David's Law Blog

Friday, January 19, 2007

Unfettered Discretion in BoBo Land

My office is right across from our City Hall. Last night, a client and his architect came in, disconsolate and angry. My client's deck leaks, and I'm suing the general contractor and a passel of other people. In the course of repairing it, my client wants to expand the area of the deck a bit. The expansion is consistent with the zoning.

Not so fast. In our town, you can't move a stick without going through a prolonged and expensive hearing process, called "Design Review." You have to notify your neighbors, put up stakes to show what's going where, and appear before five busybodies (the Design Review Board) to get permission.

My client's desolation and rage came about because the DRB denied his application, not because the deck would interfere with his neighbor's privacy, but because the DRB doesn't like "incrementalism," also known as "salami tactics"--a slice now, a slice tomorrow, and pretty soon I've got the whole salami. Now he can appeal to the City Council, and if they deny the project, sue. In the alternative, he can give up, or spend more money and try again.

All of this is done in the name of conservation and preserving the "village character" of our BoBo town.

In fact, what is being conserved is the high price of property; it's drawbridge politics. Aside from the property rights question as to whether these things should be regulated at all, other than by the law of nuisance, the vice of the process is that in spite of all pretensions, it's essentially standardless. If a neighbor complains, the powers-that-be don't like you, or one of the board members gets a wild hair, you're cooked.

The courts are reluctant to take on these issues. One could say this stance is due to respect for the democratic process, except that the courts don't respect the process when leftist doctrine, developed in the law schools, says that new rights are at stake. Perhaps it's mostly fear that there is so much arbitrariness in local government that if they interfered with this kind of abuse except in the most extreme cases (here's one involving private arbitration, and even there, the remedy was limited), they'd be swamped.

There has been so much frustration that the City Council appointed another committee (of course!) to review the process. Their solution: up the fees and appoint more staff. My solution: abolish the DRB and let property owners build what they want, so long as it complies with the written zoning rules. Clear guidelines and predictability. What a concept!

Until that millenial dispensation arrives, it will continue to suck.

UPDATE: Corrected link to "Drawbridge Politics."

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