Make Land-Use Decisions Fair and Transparent
by Jerry Van Sickle, February 15, 2006
Van Sickle sent the following letter to members of the state House Committee on Local Government. He has previously written about matters of zoning and property rights.
Senate Bill 06-074 strengthens the enforcement of a highly political and discretionary land use system that favors some landowners while harming others. Land Use regulations and procedures lure people into using the democratic process and public officials to impose on their fellow citizens. We are rapidly losing our welcoming American spirit and our values of tolerance and diversity, live and let live. We've come a long way from Mayberry and Sheriff Andy.
The words and tone of this proposed legislation are reason enough to worry. Requests for more enforcement powers show that current rules are not widely accepted. Mutually scornful relationships now exist between public officials and many of their fellow citizens suggesting something has gone wrong in our democracy. Yet this proposed legislation will allow these flaws and antagonisms to increase, adding to existing incentives for favoritism and then corruption. We see related dangers in police behavior, and the frightening psychology between guards and prisoners exposed again in our war on terrorism and Iraq.
If you have any doubts about these warnings, I can supply many examples of unreasonable, unfair, and tragic land use enforcement before and during your hearings. I would like to work with any of you to reword this legislation and invite other victims to speak to your committee if needed. I have put my basic thoughts into writing here so you'll have time to weigh them. I'll be happy to answer any questions.
Whatever else you decide in regard to this legislation, you can also provide safeguards against potential injustices by facilitating appeals -- not, as often happens now, to staff, Planning Commissions, and County Commissioners who created these codes and procedures. Nor can anyone depend on higher courts: they are far too slow and expensive, so that form of appeal is meaningless for most people.
Separate Zoning and Building Boards, however, can provide inexpensive and meaningful appeals with your help. This legislation can authorize these boards to hear any appeals, not only selected issues allowed by codes, commissioners, and staff. These board members must understand their duties are not to protect the codes or staff, but to look carefully at the reasoning and the rights of those who appeal.
These voluntary citizen Boards will then provide the first rung of the judicial ladder that is virtually missing at the local level of our democratic government. Our faith in the election process leads us to believe that our local representatives and their appointees will be fair and unbiased in the treatment of the laws they pass and enforce and the decisions of staff who they work with day after day. So the third judicial branch of government is desperately needed at the local level to balance and check the combined legislative and executive powers of County Commissioners. America's founders were in local governments about the size of ours, and understood the vital need to limit their own power to make and enforce rules.
In order to remedy this local exception, this legislation can stress the need to record and file the reasons submitted during appeals, and the reasoning of each board member. These must then be easy to find so those accused of land use violations, or building applicants, and their neighbors, can accept past rulings or seek further improvements. This information will restore crucial elements of democracy and the rule-of-law that are missing at the local level: equal protection, equal rights, and equal justice.
These precious aspects of a free society are undermined by the enormous discretion available in the land use codes themselves, coupled with case-by-case decisions which can easily ignore and hide favoritism, gross injustices, and then outright corruption. In remedying these flaws voluntary citizen boards will restore a basic goal of land use regulation: defining and protecting the rights of those who build and those who are tangibly affected. We've almost forgotten this basic job of protecting existing neighbors from harm and new uses from unfair limitations. It isn't always easy to separate these rights -- and wrongs. But this doesn't mean that land use rights don't exist, and all we can do is impose the ever-changing wishes of elected and hired officials. Their wish-lists do not create criminal activities, so those accused have the right to show that they will not create harm but will be the victims of untested laws.
Our land use procedures can be changed to initiate what could have started decades ago: the gradual discovery of principles and criteria that most of us accept as just -- with more and more examples of adequate buffers between neighbors, or other forms of acceptable compensation. Less regulation, less staff, and less public funding will be needed, with fewer angry hearings and disappointed or disgusted citizens. Less enforcement will be needed as regulations and decisions are seen as reasonable and just.
In regard to building codes: experts have shown they are unduly influenced by building officials, building trades and suppliers. Yet valid requirements will be repaid by insurance savings, so this incentive alone will protect building owners from legal liability for their own sake and for every occupant. Any need for stronger enforcement can be replaced by this mutually beneficial information.
Building codes actually invite the submission of alternative methods and materials to staff and local boards. So another serious and related flaw exists in building and land use procedures: most appeals in both areas are considered on "their own merits" and treated as variances or exceptions. So applicants and their neighbors are reduced to pleading for relief or advantages for themselves alone. They are denied the dignity and self-respect of seeking a change in the interpretation of codes, or in the rules themselves, on behalf of everyone else in their shoes! The ability of everyone in a democracy to stand tall has somehow returned to the demeaning relationships of feudal times and of people who are not yet free.
It is disappointing if not frightening to see commissioners or staff or board members who accept such relationships, sitting as virtual overlords, settling petty quarrels between neighbors, or showing thumbs up or down to individual supplicants. This legislation can encourage every person involved in an appeal to treat each other as equal participants in the search for mutually beneficial solutions, criteria, and principles to define reasonable building requirements and protections among neighboring landowners.
Such a small but profound change will revive genuine community. Cooperation and imagination will find ways for those who benefit to provide protections, such as buffers of dense landscaping or open space, to benefit themselves, everyone nearby, and the community at large.
In any case, higher courts should remain able to discipline outrageous or insidious regulations, interpretations, procedures, and enforcement -- the opposite of a provision that may still be hidden in the current draft of Senate Bill 06-074. You may not be surprised that this bill was initiated by a Boulder County Senator, whose commissioners have been severely reprimanded by the courts and required to pay the attorney fees of victims. With Boulder as any example, punitive damages on top of attorney fees may be the only way to restrain abusive regulations and enforcement!
Please use this legislation to pave the way for Colorado citizens to become good neighbors again, encouraged to seek justice for everyone in the same boat instead of relief or advantages for themselves alone, no longer helpless or intimidated when unreasonable decisions or fundamental rights are at stake.
I would like to help.