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Thursday, May 10, 2007
A Little, Concrete Test of American Fork's Commitment to the Rule of Law

The concrete is actual concrete. The law is an ordinance passed by the American Fork City Council. And in a small city that has been committed only selectively to the rule of law over the years, the rule of law seems now to have a fighting chance.

The Thing

On 100 West in American Fork, just across 700 North from the cemetery, a big house is being built atop the hill, somewhat removed from the street. Lower, and nearer to to the street, something concrete is under construction on City land.

If you'll pardon my attempt to be clever, in this case the concrete embodies an important abstraction.

The story as I have it is this: The American Fork Planning Commission studied and approved a much shorter structure, with a much smaller footprint, for that site, in addition to some graves. The structure is for temporary storage of dirt, a desirable thing at a cemetery.

The City Council approved this by ordinance. In other words, it's the law.

The Problem

Later, senior City officials (not the City Council) decided that it would be better to built a much bigger, much taller storage facility than the Council approved, even if its thrice-larger footprint did cut seriously into the acreage intended for additional gravesites. They didn't send it back to the Planning Commission and City Council for amendment to the ordinance already passed; they just started construction.

Right now, therefore, the structure is illegal. I'm not calling those "senior City officials" crooks for ignoring the ordinance. I see this more as a mistake than a crime -- and a somewhat understandable mistake, at that.

Ignoring the law and doing what seems expedient is common, perhaps even accepted practice, especially in local government. American Fork City itself has, over the years, earned well its image as a place where pesky things like zoning ordinances are not allowed to stand in the way of convenience, neighborly feeling, profit, or an official's personal sense of how things ought to be.

We all know the inclination. In some contexts we obey and enforce the law only as far as we find it convenient to do so. At such times we even like to misuse the New Testament and talk about the "spirit of the law" being superior to the "letter of the law."

I value mercy, flexibility, rationality, economy, and other virtues, which often should temper the law. Still, it seems to me that the essential question here is, Is a legal and duly passed ordinance of the City Council actually the law? Or it is just a nice suggestion, to be heeded when it is convenient and ignored when it is not?

Nice Clean Theory vs. Messy Reality

In theory, this much seems obvious: If a governing body approves a specific plan for something by ordinance, those who implement the plan are empowered to implement that plan, not to change it arbitrarily. If changes to that ordinance become necessary or desirable, they should be subject to that same governing body's approval -- presumably in advance.

In practice, things are rarely so neat and clean. Circumstances evolve, often unpredictably, and going back to that governing body with proposed amendments can be more than inconvenient. It can be expensive, in terms of time, money, and political capital.

If it were yours to judge, how would you rule in The Case of the Big Concrete Thing? Convenience or the rule of law?

Getting It Right

I applaud the City officials who saw this departure from the rule of law and insisted the City go back and get it right (one way or another), when it is inconvenient to do so. Sending this curious concrete thing back to the Planning Commission and City Council is the right thing to do.

No one else at the City has the authority to change what the City Council has authorized by ordinance. Only the City Council has the authority to say, in essence, "We see this change is necessary (or better or prudent). We amend our previous ordinance to permit this." And if the City Council decides not to amend its previous ordinance in this case, but to require that the concrete thing be removed and replaced with what they originally approved, well . . .

The cost is said to be about $50,000. That seems like a lot of money on a personal level. But in the civic realm, I don't think it's too much to pay for a good, practical lesson in the rule of law -- not too much, that is, if those who need the lesson actually learn it.

David Rodeback comments (5/16/07):

This evening the American Fork Planning Commission considered and rejected a proposal to approve the Big Concrete Thing as constructed. The vote was unanimous. Appeal to the City Council is possible.

Wendy Hickman comments (9/28/07):

I, too, was glad that American Fork held itself responsible for varying from the approved plans. However, I do wish American Fork was as consistent when it comes to applying the rule of law to others (particularly developers). I'm aware that landscaping and curb/gutter requirements were not met by a recent developer along 700 North. I was also told by a City Council member that other previous developers along 700 North have also failed to follow the requirements set forth for that road. Yet, rather than cause the developers incur the costs of adhering to their approved plans (and thus set up a precedent of American Fork sticking to its rule of law), exceptions are widely made and no fixes (or pseudo fixes) are required. Unfortunately, developers see the precedent of allowing non-compliance and thus are not careful about following their approved plans. Now, American Fork is left with a road that is difficult to improve to the major collector status that was originally planned.

Consistent commitment to the rule of law by American Fork would improve our community immensely. I'm not opposed to mercy and understanding or to cooperative problem solving. When mercy results in exceptions though, they should be just that, exceptions. As long as the rule of law by American Fork is not decisively enforced, then it really ceases to have much meaning.

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