Thank you for the privilege of speaking at this special meeting hosted by the Comprehensive Planning Committee of the Town of Ballston. It is an honor to be here. I'd especially like to thank three people for their many efforts involved in planning this meeting Don Rhodes, Chairman of the Comprehensive Planning Committee, Melissa Cobart of the Citizens for Fair Growth, and a true public servant who it has been a pleasure to know for many years, Dick Voehringer.
The topic of my talk is "Property Rights, Trails, and Open Space Preservation." Originally, there came an intriguing invitation to speak about the subject of "How Open Space Conservation and Property Rights are not in Conflict with Each Other," but I had to explain that this would be problematic. After all, the nationwide property rights movement arose in response to the infringements on private property rights that resulted from open space preservation.
Back in high school, everyone learned the Bill of Rights, and gained a rudimentary understanding of the Fifth Amendment to the Constitution, which states that no private property should be taken for public use without just compensation. This is known as the Takings Clause. Private property rights and the idea of private land ownership were fundamental to the thinking of the founders of this nation. James Madison, author of the Takings Clause, wrote:
[Property,] in its particular application, means "that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual." In its larger and juster meaning, it embraces everything to which a man may attach a value and have a right; and which leaves to every one else the like advantage. In the former sense, a man's land, or merchandise, or money, is called his property. In the latter sense, a man has a property in his opinions and the free communication of them. He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them. He has a property very dear to him in the safety and liberty of his person. He has an equal property in the free use of his faculties, and free choice of the objects on which to employ them. In a word, as a man is said to have a right to his property, he may equally be said to have a property in his rights."
So you can see the absolute, fundamental nature of private property rights that the founders assumed, even to the point of undergirding the other fundamental liberties, such as freedom of speech and religion. The Constitution and Bill of Rights are truly one seamless document.
"Takings" law that expanded the police power over private property beyond nuisance law began to be developed during the nineteenth century, but took hold in the early twentieth century, when zoning began in places like New York City. Regulatory takings law is confusing. However, one of the basic principles was laid out in1922 in the case of Pennsylvania Coal v. Mahon. This was not the best ruling, as it stated that "an average reciprocity of advantage" was deemed to "justify many laws," but Justice Holmes held that,
"While a property may be regulated to a certain extent, if a regulation goes too far it will be recognized as a taking."
Current Takings law, however, parses private property rights.
In the case of Euclid v. Ambler in 1926, the U.S. Supreme Court sustained the ordinance of the Village of Euclid, Ohio, that took 75 % of the value of property owned by Ambler Realty when it rezoned the land from commercial to residential. The Court gave a virtual carte blanche to modern zoning ordinances. This ruling took an expansive approach to the police power, stating:
" while the meaning of constitutional guarantees never varies, the scope of their application must expand or contract to meet the new and different conditions "
On some principles, our right to own and use private property is fully backed by the U.S. Supreme Court.
In 1960 Supreme Court Justice Black pronounced in the ruling Armstrong v. United States:
One of the principle purposes of the Takings Clause is "to bar Government from forcing some people alone to bear public burdens, which in all fairness and justice, should be borne by the public as a whole."
The famous Supreme Court decision in Lucas v. the South Carolina Coastal Commission in 1992 required full compensation for a regulatory taking. However, the case was litigated on the basis of both sides accepting that the zoning restrictions on the land "denied all economically beneficial or productive use of land." The lengthy decision is quoted widely for its many other insights into Takings law.
Earlier, the case of Agins v. City of Tiburon in 1980 bore out the need for Takings compensation when all economic use of the land was foreclosed by regulation.
Zoning & Partial Takings
What are known as partial takings, as in the cases of large lot zoning and wetland restrictions, are a mixed bag with respect to property rights. In recent years, the Supreme Court has refused to clarify whether the situation of a partial taking deserves compensation. Back in 1978, the Supreme Court ruled in the Penn Central v. New York City about a historical preservation law whereby the City stopped the construction of an office in the airspace over the majestic railroad station. Justice Brennan wrote that:
takings jurisprudence "does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated."
The Penn Central decision formulated the principle that a taking may have occurred as a result of regulation depending on the character of the government action and
the extent to which the regulation interferes with "reasonable investment-backed expectations."
The property owners lost.
In his treatise, Takings, Richard Epstein, one of the most lucid champions of private property rights, castigated the "intellectual weakness at every turn" of the Rehnquist decision in the Supreme Court ruling in Prune Shipyard Shopping Center v. Rubins. The court ruled that the shopping center could not stop Rubins, when inside the shopping center, from distributing literature in opposition to an anti-Zionist resolution in the United Nations. Epstein wrote:
"Freedom of speech gives one the right to talk in ways that are unpleasant to others, without any justification for doing so. So too, private property gives the right to exclude others without the need for any justification. Indeed, it is the ability to act at will and without the need for justification within some domain which is the essence of freedom, be it of speech or property." (Takings, Harvard University Press, 1985, pp. 65-66)
But the Supreme Court had turned the logic of Madison on its head, wiping out private property rights under the guise of protecting freedom of speech.
Today, if the Town of Ballston wants to dig on your property to bury a sewer, it has to compensate you, but if it zones your land very restrictively, where you cannot use parts of it at all, the question of compensation would have to be litigated, and without must certainty of good results. When you look at classical takings law, the partial taking debacle is carried to an extreme of confusion, considering that where endangered species are concerned, the landowner is being forced, without compensation, to harbor living species and maintain habitat, but if, as I said, a utility were to be imposed across the property, having far less impact on the property, the agency would have to compensate the landowner.
But, as I said, there are some legal principles that a landowner can count on. Without going into the Takings law in much detail, I'd like to point out a few. Property rights had an important swing upward with the Supreme Court during the late 1980's.
For instance, because of the Supreme Court case of Nollan v. the California Coastal Commission in 1987, a property owner is protected from a land use agency requiring him to give the government an unrelated benefit in exchange for a permit, such as an public access to a waterway in exchange for the loss of the public's ability to view the waterway as a result of new construction. This is known as the nexus requirement.
From the Supreme Court ruling in Dolan v. Tigard in1994, the property owner is further protected from an exaction, as it is technically called, that does not have a rough proportionality to the impact of the project on the legally protected public interest. In this case, the Dolans has been required to donate a greenway and a bike path to alleviate increased runoff and traffic when they expanded their plumbing supply house, but the City of Tigard, Oregon, had not offered any analysis of the quantitative impact of the business expansion on either factor.
One happy decision for the property owner was that in Palazzolo vs. Rhode Island in 2001, where Justice Kennedy wrote on behalf of the Supreme Court that if a land use regulation, such as a wetland restriction, was already in effect when you bought the property, you still have just as much a right to compensation under the Takings Clause. His words were:
"A State would not be allowed, in effect, to put an expiration date on the Takings Clause."
Transferable Development Rights
One preservation idea under discussion for open space preservation in the Town of Ballston is the idea of imposing land use restrictions in exchange for transferable development rights, or TDRs. This idea is so confusing that people usually can't think of how to argue against it. However, TDRs are a serious infringement on private property rights.
The landowners in the 50,000-acre central core area of the Long Island Pine Barrens have been complaining for ten years over the mess that they are in with their property zoned for zero use, except if a rare variance is granted, in exchange for transferable development rights. They can sell the rights to a developer, if one wants to buy them and transfer them to a nearby village center area where the developer would be allowed to slightly increase the number of lots on a given parcel, but in Southampton and exclusive areas like that, the developers do not have much incentive to make smaller lots. The property owners are not generally approached by developers. Instead, then can sell the development rights to the government's Pine Barrens Credit Clearinghouse. But the price paid for the TDRs by the Clearinghouse is a fraction of the value of the property. The irony is that some of the property owners, rather than just drop the properties for unpaid back taxes, have sold the TDRs to the government Clearinghouse, and the Clearinghouse has held them until a developer paid a good price.
But TDRs were dealt a setback in 1997 by the U.S. Supreme Court in the case of Suitum v. Lake Tahoe Regional Planning Agency, where Judge Souter wrote the unanimous ruling that a property owner should not be obligated to hunt around for a buyer in order to obtain just compensation. More precisely, the Court said that Mrs. Suitum's case was "ripe" to go to court to seek Takings compensation without her having to make an application to transfer her entitlement of TDRs so that she may sell them. Mrs. Suitum was so old by the time her case was heard by the Supreme Court, that she came to Washington, D.C. to hear the arguments in a wheelchair. Mrs. Dolan, the woman in Tigard, Oregon, whose case I cited, was carrying on the case after her husband died of old age.
Trails introduce special problems for landowners. Because trails are linear parks with very long boundary lines in proportion to the acreage of publicly accessible land, the impact on bordering property owners is great. Trails often suffer from lack of policing. Whereas many parks are fenced and closed off at night, trails are not generally fenced. Fences may not help. Intrusions on privacy, littering, sanitary issues, vandalism, robberies, rapes, and murders are all part of the experiences of people using trails and owners whose property abuts trails.
Then there is liability experienced by property owners who sell easements to trail rights-of-way. A couple of years ago, England faced the issue of property owners who face liability for recreational use of their property in the a case, Tomlinson v. Congleton Borough that came before the House of Lords, which is the United Kingdom's highest court. At a public park, eighteen-year-old John Tomlinson dove into the water as he had done many times, but that time he poorly executed his dive and struck his heard on the sandy bottom. He was partially paralyzed, unable to walk. He sued the Borough for compensation for the loss of earnings for the rest of his life and for the care he'd need. Lord Hoffman, for the House of Lords, held that, however unfortunate the situation, the law only provides compensation when the injury was someone's fault. There were "no swimming" signs posted in the park, but the park rangers could not keep the many people out of the water near the picnic area. In 2003, the Lords ruled, asking a question:
"Does the law require that attractive water side picnic spots be destroyed because a few foolhardy individuals choose to ignore warning notices and indulge in activities dangerous only to themselves?"
"The pursuit of unrestrained culture of blame and compensation has many evil consequences and one is certainly the interference with the liberty of the citizen."
So, in a decision that actually cites a ruling related to the City of Chicago, the Lords held that no damages should be awarded.
Of course, in the United States, especially in litigious states like New York, the liability situation for the landowner is insecure. Trail advocates promise that the state's General Obligations Law exempts landowners from liability for use of their property, but it has so many exceptions and the court decisions have found so many loopholes in favor of the injured person that it is scarce protection for the property owner.
Attorney Beatrice Havranek of Rosendale, New York, did a study of the case law related to landowner liability under the General Obligations Law and made it available to the Property Rights Foundation of America. We published a brief two-page summary, which is available tonight. One aspect is that swimming and certain other recreational activities are excluded. So in a case where a man used the trail to walk back from a swimming hole, the landowner is not protected. Another exclusion is for non-recreational use. This left a landowner liable to a lawsuit when men used a four-wheel-drive vehicle on a recreational trail in Hanover in Chautauqua County after leaving a bar after midnight to relieve themselves and overturned their vehicle.
Then there is the situation of land not being undeveloped enough to come under the General Obligations Law's exclusion from liability. New York City's underground Aqueduct from the Catskills leaves a narrow strip of vacant property above it the entire length of Westchester County. A fourteen-year-old was riding his motor bike on the dirt roadway following the aqueduct property and was injured. The court ruled that the General Obligations Law exemption from liability did not apply because Westchester County was too densely populated to meet the purpose of the law.
Considering the state of liability in New York, a landowner would be foolish to sell or donate a trail easement through his property.
Trails bring still further infringements on property owners. The National Park Service and the trails lobby have popularized buffer strips along trails. A conflict arose five years ago between the Park Service and Graymoor monastery along the Appalachian Trail in Garrison, New York, where the Park Service started eminent domain proceedings to take additional land from the monks to enlarge the width of the trail. The Franciscans friars had already allowed the Park Service to enlarge the trail width once previously. After the dispute reached the newspapers and the U.S. Congress, the officials from the Park Service agreed to sit down and compromise with the friars.
But suppose that the buffer strip is achieved by zoning, rather than by acquisition of the land. This idea, with a 100-ft. wide buffer strip, is contemplated for the Saratoga County Trail. Some might think that there would be no compensation. However, I believe a court would require compensation, except where there is a tradeoff, or exaction, during the development permit process.
But whether or not there is a buffer strip in the initial plan, the abutting and nearby property owners should keep in mind that trail developers invariably keep the buffer strip idea in mind, and over the years bring it back up in one form or another, as illustrated by the Graymoor conflict.
The envisioned full length Saratoga County trail, known as the Zim Smith Trail, is currently developed through Shenantaha Creek Park in Malta. The trail dead-ends at the East Line Road boundary between the Towns of Malta and Ballston, but is envisioned to continue northwesterly in the vicinity of Route 67 along the county-owned sewer route. The trail would traverse the north edge of the established Curtis Industrial Park. A hiking trail would present a major conflict with an industrial park, with its busy traffic and handling of thousands of tons of building materials. After going northeast, the favored route depicts the trail turning northward, following in the vicinity of an old railroad right-of-way, to pass the along the east side of the City of Ballston Spa.
To an outside observer, it appears that the County has disregarded the property rights of landowners in the Town of Ballston by completing a trail concentrated in parkland to the boundary of Malta and Ballston, where the full plan is to continue into the Town of Ballston across private property, even if the County owns a sewer right-of-way outright or contemplates acquiring an abandoned rail right-of-way.
The partial completion of a trail in a location like a park, where landowners would be unlikely to raise objections, or the trail would be unnoticed by them, is a common pattern in trail development. The information about the envisioned route in the beginning would alert the landowner that the trail is ultimately going to have severe impact as it is completed.
For example, the National Park Service, the New York Parks and Conservation Association, and the New York State Canal Corporation are currently working together with a pseudo-local group that they are nurturing to develop a trail the length of the current canal and the defunct old canal route from the Erie Canal to Whitehall. The first stage to be completed is that through a park in Schuylerville, but the schemers are not telling the local property owners who are on the entire trail, which, of course has lots of federal and state money behind it, that they face this incursion. I attended a secret meeting trail plotters and wrote about their plans, which was followed up briefly by the Saratogian. But the property owners along the route did not get involved to protect their interests.
Because of SEQRA's prohibition against "segmenting," it is my opinion that, for the environmental review process to be intact, before a partial section of a long distance trail is constructed, the landowners potentially affected should be individually notified in writing.
Land title is also potentially at issue in the utilization of abandoned rail rights-of-way for trails. The title to rail rights-of-ways usually reverts to the original owner when the strip ceases to be used for railroad purposes. In New York, the court has applied straight property law, tracing the title down from the original deeds and easements in the nineteenth century, and awarding property to the heirs in title to the land from which the right-of-way was conveyed over 100 years ago.
Open Space Preservation
Both the development of long-distance trails and open space preservation present a situation that is generally hostile to our fundamental private property rights. The problem is that, when municipalities start making plans, they often fail to first involve the people who will be the most effected, those who own the land through which the trails could pass or those whose property would be more strictly zoned.
People who find suburban housing objectionable would like to save open space. They have an idea that that somebody else should give up their rights for the protection of the character of the landscape that should be preserved. But there is an obvious, fair way to preserve open space. I remember when my brother in Pennsylvania observed that empty lots across the street from his house were likely to be developed in the near future. He was a young professor, and not wealthy, but he bought the vacant lots with hard cash.
Usually, the people who want to save the open space in rural areas are exurbanites with relatively comfortable means and who, considering their numbers that give them political influence, if they were to combine their resources, could come up with the one, five, ten million dollars needed to buy the open space they cherish, without even burdening the taxpayers, assuming that the owners would choose to sell. The irony of the situation would be amusing if so many people were not hurt in the process of the plotting and power play to reduce the property rights of others to preserve what they conceive of as their open space.
It is interesting that good policy to protect property rights often is illustrative of generally good policy. The example of open government stands out. Property owners would be somewhat well protected if, at the very onset, when open space and trail ideas are brought before government agencies, the agency would call in the potentially affected property owners to invite their ideas to lead the solution to the conundrum posed by advocates for one issue or another.
With the trail idea, for instance, there might be several property owners who would like to become involved, with complete liability protection guaranteed by the county, for instance, and, who, with the companion utilization of parkland, could find it possible to make their land available for a trail that wound and turned about beautiful lands with a variety of terrain and other natural attributes. Unless a clearly transferable old railroad right-of-way with substantial adjacent property is available, is about as unlikely that a fully trans-county trail could be created without conflict with private property rights as it is to build a new highway without eminent domain. (1)
Of course, parks are the classical method of open space preservation. A time comes when a town reaches the time when it may need to invest in such an important amenity before housing developments make the acquisition of parkland prohibitive.
On the issue of open space preservation, the Property Rights Foundation of America has warned large property owners in rural areas about the potential for future difficulties as a result of splitting off conservation easements from the fee simple title to the property. We have no objection to short-term leased conservation easements, but do not support splitting the title to land in perpetuity.
The major land trusts are less than forthright in informing the property owners of the meaning of entering into a conservation easement. Farmland owners have failed to realize the impact on their equity or even fully understand the terms. Second generation owners are becoming a source of disputes. This Tuesday, I received a call from a reporter in Minnesota, who said that farmers were concerned with conservation easements that required "best practice." However, since the easement was bought, the land trusts holding the easement had tightened the requirements for best practice. For those who are bent on utilizing this sort of transaction to obtain cash flow and various tax advantages, I have recommended that they consider including a renegotiation clause in the conservation easement, which involves a number of considerations too lengthy to discuss her. But in my article on this topic, I emphasize that this clause should especially focus on vague terms in the easement and conditions critical to the use of the farm that may change in the future.
The Nature of Property Ownership in the United States
Returning to the beginning of this talk, where I explained how fundamental private property rights were to the founders of our nation, most people do not know there were deliberate decisions in colonial times not to allow feudalistic forms of land title. Here in the American colonies, the landowners wanted fee simple title. Our common law legal heritage prohibited the type of encumbrance that includes a conservation easement, but beginning during the 1980's an aggressive movement has been working to legislate in each state, one at a time, statutory law to overturn our common law prohibiting what are spoken as non-appurtenant negative encumbrances (2) and to end prohibitions on perpetuities. Since the battles were silently fought without citizen awareness, most of the states have passed these changes, but the changes are significant and are a loss to our clean system of land ownership.
A principled view of how to deal with the full range of issues facing public policy makers and citizens, is a policy of protection for liberty, promotes civic harmony, while promoting the economic well-being of the people. One of my favorite quotations from a U.S. Supreme Court property rights decision is the Dolan v. Tigard ruling. Chief Justice Rehnquist wrote:
"We see no reason why the Takings Clause of the Bill of Rights, as much a part of the Bill of Rights as the First Amendment or Fourth Amendment, should be relegated to the status of a poor relation in these comparable circumstances."
With that in mind, I'd like to urge the property owners, open space and trail lovers, and government leaders of the Town of Ballston to work together to accomplish their visions for the future with respect for the rights of property owners as a basic assumption and concern woven into all civic considerations from the earliest point of discussion to the final accomplishment of the visions.
(1) Parenthetically, on studying the environmentalist literature related to greenways and trails, I've observed that that the long-distance linear parks gain momentum from an aggressive landscape preservation agenda to create an ever-expanding grid of greenways, which few public officials or private property owners would find philosophically comfortable.
(2) Negative easements were historically acceptable for an adjacent property owner, for instance, one who wanted to protect his property from having the sunlight blocked, but a property owner could not acquire a non-appurtenant negative easement. As opposed to a utility right-of-way, a conservation easement simply ties up the property, i.e., puts a negative hold on the property rather than acquiring a practical right to use the property to do something.