Crushed to Death by Red Tape

The Antiplanner’s friend, Ann Brower, barely survived last February’s earthquake in Christchurch when a building fell on her bus, killing the driver and seven other passengers as well as four pedestrians. Now it turns out that the building had been known to be unsafe for nearly 30 years. The owner wanted to demolish it but couldn’t because the city considered it a “heritage building” and any work on it had to tramp through mountains of red tape.

Brower testified before a Royal Commission last week, and noted in a radio interview that numerous experts considered the building unsafe.

The city, of course, denies that red tape was a problem even though it can take six months to obtain consent to demolish or modify a building that the city has declared to be historic. Moreover, despite continuing earthquakes in Christchurch, historic preservationists moan that historic buildings are “losing the battle against the bulldozers.”

Brower pointed out that the New Zealand parliament had actually given the city the power to accelerate the process of approving demolitions, but the city considered such authority “draconian” and rarely if ever used it. City officials were obviously hoping that, if they stalled long enough, the owner would repair the building instead of tear it down.

The problem is not red tape but the core notion that the government has the right to tell people what they can do with their property based on some subjective notion of what is “historic.” If people want to protect historic properties, they should privately buy them. The government’s role, if it has one, should be limited to protecting public safety; in this case, instead of delaying demolition, it should have ordered demolition if the owner did not make the building safe by a certain deadline. Even then, the government should take such actions only in extraordinary circumstances, such as when a building poses a clear and present danger to people who are not the owners.

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38 thoughts on “Crushed to Death by Red Tape

  1. the highwayman

    The Autoplanner; The problem is not red tape but the core notion that the government has the right to tell people what they can do with their property based on some subjective notion

    THWM: Henry David Thoreau spoke about the need for towns setting aside land for parks/conservation over 150 years ago.

    Also what’s your property now, won’t be your property forever.

  2. LazyReader

    If the government wanted the building to remain, why didn’t they go to such lengths to keep the building stable. I wanna see what it looked like before collapse. What if for instance the Chrysler building had to be demolished to save people if it was structurally unsound (although it was built with excellent standards). Ultimately the debate consists of whether or not more historic properties should be privately managed so the government doesn’t have to. After all famous mansions like the Breakers are historic and privately owned. In Mount Vernon, some entrepreneurs are reestablishing the making of George Washington whiskey or apple brandy (hard apple cider, 3-6 percent alcohol by volume) to sell and compensate for the costs of upkeep for the estate. If we can turn historic properties into profitable ventures we wont require extra taxpayer dollars.

  3. Jardinero1

    The big problem I have with heritage designations is that they exist to please the aesthetic sense of a very small number of wealthy elites. In the city of Houston, there are a handful of neighborhoods(e.g.The Heights, Woodland Heights, et al) where these elites fight tooth and nail to preserve every building; while on the east end of Houston there are numerous, near identical neighborhoods which are allowed to be modified or razed with nary a peep. The only difference is that the east end is inhabited by poor brown skinned people and the Heights by wealthier, mostly white but a few brown skinned people.

    Heritage designations can also be a cause of sprawl by preventing the best use for given piece of property. The poster boy for this is the city of Austin, which creates heritage designations for everything and prevents a great deal of development in the core, incidentally pushing it outward instead. The biggest absurdity is the ordinance designating any tree over 14 inches caliper a heritage tree. This has put a halt to some development. See here:

    http://www.austincontrarian.com/austincontrarian/2011/10/whats-the-tree-worth.html

    To the highway man, I would suggest that there is nothing analogous between a park which serves one purpose and a building which, like it or not, is entirely utilitarian in purpose. A building which has outlasted the ostensible purpose for its construction should be torn down.

  4. Dan

    The problem is not red tape but the core notion that the government has the right to tell people what they can do with their property based on some subjective notion of what is “historic.” If people want to protect historic properties, they should privately buy them.

    The standard argument is problematic in several ways here in the U.S.; almost always historic districts are chosen democratically and if the public outcry is such, they won’t get designated. Second, designation almost always adds value to a building, so the owner can profit and sell. Third, if the new owner doesn’t like the designation, they don’t have to buy.

    This is not to say that the city government down there couldn’t have helped the owner retrofit for seismic, or streamline paperwork. But since there was public interest in the buildings, it is perfectly OK for the community to ask for these buidings’ preservation. The owner could have sold if they didn’t want to follow the rules.

    Two sides to every story, of course.

    DS

  5. FrancisKing

    Antiplanner wrote:

    “If people want to protect historic properties, they should privately buy them.”

    This was the UK system. So in Bath, for example, people bought up properties like Royal Crescent. The less important buildings were not protected.

    Then it was realised that this policy was wrong. A picture needs a frame, and the much-respected properties needed the less important buildings to provide context.

    Hence the listed building scheme.

    Antiplanner’s policy position is therefore heroic, but ultimately incorrect.

  6. bennett

    I lived in a (overwhelmingly) democratically chosen historic district for several years in western Colorado. The problem there was that historic relevance didn’t account for anything and age was the only level by which something was deemed to be historic. In this community if it is on a foundation and over 50 years old it is “historic.” What resulted what several “historic pieces of shit.” Things like run down old dilapidated sheds were not allowed to be torn down and had to be renovated to an extent where any historical character or relevancy was now unrecognizable, or it had to be moved which is insanely expensive.

    The town I lived in was the closest thing to paradise that I’ve ever seen and the historic designation played a part in that, but the rules regarding the historic designation of structures needs to be amended.

    The historic district passed with overwhelming support of the local community most of which are ski bums and not “wealthy elites.” I’m okay with the idea that there are rules to the game of property ownership, and that some of those rules are based on subjective indicators. The subjective opinions of the people who live in a community matter just as much as many (not all) quantitative data sets. That said, subjective arguments should not be allowed to compromise the structural integrity of a building.

  7. Jardinero1

    I am sorry Dan, “since there was public interest in the buildings, it is perfectly OK for the community to ask for these buidings’ preservation. The owner could have sold if they didn’t want to follow the rules.”, I don’t agree.

    Is each member of the community willing to pledge five dollars towards preservation, I doubt it. Opinions in the community are expressed very cheaply. Preservation laws impose great costs on a single owner. Cities and counties enjoy a power of eminent domain. Maybe the community should buy the building if it wants to preserve it.

    Bennett, “The subjective opinions of the people who live in a community matter…” Why should they matter? Should my opinion matter if I live twenty miles away, never visit the area, have no economic stake in the area but happen to be in the same voting district? What if the subjective opinion of the community is to tear it all down and build anew? Should the opinion matter then?

  8. Dan

    I don’t agree.

    OK, thanks.

    Should my opinion matter if I live twenty miles away, never visit the area, have no economic stake in the area

    Exactly. I say this all the time when people in comments on this site authoritatively state how their ideology should inform cities (that they will never visit) on how they should conduct their affairs.

    DS

  9. Jardinero1

    Dan,

    I am in agreement with you in comment 8. I am glad that Portland and Austin do the crazy things they do; and we here in Houston stay reality based. But of course everything discussed here on this comment thread is purely rhetorical. Back to the issue I address which is more specific. Where do you draw a boundary between the interest of the property owner and that of the community. Where does “the community” begin and end? At the property line, a block away, ten blocks away, a mile, ten miles.

  10. bennett

    Jardinero1 asks: “Should my opinion matter if I live twenty miles away, never visit the area, have no economic stake in the area but happen to be in the same voting district?”

    In the case of the community I mentioned the vote was only cast by residents of the community, not people outside the community. So no if you have are not a stakeholder and don’t live in the community I don’t think you should (or do) get a vote.

    “What if the subjective opinion of the community is to tear it all down and build anew? Should the opinion matter then?”

    Yes it should, but I don’t know of where this has occurred. My point being your argument is coming from hypothetical theory based wonder world. In the real world like minded people often self sort to areas where they impose rules upon themselves to create or preserve an aesthetic/environment/community that they prefer. Sometimes this is done through historic districts, sometimes through zoning, deed restrictions, HOA agreements, etc. If subjectivity didn’t matter we’d probably all be living in highrises, but alas, many prefer not to for reasons beyond the objective.

    Let me be clear, I’m not arguing that the outcomes are always positive (see: racial segregation). I’m arguing that it is appropriate to expect a collective to come together and impose rules on themselves based, in part, on subjective indicators. I can’t think of a community in America where this doesn’t happen.

  11. bennett

    “Where does ‘the community’ begin and end?”

    Again, in the case of the historic district I’m mentioning, it’s the people that live in said district. Those outside did not get a vote. Pretty simple when you think about it. I’m sure this isn’t always the way it’s done, but it should be.

  12. Jardinero1

    Bennett,

    “your argument is coming from hypothetical theory based wonder world.” Trying to preserve structures which serve only an aesthetic but no functional purpose is wonderworld. Expecting someone else to pay to satisfy your sense of aesthetics is wonderworld. I refer to the generic you and your, not you personally Bennett.

    My argument about the majority wanting to tear it down, is actually the default mode, legally. If the community does not expressly forbid the destruction then it allows the destruction. That mode governs nearly the totality of all structures in the world. Heritage preservation ordinances are about aesthetics and preserving those aesthetics for a particular group of people, typically not the property owner or the adjacent neighbors.

  13. Dan

    Where do you draw a boundary between the interest of the property owner and that of the community. Where does “the community” begin and end? At the property line, a block away, ten blocks away, a mile, ten miles.

    First, there are almost always districts for this type of instance. There was for the Kiwis. We aren’t given the particulars, but we can imagine things are screwed up there as they continue to recover and get setbacks from the aftershocks, so we can’t be clear as to the facts. Second, if you are a property owner almost always you have to agree to the rules if you want your building designated. So you know the rules if you own the building. The “community” sets the rules, presumably by democratic process.

    We can see newspaper articles every week about some building under question for designation or some area being discussed. I’m not a hysterical preservationist and a building post-WWII is not ‘historic’ in my view. I lived in a building in Europe that was built before most states were states in the US. But places and nice built environments are important, and last longer than a generation or a lifetime. If you know the rules, you abide by them. In this instance, it is hard to say – maybe it cost too much to fix, or the risk of another 6.0 coming and knocking it down was to much. Don’t know.

    DS

  14. bennett

    “Heritage preservation ordinances are about aesthetics and preserving those aesthetics for a particular group of people, typically not the property owner or the adjacent neighbors.”

    Are you saying that the majority of people that live in historic districts don’t like the historic designation? Because if you are, you’re wrong. This isn’t heavy handed top down edicts, it’s decided democratically. Tyranny of the majority? Possibly, but that’s certainly not the case in the community I mentioned where the support for the designation is overwhelming. I do agree that historic districts are about aesthetics, but if not for the community itself then whom?

  15. Jardinero1

    Hello Bennett,

    My own personal experience with trying to get an historic district designation for a neighborhood in Montrose where I lived; is that we were doing it, not to preserve our own properties, but to obtain a tool we could use to bludgeon property owners whose property usage we didn’t agree with. The properties we were trying preserve were not our own, only those we disagreed with. That was the long and the short of it.

    That makes me sound hypocritical now, given that I am now opposed to such designations; but I learned from the experience that these things are never really about what people say they are about. Thus I am now opposed in principle to what is essentially a taking without compensation.

    If you, me or anyone else want to preserve a property because of its historical or aesthetic value then I say put your money where your mouth is and buy it or if you want to manipulate the political process and acquire via eminent domain, that’s fine as well. But don’t just tell me I can’t destroy or redevelop a property because you can’t bear to live without the view and not compensate me a dime for the sake of your view. Once again, I utilize the generic “you, your, me and my”; I refer to no one in particular.

  16. the highwayman

    Jardinero1 said: Thus I am now opposed in principle to what is essentially a taking without compensation.

    THWM: I agree with you that there is a need for compensation.

  17. Dan

    Thus I am now opposed in principle to what is essentially a taking without compensation.

    Not according to law.

    But don’t just tell me I can’t destroy or redevelop a property because you can’t bear to live without the view and not compensate me a dime for the sake of your view.

    You will be compensated when you sell or calculate the value of your assets, as your property will be more valuable. Pretty good compensation.

    DS

  18. Jardinero1

    Hello Dan,

    You state the facts about the law. I don’t disagree. It is questionable whether heritage designations improve the value of the subject property or that of the adjacent properties. It is certain that they inhibit new development or denser development. Please check the link about the Austin Heritage Tree ordinance in the link I included above.

  19. bennett

    Jardinero1,

    I can see that our anecdotal experiences regarding the issue are very different. I think a comparison to the Antiplanners previous post is worthy here. Like TIF, heritage designations (IMHO) are not bad on their face, but given the wrong motives they can be used for evil.

    p.s. The Austin Heritage Tree has been fodder for a many a antiplanner here in ATX. It’s actually a pretty good example of Austin politics. I like to bash Houston, and although I don’t really stick up for Austin, this is one issue where proud Houstonians can point and laugh at the hippies in Austin.

  20. Dan

    Tree value calculations and preservation engender these types of reactions across the country, not just where the dirty hippies live.

    An arborist goes out, assesses the condition of the tree, and places a standard monetary value on the tree according to standard DBH calculations/condition/height/location and others. Alternatively, I was in on the initial testing of the standard software that does these calculations for air pollution capture, carbon sequestration, stormwater mitigation, cash value, etc. so am very familiar with them and the 15-20x/year the very same arguments come up across the country. Nothing untoward or strange about the valuation.

    Nor is it strange the PC did what it did. If there were a tree ordinance, then there would be clearer remedy. Not too long ago This Old House did a project and had to cut down a tree, and adhered to the ordinance that required them to replace that tree with equivalent smaller trees around the neighborhood to equivalent DBH. Standard. Not a big deal. Surely the PC/CC will direct staff to make an amendment to the ordinance for the next time it happens. Right?

    DS

  21. Jardinero1

    hello Dan,

    Most of the tree ordinances I am familiar with deal with permitted destruction and replacement with off setting trees. Those, I think, are fair ordinances.

    The Austin ordinance does something else, it creates Heritage trees, which are not to be damaged or destroyed except under the most stringently circumscribed circumstances. The Austin ordinance calls any tree above 14 inches caliper a heritage tree. This makes a lot of trees heritage trees and puts the brakes on a great deal of development.

  22. Dan

    The Austin ordinance calls any tree above 14 inches caliper a heritage tree. This makes a lot of trees heritage trees and puts the brakes on a great deal of development.

    Right, J. Which is why I speculated that staff may be directed to amend. Generally you see DBHs over 30″ or what is appropriate for the area-climate. I guess you’d call it argy-bargy down there, but we get similar outcries in Denver about twice a year.

    DS

  23. Sandy Teal

    It is sort of strange how the trees on someone’s property become owned by other people. But it isn’t too big a deal because it is easy to kill trees on your property if you want to get rid of them.

  24. the highwayman

    Sandy Teal said: It isn’t too big a deal because it is easy to kill trees on your property if you want to get rid of them.

    THWM: You’d say the same thing about pets and children.

  25. Sandy Teal

    Thanks Jardinero1. That is interesting.

    So is the loss in value to the property or to the “community”?

    Funny that if people with heritage trees pay more in taxes, and pay fines handed down by a commission if they touch the trees, that some economists think that will increase the number of trees in the long run.

  26. the highwayman

    It’s double edge sword, though those of us in North America are also living on land stolen from Native Americans.

    The Autoplanner; The problem is not red tape but the core notion that the government has the right to tell people what they can do with their property based on some subjective notion of what is “historic.”

    THWM: Again this is where O’Toole is dead wrong and Thoreau was right on.

    Though most of us in this forum are well aware that O’Toole is a fraud.

    We should not trash every thing, just because, it can be trashed.

    Yes there are expenses, though that is part of life.

    You “libertarians” know the price of every thing and the value of nothing!

  27. Jardinero1

    “You ‘libertarians’ know the price of every thing and the value of nothing!”

    Yes, of course. The corollary to that is to know the value of everything and the costs of nothing. Take the Austin “Heritage” Tree Ordinance. It places a very high value on trees without any consideration of the cost of the ordinance. It encourages property owners to cut down trees below 14 inch caliper. It encourages developers to cut everything below 14 inch caliper and anything above 14 inch caliper before it is catalogued. It encourages sprawl development by sending developers to tracts outside of the jurisdiction of the ordinance. It discourages urbab density. It diminishes the faith of the public in law enforcement. It encourages scofflawery.

  28. Dan

    The ordinance in and of itself isn’t the problem, it is the minimum caliper inch that is the problem. Other cities with such ordinances haven’t collapsed and fallen into the sea in a miasma of chaos and disorder.

    DS

  29. Jardinero1

    Hello Dan,

    Just so no one gets the wrong idea, I am for tree preservation. In spite of the constant carping of my neighbors, I keep dead five dead trees standing in my yard, just for the sake of the woodpeckers.

    The minimal standard on trunk size is what makes this ordinance unique. I am unaware of any cities which have such a puny standard for a heritage tree combined with such draconian penalties. That is what makes this ordinance stand out from all others. I am curious, Dan, since you get out more than I do; are there any other cities with such a crazy ordinance?

  30. Sustainer

    Good topic. By the way, for a change of pace, remember this case? (I’d say this is why planners need to be well educated … or at least have the due diligence to ask the SHPO! … so this doesn’t happen): North Oakland Voters Alliance v City of Oakland.

    Moving on, I support the powers cities have been given in the preservation area, but I also have my reservations. I’d site Figarsky v Hist… the city tells owner bldg is unsafe, denies demolition permit based on preservation, and does not provide repair funds. Deterioration was owners own fault, but to me both natural and positive law would promote that he should have been free to demolish it since it was private, unrecognized, non-public-funded property up to that point in time (unless I have a variable wrong in there??? I’m certainly no lawyer). But to me that sounds like an uncompensated regulatory taking: I don’t think it caused undue economic hardship though, probably a sticking point in this case. Isn’t law fun! But that’s how it turned out, and now city staff are obligated to follow these very important legal precedents so they don’t get sued or fined or fired or discredited or mediahilated.

    I definitely follow the NPS though, which designates properties as historic on the NRHP, and will protect the properties, but still allows property owners to maintain 100% control of their properties so long as the owner doesn’t accept public restoration funds. That seems fair to me,although it does result in the loss of many historic places to property owners who cannot or choose not to preserve the property (which is certainly their right).

    Preservation really is important to alot of people though, many of whom are not alive yet to cast their vote. And in fact it’s preservation law that finally stopped urban renewal in the 60s (too late to save our beloved Metropolitan Building in Minneapolis though). There’s so much more we’d know about our ancestors if preservation had been more widespread even just a thousand years ago.

    The big problem I have with preservation is the over-extended timeline. As the timeline expands, properties to save and maintain increase until it creates serious economic problems, and eventually all you have left are ruins from the older sites anyway. Do we preserve ruins? – Beauty comes with age right? Original context and setting? So yes we do. Here’s my simple suggestion (definitely just brainstorming!): Don’t preserve anything for more than 250 years or so (within flexible reason, you wouldn’t want to bulldoze the Washington Monument or Mount Vernon just because its year 250), for economic considerations along the infinite timeline while maintaining significant cultural remembrance. But before bulldozing the remnants of the really old house, take a picture of it so we can remember the structure forever.

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