David Rodeback's Blog

Thursday, August 10, 2006

The Nice Guys Finished First

All that really happened is that a proposed zoning change was denied. But there was plenty of drama along the way.

Yesterday I blogged some thoughts and observations from Tuesday evening's hearing in American Fork about the budget and the property tax increase,  which the City Council approved during their regular meeting, which followed the hearing. Most of the standing-room-only crowd present for that hearing left when it ended. This made room (more or less) for an even larger crowd of people interested in the evening's other high-profile issue, a vote on changing the zoning of the Carson property on 900 West, south of 700 North, from a residential to a commercial zone. The size of the crowd was no surprise; members of the Council report receiving more letters and calls recently about this issue than about everything else put together. Both sides have actively lobbied neighbors, too.

I long ago took sides on this issue here at the blog, mostly on style, not substance. Here I will make a serious effort to be accurate about who said and did what, but I will freely comment along the way, too. For what it's worth, I left the meeting thinking my position had turned out to be superior on the merits, as well.

I knew going into the meeting that MFCC (she blogged here) and Councilman Dale Gunther were on the neighbors' side. I suspected Councilman LeBaron would vote with the Carsons for valid reasons of his own. I did not know what Councilmen Cates and Storrs would do and had had no opportunity to ask them.

Discussion lasted more than two hours, and, eager as I was to see the vote, I don't think that was excessive under the circumstances. Mayor Thompson did an excellent job managing the discussion, drawing a generous balance between hearing people out and keeping the discussion moving.

The Carson Team Speaks

At the Mayor's invitation, the Carson team got the first word. Wade Carson, one of the owners, spoke for a while. His basic theme was that the Council should bend over for him like previous councils have bent over for other commercial developers and landowners, but he didn't phrase it so obviously or so coarsely. I could not see the visual aids he and others used, but I understand that he posted a map showing all the neighbors who supported his project. (Opponents told me afterward that he seemed to have counted as a supporter everyone who did not sign a petition against the project, which is rather optimistic, at best.)

If there were a book entitled Half-A**ed Propaganda Campaigns for Dummies  -- pardon my language, but it's a word we had seen earlier in the evening without the asterisks, in a PowerPoint presentation, thanks to a positively delicious typo . . .

Where was I? Oh, yes. If there were such a book, Chapter One would say to call your opponents liars and represent yourself as telling the truth. If you know the audience -- in this case the City Council -- won't buy that, you move to Chapter Two, which would say, Proclaim regretfully that there have been lies and distortions on both sides, and that no matter how the vote goes, in a sense there won't be any winners because of this. This helps the inattentive and the gullible to think you occupy the moral high ground, even as you paint your opponents as liars. If your opponents are not actually liars, the accusation itself may also fluster or anger them, which is an added advantage for you. In his prepared statement, Mr. Carson opted for Chapter Two. It was a reasonable choice, since Chapter One simply would not have worked in this case. Chapter Two didn't work either, but at least it had a snowball's chance.

A handful of neighbors then made short, prepared statements favoring the proposed change. These included the local LDS Church leader, a neighbor to the Carsons,  who had previously used his pulpit (literally) to tell his flock not to get involved in the matter. Some of his flock were silenced by this. Some were incensed by it and then again by his making a statement of his own at this meeting. But the problem with this scenario was not in his speaking at the meeting. I see nothing wrong -- obviously -- with a church leader involving himself in politics as a resident and citizen. The problem came months earlier, when he exerted ecclesiastical authority inappropriately to suppress political opposition, on which subject I have already written all I currently wish to write (here).

A member of the Carson family read a letter written by a certain local businessman who could not attend the meeting (of which more below).

Then the developer spoke. Essentially, his message was: This is a spectacular commercial location; it cannot usefully be anything else; and we've conceded a lot more to the neighbors in our design than others nearby have done before. He drew snickers once by saying the property in question was the most promising commercial property he's seen in all his experience developing in Utah -- his year and a half of experience here, that is. He also -- forgive me -- whined quite a lot about having spent eight months on the project, with no decision and no return on his investment so far. He blamed the Planning Commission (of which more below).

As the Carson team's prepared statements came to an end, Mr. Carson said approximately this: "I reserve the right to speak again later to correct any inaccurate statements which may be made by the opposition." I am pretty sure he had no idea how bad that sounded. Besides the fact that there is no such right that I know, these meetings simply are not that ruthlessly formal. Moreover, it's rather defensive, and it's almost absurd and offensive to suppose that the current administration would not allow rebuttal, anyway.

All in all, the Carson team presented its case clearly enough. They weren't Winston Churchill, but neither was anyone else in the meeting. I'm afraid that rhetorical luxury liner sailed long ago, alas.

The West Side Neighbors Respond

The neighbors who spoke in opposition to the proposed change were not as tightly scripted, but were probably more effective. They articulated concerns about traffic, including the possible (threatened) but technically unrelated extension of 500 and 600 North to meet 900 West, which would remake those quiet residential streets into busy through streets. They spoke of buying homes in the neighborhood with the expectation that the property in question would remain a residential zone (though now it's an alfalfa field, having been zoned agricultural until the Carsons reportedly requested and received a change several years ago).

Then it got interesting. Not necessarily in this order . . .

A neighbor from the Patterson family, who is not himself a developer but grew up in the business, disputed the Carsons' developer's major points. The idea that the land's best (or only reasonable) use is commercial began to teeter, of which more later.

Someone noted that the Carsons' developer had blamed the Planning Commission for dragging its feet for eight months, but that the developer had first presented actual plans as recently as June.

One neighbor mentioned having been physically and verbally abused by a member of the Carson family because of her opposition. My position in the room prevented me from seeing what witnesses later reported: When this abuse was mentioned, that member of the family nodded, smiled, pointed to himself with both hands, all but strutted, claiming personal credit for the abuse. (Note that the individual in question is, at least chronologically, and notwithstanding his behavior, an adult.)

One neighbor cited the Carson team's reference to a goose which lays golden eggs, noting that the city would get the goose and the Carsons would get the gold. I heard but did not see Mr. Carson pipe up, "Jealous?"

One man, whose position in the crowded room was actually behind the Council, noted that he was pretty sure there were a lot more people in the neighborhood opposed to change, but who were reluctant to say so, because they had been told not to by someone in a position of authority. He was not clear at this point as to who had told them this.

MFCC turned to him and asked, essentially, "Whom would people allow to persuade them to give up their First Amendment right to free speech?" He identified the aforementioned local LDS Church leader. Before the Mayor shut down this line of discussion, several in the room confirmed what the man had said; one or two of the Carsons' opponents seemed to be trying to rehabilitate the leader's image; and the leader himself raised his hand to speak (again). It was probably wise and appropriate of the Mayor to steer the discussion swiftly back to the merits, but I would like to have heard what the church leader wanted to say. I think he might have apologized.

Random Voices Follow

There followed some less structured discussion by various other residents on both sides of the issue. One familiar senior resident demanded with more passion than logic that the neighbors let the Carsons do whatever they want with the land.  She apparently feels she has some moral authority in the matter, because, as she mentioned, she used to own some of the land on which the neighbors live. Other, calmer approaches to the subject of property rights preceded and followed this -- because that's what zoning disputes are about, including the property rights of both the landowner and the neighbors who would be affected by the change.

Then the Mayor asked if there were any views which had not yet been represented, and I recall that there was another comment or two. Then -- have I mentioned that I thought he managed the discussion very well? -- he turned to the Council and asked if any of them had any specific questions to ask of either side or wanted any further information from anyone present before their own discussion. They clarified a point or two.

The Council Discusses

Then the Council discussed the matter among themselves. Some were thinking aloud, making points on both sides of the case. Others explained why they had already taken a particular stance on the matter. Here are the highlights.

I suspect that the Carson team arrived at the meeting thinking there would be a fairly clear-cut contrast between economic benefit and owners' property rights on their side, and little more than a clear NIMBY attitude on the neighbors' side. The Mr. Patterson who spoke with and for his neighbors had started that premise teetering, and Councilman Gunther and MFCC, in their turns, toppled it.

Both had met in recent weeks with some of the most highly-regarded commercial developers and commercial realtors in the area, to discuss this specific proposed development and commercial and office space issues generally. Based largely on that authority, these council members refuted the Carsons' developer's claims almost point by point. No, we won't lose a lot of business to Lehi and Pleasant Grove if we don't do this. No, it isn't a no-brainer as a commercial zone, and in fact it really doesn't make a lot of sense. No, there isn't a current or foreseeable shortage of available commercial property in American Fork without this piece. No, actually, several major residential developers indicated that the land would be quite attractive to them, despite the CostCo across the street. And so on. The devastation to the Carson case seemed nearly complete, but I suppose that's a matter of opinion.

Then the drama of the evening actually increased.

Councilman Jimmie Cates, who by all accounts (including mine) is a decent, honorable man, noted that his employer had sent a letter in favor of the change, which had been read earlier in the meeting. This meant that he was not free to vote either way without being questioned. (If he favored the change, people might think it was because his employer favored it.) He announced his intention to abstain from the voting, due to this conflict of interest.

I have been wishing for more conscientious attention to conflicts of interest for a long time. An official is required only to disclose such a conflict, however, not to abstain from discussing or voting on a matter where there is a conflict. But I certainly don't want to say that an elected legislator should vote when he feels he should abstain, and I do not suspect that Councilman Cates was simply trying to avoid taking a stand on a controversial issue. Conflicts of interest are inevitable; I applaud Councilman Cates for noticing, disclosing, and addressing his in this case.

This raised the interesting possibility that the Mayor would be called upon to cast a deciding vote, if the remainder of the Council voted 2-2 on the measure.

Then Councilman Gunther pulled out a document and indicated that he wanted to read it for the record. It was a letter to him from a lawyer representing the Carsons. (In fact, this lawyer represented Gunther some years ago, which might mean the lawyer had a conflict of interest.) It cited Councilman Gunther's statements at a Planning Commission meeting when this matter was considered; advised him to abstain from voting on it and absent himself from the room while it was discussed (which he clearly had not done to this point in the meeting); and warned him to contemplate the possibility of being sued if he did not abstain.

At this point, I could see that some in the audience were concerned (or hopeful) that he, too, as a known opponent of the change, might abstain. He quickly made it clear that this was not his intent. He said, "I consider this a veiled threat" -- at which point I noted to the person next to me that I had noticed the threat, but not the veil.

Councilman Gunther read the official record of his statement at that Planning Commission meeting, for the record. Most of his statement there was purely informational -- for the sake of which information (since he had it) the Commission had invited him to speak to them on short notice. A small part of what he said might be construed as suggesting his opinion on the matter. I don't see the problem with that; whatever its function at a given moment, the City Council is not the judiciary, but is inherently a political body. I heard nothing which I thought was intended to coerce or even strongly influence the Planning Commission to vote in a particular way. (Even if something of that nature had been said, I doubt the Commissioners I know could be coerced by the Council.)

Councilman Gunther noted that the City's attorney had advised him that he could ignore the letter. Then, as I recall, having said his piece, he dismissively dropped the lawyer's letter on the floor.

There was some discussion among the Council about this being a dishonorable attempt to sway a vote. Perhaps the word "despicable" was used, too, or maybe that was my own brain thinking too loudly.

In light of this obvious attempt by the Carson team to neutralize an opposing vote and the aforementioned Church leader's attempt to neutralize opposing voices, one might wonder also about the letter which neutralized Councilman Cates' vote. I do not think it was a dishonorable thing (unlike the lawyer's threat). Was it intended to achieve that effect?

If it was, my hat is off to the Carson team for a shrewd, artful political maneuver. But I don't think it was. First of all, I don't think Councilman Cates had revealed his intended vote. Second, he said he did not think it was such an attempt. Third, it is not clear which way the Mayor would have voted in case the Council tied without its fifth vote. Still, if it was a deliberate ploy, it was savvy politics, and my hat is still off . . .

The Council Votes

Council members Rodeback (MFCC), Gunther, and Storrs voted aye on the motion to deny the zoning change -- voted against the Carsons, that is. Councilman LeBaron voted nay, and Councilman Cates abstained. The Council having voted 3-to-1, there was no need for a tie-breaking vote by the Mayor (which is the only time he gets to vote).

Before, during, and after the vote, the Mayor and Councilman LeBaron indicated their hope that some sort of mutual compromise might be found. Reasonable as that sounds, I was later told by people who could see Mr. Carson that he adamantly shook his head every time compromise was mentioned.

Aftermath

As I noted above, Mr. Carson devoted considerable time and energy to suggesting that the Council should do what other councils have done in the past, simply because they have done it. Other members of his team echoed this. (For some reason I have never heard this argued when Congress or the President is considering legislation. Do we fancy our City Council less political?) The only thing I really wanted to hear from the Council on the matter, but didn't, is some diplomatic comment to the effect that this Council will do its own homework and will not be bound by the values and practices of past councils, who acted according to somewhat different principles and priorites.

I saw no misbehavior by the losing parties during or after the vote. But multiple eyewitnesses report an incident outside, after the meeting, which is consistent with the Carson team's verbally and physically intimidating tactics in the preceding months. I am not aware that anyone was physically injured on one hand, or criminally charged on the other, as a result.

It doesn't always happen, but one side, the neighbors, played a clean game against the other side's physical and procedural bullying, and they won -- on style and on the merits. I can understand if the Carsons are angry and disappointed; those ten acres are probably only worth $3 million if not zoned commercial, instead of maybe twice that. If they had proposed this as recently as last year, it is likely they would have won.

Of course, despite eight months of drama, all that really happened is that a proposed zoning change was denied. Another could be proposed tomorrow. But in the meantime responsible, disciplined, adult politics have been vindicated, and spoiled, childish bullying has for now suffered the fate it so richly deserves.

Three cheers for the City Council. (I am quite certain I have never said that before.) And three cheers for the neighbors, who fought fire with fire hoses, not flamethrowers, and won this round.

(I may soon venture some further reflections on this episode and some larger issues it engages. If I do, I'll put a link here.)

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Copyright 2006 by David Rodeback.
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