Decision Time

As we move ever closer to some type of resolution to the electoral process that already seems like it has gone on far too long, the constant bombardment of news and propaganda can be a bit daunting. Here in New York we're gearing up for the Super Duper Stupendous Extravaganza which will be, for most of us, another drab Tuesday. But despite my attempts to steer clear of the hoopla, even the world of land use pulls me back into the fray. For instance, there is a report out of Chicago where, in the words of Hillary Clinton, "slum landlord business" magnate Tony Rezko was arrested on various charges you would expect of a sleazy developer.

Usually such a news item is of little moment on the national stage. But when he also knows the junior Senator from Illinois, who is also running for president, the stakes are raised. In particular, the 20-year connection between Rezko and Obama yielded an odd transaction back when the Senator just won his seat. Obama bought his house for $300,000 less than the asking price. As someone who is in the market for a new home, I can only bow to honor his good fortune. On top of that, the same day, Rezko's wife purchased the property next door for the retail price. Thereafter, Obama purchased a small portion of the neighboring lot to expand his yard. During his time in the state senate, Obama offered his clout in support of some of Rezko's projects. What all of this means is unclear. Is it another Whitewater, or just another wild goose chase? (Yes, both are seemingly the same thing). But behind it recalls the shady real estate deals that have become a hallmark of seemingly all presidential administrations. A little Teapot Dome, anyone?

In any event, the real tidbit into which I wanted to delve had to do with decisions that Americans have already made. An organization known as the Saint Consulting Group releases a yearly survey, the aptly-named Saint Index, which sets forth the pulse of America when it comes to land use. A co-worker passed it along to me, and I couldn't stop keeping my jaw from dropping to its limits. According to those surveyed, 78 percent of Americans believe there should be no new development in their hometown. Asked what type of new development they’d like to see in their community, one in three Americans said “none,” by far the most popular choice. But when you get more specific, it gets even more confounding. For instance, people were more supportive of a new power plant than a Wal-Mart or a casino. According to the survey, people would rather have a landfill than a casino. For all those people who may need medical attention at one time or another during their lifetimes, fear one-third of your neighbors who said that they would oppose a hospital in their town. And what about for the Clintons and Obamas out there? Eighty-nine percent of Americans believe a candidate’s position on growth is important at election time.

Where we will be come November is way too hard to predict at this early stage of the game. Within days, if not already, the saga of Tony Rezko will no doubt be forgotten amongst the electorate. But either way, the lessons learned from the process of seeking an up or down vote on the candidates, and the issues, is that we land use professionals should be mindful of the sentiment that lies beneath any application brought before a land use board. It is difficult not to recall the lessons of Kelo, and how the decision incited such intense, popular fervor. And of course, it still continues. As reported in Professor Patty Salkin's Law of the Land blog, California is at it again with another eminent domain measure to reach voters in November. The people have spoken. And in this fantastic political system we have chosen as our mode of governance, they will continue to do so.

Ballot Initative Update

The big news from Election Day, aside from the party shift in Congress, is the

“Response to Kelo,” i.e., the ballot initiatives seeking to curb eminent domain. According to the Castle Coalition, a property rights group, the results are as follows:

YES:

Arizona: 65% to 35%

Florida: 70% to 30%

Georgia: 80% to 20%

Louisiana: Passed in September

Michigan: 80% to 20%

Nevada: 65% to 35%

New Hampshire: 85% to 15%

North Dakota: 65% to 35%

Oregon: 65% to 35%

South Carolina: 85% to 15%
__________________________________

NO:

California: 45% to 55%

Idaho: 25% to 75%


The impact of these initiatives will take months, and probably years, to sort out. But for the moment, it is clear that the “Rage of Kelo” remains burning in the minds of many Americans.

The Response to Kelo

Last week we kicked things off with Kelo v. City of New London, the Supreme Court’s answer to redevelopment in modern urban America. Thanks to this decision, many Americans now believe that the key mantra of land use law is as follows: “they can take your house for any reason and give it to developers.” This simplistic approach creates an initial hurdle that land use professionals and boards alike must overcome in earning the trust of citizens who must enter and use the process. If those not familiar with the procedure believe the system is rigged against them (even though it is almost the direct opposite), it may be impossible to ever earn their trust.

The country’s legislators have fueled this belief in a broken land use system. New laws and ballot initiatives have clogged legislative agendas in the last year, each designed to nullify the Kelo decision. According to the property rights website PropertyFairness.org, twenty-four states have adopted some type of anti-eminent domain measure, prohibiting takings that are designed to stimulate economic development. For instance, Illinois’s S.B. 3086 prohibits any act of eminent domain from benefiting a private entity. However, the new law does allow the use of eminent domain for a private development if the area is declared “blighted” and the developer enters into a redevelopment agreement with the applicable locality. Likewise, Pennsylvania’s H.B. 2054/S. 881 prevents the use of eminent domain for public enterprise, but exempts the state’s current urban redevelopment framework. As for the rest of the states, they have just about all attempted to push through similar measures, some still with the potential for passage.

The ballot initiatives put before voters in twelve states this fall seek “reforms” to the eminent domain question. Already, Louisiana citizens adopted a constitutional amendment in September that is similar to the Illinois and Pennsylvania examples, with the major exemption there being port properties. However, several initiatives in the West, particularly California’s, go even further. The model for the proposal comes from Oregon's Measure 37, which requires compensation to property owners impacted by regulations under the state’s strict land use framework. Affirmed by the Oregon Supreme Court earlier this year, the measure has opened up the floodgates to claims of “regulatory takings.” California seized on this initiative, drafting Proposition 90, which would actually require “just compensation” not only for real estate, but any personal property impacted by most state regulations.

Behind all of these legislative actions is the enduring rage of Kelo. Its profound impact can be felt in every state in the Union, as each tries to interpret, and manipulate its meaning. But underneath this vocal campaign is a potentially more harmful impact on the existing American land use system. Sure, there have been abuses on the part of localities in exercising eminent domain, but the call for “reform” also threatens the inherently democratic nature of the system itself, and the control over one’s destiny that is the hallmark of the land use decision making process. Eminent domain can play a critical role in redeveloping underutilized urban areas. But more importantly, the bright focus on eminent domain, with it being such a small part of the overall land use mechanism, puts undue emphasis upon it. With this issue as the “face” of land use, it paints a picture that may lead to further erosion of local autonomy, a process already progressing across the nation.

Proponents of these eminent domain initiatives tend to expound on the need for autonomy of the property owner. Ironically, these plans bring further governmental oversight to the process, and take the decision making out of the hands of local actors. In fact, these initiatives hand the decision making largely to the courts, the same branch of government that handed down Kelo in the first place. The question I pose then is this, in the context of the larger land use process: who is best to look after our land use needs? Is it the local boards and legislative bodies? Is it property owners, as regulated by the courts? Or is it a more regional type approach, as is the trend towards which most of America is heading? Perhaps some combination of these choices is the best approach?

Next time, we’ll move beyond Kelo to discuss the question of regionalization, and how it impacts another “hot button” issue when it comes to land use: urban sprawl.

The Rage of Kelo

Ever since last year’s Supreme Court decision in Kelo v. City of New London, the American public has been talking about eminent domain, or the taking of private property by a government entity in exchange for “just compensation.” As a land use attorney, formerly practicing in New Jersey, I applauded the decision, but not for the proposition for which it stood. Although I agreed with the Court’s reasoning, which allows municipalities to take property for the “public purpose” of economic development, I cheered more so because the case brought land use law to the forefront of the national debate, crowding out talk of Brangelina and Iraq, at least for a few minutes. The outrage with which property rights proponents responded, and their sheer numbers, got me to thinking about the power and sometimes ridiculous results of land use decisions.

For the moment, I’ve taken a step away from practicing law. However, I still enjoy keeping watch over the wonderful world of land use law. The beauty of it is that decisions on where to locate what, and how big, is a highly democratic affair, even greater than voting or serving on a jury. For each site plan or subdivision application, anybody can stand up and voice their opinion by simply showing up to a land use board meeting. The decision makers are members of the community, who may or may not have some expertise on the subject. Of course there are lawyers and politicians to keep a watchful eye, but in the end, it is truly “the people” that decide what to allow within their burg. And yet, many people who enter the process without a formal introduction find it foreign, and, in the end, a highly unsatisfying experience.

With this blog, I set out to open up a forum to allow people to vent their frustrations with this system that determines our built-up environment. It shall strive for neutrality and communal support. For this introductory message, I ask for input from those out there who have been shortchanged by the process, just like Suzanne Kelo claims to have been. (In the end, the plaintiff in the Supreme Court case was able to keep her house). Have you ever seen an unwanted use go up near your house? Have you ever had to battle a neighbor over home improvements which required board approval? Have you ever had to fight the local government for a seemingly trivial request? For that matter, are there any of you on the municipal side who have something to gripe about regarding applicants? I invite your comments, from any and all perspectives. Ultimately, the objective is to demystify the process, and allow us all to understand the highly complex dynamics involved in a dispute. Land use is an inherently local affair, but behind the specifics of each locality’s process is the universal search for the “right decision.”

A recent Los Angeles Times op-ed piece, reflecting on the passing of the 300 million mark in American population, argued that there’s plenty of room to grow, so there’s no need to worry. Like most media produced in Southern California, the article is wholly out of touch with reality. Is there really somewhere left where someone wouldn’t notice a 200-home subdivision being built, not to mention have something to say about it? The land use process provides a forum to vent. I offer this forum as a place to vent when the process goes horribly wrong.