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Yesterday I bogged about a new complaint filed in Houston over the San Felipe “High Rise,” in the wake of the Ashby High Rise decision. Here is the complaint. There seems to be three main claims: (1) it will increase traffic with 400 new parking spots, (2) it will decrease the values of homes (casting a shadow over the home, blocking rain, and damaging gardens), (3) deprive owners of privacy (high-rise will have a view into windows or yards), and (4) erosion of the character of the neighborhood” (by chopping down huge oak trees).

The first cause of action, for a “private nuisance,” claims the high-rise is “abnormal for the area”:

The 17-story San Felipe high-rise office building is abnormal for the area and unquestionably alters the characteristics of the neighborhood. This has and will continue to substantially decrease the value of Plaintiff’s home and property and has and will continue to constitute an unintentional and unreasonable invasion of Plaintiffs’ interests in their real property.

This tracks almost verbatim with the Ashby jury instruction:

Question No. 1

Is 1717 Bissonnett’s proposed Project abnormal and out of place in its surroundings such that it will constitute a private nuisance if built?

1717 Bissonnet creates a “private nuisance” if its Project substantially interferes with Plaintiff’s use and enjoyment of land.

“Substantial interference” means that the Project must cause unreasonable discomfort or unreasonable annoyance to a person of ordinary sensibilities attempting to use and enjoy the person’s land. It is more than a slight inconvenience or petty annoyance.

A nuisance, if it exists, is not excused by the fact that it arises from operation that is in itself lawful or useful.

The second cause of action claims a “public nuisance,” citing dangers and traffic congestion from all of the new cars.

Interestingly, the Plaintiffs are only seeking actual damages (direct and consequential for loss in value of property), but no injunctive relief. The construction is under way.

This species of backdoor zoning aims to shift the costs. Rather than the homeowners internalizing the cost of the new building, the developers will bear that cost. Of course, this creates a specter of litigation over all development, where it is impossible to know ex ante what the costs will be. More zoning fun in the unzoned city.

AP reports on the GAO report on the botched rollout of HealthCare.gov.

Officials tell The Associated Press that a nonpartisan investigative report concludes that management failures by the Obama administration set the stage for the computer problems that paralyzed the HealthCare.gov website last fall.

The Government Accountability Office — the investigative agency of Congress — will report Thursday on its months-long investigation.

GAO said the administration kept changing marching orders for contractors who built the computerized sign-up system, creating widespread confusion and leading to tens of millions of dollars in additional costs.

Republican and Democratic congressional aides briefed on the report say it faults the Centers for Medicare and Medicaid Services for ineffective oversight.

CMS is the lead agency administering President Barack Obama’s health care law.

Stay tuned.

Try as I may, I can’t escape the law. While afloat somewhere between Bermuda and Bayone, I had a very vivid Supreme Court dream. I was in the Supreme Court chamber, but it was open in a tropical setting. (I visited the Bermuda Supreme Court, and by chance saw a few minutes of a fairly rare murder trial, which are heard in the BSC’s original jurisdiction by a single Justice wearing a badass powdered wig).

All of the males Justices were wearing these spiffy white tuxedos, with black bow ties. The Chief Justice begins, and says that Justice Alito has the opinion in some case (I couldn’t make out the name of the case).The reaction in the Courtroom was similar to the reaction on Twitter when we learned Alito had the decision in Harris v. Quinn and Hobby Lobby. People in the Court started screaming (the guards didn’t stop them) and someone clearly screamed out “Oh Fuck.”

Alito starts reading the opinion, then RBG interrupts him. She asks him some question, and challenges his presumptions. (Personally, I think such a rapport would be a lot more fun than reading majority and dissenting opinions from the bench). Alito takes it in stride, answers RBG’s questions, and continues reading his opinion.

That’s all I recall.

Hello everyone. Welcome to Property II. You can view the course homepage here. The syllabus is here.

The first assignment is:

Class 1 – 8/18/14

Adverse Possession: The Theory and Elements

• Introductory Notes, 116-122
• Van Valkenburgh v. Lutz, 122-134
• Color of Title, 134-136
• Manillo v. Gorski, 136-141

See you in class.

This is unbelievable. ExamSoft, the program used by bar takers nationwide, has gone Obamacare. Test-takers nationwide are unable to upload their exams. Check out David Lat’s post, which highlights the madness.

My prayers are with those who are suffering through unnecessary panic and stress on what is probably the most stressful time of the entire law school experience.

I had a minor version of a technical snafu when I took the Virginia Bar. The first essay question had five subparts. I put the answer to Part A in the first question box on the software, Part B in the second box, etc. When I got to the second question, I realized that there were only five boxes total. Crap. And, thanks to the geniuses at the VA Bar, the cut and paste feature was disabled, so I couldn’t move stuff around. So what did I do? I typed the other four answers into the final question box. I wrote instructions to the bar examiners of what I did. Others made the same mistake, and told me they manually rewrote their first question into the other boxes. I considered that briefly, but thought it would be an abject waste of time. I panicked a bit, but it was fine.

Even if ExamSoft gets their shit together by tomorrow, this is causing so many unforeseeable negative consequences. Now students, instead of resting and getting ready for day 2, are glued to their computers trying to upload their exams.

I hope someone does some regression to show what the impact of this bullshit is on test takers, comparing the scores of those who typed their exams, and those who hand-wrote them. If the typists have a statistically significant higher rate of failure compared to previous years, we know who to blame.

And for crying out loud, this is serious business. Failing the bar in this economy is a 6-month sentence of unemployment. Somewhere, a plaintiff’s lawyer is putting together a class-action suit for those who used exam soft, and failed.

Good luck everyone!

Update: Paging Alanis Morissette (Ironic was released in 1995, close enough).