December 3, 2011

Killing a Monster

Filed under: Probable Cause — Tags: , — Bill @ 8:06 am

As the people of Idaho are learning, once a monster has been created, it’s not easy to kill it.  It’s even more difficult when the state legislature doesn’t really want it to die.

In a November 27, 2011, article headlined Urban renewal options, the Coeur d’Alene Press reminded its readers that Idaho’s urban renewal agencies are a creation of the Idaho legislature, not the municipalities which host them.  The urban renewal agencies are a separate political subdivision of the state, not a department of their host municipality. 

To get a better understanding of how urban renewal agencies throughout the country have evolved, read “The Nebulous Role of the Modern Redevelopment Authority: Public Purpose, Private Purpose, or Something in Between?” by Kevin M. Dowd, a 2011 study published by Cornell University Department of City and Regional Planning.  This particular article spends a good deal of time discussing a “tool” often used by urban renewal agencies, eminent domain.

The “monster” that has not yet surfaced in Idaho’s urban renewal agencies but is lurking in the shadows was hinted at in these lines from the cited Coeur d’Alene Press article:

The City Council does have authority over its ordinances, but in the case of the urban renewal, changes to the plans could affect the agency’s financial obligations with third parties, since those districts are from where the agency earns its property tax increment financing.

That means with so many third parties and contracts already in place, changing the plans, no matter how slight, could be a legal quagmire, [LCDC attorney] Quade  said.

And here’s the question that may reveal the true character of the “monster”:  Legal quagmire for whom?

If, as the Idaho legislature intended and as the Idaho Supreme Court has held in Boise Redevelopment Agency vs. Yick Kong Corporation (1972) and Urban Renewal Agency of the City of Rexburg  v. Kenneth W. Hart (2009), urban renewal agencies are not the “alter egos” of the municipalities that host them, then who is liable if the City of Coeur d’Alene takes some action that seems to interfere with the LCDC’s performance and execution of those contracts?  Could and would the LCDC sue the City to preserve itself?

Has the Idaho legislature created a monster?  It almost certainly has.

Can the Idaho legislature change the monster into something more benevolent?  It could if it had the political will, but that will seems to be lacking.  Idaho’s cities often support no changes to Idaho’s urban renewal laws, saying that urban renewal is the only economic development tool available to them.  But the longer the legislature waits to address the “monster,”  the more likely it will be that someone will have to exercise what Dan Gookin called a doomsday option.  They could end up destroying the town to save it.



    Comment by justinian — December 3, 2011 @ 10:20 am

  2. I thought I read somewhere that CA closed down some 400+ URD’s?

    Comment by concerned citizen — December 3, 2011 @ 2:16 pm

  3. concerned citizen,

    California governor Jerry Brown has discussed closing down some URDs. This may be what you’ve heard.

    I don’t know if the shut-down has happened yet. Remember, though, that California’s urban renewal laws may be different from Idaho’s, so what the article says about CA may not apply here.

    Comment by Bill — December 3, 2011 @ 2:24 pm

  4. Bill,
    If the town is destroyed, is it saved?

    Comment by Steve Adams — December 3, 2011 @ 3:24 pm

  5. Steve,

    If the people who destroy it see its destruction or near-destruction as necessary to save it as they define saving it, then yes, in their view it is.

    Comment by Bill — December 3, 2011 @ 3:50 pm

  6. So Bill,

    Just to be sure, the same people that have destroyed the town, than (in their view) have saved the the town?

    Comment by Steve Adams — December 3, 2011 @ 10:13 pm

  7. Steve,

    The comment had its questionable origin in 1968 during the Viet Nam war. It supposedly was uttered by a US Army officer after the village of Ben Tre had been hit hard by artillery and air strikes. The VC had taken Ben Tre during Tet and were very heavily dug in in the town. A national journalist (later discredited on another matter) claimed he was told by a US officer that allied commanders determined the only way the village could be “saved” from VC control was to shell it hard. The result was that a great deal of the village was destroyed and a lot of civilians were killed. That the village had been shelled was undeniable, however the destruction of the village was never completely attributable to one side or the other. It is likely some of the destruction was wrought by the VC when they took the village during Tet as by RVN/US forces. Still, the line “We had to destroy the village in order to save it” persists.

    Comment by Bill — December 4, 2011 @ 6:48 am

  8. Though the US Supreme Court’s 2005 5-4 decision in Kelo vs. City of New London, Connecticut had to do with eminent domain, the concurring and dissenting opinions of the various Justices are worth reading.

    Even in writing his concurring opinion, Justice Kennedy made it perfectly clear that there were limits to the rational basis standard (that a taking would be upheld as long as it was rationally related to a conceivable public purpose). In his opinion, Kennedy said:

    The determination that a rational-basis standard of review is appropriate does not, however, alter the fact that transfers intended to confer benefits on particular, favored private entities, and with only incidental or pretextual public benefits, are forbidden by the Public Use Clause. […]

    A court applying rational-basis review under the Public Use Clause should strike down a taking that, by a clear showing, is intended to favor a particular private party, with only incidental or pretextual public benefits, just as a court applying rational-basis review under the Equal Protection Clause must strike down a government classification that is clearly intended to injure a particular class of private parties, with only incidental or pretextual public justifications. […]

    A court confronted with a plausible accusation of impermissible favoritism to private parties should treat the objection as a serious one and review the record to see if it has merit, though with the presumption that the government’s actions were reasonable and intended to serve a public purpose. […]

    There may be private transfers in which the risk of undetected impermissible favoritism of private parties is so acute that a presumption (rebuttable or otherwise) of invalidity is warranted under the Public Use Clause.

    Again, Justice Kennedy’s comments applied to the facts and law in one particular public takings case. However, his comments might be appropriately applied to urban renewal actions when URA commissioners use their position to influence particular actions and projects that will benefit them personally (or friends, relatives, business partners), actions and projects undertaken under the pretext of public benefit where that benefit (if there ever will be any) will be only incidental to the community at large.

    Comment by Bill — December 4, 2011 @ 8:59 am

  9. That was Peter Arnett, IIRC. A known liar, a lousy excuse for a journalist and one of the many reasons those who have any experience with them – shun the media and mock them whenever possible.

    Comment by justinian — December 4, 2011 @ 12:48 pm

  10. I doubt anything will be destroyed. It is my understanding that physicians when contemplating an amputation of one of a person’s limbs take into consideration the impact that not amputating the limb will have on the person’s body. In other words, cut off the limb, accomplish the procedure in a manner which provides for the rest of the person’s body to survive, and move on. That approach should work for LCDC. It might be a complicated procedure, but LCDC has, I believe at last count, two attorneys working for it. They should be able to accomplish the amputation.

    Comment by Joe Six-Pack — December 5, 2011 @ 2:42 pm

  11. A Real Monster

    Today I was standing in the post office waiting to mail Christmas packages. One of the workers there was on the ball and announcing loudly for those with single transactions to move to a particular line. It was the most efficient I, and many others, have ever seen a post office operate. The lady in front of me and my spouse made the statement “She probably does not want to be one of the cuts because of the cutbacks in funding.” I agreed. She then made the statement that it is about time they acted like the worked for us and started talking about all of the benefits that they receive despite their usual poor attitude. I then proceeded to tell her about the article that stated how the employees for the city of CdA that have 10 years or more get paid 3 months off per year. The man standing behind me raised his voice so that everyone could hear and said “You are flat out a liar.” I told him that it was in the paper. again he called me a liar and all I was doing was trying to discredit the city employees. I really thought he was going to hit me at one point. My spouse was in front of me worried for the same. My spouse then said, “I guess you better take it up with the paper since they printed it.”

    Comment by concerned citizen — December 5, 2011 @ 5:33 pm

  12. I did break down the time off was vacation, sick days as well as holidays, all paid of course.

    Comment by concerned citizen — December 5, 2011 @ 5:36 pm

  13. again he called me a liar and all I was doing was trying to discredit the city employees.

    Was his first name Mike? Or Dave?

    Comment by justinian — December 5, 2011 @ 5:44 pm

  14. UR agencies are authorized by the legislature but they are created by the Mayor and City Councils where they exist. Boards of UR agencies are hand picked by the Mayor and approved by city councils. Their money comes from property taxes and the offset of these taxes has to be made up by higher city levy rates. Every taxing entity suffers a shortfall of cash when UR is around. They don’t pay much of city overhead, schools, roads and a host of things paid for by property taxes. They start out with a defined plan but are soon playing whack-a-mole with taxpayer cash. They largely do the business of the mayor and city council where they exist.

    Particularly galling is they can issue long term debt instruments with no vote of the people in violation of article 8 section 3 of the Idaho Constitution

    Comment by paul — December 8, 2011 @ 7:51 pm

  15. Particularly galling is they can issue long term debt instruments with no vote of the people in violation of article 8 section 3 of the Idaho Constitution

    So does Idaho Housing.

    Comment by justinian — December 8, 2011 @ 7:56 pm

  16. Justinian, Isn’t Idaho Housing a private corporation? If so, why would Article 8, Section 3 apply?

    Comment by Susie Snedaker — December 9, 2011 @ 8:21 am

  17. Susie, IHA is a government agency. See

    Comment by Pariah — December 9, 2011 @ 9:58 am

  18. Pariah, Thank you for the clarification.

    Did you read the notice in the Legals (Dec. 6) regarding HUD funds and IHFA?

    Comment by Susie Snedaker — December 9, 2011 @ 7:49 pm

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