Wednesday, May 09, 2007

But no one ever seems to be digging...

I know at least one person who's expressed "Tower fatigue," but in the absence of other blog-worthy material, I'll draw once more from this dependable well.

In light of the pending proposals to limit height limits in Town Center, which would retroactively apply to the already-approved Tower project, the Sun today describes the ongoing legal debate about such legislation.

The presumption against retroactive laws, Ohio Supreme Court Justice Paul E. Pfeifer observed, "embodies a legal doctrine centuries older than our Republic."

Even children, he wrote in 2002, "understand this concept - they know, as we all instinctively did, that it isn't fair to change the rules in the middle of a game."

That doctrine, though, is being challenged in Howard County by proposals aimed at the plan for a multimillion-dollar residential and retail tower in Columbia.

The proposals have created a debate on numerous levels, ranging from claims that they are so egregious they would render the county's rules and regulations unpredictable to damaging its business climate to diminishing economic growth to crippling efforts to provide housing to low- and moderate-income families.

One question, though, supersedes all: Would the revisions, if enacted and imposed retroactively, be legal?

What follows is a chorus of yes's and no's from various players involved in this debate. Having not attended law school -- Maryland, Georgetown or otherwise -- I can't speak to the legality of such legislation, though I can say that it strikes me as patently unfair.

But I've said as much before. What I find interesting (and why I'm bringing it up now) is how the second paragraph quoted above complements this, from Cindy V:
1) If the best argument the developers can make “for” the size of the tower is “but you already said we could!” (picture a 12 year old who managed to get you to agree to something which you immediately regretted but are hesitant to renege on because you value your credibility) - which seems to me to be the only valid argument — then the answer needs to be “no”. However, it is important to behave like adults and negotiate a compromise that acknowledges the original error and “gives” a little something extra for the “inconvenience”.
I don't think anyone is using that argument "for" the Tower. They are, however, using it rightly to oppose the legislation.

The arguments for (and for that matter, against) the Tower specifically and tall buildings generally encompass a range of issues -- aesthetics, infrastructure, economics, etc.

The retroactive height limits and the debate surrounding them, however, center on essentially one issue: fairness, one of the most basic and intuitively understood principles of our society.


Anonymous said...

Yeah, but a lot of people ARE using just that argument for the Tower. Look at the Flier cartoon from a couple of months back that showed Sigaty leading WCI off a cliff as she supposedly required them to jump through more and more hoops. Look at the business people who keep saying that WCI got all their approvals and so they should be able to build.

Anonymous said...

Since when did it become wrong to right past wrongs?

I wonder what that judge would say about the retroactivity of requiring slave owners to give 20 acres and a mule to each slave at Emancipation? After all, they were legal slave owners up to that point, right?

He's missing the concept that our laws are based on moral right and wrongs (as they should be), which predate his referenced legal doctrine's presumption against retroactive laws.

"it isn't fair to change the rules in the middle of a game"

In the context of solely a game, the Ohio jurist's note is generally right. But it's not just a game. And even in a game, when there is egregious harm that may occur to any of its participants, it is definitely the right thing to do to make corrections to the game to protect all participants.

At the County level, many people believe the Planning Board's actions were questionable.

At the CA level, many people are also disappointed that CA's staff gave up property rights for a considerable chunk of our CA land to the developer without seeking consultation from their elected representatives on the CA board or wider public discussion of the ceding of property rights in this case.

So, in the eyes of many, wrongs happened that shouldn't just stand as is. Cindy V's got it right - right apparent wrongs, but don't put the sole burden for righting them on a developer just because they were able to navigate their project through the Swiss cheese protections at the County and CA level against development and land use that may not be in keeping with County and Columbia intentions. That's fair.

Hayduke said...

There's nothing wrong with righting past wrongs. My problem is with the tool being used to do that -- namely, Sigaty's retroactive legislation.

If the project was approved illegally, than I trust the judge presiding over the on-going case will decide accordingly and the Tower won't go forward. Unfortunately, if that's the case, one project approved as part of that Planning Board decision has already been built, leaving Town Center with a permenant "illegal" scar.

If, however, the decision was legal, then I don't see how it's fair -- moral, even -- to punish them for not following laws we would have put in place if only we had more foresight. New Town Zoning has lacked building height limits for 40 years, after all.

It may be true that "in the eyes of many" the Tower is bad for Columbia. Even I have questions about the building itself. But isn't deciding matters of legality based on majority opinion a violation of some of the basic tenants of the American system?

I have no problem with the majority deciding that tall buildings are bad and enacting legislation to prevent such buildings in the future, even though I wouldn't support height limits.

Also, I don't think your comparision of this retroactive law to slavery is appropriate on a variety of levels.