Charlotte's TOD

Thanks, Chris for inviting me. Good to see such a turnout, you should be proud.

So, why transit oriented development? What is transit oriented development? Well I was gonna say transit oriented development is zoning on steroids, but evidently everyone is on steroids these days, so that really doesn't explain much. So we'll get to that later.

Anyway, I think land-use regulation in general is a great issue to talk about because it cuts so many ways politically without completely offending anyone. I think.

For liberals or progressives land-use plans can be seen as a form of corporate welfare, cases where the big and powerful and the connected stomp on the little guy.

For conservatives, even "pro-business" ones, robust transit oriented development schemes are a form of social engineering, a vaguely European thing, if not downright French.

And for folks like you and me there's property rights involved, and who doesn't love a good property rights fight?

Plus these matters are now coming to head and the contradictions bashing into each other. Charlotte and other cities with grand land-use and economic redevelopment plans are paying close attention to an important case the U.S. Supreme Court just heard. The Kelo case is very important.

The question before the court is simple but fundamental and will provide the national underpinning for land-use planning of all types. That question, as the Court was asked, is:

What protection does the Fifth Amendment's public use requirement provide for individuals whose property is being condemned, not to eliminate slums or blight, but for the sole purpose of "economic development" that will perhaps increase tax revenues and improve the local economy?

The case of Kelo v. City of New London will hopefully decide this question in a way that protects property rights. The Washington-based Institute for Justice has brought Kelo before the Court. Eminent domain cases can be complicated, but for IJ's attorneys Kelo presents a stark choice.

"If jobs and taxes can be a justification for taking someone's home or business, then no property in America is safe because anyone's home can create more jobs if it is replaced by a business and any small business can generate greater taxes if replaced by a bigger one," Dana Berliner, an IJ senior attorney, explains.

"We have to restore the meaning of public use to what everyone once understood the term to mean — something the public would own and use, such as a road. Economic development is not a public use," he adds.

But a Connecticut court found just the opposite in deciding that the City of New London and the New London Development Corporation need only assert that they could make more money from taking land from one set of property owners and leasing it to another set to meet the "public interest" test for eminent domain.

Believe it or not, this is not all that unusual nationwide.

In a report IJ relies on in making its case to the Court, the Institute found that between 1998 and 2002 alone, there were over 10,000 filed or threatened condemnations with private-to-private transfers of property in 41 states. Moreover, the report found that the way states treat eminent domain varies greatly state-to-state. Arkansas, Florida, Illinois, Kentucky, Maine, Montana, South Carolina, and Washington all make clear the condemnation cannot just be used to increase tax revenue or on the basis of vague economic benefits. But Connecticut is joined by Kansas, Maryland, Michigan, Minnesota, New York, and North Dakota in permitting the very thing the other states prohibit.

Lucky for us, North Carolina has been reluctant to permit government power to trump property rights. Recent court cases in the state only show one in which eminent domain was used to further a government redevelopment plan by taking property from one owner and essentially delivering it to another owner for another use. In that case, the Piedmont Triad Airport was expanded over the objections of a property owner who said his property was being condemned just to benefit FedEx.

But because this was a relatively specialized case of an airport expansion — which involves questions of safety and does not happen very often — the decision might not signal a change in how North Carolina courts treat property rights.

Or, it could signal a jumping-off point for local governments and development commissions to make new arguments for broader eminent domain powers. So this issue is in play as they say, it is hot and only going to get hotter.

Plus the way private property is now viewed by many people in America makes clear that property owners have to be prepared to mount a public campaign to use their property as they would like.

Author Steven Greenhut, in writing The Orange County Register, noted that a scheduled referendum in Santa Ana will decide whether developer Michael Harrah will be allowed to build a 37-story office tower on his own property.

Greenhut explains:

No longer do most people subscribe to the view that we can use our property as we please, provided we don't cause direct harm to our neighbors. The new view is that "experts," "stakeholders" and voters have the ultimate right to decide on anything that gets built in their community.

It's a tad frightening, and the destruction of property rights is a metaphor for the destruction of other rights throughout our land, as the concept of natural rights has morphed into a concept of raw power. You can do what you want as long as it is affirmed and tolerated by the majority or the experts or politicians, who know few bounds to their authority.

And Greenhut adds:

Village-type mixed-use developments are nice, as are suburban-style car-dependent developments. My concern isn't with the type of development per se, but whether the development emerged from the market - i.e., individuals acting freely - rather than flowed mainly from a government-imposed central plan.

Granted, every type of development has some level of planning behind it. But even within that framework of general plans and zoning, some types of development are driven mostly by market conditions and others are driven mostly by government preferences.

I think Greenhut get this exactly right, and in the process he pinpoints why transit oriented development, in particular, can be so corrosive to private property rights. It takes decisions about planning and zoning and not only subjects this issue to government preferences, which might involve aesthetics or almost cultural preferences, and grafts on the needs of an ongoing government ENTERPRISE, namely the running of trains and buses.

In effect not in effect it is private property is hijacked in order to support a government-run operation that, by everyone's admission, could not possible remain viable without commanding property owners to do thus and so. What kinds of thus and so?

Well, transit oriented development, or TOD (you always see it referred to as TOD in government documents, "does not conform to TOD" "TOD goals" who IS THIS TOD guy?) absolutely hates big boxes, you know the ones with lotsa parking and tons of cheap, needed stuff inside. TOD hates yards and burbs.

The idea of TOD is to ramp up density. Mid-rise residential developments near train stations are one way to do this, trendy little shops with just a few on-street parking spaces are another, and TOD remains basically indifferent to any increase in traffic congestion that accompanies that increased density. Remember the goal is to force people out of their own cars and onto the government's trains and buses.

Now some folks might agree with this goal, cars are bad, trains are good, all that. Alright, fine we'll save that for another day.

But there are lots of other consequences of TOD that have been overlooked over the years that are becoming too obvious to ignore. Just the other week the New York Times the New York Times, now took note of the effects of Portland's decades long drive to increase density and get people out of their cars in service of its TOD plan. Basically, there are no kids left in that city. Families with children have moved away and Portland is closing down elementary schools. Turns out people LIKE yards and burbs and cars and big boxes.

And yet Portland is a favorite of our current planning director Debra Campbell. Hmmmm.

Now the juicy stuff.

The reason we, here in Mecklenburg, are doing all this building $400 million train lines and striving to rapidly increase density while changing patterns of living and working in the county, and quite likely changing even the very demographics of our county is because the air is so very bad.

Actually, not that the air is so bad, it is more that county officials are afraid that the EPA will SAY the air is bad, and if EPA says the the air is bad, then federal highway money in the millions will be cut off. But there is a dirty little secret about the air in Charlotte.

Let's look at ozone data from the North Carolina Division of Air Quality, from eight Mecklenburg-area monitoring stations for 2004, for the ozone season is roughly May thru September. And for that season there was a big disparity in the number of code red readings vs. code green readings. Code red readings, of course, are the bad ones.

Those are the days you are supposed to not drive, and instead walk out and stand by the side of the road and wait for a bus. Evidently this is good for you. When the air is bad, go outside, and stand by a bus. If you learn nothing tonight, remember that.

Now that big disparity in ozone readings. There were 856 code green readings last year. That's EIGHT HUNDRED FIFTY SIX code green.

Code red? One. Not just one code red DAY. ONE code red reading from ONE of the eight monitoring stations. And this is the official state data.

The dirty little secret about the air in Charlotte is that the air is clean. Or, more precisely, the air is only as dirty as the summer is hot and muggy. We have a hot and muggy summer, we have ozone. Milder summer, no ozone problem. It varies with the weather.

So I guess we don't need a light rail system, or transit oriented development. We need a weather machine. Could we get one for $6 billion, the total rail price tag?

Yet here we are on this higher density, transit oriented development glide path. And here's the nightmare scenario, tying all this stuff together.

We can spin out a perfectly reasonable hypothetical case in which the Kelo Connecticut-style interpretation of eminent domain might unfold in the Charlotte area in the near future:

Local government city/county somebody, acting in service of a Charlotte Area Transit Service plan, moves to use eminent domain to claim several residential parcels or small businesses. Mayor Pat McCrory would call them "crap," I guess.

The goal is to place higher density "transit oriented development" on the site near a planned train station, increase tax revenue, and stimulate the economy. Further, given the passage of Amendment One last November, the locality can very easily show that it can afford to underwrite this "rehab" development using tax increment financing to pay for the project. As the new project would both generate more tax revenue and more jobs than the old uses of the site, as well as further the supposed public interest in greater use of light rail mass transit, the current property owners could be swept away at a modest cost.

Now I do not think that is probable, but it seems certainly possible. And I DO know that the Seattle Monorail Project is right now gobbling up property despite Washington State having much clearer prohibitions on such things than North Carolina does.

That I think is the big risk, even if you do not particularly care that property owners might get walloped by this process. All of Charlotte and Mecklenburg County could be sucked away from what author Joel Kotkin calls the aspirational cities model and toward a failed Euro city model by embracing TOD.

Kotkin's new book, The City: A Global History, contrasts what he calls The Euro-American city Boston, Philly etc. featuring lotsa central planning and big public sectors more or less completely devoid of upward mobility with what he calls aspirational cities like Las Vegas, Charlotte, and Orlando, that have the energy, drive, and growth.

But Kotkin notes that cities like Phoenix, Houston, and Reno are already being drawn towards a status quo-type view of growth and economics that seeks to impose a stagnanting, zero-sum Euro model on these still vibrant American cities. I think Charlotte may be in that group too.

The good news is I do not think local leaders in Charlotte are a bunch of car-hating ideologues (professional staff, not so sure). We are not Asheville or Carrboro. Instead we've got more a tyranny of the student council. What do we do? What other cities do! HOW DO WE DO IT? BETTER! Let's go!! Yaayy!

I think they sincerely do not know any better. But you do. And that makes me hopeful. I think you and the LP can make a difference as you spread the word about the false God of TOD, pointlessness of ozone worries, and the importance of maintaining a strong respect for property rights.

Thanks again and I look forward to your questions.

All rights reserved. Permission to quote granted provided credit is given to Jeff Taylor and the Mecklenburg County LP