Greetings and thank you! It is an honor to be here. I represent the Property Rights Foundation of America, Inc. So the topic today is an overview of property rights around New York State. At our Twelfth Annual National Conference on Private Property Rights that is coming up on October 18, John Marwell will be addressing "Zero Growth Zoning." In fact, our theme will be "The Other Side of Zoning and Building Codes." My talk tonight will touch on some of the issues to be dealt with in more depth on at our conference on October 18. However, tonight I'll omit the status of litigation in New York State, and leave this to John Marwell.
September 11, 2001
On the seventh anniversary of 9/11, much could be said about this abominable attack, especially about the heroism of rescuers and corporate workers, and the lives cut short. But, instead, I'd like to discuss the building code issue that was brought to the front page of The New York Times on Monday.
Because I worked for a number of years in Manhattan as a civil engineer, after the attack, many upstate people from around where I live now asked me if I was ever in the World Trade Center and what I thought of it. My reply was that I never entered it because I chose to, but that on two occasions I had to, as a result of business. Why didn't I want to enter the building? With business on the upper floors, I felt that the possibility of exiting in an emergency was very difficult. I happened to have worked designing structural steel for skyscrapers when I first graduated from CCNY, so I have some interest in this subject.
As you know, after the fire, a lot of scientific and engineering work was done to investigate the structure and particularly the fire resistance and the means of egress of the twin towers. The National Institute of Standards and Technology issued a report that served as the basis of safety requirements for increased fireproofing and an extra emergency stairwell for buildings over 40 stories. These requirements were added to the country's most widely used building code, the International Building Code.
Now, here's the irony, and I'd like to ask you to keep it in mind as I run down a brief description of the zoning and building code injustices in New York and ask you whether any of these might be dealt with through federal or state intervention that would make the situation, either less costly or more respectful of individual rights.
The irony reported on September 8 in the New York Times: David Frable, a General Services Administration fire safety engineer, wrote a petition by the agency to the meeting this week of the Codes Council asking that the new skyscraper fire provisions be repealed. He is joining some of the nation's biggest landlords, according to the Times, who are arguing that the new standards would be too expensive to meet and that 9/11 was a singular, not-to-be-repeated occurrence.
The faults of the Uniform Code were to be remedied: An additional hard exit, with heavy fireproofing and independent lighting was to be added. The World Trade Center had even violated the New York City code: Roof exists were bolted off. Many people had died trying to get out to the roof while rescue helicopters hovered fruitlessly outside ready to lift them to safety. Now the experts had agreed to add the third fire stair, a glowing stairway and 1,000 pound per square foot impact resistance.
The federal agency suddenly sided with developers, citing expense. This demonstrates a federal agency's willing to go to bat in this area, to save money, even when lives are at stake. But is any federal agency willing to go to bat for you?
Historic Preservation and Religious Institutions
Now let's turn to an everyday New York property rights issue. In the older cities, such as New York City, there are many beautiful, historic churches that are struggling to continue their ministry in the fact of declining membership. One such church is the gothic style United Methodist Church in Bay Ridge, Brooklyn. It is known as the Green Church, because of its green sandstone exterior, which is spalling. However, there are not enough members to support the building and the church plans to sell to developers, allow the edifice to be town down and move to more modest quarters to carry on its ministry. This brought countless people who do not belong to the church, who said that they loved what they referred to as "their" church and the battle was on. This battle could be waged because the demolition, etc., needed a city permit and the permit process allowed the evaluation of historic significance.
A similar battle, against the Historic Preservation Board of Washington, D.C., just went to federal court, where the Third Church of Christ, Scientist, sued to overcome a historic designation of the 37-year old Modernist building. These churches are helped by the United Stated Bill of Rights, the Fourteenth Amendment, and a federal law passed during the Clinton Administration, the Religious Land Use and Institutionalized Persons Act, known as RLUIPA.
This area is the only one where you get federal support for your property rights.
Typical NIMBY use of the Site Plan Review Process and Zoning
Here in New York, we have the good fortune of many people moving to the rural countryside to enjoy the quiet beauty. Did I say good fortune? Well it's not all good, if you would like to have some development on a larger scale than the new residents are comfortable about.
The residents in New Scotland, which has become a suburb north of Albany for government workers are very articulate and don't like the size of a proposed store. They have held up the permit process with a typical tactic, a moratorium on new construction while the zoning is rewritten. But even this is not enough. They are fighting among themselves. Some of them would like to restrict the square footage of the store, and some of them are devoted to the current fad of New Urbanism style of little village centers that they expect that the town can dictate to the store developer. The internecine battle among the various factions shows no sign of being settled, while the property owner waits.
This situation would be dealt with under the "Vested Rights Bill" that the Builders have been promoting, now obstructed by the environmental interest groups.
Zoning and Utility Development
A property rights issue that is precipitating inquiries to the Property Rights Foundation during the past two years is wind energy development. People contact PRFA for every imaginable reason: opposed for aesthetic reasons, concern about noise, and because of their fear of Electromagnetic Field and because they fear the use of eminent domain for the route of the transmission lines. Individual landowners who would like to rent their property for a wind tower call because they have met up with these people during the local town permit process. The municipality can drag on the zoning process interminably, forcing the property owner to appeal to a court of law, which is exactly what is happening now out near Rochester.
And not only the local municipality can hold up energy production. In the twelve counties designated as the so-called "Adirondack Park" stretching from a relatively short distance north of the Mohawk River/Erie Canal almost to the Canadian border, the state zoning agency stands in the way of wind energy because of supposed environmental reasons. But the issues are really aesthetic, considering that most of the area is also denied cellular telephone coverage, even relatively populous areas as where I live near the southeastern border. This affects not only business, but life-threatening situations. So, you see, visible utilities are targeted by environmental interest groups and agencies.
Is it possible that the federal government could supersede local zoning by issuing national scientific standards for siting of wind energy structures to deal with noise and EMF concerns? This might be an area for FERC (Federal Energy Regulatory Commission) involvement.
And considering the action of the federal government in the area of flood control and emergency planning, would federal supersession by FEMA (Federal Emergency Management Agency) be feasible where access to cellular telephone service is being denied?
Privacy Infringements Rental and Building Inspections
Imagine that you're about to take a shower or sit down to supper and a knock comes at the door from the building inspector.
A pet idea of municipal government is to implement yearly inspections of rental units without cause. The issue of privacy faces both the tenants, whose intimate living quarters are infringed on, and the landlord, whose private business matters and the interior of his buildings are intrusively inspected, without need of a search warrant.
City councils think that they have the right to extend the reach of building codes in this way to eliminate nuisances and fire hazards.
Furthermore, the state legislature got involved last year by passing a law allowing for inspections of non-residential structures by local building code officials without cause, supposedly for fire safety. The New York State Farm Bureau got into the act and got an exemption from the inspections for farm buildings. Ironically, farm buildings include old barns, made of century-old wood and with dry hay stored in the loft. The farmers also have an exemption from the law of nuisance, from the wetlands law, and from the state Uniform Building Code. Every time the Farm Bureau comes into the act, they split themselves off from the part they could play as an advocate for fair treatment of rural landowners. As a result, again this time, the bill was passed. And, rural legislators cannot be relied on to prevent such bills from passing; in fact, the State Senator from the rural district where I reside was a sponsor of the non-residential building inspection law.
The Institute for Justice has a case in Minnesota against these warrantless rental inspections, on the basis of privacy.
The environmental interests in New York State have an answer to the problem of wetland regulation. Add more regulation.
Owners of wetlands properties here in New York face state new legislation that is repeatedly submitted by DEC's advocates to make the officially promulgated wetlands maps just for advisory, not for jurisdictional purposes. (Already today, even though the maps are the rule, the DEC bamboozles property owners into believing that the law they want to pass actually exists now.) One of the other provisions that DEC keeps pushing is to reduce the wetland size where jurisdiction is triggered down to one acre from twelve acres. They want to add any wetland connected by a brook. Any subdivision containing wetlands anywhere would become jurisdictional for the entire extent of the subdivision. In this way, during their review, they can hit you with habitat preservation and the like.
And on the local town level, a third level of wetland jurisdiction, in addition to the federal jurisdiction, is often being passed.
A few years back, we had some excellent work being done in the Legislature, including wetland real estate tax abatement being led by Senator Owen Johnson and Assemblyman Robert Prentiss. A bill developed by Assemblyman Prentiss, who was defeated recently, is being carried on by Senator Michael Nozzollo. It would give homeowners an exemption from state wetlands law for a set distance from their house and for subsidiary structures such as a garage.
Killer Building Permit Application Fees
Exorbitant building permit applicant fees are an area of increasing difficulty for private property owners.
Local government, such as Islip on Long Island, is imposing fees in the thousands of dollars for permit applications. Outrageous impact fees may be added, in spite of the U.S. Supreme Court rulings in Nollan and Dolan cases requiring nexus and proportionality when the government imposes an exaction.
What about eminent domain? Is there any good news around New York for private property rights? Well, perhaps good people means that ultimately there will be good news. That can certainly be said for Assemblyman Richard Brodsky of Westchester. He submitted bills to improve the eminent domain law in New York State that would have made a big difference, as did Senator John DeFrancisco, who asked for an uncompromising definition of the "public use" that qualifies a property for eminent domain. But we are able to get nowhere, not even to passage of the eminent domain ombudsman bill that Mr. Brodsky sponsored or the Task Force to conduct hearings on eminent domain around the State that Senator Jim Alesi sponsored after the Senate published the three inch collection of statements from his hearings.
So the injustice, insecurity, and even the confusion caused by eminent domain here in New York is unabated. The battle is at the community level and in the courts.
Private Ownership of Rural Land
One of the most important property rights issues we face in New York State is maintaining private ownership of rural land. Some people are surprised that an organization dedicated to private property rights is so focused on keeping up our American heritage of private landownership. But this is fundamental to our system of freedom. Government landownership in New York is expanding exponentially. In the Adirondacks, the State owns three million acres of land outright, and these lands are declared off limits to logging and nearly all human activity. In addition to continuing to buy more land, the state has in just the past decade bought over 700,000 acres of split title to rural property in the Adirondacks alone, as what are called conservation easements. The title is about 65 to 85 percent of the full title by statute and the state's appraisals, and all development is prohibited.
The movement to create wild lands is spreading across the state. The first news letter that I wrote dealt with this issue in 1994. These days the word "wildlands" has entered the language, and new terms, used obscurely by only a few of us to expose the radical direction of the environmental movement are coming into common use. Such words as biologic corridors and land bridges are being applied even here in Westchester and Putnam Counties. A grandiose restored wilderness corridor is envisioned by the conservation biologists from southern Vermont, down through the Berkshires through this part of upstate New York, across the Hudson Highlands, through the New Jersey Highlands, down through eastern Pennsylvania to the Appalachian chain to allow for the unobstructed migration of plant and animal species. There is tremendous money behind this wildlands movement.
In their zeal to preserve a mountain or the like, ordinary people unwittingly join in the efforts to stop perfectly worthwhile construction. They kind of see only what's across the street and are completely unaware of the amount of forest land in this state. It has been growing back relentlessly since the turn of the twentieth century.
In fact, the "saving" of vast wilderness areas is a property rights issue and an issue for the state economy and we should keep it in mind. It relates to the recurring disputes over the use of local resources, whether it is the expansion of a local crushed stone operation or a cement plant, or the use of wood for construction timber or fuel, or the use of locally generated wind energy. I appreciate that the Builders and Realtors Institute keeps these land issues alive before the members and the Legislature.
And let's keep in mind that our rights deserve protection, and call our members of the Legislature and these agencies to account.