Property Rights Foundation of America®

Building Codes Today Are a Far Cry from Public Health & Safety Protections

TWELFTH ANNUAL PROPERTY RIGHTS CONFERENCE UNMASKS ZONING

History and Current Practice Favor Narrow Interests and the Wealthy

By Carol W. LaGrasse

The impression citizens often have that the latest zoning surge in their locality seems to cater to the move-ins and NIMBY's, should be no surprise if they know anything about zoning's history and current fashions. In delivering her opening address at the Property Rights Foundation of America's Twelfth Annual National Conference on Private Property Rights, Professor Lolita Buckner Inniss of Cleveland-Marshall School of Law at Cleveland State University pointed out that zoning began in New York City early in the twentieth century so that the established urban wealthy who dominated the city could protect their enclaves from the onslaught of masses of low class workers.

The unbroken thread continues to the present day, she demonstrated, where faddish new zoning themes such as "new urbanism" are based on assumptions that are unconnected to the lives of ordinary working people and utilize sophisticated approaches for public participation in "form-based zoning," such as the "charette," that foreclose the effective involvement of these people. Her scholarly but easily understood speech in Albany on October 18 showed the futility of the new urbanism approach to zoning. "It's problematic that you can do by design what has taken place spontaneously over a couple hundred years," she said.

Prof. Inniss's address set the stage for a concentrated day of insight into what is happening today in the world of zoning, with important additional views into property rights issues related to building codes. Her address was followed by Randal O'Toole, who traveled from Bandon, Oregon, to address free market solutions to urban problems.

Mr. O'Toole, who is a senior fellow at Cato Institute, excoriated the implementation of "smart growth" in his hometown of Portland, Oregon. He said, "In Oregon, nobody can do anything with their land without permission from everybody else in the state." He pointed to the unaffordable cost of housing because of new rules squeezing development into too small an area, and to the Soviet style of housing concentrated by law along unpopular "light rail" transit constructed to serve the massed housing. With a wealth of statistics from Europe and the United States, Mr. O'Toole, the author of The Best Laid Plans just published by Cato, proved that light rail barely reduces the use of the automobile, and that competitive incentives are the most effective method to speed urban traffic and reduce congestion.

Battles in Congress over Land Use Restriction

Two speakers from Washington, D.C., attorney Jason Knox and Robert J. Smith addressed land use reform on a broader scale. Mr. Knox, who is Legislative Staffer at the Subcommittee on National Parks, Forests, and Public Lands of the U.S. House of Representatives Natural Resources Committee, warned about threats to private property rights brewing in Congress. He said that our opponents have now found a way to label National Heritage Areas, wilderness corridors, and the like as economic redevelopment and economic enhancement. He said that we lose high-paying mining jobs, dock workers' jobs, and get "T-shirt industry." The opponents of property rights are going to need more land acquisition, he said, to supposedly fight global warming. In their zealousness, they are moving from "willing sellers" toward eminent domain. He especially warned about the 1,082-page omnibus natural resources bill to add new wildernesses, create trails and national heritage areas, remove lands from energy production, and so on—all in one massive piece of legislation.

Mr. Knox pointed out that Wild and Scenic Rivers were never meant to be designated in urban areas, as Rep. Barney Frank (D., Mass.) is advocating, with the intention of stopping a river crossing for a gas line. He quoted the National Park Service stating that they look at "what the River would say if the River could talk." He warned about the National Landscape Conservation System to codify President Clinton's wilderness designations to lock up mining areas.

Mr. Knox said that in the 111th Congress we can use the energy issue to stop legislation that affects private property rights, resource production, and private land ownership. "The public knows that we need energy production in the U.S. and need to get it to urban areas," he said. He asked, "Does your congressman know who you are?" He urged people to be in contact with their congressional staffer on their issue, because one person's viewpoint can incite respect. He said that practical experiences are needed by congressional offices seeking witnesses at hearings on bills that could affect private property rights.

Private conservation scholar "R. J." Smith, who is Senior Fellow for Environmental Policy at the National Center for Public Policy Research and Adjunct Senior Environmental Scholar at the Competitive Enterprise Institute, traced some important directions and players in federal trends that pose difficulties for private property owners. He explained how recent measures that affect property owners actually came about, in spite of victories during the past decades by conservatives in the Administration and Congress.

Drawing from his background as an ornithologist, Mr. Smith pointed to the irony of federal legislation, such as that to protect forests in the Northeast for birds, while the actual problem in the Northeast is that grassland birds have been vanishing because of widespread re-growth of forests. He pointed to the vast expansion of perpetual conservation easements, deliberately locking up land in one dominant use forever. "Landowners who like these programs—Turner, hobby farmers, doctors and lawyers—don't need to use the land to earn a living. They get paid and get tax breaks to not use land they never intended to use."

Keynote Address

The luncheon address by Don Corace looked at the great range of outrages that private property owners endure today, whether losing their homes and businesses from eminent domain for private development or going to prison for infringing on wetlands. He cited the example that $25 million was added to the cost of a medical center in southern California to protect a supposedly endangered type of sand fly. Mr. Corace, a Florida developer and published novelist, recently wrote the book Government Pirates: The Assault on Private Property Rights and How We Can Fight It (Harper Collins 2008). His best-selling book is a powerful overview of today's government abuses to private property rights. Marked by his calm urging that property rights advocates band together to be effective, his speech held tightly to his book's overall theme. After he finished speaking, people hurried to buy copies of his book and have them autographed.

Grassroots Speakers

After the luncheon address, the program offered a break in style for three civic activists to deliver five-minute statements about their efforts. John Salvador, Jr., of Lake George explained the basis for his lawsuit to remove a local official from office, and how the matter is initially handled at the New York State Supreme Court Appellate Division. The common question of how to seek removal of a public officer stymies people, but Mr. Salvador said that an officer can be removed for misconduct, maladministration, or malfeasance in office. Mr. Salvador has just sued to remove the Queensbury assessor for making unauthorized changes to real estate assessments after the final day when the assessment role was established.

Edwin Navin of Montreal, who is trying to stop a neighbor's bridge and right-of-way encroachment (Navin v. Mosquera) on his property in the town of Saranac in northern New York, ran through a long roster of steps in the expensive legal process where he is trying to have his surveyor's work presented in court so that he can be simply heard on the evidence of the validity of the right-of-way that he owns and his property boundary, a process so far to no avail. More than one observer at the conference remarked about what a commentary his bare bones factual presentation was about the great difficulty for an ordinary citizen to be heard in court.

The New York State Uniform Building Code, which the legislature mandated over two decades ago, was replaced with the state's tight adaptation of the International Building Code last year. Almost noone will speak publicly about the building code difficulties of which many people complain. But Kenneth Spitzer of the town of Reading in Schuyler County was willing to give a quick synopsis of how he extracted a certificate of occupancy from the town without allowing the building inspector to enter his house. He uniquely argued that his house was in place beyond the state's three-year statute of limitations for felony violations and was given the certificate of occupancy when he signed a waiver of liability forfeiting the right to sue the town in relation to any inspections he had resisted.

Leadership Defending Private Property Rights

An impassioned talk by attorney James E. Morgan of Delmar, N.Y., drew from his years of advocacy for private property owners faced with difficulties and threats related to conservation easements and "transfer of development rights" (TDR's). The latter are a method of supposed compensation when the government takes the right to use land. He pointed to the egregious use of TDR's to protect the underlying aquifers in the Long Island Pine Barrens, the New Jersey Pine Barrens, and on Cape Cod. He said that the government could use eminent domain, but they never take even one acre because eminent domain would at least give some individual rights. He said that with zoning, "We're progressing down the road in this country where the past is becoming the future. We're getting toward feudalism." He said that the Magna Carta is an expression of property owners stemming the rights of the sovereign. He spoke of the state infringements on land use in New York State, the Adirondack Park, Catskill Park, Suffolk County, even government controlling your outbuildings, your lawn furniture; but he said that the U.S. Supreme Court does not want to hear these cases. In closing, he spoke of the long-term work to counteract these infringements: "There's a price. We have to continue."

Resisting Zero Growth Zoning

John Marwell, a partner in the law firm of Shamberg Marwell Davis and Hollis in Mt. Kisco, N.Y., spoke on "Zero Growth Zoning." He said that the courts have decided not to second guess the zoning decisions made by local elected legislatures, and pointed out that in the Lake Tahoe case, the U.S. Supreme Court had legitimatized local declarations of lengthy moratoria as a legitimate planning tool. He said that for thirty years the law has been geared to slow growth, delaying growth, and that twelve-year delays are not uncommon. Wetlands were among the first tools to delay approval, then ridgeline protection and steep slopes, then buffer zone distances from wetlands were increased, and now viewshed protection and environmental subtractions so that wetlands are lost from acreage for density computations. The ordinary person doesn't understand it or thinks "it cannot affect me."

But, he said, "I don't want to tell you that the forces of darkness have won." In Putnam County, he said, newcomers were elected in one town and now we have to protect rock outcroppings in addition to wetlands. At this point, referring to the Builders Institute of Westchester and the Mid-Hudson Region, he said, "We helped to organize citizen taxpayer groups by pointing to the adverse impact on jobs." Long-term residents started saying, "This is the first time our property and our grandparents,' is worth anything." He said that the Builders Institute has begun filing amicus briefs, beginning with a SEQRA case and cases of zoning and tax exemption issues for religious groups. He said that this advocacy has been very effective. When residents came out for the hearing to oppose a new wetland setback law, the local town voted down the proposal 3 to 2. The Builders Institute is also involved in supporting the Vested Rights Bill, protecting an applicant from zoning changes after an application is filed. He said that when newcomers make a proposal to add more land use restrictions, we must challenge the basis of these proposals. "Get involved," he said.

Wind Power Meets Zoning

Attorney Alan J. Knauf of the firm Knauf Shaw in Rochester possesses a degree in environmental engineering from MIT. He said that efforts to develop wind power across New York and the U.S. are forced to fight municipalities, NIMBY's, and "somewhat hypocritical environmentalists." He pointed out that some of the hilltop areas suitable for wind development are also promising for gas development, and that these also need transmission lines. In his discussion of the arguments for and against wind tower installations, he paused to say that, as an engineer, he was dubious about wind energy. But on the morning of his speech he awakened from a nap during his train ride across New York to view the sunrise illuminating a windmill development. "It's just beautiful," he said.

Some of the best locations are the most visible, Mr. Knauf said, outlining several grounds such as aesthetics and the "flicker effect" that are commonly raised against wind development. He said that many of these rural areas do not have zoning. Towns can regulate wind energy conversion systems but cannot regulate wind measurement towers. Municipalities have a full range of regulation, from requiring variances to allowing wind towers and regulating such specifics as minimum blade height. Localities also use the imposition of a moratorium, but he said that the town would have to have a zoning ordinance in place. The public utility doctrine has been used to entitle wind power development to a lower standard of review. New York State ERDA offers incentives and New York State Department of Agriculture and Markets protects farming applications. He brought up a host of intriguing legal points, and mentioned that some advocates are looking at federal legislation to supersede local ordinances.

Protecting Privacy

Robert McNamara, an attorney from the Institute for Justice in Washington, D.C., eloquently brought the right of personal privacy to the forefront of building code issues. Municipalities are increasingly passing laws requiring inspections of occupied rental units, and the Institute for Justice has taken on the defense of tenants in Red Wing, Minnesota. The city's rental inspection law has a lot of classic marks of abusive administrative search requirements, he said. Mr. McNamara, a powerful orator, quoted Blackstone on classical English law, that even the for "meanest cottage" the right of privacy must prevail. It may be small, its roof may leak, but the King of England and all his forces cannot prevail, Blackstone wrote.

Mr. McNamara said that, in the intrusive searches today, the inspectors are authorized to open your closets, photograph the contents, put the information on a data base on the server at the police department and put the information on the net. He said that in cases like this, it is becoming all too common to try to shift the burden of proof to the tenant, and that the reaction against unwarranted searches has become less visceral.

Fighting for Fourth of July Fireworks

Marshall Sayegh, who is the president of the new Mendocino County property rights foundation, flew in from California to share his saga of the attempt by the little town of Gualala to continue its Fourth of July fireworks display after being ordered to cease and desist this year by the California Coastal Commission. The Commission has not always won when faced off in court by property owners: Witness the U.S. Supreme Court's decisions in Nolan and Evangelical Lutheran Church protecting coastal property owners from unconstitutional exactions. The Independence Day celebration, which was an economic boon to the town, was stopped because of the commission's claim that nesting birds would be threatened, even though the fireworks are invisible from the nesting rock and the fireworks could not be heard over the waves. The Pacific Legal Foundation is taking on the California Coastal Commission for the town.

Foreign Intrusion on County Soil — A Zoning Tool

Albert Wassenhove of Ghent, N.Y., had a success story to tell, and he eloquently distributed the credit to a number of people. After reading the Property Rights Foundation of America's bulletin warning about the National Park Service's proposed listing of UNESCO World Heritage Sites, including Olana in Columbia County where he resided, he immediately called county officials. Olana is the Italianate villa and hill-top estate of eighteenth century Hudson River School landscape artist Frederic E. Church. Mr. Wassenhove learned that a county resolution of support had been sought for Olana to become a World Heritage Site. However, there had been no mention of UNESCO or the United Nations.

As a citizen, Mr. Wassenhove used the local media to systematically warn people about the proposed listing. At the same time, he worked with county officials and the state legislator. He pointed out that the region did not need the assistance of another layer of control over the land. As a result of his action and that of other key individuals he credited, the proposed Olana site was rejected by the Park Service's Office of International Affairs. Olana was the only site to be removed from the proposed list. Mr. Wassenhove pointed with appreciation to the full luncheon table at the conference that was seated with Columbia County residents.

Religious Institutions Facing Zoning &Preservation

Almost nothing fails to escape the purview of government today. And so religious institutions and practices face restriction by zoning, building codes, and historic preservation. In a moving finale to the conference, attorney Roman Storzer of Storzer and Green, which is based in Washington, D.C., delivered the closing address on the rights of religious institutions facing zoning and historic preservation.

"In no other area is religious expression as greatly restricted as in land use regulation, with the possible exception of the prisoner," he began the substance of his speech. "That's where most of the religious liberty cases are coming from."

"Most people feel God gave them the right to practice religion," he said. "This belief comes into conflict with one held with equal fervor, by planners….Municipalities can usually find a way to stop any group from building anywhere." He emphasized, "The actions go beyond the pale. There should be a more reasonable standard."

Mr. Storzer is currently litigating the case of the ninety-year-old Third Church of Christ, Scientist in Washington, D.C., against the Historic Preservation Review Board's landmark designation of the church's 37-year-old edifice. The crumbling building, which is in the Brutalism style, looks like a concrete box and is much too large and expensive for the small congregation to maintain. The Washington Post said it is "probably the city's most depressing and oppressive architecture." The city's historic preservation board disregards the burdens on the church and feels that it is exempt from the federal Religious Land Use and Institutionalized Persons Act, known as RLUIPA.

Mr. Storzer said that, during the 1970s, the standard related to religious institutions facing government regulation passed from "strict scrutiny" of government actions to "rational scrutiny." States have their own laws, but in New York, for instance, no one knows what the state's constitutional protection does. He said that the question of strict scrutiny or rational scrutiny was a nightmare of confusion. Now, after Congress passed RULIPA, the power is more even. Churches, synagogues and mosques can go to court and get redress under a relatively strong standard of review. However, even if their case is clear, certain religious groups such as Orthodox and Muslim institutions are disproportionately forced to go to court and can spend hundreds of thousands of dollars over two to three years. He advised that a group should contact the U.S. Department of Justice if it faces a religious land use issue.

This writer, who gave welcoming remarks about the "rules beyond reason" of zoning and building codes, moderated the conference. She spoke from examples of the harsh irrationality of zoning and building codes, drawing from her background in New York City and the Adirondacks. She urged the participants meet to each other and the speakers, emphasizing that they maintain these important introductions and keep in mind the directions that the speakers pointed out. She asked that, whenever opportunities arise, the participants look for ways that their groups can form coalitions to strengthen their effectiveness.

The full proceedings of the conference will be published early next year.

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Appreciation

Special appreciation is extended to Great Circle Foundation for its generous educational outreach grant, which benefited the conference Much appreciation is again extended to the generous official conference Co-Sponsors: Competitive Enterprise Institute, Gardiner Residents for Individual Property Rights (GRIP), Home Owners Against Rent Kontrols (HARK), The National Center for Public Policy Research, New York Farm Bureau, Rent Stabilization Association of NYC, and The JM Foundation. Jane Hogan was given special thanks for her outstanding outreach effort to media, colleges, and schools. Susan Allen was humbly thanked for recording and transcribing the speeches. The work of many others who generously volunteered toward the success of the conference is greatly appreciated.

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© 2008 Carol W. LaGrasse
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