Decatur Asks For Feedback on “Key” UDO Questions – Floor Area and Demolition Permit Posting
Decatur Metro | August 27, 2014If you haven’t already, head on over to Open City Hall and see the “key” remaining questions posted by the city that relate to Decatur’s Unified Development Ordinance process. Here’s the overview question…
Should the city eliminate minimum floor area requirements for residences, allow residents to modestly increase floor area maximums, and require posting a demolition permit for 15 days before demolishing a building?
The Decatur Minute also has alerted residents to be on the look out for a new question on Open City Hall about “green building standards” in the coming days. We’ll try to alert you when that’s posted as well.
Folks have until September 7th to submit feedback.
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“The delay would exist solely as an opportunity for any interested party to submit a better offer or alternate approach desirable to the property owner.”
This is the rationale for the demolition permit delay. If the goal here is to strengthen our communities, this permit delay will have the exact opposite effect.
Homeowner A: I bought an old house, will tear it down and will build the biggest house the code permits.
Homeowner B (who lives next door): But, if you do that, you will impact me in [blank] way. Have you considered doing [blank] instead?
Homeowner A: Thanks for your input, but I am going to stick with my original plan. It is my property, I paid top dollar for it and I am going to build what is best for me and my family.
Homeowner B, primarily out of spite, then causes a fuss and the demo permit gets delayed 90 days.
Then, after Homeowner A builds what he always intended, Homeowner A and Homeowner B have to live next door and see each other everyday. Who can see any problems with that?
And this is very likely an unconstitutional taking. The city would be taking one’s right to use one’s property in a legal way for up to 90 days. How much does this 90 day delay cost in interest, taxes, renting elsewhere, etc.?
I’m curious if you think this would be unconstitutional because that is the way you THINK it should be, or because you can point to case law that says a delay is a taking.
The way I understand it is that an owner would have to prove that you took away ALL of his/her “reasonable rate of return” on a property for it to be a taking. I don’t think a 15 day delay would do that. I don’t think even if the demolition was stopped you would be taking away a reasonable return as you could do many things to a property, or nothing at all, and still be able to sell it at a profit. Again, I’m not asking if you agree with this interpretation, I’m sure you don’t. But I’m also (pretty) sure that is the standard and thus, this proposal is legal. Of course everyone has the right to go challenge the city in court at anytime for whatever cause they choose – doesn’t mean they will win.
Also, I see 15 days. Where did 90 days come from?
The question on Open City Hall says the city has discretionary authority to delay the permit for up to 90 days. And no, my statement had nothing to do with how I think it should be – I believe that a property right is being taken if one can’t use his property for 90 days just to benefit a neighbor. Based on the incredibly loose standards set by Kelo, it would likely be deemed permissible, but just compensation must be paid.
Your beliefs and the legal precedent in taking cases seem to be in conflict. It sure appears to me that a demolition delay is legal. If you can show otherwise I think it would be helpful. The test would likely be the “reasonable rate of return” test. I’m looking for legal basis for your opinion. Not trying to pick a fight, just want to make sure I understand your argument.
I am not saying that a judge today wouldn’t agree with your assessment – they clearly are trending away from upholding personal property rights. But, based on a couple hundred years of precedent, “all” of the property doesn’t have to be taken to trigger the just compensation requirement. For example, the government must pay for temporary construction easements so it can use your property for a short period of time. And admittedly, this is a bit of a sliding scale. 15 days for “processing”? Fine (although if they have been able to do it in 2 days, there is no legit justification). 90 days so your neighbor can make your life hell and cost you (or the seller) a lot of money? Crosses the line. The government is using its police power and taking your property rights, albeit only for a time. You should be compensated – perhaps by your neighbor. That is my legal argument; not (only) a personal belief.
I seriously doubt it is a taking, especially after the ruling in Kelo a few years back.
Kelo was about what constitutes a “public use”, not a taking. I think the proposed ordinance would pass the incredibly watered down “public use” test, and thus be a permissible taking. However, the owner must receive “just compensation”.
This delay isn’t for reviewing plans, inspecting work to confirm it meets code, etc. This proposed ordinance is designed to give your neighbor power over your property. And as we all know with the tree ordinance, the commissioners don’t have a problem with that. But, the courts should.
Of course I might be remembering a not so long ago time when the courts upheld private property rights.
Right, Kelo was a different case, I just meant that it illustrates the borderline hostile aproach courts have taken in evaluating takings claims. I have a hard time believing that a court will find a taking in a 90 day (or whatever) delay in implementing construction plans. Of course I am not saying I think the delay is good policy, just that the takings claim is likely to be weak.
I am honestly a little surprised that case hasn’t been overturned. One of the worst rulings by the USSC in a long time.
Who can argue with that logic. That’s not really a question.
I think a relevant question to ask is his — are there communities in Georgia or elsewhere that have enacted such a law? What were the consequences or the experience?
My gut reaction to almost any new “there ought to be a law / rule / change” proposal is that they are typically motivated by circumstances of the moment. While such circumstances may be legitimate, there is usually much less research into whether the proposed solution will actually change things as intended. They often treat a symptom, but not a cause.
We should not be delaying demolition permits as a matter of routine procedure. Rather, we should be asking if our building code enables or prevents the kind of buildings we want to see in our community. Demolition is just a means to an end. If people don’t want a McMansion next door, then modify the code to not allow McMansions (or those features of large houses people like or don’t like). Don’t just allow a way to delay the existing process.
Yes I agree. It’s hard for me to imagine that delaying the demolition process will meaningfully impact the number of demolitions, but would just cause neighborly tensions. I would love to know if this strategy has been tried in other municipalities and what the results were.