What a Mess

Well, as I wrote on Christmas Eve, the only thing keeping Sportsman's Warehouse going was the interest of a Canadian co-op, and the moment UFA Co-operative pulled the plug on that deal, it was off to bankruptcy court.  And as I predicted in that same Christmas Eve sermon and again on 14 January, General Growth Properties has likewise dived into bankruptcy court, leaving a wasteland in Cottonwood Heights (including killing off the TGI Friday's there) and stiffing the Fashion Place contractors for several million (If the contractors were smart, they'd form a consortium, foreclose all their mechanics liens together, do a workout with the prime lenders, and take over.  It's now the only east side regional mall between South Towne and downtown and looks to stay that way awhile.).  Commercial real estate loan defaults have quadrupled since last year as vacancies in all types of commercial space keep rising.  And, oh yes, home sales are down too, in spite of blandishments to the contrary from Realtors.  Exactly where is that bottom we're supposed to have reached already?

Sounds Like a Plan?

So the Draper City Council got all confused the other evening?  Seems that the developer of the Windsor development on the Jordan River (a mix of multi- and single-family housing) tried to address some criticisms by the Planning Commission by changing its proposal in the middle of the hearing.  By the time it was over, no one could keep straight which proposal they were talking about.  Then there was the little problem of no one having had a chance to look at the new proposal.  Finally the Council decided, in a 3-2 vote, to set the new proposal on for a new hearing.

This is the sort of thing that happens when you don't have a procedure that works.  I have to say I miss not working with the Washington State system.  If a council (city or county) is making a land use decision that is jurisdiction-wide (such as adopting a new use for a particular type of zone or amending street standards), it is acting legislatively.  It may be lobbied, it can amend the proposal at will (not quite, but close enough for this discussion), and it doesn't have to make a record of why it did what it did.  If there is a site-specific application, though (someone wants a rezone or conditional use permit on a particular parcel), the council is acting quasi-judicially and has to act like a court.  It has to make a formal record and base its decision on that record, and lobbying is right out.

That's where the staff and planning commission come in.  They make a lot of the direct contacts and build the record so the council has some insulation.  And if the applicant wants to change the proposal, it's back to the staff and commission to make a new record.

I've found that it works.  It certainly keeps applicants from switching horses in midstream, leaving councils wandering around in a fog.  They don't need any help with that.

Speaking of the Rule of Law

Magna is a peculiar institution.  For decades it has been run by two entities: the Town Council and the Community Council.  If you wanted to do something that required a land use decision, you needed the approval of both.

That's the problem.  While state law gives such authority to the Town Council, it gives no such authority to the Community Council.  The Community Council is simply a private entity that has been allowed to wield authority as if it were public.

I will readily admit that the Community Council has done a lot of good things for Magna.  That's not the point.  Suppose you wanted to develop some property or build a facility for your business, and you were told you would have to get the approval of the local Chamber of Commerce or Lions Club or Shriners or American Legion Auxiliary or whatever.  A group that can meet and decide in private.  Or not meet at all; a few, key members could simply get together at a church potluck and decide the fate of your proposal.

Why should any private group have that kind of power?  It shouldn't.  That's why such decisions need to be made by entities that are established and controlled by law.  The laws are there to protect you, and if you don't believe it, imagine the fate of your business hanging on the decision of the local ladies' book club after they've finished discussing Twilight.

Lowry vs. Rule of Law

As an attorney, I have a vested interest in the rule of law.  As a human being, I do too.  I believe that citizens are considerably better off if their lives are governed by a set of laws that remain set unless changed in certain, prescribed ways than they are if their lives are governed by the arbitrary edicts of a Great Leader.

Which is why Matt Lowry's take on the torture memos disturbs me.  He wants to characterize them as a shining example of a nation ruled by laws taking the time, in the midst of a national security crisis, to debate the legality of its response.  The memos may ultimately have been wrong, but the fact that we did not strike without first thinking through the legal issues means we remain a nation that respects the law.

There's a teeny-tiny problem with this argument, namely that the memos were condoning conduct the U.S. had tried and convicted people for after World War II, and the people "debating" the legal issues knew it.  They also knew that the laws against "enhanced interrogation techniques" had become more stringent over the intervening decades, not more lax, so the only reason to reverse our previous position was political expediency.  Which means those memos weren't part of a debate.  They were pre-ordained to justify an already decided upon course of action.  They were about as respectful of the rule of law as any of Hitler's or Stalin's show trials.

No, Mr. Lowry, the torture memos are not a shining example of our belief in the rule of law.  They are damning evidence of our readiness to abandon it.