Property Rights Foundation of America®


ZONING IS NOT THE ANSWER

By Carol W. LaGrasse
President
Property Rights Foundation of America

Austerlitz, New York
May 22, 2006

"Fourscore and seven years ago our fathers brought forth upon this continent a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal."

Oops, wrong speech!

"When in the Course of human Events…"

No, no, no, that's the wrong one again! Not the Gettysburg Address, not the Declaration of Independence…

Here it is:

"Friends, Romans, countrymen, lend me your ears;
I come to bury Caesar, not to praise him.
The evil that men do lives after them,
The good is oft interred with their bones."

Mark Anthony in the hands of Shakespeare, in Julius Caesar, of course, began his oration with innocent intonation. He drew the people to him in their affection for the assassinated Julius Caesar, and gradually with consummate skill , turned the great assembly, not to tribute, but to vengeance.

Zoning is like all this…So confusing. Which speech did I mean?—which clause, where is that definition?

But zoning is even more like Mark Anthony's immortal speech—all innocence, and suddenly, it hits you with a vengeance.

***

Thank you, Sue Geel and the members of ACT, for the privilege of speaking today at this special meeting called by concerned property owners in the town of Austerlitz. My speech, entitled "Zoning Is Not the Answer," will discuss the other side of zoning. Millions of dollars of tax funds, grants, and the wealth of non-profit preservation organizations, coupled with the professional cadre in state and local government, the non-profits, and consultants, hammer away on the need for zoning in New York State. Because these advocacy groups and individuals have been stymied in passing statewide growth management legislation, they work through local towns and villages, where the decision to enact zoning still lies, to accomplish their interest-driven agenda.

Powerful and widespread land preservation devices already exist in New York that control land use through regulation or ownership by the State or non-profit land conservancies.

New York State and the federal government already have wetland regulation, endangered, threatened and rare species habitat protection, State protection of historical and archeological resources, federal interstate river basin commissions, a State zoning agency that controls land use in the twelve-county Adirondack Mountain region, a similar agency controlling land use in the Long Island Pine Barrens, New York City's power over land use in the Catskills and much of Putnam and Westchester Counties, a state commission with regulatory power over land around Lake Ontario, and regulation of land use through state and federal Scenic Byways and federal All-American Road designations. These are state and federal agencies regulating land use in New York.

In addition to state and federal agencies regulating land use in New York, the State and non-profit land trusts have a virtual blitzkrieg of land purchases to acquire rural land in this state. The State Department of Environmental Conservation (DEC) and the non-profit land conservancies work hand and glove so closely that it is hard to tell which entity makes the decisions about land acquisitions. Since Governor Pataki took office, according to DEC, the agency has acquired outright or protected through conservation easements over 923,000 acres of land in the State's Open Space Plan.(1) DEC now owns 3,960,000 acres of protected lands plus 690,000 acres of conservation easements. The State parks office owns another 318,000 acres.(2)This means that the State owns over 4,000,000 acres of forest preserve land, park land, and the like, plus nearly 700,000 acres of forestland conservation easements. It is my opinion and, as of this April, the expressed opinion of one of upstate New York's most cogent preservationists, that the conservation easement lands likely will someday fall into State ownership. (3)

The federal government is not a very big holder of preservation land in New York, but it is indeed working steadily to expand some of its key holdings, such as the Finger Lakes National Forest.

The big players in preservation land deals in New York are the preservation groups—The Nature Conservancy (the wealthiest environmental organization in the world) based in Arlington, Virginia; the Conservation Fund based in Pittsburgh, which specialized in corridor lands; the Trust for Public Land based in San Francisco; the Open Space Institute, a Rockefeller-founded land trust in Manhattan that focuses on New York; Scenic Hudson; and the Hudson Highlands Land Trust. OSI and the Highlands group got a virtually limitless infusion of money to buy land when Laurence Rockefeller got control of the Wallace's fortune from their Reader's Digest before they died. Active in New York is also the nationwide American Farmland Trust, founded by the Rockefellers and Mellons. The Land Trust Alliance in Arlington, Virginia, births and nurtures local land trusts to carry out the land acquisition work in a couple of thousand localities across the country. Since Patrick Noonan was at The Nature Conservancy, before he founded the Conservation Fund, the modus operandi of that giant organization has been to buy land and flip it to the federal and state governments, and this is standard land trust procedure because it is the most effective way to renew the organizational treasury to buy more land to preserve biodiversity, which Noonan introduced as TNC's vastly more ambitious goal than simply maintaining specific privately owned nature preserves.

So here we are in Austerlitz, Columbia County, on the eastern border of New York. You may not have followed the grandiose land acquisitions and regulatory schemes going on in the Hudson Highlands, the Hudson River Valley, the Shawangunks, the Catskills, and, especially, the Adirondacks. But you should be watching the acquisitions in the Highlands, lower Hudson Valley and the Berkshires, as well as the Sterling Forest, the entire area around the Bear Mountain Park and Interstate Park, and the New Jersey Highlands on the New York border—with the recently passed state preservation regulations modeled after the regulations for the Adirondacks, the New York City Watershed, and the Long Island Pine Barrens.

What the environmental preservationists do is look at the long-term scale. Twenty years ago, the regional environmental planning maps showed the stretch from the New Jersey Highlands at the northern boundary of that state, across the lower part of New York in Rockland County, where there is so much state park land, to the Hudson Highlands in the Beacon-Fishkill area as an area to be preserved. Some of the land trusts I mentioned and the DEC have been playing games to tie up these lands and acquire them. But the vision has expanded and you are part of it.

Visualize the topography, development, and borders of Vermont, western Massachusetts, western Connecticut and the Taconic Ridge of New York from this area southward, across the entire breadth of Putnam County, the Hudson Highlands, across the Hudson to New Jersey. And don't stop there, considering that the environmentalists are now visualizing a great corridor of preserved wildlife habitat all the way through New Jersey, eastern Pennsylvania, and finally through the Appalachians at the borders of Virginia and West Virginia, the existing National Parks, and so on, and further southward. (4)

At the same time, keep in mind the restrictions and land acquisition to the east of Austerlitz, in keeping with the Hudson River Greenway, as the Hudson River waterfront is gobbled up by the land trusts, etc., and town by town buys into the New York State's Department of State's restrictive greenway zoning, somehow not facing the fact that a greenway is a preservation corridor and that they are enacting laws to make much of their towns into preserves.

So Austerlitz is at the edges of and between two great geographic preservation drives.

But zoning for preservation—the purchase of development rights, the conservation easements, the so-called "anti-sprawl" large lot rules, the hamletization of towns, the highway viewshed protections, and the like—is also something that the professional planners advocate without necessarily being involved in the grander scope of things, the environmentalist's callous drive to depopulate rural areas, or even seriously involved in the radical environmental preservation groups like The Nature Conservancy. With few exceptions, professional planners are a world unto themselves, and they would entice the good people of self-reliant small towns like Austerlitz unto their world.

The people of the town likely know that New York State grants are rather generously available for planning studies, and that professional consultants perform these studies and prepare the recommendations. Since all of the consultants think basically the same, e.g., ask roughly the same questions, use the same vocabulary, have similar education, and basically have the same ideas about what towns should be, the study results and the planning recommendations are remarkably similar from town to town.

For instance, the professional consultants do not perform studies of land acquisition by non-profit land trusts and the state and federal governments, analyze the time frame of this land movement, and predict the future destination of land title in the particular town and the county involved, much less recommend courses of action to preserve private land ownership, if this might be a preference of the landowners, or the general population. At the present time, it appears from a map published by the local land conservancy that about ten percent of the land within Austerlitz is protected by either fully deeded preservation or conservation easement; I am unaware whether the conservancy has proposed a plan for the ultimate acquisition of land for preservation by full deed or conservation easement. It is unlikely that the town itself has done a study of land title movement trends that includes a predictive component.

Yet, by far the biggest transfer of title of land from one purpose to another in New York State, both annually and cumulatively during the past twenty years, is from private ownership to government and non-profit ownership, either as fee simple or conservation easement, for environmental preservation.

In fact, the planning consultants do not ascertain what questions to ask from a broad range of the population at all. Instead, they create an intellectual environmental that suits their purposes. Somehow, all the planners think that "visioning" over several meetings, which they portray as an intense "charrette" process, where the public is divided into little focus groups, is the way that the people should be guided. It is quite odd to see planning consultants explain, as though they are unlocking some kind of exclusive door to their high-minded world, that the concept of the charrette was developed to call to mind the Beaux Arts school in Paris over a century ago because a charrette is a cart — the vehicle by which the architecture and art students had their intense final productions transported to their professors.

It is a singular world we enter, the world of zoning. The focus group meetings are an effective manipulative tool. The little groups of townspeople deliberate the answers to the questions posed by the professional planners. A particular person dominates each group, reports from the group. The person at the head of the room notes the reported conclusions of each group. Ideas slip out and other ideas gain in ascendance through purported "consensus" as the meeting progresses, presided over by the planning consultant with the preconceived notions about what is good for the town.

Finally, there will be a slide presentation and maps. Somehow the slides often look almost the same from town to town, with the consultant changing the nameplate and the specific displayed buildings, but the layouts seemingly drawn from one design text. The recommendations for the town center invariably involve tourism — antique stores, bookstores, places to stay, little upscale restaurants, and the like, and the towns are quite spiffy and a bit quaint…Nothing like the little town where I live, which is a mix of the good and the less attractive, where little kids play in the yards and the park, seniors take their exercise up and down the edge of the road, teenage boys dismantle cars, stacks of firewood of every nature gather seemingly on their own everywhere, people drive to and from the general store, breakfast and lunch restaurant, the post office, dance hall and bar, and especially, the myriad places where they work, mainly a reasonable commuting distance away; and there isn't one antique store or bed and breakfast.

And then there is the countryside. To an outsider, there is open land interspersed with houses. But to a local person, there are often activities in these houses and their garages. For instance, a young man may have a little auto repair shop. As he gathers satisfied customers, the business grows. But, the planner would zone the outlying area as open space, forestry, agriculture, and the like. Not only is the minimum lot size to be zoned rather large—and therefore expensive for a local young couple to purchase, but it is zoned for a particular activity.

The advocacy for large lot zoning is ironic, considering that it uses up "open space" land more efficiently than small lots would. So, unless it goes to extremely large lot sizes of, say, 50 to 100 and more acres, this aspect of anti-sprawl zoning actually encourages sprawl.

At the meeting for the public to express their comments, the question comes up about the businesses in the houses and garages around the countryside. A man has a few pieces of heavy equipment for his logging business. Are they exempt? Yes, you will be grandfathered. A woman has a growing interior decorating business. Will she be able to continue? Oh yes, you will be grandfathered. The repair shop will be grandfathered, too.

However, the explanation for the word "grandfathered," which is actually somewhat technical, is unlikely to be offered by the consultant. In most zoning systems, "grandfathered" means that the business can continue under the same owner and at the same scale and in the same building. Generally, the young man's business, which would naturally expand as his clientele and family grow, will not be allowed to expand. No new buildings will be allowed, either. Some zoning jurisdictions are more severe, requiring that, after a so-called "amortization period" of, say, twenty years, the non-conforming business be phased out. But, in any case, grandfathering basically weeds out non-conforming uses little by little

There is a perfect logic for this. The goal that has become part of zoning plans because of the leadership of the preservation element and the consistent theorists is to make the rural countryside into one of little town centers surrounded by open land, occupied with either agriculture or forest.

As you probably know, the farms of the hilly countryside of New York and the Northeast have been growing back into forest for a century. Now, there is more forested land in New York than there has been for 150 to 200 years. But this regulation through local zoning brought about by outside planners will only cause even more of New York to grow back into forest. Such zoning would only add to the somewhat logical restrictions on development on slopes that the Town of Austerlitz already has in place.

Even though the countryside is going back to nature, the planners explain how the State of New York has funds to buy up development rights. Or the town may pass a law to buy the development rights with State funds or perhaps local bonds. The government buys from the landowner a conservation easement, which is a deed to the rights to development of the land or a deed extinguishing the development rights, and possibly additional terms, and the landowner is left with the land that can be used, generally, in agriculture and forestry. The conservation easement holder becomes, technically, the superior owner, and the landowner becomes technically the residual owner. The conservation easement is usually perpetual, and there is no provision to renegotiate the terms if the contract becomes unworkable in a practical sense. Conservation easements are technical and often have unnoticed, burdensome clauses, such as the requirement to actually do something that costs money to protect wildlife. Clauses such as these are usually not fully explained to the landowner.

The conservation easement is a favored transaction of both professional planners and the radical preservationists across the United States. So, you see, the planners inadvertently work hand-in-glove with the radical environmental preservationists who have published their idea to restore the American countryside, through the creation of wildlife movement corridors, or greenways, and giant preserves, to a wilderness where the grizzlies, wolves and cougar freely roam and human beings are only occasional visitors.

Generally missing from today's professional planning, also, are the studies of the potential to develop infrastructure industries without which the larger region cannot carry on. For instance, an area may be rich in limestone, the raw material for cement, and therefore could host a cement plant, if investors were keen on it. Cement is needed to make concrete, which is used in virtually all construction from bridges to houses to malls to highways. Or the area may have steady winds and could host a wind farm.

But the typical planning proposal by planning consultants serving small-town New York is not really the conclusions resulting from a true study and analysis, but a pre-conceived zoning layout, with a pre-conceived set of land use regulations for preservation.

The zoning rules always have far too much detail to be comprehensible to the average person. For instance, the proposal for Austerlitz includes extensive site planning details that overlap confusingly with the town's existing site plan review law.

Another aspect of zoning that is never presented with the results of the planning study is the potential for litigation, which can divide a small community and which can be costly for the landowner and the taxpayers. Since zoning involves so many rules, and the rules do not work for everyone, and some of the landowners are invariably hurt badly by the rules, landowners do sue. Zoning law as a means of controlling the use of private property is viewed favorably by almost a century of court rulings, but the courts have shown time after time that the powers of zoning officials are not limitless and have placed many constraints on the government when it applies zoning. Zoning statutes and zoning officials do not get everything right and landowners can cost the town money litigating while they win their point.

Land use regulation can be a source of bad feeling in a town and stimulate neighbor against neighbor. This is especially ironic, considering that in the pre-zoning world, usually the townspeople had few conflicts over land uses, which often could have been settled with negotiation and courtesy rather than force.

But where I came in, where the Property Rights Foundation of America was founded, was because zoning really harms people by taking away their rights. On the other hand, zoning also doesn't protect small property owners and farmers when powerful interests want land use classifications and other restrictions changed.

Zoning removes people's choices as they decide on their future. After moving from a community on Long Island in New York City, the first local zoning conflict I saw first hand in the North Country was in the early 1970s in my own town of Stony Creek. The regional planning board had led the town to appoint a local planning board and had written a mobile home ordinance for the planning board to present to the town board to enact. My husband Peter and I were taken aback that the officials could contemplate passing a law that would hurt the young couples that would be starting families in their home town. It was the first time that Peter and I did any community organizing, but we got the townspeople out to the hearing, packing the town hall with angry men. The shocked town fathers backtracked and shunted the blame for the mobile home ordinance, which they had never read, off to its author, dropping the idea in embarrassment.

The planning board resigned en masse. The town board appointed Peter the new chair of the planning board and he brought in a cross-section of people of many different backgrounds, including a logger, a mill-worker, and a teenager. Together, they designed the layout for the town park, for which the town had just purchased the land. Although he has a degree in architecture, Peter didn't run the show, but used his training to help them see how their own ideas would fit together and did a presentation plan for them to the town board.

But the people knew that the mobile home ordinance would hurt them and they stopped it. They prevented a lot of grief. The Property Rights Foundation of America receives more requests for help dealing with local zoning than with any other private property rights issue. One of the most common situations where people run into difficulty is with a small business in an area that has become zoned for a narrower use. One of the most interesting calls over the years was from a farmer near Hartford, South Dakota, an area that is neither built-up nor a wealthy. The man was found in violation of zoning and ordered to close down his business. He had gradually built up an agricultural equipment business on his farm, but it was deemed inconsistent with the classification of "agricultural" for his land. But without the equipment business he could not survive on the farm, and it wasn't feasible to move it elsewhere.

Because of the wrongful decision of the United States Supreme Court in the case of Susette Kelo vs. the City of New London a year ago, people all over the United States are cognizant of the need to protect private property rights. In that dispute, the high court outrageously ruled that private property can be condemned to transfer it to another private party for the purpose of economic development to increase tax revenue. This decision went against the grain of the fundamental tradition of respect for private property of this country and against court rulings up to the 1950s. But it stands, and right now the New York State Legislature has excellent bills that would prohibit the condemnation of private property for all but traditional public uses, such as highways, parks and the like.

It has been encouraging to invited by the Legislature, by heads of committees of both the Democratic and Republican parties, to present my ideas of how to reform the state's eminent domain law to restore fairness to the property owner.

One of the ideas that has been submitted in the New York Legislature, and just passed in Connecticut, is to establish an eminent domain ombudsman or property rights ombudsman, modeled after the office in Utah that has been very helpful for property owners and has saved the state a great deal of litigation. This approach, rather than a punitive, regulatory one, is a better way to deal with land use issues. For instance, a local town could encourage voluntary zoning that would apply to only the property owners who wanted to compact with each other, and the town could provide an office to resolve disputes short of litigation among such property owners. A property rights ombudsman could help by mediating ordinary property disputes, such as those over right-of-way easements, drainage problems, or minor boundary disputes, or act as a knowledgeable advocate for the property owner in dealing with site plan review or DEC wetland issues.

I think that the Kelo case demonstrated to people that private property rights go deep and that they are vulnerable. The time is here to turn back to the future, as the cliché goes.

James Madison, the author of the Takings Clause in the Bill of Rights, 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." (5)

Your private property rights are an extension of yourself. Without private property rights, the fruits of your labor, your security in your home, your fundamental security in every respect, your freedom or religion and freedom of speech, are threatened.

If a town is not flourishing or if new ways are desired by many people, the town leaders have an opportunity to delve into the future hand-in-hand with the townspeople, not by degrading their private property rights, but by looking for ways to free up their future.

Consider the City of Anaheim, California. In a recent article in The Wall Street Journal(6), Steven Greenhut, senior editorial writer of the Orange County Register and author of Abuse of Power, a penetrating book on eminent domain, told how the city had the option of going to typical urban redevelopment by using eminent domain, but instead created a land overlay zone that chucked all the regulations that held back the creativity of the property owners. Today, the downtown area is booming, without controversy.

In the wake of Kelo, I think that people should understand that this is the way we should be going. With freedom, people will be inspired to do what is best for themselves. They do not need planners putting effete words into their mouths, conducting phony studies, and designing formulaistic zoning. They absolutely do not need powerful outside preservation interests forcing them, influencing them, and deceiving them into giving up their land and the rights to their land. They need options to allow their children to find their way in the future without a straightjacket of land taken out of private hands and land use regulations. In spite of the conflicts our nation faces, these are splendid years of opportunity, good health and prosperity in America. It is a time to celebrate our freedom—and our private property rights. Please join together to return to a reliance on the rights for which so many have sacrificed so much. It is time to build on the foundation of private property rights that is our rightful heritage.

Notes:

(1) "Fellow New Yorker" letter, Denise M. Sheehan, Acting Comm. DEC, Bernadette Castro, Commissioner, OPRHP, Frank P. Milano, First Deputy Secretary of State, November 2005
(2) Draft New York State Open Space Conservation Plan, 2005 — Prepared by DEC, OPRHP and DOS — November 2005, p. 65
(3) Neil Woodworth, executive director of the Adirondack Mountain Club, quoted in "Pataki hopes to complete land legacy," by Michael Virtanen, Associated Press, Press-Republican, April 22, 2006: "'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.'"
(4) "Highlands Critical Treasures," web site of Highlands to Ocean Fund (H20), Highlands Stewardship, Appalachian Mountain Club, Regional Plan Association, January 2004
(5) James Madison, quoted from The James Madison Letters 478 (March 27, 1792), cited by Mark L. Pollot in Grand Theft and Petit Larceny—Property Rights in America, p. 98 (1993), as quoted in Bernard H. Siegan, Economic Liberties and the Constitution, p. 58 (1980)
(6) Steven Greenhut, "The Anti-Kelo," The Wall Street Journal, p. A15, April 6, 2006.

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