I’ve followed with some interests efforts of the San Diego City Council, spearheaded by council newbie Todd Gloria, to balance homeowner property rights with community interests. Preservationists and residents of “Historic” neighborhoods like Gloria’s own Hillcrest worry that redevelopment unchecked by regulations to provide for continuity in architectural design can mar the rhythm and harmony of neighborhoods long established. I can understand their concern. A glass and stucco modern apartment building replacing a Craftsman bungalow can certainly alter the unique character of a street. Increasing densities changes the dynamics of a neighborhood, from impacting the use of public spaces to impacting socio-demography; a neighborhood of single family homes becomes a mixed-use hodgepodge of single-resident apartment dwellings. And the essence of community and tradition that brought many to homestead and rejuvenate older neighborhoods disappears.
Yet my ultimate sympathies lie with the property owner and the right of every man and woman to be lord of their own little real estate castle. Too often new regulations are placed on residential real estate to achieve a perceived public good while placing too onerous a cost on individual property owners. If a community wants to be rezoned from an R-3 or such down to R-1 to prevent increased density, or the community wants to change FARs to limit the size of new or remodel construction to keep a “quaint” “village” feel, more power to them. But if these changes means a property owner can no longer build out the property as they were originally entitled to do under the old rules and this results in a reduction of the property’s value, than some consideration to fair-market compensation needs be given to the original owners. Otherwise these regulatory actions constitute, in my mind, an unfair “taking” of personal property by the community.
Let me share yet another tale from the Luna family archives. Some years ago, my wife and I found ourselves living in a two-bedroom (read: one regular bedroom, one broom-closet bedroom), one-bath house with three kids and a fourth on the way. We wanted to remodel the 1911 stucco bungalow to add a second story with additional beds and baths. By the time we calculated costs, it was half again as much money to add on to the old structure, which had sagging walls, a crumbling foundation, zero in the way of insulation or modern windows (you’d walk out of the house, which was maybe 50 degrees inside, wearing sweaters at 9 a.m. to discover it was 85 outside; reverse that at night). The architects said we’d basically have to completely rebuild the foundation and exterior walls to take the stress of a new second floor. Ultimately, we decided to start new, from the ground up. When we took the plans for the new house to the local planning committee, several of the members expressed concern that we were demolishing a house with classic style and historical significance. One of the panel members waxed on about the beveled-glass-diamond-pane windows in the front of the house and other classical adornments—until I informed her the glass was plain pane, the front door basically painted plywood and the other “ornamentation” near balsa-wood add-ons. The house was one of dozens built slap-dash out of stucco, spit and old board in the area for summer rentals in the beach community; only later did they become permanent dwellings. The only thing Craftsman about it was that it took a craftsman to keep it habitable. We eventually got our plan through the board and today live in a larger home that, with better windows, insulation, new pipes and heating system, has a better environmental footprint than did the old clunker.
That’s my beef with many attempts to turn people’s private property into a public good. Just because a house is old doesn’t mean it is a classic worthy of preservation. It is often cheaper and more environmentally sustaining to go new with green products and technologies than trying to turn an early-20th-century pig’s ear into a 21st-century silk home. Moreover, the cost of preservation must be weighed against other social benefits of redevelopment, such as increasing “inner-burban” densities to reverse suburban sprawl, making homes more affordable to middle and working-class homeowners and the like.
Moreover, it’s been my observation that idea of community “preservation” has often been used as a code word for community exclusion: keeping the right sort of people in and the wrong sort out of neighborhoods. It’s also been my observation that, in an interesting irony, it is often wealthier and politically more conservative neighborhoods that are most actively willing to use the heavy hammer of the state in their own backyards to force compliance with their own views of community on fellow property owners while decrying the power of the state in other aspects of life.
But, then, what is life without its little ironies?
Meanwhile, my empathies lie with Todd Gloria and the council in trying to thread the needle between public good and private rights. Balancing the two is one of the greatest challenges in a democracy, where the many can have a propensity to achieve gains at the expense of the few. A person’s home is her castle. If the community wants to demand that castle come with cedar shingles and box windows, the community should provide something in the way of fair compensation to castle dwellers in return.
November 6, 2009 at 10:41 am
As I generally agree with your comments, I’m a little surprised by this. First, I think you’re conflating two issues — “takings” on the one hand, and the public worth of aggressive ‘community preservation’ on the other. On the ‘community preservation’ question, I think you’re on point. Most often that’s about exclusion, distrust, and political pandering. (I’m a fan of Todd’s, but I think Toni Atkins was more courageous on this topic and lost a lot of support because of it.)
But with “takings”, suppose we’re talking about a legitimate public good? How much do we owe property owners around Montgomery Field for not being permitted to build skyscrapers? Most of all, “takings” talk, like eminent domain, feels to me like one of those problems I would feel lucky to have. If it serves the public good to disallow cigarette sales to minors, should we compensate retailers and the tobacco industry for their lost sales? Sometimes life’s just unfair.
November 12, 2009 at 5:03 pm
My concern is when regulatory change amounts to a post facto imposition. In the case of property owners around Montgomery, the field was there as long or longer than most such owners. Sun Road tried to railroad a change to the established status quo, so I shed no tears for them. I agree, however, that public good can transcend property rights if that public good is high enough. Once again, though, the burden is on the state to prove the value of that public good. I think, for example, that the Rehnquist court seriously overreached in Kelo v. City of New London when it found city’s could seize property under eminent domain if for no other reason than they could turn it over to a new owner who would generate more tax revenues. Property–particular homes–are less liquid or plastic a form of capital than are monetary assets. Disallowing cigarette sales in the future does impact the profitability of a cigarette company but does not inhibit the company’s ability to generate replacement profit in other areas. Significantly impacting redevelopment of a property under terms which did not exist at the time of its purchase, however, provides the owner with limited remedy. Again, I’m not saying it shouldn’t been done. I am saying that real recognition of the costs borne by the individual owner needs be accounted for in the calculation of the public good. Excellent comments. Many thanks.
November 25, 2009 at 7:35 am
One of the bloggers on the NPCA site linked to this article (http://www.northparksd.org/849-oldsoul/288-can-something-be-too-historic), so I thought I’d have a read. I’m wondering if you are following the Brooklyn debacle over Bruce Ratner’s project. The Supreme Court has been expanding “public use” since shortly after Berman v Parker. What’s perhaps more interesting is the way the exact language from that case winds up in the various Redevelopment Laws (including California’s).