Saturday, March 13, 2010

Alan Klein: Where You Sit Is Where You Stand

This afternoon I had coffee with Alan Klein.  After almost two hours of conversation, I can say that he may be one of the most genuine men I've had the pleasure of meeting.  Despite the characterizations and unfair school-yard insults he has endured, Alan refused to impute anything but benevolent motives on all of his detractors.  He repeatedly said "I am sure that they have nothing but good intentions" for just about every individual he disagreed with.

This differentiates Alan from my previous experiences with both sides on this issue.  Many proponents of the new plan use the term "crazies" as if this was a recognized political party, and that anyone who disagrees with the plan must be a raving lunatic.  On the other hand, I've seen some of the most acerbic, hurtful, and unfair comments written by those that oppose CB 58 and 59 directed at people that they have determined to be "the enemy."  Alan is none of the above.  He wants to talk about the issues.

As such, let's get down to it.  The Coalition for Columbia's Downtown is not anti-development, anti-redevelopment, or anti-density.  They have proposed an executive summary that, per Alan, was originally signed onto by Ken Ulman, Jen Terrasa, Courtney Watson, and Mary-Kay Sigaty.  They want to see a revitalization of downtown, and hope that all of the promises made come true.  The pivot point, and where the debate should be held on these bills/laws/subjects of great gnashing of teeth, being the enforceability of GGP commitments in the Master Plan.

Alan, and I assume CCD, believe that rather than making one-stop-shopping full-scale residential rezoning all at once, the changes to downtown zoning in accordance with GGP's requests should be effectuated by way of multiple phases, which would allow the Council multiple opportunities to ensure commitments have been met.  If this development is going to be staged over 30 years anyway, why not have the plan proceed with corresponding check-points so that the Council has the opportunity to approve the next stage/village in accordance with GGP's ability to meet its commitments on the previous stage.

The concern is that 5, 10, 15 years down the line, GGP (or its successor's successor) holds its hands up and says "we can't meet our obligation for (fill in the blank) due to (fill in the blank), but we are going to push through with the remainder of the redevelopment" as said traffic/sewage capacity/infrastructure need festers and causes additional issues for the County.  If Mr. Davis is correct, and the provisions of the Master Plan are legally enforceable, should such a hang-up occur, the choices will be protracted litigation with the county's largest and most powerful developer, or acquiescence.  Litigation is expensive, contentious, and long.  As such, my money would be on acquiescence, making the enforceability of this Plan in a court of law irrelevant.

There is another option for ensuring that GGP's commitments are enforced.  Staged development has the benefit of leaving "carrots" in the hands of our elected officials.  With the current plan, Alan does not believe the County has much to hold GGP to their commitments, other than the unrealistic prospect of litigation addressed above.

When staged developmetn was originally presented to GGP, they claimed that they could not get funding for such a proposal.  Alan said that if this is going to be the excuse the Council hangs it's hat on, GGP's books should be opened, and proof should be provided to the public that Columbia redevelopment is truly "all-or-nothing."  That would change the paradigm, and we really would have to decide whether the County is willing to take the risks presented above.

I listend to And Then There's That this morning and must say that Dennis and Paul really do put on a great podcast.  They are engaging, have good on-air voices, and know their stuff.  We are fortunate to have people willing to donate their time for something we all can enjoy.

All that aside, one of the things that was discussed is that the town center property at issue was previously zoned "commercial" before the present legislation the proposed, and that if GGP had wanted to, they could have put in miles of unsightly "box stores" instead of the "walkable communities" that they now will be able to provide.  I brought this up to Alan, and he smiled.  "Well then why didn't they?"

The title of my post is in reference to something Alan said repeatedly throughout our conversation.  It stands for the principle that your world view is shaped by your position.  In this case, there is no reason to fault those that may benefit financially from CB 58 & 59 simply because of their ability to profit.  Profit is good (to paraphrase Gordon).  The important thing is to look at where people "sit" in this debate, and understand that their position colors their "position."  

To close out, here's a video for HoCo MoJo from when CCD (led by Alan) was able to meet with some of the Council to discuss their concerns.

34 comments:

  1. This enforcability issue continues to be a moving target for CCD. First, CCD claimed that the GPA was not enforcable because general plans are not enforcable. When that claim was proven wrong, they amended their claim to say that it's not enforcable because the County will choose not to enforce it. That can be said about any law or agreement the Council is charged with enforcing. The fact is that the GPA is entirely enforcable and voters should expect the Council to do just that. CCD's real problem is with the residential denisity, but since it can't get that issue to stick with citizens, they cling onto this enforcability issue despite it having been long resolved.

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  2. I'm afraid you have that wrong, David. The GPA has not been "proven" to be enforceable. That is only a theory that has yet to be proven in court.

    CCD's "real problem" is with guaranteeing GGP its benefits without guaranteeing the community its benefits.

    As to density, CCD is on record, and has been for years, in support of further residential development in an amount that the available studies show is sustainable in Downtown.

    As to "amend(ing)" our claims, that would be incorrect, as well. (At least in this case. We are always open to learning, growth, and change.) The question of the County enforcing the GPA only comes up in the hypothetical case that we are wrong about the GPA being enforceable in the first place. We do not believe, however, that the GPA is enforceable. The point is that, in any case, the plan is unlikely to be achieved, since either it is unenforceable or the County is unlikely to enforce it.

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  3. Alan is the only person from the opposition who, on this blog and others, uses his own identity. That's probably why the "debate" is more issue-oriented than threatening and personal like many of the anonomous posts. I've stated my appreciation of Alan's candor on other boards in the past and do it again here. Onto the issue....

    Alan, there's a difference between a law not being enforcable and a law possibly not being enforced someday because the enforcers might choose not to enforce it. Your claim was always the first scenario of how GPA's themselves are not enforcable like a law and now it seems, while you're still ddescribing it as the the first, your reasoning is the second. You could hold every law we have to the same theory as that second scenario and the only control we have over that is on election day. But stating that the law is flat out uneneforcabale leads a reader to believe that the developer could just blow it off and the Council would have no power to stop the profitable parts of the development (versus the power but not the will).

    Even though it's not your group, this is one of the primary untruths being spread by TAG in their effort to collect petition signatures. If the concern is that the Council might choose not to enforce it someday, just say that. I'm sure there are more than a few citizens who have an equal distrust of the government. But many of the people who are buying into that fear actually trust the government and would deem the GPA enforcable if that was the issue.

    Do you truly worry that a future Council will allow the developer to blow off CEPPAs but keep handing them building permits?

    Would you be satisfied if GGP and the Council entered into a very simple contract stating that the developer agreed to be bound by the GPA and attached the GPA as an Exhibit?

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  4. Again, David, you state an untruth as if it were fact, or at least an opinion as if it were a fact. Indeed, I do believe that the GPA, on its face, is unenforceable.

    And, given the history of development in this county, yes, I do worry that the developer will "just blow it off" and the county will continue to hand them building permits. (Of course, it will be couched not as "blowing it off", but rather that the CEPPAs and other "requirements" were just unattainable for any of a variety of reasons. The effect will be just the same.)

    Not being a lawyer, and being less than trusting of untried solutions that lawyers have incentive to breach, I would be more satisfied if the portions of the GPA that describe the benefits to the community were made part of the text of the zoning regulations.

    In addition, besides some continued concerns with portions of the GPA, there are a number of vital decisions that have yet to be made that should have been part of the ZRA from the beginning and that need to be satisfactorily decided before we will be OK with the "plan".

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  5. Frankly, Alan, I think it is time to press you on the issue of enforceability. You have continually alluded to this as being your opinion, though it is often stated as a fact. Please provide your precise reasons to support your claim. I know you are not a lawyer, but you present the arguments of a lawyer, so if you have a legal opinion to back up your claims, then please share that legal opinion. If you don't have a written legal opinion, at least provide the substance of your position. Then, maybe we can continue this discussion. P.S. I don't know how this post will be posted, but if there is any doubt, this is Mike Davis.

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  6. Again, I told you Alan was incapable of 'mocking' or whatever term was used after his initial reponse 'parroted' David. He is thoroughly sincere and serious about the GGP plan and is a very good leader. People know and respect Alan, people who do not stand to financially gain, those who are not joined by an in-common industry, but the actual majority of regular folks.

    In Howard County we are lucky to have two highly respected individuals who continue to use their exemplary talents to bring reason to the inexplicable madness that infects our local government decisions.

    In the Columbia area, Alan is the most respected by residents. In the remainder of the county, Angela Beltram is the most known and respected. If these two ran (again) for public office, many of us could breathe a whole lot easier.

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  7. Hi Mike,

    The legal reasoning for the GPA to be unenforceable is well known to you. It is the decision in the "Terrapin Run" case.

    The language of "consistent with" was ruled out in the Downtown legislation, so even that possible avenue for enforceability was not taken. (I say "possible" because the legislation that was said to make that language useful in enforcing general plans is only applicable in certain situations anyway; situations that I am told don't apply to Downtown Columbia.)

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  8. Anon 5:05, unless you're prepared to hold yourself up to public srutiny of who you are, where you livem what you do for a living, etc. so we might find some sinister motive for your opinions, please do not passive aggressively question ours. I support CB 58/59 because I believe Howard Co needs a downtown economic and social core to remain competitive for the next generation. If all I wanted was to make more money, I would be spending less time on this and more time growing my business.

    Alan, if the CEPPAs are in the zoning bill and the County Council wants to let the developer off the hook it will just amend the zoning regulations. The fact is that, with the GPA now being accepted as enforcable (as long as the County chooses to enforce it), it doesn't matter which bill contains them since either can be amended in the future. I believe you're just nibbling at the edges of this issue to keep the whole enforcability scare tactic alive to rally the opposition.

    As you pointed out, there is more work to be done, so let's get on with that work.

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  9. Alan, Mike, David -- Thank you for the great comments. If I had the technology for it, I would try to get a podcast out of this debate. Ha ha.

    You all do such a great job presenting and defending your positions as it is, that I hesitate to step in the line of fire, but from speaking with Alan, I believe part of his contention on enforceability is that "Phased Development" would undoubtedly be able to ensure that GGP commitments from the previous phase had been met before allowing for the next phase. The issue is not so much "would or wouldn't" the Council file suit against GGP, but more that the litigation route would be less favorable that an cooperative staged development, where the Council still has some bargaining power.

    I bring this up only because I would be interested to hear the counter. And Alan, if I got it wrong, correct me.

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  10. These issues are quite difficult to address in this environment. Briefly, the phasing of the development is not just monitored by DPZ and Howard County Government. The CEPPA requirements must be met before plans are approved and permits are issued. Thus, the County would not have to file suit, but just refuse to issue permits. Alan, to your point, I don't think you are reading what the Court of Appeals really said in the Terrapin Run case. The Court clearly stated that if the a governmental entity stated its intention that provisions within a general plan were not merely advisory, but mandated provisions, those mandates would be enforeable. See Footnote No. 5 in that case. Again, this is Mike.

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  11. This IS a Phased Development. Everything promised in the first 10 year phase must be delivered before they can move to the second phase and so on.

    Critics have proposed that, instead of granting the 5,500 units upfront in these phases (the current approval), only the Phase One units shoudl be approved now and new approvals come once the Phase One work is done.

    That might seem like a simple solution unless you're an investor. How can GGP attract investment and financing, or invest it's own money in the long-term planning, if there is no predictability in the future? This plan is set up so the units are guaranteed as long as they do what they're required to do, which creates the controllable situation needed to attract investment. GGP essentially holds it's own fate in it's hands. Opponents want that fate in their hands but making GGP come back to the table every ten years. This provides opponents with scheduled opportunities to stop it from moving forward, which is exactly why it prvents GGP from raising the capital.

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  12. Tom,

    Remind me again who it was that said blogs "are the least likely venue for rational discourse of any sort?"

    -wb

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  13. Unfortunately, even if the County wants to enforce the GPA, it will be the courts that decide the issue.

    If it pleases GGP, or any successor or purchaser of land, to do so, I have no doubt that Messrs. Talkin and Oh (and their brethren) will do their best to drive a stake through the heart of Footnote 5. And, given the thrust of the Terrapin Run decision as a whole, I give them a high likelihood of success.

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  14. As to HoCoRising's point, the way I put it is that I want the burden of proof to be on the developers to show that they have met the criteria of one phase before they get given the zoning to do the next one. The way it is now, the County has the burden of proof that they have not.

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  15. As to David's 8:25 post, if it is true that the GPA is just as enforceable as the zoning, why was GGP so insistent that the full residential density be enumerated in the zoning? If they were really confident that the GPA was enforceable they and their investors would have been fine with the 5500 being enumerated in the GPA with just the first phase being enumerated in the zoning.

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  16. Well, Alan, you and I are again in disagreement. The law is clear that the GPA is enforeceable. There really can be no disagreement on this point - at least you have not presented a legal basis for disagreement. But, you do not believe that the government will enforce the provisions of the GPA. I can accept your opinion on that point because it is just that... your opinion. However, my opinion is different. So far, over the past almost 45 years, Howard County government has done a pretty good job creating an incredible community. We are third in the nation in household income, according to Forbes Magazine, we have the best school system in Maryland, probably the best in the country. And, by any other standard, Howard County ranks amongst the best for a place to live, work, and raise a family. So, what makes you think that all of a sudden Howard County government won't continue in this same vein of success? Whatever it is, that's where we disagree, isn't it? (Again, this is Mike.)

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  17. If this were truly planned to be a phased density increase, there would be approvals in phases. But instead all 5500 new residences were approved en masse.

    That's just wrong.

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  18. No, no, no Anon 8:03. The zoning is approved "on paper" but benchmarks must be met. The second and third phases of units cannot be given out unless the first phase of CEPPAs is done. Alan K is not an attorney and, unles syou're willing to have him represent you in court against real attorneys, it's time to stop buying into his narrow interpretation that's been rejected by actual professionals in the field. Hearing that the Council could just ingnore any unfulfilled CEPPAs and give out the residential units anyway is growing tiresome because we all know they can change the law too in 10 years if that's what they want to do. This entire debate is about opponents wanting the ability to hold the developer hostage every 10 years in order to squeeze them for more giveaways or kill the continued development. No developer or investor is going to start investing in this community with that level of uncertainty, which uncertainty is compounded by the fact that it has taken us six years to get this far and we're still 1-2 years from even starting anything. Why would anyone who can take their business elsewhere subject themselves to a process like this every 10 years. It's not as if Maryland and Howard Co have created an otherwise great environment for business....

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  19. This density and phasing question continues to plague this discussion. A few points should be kept in mind when analyzing any opinions expressed on these blogs. First, this is a 30-year plan. The proposed 5500 units will be not all be built at once. Second, the number of proposed units for the downtown is only 5500, not the larger 7700 or whatever number gets thrown around from time to time. Third, there are three phases of development for these new units set out in the CEPPA mandates that are a part of CB58. The CEPPA mandates are infrastructure and other requirements that must be met for each phase to allow the developer build the next phase of units. Fourth, the CEPPA mandates apply to any developer of the downtown, whether or not it is GGP. Fifth, the phasing requirements set out in the CEPPA mandates are enforceable. There is plenty of room to express opinions about these points, but these were debated during the numerous hearings before the County Council, and the County Council acted to make sure these points were clearly addressed in CB58 and CB59. (This is Mike Davis.)

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  20. "when analyzing any opinions expressed on these blogs"

    A touch more disdain and it might have made my quote board!

    Thanks for the post, Mike.

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  21. HoCoRising, congratulations on sparking an interesting, civil debate.

    On behalf of HoCoMoJo, we would be happy to facilitate a discussion of these issues between representatives of both sides, for broadcast to the community. Please let me know if you'd all be willing to participate.

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  22. Thanks Dave. If the parties are interested, I would love to help pull it together.

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  23. Since this was HCR's idea, maybe the questions can come through this blog. We're in if you can pull it together.

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  24. @ Mike 11:02 p.m. - you are absolutely right in your description of how great a place Howard County is to live and work. Kind of makes you wonder what all this nonsensical talk about a "dying" Town Center was all about? Maybe just a lot of chicken little hysteria to "justify" the support of the redevelopment plan.

    As for the other commenters who act as if a County government would never backdown and not enforce requirements or regulations, let me offer just two simple examples. Just a few years ago, the Zoning Board accepted a bunch of applications for the Comp Rezoning AFTER the deadline had passed.
    Or, try this on (for the sheer irony). Way back when, Town Center was approved with a road design to have overpasses at the intersections of LPP/GovWarfieldPkwy and also as BLP/LPP. One day, the Director of Public Works decided that the overpasses weren't really needed. So, he waived that design requirement. And, voila, two lovely failing intersections. It's doubly ironic because if the intersections had been built as originally proposed, the current redevelopment plan might have had a chance of passing its traffi analysis.
    So, nobody can sit here and comment with a straight (unseen) face that the County will "strictly" enforce anything. When politicians are involved, there aren't any guarantees that laws will be followed or enforced.

    PZGURU (I have a Wordpress account but I can't seem to get this site to post the name).

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  25. PZGURU, I don't disagree that land use is a very political issue. If we didn't know it before the debate about downtown Columbia, we sure know it now that land use is one of the most political issues we deal with at the local level. And, I don't disagree that there may be incidents where governmental malfeasance or nonfeasance might be raised in the future. But concerns that there could be a problem with interpretation or enforcement doesn't mean we don't try to keep Howard County in the forefront. There are no guarantees in life. That said, our overall history has been one of success, and there is nothing in CB58 or CB59 that should do anything but enhance that record!

    As to your first point, using such characterizations as "nonsensical" and "chicken little hysteria" are not helpful. I live in the downtown of Columbia and I work in the downtown of Columbia. Not only is it in dire need of help, it is a waste of a great resource. By adding the development proposed in CB 58 and CB 59, we will be adding a tremendous number of new jobs, much needed housing for a broad spectrum of our community, cultural opportunities that just don't exist now, and other amenities too numerous to mention in this post. (This is Mike Davis.)

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  26. Mike, simply stating that something is enforceable does not make it so. I may not be an attorney, but I have consulted with attorneys who assure me that the situation is not as obvious as you and the County Office of Law state it to be. Therefore, the mere fact that attorneys are differing over the interpretation of the Terrapin Run case ought to be giving us a clue as to what we face should GGP, GGO, or GKW (Gosh Knows Who) decides that one or another CEPPA is onerous and wants to backslide on them.

    It also doesn't cover the question of the other obligations assigned to GGP in the GPA that clearly are assigned ONLY to GGP or another entity acting as "community planner".

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  27. @ Mike - if any deductions can be made from history, it's that the Government WILL NOT strictly enforce things. That was the point I was making. It's not a matter of "if" the government will backtrack, but rather a question of "how much will they backtrack".

    I respectfully disagree that Town Center is dead, or dying, or lackluster, or whatever. I have never been in Town Center area and not seen tons of people either at work, or dining out, or at the Mall, or going to the movies. It's flat out a false statement to make. And beyond that, as I have opined on other blogs, people who want Town Center to be made over into a place like Reston, or Arlington, or whatever city fits the bill, why don't YOU move to that place? What about the thousands of Columbians who like Columbia and Town Center JUST THE WAY IT IS? Why do your desires trump theirs? And don't say why do theirs trump yours because everyone in Columbia lives in Columbia for how it is/was when you bought here. Not based on some notion of what it could be. That's why I support the referendum effort. If the majority of Columbians support the plan, so be it. If not, so be it. For the record, I support some redevelopment and/or additional units, but not near the amount that was approved (just don't call me a nimby or "anti-development").

    PZGURU

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  28. The fact is that the debate over what the downtown should look like is over. We, as a community, passed the General Plan Amendment back in early February. And even the referendum petition does not address CB 58, which is the GPA. The provisions of the GPA are what they are.

    Alan, as to your point, I have seen NO substantiated argument about the Terrapin Run case's implications in this matter. And, as I have asked before, if you have a legal opinion to the contrary, I would be happy to discuss it. But, to date, no such opinion has been provided. (Mike Davis)

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  29. @ Mike - that is INCORRECT to state that the community passed the GPA. The Council took action on, with support from a vocal group of people. You can not say that a MAJORITY of Columbians or Howard Countians support the bills. Only the referendum can resolve that question once and for all.
    PZGURU

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  30. Mike,

    If the Terrapin Run decision had no bearing on the Downtown proposals, why did the Council work so hard (in vain, in my opinion) to make the GPA enforceable?

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  31. Dave Bittner,

    See an actual local debate with genuinely moderate moderators would be great. I suggest Alan Klein, Mary Pivar, Barbara Russel, PZGuru on one table/podium and Mike Davis, Dave Yungman, Brian, and Don Reuwer on the other. Ok, I'm kidding about Reuwer. How about Bittner? Oh, that's right, he's the 'moderator'.

    Point is, if you really want to get on the map you have a great oppty! But STOP the one sided puff peices, we're really choking on them and no one is going to beat a path to more of that.

    Signed - anon ;)

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  32. I would better say, no people in significant numbers will beat a path to more of that one-sided stuff we're choking on from existing media.

    You do have a great oppty, though. Do I think you'll improve and move upward? Not really. Truth and discovery are not in your mission statement which was apparently put together by powerful land use attorneys and developers.

    Good for you, you're making buddies with powerful people. But that won't cut mustard with voters and if you talked to more than your circle, you'd realize the short sitedness of your efforts.

    When is the last time you talked with someone who lives in an apartment? Or whose net worth is negative? >70% of the population fits in one of those categories.

    me again, anon. :)

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  33. Alan, there are two elements to the enforceabilty issue that were addressed by the Council. One was making sure that language in CB58 would make the requirements set out in the CEPPAs mandatory, not advisory, as required under the Terrapin Run case. The second was to address the issue of fragmented ownership, a legitimate issue that was raised and addressed by the County Council. I must ask again, Alan, for your legal opinion upon which you seem to base your arguments. Or, are you conceding that your opinion is just that, your opinion. (Mike Davis)

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  34. Mike,

    My conclusion is based on discussions with people who are knowledgeable about law, government, and development. I will leave it to the experts to come forward if they wish to be cited.

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