The Omnibus

NEWS AND NOTES FROM THE LAWYERS AT PRATT-THOMAS WALKER.


Welcome to the 'law blog' of Pratt-Thomas Walker. In addition to regular updates and news from our practice areas, partner, Andy Gowder, holds court on 'Grounded' - a special topic area dealing with land use rights and other matters.

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Exactions and Impact Fees in The Urban Lawyer

In the spring of every year, the Land Use Committee of the American Bar Association Section of State and Local Government Law meets for its annual Hot Topics luncheon.  Section members and guests present (at lightning speed) short summaries of the papers that they have prepared on a particular aspect of land use law, some following and writing about a topic for many years.  When I first became involved in the Section in 2003, I was given the great privilege to write a paper on the topic of exactions and impact fees with a legend in land use and local government law, Dan Curtin.  Dan practiced in his native San Francisco Bay area, in Walnut Creek, California and wrote the multi-volume treatise on California planning and zoning law that bears his name.  He was the president of the International Municipal Lawyer’s Association and the chair of the State and Local Government Section of the ABA.   Dan was very generous with his time and insight with me (as he was with so many others) and allowed me to write with him for several years.  A few years ago, he then introduced me to his protégé, Bryan Wenter, who began contributing to this annual paper with us.  Then, when Dan passed away unexpectedly at the end of 2006, Bryan and I kept going, and have continued to produce the update on the law of exactions and impact fees.  Fittingly, Bryan is the assistant City Attorney for Walnut Creek, California, where Dan practiced for many years, and has become a very great friend.

What are exactions and impact fees, anyway, and why write about them year after year?  Frequently, local government requires developers and landowners to dedicate property or property rights or pay fees in exchange for the right to develop property in a certain way.  By doing this, the local government hopes to shift the burden that the new development might cause from the local government’s operating budget to the developer, at least for a period of time, or ameliorate a negative condition that might be caused by the development.  Or, in some cases, to get something from the landowner that the local government wants, which it would otherwise not have to opportunity “to exact.”  The US Supreme Court dealt with these issues in the Nollan case in 1987 and the Dolan case in 1994, but determining whether a local government has properly calculated an impact fee or demanded an exaction that is within its constitutional power to do is continually worked out in state courts across the country every year, as local governments struggle to make ends meet and developers seek to minimize costs and to retain as many rights through the entitlement process as possible.

The 2009 article has now been published in The Urban Lawyer, one of the leading law reviews on state and local government law, produced by the UMKC School of Law, by agreement with the ABA Section of State and Local Government Law.  I have attached the full article at the link below.

The Urban Lawyer – Exactions and Impact Fees

The impact of Medicare “Never Events” in medical malpractice litigation

Since October 1, 2008, as mandated by the Deficit Reduction Act of 2005 (DRA), the Centers for Medicare & Medicaid Services (CMS) requires Medicare-participating hospitals to disclose all hospital-acquired conditions (HACs).  An HAC is defined as a reasonably preventable condition, not present or identifiable at the time of hospital admission, but present during discharge, and generally falling into three categories:  (1)  those that are high cost, high volume, or both, as determined by CMS; (2) those identified through the International Classification of Diseases, 9th Revision, Clinical Modification coding (ICD-9-CM) as “complicating conditions” (CCs) or “major complicating conditions” (MCCs) that, when present as secondary diagnoses on claims, result in a higher-paying MS-DRG; and (3) those that are reasonably preventable.   CMS no longer pay hospitals any increased rate or any cost attributed to care made necessary by HACs as part of the Medicare Severity Diagnosis Related Groups (MS-DRGs).  Medicare will also prohibit the billing of these additional incurred costs to the patient.

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Welcome to Grounded

“So much has been destroyed/ I have cast my lot with those /who, age after age, perversely, with no extraordinary power, / reconstitute the world.”   Adrienne Rich

Welcome to the first entry of my new blog, which I have named “Grounded.”  I want to explain the title and what I expect the focus of the blog to be.

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Healing or Stealing?

In a college commencement speech delivered earlier this summer, the visionary environmental activist and entrepreneur Paul Hawken outlined for the graduates the rather bleak state of the planet, both from an environmental and a social perspective, and why that, ironically, is presents them with an extraordinary opportunity. He told them:

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