The Risks of Viral Legislating

"No one can say this is a junket." Or so said Sam Mamet, executive director of the Colorado Municipal League, when responding to Denver Post coverage of the group's 87th annual conference in Vail. "This is a quality conference, and people recognize it as such."

Whatever you say, Sam. I suppose it's a question of semantics.

The event did have some appearances of a seminar. But the golfing and parties certainly might give taxpayers the wrong impression, given the financial hardships so many cities and counties are suffering at the moment. It didn’t help that one attendee, Glendale City Council member LuVerne Davenport, admitted to a reporter (who she didn’t know was a reporter) that the city’s six-member contingent was there to “goof off.”

This raises legitimate questions about fiscal responsibility; about whether it's a wise use of public resources in times such as these. But it's the networking and conferring I dread most. If they were really all just "goofing off," we'd have less to fear than if they're actually exchanging ideas and trafficking in policy prescriptions. That’s where the trouble begins.

The biggest problem with such events, in my opinion, isn't the waste of money or time. It's the fact that they can hasten the spread of stupid municipal fads, which seem to move like viruses through the body politic. It's not by chance that you read about something being approved by your city council this year that was approved by Boulder's city council last year. Most politicians are herd animals. When they aren't trolling newspaper headlines, searching for regulatory responses to the stories they read, they're being spoon-fed ideas by special interests and professional planning groups, or borrowing them from "colleagues" in other cities.

One purpose of associations like the Colorado Municipal League is to help bored or unimaginative legislators keep up with the latest governing fads, so they can stay busy and seem relevant. You've heard of viral marketing? There's also such a thing as viral legislating. And it's at these functions that such contagions are unleashed.

Because politicians are always looking for reasons to legislate, for "problems” to solve, for new excuses to "do good," they're highly susceptible to the sort of group-think that goes on at such conferences. One lousy governing idea, if raised in isolation, will most likely get shot down. And if approved, the damage it will do is limited in scope. But lousy ideas more easily germinate, gain credibility and spread when group-think is at work. And the damage can be more widespread, and become really serious, when this sort of viral legislating takes place.

The best reason to steer your local officials away from such events isn't to save tax money; it's to keep them focused on their own backyards, on the governing fundamentals, and to not give them any bright ideas. It's in places like Vail that they catch the activist itch, or Do-Gooders Syndrome, which almost always leads them off on larks. And it's this that explains why even local governments have a tendency over time to grow, spend more, regulate excessively and stray from core functions.

No vaccine as yet exists to guard against the threat of viral legislating, so the best way to protect local officials is quarantine. As constituents, we should insist that they avoid such conferences and seminars. As risky as such behaviors are to them, it’s we taxpayers who ultimately pay the price when they return from such conferences infected with the activist itch.

Aspen's Slippery Slope: Where regulating is the first resort

The Aspen Times reported recently that the number of second homes in nearby Snowmass Village exceeds the number in Aspen. “Between 61 percent and 68 percent of all single-family residences and condominiums in Snowmass Village are second homes,” according to the Times. “A 2007 study by the nonprofit organization showed that 58 percent of residences in Aspen are vacation homes.” The study was commissioned by something called The Sopris Foundation.

That’s interesting though not exactly shocking, since both towns are ski resorts catering to a jet-setting crowd. So what, one may wonder, is the relevance? Why, one may ask, is someone spending money to study the obvious?

The answer is hinted at in the story’s lead: “The percentage of second homes sitting vacant and theoretically wasting energy is higher in Snowmass Village than in Aspen, a new study has determined.” Because they frequently sit empty, second homes evidently are considered wasteful to the area's energy efficiency enforcers. This study is obviously intended to generate a regulatory response, given that this is the People’s Republic of Pitken County. And you can bet the Green Shirts will be demanding something more Draconian than a reminder to second-home owners to lower the thermostat and turn out the light when they blow out of town.

The agenda is made explicit further down in the story. “The finding is significant . . . because the Aspen study determined that second homes use as much energy per square foot per year as fully occupied units, even though second homes are unoccupied an average of 277 days annually," according to The Times. "When information about energy usage learned in the earlier study is applied to Snowmass Village, it indicates that the town's total residential carbon emission output is 57,221 tons per year . . . At least 35,000 tons and possibly at much as 39,000 tons comes from second homes, the study indicated.”

The Sopris Foundation wants to see the information used by the "community stewards" of Snowmass Village -- which has a slightly Orwellian ring to it -- to promote "responsible energy use." It hopes to see “bold leadership” in "regulating second home energy use, including outlawing heated driveways and sidewalks and more restrictions on home sizes."

And sure enough, only a few days later, the regulatory wheels were turning. Only a few voices of reason were heard. The second homeowners of Snowmass are obviously going to be dragged by force into Aspen's orbit. And the implications for property owners and businesses could be severe, as these recent stories suggest.

Here's a story about how Aspen is forcing a couple to rent their property to a county employee, because of old deed restrictions designating it "affordable housing." Here's one about how the city is forcing trash haulers to offer recycling, but prohibiting them from raising rates to cover additional costs: story. Here's another about how an Aspen condo board, taking the prevailing contempt for property rights to its outlandish conclusion, is planning to prohibit smoking even inside private residences. In 2007, city council passed an "emergency ordinance" designating structures built in the 1970s as "historic" -- story -- meaning owners couldn't demolish or make major alterations without a permission slip. After a mild backlash, the city softened the law a bit -- story -- but it's still outrageous. Residents who claim the ordinance causes hardship are required to prove it by bringing their personal tax returns down to City Hall.

And such stories represent just the tip of the iceberg.

Absentee homeowners are an easy target group, since they're only sporadically in town, they don't typically show up at town meetings and they aren't well organized to fight back. And let's face it, if you're wealthy enough to own a second home in Aspen, you're wealthy enough to shrug off most of the extra costs and complications new rules and regulations create -- wealthy enough, too, to hire a lawyer to find loopholes or go to battle for you, if necessary. If you prevent second homeowners from operating their driveway heaters while away -- yes, some Aspenites have driveway heaters -- they can easily afford to hire a plowing company to ensure that they have an ice-free path to their 5,000 square-foot "log cabin."

There are all sorts of workarounds available to the wealthy that aren't available to the rest of us. But the damage being done to personal liberty and property rights along the way is incalculable, and will do far more harm to the less-affluent, living in any communities that follow Aspen's example.

It may be this Second Home Syndrome, along with the ability of part-timers to absorb the punishment, that explains the ability of a few radical year-rounders (most genuine "locals" were priced-out long ago) to turn Aspen into the politically- and ecologically-correct fiefdom it's become. It may even be that year-rounders are exacting a sort of revenge against their absentee neighbors by waging regulatory warfare against them.

But I digress. This isn't a discourse on how group psychology impacts urban policy. Whatever the root causes of Aspen's reflex-regulating, the danger is that other communities, in Colorado and elsewhere, will follow its lead, given that chasing fads is as prevelant in the world of municipal governance as in the world of high fashion. Here, for instance, is a story about how nearby Eagle County is playing follow the leader.

Questions about whether such regulations are reasonable, fair or trample property rights don't get raised much in Aspen, except by the uncool few who will will take a stand on practicality or principle. Here's a profile of one brave soul, Marilyn Marks, who has infuriated the social engineers at City Hall by erecting a few moguls on Aspen's slippery slope. But for the most part, it's been a well-groomed Green run for the petty despots in charge.