Friday, March 20, 2015

Towards A State Zoning Board, Malloy’s Pig In A Poke

“[Governor Dannel] Malloy has proposed House Bill 6851 now before the Legislature. It would create an 11-member quasi-public agency and give it control of train station projects statewide.

“The agency would be called the Connecticut Transit Corridor Development Authority. Four members would be appointed by the governor and three by other political leaders in the Legislature. The other four members would be state commissioners, whose jobs are bestowed by the governor.

“The new authority would have the power to seize property within half a mile of any train station, enter into contracts with private developers, build what projects it chose and sell bonds to finance them.”

“According to the bill, the authority would "ensure that development near transit stations occurs more quickly and in concert with statewide transportation initiatives."

“The authority would have no obligation to city leaders except to ‘coordinate.’ Mayors could not vote on projects but would be ‘consulted.’"

But for a sharp-eyed legislator, State Rep. Gail Lavielle of Wilton, the bill might have passed through the usual legislative process without much fuss or notice.

Mrs. Lavielle asked DOT Commissioner Jim Redeker whether he was aware of the bill. Nope – never heard of it.

Scholars now tell us that Otto Von Bismark, the Iron Chancellor of Germany, did NOT say, “If you like laws and sausages, you should never watch either one being made.” But Bismark, who knew how to turn a phrase, very easily could have said it. The making of laws in other than a totalitarian state is not a pretty process. In a one-party state like Connecticut, it is fairly easy for the dominant party to stick a pig in a poke and slide it, unobserved, through the sausage making machine.

Governor Dannel Malloy has a genius for opacity and secrecy. But this pig, thanks largely to Mrs. Lavielle, is now out of the poke, squealing about the countryside. House Bill 6851 simply replaces the operations of municipal zoning boards with the equivalent of a state zoning board, and the noise it has made in Stamford, Mr. Malloy’s old stomping grounds when he was Mayor of the city from 1995 to 2009, is raucous and rebellious. As Stamford Mayor, Mr. Malloy was not on good terms with opposition to his authoritarian rule, but he may have met his match in Stamford Zoning Board member Barry Michelson, who is not alone in considering House Bill 6851 an undemocratic land grab and a reckless abridgment of local control.

The intent of the bill is clear on the face of it. “This means,” Mr. Michelson said, “the state doesn't want local folks to control their development as they see fit. They want to tell local folks what they feel is in the best interest of local folks."

And who is “they”? According to the bill, four members of the Board are appointed by Mr. Malloy, three by political leaders in the Democratic dominated General Assembly, and the remaining four are state commissioners who serve at the behest of Mr. Malloy. It is Mr. Malloy who will control the decisions made by the new state zoning board. These decisions, unlike those of a municipal zoning board, need not be affirmed at public hearings. The new zoning process is on auto pilot; all land within a half mile of any train station – on both side of the track – may be seized by a state that does not wish to observe the niceties of eminent domain possession. The bill carves out a corridor one half mile on both sides of a rail station in which municipal zoning laws are inoperative, legislators are deprived of representing the interests of businesses people in their districts, and property is treated as if it belonged to the state which, under the auspices House Bill 6851, rents the property at will to its nominal owners.

Even Bismarck in all his glory would have flinched in the presence of such an arrogant, undemocratic and likely unconstitutional raid on private property. The ownership of property and the disposition of property are married together in such a way as to be indivisible. The person – or in this case the gubernatorial board invested with kingly powers – who may dispose of the property is the true owner of it. And the ownership of property is no little thing under constitutional governance, because it is bound up with “the inalienable” rights mentioned in the Declaration of Independence, “among which are the preservation of life, & liberty, & the pursuit of happiness.”

The Virginia Declaration of Rights, written by George Mason and adopted in 1776, makes plain the vital connection between property rights and happiness: “That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.”

Owing to Mrs. Lavielle’s timely intervention, the bill has been sent back to the legislative shop for much needed repairs.
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