Los Angeles "Big-Box" Insanity Follow Up Posted by: MichaelW
on Tuesday, August 19, 2008
Getting anything done in the construction and development business is usually a nightmare. Typically, the larger the project, the more hoops to jump through of increasing complexity and expense.
One of the favorite hoops for planning commissions everywhere is to require the builder to pay for road reconstruction or expansion, including the installation of traffic lights and highway on-ramps. Such requirements are not necessarily unreasonable, especially when a large project will introduce huge amounts of traffic that the current infrastructure won't necessarily support. In those case, developers aren't generally concerned because they know that greater infrastructure equals higher selling price and faster sales.
However, every once in awhile the planning commission gets greedy and requires that approval of a new housing development be accompanied by a new bypass (or traffic light, or bridge, etc.) in an area totally unrelated to the project. They get to impose these arbitrary fiats because of the powers granted them by the legislature, and planning commissions are not shy about exercising that power. So, in reality, planning commissions are empowered to pick winners and losers in the real estate development game.
The New York Times editorialized in favor of this ordinance by downplaying the invasion of private property rights, and emphasizing what it contends is the voluntary nature of the ordinance:
The new law does not explicitly require the creation of day-laborer hiring sites — rudimentary, roped-off areas with shade, water, toilets and benches — but that is what the stores would most likely do to comply with the new rule. The ordinance makes the stores responsible for keeping their parking lots safe, clean and orderly for the mingling of contractors, shoppers and day laborers.
The NYT goes on to list all of the wonderful benefits that come from this uncompensated taking, none of which trump private property rights. More importantly, the paper gets the facts tremendously wrong. Not only does the ordinance enact requirements, it explicitly provides for much more than "rudimentary, roped-off areas with shade, water, toilets and benches."
(2) The written Day Laborer operating standards may include, but not be limited to, the following: (i) A suitable area located on site for Day Laborers seeking employment with customers at the Home Improvement Store (Day Laborer Site) that: (a) is easily accessible and viewable to Day Laborers seeking employment, as well as potential employers of these individuals; (b) is located so as not to impede or restrict vehicular or pedestrian access to or from the Home Improvement Store, or throughout the parking lot and adjacent sidewalks; (c) is designed to complement the overall design of structures located on the site and is integrated into the overall layout of the site; (d) is equipped with a minimum level of easily accessible and convenient amenities, such as sources of drinking water, toilet and trash facilities, tables and seating, for use by Day Laborers seeking employment; (e) is covered to provide adequate shelter from the weather; (f) is open during the hours of operation of the Home Improvement Store. (ii) A signage plan, indicating the location of signs at appropriate locations throughout the site directing Day Laborers either seeking employment or individuals seeking to employ Day Laborers to the Day Laborer Site. (iii) A security plan, prepared in consultation with the Los Angeles Police Department.
A bit more than roper-off areas, eh? This is a day laborer employment agency. It doesn't seem that much different than a manual laborer version of the old typing pools, except for the fact that they're being taken care of by someone other than their employer.
The NYT editors are trying to obscure these facts by concentrating on the "may include" portion of the ordinance, while ignoring the "but not be limited to" language, as well as the language declaring that the planning commission requires builders to submit "Day Laborer operating standards" unless certain exemptions apply (see (e)(1) here (pdf)). All the "may's" in the legislation simply give the planning commission absolute discretion, they don't in any way mean that these conditions won't be required. The end result of the ordinance is that whenever the planning commission wants to, provided that a new store falls within the right parameters, it very well can require the accommodations listed above, in addition to whatever else it decides is necessary. And keep in mind that these types of agencies aren't very creative: if its in the ordinance, it better be in the proposal for a conditional use permit.
The draft ordinance includes a definition of "Day Laborer" and "Home Improvement Store," and also amends the definition of Major Development Project to eliminate the need for the existing reference to large retail stores. The draft ordinance requires Day Laborer operating standards as mitigation measures to eliminate adverse impacts likely to be caused by Home Improvement Stores, if the City Planning Commission, or the City Council on appeal, makes certain specified findings.
There should be no illusions about this ordinance placing requirements on new stores. Will every new home improvement store within the definition be impacted? No. In fact Home Depot asked for an amendment (pdf) that would make the impact more equitable in that way. But that only makes the ordinance worse in that the planning commission has the power to impose Day Labor operating standards only on the stores it wants to. That sort of power is bound to create lots of rent-seeking, and its exactly the sort of power that is easily corrupted.