For Good Government, Ideas Must Roam Freely

Many readers have likely had experiences similar to mine when it comes to sharing new concepts.  I’ll think through a thorny problem, find an alternative perspective to the conundrum, and use that perspective to find an unexpected solution.  But when I first share the idea, perhaps in a meeting where other’s thoughts are elsewhere, no one responds favorably.

However, a few days later, someone comes by my desk to acknowledge that there may be something in what I had said.  Over time, other folks grasp my way of thinking and the idea, likely edited and improved by the others, comes to be adopted.

Sometimes new concepts or ways of thinking can’t be transferred instantaneously, but need time to find fertile soil.  When I wrote about the Brown Act a few posts back, most recently here, I may have failed to adequately explain the extent to which the law can impede the flow of new and different ideas.

The obstruction is ironic because the intent of the Brown Act is to prevent secrets, specifically in the form of decisions made by public bodies away from the eyes of the public.  But an unintended side-effect is nonetheless to inhibit the flow of ideas.

The first time that a public official can share a novel idea or creative approach with the entire public body is when the matter is already under discussion in a public session.  The other officials may be focused on their own arguments and fail to recognize the value in the new suggestion.  And a couple of days later, when the penny finally drops, it’s too late to make a difference.  First, because the public body has already made a decision.  And second, because many public officials are unwilling to admit that they’ve changed their minds.

We often elect officials for their ability to bring creativity to the task of government.  But we then subject them to a set of rules that have the effect of putting a lamp shade over that creativity.

I have an anecdote from my long-ago past that can illustrate the problems that can result when the free flow of ideas is restricted.  It wasn’t a Brown Act situation, but provides some parallels.

In one of my Brown Act posts, I mentioned serving on the Design Review Committee for a large residential/recreational community in an Oregon community.  My involvement with the project was long and varied, extending nearly a decade from early concepts through entitlement to construction of many of the phases.

At the entitlement phase, there was a key question about project density.  Under Oregon law, a minimum density must be met.  Developers aren’t allowed to chew up large tracts of land without providing sufficient housing to meet the needs of the community.

Depending on the how the density was calculated, the project may have been short of the minimum density.  (Note: I’m not very proud to have been an integral part of a project that bumped against a minimum density standard.  However, bills must be paid.  Also, it’s possible, with clustered development, to have a relatively low density and still have a moderate level of walkability.  This project had elements of that potential, although the walkability never came to fruition due to later strategic decisions that were taken over my objections.  That’s a story for another time.)

To meet the minimum density standard, the development team constructed the argument that the golf course, which required a separate application, was a different land use and that the area occupied by the course should be excluded from the density calculation.  Part of the argument was that if the golf course were built now and the housing was entitled and built a decade hence, the density calculation wouldn’t include the golf course area, so why should it be included if the applications were simultaneous?  With that argument made, the minimum density was achieved.

Another aspect of the project was the need to modify the Urban Growth Boundary (UGB), which in Oregon is an action subject to review and approval by the state.  The team decided not to try to justify an expansion of the urban growth area.  Instead, we proposed a realignment of the boundary where it crossed the property, maintaining the same enclosed area, but configuring the UGB to accommodate the project configuration that best suited the proposed number of homes.

Another aspect of Oregon land use law that should be noted is the role of the hearings officer.  In California, the initial land use body is often the Planning Commission, with many decisions also requiring City Council concurrence.  But in Oregon, the Planning Commission is reserved for legislative and long-range planning issues.  Land-use applications are heard before a hearings officer, usually a local attorney with a land-use background.  And only appeals go to a City Council or County Commission, so the hearing officer is often the final word.

(I can see benefits to both the Oregon and California systems.  In California, the aesthetic judgment of the public is represented in a Planning Commission, but the logical cohesiveness of the process can be disrupted.  In Oregon, the hearing officer can be a stickler for the law, but project aesthetics are best raised through comments by the public.)

Also, an Oregon hearing officer is off-limits to the development team.  It might be possible in California to chat with a Planning Commissioner in the weeks before a hearing, but that type of contact is strictly prohibited in Oregon.  The opportunity for an effective meeting of minds is reduced.  And we had no opportunity to ensure in advance that he understood the density argument.

Thus, the big residential/recreational project went before a hearing officer.  There was opposition to the project.  Given the nature of the opposition, the team mentioned the density and UGB realignment arguments in passing, but reserved most of our presentation for addressing the concerns of the neighbors.

In the aftermath of the hearing, we thought we had done well, but could only await the decision from the hearing officer.  After a couple of anxious weeks, the decision was received.  The project was approved, but with conditions and modifications.

In particular, the hearing officer hadn’t grasped the argument about the golf course not counting in the density calculation.  In its place, he’d had a done an alternative computation.  (Even after twenty years, I still recall that he bumped the housing count from 529 to 676.)  And yet he’d approved the UGB realignment that had been configured to the smaller number, not giving the option to make adjustments to better accommodate his larger number.

In the subsequent team meeting, I presented the arguments that would support an appeal, first arguing that the original density calculation was correct and then arguing that, even if the hearing officer’s density was upheld, the developer should have been given the opportunity to adjust the proposed UGB.

The developer concurred with both arguments, but also knew that an appeal would take time and would be in front of the County Commission, so would involve educating new decision-makers.  In the end, he sighed and decided not to appeal, instead directing the team to find ways to add the additional housing units.

And so we did, adding a small-lot neighborhood, squeezing in a couple of townhome projects, and reducing the width of a number of larger lots.

The project did well, but the clunkiness of the density fix was occasionally noted.  In particular, potential upper-end buyers complained about the missing lot width, with some citing the lot width as their reason for not buying.

Flashing forward five years, I was continuing to work on the later stages of the project, but also had other projects, including an irrigation district that was pursuing funding for a water conservation project that would return water to the local river.  Among the potential funding sources was the federal government.

A newly-elected U.S. Senator wished to learn more about the project, so asked the district to give a tour to his local field representative.  I was asked to join the tour.  By chance, the field representative was the wife of the hearing officer from years earlier.

As we drove around the district, the field representative asked me about the other projects on which I was working.  I mentioned the residential/recreational project.

She responded. “I like that project, but keep hearing that the lots are too narrow.”

To which I replied, “You should ask your husband about that.”

She was surprised by the connection, so I gave a short explanation and considered the matter closed.  But a few weeks later, she and her husband attended a local minor league ballgame.  As part-owner of the team, I was greeting fans near the main gate, including the couple.  The hearing officer referenced the recent conversation and asked for more information.

And so it was, nearly five years after the hearing, that the hearing officer and I sat in adjoining boxes in a minor league ballpark talking about the fine points of the long-ago hearing.  Once he’d been briefed, he agreed with both of my points, that excluding the golf course from the original density calculation was correct and that, even if the density argument was rejected, the developer should still have been given an opportunity to adjust the UGB.

Of course, the horse was long since out of the barn and far down the road.  Perhaps one can argue that the project would have been more successful, generating more property tax revenue for the community, if the arguments had been understood on a timely basis.  But it’s equally possible that the only impact was that a few affluent home-buyers had a little less elbow-room than they might have wished.

But what happens if a similar communication failure occurs on an urban project, if a key element of walkability or transit access is omitted because the developer isn’t able to correct a misconception of the hearing body or if a public official has an inadequate opportunity to explain a new vision to his fellow officials?

We live in an increasingly complex world, where the accurate and comprehensive flow of information is key to making the world work well.  Whether it’s Oregon putting hearing officers in a bubble or California imposing the Brown Act on public officials, constrictions on the flow of information and ideas increase the possibility of weaker outcomes.  We should be constantly aware of that risk and looking for ways to minimize it.

In my New Year’s resolutions for this blog, I promised to look in depth at the specific issues of parking and senior living during 2014.  With fall upon us, it’s time to begin honoring those resolutions.  In my next post, I’ll begin a multi-post look at combining urbanism with senior housing.

As always, your questions or comments will be appreciated.  Please comment below or email me.  And thanks for reading. - Dave Alden (davealden53@comcast.net)