Fourteenth Annual National Property Rights Conference
EMINENT DOMAIN & LAND REGULATION SHOULD BE REINED IN
The Future of Communities and Small Businesses Are Being Foreclosed
By Carol W. LaGrasse
Eminent domain is quick and easy since the 2005 U. S. Supreme Court decision known as Kelo v. New London. Just decide what street front, neighborhood, or community the government should grab so that a well-heeled private interest can build a hotel, conference center, or sports stadium, and the government will condemn the area using eminent domain and transfer it to the private interest. This is becoming repetitive in New York State and elsewhere.
If wealthy environmental interests want rural land for their private preserve and playground, the process is subtler and longer, but in the long term, government land use regulation and land acquisition can accomplish the job of wiping out rural communities.
Under the title "Removal and Resistance," these were among the converging themes of the Property Rights Foundation of America's Fourteenth Annual National Conference on Private Property Rights, which was held at the Holiday Inn Resort in Lake George on October 23. The beautiful setting overlooking the famous lake, with the fall colors on the surrounding mountains at their peak, along with the easy-going atmosphere of the rural hotel, made for a congenial setting for the conference goers, many of whom knew each other over the years. New attendees soon found that they were among friends who shared their deep concerns and love of freedom. The intense themes of the conference engaged the participants in lively discussion with each other at every break.
How did we get here?
"Eminent Domain and Private Property Rights" was the theme of the Opening Address by Roger Pilon, Ph.D., J.D., the Vice President for Legal Studies, B. Kenneth Simon Center Chair in Constitutional Studies, and Director of the Center for Constitutional Studies at Cato Institute in Washington, D.C. He traced the foundations of freedom 2,000 years back to show how the problem of eminent domain arose to its current level through the nineteenth and twentieth centuries, with a big bound during the 1930s upon the arrival of Progressivism in the White House.
In the Declaration of Independence, the Founders set forth the principles of Natural Rights, which were grounded in the reasoning of Plato and Socrates, he said. Common law judges in England applied reason and custom to set forth the principles. Property and contract were primary. John Locke drew on these two rights, reasoning that all men were created equal, with equal rights to life, liberty and pursuit of happiness. This law was moral law. If there were no moral truth, there would be no morality, and if everything were controlled, there would be no liberty. A path was found between the two. The right to pursue happiness was protected, provided that you didn't infringe on your neighbor's rights.
The Founders therefore created a limited government. The government was strong enough to secure our rights but not so strong as to infringe on those rights, Dr. Pilon continued. The government was designed with checks and balances and periodic elections. The main format to secure our rights was the system of enumerated powers, set forth in the beginning of the Constitution and the Ninth Amendment, which is the obverse of the Tenth Amendment.
The Bill of Rights was considered unnecessary and even dangerous, because in principle we have an infinite number of rights. That was why the Ninth Amendment was added. Just because you don't find a right in the Constitution, doesn't mean you don't have it!
There is no mention of Property Rights in the Constitution, explained Dr. Pilon. Property rights are obliquely mentioned in the Bill of Rights. Under the Fourteenth Amendment property rights were taken in under the body of common law that the Constitution was written to secure.
The Law of First Possession means that there is a personal right to acquire, use and dispose of property. Property is important; with title to something, you can distinguish the legitimate use of it.
This brings us to the law today, said Dr. Pilon as he led to the turning point.
The "Right to Health Care" amounts to a claim to something that belongs to someone else. The Progressive era inaugurated this type of law.
The Progressive era arrived, where the elites at Yale were looking to English Utilitarianism, government based on the greatest good for the greatest number. Government would be an agent of good. Welfare policy was not to supplement private charity, but to replace it with public welfare. It was the era of the planner.
During the New Deal, the Courts began rewriting the Constitution. In 1937, the court removed the doctrine of enumerated powers. In 1933, rights were split into two categories: personal rights, such as voting and speech, where strict scrutiny was required to restrict these rights, which were considered fundamental rights; and non-fundamental rights, such as property and contract, which "merely" involved economic liberty, and deserved to be subject to only the rational basis test.
What could government take from the property owner? First, there is the situation of the government taking value, but where it doesn't always take the property, such as when the government builds a road and a property loses value. This issue is subject to political remedy.
Next is the government prohibiting uses that are injurious to your neighbor. This is the standard nuisance situation, such as when excessive noise, odor, or particulate matter is emitted. There is no claim of compensation, because there is no right to engage in the activity in the first place.
The third case is the regulatory takingnot to protect the rights of you and your neighbor, but instead the property owner is regulated to provide something for your neighbor. Government can impose zoning of up to fifty acres, and many more powers are taken from you.
The fourth case is eminent domain, where the full title is taken for the government. The classical use of eminent domain is for a public use, involving a taking of property with just compensation. Next there is the classical use of eminent domain for the completion of utilities, where a public way has to be completed and the monopoly holdout avoided. The third case is for blight, and finally, the fourth is for economic development, the two being closely connected.
The Kelo decision came to exactly what many people predicted.
In the Progressive era, there was a switch in the mindset. It used to be the assumption that you can use your property. Now the assumption is you can't and must get a permit.
Government is putting all these goods off budget, said Dr. Pilon as he ended his compelling exposition of two millennia of law. "Stop stealing our Property."
Five Years after Kelo
Once Roger Pilon had set the stage, the speakers who followed brought the reversal of constitutional principles further to life. Michael Cristofaro and his family were the only remaining holdouts with Susette Kelo, who went to the U.S. Supreme Court to try to stop the City of New London from condemning their homes to transfer all of the property in the shorefront Fort Trumbull neighborhood to private parties. The city planned to redevelop their neighborhood into upscale hotels and the like, and ultimately allow the expansion of the adjacent Pfizer research facility.
Mr. Cristofaro has not allowed the heartbreak of his father and mother to be forgotten. He traveled with his wife and baby to the conference to tell the story of why he is continuing to fight.
Mr. Cristofaro said he wanted to dedicate the day to his father, who passed away a little over a year ago. He wants people to know what it meant to his father to be an American citizen. In 1962 his father came here from Italy, where there are no rights. In New London, he lost two homes to eminent domain. Yet his father would salute the American flag, a big flag that hung at his house, even after they lost.
"We won't say it's a bad country, but we're losing our rights. We're here to stand up for whatever we believe in," Mr. Cristofaro said. "What New London did to my father, that was totally atrocious! You cannot take someone's home just because someone else has a better use."
"Public use" should only be used for the schools, roads, firehouses, and things like these; property should never be turned over to developers, he said. "U. S. Supreme Court Justice Clarence Thomas said that citizens are safe from the government in their homes, but their homes are not safe."
"Ever since the decision, my phone has been ringing off the hook," he said. "We need people to get up and fight."
"The city told us, 'You need to sacrifice your house for the public good.' That's wrong. Choice belongs to the one buying and the one selling," he said. "In the U.S., eminent domain is used rampantly. In the forty years I've lived in New London do you think they'd change? No, they used the power of eminent domain four times."
He said, "We waited to see what happened, to see the damage. There was no development. Fort Trumbull is just a big vast area of weeds."
He said that, afterwards, his father and he asked for one thing, a plaque in honor of his mother which says: "A woman who lost two homes to eminent domain and fought for the property owners of Fort Trumbull."
"They said it was inappropriate," he said. "It was written into the contract. It feels good and people walk past and remember the atrocity of Fort Trumbull.
"Pfizer denied wrongdoing. Recently they left New London. The whole project left New London," he said. "The city tax abatement had ended, almost to the day."
"The Pfizer property was worth $300 million. They sold to Electric Boat for $55 million. Now Electric is fighting to have the building reassessed at the purchase price," he said.
"The whole reason for eminent domain was to increase the tax base," Mr. Cristofaro said. "They got tax abatement." Thus he made clear the ultimate irony of the U. S. Supreme Court decision.
"We finally settled. As for the elected officials. I keep reminding them what a disgrace they are. They always turn it around It was about improving the city," he said.
"On March 3, 2006, they finally tore down that house," he said. "The contract stated that they were supposed to move all the plants my father planted."
"Someone called It was a cold rainy day.
"I came there. I watched.
"I jumped out. They were tearing down the house. They started tearing the plants out. The contractor DeAngelo was nearby. He ignored me.
"The man at the site locked himself in the car. They called the police. They surrounded me.
"'I'm here to save those plants,' I said.
"'It doesn't matter. You need to get off the property,' they said.
"'You don't want the photographer to take a picture of you in handcuffs,' they said.
"They destroyed all the plants.
"It broke my heart. It was the second hardest thing I had to tell him.
"You can't just take away from people what they worked so hard for."
With these words, Michael Cristofaro ended his speech.
Willets Point Owners Stand Against New York City
The beautiful conference setting overlooking Lake George was the site for a presentation by small business owners who traveled two hundred miles from Willets Point in New York City to tell the story of how they are fighting the city's plan to condemn all 250 industrial businesses on the fourteen-block neighborhood that juts into the Flushing River at the foot of Flushing Bay. The city intends to transfer their property to private parties to build a hotel, convention center and other upscale buildings.
The visiting property owners from Queens County took the opportunity to tell the story of their battle to save the businesses, which employ nearly 2,000 people at work ranging from auto repair and recycling to steel fabrication and heavy construction. The location of their businesses is part of a concentrated, productive area that extends to a limited degree to the opposite side of the Flushing River where, over many past years, the men in my family, first my father and brothers, and then my husband Peter, could readily drive from our home in adjacent College Point on Flushing Bay to buy auto parts and construction materials, and sell household recycled materials.
Few of the industrial businesses on the opposite of the river remain, because they were speculatively condemned by the city decades ago. In fact, one of the business owners in Willets Point who is facing eminent domain was a friend of ours when we lived a half mile from his trucking business in the area adjacent to College Point before the city condemned his property there by eminent domain. The land is still vacant.
If the Willets Point businesses were to be wiped out, there would be no substitute location where they or their clientele will be able to create or find such a "shopping area" for a diverse range of industrial products concentrated at the intersection of the interstate highways funneling traffic from New York and all nearby states.
On the other hand, if the city's preferred upscale businesses were to occupy the area, they would find that they cannot create the capacity to funnel the concentration of new traffic to their concentrated high-rise development from the interstates which bottleneck the cramped promontory. The inadequate usable space defined by the highways and their existing exchanges in that very location precludes realistic capacity for additional new exit ramps.
Joseph Ardizzone, who was one of the two men from the area who spoke at the conference, is the only person residing in the unique Willets Point neighborhood. He said, "I was born and raised in Willets Point 78 years ago... I live in Willets Point for one reason. I like being there."
Robert LoScalzo is making a documentary of the Willets Point battle. He reported at the conference that the 62-acre area at the confluence of five major highways hosts a unique concentration of automotive shops that draw customers from a number of states, making an irreplaceable resource situated at an excellent distribution hub.
Commenting later, scholar Roger Pilon said, "You've got a classic case of spontaneous order," referring to the successful concentration of the auto businesses.
In an all-too-familiar tactic, the city has aggressively neglected the neighborhood, Mr. LoScalzo pointed out. There are no sanitary sewers and street lighting is non-existent on some streets. Many streets are unpaved. He showed photos of the cracked up, potholed pavement of busy streets that are barely traversable.
Property owner Irene Prestigiacomo told of the many years that she and her late husband have worked to hold onto their property in spite of the city's disinterest in negotiating with the Willets Point owners. There are currently few legal rights protecting property owners in New York State when a government agency wants to take property to sell it to another private party for what is termed "urban redevelopment."
But the property owners, who have formed an organization called Willets Point United, have not given up and are using an "ancillary issue," as Mr. LoScalzo explained, as they fight on two fronts, public relations and the law. The unique location of Willets Point sandwiched among federal highways has led them to use the federal law to challenge the city's unrealistic highway access plans. At the same time, they are getting the word out about the city's callousness toward their valued businesses and are trying to reform the state's eminent domain law.
"We are trying to stop the abuse of eminent domain in New York State," Mrs. Prestigiacomo said, revealing the broader reason why she is so intent on saving Willets Point. She said, "You're dealing with corruption and collusion, and not only with the city."
The Willets Pointers were warmly received at the conference. After the compelling statements by Mr. Ardizzone, Mr. LoScalzo, and Mrs. Prestigiacomo, many of the people at the event sympathetically crowded around the three speakers and their vivid Willets Point photo exhibits that extended outward from the podium.
Roger Pilon urged them, "Don't caveunless they bring the rope out to the scaffold!"
Willets Point United Lauded at Property Rights Conference
NEW YORK'S TROUBLING LAND USE CONTROLS
A Tale of Two Towns
John S. Marwell, a prominent land use and real estate law attorney based in Mt. Kisco, New York, brought vividly to life the difficult experiences faced by upstate businesses and homeowners who are confronted by local land use controls.
"We don't represent government against private property citizens. We don't represent special interest groups," began Mr. Marwell, who is a founding member of Shamberg Marwell Davis & Hollis. He said that the intention with his address was to tell "how land use regulations and controls are used to push particular people out of communities and prevent certain population groups from moving into communities."
To show how far from historic law protecting private property rights has diminished under today's land use regulation, he quoted a clause from a local land use law, "Any use not permitted in the ordinance is prohibited."
Whenever communities prevent a population from moving into the community, certain patterns appear, he said. "One community had only single family detached homes. We know that these are an economic barrier for entry."
One owner felt that his property would be great to build multi-family homes, Mr. Marwell said. His permit application was denied in the early 1970s. This became the influential Berenson v. New Castle case.
In 1975 the New York State Court of Appeals declared the town's zoning ordinance unconstitutional. "The town cannot create zoning just for their own needs. The town had to create zoning to allow other types of homes to exist," Mr. Marwell said.
Other cases followed. The law evolved that communities must provide for affordable housing. However, this doesn't mean necessarily low income or subsidized housing. "Affordable means for people who provide services for the community." Mr. Marwell explained.
Mr. Marwell recalled the speech last year by Professor Lolita Buckner Innis, where she said that zoning is driven by an engine to exclude people.
"Zoning to keep people out has brought a pushback from groups," he said. Westchester County was sued by the Anti-Discrimination Center of Metro New York. But the court said that the county has no control over the towns.
They reached a race-based settlement that requires the county to create 750 units of affordable housing by 2016. The county must affirmatively take on the obligation of inclusionary zoning and ten to twenty percent affordable housing must result. Thirty-one eligible communities were identified without a high enough percentage of African-American and Hispanic residents. The settlement requires aggressive marketing outside and inside of Westchester County at neighborhoods with disproportionately high numbers of African-Americans or Hispanics to accomplish the goals.
"How land use controls are used to force people out of a community" was Mr. Marwell's parallel theme. Using a community familiar to him, he described what is becoming almost a classical pattern of imposing zoning in rural communities
A company moved into what was largely an agricultural community, Mr. Marwell said, as he began to describe the evolution of zoning of the community. Many businesses in the area were service providers to local farms. Land values went up. Property values were higher than they dreamed of years ago.
The new people wanted more services, schools. Taxes went up. Corporations said they were being lured away by other states. The local administration tried to keep the taxpayers in the community, to keep the taxes down, the company doesn't generate children. They decided to stabilize the tax base.
The community was developing into an executive community. Highways developed. Old-timers discovered that their children could not afford to move in. Businesses who served the old, the farms, gave up.
Newcomers voted out the old administration. "Let's have a building moratorium. We don't want the remaining open space developed." A fortune was spent on consultants and lawyers. The update on the plan was a cookbook of the latest zoning techniques.
There was an acrimonious hearing that the newcomers in the administration did not expect. The old-timers, the businesses for generations, said "My property is zoned X. I can't use my property." The newcomers responded, "We're protecting open space."
The new rules amount to a slow net regulatory taking.
The businesses that served farmers and old-timers are deemed unattractive nuisances by the newcomers.
Under the comprehensive plan, for an upgrade of commercial and industrial areas, they would apply all these new regulations retroactively. This puts a stranglehold on the businesses and forces them out. They become a pre-existing non-conforming use. "Grandfathering" applies. It is a great sound bite, but the devil is in the details.
You used to run your business. You didn't have to ask permission to change as the business grew, or there was a less formal approval process. Business can decide how it needs to grow and revise.
Now, for any change, you are put under a microscope. If you have a pre-existing non-conforming use, you come not as an applicant but as a supplicant.
Now there's a platform. All the neighbors come out. They bought cheap because you're there. They try to apply nuisance law, wetlands, slope to force the business out of business.
One of the examples that Mr. Marwell cited was a local contractor who faced the second generation of neighbors who moved next door to his staging area. They put enormous pressure on the town to require screening and charge the contractor with zoning violations. Mr. Marwell said, "We went to court and defended the contractor from the changing population and changing laws. We ended up winning. This was because of a local judge who would not cave to political pressure that was put on him."
"How can a small person resist the cost of this effort on his business? He can't afford to change."
Zoning: A Property Rights Crisis
James E. Morgan jumped into the question of the genesis of today's extreme zoning: "Most of the municipalities have been enacting something they call 'envelope zoning,'" he said. "Where does it all come from?"
Every winter the planners attend the Association of Towns convention in New York City. The state sponsors a state web site which advocates the same zoning that the state-sponsored planners teach at the zoning sessions in New York City, said Mr. Morgan, who is a partner in the law firm of Galvin and Morgan in Delmar. "That's why a lot of the towns upstate have a zoning code that looks like, for instance, a town on Long Island," he pointed out.
"Our republic designed a system where most of the control was effected by the local people. Now, towns and their consultants, in the zoning provisions, give more control to the people who run things."
"Now you're being told by them that the rights are owned by the government, not by the people who own the property. Now it's basically the feudal system. The right the government gives you is the right to pay taxes," continued Mr. Morgan.
"Bethlehem, where I live for 35 years, had a 35-page zoning law. Now it's 250 pages," he said. "Zoning law is more than the average person can deal with."
He illustrated the ironies of being forced to work with zoning officials. "To build a storage shed, it took 2½ years to get a decision to build a shed half the size and not where we wanted."
When it comes to litigation, he continued, "There are no guarantees. We do our best to win these and have won some, but basically it cannot be counted on."
Mr. Morgan warned that Andrew Cuomo says he is pushing for government savings, but it will be done under the rubric of regionalism at the expense of local government.
"Remember when the war was whether rural towns would adopt zoning?" he asked. "Now it should be whether they should repeal zoning."
The Saga of Tim Jones
As Mr. Morgan began a brief summary of the story of Tim Jones, he made a correction to this year's newspaper reports. It took twenty-one difficult years, not the eighteen years commonly cited, for the Adirondack Park Agency to drop its enforcement action against Mr. Jones, Mr. Morgan said. When the violations were brought against Mr. Jones, his sons were four and five years old. Now they are in their late twenties and thirties.
The APA, as the agency is known, charged that Mr. Jones had illegally built a camp on Raquette River, although the camp was on a lot in an approved subdivision where there were already houses along the river on either side of his lot.
Mr. Morgan took over Mr. Jones's case in 1998, when it had already been deemed hopeless. The case is now settled, with no admission of right or wrong. From 2005, the APA was going to fine him $2,000 per day.
The settlement did cost some APA jobs, Mr. Morgan said. A group of employees tried to tell the governor's office, "You don't have authority," when the governor intervened on behalf of Mr. Jones.
Regionalism - Zoning, Assessment
The APA is, of course, a super-regional zoning agency. Mr. Morgan focused on the issue of regionalism, which he had briefly warned about in his introductory remarks. He said, "Recently we beat a village that brought an action against our client. This was a joint zoning and planning board. They can't decide which statutes they should apply. If you think it is hard now, try a regional system. For those of you who have applied locally for a permit, at least they listen, they know you."
"Imagine going before a county level. You're not going to have input or control. It's in the name of 'economy.' The lever is, 'taxes will go up otherwise.' If they take away local control, zoning will become much worse."
Mr. Morgan turned to another area, real estate tax assessment,
where the state is putting pressure on local and county government.
"The state has wanted for years to move assessment to the
county level, rather than keep it as a town government function,"
"The state is also pressing to do assessment mechanically," said Mr. Morgan, "Punch in three bedrooms, the square footage, and get the assessment. How do you figure with a machine using 35 comparables to come up with a value?"
Mr. Morgan was a senior counsel at the New York State Board of Equalization and Assessment before he went to private practice. Among his first clients were Catskill towns that challenged for tax purposes the state's low valuation of its land within these towns' borders.
Historic Oil and Gas Producers Battle National Forest Service
William Perry Pendley traveled from Lakewood, Colorado to address the conference about the boldness of environmental organizations that are trying to eliminate productive use of federal lands. As President and Chief Operating Officer of Mountain States Legal Foundation, he leads the organization in cases across the country that threaten private property rights and a host of issues that relate to American freedom.
Here in the Northeast, the historic owners of the title to oil and gas rights within the Allegheny National Forest were threatened by a sweetheart settlement by the U.S. Forest Service when the Sierra Club sued to require that each time a company that holds title to the mineral rights revised its operations, the company would have to go through the prohibitively cumbersome full review process under the National Environmental Policy Act, or NEPA. The problem with the sweetheart settlement is that NEPA applies to federal property, whereas the mineral estate is private property.
Mr. Pendley pointed out that Allegheny National Forest, which is located in northwestern Pennsylvania, is unlike a western forest, where the lands were always federally owned. In the 1930s, the U.S. Forest Service started buying up land in the Allegheny Mountains. "The only way to make the national forest big, 500,000 acres, was to exclude the oil and gas rights," he said.
The Forest Service therefore bought the title to only the underlying land where the oil and gas rights existed. "The oil and gas rights are the dominant estate," Mr. Pendley explained.
"The first well that found oil was in 1859 in Titusville, Pennsylvania, just west of the Allegheny National Forest," Mr. Pendley said, indicating the extent of historic use for oil production.
"NEPA was enacted in 1969. It works like 'measure twice, cut once.' But good intentions went out the window," he said. "NEPA is the weapon of choice of environmental organizations."
"New levees were not built in New Orleans before Katrina, because of NEPA After fire, timber rots on the stump because of NEPA... Shovel-ready projects are impounded because of NEPA," he said.
He said that in early September last year, Minard Run Oil Company, the oldest oil company in the United States, and Pennsylvania Oil and Gas Association went to court. "The judge in the Pennsylvania Supreme Court ruled in 2009 in our favor under the farm law of 1980, that even a government agency can't deny the property owner the use of his property."
Mr. Pendley emphasized that the judge declared that "the mineral right is a property right" and that "the federal government can't deny the use of our property."
"If environmental groups can stop economic activity in Pennsylvania, they can stop it all over the country," said Mr. Pendley, and called to the listeners' attention the immense value of oil and gas being discovered in shales in the United States, beginning with the Barnett, then the Haynesville shale, then all the way up the Appalachians with the Marcellus shale.
Then he turned to the case of the Hales in the Delaware Water Gap National Recreation Area, who became the heirs to the title of a holdout in the original plan to build the reservoir behind the Tocks Island Dam. The National Park Service coveted a road into certain property, he said, but the town road had reverted to the Hales under Pennsylvania law. The Hales put up a gate, the National Park Service sued, and the agency was defeated by Mountain States Legal Foundation.
Mr. Pendley flashed through situations where the government's legal arsenal to assault private property rights has been applied: the communities in the Northwest destroyed by the Endangered Species Act, the "pit bull of environmental law," and the Clean Water Act, where the jurisdictional definition of "waters of the United States" is fought. Mountain States Legal Foundation protected public access to federal lands when the court ruled recently that American Indian rights do not include the right to demand exclusive access to give themselves solitude on federal land that they consider sacred.
After drawing from a wide range of examples of litigation to illustrate his point of how intensely our rights are being threatened, he closed by calling to mind words of President Ronald Reagan, "It is the obligation of each generation to pass along the freedoms. We are always one generation from tyranny."
"Have passion, unbridled optimism," he said.
From Ocean Regulation to Federal Land Use Control
The engrossing speech by Bonner R. Cohen, Ph.D., made it clear that citizens can never rest in their defense of private property rights from the continuing expansion of federal regulatory programs. Dr. Bonner, who holds the position of Senior Fellow at the National Center for Public Policy Research in Washington, D.C., is exposing the Ocean Policy Initiative, a stealth program created by President Obama on July 19 by Executive Order No. 13366 to use watershed protection to give the federal government control over all land in the United States.
"The Coastal Marine Special Planning Program would not have much to do with oceans but would be a mechanism to allow for federal zoning throughout the United States," said Dr. Bonner.
True to form for federal pollution regulatory bodies, the executive order would create nine regional commissions, including carefully selected local officials, tribal officials, and others to make recommendations at the first level. These would, in turn, be passed to a new National Ocean Council, of carefully selected representatives of the Environmental Protection Agency, Department of Interior, National Oceanic and Atmospheric Administration, National Aeronautic and Space Administration, Corp of Engineers, and the departments of Agriculture, Interior, Commerce, Homeland Security, and Health and Human Services. They would make recommendations at the next level.
"All these agencies will create rules and regulation under the Clean Water Act, the Endangered Species Act, and other laws. They will be constructing new laws administratively under existing laws, so that new laws would not have to be approved by Congress," Dr. Bonner said. "Oceans, rivers, bays, tributaries, the Great Lakes, even adjacent land, will be included in the regulation."
"The Ocean Policy Initiative would establish an alternative political structure. Congress would be stripped of powers. Power would instead be put in the hands of bureaucrats, who will make decisions about land and water throughout the U.S.," emphasized Dr. Bonner.
AFTERNOON PANEL - NORTHERN LAND ISSUES
The Adirondack Tax Base
Peter LaGrasse spoke on real property tax trends that have ominous implications for the Adirondack tax base. He began by defining the tax base as the assessed value of assets that are subject to taxation for the purposes of running the government.
"This talk addresses the tax base in the broader sense to include various revenue streams that towns receive that reduce the tax levy and in essence contribute significantly to the tax base," said Mr. LaGrasse, who is the Chairman of the Board of Assessors of the Town of Stony Creek, a town that is wholly within the Adirondack Blue Line.
He pointed out that taxes and expenditures are increasing faster for towns within the Blue Line than for towns outside. For the period from 1980 to 2006, towns within the Blue Line experienced tax increases 5.5 percent higher than for rural towns entirely outside. Expenditures had increased by 66.6 percent inside and 53 percent outside the Blue Line, according to his source, the Adirondack Regional Assessment Report, published in May 2009 by the Adirondack Association of Towns and Villages, the Adirondack North Country Association, and the towns of Chester and Arietta.
Mr. LaGrasse said that the most revealing statistic he drew from the 2009 report was that, when adjusted for inflation, total outstanding debt for local governments wholly within the park increased by 180 percent during the same period while total debt for all park local governments, including towns partially within the Blue Line, has increased by 135 percent. Meanwhile, total debt for non-metropolitan local governments entirely outside the park has increased just 20 percent.
"This statistic demonstrates that it is far more expensive to run a town within the Adirondack Park compared to a rural town outside the Blue Line, for reasons that the report does not make clear," he said.
The Volatile Nature of Components of the Tax Base
Much of the tax base is volatile, subject to change in economic activity, or state or federal policies, Mr. LaGrasse continued. Commercial real properties are especially sensitive to economic activity because their assessments may be based on their income stream. The volatility is illustrated by the lawsuits being filed by property owners because of a decline in property values related to the recession, which was noticed by Michael Swan, the Director of Real Property Tax Services for Warren County in a September Post-Star article.
Sales taxes, another volatile form of tax base, comprises 8.6 percent of the tax base in the Blue line in 2006, but in towns straddling the Blue Line the percentage of the tax base made up by sales tax averaged 24.7 percent, not much different than for the Town of Lake George. Sales tax has increased in the last 26 years, but sales tax is subject to change depending on the economic climate and primarily benefits towns with wealthy development and valuable commercial property because it is proportioned among the towns based on the full value of each town. Thus the poorer towns in more need of revenue benefit less from sales tax.
State Aid is another form of tax base for government. In 2006, the towns within the Blue Line experienced 10.8 percent of their tax base from State Aid. Federal Aid in 2006 was 5.5 percent of the tax base, a drop from 9.3 percent in 1980. The dollar amount of Federal Aid, adjusted for inflation from 1980 to 2006 is nearly the same. Unlike the Real Property Tax Levy, these other components of the tax base may not predictably increase with increased demands from local governments. State and federal mandates may leave the private landowner holding the bag.
Direct Challenges to the Real Property Tax Base
The State Land portion of the tax base is not entirely secure, Mr. LaGrasse pointed out. In Stony Creek, where the state owns 53 percent of the land, the state-owned land amounts to 50.15 percent of the tax base.
In 2003, the Town of Arkwright based a lawsuit on the "equal protection" clause of the Constitution to challenge the state's exemption from taxes on land it owns there while it pays taxes on land within the Blue Line. The case was decided against the state at the Supreme Court level, but was overturned at the Appellate Division, which quoted an established principle that "the State's limited waiver of sovereign immunity is a matter of legislative discretion not amenable to an equal protection challenge."
The Appellate decision was only confirming a recommendation from the original legislative study on the Adirondack Forest Preserve, when it was first conceived, which states:
"Upon this general plan, the State lands in the Adirondacks are to be hereafter held and acquired, not for the special benefit of the counties in which they lie, but in a much greater degree for the benefit of the whole State It is only after the most careful and prolonged consideration that the commissioners have concluded to recommend that the State hereafter bear taxes upon its lands in the Adirondack region." (Sargent Report, 1885 Assembly Document 36, page 23 and 24)
Few are aware today that the Adirondack Forest Preserve was established to restore the eroded mulch and forest floor to hold snow melt and rain to provide adequate year-round water flow to the Hudson River and the Erie Canal, which were the navigational route to New York City.
"An additional threat to the taxes on state land occurred when in 2009 Governor David Paterson proposed capping taxes on state-owned land, which would have saved $9 million if his plan went through," Mr. LaGrasse said. But the towns and their representatives in the Legislature raised a volley of protest. One local official's remark, quoted in the Adirondack Journal in February, hit a sensitive nerve in the preservationist's camp. Fred Monroe, the chairman of the Warren County Board of Supervisors said, "The state should stop purchasing land if it couldn't pay a reasonable tax rate to local governments to maintain and service it."
"I think that any cap on state payments for Forest Preserve taxes would have a devastating effect on future land acquisitions," said the president of the Adirondack Mountain Club, Neal Woodworth. The proposed cap was finally dropped.
Mr. LaGrasse also related a very similar battle a little over twenty years ago. In 1989 Governor Mario Cuomo proposed to eliminate the Transitional Assessment (a statutory component of the tax base that currently represents one-third of the state land assessment in Stony Creek) and cap taxes on state-owned land to the last year's figures.
"I wrote our legislators, Senator Ronald B. Stafford and Assemblyman Glenn Harris, with the details of tax increase that would occur if this scheme went through. The result of my calculations showed a potential doubling of taxes in one year across the board. Strong support from our representatives saved the day," he said.
Increase in State Land Ownership
"Since 1973, when the Adirondack Park Agency was established, the state has shifted 18.5 percent of the total Adirondacks to state-owned land and conservation easements where no development can occur. Last year, even while proposing to cap state-owned land taxes to save $9 million, Gov. Paterson proposed $58 million for new land acquisitions mainly in the Adirondacks," said Mr. LaGrasse.
He pointed out that the APA's successful Biosphere Reserve application included plans to designate all of the state-owned land as "core," where all human activity is precluded. Mr. LaGrasse concluded:
"I am suggesting that there is a systematic process of land acquisition which furthers the objectives of a Biosphere Reserve and which threatens communities in the Adirondacks. Increased operating expenses, increased debt, increased state holdings, and now, potentially reduced state sources of tax could well be the death knell for many portions of the Adirondacks."
"That is why more state land acquisition generates still more thirst for state land acquisition. And this is why the people and the leaders of the Adirondacks must oppose the effort to accomplish the objectives of a Biosphere Reserve."
Update on DEC Disregard for Court-ordered Access
Because of the difficulty of multiple sclerosis, Ted Galusha was not able to personally present his conference update on the DEC's disregard for the court-ordered settlement won by him and his group for access to the Forest Preserve. However, Mr. Galusha, who is the president of Adirondackers for Access, sent a written statement that was read to the assembled group. In addition, his wife Robin displayed his photo exhibit about the history of the now virtually vacant, beautiful Hudson River Recreation Area in Warrensburg.
He pointed out, "I have come to accept that there are places in the Adirondacks that I will never be able to access. In fact, I have never seen any of the lands that the state classifies as Wilderness, Primitive, and Canoe Areas except from roads, from an airplane, or in photographs and videos."
He quoted the state Environmental Conservation Law:
"All lands in the Adirondack Park now owned or which may hereafter be acquired by the state, shall be forever reserved and maintained for the free use of all the people."
"Note that it doesn't make an exception for lands classified as Wilderness, Primitive, or Canoe. It says 'all lands' owned by the state. Nor does it make an exception for the disabled. It says 'all the people'," he emphasized.
"Please be mindful that anyone can become disabled in a heartbeat. You could be hit by disease, suffer a stroke, get injured in a car accident, or be wounded in a war. If any of these terrible things happened to you, would you be willing to give up your right to enjoy half of the state land in the Adirondacks? I would hope you wouldn't have to," he concluded.
When the DEC acquired the popular Hudson River Recreation Area from Warren County, the agency announced with fanfare the grand new place that the people could fully enjoy. However, a complete reversal of policy has gripped DEC, and now nearly all of the approximately 75 picnic and camping areas are blocked off with large stones, the picnic tables eliminated, barbecue grills taken away, outhouses removed, and forbidding signs warn against using the beautiful spots. DEC's maintenance, except for making sure that people can't use the picnic and camping spots, has dropped; this summer, a young woman was killed by a nearby rotten tree that fell as she was sleeping in her tent.
Mr. Galusha's vivid photos document the history of the hostile DEC policy that not only disregards the lengthy, detailed court order to open many new access routes to the disabled, but also goes much further in the opposite direction, by closing camps and roads that both the disabled and people without disabilities enjoyed together in the Buttermilk area where earlier generations of his family once lived.
Proposed Rules for State Forests outside the Forest Preserve
Susan Allen, publisher and editor of the monthly Adirondack Park Agency Reporter, brought attention to a generally unknown DEC proposal of immense implications. In addition to publishing the Reporter, Ms. Allen has a twenty-year record for reliable, detailed commentary on APA and DEC proposals for both state-owned and private land within the Adirondack Blue Line. The new 750-page DEC proposal, however, is for the state-owned forests outside the Catskill and Adirondack Forest Preserves.
The new state policies would affect a total of 786,000 acres in 442 state forests throughout the state. On the surface, she said, the plan sounds like it would protect sustainability, biodiversity, habitats, and wildlife corridors.
One facet of interest that she discovered is that the plan, which is only available electronically, provides a map of links between state forests and the Adirondack and Catskill Forest Preserves, and also across the border into Canada. The plan also discusses the "A2A" or "Algonquin to Adirondack" corridor that environmentalists have been promoting among themselves to allow for wildlife movement across the St. Lawrence River valley.
"The danger is that the plan fits the pattern of making all state land into Forest Preserve," Ms. Allen said. However, for all practical purposes, the DEC failed to call the plan to public attention and actually called only a single public hearing, in Ray Brook, which is near Lake Placid, on September 21.
DEC's 2010 NYS Forest Connectivity Map
A Long Battle against DEC to Keep a Town Highway
James McCulley, president of the Lake Placid Snowmobile Club, brought down the house at PRFA's Twelfth and Thirteenth Annual National Conferences on Private Property Rights with blow-by-blow, hilarious descriptions of DEC's inane legal defense of its position that he has no right to drive his snowmobile or pickup truck on Old Mountain Road, an old town highway connecting Lake Placid and Keene. At the Fourteenth Annual Conference, he was right on track, and DEC's bag of legal tricks appeared even more pitiful.
When the best that DEC, one of New York State's biggest bureaucracies, can produce is to grasp at a straw by re-starting a case in administrative court after losing in the usual court venue, one wonders how desperate the officials are to wipe out town roads that preexist DEC ownership of Forest Preserve land.
After DEC officers arrested Mr. McCulley for using his snowmobile on Old Mountain Road, the DEC team of lawyers lost decisively in the Essex County Supreme Court under Judge Andrew Halloran's 2005 decision. Last year Chief DEC Administrative Court Judge James T. McClymonds desiccated their redundant case against Mr. McCulley's subsequent use of his pickup truck in a 37-page Hearing Report that is a veritable treatise on the presumption that a road remains a town highway unless proven otherwise and on the irrelevance of DEC's reasoning related to the highways that penetrate State Forest Preserve.
Mr. McCulley reported at the conference that earlier in the year the DEC agreed to pay him a settlement of $58,000 as reimbursement of attorneys' fees and other legal expenses he incurred in defending himself "against DEC's meritless and unsuccessful criminal and administrative prosecutions of him," as announced earlier by his lawyer, Matthew Norfolk of Lake Placid.
Seeing through the Hype
Ron Arnold flew in from Bellevue, Washington to share his depth of knowledge about the environmental organizations. Mr. Arnold, the executive vice president of the Center for Defense of Free Enterprise, has written a number of influential books that cut through the mystique surrounding the nature lovers. At the conference, he was autographing copies of his Undue Influence, which epitomizes his groundbreaking research.
In his speech, entitled "Seeing through the Hype," Mr. Arnold exploited an Internet connection to explain how a person could use the "Muckety-Muck" web site to cut through the appeal to emotions that environmental groups routinely use. The web site shows essential facts about the groups, especially their top officials and board of directors.
"It tells you everything you want to know," he said, as he brought up information on the Adirondack Council, the most powerful environmental organization in the Adirondack region. He read from the website that the Adirondack Council's securities investment portfolio is valued at $2.3 million and that their executive director Brian Houseal's salary is $149,000 plus $9,746 in benefits. Then he read off the names of the entire board of directors. Getting the idea, the audience, who knew most of the names, responded with details of their various connections. "You can put up information for free on the website," Mr. Arnold said.
One of the quips of the day came when Mr. Arnold characterized the Left, while discussing his book Freezing in the Dark:
"The Left is not a movement. It is like a mental hospital without any doctors or nurses."
Bearing out Peter LaGrasse's closing statement, Mr. Arnold recalled his 1977 study of the California Redwoods. At that time, he discovered "rule number one," "How much is enough?" The answer: "It's never enough."
He said that there can be exceptions to this rule, but there are few exceptions to their hate for technology.
"Their hate for technology evolved to anti-civilization,"
he remarked. "Bill McKibben is anti-civilization." Expanding
his remark about this well-known former resident of Warren County,
Mr. Arnold said, "McKibben is the leading authority in the
Ron Arnold closed the main part of the conference by quoting Judge Learned Hand:
"Liberty lives in the hearts of men."