Land Use and Business Expansion

You may have wondered why I haven’t written about the Council’s upcoming review of the Carlos Club expansion application. There’s a simple reason: I haven’t made up my mind.

And it’s important that I not make up my mind before the public hearing, because the Council acts in a quasi-judicial role on these kinds of matters. For the duration of the hearing the five of us will be acting as judges, and judges need to base their decisions on the law and the material presented to them “at trial”. Sadly, we don’t get to wear robes while acting in this capacity :).

But there is one clarification of the ongoing public dialog that I want to make before Monday.

Most of the press coverage, and most of the discussions among residents that I’ve seen or heard, have characterized the review as a decision on whether or not the Carlos Club will be allowed to expand. That’s not what the Council will be deciding on Monday.

We will be reviewing a proposed land use change, not a business expansion proposal. It’s easy to confuse the two, because it’s unlikely Fred Duncan, the owner of the Carlos Club, would opt to expand his business without being granted the land use change. But he could. Or he could opt to not expand even if the change is approved. Changing how the land can be used, and actually using it for that new purpose, are two separate and distinct issues.

This may sound like a minor or semantic distinction. But it’s not.

A land use change is the grant of a property right, which can be exercised or enjoyed by any owner of the property. Land use changes aren’t granted to a specific person or business — they “run with the land“. And, like any property right, governmental action to modify them in any way so as to reduce their value is considered a “taking”, requiring compensation of whoever owns the property when the taking occurs. Contrary to popular belief, it’s quite rare for a public agency to take a property right away, or even reduce its value. It’s costly, both financially and politically, and can damage a community’s reputation.

So granting a new property right is a serious matter. That’s even more true when granting it may involve public health and safety.

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