Thursday, January 23, 2014

#23 / Elected Power

Robert Caro is definitely on to something. 

The premise in our Constitution is that all power comes from "the people," but we the people give it away to our elected officials. Once we elect them, they have the power!

I was reminded of this just the other day, reviewing a new court case called Foothill Community Coalition v. County of Orange. The plaintiff was a community group, challenging a land use decision made by the Orange County Board of Supervisors. The community group was obviously hoping that the court would act as a kind of "honest broker," and that the court would prevent what the community group identified as a real abuse of power. 

In this case, the Board of Supervisors basically ignored its local land use plan to benefit the Roman Catholic Diocese of Orange. The Diocese wanted to build a multi-family development in an area designated in the land use plan for "single family occupancy," but somehow that designation didn't deter the Board in approving the multi-family project. How so? The Board simply changed the designation in the plan, to permit the project to go ahead.

The community group felt that changing the plan to accommodate a politically powerful developer was contrary to law. If not, what good would these plans be, anyway? At the trial court level, those arguments prevailed. The trial court said that the Board of Supervisors couldn't simply change the plan to accommodate the project. The law requires just the opposite. The project needs to be consistent with the adopted plan! If not, what good would these plans be, anyway?

Too bad for the community group! The Fourth Appellate District reversed the trial court, and it is the  decision of the Appellate Court to which I have provided a link. Just listen to what the Appellate Court says about the prerogatives of our elected officials, as they confront land use plans: 

Under the applicable standard of review we consider the Board's factual findings of consistency and defer to them unless "no reasonable person could have reached the same conclusion on the evidence before it." 

This idea of "deference" to elected officials shows the power that goes along with being elected. Members of the Orange County Board of Supervisors qualify as "reasonable persons" (at least the Appellate Court thought so), and so the court really found itself legally unable to overturn what the Board did. 

Once we elect people, they have "our" power, and they pretty much can do whatever they want to. That's not an aberration. It's the basic rule of government. That means, as a practical matter, that "the people" need to have the political ability to throw their elected officials out of office, if they dare disregard the plans and laws that set out the rules that are supposed to protect the people. 

It's politics, not the courts, that can save us from abuse.

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