When government hits the property owner, it often hits hard. A lifelong investment becomes virtually worthless because of wetland rules. A property that was to be sold to a builder is reduced to trivial value by a zoning change. A house built too high for an aesthetic rule brings on the attorney general’s enforcement team. A secluded household near the waterfront is suddenly faced with a popular plan for a recreational trail—right past the kitchen door. Or, on the nitty-gritty end of the spectrum, too much old stuff has accumulated on the grounds and the town blasts in with a lien for professional carting that exceeds the value of the property. And, as so many property owners are experiencing in recent years, the government announces a plan to condemn the neighborhood for urban redevelopment to substitute hotels and upscale stores for the ordinary houses and businesses.

Where was the property owner when all this was brewing? Not at the town board meetings, not at the city council deliberations, not at the office of the state senator and assembly member, and certainly not at the Congressional office.

What was the property owner doing with spare time while new government land-use rules and plans that would interfere with private property rights were gathering force, when existing powers of government were coming down on other people? With relatively few exceptions, the property owner was not writing letters to the editor, not speaking up at town meetings, not bringing friends and family and making formal statements at hearings on proposed regulations, and not writing letters to the state senator and assembly member, to the governor, to the U. S. Senator and Representative.

Suddenly, the property owner is slammed with the power of government. The reaction is invariably to telephone whatever government office that the afflicted person can bring to mind. Few individuals can even name their State Senator and Assembly Member, or their U.S. Representative and Senators. They have even less idea about who deals with what. For all the property owner knows, zoning could be a federal issue, which is still relatively rare, and wetland rules could be a local town issue, which is also still unusual. This lack of knowledge of the fundamentals of government provides a perfect escape route for the elected official from the aggrieved property owner. A quick form letter, a few solicitous words from a legislative aide, and the constituent is dispatched.

Acting in ignorance, the property owner has not even come close to calling government to account. Several web searches and telephone calls later, followed by an expensive foray into the world of law with formal legal representation, the property owner is often divested of substantial funds and has still suffered the government’s infringement on his private property rights.

Imagine the difference in such an immediate situation, if, from the first inkling of information, the property owner had understood exactly which government agency and which particular representative body were responsible for the infringement. But, more importantly and in a far more practical sense, imagine the difference in governance if the property owner had been participating in government at the local, state and federal level on a routine basis—if a significant number of the property owners in the area had stood up in the local town to prevent zoning, if they were constantly observing and communicating with their state representatives to modify the wetland laws, if they were out and fighting against trails through private property long before their own land were threatened…

To get legislation enacted, to get agencies cleaned up, to end the injustice and arbitrariness of governmental control over private property, a good number of property owners need to team up, whether the problem is town, village, city, county, state, regional, or federal government.

The property owner should form a relationship with his or her representative. The most effective citizen is the one who has worked long and hard to participate in government, and is well known to the elected representative. Participation can develop into mutual respect. Elected representation is considered the hallmark of our form of government, but the elections are only the beginning of good citizenship. When many knowledgeable, principled citizens seriously participate in government, then we can hope to see the restoration of our lost property rights.

Many times, people do nothing because they cannot have everything. As a result, they indirectly contribute to the erosion of our fundamental rights. Considering that the Messianic Age of Private Property Rights does not appear to be rising over the horizon, property owners would do well to look to reform opportunities that would reduce the infringements on their property rights. Goals to level the playing field, while property owners hunker down to defend their rights, are in order. But, no matter how modest our goals, they should have two essential characteristics:

• To reduce the infringements on private property rights and keep land in private ownership.
• To hold to the vision to restore private property rights to their full extent as guaranteed in the United States Constitution and to halt and reduce the vast accumulation of land in government ownership

1. Enact Statewide Property Owner Protections under Zoning Law
   Example: Property owners who have submitted applications for permit approval should have vested rights in the zoning classifications in effect on the date of submission of the application. The rules should not change mid-stream while a permit moratorium is in effect.
2. Enact Impact Notification into the Zoning Law
   Zoning impact notification should be modeled after tax assessment increase notification, where the precise impact on the property owner is spelled out in a personal mailing.
3. Confine Wetland Restrictions to Locations on Officially Promulgated Wetland Maps
   State agencies use the existence of real or questionable wetlands, including sizes below the statutory trigger acreage, to assert jurisdiction over private property. If an environmentally significant wetland is smaller than the statutory trigger, it should be exempt if it does not appear on official maps.
4. Mandate Official Notification about Potentially Jurisdictional Agencies
   A single state agency should coordinate a system to determine where every state, regional, and federal regulatory agency, from the Army Corps of Engineers to the Department of Environmental Conservation, has geographical jurisdiction, and create a method of immediate notification to building permit applicants.
5. Establish Uniform Definitions under All Regulatory Agencies Created by State Law
   Example: The definition of “height” of a building is the average height of the building from the grade plane to the peak of the roof under the New York State Building Code, but, by Adirondack Park Agency rule, is the distance from the lowest point on the grade to the highest point on the roof.
6. Eliminate Redundant Jurisdiction by Agencies within New York State
   Examples: Remove the jurisdiction over septic systems in upstate New York from the New York City Department of Environmental Protection and from the regional Adirondack Park Agency, where the local/state health or building department has jurisdiction.
7. Establish a Property Rights Ombudsman under the Eminent Domain Law.
   An official Property Rights or Eminent Domain Ombudsman in the State Department of Transportation would provide legal information and act as an advocate on behalf of the property owner when faced with any type of eminent domain.
8. Establish a Statute of Limitations for Violations of the Adirondack Park Agency Law.
   Statutes of Limitations are in existence for nearly every crime except murder. The uncertainty of living under the now thirty-plus year old and very complicated Adirondack Park Agency Act should be reduced by enacting a blanket statute of limitations for violations.
9. Provide for Compensation to Owners whose Property is Rendered Unusable by State Land-use Regulation.
   Examples: In the Long Island Pine Barrens and the Adirondack region, and under state wetland regulations, a pre-existing parcel or lot in a pre-existing subdivision is sometimes prevented from being used for any building purpose. Compensation should be provided without litigation, through a simple appeal process, where the property owner would either be allowed to build on the property or the agency prohibiting the construction would certify that the property is deemed unbuildable and subject to compensation.
10. Provide for State or Local Reimbursement for Professional Fees to Archeological, Historical, and Wetland Consultants required by a Permitting Agency.
    The cost of consultants for investigations dictated, seemingly randomly, by permitting agencies can drive the cost of a project through the roof; yet the benefit of the expenditure is to the public at large, not to the permit applicant.

Back to:

© 2007 Property Rights Foundation of America, Inc.
All rights reserved. This material may not be broadcast, published, rewritten or redistributed without written permission.