Analysis of an uprising |

Analysis of an uprising

Jim Dorsey

Most of the people of the western states have frequently found themselves in unique battles with developers over the past 30 years. It is only in our western states, with the vast tracts of unincorporated land and powerful county governments, that developers have been able to play towns and counties against each other to win some pretty spectacular development “deals.”

East of the Mississippi and on the West Coast, they need to use more complicated methods. However, one need only look at the coasts of California and Florida to realize; those developers are no less clever.

The Village at Avon is perhaps one of the most prominent of these “spectacular” western deals. Without boring the reader with the fine details (which are often barely comprehensible to begin with), this developer (Traer Creek Developers) managed not only to gain approval to construct a massive development affecting hundreds (thousands?) of acres, but they negotiated a bonding and tax arrangement that boggles the mind.

The attendance and the passion characterizing the Avon Town Council meeting of Oct. 14 was a testimony to a fact that politicians at all levels have understood since the inception of our democracy.

As apathetic and uninformed as many citizens may often be, once you engage their self interests, citizens become amazingly intelligent. And even, occasionally, belligerent as hell. And that’s a wonderful phenomenon!

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The development “process” is pretty well predictable. This case is no different.

The developer wins his deal and lines up his financing. Then, as he and his associates pore over their plans, they start to find opportunities they didn’t notice while engaged in the political negotiating process: “If we change this … if we move this … maybe we can do this … .” All too often, this process is cynically premeditated.

It’s in the nature of developers to endeavor to eke out every dime of revenue from every square foot of the property they own. That’s the American way and theoretically not up for criticism. It’s only the opposition from neighbors and other interested parties that causes any measure of constraint. In other words, political uproar.

Such was the case at ATC on Oct. 14.

True, of those who overcame that very human fear of public speaking, there were a number of parochial concerns. A couple of hoteliers expressed concern about the type and quality of the proposed hotel. Several were irate at the potential eyesore the 15 acres of requested rezoning would incur. More than one parent was unhappy with the school plot revision. The residents of Hurd Lane and Stonebridge Drive contemplated years of interminable hammering and construction disruption of an otherwise peaceful neighborhood.

One motivation of the largely silent majority present seemed to be pure anger at the apparent greed of the developer, enhanced by a certain embarrassment that they (the citizens) hadn’t been more active back in the nineties when our elected officials got put between a rock and a hard place.

More than one speaker apologized for the tardiness of their activism.

Fortunately, the most brazen of the PUD amendment requests was so contemptuous of the citizen’s intelligence that it was voted down 5-0, taking all the related issues with it.

Moving 15 acres of commercial zoning from the original agreed upon site on the valley floor to the higher traffic, easier access, north side of I-70, would result in an increase in asset value to the developer in the neighborhood of three or four times over.

Citizen resentment had been abraded earlier by the developer’s almost royal decree that the school plot promised be moved to “scrap land” in order that the original promised site could be used for additional profit generation. Again, no surprise. This is what developers do.

This time, however, the apparent arrogance of the developer generated a powerful wave of resentment. Key was the fact that no longer was the development essentially exempt from local ordnances. This time, the developer was under the obligation to demonstrate “value” to the town and its citizens for the amendment to be approved.

They didn’t even try. Indeed, the developer’s VP walked out of the ATC meeting when the amendment was proffered for discussion.

A few days later, he publicly expressed surprise at the issues raised and vowed to return and address the concerns of the citizenry to their satisfaction. Hardly a credible argument after this corporate officer (Mr. Shane Bohart) so imprudently (and publicly) complained about having to attend some dozen similar meetings to date. And that’s even assuming he didn’t understand the significance of a room packed to the rafters with concerned citizens or the shouts of outrage as he stalked out.

One citizen was heard to say, quietly, to Mr. Bohart as he left, “You are going to be crucified!” He either didn’t hear or chose to ignore that prophetic comment. And he (or more correctly, his requested amendment), was so crucified!

This part of the “process” is a well worn one. First the developer asks for amendments he knows will be shot down. Then he returns with “reasonable” accommodations addressing the individual concerns of the most voluble citizens. This may occur several times before the developer simply wears down the citizenry. If the citizens remain firm and irate, the developer is building a “record” for a later court battle revolving around “whimsical, capricious, and unreasonable” obstruction of his rights. If he wins only one case in ten, he’s still tens of millions ahead of the game.

Usually the affected town in question, in this case Avon, hasn’t budgeted anywhere near enough to support extended legal battles, or simply doesn’t have the stomach for it and ends up compromising (“giving in”) to avoid bankrupting the town.

With this many zeroes on the table, not even the words of a penitent saint may be trusted. Actions are the only reliable indication of the honest intentions of any businessman with this much money involved. Either this particular businessman is among the most “public relations challenged” developers in history or he didn’t really care about this first round of amendment requests.

The key to dealing with this amendment and all the inevitable future amendments, is not the effect on sales tax revenues. ATC could hire the last six Nobel

Prize laureates in economics to assess the impact and they’d get six different answers. The answer to short-, mid- and long-term revenue impact on the town is simply unknowable.

If nothing else, the “unknowability” of the effect on property values of the huge housing inventory increase and concomitant impact on property and transfer taxes makes the overall question truly beyond the ken of even the most thoughtful.

Pity the poor homeowner who invested six or seven figures in a family home (or a second home, or a retirement home) only to find 2,500 new housing units built across the street a very few years later. Then the developer comes back for a second bite at the apple, requesting another 300 units. Is there any wonder that so many citizens are concerned? Or that the economic benefits to the town from this development is so problematical?

Then one may add the effect of the big box stores on the local merchant class. While there is no doubt that the average citizen benefits mightily from the cost competition they bring, dozens of local merchants experience falling sales of significant and likely permanent dimensions. Another difficulty in determining economic impact of the development is that the town loses the tax revenue from the local merchants while the sales increases from the big box stores are protected until the bond issue is retired.

Centering concerns on which hotel chain gets the lease or what alternative school plot is awarded is a distraction the developer will no doubt welcome. It provides the opportunity to divide and conquer.

The power of the town and its citizens lies in this very economic “unknowability.” To the same degree that the town can’t determine the economic effects of various amendments to the original plan (as vague as it might, or might not, be), neither can the developer. And the onus is upon the developer to demonstrate value to the community.

Therein lies the power of local politics.

If the concerns of the citizenry settle upon this fact, perhaps the real concern of the people might not be obscured by the inevitable “ad particularum”, (i.e., piecemeal), arguments of the developer.

That concern is not the impact of sales tax revenue, or moving a school plot, or the loss of a few acres of open space, although many are justifiably focusing their objections around those issues and others like them. The main issue is far simpler!

The citizens of Avon merely want the developer to keep his word! In letter and spirit! He got a magnificent deal to begin with and the citizens of Avon want what they were promised and what their representatives originally agreed to. And they want the developer’s feet finally set in cement.

And that folks is the real message from the Oct. 14 uprising.

Jim Dorsey of Avon lives across the street from the development.

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