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Real Estate & Property Law

: Kelo and Beyond

It's All About Tolerance

By Greg Alvarez, Esq.


I know, I know. How can you expect to generate a following in the blogosphere when you post dangerously infrequently? Well, that certainly is a valid question. But it also got me on the subject of tolerance, and how much people are willing to take. A curious thing recently happened in a West Los Angeles neighborhood, not far from where I lived when I called LA home. The Museum of Tolerance, an institution devoted to educating visitors about the Holocaust, has received approval to expand its facilities to accommodate additional space for receptions and banquets. Not so much in the spirit that the museum seeks to expound, the neighbors are unwilling to tolerate the intrusion. This includes Frances Simon, a Holocaust survivor who lives in the area. "The traffic, noise and music would disrupt the neighborhood. . . . It's like dancing on the dead people's memory." This stark scene also brought to mind the very different sorts of "tolerance" that come into play in the land use realm. Sure, there's the tolerance of neighbors impacted by new projects. But there is also the tolerance of developers, who must decide how much they are willing to give up in order to obtain an approval. In the middle are the government actors who must make determinations, not only based on the law, but factoring in how much they are willing to tolerate in jibes, and potential litigation, that may come from unsuccessful parties.

In some cases, tolerance must extend to the idiosyncrasies of neighbors. Take for instance a recent case on the eastern end of Long Island, where a man has chosen to install a 6-foot tall smiling hot dog on his back yard lawn. The Town of East Hampton has undertaken various methods to force the resident to clean up his property, which includes other assorted "collectibles" on the parcel. The Town ultimately took him to court, resulting in a victory for the Town on a littering charge. In the end, the Town's tolerance gave out. And one man's love for crazy knick knacks suffered a setback. And how about in Coney Island, the former beach resort that faces major plans for a major facelift, where the city of New York, the major developer and a prominent civic association are at odds as to how the hallowed land should be transformed for the coming decades. The city wants to create an "amusement district," which will bring back the good ol' days. The developer wants something more practical, which incorporates hotels and retail into the equation. The civic group, the Municipal Art Society, wants a bigger scale amusement proposal to really attract the summer-going pleasure seeker. And the residents of the area just want to bring in services and economic development to keep the area viable. It's a battle of neighbor against neighbor, in a battle where it seems many of the players are missing the point of the game.

In these tough economic times, a different kind of tolerance has been required. For instance, Charles Wang, the former head of Computer Associates turned real estate developer, is still pushing ahead with his Lighthouse plan which will redevelop the area in and around the Nassau Coliseum, the current home of the New York Islanders. His method to keep the hope alive: the federal stimulus package, of course, which is being sought as a potential source for new infrastructure improvements proposed at the site. In Las Vegas, tolerance has lost out, as the lofty plans for celebrity-sponsored condo towers on the Strip have given way to cancelled plans and half-sold projects. Even gaming revenue is down. Sure, Steve Wynn, entered with the new Encore resort in December, but even he may have to tolerate some slow times. In South-Central Los Angeles, the answer has been to become a little more tolerant, and argue the cause for bringing in businesses that are still very active in the land use game, such as Wal-Mart. There, a local activist, Eddie Caire, started a petition campaign to bring the behemoth to the neighborhood, for the jobs and economic growth it could attract. And people are signing it. In Ontario, Canada, with more of a history with the government-backed approach, is injecting a half a billion dollars into transit improvements, so that "Ontario [is] a place where gridlock doesn't hold you back." Canadian mayors of some of the country's largest cities are also pushing for more transit aid, in order to fix the roads, and put people to work. As the mayor of Kitchener, Ontario explained, "The municipalities are likely the best ways to deliver some infrastructure and the jobs and the shovels in the ground." Of course, the money from the federal government will come with strings, requiring matching funds from municipalities, and time limits on using the money. In Atlanta, times are so tough that the White House is up for sale: or at least, a replica built by a home developer in the southern metropolis.

There are other issues of tolerance to contend with in the land use realm. Take the dreaded automobile. New York City has recently set forth its latest response to the infernal contraption by planning a portion of Broadway in midtown Manhattan to become a pedestrian mall, decked out with cafe tables and benches. Planned to begin in May, the effort may be extended from its initial test run. As a further cut in these tough times, the city of New York has ordered that nearly 700 city-owned cars be returned so they may be sold off and also save millions. This is in conjunction with the elimination of free parking spots for thousands of city workers in car-clogged New York. And in Los Angles, where the automobile still remains king, incidental effects are still fought in order to keep some sense of order to their built-up environment. Recently, the City adopted a ban on "supergraphics," or essentially billboard-scale drapes over buildings that also depict advertising messages. Tenants of these buildings have gotten into the battle, legally challenging landlords for their right to unobstructed view to light and the natural view beyond their windows. One dental hygienist claims it's harder to see in her office. "If I can't see properly, I could be causing people to be having undue contact with a chemical." The legal background to the supergraphics debate is a long-running court case challenging a 2002 city ordinance against new billboards. With so many drivers about town, advertisers see the large signs as a major source in getting their message out. But the recipients can only take so much.

The same is true of cell towers. Near and dear to my heart, wireless telecommunication facilities continue to sprout up as the demand for more and more amenities on mobile phones continues to increase. The Telecommunications Act of 1996 typically shifts the balance of power in the hands of the wireless providers. But municipalities and residents, when willing to fight, do have ammunition. When discussing one recent battle where the residents came out "victorious," i.e., the tower was not approved even though the gap in service remains, one expert on the residents' side concluded, "They didn't give up. . . . That's what happens when people in their community band together and put their seat belts on. They're tough." Simply put, their intolerance bred the fortitude to tolerate the fight.

And what about that symbol of international tolerance - the Olympics? Well, the recent and soon-to-be hosts of the worldwide spectacle may have something to say against it. In Beijing, the host of last summer's entry, the building boom that came to accommodate the games has left a huge cavernous wake in the midst of the world economic slowdown. By one estimate, 100 million square feet of office space, or a 14-year supply, lies vacant in the city. The majestic National Stadium used for the opening and closing ceremonies, as well as the track and field events, has one event scheduled this year. The venue built for baseball will be demolished to make way for a shopping mall. Forty-three billion dollars and 1.5 million displaced residents later, China is left to pick up the pieces. Sure, the vacancies are piling up in the U.S., as well, but at least most of the empty space at one time had been full. In Vancouver, the host of the upcoming 2010 Winter Games, the City of Vancouver is suffering from the pressures of putting on a good show. The City's debt rating has been downgraded, and the cost overruns have extended over the $125 million mark. The cause was Vancouver's decision to take the reins of the financing for the Olympic Village for the incoming athletes, to ensure a timely completion for the host's Olympic overlords.

It is not just the Olympics that have caused such upheaval for the hosts of large-scale sporting events. For New Delhi, which is hosting the 2010 Commonwealth Games, similar large-scale projects are planned. In order for the space to be available for the new athletic venues, and to provide a "cleaner" image for those newcomers who will see the metropolis for the first time, the government has demolished and cleared out existing slum areas around the city. Although the city plans to build new residential units for some of these slum dwellers, the need is more than the planned supply. Inevitably, those left out will have to tolerate even worse conditions to survive in the city. On the other end of the ledger, in Los Angeles, plans are underway to end the tolerance of slipshod housing conditions, by initiating new plans for providing affordable housing to its needy residents. Included amongst the plan are "housing incentive zones," which will provide relaxed zoning standards and expedited permitting if affordable units are included in new housing plans.

Talking about affordable housing, what about those who have no chance of buying anything in pricey New York City, even in the reduced-rate climate of today? Count myself in that category. But a novel fund-raising plan at the Queens Museum of Art allows cash-strapped and real estate-poor New Yorkers to purchase their own little piece of heaven - a "home" on the 9,335 square-foot model of the city that the museum houses as a remnant from the 1964 World's Fair. Since updated to include new structures, like the newly-opened Citi Field, a model house can be had, at tolerable prices. For $250, a donor can buy a single family home. New Yorkers already tolerate pretty cramped quarters to begin with, but this may be pushing it too far.

What about inventive ways to make it through the intolerable economic downturn? Take Pittsburgh, Pennsylvania, where construction and economic growth continues, thanks to plans that began back in the early 1980's to overcome the cataclysmic shift away from the steel industry. The growth of education and health care in the region has fostered an economy that has withstood the deepest effects of the current recession. A new casino and a new hockey arena anchor the blossoming investment in the former rust belt town. But even Pittsburgh is beginning to feel the pain. The question is, can it withstand another downturn? There's no choice but to fight.

But putting aside the economic woes, if it's possible, there are still good ol' conventional land use issues out there that resolve around people's ability to tolerate (or not tolerate) everyone else. For instance, in St. John's, Newfoundland, Canada, the city council recently imposed a moratorium on new drive-throughs within their municipality. Queuing lines out onto roadways have caused increasing concerns, especially at those establishments that serve people's morning coffee. As a local blogger noted, in blaming the council for approving the drive-throughs in the first place, that, "We have a legitimate problem, an inconvenience at best - a danger at worst." St. John's is not willing to take it anymore. On a larger scale, the issue of coal ash is becoming more than a simple nuisance, in light of a recent spill of toxic sludge in Eastern Tennessee. Despite periodic efforts to control these byproducts of coal production, there are over 1,300 dumps around the United States that house these materials, which contain potentially harmful heavy metals. Will the Environmental Protection Agency under the new leadership seek to do more? Only time, and tolerance, will tell.

In Los Angeles, the newly re-elected mayor, Anthony Villaraigosa, is getting antsy with the protracted timetable for his "Subway to the Sea," the grand plan to provide viable public transport for denizens of that city's heavily-populated west side. As of right now, the plan would have the transit line making it to the Westwood neighborhood by 2032, and no definite plan to continue to the sea several miles further to the west in Santa Monica. This line is being planned in conjunction with several other light-rail lines to be added to the existing fledgling network around the metropolis. But will the mayor be able to wait the time it will take to get everything done? In New Orleans, there is no time like the present to keep rebuilding the city ravaged by Hurricane Katrina in 2005. The city has $19 billion in federal money burning a hole in its pockets, allowing it to continue to lift itself from the depths. Even tourism is holding its own, with a bustling Mardi Gras celebration having taken place this year. For those who put up with the worst of times, there may be a light at the end of the tunnel.

How about tolerance for gay rights? Not exactly a topic that always comes to the fore in the land use context, but in California, a recent court decision jumped into the fray in the property context. The court ruled that where a local congregation of the Anglican Church decided to break away from the national organization because the national church had consecrated a gay man, the national church may take back the local church property. Part of a larger national issue in which hundreds of congregations are seeking to break from the national organization, the ruling may stem this tide, and force a little more tolerance on these rogue congregations.

Back in LA, where it seems the level of tolerance is dangerously low, there is another reason to be disgruntled where new parking regulations will extend the hours when you have to feed the meter, particularly in neighborhoods with nighttime entertainment options. In Chicago, people are mad as hell about McMansions, and have come up with a way to fight the technique in established communities of tearing down smaller homes and replacing them with behemoths. North Shore suburbs such as Evanston and Winnetka have instituted so-called "demolition taxes" against this practice, in order for towns to recoup losses caused by damage to parkway trees and roads. Some towns are using the fees for affordable-housing plans. Others also see it as another revenue stream in the downturn.

And what about Donald Trump? Who can stand him? He's raised the ire of some with his plan to build a catering hall on the south shore of Long Island. He won the first round in state court, but won't start constructing until he learns the fate of his $500 million damage claim for all of the delays caused by the State of New York. Sure, he could build now, he says. "The credit markets are terrible, but I could finance it many times over with my personal account." Nonetheless, he's decided to tolerate the wait required to watch the machinery of justice go to work. On the other side of the country, in Cabazon, California, the most hated man is Calvin Louie, the head of the Cabazon Water District, which serves the brave 2,300 who live in the unincorporated area outside Palm Springs. The battle for water is so contentious, and Louie operates such a tight ship, that some customers have expressed their displeasure in unique ways. One unknown subject dropped a slithering rattlesnake through the mail slot of the tiny office. "It was a pretty good size, too, slithered right under the desk." It's a level of hatred perhaps approaching the depth, if not the breath, of the hatred for Mr. Trump.

And in the forests of the great north, the question of tolerance is how the long the rest of us will be able to shoulder the practices contributing to global warming, which are causing the great Canadian forests to the north to dramatically shift from carbon suckers to carbon generators. In Oregon, the Interior Department recently opened up 2.6 million acres of federal forests to increased logging, which has caused the battle to rage again over how much is enough to cut. Like all of the above matters, the question comes down to what's most important, and what values can be preserved in times of crisis.

But not everyone is suffering these days. In Battle Mountain, Nevada, the area is awash in money as they benefit from the skyrocketing value of gold. Mining the valuable mineral in the surrounding area, the desolate area has enjoyed a boom in these sad times. The question will be for the residents, when good times do return for the rest of the economy, whether this run was worth the harder times that would return when the value of gold inevitably falls again. But for the immediate, the real question for the denizens of Battle Mountain is if they can stand driving 75 miles for decent Chinese food.

Full post as published by Kelo and Beyond on April 07, 2009 (boomark / email).

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