Thank you for inviting me to speak today. It is an honor to speak at the Cato Institute. I will address the topic of "New York Property Rights Directions," drawing largely from my seventeen years' experience working as a full-time volunteer advocating on behalf of private property rights and the American tradition of private land ownership, with the work in New York dominating the effort. I'd like to briefly tell you, mainly by example, where property rights stand in New York, what the directions are, and where the work for our cause has been effective. My property rights work began in 1990 with my husband Peter, and now continues under the Property Rights Foundation of America, which was founded in 1994. From the beginning, we worked to retain private land ownership, which is central to PRFA's mission.
Because, in the case of rural lands slated for radical regulation to restore wilderness, and in the case of eminent domain in city and village centers, the goal always centered around protecting the way of life of ordinary people and preserving their cherished towns and neighborhoods. In this context, PRFA has also worked to prevent the destruction of hunting clubs and to fight for the right of rural people to their forms of recreation on government-owned land, such as hunting and the use of all-terrain vehicles.
The broad property rights movement has been predominantly rural, but, because I am New York City native and a retired civil engineer, PRFA has also dealt hopefully from its beginning with urban issues, such as rent control and eminent domain. While connecting urban and rural property rights, the two-sided goal was to show the centrality of private property rights in all its facets to the individual's ability to pursue happiness, and to draw in a constituency that joined urban and rural interests.
Let's just briefly go through some of the issues, and, by way of first-hand example, try to work in some background to give an understanding of the scene in New York State. I think that this discussion will also lend insight into situations in the Northeast as well as nationally, because, in some respects, New York is a mirror of the nation.
1. Keeping land in private hands and fighting extreme land use regulation One war
A major northern region of New York State, the Adirondack Mountains, has been a scene of class conflict since the nineteenth century, when industrialists created "camps," each of tens of thousands of acres, and hired locals to perform all the functions for these pseudo-rustic estates. During the 1960s, the preservationist elites realized that the completion of the Interstate Northway threatened their wilderness-like surroundings. In 1973, under Gov. Nelson Rockefeller, in conjunction with his brother Laurence and others, they succeeded in designating the entire six-million acre region, with the Rockefeller estate cut out of one corner, as the so-called Adirondack Park. Severe zoning was put in place, with about half the privately owned land set at 42 acres per house, for example. About 40 percent of the land was government-owned, as State Forest Preserve, where logging is prohibited.
In 1990, the radical preservationists made a new push. They tried to acquire much of the remaining land outside of the villages and hamlets and to more severely regulate the private land, with about 87 percent of the private land to be zoned for 2,000 acres per house, to cite one aspect of the proposals.
The opposition effort, in which my husband and I were among the leaders, demonstrates two effective tactics where victory can be won on a statewide basis, even in a state as populous, geographically large, and liberal as New York.
One side of this effort was very broad: many civil rights-style actions and disruptions, as well as countless examples of civic discourse at every level, from the local newspaper to the governor. These actions had no outside funding behind them and stemmed from the people in a region which had a total population of barely more than 110,000 individuals, in a state of a population of 17,990,000 in 1990. The actions ranged from slow-moving virtual blockades of the Interstate, to angry statements at packed meetings, to visits with the governor and the legislature. This lasted undiminished for two full years. The several versions of the extreme regional zoning legislation died in committee.
At the same time, we aggressively used the courts, while exerting an all-out effort to garner media attention every step of the way. We used unrelated "good government" case law to protect private property ownership. Peter and I wrote and organized a pro sé lawsuit challenging the governor's illegal use of taxpayer funds to promote a "yes" vote on the 1990 Environmental Quality Bond Act to buy up land in the Adirondacks. We won every one of nine motions and rulings in a six-week period leading to Election Day. The law journal of Peter A. A. Berle, who chaired the commission inspiring the preservation drive, placed blame on our "successful citizens' group suit," along with the effort of the New York Farm Bureau and what was perceived as the governor's inconsistency, for the defeat of the $2 billion bond act (1), which went down by 0.7 percent of the vote. In the North Country, it was not uncommon to have votes of sixteen to one against, while in the metropolitan area, voter turnout sought by the governor was ineffective.
The lessons are many for the future, but key elements were the immense spontaneous grassroots involvement and the effective, intense leadership. An interesting element of the leadership in many of the grassroots efforts was that these individuals were not locally born rural people, but professional people from the metropolitan area who had moved north a decade or two earlier. I think that a reason that the victories were real, rather than mere face-saving property rights legislation, as happens in Congressional committees on occasion, is because the winning work was done by people and their leaders who were truly concerned with the effects on the communities they loved.
In current and future battles involving the Legislature or a bond referendum, it would be helpful to have a property rights PAC that supported grassroots movements. Business organizations, with the exception of the New York Farm Bureau, cannot be counted on to support private land ownership or private property rights. It might be expected, considering that in the Adirondacks twelve counties including 110 towns and villages would have been affected by the 1990-91 Adirondack environmental initiatives, that organizations representing local government would have been effective advocates for local government and private land ownership, but their involvement was inconsistent and unreliable. State-wide municipal associations were no help.
Other lessons, unexpected at the time, in planning for victories for property rights were that unscrupulous individuals are drawn to prominent grassroots activity and attempt to bleed it of its financial resources for their personal gain, that numerous attempts are made in the legislature to negate early victories which means that work must remain intense for a few years, and that individuals within the supposedly aligned organizations in coalitions try to compromise for the purpose of currying favor with leadership in the Administration and Legislaturebecoming tools to try to neutralize the grassroots by gaining the upper hand. Countering such efforts is extremely demanding.
2. Keeping land in private hands, regional land-use regulation Longer term battles
Let us look at the Adirondacks for a view of what is happening in the longer term, almost seventeen years later, with respect to keeping land in private hands and maintaining what limited property rights exist under current land-use regulation. Please keep in mind, as I continue, that there are many examples of long struggles in New York and the Northeast over land ownership and regional land regulation.
Large landowners in the Adirondacks are gradually turning over their property to the State of New York, through non-profit intermediaries, in deals worked out with the State. The first property that began to go during the 'nineties was the Whitney's 50,000 acres. It is passing to the State piecemeal, the first 15,000 acres as a result of a deal after the Adirondack Park Agency thwarted a development that would have averaged fully 300 acres per dwelling. The next giant tract, a collection of Champion International properties totaling 139,000 acres, went to the State in 1999 in two forms of ownership, with the Conservation Fund as the intermediary. The prime riverine lands totaling 29,000 acres were deeded outright in fee simple. Conservation easements to the remaining 110,000 acres were split off to the State, with a forestland company getting the residual title to the land to maintain what is called "sustainable forestry."
I developed the legal theory, organized plaintiffs and support, and found funding for a law firm to go to court to stop this transaction. With all the media attention, we had success publicly conveying the illegalities and cultural callousness involved, but the lawsuit was dismissed on an important technicality, inadequate service.
Our Champion effort succeeded in giving heart to the hunters whose 300 camps were slated for demolition, without adequate environmental review, and in influencing the State to allow camps to remain on future conservation easement lands. Our efforts on this and related issues also have served to align some vehicle access, hunting, and property rights interests over the years. Our Champion effort also forced the State to acknowledge that it was violating a complicated state environmental funding law by not obeying local veto power for acquisition of land within a particular town's borders. It is interesting, and, I believe inadequate, that these and many other actions can be traced to the leadership of one volunteer, when the national implications of these infringements on private property rights, these diminishments of private land ownership, and the depredations on rural populations and their culture should have more practical recognition. These issues are made to order for future action.
Underway at the present time is another giant transaction where the state will acquire the International Paper Company's 257,000 acres of land in the Adirondack region, in a combination of fee simple and conservation easements, with $25 million spent on the 255,000 acres of conservation easements. (2)
The IP acquisition is being somewhat obstructed because of our effort to enforce the requirement of obedience to the local veto power. Last week I received news that the Town of Black River, whose supervisor Howard Aubin was the lead plaintiff in our Champion lawsuit, vetoed the acquisition of 18,000 acres within its borders. However, other towns either are afraid to challenge the State, do not know that this veto power exists, or have cut a short-sighted deal with the State, such as the possibility to increase snowmobile trail mileage on the conservation easement lands.
These examples also illustrate the interplay between the U.S. Congress and the State Legislature. Back in the early 'nineties, then-ranking minority leader of the House Rules Committee, the esteemed, late Jerry Solomon, put a last minute clause through Congress after I warned him of the U.S. Forest Service's radical Northern Forest Lands program and its companion Forest Legacy land acquisition bill buried in an agricultural appropriation line item. Congressman Solomon's "monkeywrenching clause," as he described it to me, was to require local government approval for any such land purchase within its borders. This clause was later added to a State environmental funding bill by the late Ronald B. Stafford, a powerful North Country Senator. These illustrations of accomplishments in a hostile environment are models for the future.
Our success in stopping legislation to strengthen the powers of the regional Adirondack zoning authority has held, but the agency has tried to circumvent the law by promulgating regulations that are beyond its power. My personal lawsuit, with professional legal representation, to stop this practice was dismissed on lack of "standing." So far, efforts to pass portions of the radical 1990 plan piecemeal have failed, although pairing "beneficial" with regulatory language is a constant threat.
3. Conservation Easements
Conservation easements are promoted by environmental groups and a large, well-known self-described "free market" policy organization, the Political Economy Research Center (PERC), to preserve "sustainable" forestry and as a supposedly non-top-down, property rights-respecting approach to preserving the environment. For well over a decade, I have been trying to get out the word to the contrary: that conservation easements present a threat to private property rights and private land ownership. Briefly, conservation easements are real property covenants that insert a dominant negative encumbrance on the property to restrict its use from development and to require certain, often vaguely worded, protections of wildlife. The easements can also be expanded to permit public access on the property. The conservation easement, held by either the government or a non-profit land trust, basically splits the property in two parts, much as mining rights to property do. However, historically, mining rights would have been within our legal tradition, whereas conservation easements, a non-appurtenant negative encumbrance, would not have passed muster and required state enabling legislation. (3)
According to state figures published in 2005, the State of New York alone holds conservation easements on over 690,000 acres of forest land, which figure includes the planned acquisition of the International Paper conservation easements. (4) Yesterday's USA Today featured an article about the Land Trust Alliance's announcement that 37 million acres of land in the U.S. are under conservation easements. (5) The privately owned land in the U.S. is being rapidly deprivatized.
Conservation easements will soon dominate the "privately owned" lands in the Adirondack region, where such land was, by and large, already state-zoned for 42-acre lots and the State's regional zoning agency was customarily imposing far greater restrictions. The conservation easement ties up the land in perpetuity, severely restricting the future options for the land. It has been my stated opinion that these lands will ultimately fall into full-title state ownership, because the owners will lack the equity to respond to the vicissitudes of local and global economic forces. (6)
Recently, my viewpoint was borne out by a statement of Neil Woodworth, an attorney and lobbyist with decades of experience related to the Adirondacks, and the executive director of the Adirondack Mountain Club, one of the four powerful New York environmental groups dedicated to preserving the Adirondacks. The Plattsburgh Press-Republican reported in April that,
"In Woodworth's view, the conservation easements, which account for more than half the total [of "wilderness and open space" land acquired under Gov. George E. Pataki], will one day join the state-owned forest preserve in the Adirondacks "
"'It may be the case that the future of the forest products industry is not what we hope it will be, given the global pressure,' Woodworth said. 'At that point, if you can't develop it, and you can't economically grow trees on it and you've already sold the development and conservation rights to the state, then the state is the most likely buyer of the fee title.'" (7)
4. Scope of regional preservationist land-use battles in New York
New York has been under the radical environmentalists' gun for many years. Their preservationist agenda includes vast areas of land in the Adirondack region; a swath of land variously called "A2A" or the "Frontenac Link" connecting the northwest Adirondacks across the St. Lawrence valley to Quebec's Algonquin Provincial Park; the Tug Hill Plateau to the west; the eastern shore region of Lake Ontario; the Mohawk/Erie Canal corridor; a north-south corridor in the Finger Lakes region from the Pennsylvania border to the Montezuma Swamp that also involves enlarging the Finger Lakes National Forest; the entire New York City Watershed on both sides of the Hudson, including the entire Catskill Mountain region; the Shawangunks; the Hudson valley; a great eastern U.S. "Wildlands" corridor from Vermont through western Massachusetts, Connecticut, New York's eastern border, southern upstate New York and across the Hudson River to northern New Jersey and on southward to the National Parks in the Appalachians and Great Smokies; and the Long Island Pine Barrens. And that's not all.
In 1994, PRFA caused notice in the Legislature when we inaugurated our publication Positions on Property with a map and explanation of many of these preservation zones. But, since PRFA is the only organization that is attempting to convey these schemes to the general public, you will rightfully guess that our publications have not put a halt to the march of these plans. Our efforts to stop the National Park Service greenways (National Heritage Areas) in New York, although initially going positively, were ultimately unsuccessful, for instance.
Last spring, I observed a result of the failure of efforts to disseminate to the general public my knowledge of the threat posed by these radical land preservation schemes, when I was invited to give a talk in White Plains as part of a panel on zoning sponsored by the Building and Realty Institute of Westchester and the Mid-Hudson Region. Their director told me that they were facing the amazing situation of preservationists citing a "biologic corridor" through Putnam County and northern Westchester as a justification for radically restricting land use. This locally publicized corridor is part of the proposed wild eastern U.S. mountain range corridor to extend from Vermont to Georgia, which I just mentioned, but about which they were not forewarned.
The general population has little idea of the threat to private property rights presented by radical preservationists with their designated zones and corridors. So, what could be done? Our publications have enabled citizen resistance in New York and elsewhere in the country. Being invited to present expert testimony related to heritage areas and UNESCO Biosphere Reserves before committees of the U.S. Senate and House of Representatives has helped. But this effort needs further outreach. People need to know that the Adirondack Park was and still is a model for the nation and that the plans of the radical preservationists are progressing.
For example, to cite a recent failure of property owner resistance to a specific regional land use regulation proposal, how many people in northern New Jersey realized during 2005 that the proposed New Jersey Highlands scheme was part of a vast eastern U.S. preservation corridor envisioned by national environmental organizations? Our publications and web articles drew only minor attention in New Jersey at the time, with the big picture by and large unrecognized. Instead, the local landowners found themselves fighting so-called "watershed" protection, a sacrosanct issue. Not realizing how fiercely to organize, they lost, and now face a New Jersey Highlands Commission, which is a regional regulatory behemoth combining features of the Adirondack Park Agency, Long Island Pine Barrens Commission, and the New York City Watershed regulations.
5. Zoning, the usual culprit in regulatory takings
New York is a home rule state. Except for the regional entities I listed in part, the State does not exert land use power. The state does not have growth management, or smart growth, law. Neither do counties exert land use power. Our basic political subdivisions are towns, as well as villages and cities. These are the municipal entities that are permitted by the state Constitution to regulate zoning. They do this under numerous state statutes that restrict and guide the implementation of their power. Local municipalities are not required to have zoning and many do not, a subject of great consternation to the New York Department of State, which constantly bestows grants to encourage local land use planning.
PRFA advises and assists local citizens to defeat zoning whenever they contact us and we also give strategic advice where property owners contact PRFA upon being faced with such regulatory challenges.
There are many opportunities to restrict local zoning power that, I believe, could pass the Legislature. One possible improvement would be a law stipulating that, once an application is submitted, a building moratorium and the development of new zoning rules could not be applied to the applicant. Such a bill was submitted this year with bipartisan sponsors. Much needs to be done to bring more fairness to zoning.
The Legislature had some bills to enact landowner improvements to wetland law several years ago as a result of the organizing that PRFA did in Saratoga County after the State severely re-mapped wetlands there. Our bills restricted the state environmental department and assured real estate tax abatement. But there was no statewide organization with the lobbying power to push our legislation, and with the almost inevitable collapse of local grassroots leadership, our efforts were lost. As you know, however, all bills that are written are still kicking around in the Legislature, waiting to be taken up if the political clout were brought to bear. To hearken back to the local zoning issue, a possible bill could have prohibited local government from adding their layer of wetlands restrictions, a third layer of such cumbersome law. This approach of introducing simple, potentially successful bills applies to eminent domain reform, but first one more point about local zoning.
In New York, we could face a conundrum if we do not restore some rationality to the "nimby," anti-property rights attitude of local zoning authorities. A developers' movement is growing on Long Island to take zoning power out of towns and villages and move it to the county level. (8) County-level zoning power would virtually wipe out the current ability of the ordinary citizens to defend their private property rights from zoning.
Finally, under the issue of regulatory takings, I'd like to mention that, although there is a thriving industry of well-engaged legal battles in New York over zoning and even a conservative legal foundation in New York City, there is little capacity for ordinary citizens to defend their property rights. We formed the Property Rights Legal Foundation in response to this need. The need for affordable legal defense of property owners is true across the Northeast.
6. Eminent domain
Ironically, the lawmakers and governor responded quickly and forcefully this year to protect communities that were in the path of a proposed regional power line, which is a classical use of eminent domain, while the governor took two years to sign a bill merely requiring property owner notice of eminent domain. Municipalities are expanding their use of eminent domain, from Brooklyn, where the dispute over the Ratner Atlantic Yards stadium and redevelopment rages, to the little village of Corinth near my home, where the village board just voted to condemn the former International Paper industrial property because they fear that a waste incinerator will be built.
It might be proposed that the injustice of the U.S. Supreme Court's 2005 Kelo ruling allowing eminent domain to transfer property from one private party to another be corrected through the process of a statewide referendum, but New York law does not allow initiative and referendum. (9)
In response to the Kelo ruling, the Legislature has become intensively involved in the eminent domain issue. This year, various committees of both houses framed bills for procedural reform and for reform of the definition of the "public purpose" or "public use" for which property can be condemned. In addition, legislation to appoint a broad-reaching commission to look at the issue of eminent domain came close to passing both houses.
It was interesting presenting expert testimony before one of the joint legislative committees, where we faced powerful enemies in the big municipal associations. I had expected that the major Washington, D.C., organization working for eminent domain justice would be vigorously on our side. Instead, I was surprised to hear their spokesman say that they took no position on the Eminent Domain Ombudsman bill, because it was mere procedural reform. This was "our" bill. (10) This expert witness advocated a revised definition of blight rather than a pure prohibition of condemnation of private property to transfer to another private party, because he felt that the latter was too radical to expect success in the New York. At the three series of legislative hearings during 2005 and 2006, I had argued for no exceptions for any blight definition. As a result of this lack of consistent viewpoint on important points among the organizations on our side, the New York Farm Bureau and the Property Rights Foundation of America stood together alone among the invited expert witnesses at the final of three major Albany joint legislative committee hearings on eminent domain.
Congressional eminent domain reform was too little, too quickly. An eminent domain reform bill passed the House, with loopholes for the definition of "blight" that would allow condemnation for private use to readily continue. It is important in the future that individuals who have background in local building codes, zoning, and municipal corruption, which is rampant from small towns to large cities, be consulted by those who are framing eminent domain reforms. Exceptions for the prohibition of eminent domain for private redevelopment that allow condemnation for "blight" defined as building code violations, taxes in arrears, low lease rates, and the like will not protect property owners. (11)
I do not think that a good eminent domain reform bill, either for procedural reform, such as the Ombudsman or fair notice and compensation, or a bill for basic reform of the public purpose/use of eminent domain, has significantly less of a chance of passage in New York than a bill that compromises too far or creates a framework for condemnation of private homes and businesses under definitions of "blight." Our Legislature has bipartisan eminent domain leadership. Our chances will be better if all experienced advocates for property rights communicate and work together.
(1) Colin Crawford, "Effects of the Bond Act Defeat," Environmental Law in New York, Berle, Kass & Case, Vol. 2, No. 1 (Feb. 1991), p. 14.
(2) On Earth Day 2004, Gov. Pataki announced
the International Paper Co. transaction. In April 2006, IP announced
the sale of 275,000 acres to Lyme Timber Company for $137 million;
included were 257,000 acres under conservation easement, according
to the Glens Falls Post-Star (Erin Demuth, "IP approves
sale of 275,000 acres," April 12, 2006,
(3) Modification of the common law to allow conservation easements was facilitated by the Uniform Conservation Easement Act of 1981 of the National Conference of Commissioners on Uniform State Laws, Chicago, Illinois (approved at its Annual Conference in New Orleans, Louisiana, July 31 August 7, 1981), and subsequently enacted in many states.
(4) In addition to the 690,000 acres of conservation easements, the State DEC lands include fee simple: Adirondack & Catskill Forest Preserve: 3,000,000 acres; State Forest, Reforestation & Multiply Use Areas: 776,000 acres; Wildlife Management Areas: 190,000 acres; and, separately, the State Parks Office land includes: 311,000 acres parks and 7,000 acres historic sites. Also, the State Thruway Authority owns 24,000 acres of Barge Canal Lands and 12,000 acres of Reservoirs.
The Federal government owns 140,000 acres of Wildlife Refuges, Historic Sites, and Recreational Facilities; and 16,000 acres National Forest.
Local government owns 196,000 acres of landholdings. The New York City Watershed owns 60,000 acres in fee and 16,000 in conservation easements. NY State Agriculture and Markets owns 36,000 acres of farmland PDRs.
See Draft Open Space Conservation Plan, New York State Department of Environmental Conservation, Nov. 2005, p. 65.
(5) Patrick O'Driscoll, "Report: Conservation efforts offset land lost to sprawl," USA Today, November 30, 2006, p. 1.
(6) Furthermore, because the owners have already received the cash flow for the major fraction, as much as 85-90 percent of the valuation under New York law, they retain relatively little financial investment related to the land, and this argues against their attachment. Also, in the short term of 25 to 50 years, because of the widespread custom of heavy timber cutting before sale of fee simple or conservation easements to the state, the land is often depleted of potential timber harvests and has lost value for income or resale purposes.
(7) Michael Virtanen, Associated Press, "Pataki hopes to complete land legacy," Press-Republican, Plattsburgh, N.Y., April 22, 2006
(8) "In conclusion, the land use reforms necessary for reinvigorating the beneficial influences of a functioning real estate market and, thereby, reducing the high Cost of Housing requires (sic) a transition in land use planning from Government Planning to Market-Oriented Planning. The first stage entails 1) the creative destruction of Long Island's Balkanization, accomplished by reducing the number of zoning jurisdictions from 110 towns, villages and cities to only four (4) zoning jurisdictions: Suffolk County and Nassau County and the two cities, Long Beach and Glen Cove." Clifford Sondock, President, Land Use Institute, Jericho, New York, "Long Island's Housing Dilemma," p. 30, (italics in original); presented at "New Visions of Suburban Life: An Interdisciplinary Conference," March 18 & 19, 2005, at Center for Suburban Studies at Hofstra University.
(9) The only ballot measures that can be entertained in New York on a statewide voting basis are constitutional amendments and bonding proposals, after passage by the Legislature; or, in the case of constitutional amendments, also by constitutional convention, followed by referendum.
(10) The bill was pre-introduced last December by the Legislature's leading eminent domain reformer, Assemblyman Richard L. Brodsky, whose legislative director Jim Malatras wrote the bill as a result of speaking at PRFA's Eighth and Ninth Annual National Conferences on Private Property Rights, on the eminent domain panel with Craig M. Call, the Utah Ombudsman, after whose position the bill was modeled.
(11) This communication problem parallels the challenge in the Committee on Resources of the U.S. House of Representatives to produce a good Endangered Species Act reform bill a year ago. The private property rights sector was able to respond only after an initial bill reflecting industry interests was drafted; a second stage allowed framing of the final bill to protect private property rights. However, both the defective bill and the bill that would have protected private property rights were doomed in the Senate.