The Power of the Rich and Famous

Private property rights are big news in the courts these days.   Many will know of the landmark Supreme Court 2005 decision in Kelo v. New London. It started a backlash of legislative action across the country to stop the perceived excesses of government seizure of property.

But, it didn’t ‘t stop there. Continued legal judgments are re-writing the relationship between government and property owner. The Supreme Court is now hearing arguments in Stop the Beach Renourishment Inc. v. Florida Department of Environmental Protection, the New York Appeals Court has ruled in Goldstein v. New York State Urban Development Corporation, and in In re Parminder Kaur v. New York State Urban Development Corp. (The federal courts in these sorts of cases have shown much deference to the determinations of state courts.)

Each of these cases raises the issue of who gets to decide what happens to a piece of private property. Is it the landowner? Or the government who needs the property for some greater public use (typically for the construction of highways, power lines, and other public utilities)? Or, is it the rich and famous who can utilize government to achieve their private profit?

The Supreme Court case concerns the ability of the state to protect natural resources and promote public recreation. (Sound familiar, as in the Mitchell Slough case recently settled by the Montana Supreme Court? Yep.) In Florida, the state government restores and protects beaches from erosion by dumping lots of sand in the water. This creates new beach and the question before the SCOTUS is who owns that sand.

The first NY case concerns the $4.9 billion Atlantic Yards Arena & Redevelopment Project and whether the city can seize private property for the development of a new stadium for the Nets basketball team. The question was whether the use of eminent domain by the city was correctly for public benefit. Like Kelo v. New London, appellates argued that economic development in blighted areas was beneficial to the public since it cleans up unsanitary and unsafe urban conditions as well as maximizing economic use of the land. But, who determines what is in the public’s best interest?

The second NY case concerns Columbia University’s wish to build a new $6.3 billion campus and have New York city seize privately-owned portions of the 17-acre swath of Manhattan’s upper west side. (Former-Missoulian Daniel Nairn has a brief discussion of this case at the excellent Discovering Urbanism blog).Here, the court ruled that the development was not a public use because Columbia is a private institution. Further, the “blighted” designation of the properties was made by a consultant for Columbia, further muddying the case that it was for public benefit.

While I think the Florida case is somewhat obvious (just because the state dumped some sand in the water doesn’t create more public land), the others each demonstrate the dangers of public-private partnerships. When you mix in private profit (typically through real-estate development) with improvement of the public condition, it is not clear for whom the government is most acting. While the taking of private property is allowed under the Fifth Amendment to the United States Constitution, it cannot be done without just compensation and must be done with a clear sense of it being done for public use.

It becomes very hard to argue with a business project that also includes some sort of educational, cultural, recreational, community, municipal, public service or other civic facility. Certainly, the small homeowner in the ‘blighted’ area is going to have a hard time incorporating this. But, if you call in your buddies on the Economic Development Corporation, those folks in the Downtown Association, and the friends in the Chamber of Commerce, then many a city council or commission is going to see things your way. As was seen in the case in NY, when you deal with $5 or 6 billion project, involving the Mayor, affordable housing advocates, and a pro-sports team (as is the case in New York), strong indeed is the political pressure on government decision making.

Think this couldn’t happen in Montana? Title 7, Chapter 15, Part 42 and 43 of the Montana Codes Annotated (M.C.A.) authorizes municipalities to “acquire by condemnation, as provided in Title 70, chapter 30, any interest in real property that it considers necessary for urban renewal“. The municipality has to make a finding that a blighted area exists that is “conducive to ill health, transmission of disease, infant mortality, juvenile delinquency, and crime, that substantially impairs or arrests the sound growth of the city or its environs, that retards the provision of housing accommodations, or that constitutes an economic or social liability or is detrimental or constitutes a menace to the public health, safety, welfare, and morals in its present condition and use“.

Well, such a declaration was, for example, made for the River Road neighborhood in Missoula. Guess who made that determination? The Missoula Redevelopment Agency. And, guess who’s on the board of MRA? Hal Fraser of First Security Bank; Dan Kemmis of the University of Montana; Nancy Moe, attorney; Rosalie Cates of Montana Community Development Corporation; and Karl Englund, attorney. Sounds like a bunch of Good Ol’ Boys & Girls to me.

And, yes, they’ve handed out public funds to benefit private development. I wonder if they’re friends with the Rich and Famous?

Can conservatives love public transportation?

Political conservative, transit advocate, William Lind argues that public transportation enhances national security, promotes economic development, helps maintain conservatives values, builds community, and gets people to jobs.

Click here:

(An excellent 4 minute video, that I wish I could embed.   It is based on Lind’s book, shown below.)


Walk, walk, don’t tell me.

They do remember how to walk, don’t they? Because the New York Times recently reported

In 1969, 40 percent of students in the United States walked to school; in 2001, the most recent year data was collected, 13 percent did, according to the federal government’s National Household Travel Survey.

Seems that all the parents are busy lining up to drop off, or pick up, their precious little ones. Door – to – door service is parental responsibilities these days.

While there may be some benefit in having the family members share some time together, I feel that all this chauffeuring comes at a great cost to the kids. As the Wall Street Journal blog puts it, not only are they missing out on a little exercise but they are also missing out on a whole lot of independence. Each day, as they venture out under their own steam, the little ones get a bit more confident and a bit more comfortable in their world. They explore and adventure in places that they would notherwise avoid. They interact with neighbors, folks across the street, and strangers down the road. They grow into their community, with the community closely watching, of course!

Instead, today the pattern is a gated world where careful vetting is conducted before anyone is allowed into the fiercely guarded private domain. Shut the world out, lock up your daughters, and pretend everything is all right!

Sadly, while I don’t think our streets are any safer than they were decades ago our level of fear is much elevated. We’re even afraid of not knowing what it is like out there. Threat level yellow, or threat level red – there isn’t much we can do about it. So, we take charge of the little things that we can control and pretend that makes things better.

The irony is that by sheltering our precious little ones, we let ourselves off the hook for the real world out there. Just drive on by, lock the car door, and pretend you don’t have to care. Those aren’t your people, not your responsibility. Besides, they’re walking!

ADUs and Density in Missoula

In a very telling opinion in today’s Missoulian, former city council member John Torma explains what all the fuss is about with ADUs (Accessory Dwelling Units). Quite correctly, he boils it down to density:

Modest increases in … I’m going to use the “D” word now … density in our urban core neighborhoods will reap significant benefits in the area of transportation, i.e. miles not traveled, air not fouled, and vehicles not needed. As a historical housing type in our urban core neighborhoods, ADUs can bring a modest increase in density without significantly changing the character of our neighborhoods.

I am not a fan of ADUs. But, I do agree with greater density in inner neighborhoods. What ADUs do is force us to get density right. All the things people dislike about ADUs must be solved before we will support greater density.

My biggest gripe with ADUs (please don’t call them granny flats – she’ll die and we’ll be stuck with the consequences) is that they don’t meet the underlying zoning requirements. Often they are built right up to the rear alley. ADUs get built over the top of existing (and non-conforming) garages. They shade out the neighbors, block clear air circulation and choke out the view.

ADUs create more vehicles without the necessity of having to provide on-site parking. That means we’ll all soon be fighting for a parking spot outside our home. Your typical inner neighborhood home only has on-street parking for one or two vehicles. But, if you put your children, your parents, or a bunch of rent-paying college students into the ADU then you should have to provide the extra parking on your property. I know those paved lots are going to mess up your native grassland, but that just should be part of the deal.

ADUs should be required to be accessed from the front of the property. Our alleys weren’t designed to be streets, particularly since emergency vehicles don’t have a hope in heck in navigating most of them. Heaven help the fire-fighters trying to rescue your cat from a burning ADU. Moreover, alleys don’t have sidewalks and are quite unsafe for walking and playing. There aren’t enough lights, there’s no plowing, and folks don’t shovel the snow back there. More cars in alleys will mean more ice slicks in winter, more dust in summer, more vehicle exhaust, more accidents, and more vibration felt in neighboring homes. That’s not healthy.

But, these aren’t problems with ADUs alone. They are problems with greater density in general. If the City Council is going to approve these zoning changes in our neighborhoods then they should provide answers as to how they are going to protect everyone’s health and safety. And not just the elderly or other folks who are supposed to be benefiting from ADUs.

Where’s the vision, man?

Like many property owners in Missoula, I just received my first notification of city zoning changes. Only problem is that I don’t know what it means. I don’t see some grand vision for the future of Missoula and I don’t see much evidence of responding to citizen concerns.

Instead we are being told it is a zoning ordinance update, that the consultants were hired to tidy up the regulations, make them more consistent, more current and user-friendly. Problem is that in the process they are changing some of the fundamentals of residential zones, like set-backs, height restrictions, minimum lot sizes, and density calculations. They are also eliminating public hearings for ‘minor modifications to selected zoning ordinance standards and minimum lot area rquirements.”

Pardon me, but those are fundamental and major changes. To add insult to injury, the letter I received doesn’t tell me how the zoning for my property is changing. Instead, I have to go to a privately controlled website (, to Denny’s copy shop (where I must give 24 hours notice to purchase a copy), stop by the public library or I can take time off work to trudge on down to OPG during office hours.

What irks me more, though, is the lack of any captivating reason why I should care. Beyond my own selfish concerns about I might be losing in terms of the value of my property and how it might be affected by what my neighbors are now allowed to do on their property. There is no mention of how this is going to improve our city, of how things will be better for all of us, of how we might want to agree to give up our own personal gain for the sake of some greater good.

So, I don’t think the good planners at OPG should be surprised when things get acrimonious. I can’t forsee how the City Council public hearing (7.00pm April 27th) is going to go well. Instead, I see individuals getting up and complaining about their pet peeve. Nit, nit, nit. It could well go late into the night, or else Mayor Engen might have to cut people off mid-rant. Heck, if Lee Clemensen or Jane Rectenwald or Professor Frey or Celeste Rivers get going, it should be a good show. Better set your TiVo to record the MCAT showing!

Compare this with the forward thinking that Richard Florida is arguing will determine the economic winners and losers in the city and region stakes of the future. Check out the most recent issue of The Atlantic. Now, you may or may not agree with Florida’s argument but at least he has a well reasoned vision of what prosperous communities will look like:

We need to encourage growth in the regions and cities that are best positioned to compete in the coming decades: the great mega-regions that already power the economy, and the smaller, talent-attracting innovation centers inside them—places like Silicon Valley, Boulder, Austin, and the North Carolina Research Triangle.

If it can work for other towns that are centers of higher education and health care (like those highlighted above) which have an attractive and tolerant quality of life, then why shouldn’t we be discussing these sorts of big ideas here in Missoula?