
Zauderer or Central Hudson? If a content-based compelled speech requirement involves “purely factual and uncontroversial” disclosures aimed at preventing consumer deception, the Supreme Court applies a relaxed “reasonableness” standard of review as set forth in Zauderer v. Office of Disciplinary Counsel. The Sixth Circuit applied Zauderer in its Discount Tobacco City v. U.S. decision upholding the graphic warnings.
In contrast, D.C. Circuit Judge Janice Rogers Brown’s opinion in R.J. Reynolds v. FDA reasoned that the nature of FDA’s mandated warnings required the court to apply the more rigorous First Amendment scrutiny required by Central Hudson Gas & Elec. v. Pub. Serv. Comm’n. To survive such scrutiny, a commercial speech regulation must “directly and materially advance” a “substantial government interest,” and be no more extensive than necessary in affecting speech.
“Directly and Materially Advancing”. The linchpin of Judge Brown’s First Amendment analysis of the FDA warnings was the “third prong” of Central Hudson. She assessed whether FDA had provided “substantial evidence” that graphic warnings would “directly” reduce smoking to a “material degree.” Judge Brown required that FDA show a direct, causal connection between lower tobacco consumption and the proposed graphic warnings. She found that “FDA has not provided even a shred of evidence” that such warnings directly advance smoking cessation or reduction. Under the third Central Hudson prong, she explained, data which are merely “suggestive” of a causal connection amount to “mere speculation and conjecture,” and thus are insufficient to justify compelled speech.
Such a demanding approach to the “advancing” part of Central Hudson is in stark contrast to Judge Rogers’s view of this prong in her dissent. “History, consensus, and ‘simple common sense'” are enough, according to Judge Rogers, to find that FDA’s warnings constitutionally advance the government’s interest. In a 2010 opinion, Educational Media Co. v. Swecker, the U.S. Court of Appeals for the Fourth Circuit relied on this same language to find that a Virginia rule restricting alcohol ads in college newspapers was constitutional. Much to the chagrin of WLF and others (including the state’s ACLU chapter), the Supreme Court declined to review the decision.
This highly deferential perspective on Central Hudson’s “directly and materially advancing” language regretfully has its origins in Supreme Court speech jurisprudence. Having found that a Florida Bar regulation satisfied Central Hudson’s second prong in Florida Bar v. Went For It, Justice O’Connor responded to Justice Kennedy’s dissent by noting that the Court has permitted litigants, “in a case applying strict scrutiny, to justify restrictions based solely on history, consensus, and ‘simple common sense’.” That “pure speech” case, Burson v. Freeman, was a 5-4 decision. Although Justice Scalia concurred to provide the crucial fifth vote, he did not embrace the majority’s approach to upholding a state restriction on speech around polling places.
Justice O’Connor cited her own Went for It language again in 2001’s Lorilard v. Reilly, where she found that advertising restrictions passed muster under Central Hudson‘s “advancing” prong, but failed the third prong due to its overbreadth. Justice Kennedy concurred in the result but explicitly disagreed with Justice O’Connor’s peculiar application of Central Hudson‘s second prong.
Other Supreme Court commercial speech opinions, however, don’t take Justice O’Connor’s permissive approach to evaluating “direct and material” advancement of the government’s interest. Justice Thomas’s 1995 Rubin v. Coors opinion (released just two months before Went for It) stressed that Central Hudson‘s second prong required much more than “mere speculation and conjecture.” Justice Stevens’s 1996 44 Liquormart v. Rhode Island opinion agreed that “common sense” may well support the notion that less advertising will reduce alcohol consumption (the state’s interest). But he went on to emphasize that without any findings of fact, Rhode Island couldn’t prove its ad ban would significantly advance its interest. Justice Stevens’s 1999 Greater New Orleans Broadcasting v. U.S. opinion similarly rejected the government’s attempt to justify a speech restriction based on mere common sense notions.
Clarification Needed. The Court’s two most recent commercial speech-related opinions, Sorrell v. IMS Health and Thompson v. Western States, neither elaborated on nor relied upon the “direct and material advancement” prong of Central Hudson. If the Court decides to resolve the split between the D.C. and Sixth Circuits on the tobacco warnings, it may have an ideal opportunity to clarify the meaning of that critical part of its commercial speech test. Rather than simply continue to ignore Justice O’Connor’s Went for It and Lorilard statements on the third prong, the Court should explicitly reject those views and speak as clearly and firmly on “direct and material advancement” as Judge Brown did in her R.J. Reynolds opinion.
Pingback: The First Amendment & Commercial Speech: What Does that Even Mean?

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On Monday of this week, the Supreme Court denied three new petitions seeking to define the edges of the 2nd Amendment. The highest court in the land has maintained a de facto ban on all Second Amendment cases since their landmark ruling in the 2010 case of McDonald vs. Chicago. Ostensibly to let the states and lower Federal courts do some of the heavy lifting.
Without comment, the Justices denied petitions to hear the cases of NRA v. Bureau of Alcohol, Tobacco and Firearms , NRA v. McCraw and Lane v. Holder. All three cases were weighed in private conference.
In NRA v. ATF and NRA v. McCraw, the National Rifle Association has petitioned the Court to more fully define the Second Amendment right to bear arms in public and the rights of people under the age of 21 to own handguns. Lane v. Holder focuses on the constitutionality of existing laws regulating the sale of firearms.
On the positive side, the lower courts have been making progress in picking up where McDonald left off. And if you're a supporter of the Second Amendment, the rulings have often been favorable. For example, the February ruling by California's Ninth Circuit Court in the case of Peruta vs. San Diego that the state of California does not have the right to completely deny citizens the right to bear arms outside of their homes.
I predict the Supreme Court will continue to sit on their hands, waiting for the gray areas deliberately left in their McDonald ruling to be filled in by the states. Only once the most clear-cut and pressing issues have been defined do I expect them to get involved.
13 Folds Radio, along with Ed Doyle and several others on 990wbob, added their voices last week to a chorus warning against the FCC's plans to coerce their way into American newsrooms. There was just something about federal fact finders asking questions about "the process by which stories are selected" and "perceived station bias" that smacked of government intrusion into the First Amendment tent pole of a free press.
And apparently we were right!
The Federal Communications Commission quietly backed away this week from their innocuous sounding "Multi-Market Study of Critical Information Needs." The details of the decision were provided by FCC Spokesperson Shannon Gilson.
So lovers of liberty and the (ideally) disinfecting power of a free press have won... This round. But assurances from Chairman Tom Wheeler that a report still needs to be made to Congress signal that this fight is far from over.
As we briefly covered in this week's show, Colorado Governor John Hickenlooper is advocating the slow road to marijuana legalization. According to the Associated Press, Hickenlooper spent much of his time at last weekend's National Governor's Association meeting cautioning other state's chief executives from too hastily following Colorado into the land of green fields and purple haze.
"When governors have asked me, and several have, I say that we don't have the facts. We don't know what the unintended consequences are going to be. I urge caution... (and) wait a couple of years."
By surveying other governors at the meetings, those "unintended consequences" appear to revolve around marijuana use by minors. With some, like Indiana Governor Mike Pence, seeing it as a deal breaker for their state.
"I just have a longstanding belief that legalizing marijuana would not be in the interest of our youth or our people," said Pence, a Republican. "And I'll maintain my position in opposition to legalization as long as I'm governor."
While others are still hung up on the idea of marijuana as a "gateway drug," leading society down a path of ills paved with unintended consequences. Iowa Governor Terry Branstad, for example, calls marijuana legalization "bad policy" and has no intentions of seeing his state join Colorado and Washington.
"It's a segue drug that I think ends up creating a lot more problems than it solves," said Branstad.
Clearly for those of us working to end marijuana prohibition, our toils are far from over. The fears of those in opposition are as valid as they are unchanged and it remains up to us and the example being set right now in Colorado and Washington to convince them otherwise.
#Rhode Island - Why Is This Trending?
The Pal sits down with Scott Wilson the actor who played Hershel on The Walking Dead.


There is a growing body of literature that addresses the environmental problems which Cuba faces today and which most likely will, in similar or aggravated form, be present when the country makes its transition to a free-market, democratic society.2 Likewise, the environmental legislation that has been enacted to date in Cuba has also been the subject of some analysis. Relatively little attention, however, has been given to the need that will develop during Cuba’s transition for suitable legislation to provide environmental protection and remediation of the environmental damage already sustained. There has also been little in the way of analysis of the inevitable tradeoffs between environmental needs and the political and economic realities of the transition, and between the potentially inconsistent goals of stimulating economic growth and addressing the environmental needs of the country.
This paper represents a modest attempt to start addressing these issues. The task is as daunting as it is important. Like a snake biting its own tail, the health of the environment is inseparable from the prospects for Cuba’s economic growth and well-being; on the other hand, environment and development are likely to compete in the short term for governmental funds and legislative priority. The paper does not seek to resolve these fundamental issues, but only to offer suggestions as to potential compromises between conflicting sets of legitimate priorities.
Cuba has in place a reasonably detailed legal framework for environmental protection. The obligation to protect the environment is vested on both the State and the citizenry by the Constitution. A first framework environmental law was enacted in 1981, and a new law became effective in mid-1997. Environmental legislation in Cuba consists today of treaties, laws and administrative regulations.3 In addition, agencies have been created to implement the environmental laws and regulations. The primary environmental protection agency is the Ministry of Science, Technology, and the Environment (“CITMA”). CITMA replaced its predecessor, the National Commission for Protection of the Environment and the Rational Use of Natural Resources (“COMARNA”) in 1994. Other government organs, including several ministries, retain environmental powers and responsibilities.
Law 33 provided an ineffective mechanism for addressing Cuba’s serious environmental problems.7 While the intent of Law 33 was to “establish the basic principles to conserve, protect, improve and transform the environment and the rational use of natural resources, in accordance with the integral development policies” of the Cuban government, the law did not set forth any concrete steps towards achieving its goals.8 Law 33 provided only general statements of policy with no implementation directions.9 The law’s substantive provisions were also so vague that they did not establish a useful framework from which enforcement actions could be taken.10 The failure of Law 33 to provide definitions, environmental contamination standards, or means of enforcement made implementation of the statute nearly impossible.11 In addition, environmental regulations issued by government agencies a decade after the law’s enactment were too general and unenforceable.12 These shortcomings rendered Law 33 ineffectual.
The State protects the environment and the natural resources of the country. It recognizes their close connection with sustainable social and economic development, so as to make human life more rational and ensure the survival, well-being and safety of the current and future generations. It is the responsibility of the cognizant State organs to apply this policy.
It is the duty of all citizens to contribute to the protection of the waters and the air, and to preserve the soil, the flora, the fauna, and all of nature’s rich potential.
The language in Art. 27 in the new Constitution has been interpreted as an effort to bring it in line with the conclusions of the 1992 Rio Summit Declaration, and expressly link environmental protection with sustainable development.14 Whatever the rationale of the Cuban Government in implementing the change, it evidences an intent to link potential environmental initiatives to the country’s developmental needs, as well as the other way around.
CITMA is under the authority of the Council of Ministers with regard to the approval of the National Environmental Strategy and the National Program of Environment and Development, the resolution of disputes between state agencies, the designation of environmentally protected areas and buffer zones, and the taking of measures with respect to specific areas, ecosystems or resources, as warranted.25 In reality, the Council of Ministers and President Fidel Castro have the final say on environmental issues, thus CITMA is not truly an “independent agency” as the term is applied in Western democracies.
Be it as it may, the requirement in Law 81 that environmental licenses be secured for new development projects is an important step forward, even if imperfectly implemented at the present time.
d. Enforcement Provisions: Chapters XI through XIII of Law 81 institute a system of administrative, civil and criminal sanctions against those who violate environmental laws and regulations. 44 Only the skeleton of such a system is provided in the law, with the details to be left to subsequent legislation. Thus, for example, Chapter XI ordains that sanctions be levied against those who do not comply with the law and its related regulations.45 Article 67 states that every individual and entity is subject to administrative sanctions for violating Law 81, with the sanctions to be defined in complementing legislation. Article 68 states that administrative sanctions shall be made by using fines, and that every individual violation is punishable by a separate fine. No schedule of fines is, however, provided. Article 69 directs anyone who knows of any breach of the environmental laws and regulations to notify the competent authorities.
Chapter XI does not provide therefore a basis for the imposition of fines, does not define the administrative procedures to be followed to levy fines, and is silent on the amount of the fines and on what avenues are available to enforce or contest a proposed fine.
f. Assessment: While Law 81 strives to better address environmental concerns, it contains flaws that, along with the island’s governmental structure, make positive environmental action difficult. It has serious omissions: for example, the law does not address the critical issue of cleaning up past environmental damage. CITMA’s independence is not guaranteed by the law and is essentially negated by Cuba’s autocratic political structure, which restricts the agency’s power to promulgate and enforce regulations. The law’s enforcement provisions are weak and ill-defined, and much of the specific legislation needed to implement the law still remains to be written.
Despite the improvements that the new regulatory framework provides, it appears that the factors which made previous regulations unenforceable remain in place, particularly the lack of autonomy or enforcement capacity.66 Cuba’s environmental policies must still be approved by the Council of Ministers, so CITMA has no authority to independently advance its policies.67 Although Article 12.f of Law 81 grants CITMA authority on paper to mediate inter-agency conflicts in matters relating to the environment, it fails to give the agency real power to prevail in case of inter-agency conflicts that pitch environmental versus economic issues.
Government As Regulator and Major Polluter: As the owner of the means of production on the island, and as the institution primarily responsible for the environmental problems in Cuba, the Cuban government faces an obvious conflict of interests in the implementation of an effective environmental regime. This conflict of interests has resulted in an environmental regime that (1) is based on ambiguous legislation; (2) has not yet established an independent and empowered regulatory authority; (3) lacks public participation in the environmental decisionmaking process and in the enforcement of environmental laws; (4) lacks environmental planning and (5) disregards the need to correct the severe environmental damage counsel by its policies to date. Each of these deficiencies helps make environmental protection in Cuba a process that achieves only marginal results.
Absence of Independent and Empowered Regulatory Authority: The absence of environmental enforcement becomes easy to understand when one considers the limited independence and authority granted to the environmental regulatory authority, CITMA. The limitations of CITMA are even more pronounced in practice because, under the centralized decision-making structure that exists in Cuba, any action by CITMA would risk being overturned if the Communist Party felt that compliance would undermine an important economic objective. The practical consequences of the Cuban political system and the structural limitations of the Cuban bureaucracy combine to make CITMA and its supporting environmental regulatory agencies ineffective.
Lack of Remediation Policies: As noted early, Law 81 is silent on any efforts to remedy the environmental damage that has been inflicted by the State over the last forty years. In the absence of such a plan, and given the current environmental situation in Cuba, all the legislation that Cuba has enacted or may in the future enact is incomplete and will not serve to restore the environment to an acceptable condition.
Lessons learned from environmental initiatives in Latin America and Eastern Europe, as well as Cuba’s current environmental situation, suggest that Cuba should set three major objectives for its environmental program during the transition years. First, Cuba should implement measures that further, as much as possible, remediation of the environmental disasters inherited from the socialist regime.86 Second, Cuba must define and implement realistic goals to promote future conservation and environmental protection. Third, Cuba needs to harmonize its remediation, conservation and environmental protection policies with those guiding the country’s economic recovery.
The rest of this section describes these policy objectives in some detail. The next section provides recommendations on legislation to help accomplish these objectives.
During its transition to a free-market economy, Cuba should seek to remedy the most critical environmental problems created under the socialist regime. For example, the pressing need for clean water in Cuba must be addressed with policies that promote the clean-up of the most polluted sources of coastal, inland, ground, and drinking water.
It is important that the remediation plan state its goals in a measurable and manageable fashion. An effective plan should consist of specific goals, timetables for achieving them, milestones, and indicators of progress. The Polish National Environmental Policy of 1991 provides a good example of how a country in transition may develop a workable remediation plan.87 Poland set short-, medium-, and long-term remediation priorities, each with its own completion dates.88 The short-term priorities addressed immediate dangers to human health, which were to be mitigated by 1994-95.89 The medium-term priorities, scheduled to be completed by the year 2000, would help bring Poland in line with the environmental standards of the European Union.90 Examples of these priorities include the goal of a 50% reduction in discharges of untreated sewage and a significant improvement in rural drinking water quality.91 A long-term priority is to integrate the concept of sustainable development into the entire Polish economy, and incorporate environmentally sound techniques into all aspects of the production process.
During its transition to a free-market economy, Cuba should establish a remediation policy that is realistic and has clearly defined, achievable goals. Initially, Cuba’s government should target conditions that represent dangers to human health and safety. Cuba should achieve measurable improvements in these areas before attempting other projects since there will probably be limited resources available for remediation, and these resources will require careful management.92 In addition, the success of the initial projects will establish a track record that may attract additional resources to support remediation efforts, thus it is essential that the initial goals be achievable and actually met.
Cuba will therefore need to start by setting long term goals (i.e., those to be achieved ten or more years into the future) for its environmental program. These goals should be fairly broad and include items such as: (1) achieving the rational use of natural resources leading to sustainable development; (2) reaching an agreement between central, provincial and municipal governments on the subject of the environment; (3) preventing further significant air, water, and soil pollution; (4) establishing a strong and effective national environmental agency; and (5) preserving resources so as to maintain ecological equilibrium.95 These broad objectives should be supplemented by more specific medium and short-term goals, and reflected in appropriate legislation.
Medium-Term Objectives: Once Cuba has established its general long-term goals, it must then turn to defining more specific short (zero to five years) and medium (five to ten years) term environmental objectives. Cuba should set as medium-term objectives those that will take several years of effort to accomplish, and those that can be accomplished in a relatively short time but do not necessarily yield an immediate positive impact on the environment. .
Medium-term objectives could be items such as: (1) developing a re-defined system of protected natural areas; (2) establishing an environmental technical registry; (3) implementing a system of incentives to engage in environmental research and development; and (4) establishing programs to support environmental education.
• Reducing, within five years, the volume of inorganic and untreated organic waste released into Havana Harbor by 50% from the average level measured at the start of the transition.
• Building and bringing into operation waste treatment facilities having sufficient capacity to achieve the previous goal.
• Performing, within five years, all needed repairs and upgrades to restore Havana’s water and sanitary sewer system to its pre-1959 design capacity, and completing conceptual designs and preliminary plans for the development of a modern new water system to be awarded on a concession basis to a private operator.
• Establishing, within five years, such additional landfills and other solid waste disposal facilities as are required to provide for the adequate disposal of solid urban waste in the city of Havana and its environs.
• Establishing, within five years, an adequate network of environmental monitoring stations that can measure the levels of various contaminants released from specific sources.
• Issuing within five years regulations establishing specific limits on the amounts of various named pollutants that can be discharged from industrial facilities, imposing fines and fine collection mechanisms, and establishing a system for issuing discharge permits and reporting standards.
As the above example shows, addressing any one of the serious environmental problems facing Cuba is a complex task that will require a multitude of efforts by various government bodies. For that reason, the list of short-term objectives needs to be kept short and focused on the most urgent problems.
This economic reality does not mean that the country must forego addressing environmental problems. Considering the importance that the tourism and agriculture sectors will have during Cuba’s transition period and beyond, Cuba may not be able—as an economic issue—to ignore for long the environmental issues affecting those sectors. Efforts to remedy the most environmentally threatened areas should therefore receive priority. These efforts should at a minimum include arresting the increase in pollution of Cuba’s inland and coastal waters and stopping further erosion and salinization of the arable land. For the tourism and agricultural sectors, these environmental protection measures represent an investment in the country’s economy.
At the same time Cuba is developing its environmental legislation, it will also be seeking to attract foreign investment to assist with the country’s economic reconstruction. 108 The environmental legislation that is enacted must ensure that foreign investment is an ally in improving the environment rather than a contributor to its further deterioration. Thus, for example, the environmental legislation applicable to foreign investment projects will need to include: (1) regulations concerning emissions of toxic substances, (2) incentives for the installation of technologies that minimize the releases of such substances, and (3) an enforcement system that imposes well-defined penalties for the release of toxic materials. The environmental laws may also need to establish distinctions between existing sources of pollution (i.e., already existing facilities) and newly established operations.
The remainder of this section provides recommendations for legislation that seeks to accomplish these objectives and those outlined in the preceding section.
A new constitution will most likely be enacted at some point during Cuba’s transition. When this happens, an opportunity will present itself for laying down environmental goals and aspirations in the form of constitutional provisions.109 Such provisions should be in the nature of general policies, such as placing environmental values on an equal footing with other important societal goals. The substantive elements of environmental protection would be contained in the framework environmental law and other lower-tier legislation.
• It should provide for periodic re-examinations of the framework legislation to assess the continued validity and attainability of the goals and implementation schedules and address enforceability problems as they arise.
Setting Priorities for Environmental Initiatives: Each of the environmental problems that Cuba is experiencing is serious and merits attention. However, given the economic constraints within which the transition government will have to operate, it will be necessary to prioritize the environmental initiatives that are undertaken, particularly in the first few years of the transition.
Establishing priorities is relatively simple at the conceptual level, since the principal problems are well recognized.111 The framework law should declare the main problems, or a subset of them, to be the prime areas of priority in Cuba’s environmental program for the transition period. Such a declaration, however, would need to be accompanied by specific goals and deadlines for dealing with each priority area.
Establishing Enforcement Mechanisms: The framework law should establish the basic elements of a system for defining environmental duties and prohibitions, and provide the bases for the implementation of the system. The law should, inter alia, (1) define which environmental protection activities are retained within the central government and which, if any, are delegated to other entities, such as provincial or municipal governments; (2) create an agency with the mandate of coordinating all environmental activities not delegated to organizations outside the central government; (3) define the powers of the environmental agency and declare its independence from the executive and its supremacy over other agencies in matters within its jurisdiction; (4) establish mechanisms for the resolution of inter-agency environmental disputes; (5) empower the environmental agency to issue implementing regulations, establish pollutant discharge limits, perform audits and inspections of private and public facilities, and impose and collect fines from violators; (6) grant the environmental agency power to obtain injunctive and other judicial relief against parties that contravene the agency’s regulations; (7) empower the agency to issue and administer permits for those activities that may result in the discharge of contaminants; (8) define sources of funding for the agency’s discharge of its duties; and (9) grant private parties the right to seek judicial redress from adverse actions by the agency, and the limited right to bring judicial actions against the government or other private parties for failure to comply with the environmental laws.
Re-Examining Fundamental Laws and Policies: The transition period in Cuba will likely be characterized by frequent and perhaps dramatic changes in economic and political conditions. These changes may in turn impact the pace of environmental recovery and may require refocusing—through either acceleration, modification, slowdown, or shift in emphasis—of elements of the environmental framework. Accordingly, the fundamental law must be considered “work in progress” legislation, and may expressly provide that it is subject to periodic re-evaluation, at least during the first decade of the transition.
Economic necessity may force a Cuban transition government to allow many of the existing sources of pollution to remain in operation with only partial reduction in their environmental impacts, while at the same time instituting stricter regulations for new economic activities undertaken in the island. Cuba currently has a number of aging industrial facilities for which it may not be feasible to backfit the equipment needed to make them environmentally-friendly. This being the case, the most stringent environmental protection standards will have to be made applicable only to newly developed facilities.
Cuba should impose environmental standards on new installations that take into account the technical state of the art on environmental protection and reflect economic analyses, scientific studies, and the input of public and private organizations.112 One system of regulations that Cuba might want to apply to new operations is the one currently in use in Poland. The Polish system levies fees based on the volume of emissions of various pollutants. A set of fees applies to discharges within permitted limits, and a substantially higher set of fees is imposed for discharges above legal limits.113 This system creates a range of options for facility operators beyond simple compliance with emissions laws, and provides a method of financing other environmental projects within the nation.
Cuba could also establish incentives that encourage compliance with environmental standards and the adoption of environmentally friendly technologies. One example of such an incentive is found in Brazilian law, under which public agencies give funding priority to research and development programs on ecological issues.114 This form of incentive could provide motivation for entities seeking to operate in Cuba to take an active role in developing new environmental technologies and bringing other forms of environmental development programs to Cuba.
Another type of incentive Cuba may wish to include into its environmental framework is a system of tax benefits, patterned after incentive programs adopted in Mexico and Brazil, for facilities that incorporate anti-pollution technologies.115 These and other types of incentives may serve to bring the investors’ environmental practices in line with the country’s policies.
Over the course of Cuba’s socialist history numerous facilities have come to operate in ways that inflict damage to the environment. Sugar mills, cement plants, mines, steel mills, oil refineries and other industrial facilities have become major contributors to Cuba’s current environmental problems.118 Yet, no viable environmental framework Cuba adopts is likely to succeed in eliminating pollution from these facilities. To attempt to do so might put many of them out of business and aggravate the country’s economic crisis.
Existing facilities should also be eligible for incentives to improve their environmental performance. The environmental incentives and penalties discussed earlier with respect to new facilities can be adapted for application to existing ones. The granting of tax incentives for adopting anti-pollution technologies, for example, would give older facilities motivation to improve their operations and reduce pollution levels.
The privatization of existing government-owned facilities would provide an opportunity for bringing about improvement (from the environmental standpoint) in the facilities’ operations and the remediation of the environmental impacts associated with these facilities. Environmental improvement and remediation requirements could be imposed on the new owners of privatized companies; however, such requirements would likely result in the reduction of privatization proceeds and would therefore need to be analyzed in the light of the transition government’s economic priorities.122 Alternatively, privatization proceeds could be earmarked for environmental remediation projects—whether or not related to the privatized facilities.
As noted earlier, regulating the environmental impacts of future economic activities in Cuba will not make up for the decades of neglect that have led to soil erosion and salinization, water and air pollution, the destruction of forests and natural habitats, the loss of biodiversity, etc. To adequately address these very serious environmental problems Cuba will have to issue specific legislation designed to deal with them.
The legislative efforts directed at environmental remediation can be seen as having two aspects: how to address the remediation needs in publicly-owned lands and bodies of water, and what remediation obligations will be imposed on the owners of property that remains in private hands or which is conveyed to private parties by the State. These two issues will be discussed separately in this section.
Remediation of Environmental Impacts in Publicly- Owned Areas: The State, through its transition government, will need to assume responsibility for the reclamation of the vast areas of the country that are now suffering from environmental degradation. This responsibility will have technical, economic and legal components, and will require a concerted government effort lasting perhaps a generation.
The economic issues revolve around finding the massive sums of money that will be required to accomplish the reclamation projects. These funds will probably need to come from a combination of domestic and external sources, since the Cuban transition government will not have the resources to pay for the required cleanup projects.125 The extent to which the transition government is successful in raising those funds, and the decision to allocate scarce government funds to environmental reclamation as opposed to other government priorities, will dictate the speed with which the reclamation process is implemented.
Remediation Obligations of Private Parties: The transition period laws dealing with remediation may impose different remediation obligations on private parties who have ownership interests in assets in Cuba at the onset of the transition from the obligations that will accrue on parties that acquire assets in Cuba through the privatization of state-owned enterprises.
The situation is somewhat different with respect to foreign investors who become involved in the privatization of state-owned enterprises (“SOEs”). The issue in those cases will be the extent, if any, to which an investor acquiring a state enterprise will be required to assume liability for environmental damage or hazards created by the enterprise while in the hands of the state.
The handling of environmental liabilities in Cuba’s privatization program will present a difficult challenge. As discussed earlier, Cuban SOEs have generated large amounts of pollutants which have contaminated many regions of the island. The allocation of responsibility for cleaning up the damage to the environment caused by the SOEs will be a policy-balancing issue that the legislators will need to address.
Whatever method is chosen, the applicable legislation should clearly define the liabilities to which the enterprises are subject, else there is a substantial risk that the environmental legislation will become an obstacle to the efforts of investors to acquire the enterprises. 142 The Cuban environmental legislation (in coordination with the country’s privatization program) should, therefore, contain clear guidelines defining the environmental obligations of acquirers of SOEs and the steps investors have to take to achieve compliance.
In addition to those laws deal directly with environmental protection issues, there are other laws that may contain provisions that further the environmental goals of the transition government. This section discusses briefly half a dozen of those laws.
Tax Laws: Cuba may use the tax laws as a mechanism for providing incentives for environmental restoration initiatives by private parties. As indicated earlier, Cuba could imitate other countries that offer tax benefits to businesses that install anti-pollution devices and to parties who engage in research and development activities. Other tax incentives are also possible.
Privatization Law: One of the top priorities of a transition government in Cuba will probably be to privatize many, if not most, of the country’s stateowned enterprises.144 As discussed above, the privatization legislation must be carefully coordinated with the environmental laws in order to address the prickly issue of accrued environmental liabilities due to prior operations of the enterprises while in the hands of the State.
Health and Safety Laws: Environmental problems such as air and water contamination have the potential of becoming public health and safety issues. Indeed, there is some indication that the severe levels of water pollution may be having an adverse impact on public health.146 The health and safety codes in effect during the transition period must reinforce the environmental protection legislation be defining those pollution-related conditions (e.g., severe water contamination) that may affect public health and safety, and impose appropriate penalties to those who violate or contribute to the violation of health and safety standards.
Industry-Specific Laws: Some industry-specific laws may set forth provisions that complement the requirements in the environmental laws. For example, the mining laws may impose on mining concession holders reclamation requirements that go beyond those in the environmental laws.147 Care should be taken, however, to avoid imposing inconsistent or unclear requirements on enterprise operators.
The framework law and other environmental legislation should establish a program of public information and education to increase the environmental understanding of the citizenry and elicit public support for environmental initiatives. Gaining public support for environmental remedial actions will be particularly important, because those measures will be costly and may impose additional sacrifices on the population. It is also likely that the parties affected by increased environmental requirements will lobby strongly against their implementation. For those reasons, formal and informal public information and education mechanisms should be established in the framework law and implemented by the appropriate agencies.
The transition government should also promote environmental education and public dialogue on environmental issues.148 Environmental education builds awareness of environmental issues for the future, and increases the likelihood that appropriate policies will be adopted by the government over time.149 Such education will also establish an environmental consciousness that has not existed to date, but which is critically important to lasting environmental change.
Well drafted environmental laws are of little value unless they are backed by an institutional structure that has sufficient enforcement capabilities.150 Therefore, it is essential for Cuba to create and maintain credible and effective institutions to manage environmental policies.151 During Cuba’s transition period and after, the administrative agencies responsible for overseeing the island’s environmental matters should be given political and fiscal independence.152 Environmental oversight activities such as licensing and environmental impact assessments must be administered independently and without the threat of central government pressure.153 Since the experiences at Cuba show that governments are notoriously poor at policing themselves, the institutional framework must not allow the public sector to regulate itself directly or indirectly,154 or have the environmental regulator engage in economic activities.
1. The author gratefully acknowledges the assistance of Mark Chavez and Edgar Velazquez in the preparation of this paper.
2. This paper will not describe in detail the environmental problems facing Cuba. Soil degradation, water contamination, industrial pollution and the threat to natural habitats and bio-diversity are primary environmental concerns, although others (e.g., urban decay, poor sanitary conditions, air pollution) are also important problems. For accounts of the environmental situation in Cuba see, e.g., Sergio Díaz-Briquets & Jorge Pérez-López, CONQUERING NATURE: THE ENVIRONMENTAL LEGACY OF SOCIALISM IN CUBA (unpublished manuscript on file with Shaw Pittman, Washington D.C. [hereinafter LEGACY]; José R. Oro, The Poisoning of Paradise: The Environmental Crisis In Cuba (1992) [hereinafter ORO]; Carlos Wotzkow, NATUMALEZA CUBANA (1998); Agencia Ambiental Entorno Cubano (AAMEC), Informe Anual de la AAMEC: Situación Ambiental de Cuba, 1997 (1997); República de Cuba, Ministerio de Ciencia, Tecnología y Medio Ambiente, Consulta Nacional Río +5, Taller “Medio Ambiente y Desarollo” (1997); María D. Espino, Environmental Deterioration and Protection in Socialist Cuba, in CUBA IN TRANSITION—VOLUME 2, ASSOCIATION FOR THE STUDY OF THE CUBAN ECONOMY 327 (Aug. 1992) [hereinafter ESPINO].
3. For the texts of number of national laws, decrees and other regulations applicable to Cuba’s environment see Rajendra Ramlogan, Protection of the Environment in Cuba: Piercing the Caribbean Iron Curtain, 29 U. Miami Inter-Am. L. Rev. 37, 90 (1998) [hereinafter Ramlogan].
4. See Constitución de la República de Cuba (1976) art. 27, published in Gaceta Oficial (Feb. 24, 1976) at p. 7.
6. Ley Número 33 de Protección del Medio Ambiente y del Uso Racional de los Recursos Naturales, published in Gaceta Oficial, Feb. 12, 1981.
7. See generally B. Ralph Barba and Amparo E. Avella, Cuba’s Environmental Law, in CUBA IN TRANSITION—VOLUME 5, ASSOCIATION FOR THE STUDY OF THE CUBAN ECONOMY 276 (Aug. 1995) [hereinafter Barba and Avella].
12. Fredric Evenson, Note, Comment: A Deeper Shade of Green: The Evolution of Cuban Environmental Law and Policy, 28 Golden Gate U. L. Rev. 489, 507 (1998) [hereinafter Evenson].
13. CONSTITUCION DE LA REPUBLICA DE CUBA (1992), published in Gaceta Oficial (Aug. 1, 1992).
14. See LEGACY, supra note 2, at 3:4; EVENSON, supra note 12, at 500.
15. Ley Número 81 del Medio Ambiente, published in Gaceta Oficial, July 11, 1997 [hereinafter Law 81].
17. Id., art.1. See Nicholas A. Robinson, Legal Structure and Sustainable Development: Comparative Environmental Law Perspectives on Legal Regimes for Sustainable Development, 3 WID. L. SYMP. J. 247 (1998) for a general discussion of the interrelationship between environmental law and sustainable economic development.
18. Law 81, supra note 15, art. 11.
19. EVENSON, supra note 12, at 504-09.
20. EVENSON, supra note 12, at 504. The Council of Ministers is supposed to issue within three years of enactment of Law 81 such additional legislation as is necessary to fully implement the law. Law 81, supra note 15, First Final Provision.
21. The main environmental agency established by Law 33, COMARNA, was only a coordinating agency comprised of representatives from 21 state agencies, the Presidents of 14 provincial environmental commissions, and representatives of mass organizations. COMARNA had no power to resolve inter-agency disputes, nor it had authority to enforce environmental lawn and regulations, which were implemented by other state agencies with a greater interest in development than in protecting the environment. David S. Collis, Environmental Implications of Cuba’s Economic Crisis, in Georgetown University Cuba Briefing Paper Series, Number 8 (July 1995) [hereinafter Collis] at 1-2; EVENSON, supra note 12, at 512; ESPINO, supra note 2, at 339; Sergio Díaz-Briquets & Jorge Pérez-López, The Environment and the Cuban Transition, in Cuba In Transition—VOLUME 7, Association for the Study of the Cuban Economy (ASCE-7) 488, 492 (Aug. 1997) [hereinafter Environment and Transition].
22. Decree-Law No. 118 of January 18, 1990 “On the Structure, Organization and Operation of the National System for the Protection of the Environment and the Rational Use of Natural Resources (Gaceta Oficial, January, 18, 1998). Law 81, however, expressly repeals Law 33 and Decree-Law No. 118. Law 81, supra note 15, Second Final Provision.
23. Law 81, supra note 15, First Transitory Provision.
24. EVENSON, supra note 12, at note 175.
25. Law 81, supra note 15, art. 17.
33. Thus, art. 55 of the Foreign Investment Act (Law 77 of 1995, published in Gaceta Official, September 6, 1995) [hereinafter “Law 77”] states: “The Ministry of Foreign Investment and Economic cooperation will in appropriate cases submit the investment proposals it receives to the consideration of the Ministry of Science, Technology and the Environment so that the latter may evaluate the investment’s suitability from the environmental point of view and determine whether an environmental impact evaluation is required as well as the suitability of granting pertinent environmental licenses and establishing a control and inspection program in accordance with the legislation then in effect. Shortly after the release of Law 77, regulations were issued for the performance and approval of environmental impact assessments and the granting of environmental licenses. Resolución No. 168195, Reglamento para la Realización y Aprobación de las Evaluaciones de Impacto Ambiental y el Otorgamiento de las Licencias Ambientales, in Gaceta Oficial, September 15, 1995.
34. Law 81, supra note 15, art. 24.
36. EVENSON, supra note 12, at 505.
37. LEGACY, supra note 2, at 3:35-36.
38. EVENSON, supra note 12, at 519.
39. Law 81, supra note 15, art. 30.
40. Law 81, supra note 15, Primera Disposición Final (First Final Provision).
41. Id., Primera Disposición Transitoria (First Transitory Provision).
42. EVENSON, supra note 12, at 507. See RAMLOGAN, supra note 3, Appendix A and Tulane Law School, CUBAN ENVIRONMENTAL LAW (Jerry Speir, ed.) (1999) for texts and summaries of Cuba’s environmental laws and regulations.
43. EVENSON, supra note 12, at 507.
44. Law 81, supra note 15, art. 67-75.
45. Conversely, Law 81 includes provisions to grant “environmentally-friendly” companies financial support from the government in the form of tariff reductions, allowing accelerated capital depreciation, or direct government funding. Id., art. 63.
46. There are no norms to govern individual suits under Law 81, and its is even unclear who has standing to bring any such suits. EVENSON, supra note 12, at 523-24.
47. Barba and Avella, supra note 7, at 279.
48. Law 33, supra note 6, art. 14. The law also provided for the systematic dissemination through the media of materials on the protection of the environment. Id., art. 13.
49. RAMLOGAN, supra note 3, at 71-72.
50. Law 81, supra note 15, art. 46.
51. Id., art. 47-56. See generally Evenson, supra note 12, at 503.
52. LEGACY, supra note 2, at 3:28.
53. RAMLOGAN, supra note 3, at 48.
54. Law 33, supra note 6, art. 117.
55. COLLIS, supra note 21, at 1-2.
56. Environment and Transition, supra note 21, at 492.
58. Collis, supra note 21, at 2.
60. Id; EVENSON, supra note 12, at 512.
62. Evenson, supra note 12, at 512-13.
66. Environment and Transition, supra note 21, at 492.
67. Evenson, supra note 12, at 511.
68. For a listing of the environmental agreements to which Cuba is a party, see http://sedac.ciesin.org/prod/charlotte. See also LEGACY, supra note 2, at 3:19-22 for a summary discussion of those agreements.
69. For example, Cuba is a party since October 1988 to the Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region (“Cartagena Convention”), which requires parties inter alia to ”take all appropriate measures in conformity with international law and in accordance with this Convention and those of its protocols in force to which they are parties to prevent, reduce and control pollution of the Convention area and to ensure sound environmental management, using for this purpose the best practicable means at their disposal and in accordance with their capabilities among other obligations.” (Art. 4.1) The Cartagena Convention also requires parties to “take all appropriate measures to prevent, reduce and control pollution of the Convention area caused by coastal disposal or by discharges emanating from rivers, estuaries, coastal establishments, outfall structures, or any other sources on their territories.” (Art. 7). Despite these commitments, Cuba has engaged in the widespread and indiscriminate dumping of pollutants into the seas surrounding the island, undeterred by the prohibitions in the Cartagena Convention. See, e.g., LEGACY, supra note 2, 5: 35-38, and Carolina Hospital, Cuba’s Contamination Threatens Caribbean Basin, GABLES PAPER, Nov. 4, 1992 at 6.
70. For example, art. 70 of Laws 81 reads: “Every natural or juridical person who, through his actions or omissions harms the environment is under the obligation to stop its conduct and remedy the damages it causes.” There is, however, no other mention in the law as to how the remediation of environmental damages is to take place, particularly if the damage has been inflicted by the State or one of its agencies.
71. See Ramlogan, supra note 3, at 113-115.
73. For example, in an effort to curb air pollution specific gases and substances were identified as environmentally harmful, but no limits were placed on the emissions amounts of such pollutants. Id., at 65.
74. See Collis, supra note 21 at 2; Ramlogan, supra note 3, at 88-89; LEGACY, supra note 2, at 3:30-32.
75. Environment and Transition, supra note 21, at 494-95; Sergio Díaz-Briquets and Jorge Pérez-López, Socialism and Environmental Disruption Implications for Cuba, ASCE-8 154, 168 [hereinafter Environmental Disruption].
80. Environment and Transition, supra note 21, at 494.
82. Ramlogan, supra note 3, at 66.
86. Legacy, supra note 2, at 11:22.
87. Resource Renewal Institute, Environmental Atlas: Environmental Atlas: Poland, http://www.rri.org/envatlas/europe/poland/pl-index.html [hereinafter POLAND ENVIRONMENTAL POLICY].
92. See Aldo M. Leiva, Promoting and Financing the Development of an Environmental Infrastucture in a Post-Castro Cuba, in CUBA IN TRANSITION—VOLUME 8, ASSOCIATION FOR THE STUDY OF THE CUBAN ECONOMY (“ASCE-8”) 85, 86 (Aug. 1998) [hereinafter LEIVA] for a discussion of strategies that could be used to maximize the funds available for environmental remediation activities.
93. Legacy, supra note 2, at 11:1.
94. For a description of the environmental policy experiences of other transition countries see generally Shelley Bookspan, When the Smoke Clears: Environmental Restoration in Central and Eastern Europe, 21 Real Est. L.J. 407 (1993) [hereinafter Bookspan]. For a discussion of the Latin American environmental experience, see Felipe Paez, Environmental Framework Laws in Latin America, 13 Pace Envtl. L. Rev. 625, 642 (1996) [hereinafter Paez].
95. See PAEZ, supra note 94, at 626 (Brazil); 646-47 (Mexico).
96. LEGACY, supra note 2, at 1:12.
97. Ruth Greenspan Bell, Environmental Law Drafting in Central and Eastern Europe, 22 ENV. L. RPT. 10597 (1992) [hereinafter BELL].
99. Matías F. Travieso-Díaz & Steven R. Escobar, Comment: Cuba’s Transition to a Free-Market Democracy: A Survey of Required Changes to Laws and Legal Institutions, 5 Duke J. Comp. & Int’l L. 379, 421.
100. Barba and Avella, supra note 7, at 280.
101. BELL, supra note 97.
103. Matías Travieso-Díaz & Alejandro Ferraté, Recommended Features of a Foreign Investment Code for Cuba’s Free Market Transition, N.C. J. Int’l L. & Com. Reg. 511, 558 [hereinafter Travieso-Díaz & Ferraté].
107. See BELL, supra note 97.
108. Matías F. Travieso-Díaz, THE LAWS AND LEGAL SYSTEM OF A FREE-MARKET CUBA 105 (Quorum Books, 1997) [hereinafter “LAWS AND LEGAL SYSTEM”].
110. Cuba framework laws are not unlike those enacted in the Eastern European countries starting in the 1970s. Those laws, in varying degrees of detail, set standards that could not be implemented and which were regarded as many as mere window dressing. BELL, supra note 97, at 2.
111. See note 2, supra.
112. PAEZ, supra note 94 at 640 (Chile).
113. POLAND ENVIRONMENTAL POLICY, supra note 87, at http://www.rri.org/envatlas/europe/poland/pl-inst.html.
114. PAEZ, supra note 94 at 629.
115. Id., at 629 & 652.
116. In Chile and Venezuela, for example, if no decision on the approval of a project is rendered by the reviewing authorities within a specified period after the environmental assessment is completed, the project is deemed approved. Id. at 635-36 (Chile), 673 (Venezuela).
117. Id. at 634. An example of over-inclusion in the types of project requiring EIAs is the Bulgarian environmental law, adopted after its transition to a market economy. The law subjected almost any individual, business, or government activity to an EIA. The broad and unrealistic language in the Bulgarian legislation apparently deterred investment and resulted in ambiguity about the law and its implementation. BELL, supra note 97.
118. See ORO, supra note 2 at 47-61, for a description of the worst industrial sources of pollution operating in Cuba.
119. BELL, supra note 97.
122. See LAWS AND LEGAL SYSTEM, supra note 108, at 173-75.
123. See LEIVA, supra note 92, at 91-93.
126. Additional domestic funds could be made available through a process known as debt swapping, in which a country’s international debt is reduced in exchange for funding environmental protection measures. Debt swapping has been adopted as a funding method for environmental projects in Poland and should be considered in Cuba as a way of financing its environmental programs; the money that would otherwise be devoted to reducing Cuba’s international debt could be applied to environmental reclamation. POLAND ENVIRONMENTAL POLICY, supra note 87, at http://www.rri.org/envatlas/europe/poland/pl-inst.html.
127. LEIVA, supra note 92, at 95.
128. See, e.g., Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et. seq.
129. As a result of the ongoing economic crisis in Cuba, farmers have turned to using more primitive, but environmentally more benign, agricultural techniques. These include fewer tillings per year; plowing using animal traction, and the use of bio-fertilizers and biopesticides, instead their polluting chemical equivalents. LEGACY, supra note 2, at 10:6 – 10:9. By applying these farming methods on a widespread basis and combining them with reforesting operations that reduce soil erosion, Cuba could reverse some of the damage caused to the soils by previous farming methods. On the other hand, these environmentally friendly agricultural methods result in low productivity, so there may be a temptation when economic conditions allow to return to the practices that prevailed before the crisis. Id. at 10:9.
130. According to Cuba’s Minister of Foreign Investment and Economic Cooperation, at the end of 1998 Cuba had 340 joint ventures with foreign investors, 57 of which were approved in 1998. Se acelera en 1999 la inversión extranjera, EL NUEVO HERALD (March 28, 1999).
131. Cuba’s Foreign Investment Law, Law 77, authorizes the establishment of wholly owned foreign enterprises. Law 77, supra note 33, art. 12(c), 15. However, only one such enterprise has been approved to date. Cuba allows first 100 pct foreign-owned investment, Reuters, Feb. 8, 1999.
132. Cuba’s first joint venture with a foreign investor was completed in 1990. See LAWS AND LEGAL SYSTEM, supra note 108, at 106. This was ten years after Law 33 went into effect.
133. See ORO, supra note 2, at 47-56.
134. Anecdotal evidence suggests that businesses increasingly factor environmental issues into their foreign investment decisions. See, e.g. Norman E. Gelber, Apparel Dominates Caribbean Conference, BOBBIN, Feb. 1993, at 76 (comment by a Levi Strauss & Company’s executive).
135. Frederick R. Anderson, Environmental Aspects to Foreign Investment in Latin America, in INVESTMENT AND TRADE IN ARGENTINA, BRAZIL, CHILE, MEXICO AND VENEZUELA (1992), at 151, 154-55 (PLI Commercial Law and Practice Course Handbook Series No. 643, 1992).
136. Randall S. Thomas, The Impact of Environmental Liabilities on Privatization in Central and Eastern Europe, 28 U.C. DAVIS L. REV. 165, 167 (1994).
137. Francis S. Kiefer, Air Clears Up in Eastern Germany, CHRISTIAN SCIENCE MONITOR, Mar. 19, 1992, at 12. 138. Sam Loewenberg, Pollution Often Part of Package Deal with Eastern Block Firms, L.A. TIMES, Aug. 28, 1994, at D3.
139. Germany provides a good example of limiting successor liability to facilitate the sale of SOEs to investors. The German system for handling environmental liabilities did not promote private cleanup activity. Randall S. Thomas, The Impact of Environmental Liabilities on Privatization in Central and Eastern Europe: A Case Study of Poland, 28 U.C. DAVIS L. REV. 165, 170 (1994). “German law is intended to release investors in the new Eastern states from liability for past environmental damage resulting from preexisting waste sites. The law was designed to alleviate the fears of potential investors that they would acquire immeasurable environmental risks.” Id. Such an approach may have worked for Germany, which could afford to finance the cleanup with state-funds, but a poor country like Cuba certainly could not bankroll such a system.
140. The primary U.S. environmental liability law is CERCLA, supra note 128. CERCLA imposes strict liability for both present and past owners and operators of contaminated vessels and facilities. Id. at 188. Purchasers of contaminated assets also face successor liability under CERCLA. Id. CERCLA has been criticized because of its enormous cost and the protracted litigation it has generated. Allan Rickman & Scott Smith, Environmental Law: An American Agenda Europe Should Avoid, INT’L CORP. LAW 35-38 (Mar. 1994). Since CERCLA imposes requires that the polluter pay the cost of cleanup, in conjunction with joint and several liability, complex litigation has erupted as involved parties seek to avoid liability. Id. Using a strict-liability scheme, such as CERCLA, during Cuba’s privatization process would likely deter investors from acquiring SOEs offered for privatization.
141. As an alternative, the costs of environmental cleanup could be passed on to the buyer of the enterprise in exchange for tax reductions or a period of market advantage. BOOKSPAN, supra note 94, at 410.
142. Susan S. Cummings, Environmental Protection and Privatization: The Allocation of Environmental Responsibility and Liability in Sale Transactions of State-Owned Companies in Poland, 17 HASTINGS INT’L & COMP. L. REV. 551, 554, 562 (1994).
143. See LAWS AND LEGAL SYSTEM, supra note 108, at 116. Cuba’s current Foreign Investment Code, Law 77, requires that joint venture applications by foreign investors be evaluated by CITMA for their potential environmental impacts and that CITMA decide whether to grant an environmental license, whether to order the performance of an EIA, and whether environmental monitoring and inspection mechanisms should be set in place. Ley 77, supra note 33, art. 55. The law also explicitly makes a foreign investor who inflicts damage or harm upon the environment the obligation “to re-establish the previous environmental situation, repair the material damage and indemnify the injured parties.” Id. art. 56(2).
144. See generally, LAWS AND LEGAL SYSTEM, supra note 108, at 137-63.
146. See LEGACY, supra note 2, at 10:28.
147. Art. 41(c) of Cuba’s current mining law ordains that every mining concession holder is obligated to: “preserve adequately the environment and ecological conditions of the area under concession, elaborating studies on the environmental impact and plans for preventing, mitigating, controlling, rehabilitating and compensating for the impact that comes from its activities, in those areas and also in the ecosystems in areas related to those that can be affected. Ley No. 76 de Minas, published in Gaceta Oficial, January 23, 1995, art. 41(c). The extent of these broad obligations and the mechanisms for enforcing them remain to be defined.
148. Environment and Transition, supra note 21, at 495.
150. Environment and Transition, supra note 21, at 492.
153. The lack of independence in the performance of environmental evaluations has become evident in Cuba since the government created GEOTECH, a joint venture between the State and a Spanish corporation. GEOTECH performs 95% of all EIAs in Cuba. Most of GEOTECH’s clients are in the mining, tourism and agricultural industries, in all of which the state has a controlling interest. Evenson, supra note 12, at 519. This arrangement leaves the government in charge of administering the EIAs for its own industries, which creates a serious conflict of interest and questions the integrity of the EIAs.
154. Environment and Transition, supra note 21, at 492.
155. See Commission for Environmental Cooperation, 1996 Annual Report, 80-87 (1997) [hereinafter CEC].
156. Id. One of the decentralized entities is the office of the Federal Attorney General for Environmental Protection (PROFEPA). The PROFEPA is responsible for enforcing environmental laws, regulations and Official Mexican Standards. There are three deputy attorneys general each devoted to a different aspect of environmental enforcement. Id. at 83.
157. See generally CEC, supra note 157.
158. Paez, supra note 94, at 683.
163. There is a decentralization provision in the Cuban environmental law, but the extent to which local agencies will be able to exercise their powers remains to be seen. See Law 81, supra note 15, art. 15, 16.
164. RAMLOGAN, supra note 3, at 100-01.


text:
Harold P. Threlkeld, of McIntosh, Threlkeld, Glenn Sherard, Anderson, for Manley J. Horton, as Representative of a Class.
Robert L. Hawthorne, Jr., Abbeville, for City of Abbeville.
Frank E. Robinson, II, of Lewis, Lewis, Robinson Arnold, Columbia, and Thurmond Bishop, of Bishop Hughston, Greenwood, for respondent.
This appeal is brought from a lower court order directing the City of Abbeville to issue respondent a building permit for the construction of a multifamily housing project and to provide the necessary municipal services to which respondent is entitled. We affirm.
In early 1977, respondent obtained an option to purchase certain real property located within the corporate limits of the City of Abbeville. This option was obtained with the intent of constructing a multi-family housing project and was subject to proper zoning. Respondent subsequently reviewed the Abbeville Zoning Ordinance, including the Official Zoning Map, and obtained a letter from the City Zoning Administrator, all of which confirmed that the subject property was zoned R-6 High Density Residential. That zoning would allow the construction of the proposed multi-family housing project.
In reliance on the Abbeville Zoning Ordinance, Official Zoning Map, and the letter from the City Zoning Administrator, respondent expended between $90,000.00 and $100,000.00 for property acquisition, architectural and engineering fees, loan commitments and other development costs. On or about August 17, 1978, respondent applied for a building permit from the City of Abbeville. On August 22, 1978, the Abbeville City Council adopted a resolution declaring that through "inadvertence, mistake, or oversight" the "Official Zoning Map", which was adopted in 1971, was made up defectively and that the subject property is now and always has been zoned R-8 Medium Density Residential. That zoning would not allow the proposed multi-family housing project. The Abbeville City Council also ordered the Official Zoning Map revised to reflect the correction.
On August 23, 1978, respondent's application for a building permit was denied on the basis that the uses allowed under the corrected R-8 Medium Density Residential zoning did not include the proposed multi-family housing project. Respondent then instituted this civil action. After a hearing, the lower court ruled that the City of Abbeville was estopped by its representations and actions from denying respondent the building permit.
The City of Abbeville and Manley J. Horton, as a representative of a class of residents of the area surrounding the subject property, have appealed, first alleging that the lower court erred in holding that a municipality can be estopped by the erroneous representations of its officers, agents, zoning ordinance and Official Zoning Map.
This Court has previously recognized that estoppel will not lie against a governmental body for the unauthorized acts of its officers and agents. Looper v. City of Easley, 172 S.C. 11, 172 S.E. 705 (1934); Farrow v. City Council of Charleston, 169 S.C. 373, 168 S.E. 852 (1933). However, this doctrine does not provide immunity for the governmental body where its officers or agents were acting within the proper scope of their authority. Townes v. City of Greenville, 266 S.C. 81, 221 S.E.2d 773 (1976); Farrow v. City Council of Charleston, supra. In the instant case, it is clear that the Abbeville City Council was acting within the scope of its authority in enacting a zoning ordinance, including an Official Zoning Map. [ Generally see S.C. Code §§ 5-5-10 et seq., 5-7-10 et seq. 5-23-10 et seq. (1976)]. Additionally, there is no evidence whatsoever that the City Zoning Administrator was acting outside the scope of his authority in issuing the letter confirming that the property was zoned R-6 High Density Residential on the Official Zoning Map. It would then follow that under the instant circumstances, the City of Abbeville is not immune from application of the doctrine of estoppel.
There are three essential elements necessary to invoke the doctrine of estoppel. South Carolina State Highway Dept. v. Metts, 270 S.C. 73, 240 S.E.2d 816 (1978); Crescent Company, Inc. v. Insurance Co. of N.A., 266 S.C. 598, 225 S.E.2d 656 (1976). First, the relying party must have a lack of knowledge and of the means of knowledge of the truth as to the facts in question. In the instant case, respondent checked the zoning ordinance, including the Official Zoning Map, which indicated the property was zoned R-6 High Density Residential. This zoning was confirmed through correspondence with the City Zoning Administrator. It should be noted that Article III of the Abbeville Zoning Ordinance provides, inter alia, "... the Official Zoning Map ... shall be the final authority as to the current zoning status of land ... in the City." Thus, it is clear that the defect was latent and that respondent lacked knowledge and the means of knowledge as to its existence. This conclusion is further bolstered by the fact that even the City Zoning Administrator was, as is indicated by his letter confirming the zoning to be R-6 High Density Residential, unaware of the defect in the Official Zoning Map.
The second essential element necessary to invoke the doctrine of estoppel is reliance upon the conduct of the party estopped. The City of Abbeville concedes in its brief that respondent relied upon the zoning ordinance, Official Zoning Map and the letter from the City Zoning Administrator; thus, this element need not be examined further. The third and final element requires action, on the part of the relying party, based thereon of such a character as to constitute a prejudicial change of position. In the instant case, respondent has expended between $90,000.00 and $100,000.00 in preparation of the project. The record before this Court reflects that a large portion of these expenditures is not recoverable if the project fails. This clearly demonstrates a prejudicial change of position.
Accordingly, we conclude that the essential elements of estoppel are present and that the City of Abbeville is thus estopped from denying respondent the building permit on the basis of the corrected zoning.
The City of Abbeville's second exception challenges the validity of the process through which it adopted the current zoning ordinance and Official Zoning Map. An identical attack was made upon the zoning ordinance of the Town of Eau Claire in Kerr v. City of Columbia, 232 S.C. 405, 102 S.E.2d 364 (1958). For the reasons set forth in this Court's opinion in that case, we reject appellant's attempted collateral attack on the validity of its own ordinance.
The remaining exceptions taken by Appellant Horton are rejected as the record indicates they were either expressly waived or not raised in the lower court and, as such, are not properly presented on appeal. See 3 West's S.C. Digest, Appeal and Error, Key No. 169.
Accordingly, the judgment of the lower court is affirmed.

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