from Proceedings of the First Annual N. Y. Conf. on Private Property Rights (PRFA, 1995)

An Overview of National Zoning and Property Rights
R. J. Smith
Senior Environmental Scholar, Competitive Enterprise Institute

I’m really delighted that Carol invited me here. One of the things she wanted me to talk about was an issue we had gotten into in Washington, DC, last December. The Republican National Committee has started an organization called the National Policy Forum that’s going around the country listening to the people and seeing the problems that people are having with government. One of the first policy forums they had was on private property rights and what is happening to the rights of property owners. That forum was directed by former Senator Wallop and by Senator Craig; at that session I talked a little bit about how we got into the situation that we’re in now with so much land-use control and how this came to be so prominent in the last few years.

For most of this century there has been very little conflict between conservation and private lands. The conservation movement in this country was started around the turn of the century by organizations like the National Audubon Society and some of the first land trusts in the nation, like the Trustees of Reservations, formed in Massachusetts in 1891. Basically, they all believed in private property, in that they used private property. When there were no laws to protect wildlife, to protect habitat, you had concerned citizens who simply went out and took pride in doing good. The Audubon Society found the last refuges, the last places where the plume birds, the egrets and herons and roseate spoonbills nested. In order to protect them from the depredations of the feather trade for women’s bonnets and hats at that time, the Audubon Society bought these areas and set them aside as private wildlife refuges and then hired their own private game wardens to protect these areas. As a matter of fact, the first wildlife warden in America to be killed in the line of duty was Guy Bradley, a private warden for the National Audubon Society.

For much of this century, this was the whole approach of the conservation movement. As Roger Pilon mentioned in his talk, the old-fashioned way to protect the environment was you went out and bought it, instead of forcing others to do as you wanted them to do.

But this began to change in the late sixties with the rise of the modern environmental movement, which, as most of you know, has a very different view of man and nature than the old conservation movement.

The old conservation movement believed that man and nature could live in harmony, that man and nature were part of the same nexus, and the trick was really to get the incentives right. If the government subsidized farmers to drain wetlands to increase crop production, well, of course, wetlands would disappear.

This didn’t mean that farming for profit was immoral or had to be replaced. It simply meant that government was creating the wrong incentives and the first thing we needed to do with government, was that government had to have its own Hippocratic oath and “do no harm” itself, and stop subsidizing environmentally destructive behavior.

But the new environmental movement, which more or less was a movement that came out of the left of the late Sixties, viewed man as being alien to nature. Man was really not part of nature, and the trick was really to find ways to control man, to get man out of the picture, to reduce man’s influence. This environmental movement also was not a movement that was sympathetic to private property, to free markets or free enterprise, and particularly it was that element that was very worried about private property that led to the situation we’re in now.

So I think you can fairly say that the modern attack on property rights began in the late 1960’s with the environmentalist drive for national land-use control.

Some of you may remember that this focused around the efforts in the late 60’s to pass the Jackson-Udall national land-use control bill, which was even supported by President Nixon. In fact, Nixon went even further. The White House introduced a bill that was even more stringent in its control on property rights than did Jackson and Udall.

Henry Jackson from Washington State had also been the father of NEPA(1), which was passed in 1969. NEPA created both the Environmental Protection Agency and the President’s Council on Environmental Quality in 1970.

Nixon began a program after he came in of having an environmental message each year, which he delivered to Congress and which was the introduction to the CEQ’s annual reports. In Nixon’s presidential environmental message he said right at that time that the key thing we needed to do in the environmental arena was to stop abusing the land. This was the rhetoric that everyone was using, that every time someone would build a home, this constituted abusing the land.

Russell Train, who was the first head of CEQ, stressed continuously that land-use was the last area of America that was not controlled by the federal government, and that we needed to step in in a big way.

One of the first senior staff hired by the Council on Environmental Quality was a young Yale law school graduate by the name of Bill Reilly. You may remember that a later president, George Bush, made him the head of the Environmental Protection Agency. Bill Reilly’s first job in Washington was that he was given the task of creating the intellectual framework for national land-use control in a series of studies which he wrote, contributed to, or commissioned.

At that same time, President Nixon had also created something called the Citizens Advisory Commission on Environmental Quality which was actually in place for about a year or so before the President’s Council on Environmental Quality was started. It’s interesting to look at the Citizens Advisory Committee. The simple citizen who headed that up was one Laurence Rockefeller. The executive director was Mr. Rockefeller’s longtime personal advocate Henry L. Diamond, who many of you may remember as the first New York State Commissioner for the Department of Environmental Conservation.

Another simple citizen was Pete Wilson, who was then the Mayor of San Diego and, as you know, brought in San Diego’s land-use controls, which are probably the most stringent in the nation.

In early studies they brought out, one of their major concerns, which they seemed to think was a major threat to the environment, was people building vacation homes. Well, you know how sensitive the Rockefeller family has always been with their vacation homes. You know where all theirs are located.

The Various Studies That Were Brought Out by the CEQ
The first study that was brought out in 1971 was called The Quiet Revolution in Land-Use Control. Well, of course at that time it was a very quiet revolution. They were trying to keep it quiet.

Some interesting inside trading went on there. The law firm that Bill Reilly was working for when he first graduated from college and before he came along to the federal government was a Chicago law firm. He continued to give contracts to write these various studies for the President’s Council on Environmental Quality to his former associates in that law firm. His associates Fred Bosselman and David Callies were the authors of The Quiet Revolution on Land-Use Control.

The second study that came out in 1973 was The Use of Land: A Citizens Policy Guide to Urban Growth. That was collectively written by Bill Reilly and edited by Bill Reilly.

In that same year, 1973, probably the most significant of these studies came out, also authored by Reilly’s former associates Bosselman, Callies and this time John Banta, another young lawyer from that law firm in Chicago. It was called The Taking Issue, and what is significant is the subtitle, An Analysis of the Constitutional Limits of Land-Use Control.

This was their real concern. How far could they push land-use control?

They continued to bring out studies. In 1976 they brought out another study, again by the so-called Citizen’s Advisory Board, How Will America Grow: A Citizens Guide to Land-Use Planning. It’s interesting that most of the publications, most of these studies, and some of the conferences, were funded by the Rockefeller Brothers Fund. Bill Reilly would leave CEQ from time to time and be on the payroll of the Citizen’s Advisory Committee.

In addition to this, everybody in Washington was getting in the game at that time. A number of studies by other Washington groups were brought out along these lines. The prestigious Natural Science Foundation brought out a study called, The Environment, a New Arena for National Land-Use Control.

Again, Bosselman and Callies were involved in preparing studies for both the Environmental Protection Agency and HUD.(2) The EPA study was particularly instructive because what it mainly dealt with was how the EPA could prevent landowners from developing their land by refusing to grant necessary permits for such things as sewer hookups. By controlling simple things like this they realized that you control private property.

There was a common theme that went through all of these CEQ studies. And basically that theme was, and in a few places it’s spelled out quite well, that private property is simply a “quaint anachronism” that the nation could no longer afford. There’s a section in which they boldly spell it out. It’s not quite in direct quotes, but it’s pretty close, saying we’ve passed the time when we can afford to have a system of private property and we must move to a system of public property in which each and every individual in society has an equal say in how land is used. This was all being spelled out 20-25 years ago.

It’s instructive that most of these studies are still available. They are certainly probably still in print, but I don’t know if the CEQ has them. You can certainly contact them. It’s worth getting them and reading them and seeing how they anticipate some of very problems you’re seeing on the land today.

I spend a lot of time travelling around and talking to landowners, visiting them, seeing how they’ve been prevented from using their land and it’s amazing how the landowners are just in shock. When you go around the country, you see somebody, a small tree farmer in North Carolina who inherited the land from his father. All he has in the world are the trees on that land. That’s his retirement for Florida or wherever he goes, that’s his kids’ education, that’s collateral to get a loan from the bank or something, and suddenly a woodpecker shows up on his land and the American dream has been turned into a nightmare. He can’t take a single tree off that land. If he does, he’s facing a fine of $100,000 or a year in jail, Not only does he get not “just compensation,” he gets no compensation.

I talk to landowners, with tears running down their faces, saying “My son died in Korea for this country.” “My grandfather came to escape tyranny in the Old World.” “How can this happen?”

Lots of folks, they think there’s some kind of international conspiracy or something run by the bankers or the United Nations. But all they have to do is just look at their neighbors, people who are environmentalists, people in government and so on who don’t particularly care about private property and set up a system to take it away from them. So that’s why it’s instructive to go back and read these reports.

These studies explicitly attack the “takings” clause of the Fifth Amendment. They called the takings clause, for instance, in various places, the “so-called takings clause.” In other places they said it was is simply a “myth.”

The takings issue is important. One of the quotes from these reports is, “If the courts find the system of land-use regulations so severe that it constitutes a ‘taking,’ then the whole system of land-use collapses.”

They spelled out an agenda, saying, “Land kept for open space is best left in private hands but regulated to prohibit uses inconsistent with the conservation of scenic characteristics or ecological processes.

They called for a national classification of all land with a set of constraints on development and use of that land.
They said that government at all levels must purchase all the land it can. But then they recognized that the effectiveness of open space purchase is threatened by increasing land prices. They said that unless price rises are dampened, land acquired by government will be necessarily expensive. “So we need to start regulating land early.” That’s instructive.

And then they said, however, that “none of the measures [they] proposed are intended solely to reduce land price increases.” Well...

You can see their agenda where they also pointed out again that, “Not all open spaces need to be public open spaces, though. In fact they cannot be. We will do well to meet the recreation needs, open space needs, of increasingly leisure-oriented people by budgeting enough public lands for parks. It is unthinkable the nation could ever buy all the scenic vistas and wetlands, beaches and dunes, farms and forests, that it is so desirable and necessary to protect—but we should not have to buy them.”

I.e., they’re going to regulate them.

They also said, “A changed attitude towards land, a separation of ownership of the land itself from ownership of urbanization or development rights is essential.”

“Other societies have abandoned the old assumption in their legal systems and now treat development rights as created and allocated to the land by society.”

Therefore they can simply take them away at will.

They also had a nice approach on how they were going to accomplish some of this.
One CEQ study said, “Donations by land subdividers and developers are a principal source of public open space. Most of these dedications are mandatory.”

Nice concept of donations, isn’t it, mandatory donations.

They said, “mandatory dedication requirements can be an inexpensive way to provide open space.”

No kidding. This is what is happening to folks all around the country today. When the Mafia does this, they are prosecuted for extortion. When the Department of Interior does it, it is called environmental mitigation.

“We believe the requirements should be used even more widely than they already are.”

Another statement from the studies, “Public acquisition can not and need not be the whole answer to the problem of open space and historic conservation. In the first place, funds for land purchases are limited and what we must do is control development by withholding permits.”

You see, this has been spelled out for twenty years.

Here’s an interesting thing for the lawyers. They said, “We need a vast expansion of regulatory takings in order to make them common place and acceptable, so the courts will think of this as a legitimate part of the police powers.

They said, “We need to expand environmental divisions within the offices of state attorneys general. We need non-profit organizations like the Environmental Law Institute to spend more research on land-use regulations.”

And they called for “strengthened planning and regulatory legislation,” saying that “this can help create a consensus that regulations are valid and regulations are appropriate.”

And finally, under a call for what we should do with the courts, they said, “the U.S. courts should presume that any change in existing natural ecosystems” [That’s doing anything to your land, farming it, whatever, cutting down trees] “is likely to have adverse consequences, and the proponent of change” [i.e. the landowner] “should be required to demonstrate the nature and extent of any changes.”

Finally, they said, “It’s time that the U.S. Supreme Court reexamined its earlier precedents that seemed to require a balancing of public benefit against land value loss in every case and declare that when the protection of natural, aesthetic or cultural resources, or the assurance of orderly development are involved, a mere loss of land value can never be justification for invalidation of the regulation of land use.”

So these folks, the environmentalists, have known for a long time what they wanted to do and this is what we are now seeing taking place all across the American landscape.

Now often people don’t take action until their basic core beliefs are threatened. It’s interesting that as the debate over land-use control went on in the early 70’s, despite all this universal government support for universal land-use controls, the legislation was finally defeated in a very close vote in the House on a rule by a mere 7 votes in April 1974. The vote was 211 to 204. In fact, everybody thought it was pre-ordained, and that there was no way to stop land from land-use control.

We are very fortunate that there were two very good Congressmen at the time, Sam Steiger from Arizona and Steve Symms from Idaho, together with two executives with Georgia-Pacific Corporation, Bill Moshofsky and John Thompson, Dan Denning with the U.S. Chamber of Commerce and Phil Truluck of the Republican steering committee, who put together a coalition at the last moment when they figured out exactly where land-use control was going to take the nation and were able to kill it by seven votes.

Those of you that follow the history of the environmental movement know this is essentially the only major piece of environmental legislation that’s ever been defeated and the environmentalists learned a very good lesson from that. They abandoned frontal attacks on private property rights, which they learned Americans would defend.

But the CEQ studies already had created their blueprint for massive regulation of land, for preventing the private use of private land. And what they’ve achieved since has been essentially a defacto nationalization of private land, converting it to public uses without the necessity of paying one cent of compensation.

They began to use existing laws and newly created legislation passed ostensibly to protect resources and amenities which were popular with the public and which enjoyed wide support. However, there was a catch in all this legislation. The way it worked, the way it reached the desired ends, was by preventing private land owners from using their lands, because doing so would harm whatever was being protected by that particular law. By the massive use of regulatory takings proposed by Bill Reilly and the CEQ, the federal government has, in essence, taken over and nationalized tens of millions of acres of private lands.

Through legislation and regulations, they have thrown together a system to protect endangered species, migratory birds, wetlands, wild and scenic rivers, open space, national trails, coastal zones, historic and cultural sites and buildings, natural landmarks, scenic highways and byways, viewsheds and scenic vistas, greenways, riparian zones, bikeways and abandoned railroad rights-of-way. And they require buffer zones around many of these.

Thus without any national land-use control legislation ever having been passed, without any legal takings through condemnation and compensation, the government’s quiet use of massive regulatory takings has placed a straightjacket over America’s private land ownership.

The scope and extent of this taking is so vast that it will probably require essentially a property rights revolution for Americans to win back their property rights. I think part of this property rights revolution represents the last couple of classes of the Congress, people like Congressman Pombo and then a whole group of people who come in in the last election, the freshman Congress from across the West and the South, running essentially on property rights issues.

This effort for national land-use control has continued, building on the CEQ studies. Almost every one of the major studies that the environmental community has since brought out has again stressed that part of their unfinished agenda. There’s a book called The Unfinished Agenda that came out in 1976, another Rockefeller Brothers Fund book, which said that one of key essentials of the environmental agenda still to be met was national land-use control, either indirectly or directly.

In November 1988 the environmental community brought out the Blueprint for the Environment. It pointed out that the whole system of land use must be resolved in one way or another. They called for combining a lot of this and keeping a lot of this from development, in natural systems or greenways and scenic byways, which would crisscross like a system of webs across America and halt development along all sides of these.

To show how they’re always thinking, there was a very interesting conference in 1988. It was the 20th anniversary conference of the Wild and Scenic Rivers start-up. Patrick Noonan was one of the keynote speakers. He had been head of The Nature Conservancy at one time and more recently of The Conservation Fund.

Patrick Noonan was talking of roundabout ways to achieve national land-use control. He said one of the best ways we’ve come up with and we’ll start exploring through the 1990’s will be to develop concerns, public fears, about the quality of groundwater, what has happened to groundwater... there’s no water safe to drink in our country. We’ll use protection of our precious groundwater to control everything that goes on on top of the land. This will be the indirect way it will come about.

Last November there was an interesting conference on problems with the Endangered Species Act that the Fish and Wildlife Service put on. Michael Bean of the Environmental Defense Fund, “Mr. Endangered Species” in Washington, DC, was then talking about problems with the Endangered Species Act in the Southern Pine Forest, that whole stretch of forest of longleaf and loblolly pine that goes from Virginia over to Texas. About 90 percent of that is owned privately, 70 percent in essentially Mom and Pop operations. He pointed out that folks are cutting down those trees and the environmentalists don’t like that. And he also pointed out, fairly, that sometimes landowners were accelerating their rate of cutting because they were afraid that if they let their trees grow too long, to reach their optimum economic value, they were afraid that red-cockaded woodpeckers would come in. And so people were cutting their trees earlier. He said that within this political climate we might have to start paying some government subsidies.

He said that now when people do cut their trees they’re intelligent enough that they do not want to replant in pine trees because they know woodpeckers love their pine trees. So they’re starting to plant non-native trees.

Of course the environmentalists don’t like that because they want to protect the native habitat instead. There was one of the folks in the audience who was in the National Biological Survey and said, “Well I think you’ve got that wrong, Michael. Why should the government have to compensate landowners to keep them from planting other trees, non-native trees? We’ll just pass a law and say if you replant you must replant in native trees. We’ll tell you exactly how you’re going to have to use your land.”

Again, to show you how far they’re thinking down the line, they’ve taken an issue you know something about—global warming. One of the interesting aspects of global warming is that as more CO2 goes in the atmosphere, CO2 is also fertilizer for trees. It makes vegetation grow faster and more of it and there are signs that this is causing a substantial greening of the planet. The rates of tree growth all across the planet are increasing.

One of the ideas that Michael Bean and others have come up with is that this might be a way of achieving land-use control of all of the forests in the United States, particularly in the Southeast. That is because some silviculturists have done a study and suggested that the longleaf pine down there is a very good sink, a particularly efficient sink for CO2. It sucks in CO2 faster than other trees and grows faster. They said that what we might have to do is to set up some sort of program through the Environmental Protection Agency so that we can mandate that people must let their trees grow in order to defer global warming and therefore they can’t cut them. This would nationalize the millions of acres of private forest land in the Southeast. So they’re coming at you from every direction they can. They’re not stopping at all.

To conclude with the most recent example of farsighted national land-use control, something Carol’s written a lot about has been the environmentalists’ use of UNESCO’s World Heritage Sites and Biosphere Reserves. As you know there’s been this controversy out in Montana and Wyoming in which the Noranda Company, a Canadian Mining company that has an affiliate in Montana called Crown Butte, is planning to develop a mine. Their New World mine is in a heavily mineralized area, in an area where there’s all kinds of mines dating back to the 1860’s, on the outskirts of Yellowstone National Park. Now you cannot see this mine site from Yellowstone National Park. It is an underground mine. All of the drainage that goes from the mine goes out of the park, not into the park, and in the process of developing the mine, they will clean up all the abandoned mine sites that were left there at the turn of the century when there was no sensitivity to environmental issues.

But despite all of those things, the environmental community is determined that they will stop the private use of private land and one of the ways they’ve done this is, to use the fact that Yellowstone National Park is on the World Heritage Site list. The World Heritage Site program has a couple of hundred units around the world. I think there are 18 or so in the United States. Part of the original treaty that created the World Heritage Sites is that they created a separate list called the “World Heritage Sites in Danger” and so if the nation is not taking care of its so-called World Heritage Site the way the environmental movement wanted it to, they can put it on the World Heritage Sites in Danger and supposedly shame the nation into changing its management. So what the environmental community did earlier this year, was that Paul Pritchard of the National Parks and Conservation Association sent a letter off to the World Heritage Sites offices in Europe and asked the World Heritage Committee to send a team to investigate this mining site to see if it constituted a threat to Yellowstone. This was a carefully planned effort to bias the permitting processes going on in the federal government, especially the NEPA process and the EIS(3) necessary to open the mine. Then what was intended was, if the World Heritage Committee responded that they did not have sufficient funds to send this team there, the U.S. government would pay the expenses. So Secretary Babbitt and Assistant Secretary George Frampton (who are aware of the fact that the National Park Service doesn’t have enough money to take care of its own parks) found enough money to fly all these international environmentalists into Yellowstone so that they could come and investigate this so-called threat to the park by developing this mine on private property.

Now they’ve not yet made their final report but they complained about the fact that cutting trees outside the park seemed to be a threat, that management of wildlife inside the park seemed to be a threat, and that the tourism in the park seemed to be a threat to this World Heritage Site. I think we know which way their final decision’s going to come down.(4)

The message I want to leave you with is that for about 25 years we’ve had a long and very careful and very sophisticated effort by leading environmentalists and by national land-use planners to develop a blueprint for how they would take America’s private lands and how they would circumvent the tricky little problem of the Fifth Amendment to the United States Constitution.

So that’s out there. I encourage you to look at this, to get hold of these studies so you have an idea of the very ideas they call for, the very planks in their platform, so you can see how they’re using it, and hopefully we can find ways to turn this around and see that the Fifth Amendment is lived up to in both the spirit and the letter. I think with some of the new Congressmen we have, new Congressmen like Richard Pombo, we can hopefully achieve this. Thank you.

(1) National Environmental Policy Act
(2) U.S. Department of Housing and Urban Development.
(3) Environmental Impact Statement required under NEPA.
(4) To no one’s surprise, on December 5, 1995, the World Heritage Committee, meeting in Berlin, released the results of their investigation and officially placed Yellowstone National Park on the black-list as a World Heritage Site in Danger. So the environmentalists “Quiet Revolution in Land-Use Control” has extended all the way to the United Nations. - R.J.S.

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