Friday, February 17, 2006

Trib Says We're "Caving In" to Developers

Interesting editorial in the Trib yesterday morning about the successor bills to SB170 -- SB267 and SB268 (I haven't been able to get to this until this morning -- between being at the legislature, meetings, real work, snowstorm, and my wife taking me to see "Julius Cesear" at PMT last night, just not a lot of time left to blog!)

They don't seem to have a lot of hearburn with SB267, but they think local governments are caving in to the developers on SB268, the changes to the provisions for the state private property ombudsman.

"Or he could serve as an ombuds-hit-man whom the developers could call on whenever a mayor or city planning director wasn't showing propert respect. Thus our suspicion that the local government associations, which should be providing that legal advice themselves, caved rather than watch SB170 resurrected.
"The worst part of SB268 is its provision turning lawsuits opposing the ombudsman's 'non-binding' opinions into insurmountable loser-pays affairs."

There's no question that many planners and local government officials would rather not have to deal with some of the changes proposed for the ombudsman take place like this during the heat of the legislative session. It would be better to study, talk through, and work out what the role would be and how it would work. It will also take some time to build support among local government types for some of what is proposed here.

But Sen. Mansell is a rather powerful legislator, and the political reality is that something is going to pass on this, whether we play along or not. We could take the stance that, like SB170, its terrible and shouldn't be done. Truth is, however, when you read what is proposed in SB268 vs. SB170, it seems much more reasonable and is infinitely more difficult to make the case that this is such a draconian hit on local authority like SB170 was.

For example, getting a non-binding advisory opinion from the ombudsman about whether a city or county is following state law and case law in their approval process doesn't sound so bad to most outsiders. What's wrong with that? And the legal fees requirement, if it goes all the way to court, actually is a sword that cuts both ways -- if the developer doesn't like the ombudsman's opinion that the city is doing things right, and pushes it to court anyway, and loses, the developer could wind up paying for the city's legal costs - something that doesn't happen now.

So it is much harder to make the case that SB268 is such a bad thing. Better to work it and get it to where it is palatable to local government. My own personal opinion is this -- third parties (neighbors, other affected landowners) are also able to throw the process to the ombudsman (or a mediator) for an opinion. After a few of these, I think developers are not going to like this process so much anymore, and it will be changed in a future legislative session, maybe done away with. I think this thing is full of unintended consequences, for the developer as much as anyone.

This may all sound a lot like accomodation, and it is in large measure. There is no question that there are a few cities and counties out there that are not playing by the rules properly, and that has helped bring this down on our heads. In a way, we have to blame ourselves for some of this as well as pointing to the developers trying to get an edge. But that's reality -- we have to live with it.

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