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Real Estate & Property Law

: Kelo and Beyond

I'm In Control Here

By Greg Alvarez, Esq.


Back in 1981, when President Reagan was getting patched up after John Hinckley's assassination attempt, Secretary of State Alexander Haig stepped to the presidential podium, and declared to the world, "I'm in control here," despite the fact there were a few other people in front of him for the head honcho seat. Unlike the matter of presidential succession, the world of land use doesn't always have a directive such as the U.S. Constitution to guide the process. Varying actors assume control of the proceedings at any given time. In this week where talk of democracy gets sprinkled in amongst the fireworks and cookouts, it seems fitting to ask who really is at the wheel of the land use world.

Recent fights across the globe indicate that in many cases, the answer depends on who wins the battle. For instance, in the southwest province of Murcia, Spain, water is becoming scarce. Sure, climate change is causing the slow desertification of the landscape. However, disastrous policies of encouraging water-thirsty resort communities with swimming pools and golf courses, along with farming practices which have shifted to more water-intensive crops in the region, have contributed to the problem. As a result, developers and residents are pitted against the farmers, in a battle over an increasingly disappearing resource. In the middle are the water managers, like one in Fortuna who laments, "I come under a lot of pressure to release water, from farmers and also from developers. They can complain as much as they want, but if there's no more water, there's no more water." Time will tell who controls the H2O in southern Spain.

Other battles over control have popped up in places like Chicago, where an unwritten "aldermanic prerogative" rule has been challenged in the case of a proposed children's museum. Typically, the local city council member, or alderman, must rubber stamp a development proposal in his or her ward for the project to move forward to the Council's Zoning Committee. In the museum's case, Mayor Richard Daley overrode the local alderman's objection, and pushed the project through. Predictably, the courts will ultimately decide who's in control. Another challenge to recognized authority recently flared up on the east end of Long Island, where State Senator Kenneth P. LaValle tried to wrestle development approval authority over a 3,000 acre plot formerly occupied by the defense contractor Grumman from the Town of Riverhead. The Town for now retains control over state environmental review powers, which otherwise would have ceded to the regional Pine Barrens Commission under LaValle's plan. No doubt this fight will continue. And in Juneau, Alaska, plans are being finalized to build the first road that would allow the rest of North America to access the state capital by land. Environmentalists and many city residents oppose the plan, and are also using the courts to be the ultimate arbiter of whether Juneau becomes open to us outsiders.

When things do get decided, who ultimately has the control sometimes ends up in the hands of unseen forces, like the all-powerful market. For instance, the spike in fuel costs has prompted an upswing in people traveling by public transportation. People are questioning life out on the urban fringes in an effort to save costs, with some news accounts asking whether we are observing the "unfolding demise of suburbia," and other accounts claiming that those left on the edges may be caught in a "nightmare." Foreclosures have devastated whole towns, including such California central valley burgs as Merced, where one real estate agent explains, "We're experiencing a tsunami of bank-owned properties." In Chicago, the Spire, the tallest residential structure in the world, is moving forward with market support. According to a recent report, and in response to naysayers, the developer of the 2,000 foot tall structure, scheduled to be completed in 2012, has said that it has already sold 30% of its proposed units in four months time. In Los Angeles, aided by the adoption of a city ordinance permitting them, small lot projects, where multiple tiny, single family homes are built on single lots, with easement agreements taking care of the common areas, are proliferating. With a little bit of a push, the market appears to have taken care of the rest. In the neighboring city of Inglewood, developers are deciding to breath life into the municipality's moribund downtown with new retail and mixed-use projects being proposed. As one of the developers says, "It's not something that's done overnight, but we certainly feel we are a catalyst." And let's not forget the value of the vote, a most democratic affair, where California voters approved an anti-Kelo hammer against eminent domain of owner-occupied residences for private projects. Let the people rule, these examples suggest.

But then again, the iron fist from above often asserts its power. Take for instance the case of the Golden State of California, where its water shortage has prompted a firm response from water authorities and other governmental entities who are beginning to deny development applications because the state's water capacity simply cannot support the new proposals. These authorities are invoking a state law that requires a 20-year supply of water to be present for the development to take place. As one developer has noted, "I think this is a warning for everyone." Not even movie stars are immune from the iron fist of government. Robert DeNiro, actor and real estate developer, faced criticism recently for a top-floor penthouse he tried to tack on to a new hotel in an historic district. The New York City Landmarks Commission will rule on the matter shortly. DeNiro only offered, "You know, it's a process."

Although, governmental power sometimes breeds malcontent amongst the populace. On the other side of the globe, in Dakar, Senegal, questions have been raised where massive development is taking place in the city's core with the aid of investors from Dubai. Amidst the seeming riches, the lower classes have been shut out of the benefits, even though the government has allocated significant resources to these ventures. The government, led by President Abdoulaye Wade, has brought the appearance of prosperity to the metropolis, but not necessarily the reality. Although he guided the construction boom with the hand of government behind him, it may ultimately be used against him as he seeks to groom his son to fill his seat. As one disgruntled street merchant notes, "We can't eat roads. We can't afford to sleep in five-star hotels. So for whom is all this? Not for the ordinary Senegalese man."

In another wrinkle to the "iron fist", governments often come into conflict with each other, particularly when there's a chance to point blame away from themselves. For instance, U.S. Mayors recently appeared before Congress to beg for help to upgrade strained infrastructure systems, from roads to water systems. That day the Senate committee offered a bill that would create a National Infrastructure Bank to allow for the issuance of $60 billion in bonds. Even the national government may not be able to handle the $1.6 trillion task ahead of the country to achieve a "properly functional level" for its transportation and other critical lifelines. But the problem has fallen on the national government from the localities below. In this case, no one really wants to take the reins of control.

I suppose the reason that this issue came to the forefront for me was that I recently served on a jury. Although I was just an alternate, I sat through the whole trial. During it, the judge continually reminded us that we were the ultimate arbiters of fact in the case, which is true. As I mention in my explanation for this forum, the land use process is in many ways the most democratic of activities, as everyone can participate. In that blurb, I reference one's participation on a jury. After my experiences in sitting in that box judging a fellow citizen's actions, nothing has changed my thoughts on land use. The sheer messiness of the process, just like a trial, makes everyone's opinion count. However, where the two worlds differ is that in the case of a courtroom, everyone's looking to the jury for an answer. In a room holding a land use discussion, sometimes it's not clear who in fact is in control.

Full post as published by Kelo and Beyond on July 03, 2008 (boomark / email).

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