Tuesday, February 26, 2013
"Hipturbia." It's a term coined by Alex Williams in his February 15, 2013 article for the fashion and style section of the New York Time titled "Creating Hipsturbia." It is a references to the creeping Manhattaninzation of the formerly bohemian borough of Brooklyn, New York creating a more slick cosmopolitan version. The driving force behind this trend is a group of young professional creative singles and couples seeking an alternative to the move to the suburbs like their parents and grandparents. These individuals, die-hard urban dwellers such as myself, are looking for a more palatable alternative to the typical New York suburban enclaves of Westchester and bring with them all the trappings of their urban lifestyle, combining them with suburbia to create a hybrid of sorts. This hybrid lifestyle is the result of a combination of urban tropes like baristas and artisanal boutiques with mom and pop stores of Main Street. So what is the origins of this new flight from urbia to suburbia? Too much affluence. Specifically, the boho enclave of Brooklyn has become too affluent, in some cases pricing said singles and families out of the market. A quick check of rents in the borough of Brooklyn revealed that at-market rents are quite astronomical. For example, the rent for a typical studio apartment can go for about $2,200. Not exactly affordable when you're a struggle artist or a young professional starting out. For a young family, paying $2,000-3,000 a month for rent is tough when you've got child-care expenses. In all fairness, there are affordable housing unit available in the borough. However, most people want to live in the trendier parts of Brooklyn for the cachet. Thus, it sometimes mean having to compete with bankers and lawyers who are willing to pay seven figures for prime real estate. So where does this leave the barista and bass player? Following in the footsteps of their parents and grandparents moving to the suburbs. This migration, still in the nascent stage, comes with a twist. Instead of leaving all the trappings of urban culture behind, they bring it with them. In addition to the corner coffee shop on Main Street Hastings-on-Hudson you now have a vegan bakery or an artisanal home decor shop. Other than more affordable housing what's the attraction. Less sprawl for one. For another, it's all the amenities brought by the boho colonists. It would be interesting to see what the long-time older residents think about their new neighbors. Do they take advantage of the yoga studio on Main Street or not? It's kind of interesting in a way. The very people who swore up and down that they would never, ever become their parents, get a minivan and move to the suburbs, have become their parents. Ironic don't you think? Two questions come to mind, first, what happens when "hipsturbia" becomes too affluent? Second, what does this bode for Downtown Los Angeles? As to the first question, one possibility is the nouveau suburbanites move to greener pastures. As to the second, Downtown Los Angeles is already become a version of Manhattan. The surrounding suburban neighborhoods of Los Feliz, Silverlake, Atwater Village, and now Highland Park have or are becoming hipster enclaves. Move to the San Fernando Valley? Maybe? At least if that happened, the urbanized residents would make the "country" a bit more interesting. The ongoing new construction in the area, aimed at attracting the more affluent, as well as the proposed project for Jordan Downs could have the same effect only to a lesser degree. The current, more moderate income residents would be forced to move further out into suburban area. This could possibly mean bringing all the issues and challenges that come with it. It would also mean that municipalities absorbing the new residents would see less revenue generated in local businesses. In short, there is no easy answer here. Cater to one group at the expense of another or something else. (http://www.nytimes.com/2013/02/17/fashion/creating-hipsturbia-in-the-suburbs-of-new-york.html?smid=fb-nytimes&_r=0)
Monday, February 25, 2013
446 F.2d 83, 2ERC 1851 5th Circuit Court August 4, 1971 A municipal authority may prohibit the construction of new gas stations by means of restrictive zoning ordinances where such regulations have been established in order to protect the aesthetic environment. The proper exercise of police power included not only the interests of public health, safety, morals, and general welfare but also the aesthetic appeal of the community. the City of Mailand, Florida has demonstrated that concentrations of gasoline stations tend to blight the surrounding area because they create traffic problems, fierce competition, and correspondingly increased probability of business failure resulting in abandoned stations. The decision of the court below is reversed. Counsel for the Plaintiffs L.W. Carroll, Jr. Kenneth R. Marchman Counsel for the Defendents James O. Driscoll John R. Brown, Chief Judge: The issue was the by-product of the industrial mobile complex-sought to be built is another gasoline filling station to serve the insatiable demands of a major marketer. What was sought and obtained, in the name of the Fourteenth Amendment and the Due Process Clause. Disclaiming any purpose, power, or prescience in the name of the Constitution to substitute the court for the legislative bodies having primary responsibility, to second guess their judgements on intricate matters of urban life, draw lines which distinguish between what people see and smell, the problem was committed to the Florida courts recognizing judicially, E.B. Elliott Advertising Co. v. Metropolitan Dade County that aesthetics is one of society's protectable interests. The injunction granted to Stone, for the benefit of Shell Oil Company. In 1936, Mr. Stone, the plaintiff's husband, acquired a corner lot in Commercial District C-1 of Maitland, a suburb of Orlando, Florida. The lot has frontage on U.S. Highway 17-92 and on Horatio Avenue. Prior to Mr. Stone's death in 1964 the property had been used as a retail citrus outlet. In 1965 Mrs. Stone sought permission form the Planning and Zoning Commission of Maitland to build the gas station since this was the best and most profitable use of the property. In 1965 and 1966, Mrs. Stone's request were rejected because her property did not meet all prior zoning ordinances and adopted a new comprehensive one which in addition to the distance limitation prescribed a minimum frontage (150 feet) for interior lots and a dual frontage (150 feet) for corner lots. It is this ordinance that was under constitutional attack. In October 1967 Stone filed for a variance with the Zoning Board of Adjustment. The Board denied the request. This litigation followed. I. Res Judicata At the outset, the Fifth Circuit Court disposed of the contention that a state courts disposition of this case barred it from consideration under the doctrine of res judicata or prior election of state court remedies. After the unfavorable decision of the Zoning Board, Mrs. Stone filed a writ of certiorari to the Circuit Court of the Ninth Judicial Circuit of Florida to review her case. Before the court could rule, it required that there be a filed a written order or decision of the Board. Mrs. Stone's counsel twice sought such a document, but none was ever supplied by the Board. Accordingly, the Circuit Court dismissed the petition. Under the doctrine of res judicata a prior judgement on the merits rendered by a state court of competent jurisdiction operates as a bar to subsequent adjudication of the same cause of action, in substance rather than form, between the same parties or their privies in federal court (emphasis in the original)E.B. Elliott Advertising Co. v. Metropolitan Dade County. It was obvious that in no sense did the Circuit Court render judgement on the merits. Rather, it dismissed the case on a procedural flaw, one which Mrs. Stone did all she could to remedy. Since there had been non adjudication on the merits by the Circuit Court, there is no bar for res judicata or election of remedies. II. The Due Process Clause The notion "the due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely has long been discarded. We returned to the original constitutional proposition that the courts did not substitute their social and economic belief for the judgement of legislative bodies, who are elected to pass laws." Ferguson v. Skrupa 1963 It has been a generation since the Supreme Court's due process decision cut down all national efforts towards economic recovery and endangered the role of the judiciary as a co-equal branch of government. But ten years after the court battles of the thirties, the same Court that produced the constitutional anomaly of Adkins v. Children's Hospital (1923), pondered the constitutionality of of a local zoning ordinance and wrote an opinion in a language more reminiscent of Ferguson than Adkins. It "must be said that before the [zoning] ordinance can be declared unconstitutional, that such provisions are clearly arbitrary and unreasonable, having no substantial relation to public health, safety, morals, or general welfare. City of Euclid v. Ambler Realty Co 1926 Upholding the zoning code over claims that it violated the due process and equal protection clauses, the Court illustrated how such ordinance have a clear relationship to a city's effort to protect the health and security of children, to suppress disorder, to extinguish fires, regulate street traffic, prevent fires, regulate street traffic, prevent congestion, reduce the "danger of contagion," facilitate police protection, to lessen the noise level, and to provide a wholesome residential atmosphere. See Gorieb v. Fo, 1927; Nectow v. City of Cambridge, 1928; Washington ex rel. Seattle Trust Co v. Roberge, 1928; Berman c. Parker, 1954. Thus in testing the zoning ordinances before us, the sole question is whether there is a rational relationship between the ordinance and the promotion of some aspect of the City's police power. (the remaining portion was cut off during .pdf conversion) III. The 150 Foot Requirement We first considered the constitutionality of the 150 foot frontage requirement. Stone claims that it is unconstitutional because (i) it discriminates against corner lot owners in that they must have 150 feet on each of the two street sides and in favor of interior lot owners who only 150 feet on one side and (ii) even though (i) demonstrates "a reasonable relations to permissible objectives which promote the public health, safety, morals, and general welfare to satisfy the requirements of the Due Process Clause of the Fourteenth Amendment," Elliot, supra, 425 F.2d at 1151, the requirement violates the Equal Protection Clause because there is no similar footage requirement for other businesses such as drive-in groceries and restaurants which generate as much, if not more, drive-in-drive-through traffic than does a filling station. Contention (i) we can easily deal with. The evidence showed that the heavy tourist trade in the area made trucks, U-hauls and housetrailers common sights and afforded a reasonable basis for concluding that this frontage was necessary. Quite often several of these long vehicles would be parked end-to-end in a station. Combine this with the driving maneuvers created by gas pumps and service islands and we can conclude that the City of Maitland, like many other cities in the vicinity, was justified in finding this long frontage requirement was a necessity to keep the traffic flowing on the access streets. And if this traffic would otherwise accumulate on one access street it would do likewise on two. Thus a reasonable relationship to the constitutionally permissible objective of reducing traffic congestion is present. In fact the District Court did not really hold that the corner lot-interior lot distinction could not be legitimately explained. Rather, the Court based its holding on equal protection grounds espoused by Stone in contention (ii)-that is, other businesses with corner lots created similar traffic problems, but they had no 150 footage requirement for every side facing the street. It was important to recognized exactly what the Equal Protection Clause entailed. If the legislature senses an evil, it may with it. At the same time it is under no compulsion to deal with all other evils that are seen to be equally serious. "The problem of legislative classification is a perennial one, admitting of no doctrinaire definition. Evils in the same field may be of different dimensions and proportions; requiring different remedies. Or so the legislature may think.***Or the legislative mind.***The legislature may select one phase of one field and apply a remedy there, neglecting the others.***The prohibition of the Equal Protection Clause goes no further than the invidious discrimination.* Williamson v. Lee Optical Company of Oklahoma, 1955, 348 U.S. 483, 75 S.Ct.461, 465,99 L.Ed. 563,573. In Mayhue, supra, the restriction that imposed a more stringent burden on those who sold liquor for consumption off the premises than those who sold it for consumption on the premises was invalidated. The supposed state interest was the promotion of tourism and the preservation of order, but all the fact the legislative body could have considered were found to have absolutely no relationship to the forwarding of these aims. So in a sense, the equal protection and due process are not different at in that [3 ELR 20446] they centered around the discovery of a rational relationship between the specific non-universal restriction and additional benefit to a public interest. Yet once that relationship was established, the Equal Protection Clause does not impose upon the state the duty to "correct all similar evils wherever they may exist in the County or none at all." Elliott, supra, 425 F.2d at 1155. Because drive-in restaurants may create traffic problems, the city is not necessarily required to use the same, or even any remedy on the the traffic problem involved. The Court found that the frontage requirements bears a rational relationship to traffic safety a gas station, and we therefore need not consider if a similar law would be equally effective in dealing with the same problems of a drive-in grocery or restaurant. This is a problem for the legislature alone to resolve. Hence §16-6(11) (a) does not fall under either the Due Process or Equal Protection Clause. IV. the 350 Yard Requirement Next addressed was the 350 yard distance requirement of §16-6(11) (b). The District Court ruled this section invalid for two basic reasons. First, there is no inverse distance requirement forbidding the building of churches, schools, hospitals and other places of public assembly within 350 yards of a gas station. Second the Court noted that other places in Maitland had been granted variances to erect gas stations even though their property failed to meet all of the ordinance requirements. the Court found that public safety was the only possible justification for the exercise of the City's police power and relying on the City of Miami v. Woolin, 5 Cir., 1968, 387 F.2d 893, decided that the 350 yard restriction had no rational relationship to the promotion near the presently existing gas station, safety would be the same with or without the ordinance, therefore, it was unconstitutional. If public safety was the sole aim of this law Woolin might have more significance. However, the city had other ends as well as safety in mind when it adopted the ordinance. Since a rational relationship to these goal was clearly present, further examination of the safety correlation was unnecessary. The record without substantial contradiction was impressive from the City's standpoint. A prime motivation in passing a new ordinance was the desire to avoid putting too many gas stations in one area. By observing the experience of other nearby cities, Maitland officials became aware of the dangers brought about by not having spacing restrictions. Absent these requirements, the probability of business failure was high. The result was abandoned stations. Abandoned station sites, which in most cases cannot be used for any other commercial purposes, become magnets for junk cars, and sometimes haven for vermin and rodents. If there are several stations of this type in one area, which there are likely to be in a commercial district, the neighborhood becomes blighted and greatly diminished in aesthetic and commercial appeal. This Court and those in Florida have recognized that the enhancement of the aesthetic appeal of a community is a proper exercise of police power. Elliott supra, City of Miami Beach v. Ocean and Inland Co., 1941, 147 Fla. 480, 3. So. 2d 364; Merrit v. Peters, Fla., 1953 65 So. 2d 861; Sunad, Inc. v. City of Sarasota, Fla., 1960, 122 So. 2d 611. For the value of scenic surroundings to tourists, prospective residents and commercial development cannot be overstated. In an age in which the preservation of the quality of our environment has become a national goal, a concern for aesthetics seems even more urgent. Cf. Zabel v. Tabb supra; Note, 12 B.C.Ind & Com.L.Rev (1971). Abandoned gas stations substantially detract from that environment, and the City was warranted in finding that the spacing requirements tend to reduce that threat. Thus the 350 yard distance requirement is constitutional. We hold that it was for the City Fathers, not the Founding Fathers, to make judgments on what Maitland needed to meet the urban menace of blight. Their judgment is confirmed, and that of the Court below is reversed. Reversed 1. the frontage on 17-92 is 192.20 feet, on Horatio Avenue 134.68 feet 2. At the time of trial the value of the property for use as a service station was $135,000 whereas it value for any other use would not exceed $75,000. 3. At that time pertinent ordinance stated: "Section 1. No gasoline station or filing station or service station shall be erected within three hundred and fifty yards (350') of any church, hospital, school or any other such type of public assembly building used by large numbers of people and within three hundred and fifty (350') yards of an existing filling station or service station or gasoline station. the method of measurement shall apply shall be the air line distance measured from the nearest boundary of the premises upon which there exists such churches, hospitals, schools, or other types of public assembly buildings or filing stations or service stations." Zoning, code of Ordinances, City of Maitland, Florida §6-7 (enacted March 24, 1961). 4. "(11) filling stations. The following regulations shall apply to the location, design, construction, operation, and maintenance of filling stations: (a) A service station lot shall be of adequate width and depth to meet all setback requirements but in no case shall a corner lot have less than one hundred and fifty feet (150') of frontage on each streetside, and an interior lot shall have a minimum width of at least one hundred fifty feet (150'). (b) There shall be a minimum airline distance of three hundred and fifty yards (350), measured from the nearest points of lot boundaries, between a proposed filling station and any existing filling station or between a proposed filling station and any lot occupied by a church, hospital, public or private school, public library, stadium, arena, or other place of public assembly. This provision shall not be construed to place in nonconforming status those filling stations in existence as of the date of enactment of this zoning code." Zoning, code of Ordinance, City of Maitland, Florida §16-6 (enacted May 1967) 5. The District Court found that the "reason for the denial was because of the size of the property and the failure to meet the distance limitations set forth in the ordinances." It was clear that the lot does not meet the 150 foot frontage requirement of Section 16-6 (11) (a), note 4, supra. We were unable to find in the record however exactly how the property fails to meet the distance requirements of Section 16-6 (11) (b). But in view of the arguments successfully advanced and the strong attack on the distance limitation by Stone, it was concluded that the 350 yard standard had likewise not been satisfied. If it was record certain that the failure to comply with each section by itself, (i) the 150 foor requirement and (ii) the 350 yard requirement was the reason for the refusal, then we would have needed only to find either (i) or (ii) constitutional to uphold the decision not to permit the erection of the station and not have needed to consider the constitutionality of the other. Because of this apparent, although most likely unreal, ambiguity, we think it good administration to examine the constitutionality of both (i) and (ii). 6. Section 16010, (page 168.29-30) of the City's Zoning Code provides: "Any person or persons, jointly or severally, aggrieved by any decision of the board of adjustment, or any taxpayer, or any officer, department, board or bureau of the governing body of said municipality, may present to a circuit court a petition for issuance of a writ of certiorari, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the ground of the illegality in the manner and within the time provided by the Florida appellate rules. Upon the presentation of such petition the court my allow a writ of certiorari directed to the board of adjustment review such decision of the board of adjustment and shall prescribe therein the time within which a thereto must made and served up the relator's attorney, which shall not be less than ten days and be extended by the court. The allowance of the writ shall not stay proceedings upon the decision appealed from, but the court may, on application, notice to the board and due cause shown, grant a restraining order. The board of adjustment shall not be required to returned the original papers acted upon it, but shall be sufficient to return certified or sworn copies thereof or of such portions thereof as may be called by such writ. The return shall concisely set forth other facts as may be pertinent and material to show the grounds of the decision appealed and shall be verified. If, upon the hearing, it shall appear to the court that the testimony is necessary for the proper disposition of the matter, it may take evidence or appoint a referee to take such evidence as it may direct and report the same to the court with his findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determination of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review. Costs shall not be allowed against the board unless it shall appear to the court that it acted with gross negligence, or in bad faith, or with malice in making the decision appealed from. All issues in any proceeding under §§ 176.14-176.20, shall have preference over all civil actions and proceedings." 7."There is nothing covert or conflicting in the recent judgments of the Court on social legislation and on legislative repressions of civil rights. The presumption of validity which attach in genreal to legislative acts is frankly reversed in the case of interferences with free speech and free assembly, and for a perfectly cogent reason. Ordinarily, legislation whose basis in economic wisdom is uncertain can be redressed by the process of the ballot box or the pressures of opinion. But when the channels or opinion and of peaceful persuasion are corrupted or clogged, these political correctives can no longer be relied on, and the democratic system is threatened at its most vital point. In that event the Court, by intervening, restores the processes of democratic government; it does disrupt." Robert Jackson, The Struggle for Judicial Supremacy at 284-85 (1940). 8. We believe this approach is the same as Florida's use of the "fairly debatable" doctrine in analyzing this issue. See, e.g., City of Boca Raton v. Tradewind Hills, Inc., Fla-App., 1968 216 So. 2d 460: City of Miami Beach v. Lachman, Fla., 1953, 71 So 2d 148. This term "fairly debatable" in fact first appeared in the City of Euclid case. 9. This was pure theory. There is no evidence that any such building had been built or that sites for them were likely to be selected within the minimum distance. Such restrictions are common in beer-alcohol area and few if any prohibit-if they could under the First Amendment-the building of a church to help men's spirits. 10. In finding this relationship we give little weight to the finding that city had granted five variances to build stations in District C-1, stations which did not meet the distance requirements. These variances were granted under the old, less comprehensive 1961 zoning law, see not 3 supra, well before Mrs. Stone's application arrived on the scene. Under the new ordinance, no variances have been permitted In Woolin, on the contrary, we found the variances to be the rule and not the exception. Practically every gas station was within the prohibited distance of another gas station and nearly one-third were in the prohibited distance of a church, hospital, or school. Furthermore, variances had be granted, almost condoned by the city demonstrated that the city was not really trying to promote public safety by this ordinance and deviation under different ordinance guidelines, means to abide by its ordinance. the factor, therefore, does not move use in the direction of Woolin. 11. For example the City introduced the evidence of 54 abandoned gas stations in the Orlando area alone. 12. They can be, and in Florida have been, a place where crime is furthered. See United States v. Kilgen, 5 Cir., 1970, 431 F.2d 627, on rehearing, 5 Cir., 1971, 445 F.2d 287. And gas stations can produce even more bizarre risks. See Clegg v. Hardware Mutual Casualty Co., 5 Cir., 1959, 265 F.2d 152
Tuesday, February 19, 2013
The Adaptive Reuse Ordinance passed by the Los Angeles City Council in 1999 has been the keystone of development in Downtown Los Angeles. However, after fourteen years, few local developers are making use it, despite the fact that the area is experiencing a second housing boom. There are a few adaptive reuse projects in the works but they are outnumbered by proposed projects for new buildings such as the Chinatown Gateway at Broadway and Cesar Chavez Avenue and a mid-rise tower at Eighth and Hope Streets. Why is this? From a dollars and sense point of view taking an existing building and rehabilitating it can be often more cost effective than new construction. After all, in historic preservation there is a common saying "The greenest building is the one already built." The shift towards new construction stems from an odd market reality where it is simply too expensive to rehabilitate an older building, at least that's what developers are saying. It seems that it's more cost effective to build from scratch. The hard truth is that construction costs are significantly higher and most of the buildings suitable for residential conversion have already undergone the process. The biggest strain on adaptive reuse growth is the success of the law itself. Success can be a heavy weight to bear. Translated, this means the flurry of new residential and commercial space has driven up demand for housing. In the process, long depressed property values have shot up, shrinking the profit for developers. In short, in the past it was easier to justify the high cost of rehabilitating a historic building when it was less expensive to buy. Since the early 2000s land values in the Downtown area have gone up by 400% while rents have only increased by 30%. I know this sounds odd, rents have only gone by 30%. According to Tom Gilmore, the developer of the Old Bank District and widely credited with pioneering adaptive reuse in Downtown, buildings that once cost $3-5 million now go for $20 million. Thus, its more expensive to make use of the ordinance now. Back to the rent to property value dichotomy. Ten years ago, rents in the Historic Core (a wonderful place to wander around), averaged about $1.85 per square foot per month. Now, with residential occupancy at about 98%, rates in the same neighborhood average approximately $2.35 per square foot, with slightly higher numbers in the Financial District and South Park. The current trend in multifamily housing is mainly being driven by institutional investors and private equity funds. This is a change from when housing was funded by local developers such as Gilmore, Izek Shomof and Barry Shy. Larger corporations prefer the less risky new construction approach to adaptive reuse because they less time-consuming to permit and as a result, more expensive to build. The ordinance, pushed by entities such as the Central City Association, was created with the idea that housing developers would take a chance in the dormant Downtown area. It allowed developers to bypass existing codes, as enforced, which would have made it virtually impossible to convert historic buildings. When the law was passed in 1999, Gilmore was the first person to try it out and a trio of buildings followed quickly. However, it should be noted that Ira Yellin opened Grand Central Square apartments ten years before. Even with a more streamlined code rules, adaptive reuse require specialized contractors who are skilled at installing plumbing, electrical, and mechanical systems in older buildings-all of which can lead to sometimes unpleasant surprises during construction. One example is the Brockman Lofts on Seventh Street, opened last year. The conversion process began in 2005 with an initial cost of about $16 million and almost tripled to $40 million. With new construction, there are no surprises, only known elements. So what is the future of the Adaptive Reuse Ordinance? According to Joseph Soleiman, the law will have to change. One suggestion is a change in the law's minimum unit size from an average 750 square feet to smaller. Soleiman contends that smaller residences are more attractive to developers because they command higher rental rates per square feet. This is particularly attractive among the young single people and easier to finance construction. The future of the ordinance may lay in hotel development because of the higher revenue generated. Buildings with difficult layouts for residential use may work better for hotels, according to Gilmore. Also, a number buildings with empty upper floors appear to be another possible target for conversion because they are sandwiched between structures that block natural light to many of the rooms. According to Soleiman, this would be better suited for creative office space. Technically, this would not be governed by the ordinance because it does not constitute a change of room use. Downtown area City Councilman Jose Huizar as proposed a new ordinance similar to adaptive reuse that would facilitate creative office space projects but nothing formal yet. www.ladowntownnews.com/news/with-adaptive-reuse-options-limited-developers-adapt/article_268d0cca-6748-11e2-a8b4-001a4bcf887a.html
Monday, February 18, 2013
Before you roll your eyes and groan over yet another post about parenting, let me tell you that this post isn't what you think. It's actually about the role parenting, fatherhood in particular, play in community building. There is no doubt that a two-parent family is the backbone of a strong community. I could go on to recite all the statistics about how it leads better grades, fewer teen pregnancies, less kids on drugs, et cetera ad infinitum. The Los Angeles Times published an article in the Sunday edition February 18, 2013 about a support group, Project Fatherhood that works with young fathers in the Jordan Downs community. (http://www.latimes.com/news/local/la-me-jordan-downs-20130217,0,544954.story) The goal of this group is to enable young men to become the person most of the young did not have growing up, a good father. Project Fatherhood was part of a support group package offered by the Los Angeles Housing Authority and facilitated by a $50,000 grant from the nonprofit Children's Institue. What began as a loose affiliation has now grown into a regional network of men and their children. Project Fatherhood has become part of the Jordan Downs community. They meet regularly and share their stories and offer support. Sometimes, an intervention is necessary. Like any support group, Project Fatherhood works if the participant wants to work it. This means showing up for regular meetings, taking responsibility for the lives they've created, working on communication skills, learning to make better choices, and so on. What does this have to do with the proposed rehabilitation of Jordan Downs? Stronger families mean stronger communities. When a community is strong, it is empowered to take its fate into its own hands. The proposed rehabilitation of Jordan Downs has the potential to seriously de-stabilize the community through displacement and dispersal. What is presented here is an opportunity for the men, young and older, to take charge of their community by providing a source of stability in the lives of their children. They can teach them to take pride in where they live and who they are. This is something that gentrification cannot do. While the efforts of Project Fatherhood may not stave off the effects of the proposed makeover, it has the ability to instill a stronger sense of community in the current residents and create the type place anyone would consider living in. When you have a strong sense of family it spills over into the way you look at the place you live. A parent's natural inclination is to provide a safe, clean, secure place to live. This is hard to do in a community infested with drug dealers and gangs. The dealers and gang members are symptomatic of the larger issue of economic hardship. Poverty and the subsequent dependency on social welfare programs lead to desperate measures which can result in catastrophic consequences. This why Project Fatherhood is necessary in places like Jordan Downs. It sponsors training classes which enable the participants to learn a skill that gives them a means to support themselves and their families instead of (re)turning to a life of crime. When this occurs, you have begin to have a place that is secure and stable. This, in turn leads to community building. People begin to look around and see what needs fixing and cleaning. Gentrification from within, what an idea. What the future holds for Jordan Downs is unknown but if more groups like Project Fatherhood take hold, the future could look promising.
What wrong with a little dust and dirt? Apparently we've become a society that is so paranoid about a little, insignificant, micro-speck of dirt that we rush to clean and sanitize the surface it lands on. Yet, the irony is when it comes to the built environment, that dust and dirt take on a certain charm. This fact seems to be a bit lost on Adele Yellin, the president of the Ira Yellin development company,who are planning to give the Grand Central Market a makeover. Makeover maybe fine for people who need fine tuning in their appearance but a should be applied judicially to built environments. User of public spaces become accustomed to said spaces being just so. These places become a second home so someone coming in a moving, let's say a lamp, is jarring. Which is the issue confronting the vendors and customers of the Grand Central Market. The Yellin Company wants to "clean the place up" and make it more appealing for the more affluent residents of Downtown. This make sound a bit sacreligious for preservationist but I don't believe that historic places should be encased in amber for all eternity. Places change, that's the nature of the world. How we deal with the change is the real question. Make no mistake, I have no issue with development as long as it's logical. The proposed makeover of Grand Central Market is not unlike the proposals for Jordan Downs. Basically, they both aim to make the places more appealing to the affluent. But does anyone bother to ask if "cleaning the place up" is the best idea? Probably not? That lived in charm exuded by Grand Central Market is what attracts and keeps the regular customers. That and the reasonable prices. Why are developers and planners in a rush to gentrify every single place? What's wrong with authenticity of place? Authenticity of place means presenting a place as it is without pretense. When designers, developers, planners, et cetera try to simulate the lived-in look it often comes off as half hearted at best. After all, if your trying to attract people with a shabby-chic-type aesthetic why not leave well enough alone. I don't mean keep the unhealthy and unsanitary elements but to mess too much with what's already there. Which is why Grand Central Market does not need a radical makeover. The modest changes it's undergoing now: pipes and ceilings being scrubbed; the sawdust removed is fine. No one really wants to breath in dust and mites, especially if they have allergy issues. A bit of paint is fine, as is changing the light bulbs, and wi-fi is a really useful addition. Beyond that why make it "Westside cute." The grit and grim are part of the authenticity of place. It adds to the overall ambience of the place. Yes places change and sometimes change is necessary but how much and how to go about it is the question.
Monday, February 11, 2013
Case Law #1: Paula-Beth Lashley Maher Administrator of the Succession of Morris G. Maher, Plaintiff-Appellant v. The City of New Orleans et al, Defendants-Appellees Date:July 31, 1975 United States Court of Appeals Fifth Circuit Issues posed by the Case: 1) Plaintiff Maher, based on the Fifth assails an ordinance of the City of New Orleans that regulates the preservation and maintenance of buildings in the Vieux Carre section of the city, popularly known as the French Quarter. The Plaintiff asserts that the ordinance inhibits the due process clause because it offers no objective criteria to the Commission charged with its administration. The plaintiff also contends that the ordinance, as applied and under the banner of regulation, constitutes the taking of his property without due compensation. 2) After dealing with the issues at hand, the district court reached the conclusion that the Ordinance was valid, affirm by the fifth circuit. Factual Background 1) By amendment to the Louisiana Constitution in 1936, authority was given to the City of New Orleans to create a commission whose purpose was: a) the preservation of buildings in the Vieux Carre section of New Orleans,deemed in the opinion of the Commission, to have architectural and historical value, and which should be preserved for the benefit of the people of the city and state. b) implement the historical preservation, the City enacted the Vieux Carre Ordinance. This Ordinance established the Vieux Carre Commission and creates a framework of rules governing its powers, duties and operations. Among its other provisions, the Ordinance stipulates that, to perform construction, alterations, or demolition with the the defined boundaries, a permit must be obtained. 2) the controversy centers on the Victorian Cottage located at 818-22 Dumaine Street, adjacent to the Maher residence in the Vieux Carre. Mr. Maher, who owned the property until his death had sought, since 1963 to demolish the cottage and build a seven-story complex on the site. 3) Following preliminary approval of Maher's proposal by the Architectural Committee, the Commission on April 16. 1963, disapproved Maher application for demolition. Almost from the beginning of the application, interested individual neighborhood owners and the organized groups such as the Vieux Carre Property Owners and Associates, Inc; the French Quarter Residents Association; and the Louisiana Council for the Vieux Carre opposed Maher's proposal. 4) Maher undertook a series of attempts to secure approval for his plan from the Commission. After several refusals, the Commission finally issued the permit. Ultimately, construction was prohibited when on August 16, 1966, the City Council for New Orleans, on the basis of an appeals, forbade the grant of a demolition permit. 5) While proceedings before the Commission and City Council were pending, Maher institute a suit in the Civil District for Orleans Parish, Louisiana. Upon the City Council's final refusal to issue a demolition permit, litigation in state court was initiated. Relief was requested was a declaration that the City Council's action was beyond its authority, and hence, null and void. On February 26, 1968, the Civil District Court granted in favor for Maher. 6) The Louisiana Court of Appeal reversed the decision, holding that the City Council's review was proper and, further, that the Ordinance was constitutional both on its face and as applied to Maher's application. On appeal, the Louisiana Supreme Court affirmed the the judgement of the Court of Appeals that the council's action lay within the purview of its authority, but held that the constitutionality of the Ordinance had not been pleaded in the trial court and consequently could not be considered on appeal. 7) In 1971, Maher filed a federal suit under the civil rights act against the City and its agencies, seeking a declaratory judgement that the Ordinance is unconstitutional and an injunction against its enforcement. 8) The district court held that collateral estoppel and res judicata were not barriers to litigation and held the Ordinance was constitutional. Collateral Estoppel and Res Judicata 1) The initial before the fifth circuit is whether the this suit is barred by the principles of res judicata or collateral estoppel, these doctrines eliminate the unnecessary re-litigation. Where applicable, res judicata prohibits re-adjudication of all matters that were, or might have been litigated respecting the same cause of action between two parties. By comparison, collateral estoppel would preclude renewed controversy over an issue already decided even when, a different cause of action is presented. 2) Couched in the determination whether principles of finality governed the disposition of this case is the underlying question of whether the matter is one of federal or state law. Different tests were relevant depending on whether the choice favored one or the other. However, in this circumstance, the outcome is unaffected, since the court has determined that the suit was not barred under either Louisiana or federal finality rules. Louisiana state law, based on the French Code Civile, takes a more narrow perspective on the doctrines of repose than jurisdictions whose rules are based on common law. Res judicata in Louisiana forbids re-litigation only the ultimate judgement rendered, but not extending broadly to matters that "might have been litigated" and not comprehending intermediate facts. Thus, less importance is attached to finality than in common law jurisdictions and all doubts are resolved in favor of re-litigation. 3) The district court and parties proceeded on the assumption that applicable law regrading finality is that of Louisiana. Upon review, if Louisiana law controls, the conclusion of the district that the suit may be maintained does not appear erroneous. 4) Under federal jurisdiction, in a diversity matter, state law principles of collateral estoppel govern, under the rational of Erie Railway Co. v. Tompkins. Unlike a diversity case, this suit presents a federal constitutional question to the federal courts for resolution according to federal law. Despite the fact that questions of state law and issues of local importance play a core role, this case was characterized as a federal matter. In such event, federal notions of repose must serve as the guideposts of analysis. 5) In Exhibitors Poster Exchange, Inc. v National Screen Service Corp the fifth circuit applied federal concepts of finality in an antitrust case arising from certain business practices in Louisiana. The Court disregarded piecemeal results and carefully balanced the interest implicated in finality determinations. 6) The doctrines (collateral estoppel and res judicata) must be used to protect the litigants right to a hearing as well as his adversary and the courts from repetitive litigation. 7) With this admonition in mind, the fifth circuit dismissed the City's claims from this suit. 8) The argument is made that collateral estoppel controls the disposition of this case. However, the constitutional issues posed by Maher were expressly excluded from consideration by the Louisiana Supreme Court. The fifth circuit court concluded that collateral estoppel does not prohibit this suit. 9) The argument that res judicata prevented Maher's presentation to the federal courts required a more subtle analysis of the facts and procedures. For res judicata to interdict an action, the rule is that "judgement 'on the merits' in a previous suit involving the same parties or their privies prohibits a second suit based on the same cause of action." It is not disputed that the state action in this matter was between parties identical with or privy to the parties here, and the judgement in that case was based on the merits and final. The inquiry centers on whether the cause of action set forth in this matter is identical with that in the prior state case. 10) There is no per se rule that the existence of earlier litigation between the same parties, predicated on common fact establishes res judicata. Instead, in this circuit, it had been held. 11) The main test for comparing causes of action is whether or not the primary right and duty, and delict or wrong are the same in each action. 12) This test is easier to formulate than apply, but its application is aided by precedent. In Exhibitors Poster the fifth circuit court tolerated a succession of federal suits with related antitrust claims. Although a single business-policy decision dating from a specific period formed the basis for the suit, res judicata did not bar the action, the Court held because the alleged illegal conduct continued, giving rise to new damage claims. After paying heed to possible collateral estoppel impact of individual issues previously adjudicated, the Court focused exclusively on the definition of "cause of action," held that new causes of action were alleged in the later suit. 13) Since Maher first brought the suit in state court, the similarity of the two causes of action must be assessed by reference to the local Louisiana definition of "cause of action." The Court, in applying Louisiana law in a franchise dispute held that no res judicata barrier to a federal suit for breach of contract following a state action for conversion and business injury,both arising from the sequence. The panel states that the gists of the actions were different. 14) The language in both complaints bear some similarity because of the pleading requirements of Louisiana law. 15) There was overlap in the operative facts in both claims. It was true that Maher's success in either action might have resulted in the same ultimate outcome, the dismantling of the cottage. Nevertheless, the state and federal complaints presented distinct causes of action one based on state law, one based on federal constitutional precepts. The analysis and precedents used to make the two arguments are quite distinct. Somewhat disparate proof was required in determining whether the City Council overstepped its authority under Louisiana law, or whether a taking had occurred contrary to the Fifth Amendment. 16) The Fifth Circuit did not decide whether the same result would have be obtained had the initial suit been brought in the federal court operating under federal rules and policies respecting joinder of claims arising from a common factual basis. All that was decided by the Fifth Circuit Court under the configuration of this case, combined with local Louisiana pleading and practice rules, the disposition of the merits is not foreclosed by res judicata. 17) The very policies favoring an end to litigation pointed to the immediate adjudication of the merits. At that point, no fewer than five tribunals were presented with Maher's claims respecting the elimination of his cottage. The parties spent themselves unsuccessfully to obtain a judicial response. Even if the Court dismissed the action, litigation between the parties would not have necessarily ended. Maher would still have returned to the states courts to pursue his constitutional claim. Thus, in the interest of judicial peace, dismissing the claim on the ground of res judicata would not have been the solution. 18) Furthermore, it appeared that proceedings were instituted against Maher for violating the maintenance clauses of the Vieux Carre Ordinance. As a defense to any prosecution under these provision the question of an unconstitutional taking of Maher's property might have arisen and required judicial attention in another forum. 19) For this reason the Court concluded that res judicata and collateral estoppel and not applicable, and the energy of both parties and the courts would have best served by addressing the merits of Maher's allegations. 20) The Vieux Carre Ordinance is a propert exercise of police power. 21) The Supreme Court placed guidelines to be used for consideration in determining whether the Vieux Carre Ordinance violated due process. A legislative determination is generally associated with the presumption of constitutionality but is also subject to several tests before its validity is established. To be sound, the enactment must be within the perimeter of police power, an authority residing in the law-making body to secure, preserve and promote the general health, welfare, and safety. To sustain a regulatory ordinance as a suitable exercise of police power, it must bear a real and substantial relation to a legitimate state purpose. The means selected must be reasonable and of general application and the law must not infringe on constitutionally protected interests. 22) Maher contended that, although the legislative purpose underlying the preservation of Vieux Carre, maybe unobjectionable, the general program of effectuation as well as the denial of Maher's demolition permit had inadequate standards and arbitrary enforcement that violated due process. Furthermore, he asserted that the law was confiscatory in its operation and constituted a taking that required compensation. 23) A substantial body of precedent existed respecting the appropriate balancing of interests where an ordinance diminished the freedom of an individual owner to dispose of his property in the name of what the lawmaker deemed the greater public benefit. It is generally accepted that legislative bodies are entrusted with the task of defining the public interest and purpose, and enacting laws in the furtherance of the general good. The Supreme Court had made it clear that, while police powers are not unlimited, its boundaries are ample. Drawing on the rich and flexible police power, a legislature has the authority to respond to economic and cultural developments cast in a different mold, and devise new solutions to new problems. In Euclid v. Ambler Realty, the watershed case upholding the right of a municipality to enact a general zoning ordinance, the Supreme Court observed: 24) Problems developed and constantly developed, which requires and continue to require additional restrictions in respect of the use and occupation of private lands in urban communities. Regulations, the wisdom, necessity and validity of which, as applied to existing conditions, are so apparent that they are now uniformly sustained, a century ago, or even half century ago, probably would have been rejected as arbitrary and oppressive. 25) Accordingly, no fixed constraints may be placed on police power in the future. Rather, each case must be evaluated on its own facts and in context to prevailing circumstances. 26) A keystone of due process analysis is the determination that the state purpose to be served is legitimate. Thus, it would be beneficial to detail the substantial support that exists for a legislative determination to preserve historic landmarks and districts. The Ordinance in question has declared its objective: 27) The Vieux Carre shall have for its purpose the preservation of buildings in the Vieux Carre section of the city as in the opinion of the Commission, shall have architectural and historical values and which should be preserved for the benefit of the people of the City and State. 28) Proper state purposes may encompass not only the goal of abating undesirable conditions, of of fostering ends the community deems worthy. In Berman v. Parker the Supreme Court gave a "well-nigh" effect to the legislative determination of community needs and solutions, upheld the purposes of slum clearance programs designed to "develop a more balanced, more attractive community. 29) Nor need the values advanced be solely economic or directed at health and safety. The police power inhering in the lawmaker is more generous, comprehending more subtle and ephemeral societal interests. "The values (that the police power) represents are spiritual as well as physical, aesthetic as well as monetary. It is within the domain of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled." 30) The Fifth Circuit held that in Stone v. City of Maitland zoning ordinances may be sustained under the police power where motivated by a desire to "enhance the aesthetic appeal of a community." The Court noted that with approbation city action to maintain "the value of scenic surroundings" and "the preservation of the quality of our environment." 31) One of the nation's distinctive historic districts is found in New Orleans. Federal, state, and local government have ascertained that it would be beneficial to society to preserve the French Quarter. 32) The federal government has also acknowledge our debt to the past in the National Historic Preservation Act of 1966: Congress finds and declares a) that the spirit and direction are founded upon and reflect in its historic past. b) that the historical and cultural foundations of the Nation should be preserved as a living part of our community life and development in order to give a sense of orientation to the American people... 33) An Advisory Committee on Historic Preservation was established, and a National Register of Historic Places was developed that included the Vieux Carre. 34) The Court was not able to reverse the judgement of the legislature that it is in the public interest to maintain status quo in the Vieux Carre and to closely scrutinize any proposed change in the ambience by private owners. When a legislative determination is questionable, the legislative judgement should be allowed to control. Thus The Court concluded that considering national sentiment for preserving the country's heritage and with particular regard to the context of the unique and characteristic French quarter, the objective of the Vieux Carre Ordinance falls within the perimeter of acceptable police power. 35) Since the issue at hand is legislation designed to effect a legitimate economic and social policy, so as the means chose a matter entrusted to the legislature are reasonable not arbitrary, due process is satisfied. It is not disputed that the Vieux Carre Ordinance furthers the objective of preserving the character of the district in a meaningful fashion. 36) The Ordinance is applied to a well-defined geographic area. Additionally, it established a Commission whose professional qualifications and means of selection are delineated. Within the boundaries of the French Quarter, the Commission is direction to review plans for all proposed demolition or construction and its duties and procedures are specific. After, due consideration the Commission reports its recommendations to the Director of the Department of Safety and Permits, whereupon a permit maybe issued. Provision is made for review by the City Council. 37) Though generally the procedures outlined are not at fault, Maher attacked the schema as a violation of due process because, in his view, it provided inadequate guidance to the Commission for the exercise of its administrative judgement. The City conceded that no official objective standards were promulgated in this regard. Maher suggested that formal standards are mandator to guide the Commission in its resolution of buildings worthy of preservation. 38) To satisfy due process, guideline to aid the commission charges with implementing a public zoning purpose should not be so rigidly drawn as to prejudge the outcome in each case, precluding reasonable administrative discretion. Because of the circumstances pertaining to the Vieux Carre, The Court concluded the Ordinance provided adequate legislative direction to the Commission to enable it to perform its function consonant with the due process clause. 39) While concerns of aesthetic or historical preservation are not precisely quantified, certain measures have been undertaken here to assure that the Commission would not be remiss in acting without standards in an impermissible manner. First, the Louisiana constitution, the Vieux Carre Ordinance, and by interpretation the Supreme Court of Louisiana have specified their expectation for the Vieux Carre, and the values for implementation by the legislation. 40) Further the legislature exercises substantial control over the Commission's decision making in several ways. When possible, the ordinance is exact, for example, in defining the district, defining what alterations in which locations require approval, and particularly regulating items of special interests, such as floodlights, overhanging balconies, or signs. 41) Another method by which the lawmaking body restricted potential for abuse by the Commission was by specifying the composition of the body and its manner of selection. Therefore, the City is assured that the Commission included architects, historians, and business people offering complementary skill, experience, and interests. 42) The elaborate decision-making and appeal process set down in the ordinance created another structural check on any potential of arbitrariness that might exist. Decisions of the Commission may be reviewed ultimately by the City Council. The Court concluded that this procedure was followed. 43) As observed by Maher, it is true that no officially enacted regulations pinpointed each decision by the Commission. Nonetheless, other than evident purpose of the legislation and tight lines of review maintained by the legislature over the operation of the Commission, other rich sources were available to advance a reasoned exercised of the profession and scholarly judgement of the Commission. It may be difficult to capture the regional atmosphere through a set of regulations. However, it is possible that old city plans and historic documents, as well as photographs and contemporary writings may provide an abundant and accurate source of information to guide the Commission. The district court observed, In this case, the meaning of the mandate to preserve the character of the Vieux Carre "takes clear meaning from the observable character of the district to which it applies." 44) Other than contemporary indicia of the nature and appearance of the French Quarter at earlier times, the Commission had the advantage of recent impartial architectural and historical studies of the structures. The Vieux Carre Survey Advisory Committee conducted its analysis and assessed the merit of each structure with respect to several factors. For example, the Maher cottage was deemed worthy of preservation as part of the over-all scene. While the survey was in no way binding on the Commission, it did furnish an independent and objective judgement respecting the edifices in the area. The existence of the survey and other historical source material assisted in anchoring the Commission's discretion to legislative purpose. 45) Thus, the Court concluded that the present zoning ordinance, enacted to promote the social and economic goals of historic district preservation judged of public value, did not delegate unfettered authority to the Vieux Carre Commission. Rather, the legislature provided adequate structure and guidelines to it. 46) Although it primarily concerned a taking, Berman v. Parker is an appropriate analogy to this situation. The question arose whether it was necessary to have legislative guidance for each individual decision in context to a district-wide project to eliminate slums and blighted areas. A redevelop,ent agency decided to raze an entire district, and an individual owner objected to the implementation of the decision with respect to its property, insisting that its building should be allowed to stand because it was safe, sanitary, and profitable. 47) The Supreme Court held that the agency, acting with the needs of the whole community in mind and the advantage of expert consultation was able to implement the mandate with respect to the entire district without the need for specifically demonstrating that in each case, action was necessary to the purpose of legislation. By allowing each affected party to challenge the basis for an agency determination could impede a comprehensive project. It appeared that the Vieux Carre Commission, like the agency in Berman, acted in harmony with the public interest and directive, affording procedural fairness, and utilized expert assistance. 48) By contrast, there is a case in which the Supreme Court did strike down a zoning ordinance because of improper delegation of arbitrary, unreviewable decision making power by an administrative body, Seattle Trust Co. v. Roberge. In this case a local ordinance prohibited the building of a philanthropic institution in a specific area, unless written consent was given by the neighbors. According to the Court, this violated due process because no standards existed to govern consent., and consent could be withheld for any or no reason. An owner was not afforded review or other recourse and was subject to the caprice of its neighbors. 49) Additionally to his argument, that the ordinance is arbitrary for lack of standards, Maher asserted that the ordinance as applied to him was arbitrary because the decision of the City Council to prohibit him from demolishing the Dumaine Street residence was unsupported. The district court, faced with this argument stated, 50) Considerable testimony supported the Council's decision that the cottage had substantial architectural value as part of the Vieux Carre scene as well as some individual architectural merit. 51) (Although) a finding (in Maher's favor) would have been possible,...the facts that the city authorities did not ultimately agree...does not make their decision arbitrary. The district court was persuaded that 52) This case was not an example so much of a lack of standards as a disagreement whether or not the Maher cottage qualified for demolition under the applicable standards. In the view of the whole case record, it the opinion of the Court that since the City Council fairly resolved a difference of opinion, the judgment of the zoning authority should be followed. 53) No reversible error in the district court's conclusion was detected. 54) IV. There is no Taking of the Dumaine Cottage that would have required the payment of compensation. 55) Maher presented a two-pronged basis for his contention that the application of the Vieux Carre Ordinance to the cottage constituted a taking of his property. First, he claimed that unless could build the apartment complex, he could not have pursued the most profitable use for his property. Second, he asserted that the city may not permissibly impose an affirmative maintenance duty on his property without a taking under the power of eminent domain. Each contention was dealt with in turn. 56) To survive a taking, the zoning regulation must as a threshold matter, satisfy the due process requirements that it purpose and means are reasonable. Even if it satisfies the due process requirement, a regulatory ordinance may nonetheless be a taking if it is unduly onerous so that it is confiscatory. The Supreme Court had held that every regulation in some sense a prohibition and that whether a given regulation treads over the line of proper execution and operates as a taking is a matter that is determined under all the circumstances in a specific case. Justice Oliver Holmes remarked: 57) Constitutional rights like others are a matter of degrees. For example, under the police, in its strict sense, a certain limit might be set for a building height without compensation, but to make that limit five feet would require compensation and taking by eminent domain. 58) The Supreme Court has repeatedly made clear that an ordinance within the police power does not become an unconstitutional taking simply because, as a result of its operation, the property does not achieve its maximum economic potential. In Goldblatt v. Hempstead, the ordinance was amended to forbid excavation below the water table. Goldblatt owned property dedicated to quarrying which had created a rather deep lake of several acres. The ordinance applied to Goldblatt substantially reduced the value of his property and its potential use. The Supreme Court upheld the validity of the measure as a reasonable regulation, stating, 59) The ordinance completely prohibited its beneficial use to which the property had previously been devoted. However, this characterization does not tell us whether or not the ordinance was unconstitutional. It is often repeated that every regulation necessarily speaks as a prohibition. If this ordinance was a valid exercise of the town's police powers, the fact that it deprived the property of its most beneficial use did not render it unconstitutional. 60) Using Mugler v. Kansas, the Supreme Court in Goldblatt observed that a properly enacted prohibition against the use of a property for the purposes adverse to the public well being is not controlled by the doctrine of eminent domain. Such regulation "is not, and consistently with the existence and safety of organized society, cannot be burdened with the condition that the State must compensate such individual owners for monetary losses they may sustain..." 61) The Court's attention has been focused on ordinances of other municipalities where the authority to prohibit the destruction of designated buildings is more limited. Refusals to allow demolition could be accompanied with tax credits, permission to transfer "building rights" to other owners, or by other economic incentives or palliative which could prevent demolition conditionally or temporarily. These measures may be considered fairer or wiser by a legislature which considers an historic preservation enactment. The decision here is whether or not an enactment that does not furnish alleviating devices is constitutional. 62) An ordinance forbidding the demolition of certain structures, if it serves a purpose in a reasonable fashion, does not seem on its face constitutionally different from ordinances regulating other elements of land ownership such as: building height, set back, or limitations on use. We concluded that the provision requiring a permit before demolition and the fact that in some cases a permit may not be obtained does not alone make the case for a taking. 63) The ordinance applied to Maher, the denial of the demolition permit and rebuild does nto operate as an example of eminent domain, a taking of Maher's property for government use. Nor did Maher demonstrate to the satisfaction of the district court that a taking had occurred because the ordinance diminished the property value as to leave Maher nothing. Particularly, Maher did not show that the sale of the property was impracticable, commercial rents could not provide a reasonable rate of return, or that the potential use of the property was foreclosed. To the extent that this was the underlying theory of Maher's claims, it failed for lack of proof. 64) Finally, the court considered Maher's objection to that portion or the ordinance requiring reasonable maintenance and repair of buildings in the French Quarter. By imposing an affirmative duty on property owners to prevent and correct defects, Maher claimed that the City Council overstepped permissible bounds of police power by requiring him to make expenditures that effectively taken his property. To accomplish this, Maher invoked eminent domain provisions and demanded just compensation. 65) Test set forth by the Supreme Court again informed the analysis. Once it has been determined that the purpose of of the Vieux Carre legislation was a proper one, upkeep of buildings appear reasonably necessary to accomplish the goals of the ordinance. As noted above.the responsibility for determining the wisdom of a legislation is not tasked to the judiciary. 66) The fact that an owner may incidentally re required to make out-of-pocket expenditures in order to remain in compliance with the ordinance does not per se render the ordinance a taking. In the interest of safety, it would seem that an ordinance might reasonably require buildings to have fire sprinklers or provide emergency exits and light. In matters of health, provisions for plumbing and sewage disposal might be demanded. Compliance could require owners to spend money. Yet, if the purpose was legitimate and means reasonably consistent with the objective, the ordinance could withstand a question of invalidity. 67) The decision of the court is a narrow one regarding the requirement to reasonably maintain the property is constitutional, the court does not conclude that every application of such an ordinance would be a constitutional assault. As the Supreme Court emphasized in Goldblatt, even generally constitutional regulations may become a taking in an isolated application if "unduly oppressive" to a property owner. It may be that, in some set of circumstances, the expense of maintenance under the Ordinance, if exacted by the city, would so unreasonable as to constitute a taking. 68) The burden of proof falls to the party alleging the taking. Based on the evidence presented in this case, the district court found that Maher had not sustained his burden of demonstrating that the upkeep provisions were inordinately burdensome. Conclusion 1) The Vieux Carre Ordinance was enacted to pursue the legitimate goal of preserving the "tout ensemble" of the historic French Quarter. The provisions of the Ordinance appeared to comprise permissible means adapted to secure that objective. Furthermore, the operation of the Vieux Carre Commission satisfied due process standards in that they provided a reasonable legislative and practical guidance to, and control over administrative decision making. 2) Once the district court concluded it was at liberty, under the principles of finality, to reach the merits of Maher's case, the court was not persuaded that the denial of a demolition permit was arbitrary. It did not find that they ordinance, applied to Maher, constituted a taking of the property for which compensation was indicated. These determinations, based on the proof offered there, are not clearly erroneous. 3) An order was entered affirming the judgement of the district court. 4) Affirmed
There have been a series of articles in the Los Angeles Times about the proposed rehabilitation to the Grand Central Market Place. The Grand Central Market Place is located in the historic core of Downtown Los Angeles on Broadway. The market is slated for rehabbing by the Yellin Development Company in an effort to adjust to the area's changing demographics. As part of the project, the market will be cleaned up and provide a greater mix of offerings. In essence, turn the market into a hotel lobby or living room space. Developers claim that the proposed project is in response to the changing demographics of Downtown Los Angeles. Indeed, the population of the area has changed. In 2000, about eighteen percent of the area's residents had four-year college degrees or higher. Now that number has increase by over half to twenty-seven percent. The number of residents who make more than $125,000 has doubled since 2000 and number of those making between $60,000 and $125,000 has grown two-thirds. Also, the racial and ethnic makeup has changed; there are proportionally more Caucasians and Asians then African-Americans and Latinos. Numbers don't lie. Based on recent experience, Downtown Los Angeles is rapidly becoming a West Coast version of Manhattan. Is this a good thing? Maybe? Is The Grand Central Market Place, as it is now, part of the draw to Downtown Los Angeles or would a gentrified version be more palatable? The market has always been geared to the working class. In fact its placement on Broadway is no accident because it located near transit lines, making it easy for people coming home from work or school to do their shopping or pick up a treat. When the building where the market is located first opened in 1917, Homer Laughlin, the owner, set out to build a place where blue-collar neighbors could meet each other and shop. In short a real community orientated place. Mission accomplished. It has also been the place where candidates for office could shake hands with the common man (potential voter). However, the idea of a wine cheese bar and a kitchen classroom a la Sur La Table brings to mind a very different clientele. Instead of the blue-collar worker, a gentrified venue would attract a more upscale consumer. This would mean landlords would need to put in place businesses that would be more at home in more affluent parts of Los Angeles than the lived in-ness of the market place. In turn, it would result in higher rents and drive out long-time vendors and their customers. You have to ask yourself, in the wake of this proposed project and the proposed gentrification of Jordan Downs (see previous post) is the blue-collar worker, a staple of the American mythology becoming a relic confined to the dustbin of history? Is the blue-collar worker being redefined? Why are developers and city officials so anxious to meet the needs of the more affluent instead of focusing on more immediate needs in the surrounding communities? Is it a form of trickle down economics? Who knows?
Jordan Downs is a housing project located in Historic South Central Los Angeles. The complex is made up of about seven hundred units that house low- to moderate-income families. According to article published on February 10, 2013 in the Los Angeles Times (www.latimes.com/news/local/la-me-0210-jordan-downs-20130210,0,621943.story) the Housing Authority of the City of Los Angeles is planning an ambitious $600 million project to transform the aging units into a mixed-use community of about 1,400 apartments and condominiums designed to attract more upscale tenants. The complex would include retail and restaurant establishments and some landscaping. The city hopes that it'll draw more affluent residents who are willing to pay market rate to live in a historically depressed and crime ridden part of Los Angeles. Additionally, housing authorities have assured current residents in good standing that they could remain in their apartments until they find new ones in other parts of the city. All right, let's look at this a bit more carefully. This sounds like some sort of social experiment, "let's put low-income families and individuals together with more affluent residents and see what happens." Does the City Housing Authority think that they will attract doctors, lawyers, entrepreneurs, and so to move to a part of Los Angeles that, in essence, most people do not want be in anytime of the day. I'm not sure city housing authorities have thought this out completely. As if to stage the complex for potential new residents, the housing authority has flooded the area with social service programs, mainly focusing on female single heads of households. A case of a little too late? Where was all of this before? What about the surrounding neighborhood. If I'm a web-entrepreneur considering living in an area known for crime and violence, I'd think twice. In all fairness, the article does state that the violent crime rate has plunged fifty-three percent. That's great for the complex but what about the rest of the area. People cannot stay confined to one area all the time. What will happen to the residents once they all move out? Where will they go? Will they continue to receive all the social services they're getting now? Is this another case of the poor getting pushed out of sight so that there can be more room for the shiny metropolis? Maybe the Housing Authority really needs to work this out a bit more thoroughly before implementing such an ambitious plan.