Recently, Nigerians watched on national television as some prominent South East politicians visited the ASPAMDA Market in the former Trade Fair Complex in Lagos over recent demolitions in that vicinity by Lagos State authorities.
The visit spoke of the high-octane nature of an increasingly contentious issue, fraught with allegations of bigotry and recriminations. I watched, too, with bemused skepticism.
I have no sympathy for those whose buildings get demolished because they built out of zone, and in violation of extant building and land codes. That is as it should be.
The author, Oseloka H. Obaze
I say so as a technocrat and erstwhile policymaker and administrator. Laws are made to be respected. That’s what rule of law is all about. Such persons should not complain about the consequences of their greed and stupidity.
Such things happen because the Nigerian society is now so unapologetically transactional and imbued with impunity that some affluent people believe that they can subjugate rules and regulations, violate statutory laws and still buy their way out of attendant reprisals.
Nowhere is such an attitude more rampant than with acquisition of landed property in major cities. Green areas, public parks, golf courses and playgrounds have been carved up and sold to rich speculators.
The same fate has befallen water causeways and even lands earmarked for special public projects. Invariably, the master plans of major cities, including Abuja, have been at risk.
Nevertheless, there comes a point when discretionary authority and powers need to apply in law enforcement matters. That’s what adaptive leaders do. That’s what good governance does.
Buildings should be demolished when they are unfit for habitation and pose clear and present danger to the general public. But buildings should not always be demolished simply because they violate zoning laws. And that’s not to say that zoning laws should be disrespected or impunity not be punished.
Lately, there has been a spate of demolitions in Lagos State. Some suggest such demolitions are punitively targeted. The contention is debatable. Yet, as policy, demolitions cannot be used for the purposes of gerrymandering or disenfranchisement. But that is not the kernel of this writeup.
The point here is that, in a nation with over 75 million housing deficit, of which 17 million of the shortfalls is in Lagos, demolishing already completed buildings is defeatist and not the best policy option or punishment. Such a practice is also not in the best interest of the larger society.
It is myopic, except there are ulterior motives. As a social scientist, I favour without apologies the use of history in present and future decision-making, especially in governance matters. That use of history may be applicable to the ongoing demolitions.
Many years back, in the late 1980s, there was an interesting and celebrated case in New York City that speaks to zoning, building code enforcement, respect for the rule of law and discretionary authority. It also speaks to arbitration and legal adjudication of such matters.
In the New York case, a luxury high-rise building was approved for construction on the Upper East Side of Manhattan. The building’s structure, height, floors, air rights and related codes were all sorted out and the approvals and permits granted.
The high-rise building was mixed commercial and residential. This meant that the ground and lower floors could house high-end stores and the rest of the 30-floor building would house various-sized apartments.
As it happened, the builder made a subjective internal adjustment to accommodate the then fashionable high ceilings in all the residential apartments. This meant additional three feet per floor outside the approved plan.
This did not seem like a big deal but the additional three feet per floor resulted cumulatively to an extra 75 feet being added to the height of the building. Technically, this equated with adding an additional five floors to the original design. The high-rise building was still the stipulated 30 floors, but the height was far in excess of what was statutorily approved.
Consequentially, the additional height of the building violated the air rights of some neighbouring buildings. It was also at variance with the approved design. The owners and occupants of the contiguous buildings filed complaints.
The City’s housing authorities that issue construction permits, investigated and found that the complaints were meritorious. There were deviations from the approved plan and, therefore, violations. What to do?
The high-rise building could not be certified for occupancy. The developers were losing money. The City was also losing money from property taxes via sales of the apartments. Litigation seemed likely, but would be time-consuming and financially costly for both sides.
The parties submitted to arbitration. At mediation, it was determined that the only practical remediation required to meet compliance, would be to knock off the equivalent of five floors in order to bring the building in line with extant codes and the approved building plan.
That solution itself would be also costly for the developer. So, there was need to find common ground; a win-win solution, for the developer, the City authorities and potential investors/owners of the condominium apartments.
While the unapproved and uncertified building stood vacant for several months, arbitration commenced aimed at protecting public and private interests by allowing the law to adapt to some discretionary flexibility, away from rigid enforcement that would be totally punitive.
In a city that badly needed more houses in order to meet growing demands and existing shortfalls, demolition, though an option, would be the final resort, and only if all else failed.
Two issues were critical to agreeing to arbitration. Both the developer and city supervisors were respectively found not to have been willfully negligent of the law.
Nonetheless, the developers took some architectural and structural liberties; and the city building supervisors were lax in their due diligence, and, thus, had failed to catch the additional three-feet-per-floor adjustment at the foundational level, where it could have been stopped or the building plan revised accordingly.
Thus, the city did not meet its remit obligations fully. While the developer met the approved floors specifications, it failed to comply with the overall building height specifications.
Rather than pursue demolition, which would have resulted in obliterating about 50 apartment units of various sizes and configurations, the City decided to allow the building to stand.
For consequences, the developer would allocate three contiguous floors out of the thirty floors to the city, as low income houses, for subsidized rents over a thirty-year period. The developer would still collect rent for those three floors of about thirty units, but not at premium market rental rate.
It was also agreed that a separate entrance would be created for the city-assigned floors, thus segregating that section from the remaining twenty-seven luxury stores and luxury home floors. Contextually, the building would still be designated a luxury high-rise, but with some intrinsic conditionalities.
In essence, the errant developer was sanctioned and punished, as required by law, but not by way of punitive demolition, in which the developer, investors and the City would all be losers. The mutually accepted outcome was the essence of decision making at its best.
The non-exculpatory resolution also served as deterrent for future developers.
As Nigerians continue to witness completed buildings, some costing billions, being demolished in parts of Lagos State especially, as well as in other parts of the federation, I often wonder if the intent of such demolitions are not conceptually punitive.
If so, the rule of law has gone awry. Everyone loses; even as it may seem that the developer or owner incurs the greatest loss.
While I’m unsympathetic to law breakers, the ongoing policy of outright demolition, is without doubt, hare-brained. Lagos state still has a high 17 million housing deficit.
Most buildings targeted for demolition could have been stopped at the foundational level, but for obvious complicity, when approvals are granted by a criminal cartel of local government and state officials, bereft of any moral compass, who take advantage of very greedy and stupid rich persons.
Besides outright demolition, several policy options exist for resolving these matters. There ought to be some compartmentalization of the problems and solutions. State governors have statutory authority to revoke Right of Occupancy on any land in the public interest.
So, rights to a house or structure built on a water causeway, green area, or access road, rather than being demolished could be rendered a state property, with a statutory revocation.
The city, local government or state authorities and the owner of the structure can then negotiate a settlement that might save the property built at great cost from demolition. The property could also be placed on high-luxury property tax bracket. Such decision will avert outright demolition and help in reducing the national housing deficit.
Demolitions might seem the only way out, when the rule of law goes awry. But they are not since demolitions also have unintended binary consequences. They stultify housing development. They also disincentivize and chase investors and developers away.
The greatest danger, however, especially in the case of Lagos state, is the contention that such demolitions target certain ethnicities. That policy choice is dangerous, whether such allegations are myth or reality.
Since various policy options still exist for addressing thorny zoning questions, political leaders must explore every option before embarking on a lineal policy of outright demolition that might backfire or in the long run, hurt public interest.
Obaze is MD/CEO, Selonnes Consult – a policy, governance and management consulting firm in Awka.
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