from PRFAs Eleventh Annual National Conference on Private Property Rights

National and International Land Use Planning

Peyton Knight

The importance of Americans’ secure right to control their property cannot be overstated. Certainly, our Founding Fathers didn’t think so.

According to James Madison, “Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, which impartially secures to every man, whatever is his own.”

John Adams warned, “The moment the idea is admitted into society that property is not as sacred as the laws of God, and there is not a force of law and public justice to protect it, anarchy and tyranny commence. Property must be sacred or liberty cannot exist.”(1)

Thus, our Founders gave us the Fifth Amendment to the U.S. Constitution, which is designed to both protect the civil rights of individual property owners, and indeed, safeguard liberty itself.

When the U.S. Supreme Court handed down its ruinous verdict in the infamous Kelo v. New London case, Americans of virtually every ideological persuasion cried foul. What kind of nation, they asked, would permit government to take someone’s property for the sole purpose of transferring that property to a powerful, wealthy, well-connected entity?

Yet, as widespread and justifiable the outrage over the Kelo decision is, many Americans seem oblivious to the equally troubling practice of taking individuals’ rights to their property in name of historic, cultural, environmental, recreational, scenic, open space, and heritage preservation. Of course, these qualities are ubiquitous, which make them the perfect tools for preservation activists and government to make their case for taking property rights virtually anywhere, anytime, and for any of these subjective, arbitrary reasons.

As terrible as eminent domain abuse is, such as that which occurred in the Kelo case, at least victims in of eminent domain abuse are compensated in accordance with the Fifth Amendment. However, property owners who lose the right to use their land as a result of some preservation-oriented edict don’t receive a dime. They still pay the mortgage. They still pay the taxes. But they’ve lost their freedom and they’ve lost the value of their property.

Preservation-driven land-use planning comes in many forms and is practiced by governments at all levels. At the national level, it is manifested in the form of National Heritage Area designations, which are proliferating rapidly.

National Heritage Areas are creations of Congress in which special interest groups partner with the National Park Service to influence decisions over local land use—decisions that were previously made exclusively by local government officials and, presumably, the private landowners to whom they’re accountable.

One reason why Heritage Areas are growing in popularity is that Congressmen see them as easy ways to establish permanent pork barrel pipelines to special interest groups in their home states and districts. There are currently 37 National Heritage Areas scattered throughout the United States. Ten new areas were created in the previous Congress and more than a dozen proposed Heritage Areas are currently working their way through the current Congress.

Heritage Areas have distinct boundaries and these boundaries, as it is oft repeated, have consequences for landowners who reside within them. Each heritage area is overseen by a “management entity.” As I mentioned, the management entity consists of pre-selected special interest groups and the National Park Service, which is the federal agency tasked with managing all federal Heritage Areas.

The management entity is directed by Congress to devise a “management plan” for the area. Congress stresses that these plans should include policies and strategies for long-term preservation of resources and proper development of the Heritage Area. These plans also include specific commitments from local governments within the Heritage Area to preserve the natural, historical, cultural, educational, scenic, and recreational resources of the area. Many Heritage Area management plans also require the Park Service and their special interest partners to create a specific inventory of all the aforementioned property in the area that ought to be preserved, or possibly acquired.

Heritage Areas also require that all significant historic, cultural, and recreational sites within the boundaries of the area be managed in a manner consistent with compatible economic development. And, of course, which sites are deemed “significant” and which types of development are deemed “compatible” is at the discretion of the preservationist interest groups and their federal partners. After all, they are the ones managing the area and creating the land-use management plan.

In 2004, the General Accounting Office reported that National Heritage Area management plans “encourage local governments to implement land use policies that are consistent with the heritage areas’ plans, which may allow heritage areas to indirectly influence zoning and land use planning in ways that could restrict owners’ use of their property.” The GAO almost got it right—if you substitute indirectly with directly.

Heritage Areas influence zoning and land use the same way the federal government has traditionally extended its influence beyond the pesky boundaries of the Constitution. Money. Your money. My money. Federal tax dollars. Grants and earmarks. Heritage Area interest groups receive up to a million dollars per year, and are permitted to pass this money on to states and local governments for the purpose of promoting the land use policies that the interest groups favor.

For example, I’ll read directly from the legislation that would create the Journey Through Hallowed Ground National Heritage Area. Interest groups could spend their taxpayer-financed windfall “making grants to, and entering into cooperative agreements with, States and their political subdivisions.”

This is, in essence, is lobbying with federal tax dollars—something that is illegal, however, apparently, if you manipulate the phraseology to read “making grants to” as opposed to more accurate wording like “purchasing influence” or “buying legislation,” it passes congressional muster.

One Congressman who recognizes the dangers of Heritage Area interest groups being permitted to lobby local governments with federal funds is Congressman Jeff Flake from Arizona. At a mark-up in the House Resources Committee earlier this year, he offered a simple amendment that would have barred this from happening. Unfortunately, his amendment was voted down along strict party lines.

In Yuma, Arizona, property owners discovered the hard way how Heritage Areas hurt. Congressional report language details the fallout from the Yuma Crossing National Heritage Area. The report reads:

“When the Yuma Crossing Heritage Area was authorized in 2000, the public in Yuma County did not understand the scope of the project and was surprised by the size of the designation... Concerns were raised by citizens about the size of the designation and the potential for additional Federal oversight. The fear of adverse impacts on private property rights were realized when local government agencies began to use the immense heritage area boundary to determine zoning restrictions.”

A letter to the editor that appeared in the Tucson Citizen earlier this year read:

“The community was told not to worry as the Heritage Act would not restrict other property owners’ rights and would bring in federal funds... Almost immediately, Yuma citizens started to see restrictions — from the type of building allowed to the color of paint... Even areas outside the boundaries were affected... Others will try to use Heritage Area boundaries to limit property rights.”

Being in New York this weekend, I would be remiss if I didn’t recall a similar warning that was given thirteen years ago by the late Gerald Solomon, congressman from New York, when he urged his colleagues in the U.S. House of Representatives to oppose Heritage Areas. Congressman Solomon wrote:

“I urge you to defend property rights and strongly oppose the American Heritage Area Participation Program … The environmentalists advocating this bill have FEDERAL LAND USE CONTROL as their primary objective.

“The bill wastes tax dollars that could be more appropriately spent on maintaining our national parks … Property rights defenders have legitimate concerns about the provision in the bill requiring localities to obtain approval by the Secretary of Interior for land use plans…

“Again, I ask you to defend property rights and oppose this bill.”

Though National Heritage Areas continue to proliferate, there is some good news to report. Opposition to them has also grown.

Maryland congressman Roscoe Bartlett has led a heroic charge against a massive proposed Heritage Area on the East Coast that would encompass his district. Congressman Bartlett was originally a cosponsor of the Journey Through Hallowed Ground National Heritage Area, but later, after further inspection, he objected to how the legislation would federally fund interest groups and invite those groups and the Park Service to manipulate the decisions of local governments. He also saw how these designations could endanger the rights of property owners. Since then, he has led a truly heroic charge against the Journey Through Hallowed Ground Heritage Area. Taking on wealthy interest groups, their high-powered attorneys, and self-interested colleagues along the way.

Arizona congressman Jeff Flake authored a stinging criticism of National Heritage Areas this year, noting that Heritage Areas are pork-barrel projects that threaten private property rights. Congressman Flake wrote:

“All National Heritage Areas deserve scrutiny by the members of the House Natural Resources Committee. Since 1984, when the first National Heritage Area (the Illinois and Michigan Canal National Heritage Area) was passed by Congress, the practice of designating National Heritage Areas has grown exponentially…

“I challenge any member of the committee to ask themselves if $700,000 for the Silos and Smokestacks National Heritage Area sounds like a rational expenditure of federal tax dollars when we have a huge deficit and vast maintenance backlogs in our parks and forests, not to mention ongoing conflicts abroad to fund.

“[T]he management entity designated to manage the Journey Through Hallowed Ground National Heritage Area received $1 million in federal funding in the form of an earmark in the transportation bill in 2005 before the organization was officially registered as a non-profit and before the heritage area was created…

“As the record will show, I offered an amendment to H.R. 319 that would have restricted the federal funds received by the organization so that those funds could not be used for federal, state or local lobbying. Disappointingly, the amendment was rejected on a party-line vote.

“Another important point is the effect these designations have on private property rights. When the federal government draws a federal line around private property, negative impacts on the private property owner will always result. Injecting the federal government into the lives of property owners in Virginia and Maryland in the form of a heritage area designation is just wrong. At a minimum, the committee should have included language in the bill guaranteeing private property owners protection from the National Park Service, or a proxy management entity, in local zoning and land use decisions.”

Last year, in eastern Missouri, citizens there rallied against the proposed Confluence National Heritage Corridor, which would have encompassed portions of Missouri and Illinois. When word came earlier this year that proponents of the corridor were gearing up for another run in the new Congress, a local citizens alliance named “Citizens to Protect the Confluence” sprang into action. They collected over 1,400 signatories on a petition to oppose Heritage Area designation in their area. In addition, two cities and a county passed resolutions opposing the creation of the Confluence Heritage Corridor, and to date, legislation to create the corridor has not been introduced in the current Congress.

In early September of this year, The National Center for Public Policy Research spearheaded a coalition effort in which over 100 policy groups, grassroots leaders, local government officials, sportsmen groups, civil rights organizations, property rights advocates, farmers, and ranchers signed a letter calling on Congress not to support the creation of any additional National Heritage Areas.

And recently, when a bill that would create six new National Heritage Areas was debated in the House Natural Resources Committee, twelve Republicans voted against the measure. Though the bill passed in committee, this is progress. In the past, such a bill would have passed with little fanfare and no opposition.

So, yes, the battle against National Heritage Areas, though an uphill battle to be sure, has recently borne some fruit. We are still very much in an educational phase, getting citizens and Congressmen to understand that Heritage Areas are, in essence, federal pork-barrel earmarks that threaten the rights of property owners. They are earmark abuse and the Kelo decision rolled into one.

World Heritage Sites

Heritage preservation, apparently, is not only too important to be left to local citizens and local government. It’s also too important to be left to our national government. At least, the United Nations thinks so.

My colleague at The National Center for Public Policy Research, Ryan Balis, has done excellent work on the topic of UN World Heritage Sites, and much of his research and analysis makes up my presentation on the topic here today.

In 1972, the UN World Heritage Convention was spawned from a meeting of the world body’s cultural arm, the UN Educational, Scientific and Cultural Organization — known by the acronym UNESCO.

The following year, the United States signed on to the convention, and, in so doing, according to the UN, is required to “identify and nominate properties on [our] national territory to be considered for inscription on the World Heritage List.”

Any time the U.S. nominates a property, the UN says we must also include a detailed description of what actions have been taken to protect and preserve the property, as well as a management plan for its continued preservation.

Article 5 of the World Heritage Convention encourages states to create “comprehensive planning programmes” that ensure the preservation of World Heritage Sites. It also encourages states to establish the necessary bureaucracies and pass the necessary laws to protect these sites.

In order for a site to make it on the UN World Heritage list, it must first be nominated by the nation in which the site exists. In the U.S., only the executive branch need nominate a site for the UN World Heritage status—congressional approval is not required. After a site has been nominated, the World Heritage Committee, which meets once a year, decides if the site passes muster for the World Heritage List.

Currently, there are 851 properties around the world on the World Heritage List, and twenty World Heritage Sites in the United States, including the Statue of Liberty, Yellowstone National Park, and the Grand Canyon.

An additional 36 U.S. sites were nominated by President Bush’s Interior Department earlier this year. Such World-Heritage-Sites-in-waiting include: the Olana State Historic Site here in New York; Mount Vernon in Virginia; the Okefenokee Swamp National Wildlife Refuge in Georgia; and Petrified Forest National Park in Arizona, to name a few.

Now, it is important to note that when a property is designated a World Heritage Site, it does not become the actual property of the United Nations.

However, as my colleague Ryan explains in his analysis, the UN has a very specific way by which it can help force certain land use controls on such sites. UNESCO can designate existing World Heritage Sites as a “World Heritage Sites in Danger.” Assigning this scarlet-letter label to a site generates international publicity and becomes a powerful tool for the UN, preservationist non-governmental organizations, and politicians to push for land use restrictions on World Heritage Sites and the land surrounding them.

For example, in 1995 the World Heritage Committee designated Yellowstone National Park a “World Heritage Site in Danger.” The designation came at the urging of the Clinton Administration, and during a time when U.S. Forest Service officials were preparing an environmental impact statement to determine whether or not a mining company could harvest gold, silver, and copper on a mix of public and private land—not in the park, mind you,—but several miles outside the park’s boundaries. Environmental groups had been rallying to stop the mining project, citing the usual litany of degradations that would befall the area should the mining be permitted to commence.

The designation also came after the Clinton Administration invited a delegation from the U.N. World Heritage Committee to come to the U.S. and examine Yellowstone National Park and the proposed mining project. The World Heritage Committee then held a hearing on the matter, and the chairman of the committee, Abdul Wichiencharoen from Thailand, stated that the “United States has a duty to take steps to preserve the Yellowstone ecosystem across administrative boundaries of the park. Some 12 million acres of national forest and wilderness that surround Yellowstone must be considered an extension of the National Park if the whole system is to be preserved.”

In the end, the mining company was pressured to accept a land swap with the federal government, whereby it could recoup the money it had thus far invested in the mining project. The land swap came at a 65-million-dollar cost to American taxpayers, not to mention the loss of $650 million worth of gold and other minerals and 280 jobs that the mining operation would have produced.

The World Conservation Union counts the Yellowstone example as a World Heritage “success story” and notes that “Conservation conventions are a means to an end. In the case of World Heritage, the aim is to strengthen conservation of specific sites that are on the list. This is done by various means, [including] through pressure on governments to drop policies where they pose a threat to the site.”

There are some in Congress who, seemingly, want American properties to be classified as World Heritage Sites in Danger for as long as possible—possibly reluctant to surrender the public relations advantage that the classification affords them.

Two months ago, Senator Bill Nelson from Florida took the Bush Interior Department to task because it made a recommendation to the World Heritage Committee that Everglades National Park be declassified as a World Heritage Site in Danger, a designation it had held since 1993. After review, UNESCO subsequently removed the site from the “danger” list.

Nelson was outraged over UNESCO’s decision, and even went so far as to demand that the Interior Department employee who made the recommendation be fired—even though that employee was simply doing his job—and doing it in accordance with the World Heritage Convention’s guidelines.

The fact is, the World Heritage Convention’s decision came at a very inconvenient time for Senator Nelson. It came during a time when Nelson was pushing for, and currently still is pushing for, an additional $2 billion in federal funding for the Everglades. To date, various Everglades restoration projects have already cost federal taxpayers and taxpayers in the state of Florida over $7 billion. The Government Accounting Office reports that Everglades restoration projects already in the pipeline will cost taxpayers an additional $20 billion over the next several decades. There is little doubt that in the battle to secure such significant funding, a World Heritage Site in Danger designation serves as a powerful public relations tool.

The late former U.S. Ambassador to the United Nations, Jeane Kirkpatrick, summed up the threat World Heritage Sites pose to landowners best in a letter she wrote in 1999 to the late Congressman Bruce Vento. Kirkpatrick wrote, quote:

“In U.N. organizations, there is no accountability, UN bureaucrats are far removed from the American voters... Some come from countries that do not allow the ownership of private property... What recourse does an American voter have when U.N. bureaucrats from Cuba or Iraq or Libya (all of which are parties to [the World Heritage] Treaty) have made a decision that unjustly damages his or her or property rights that lie near a national park? When the World Heritage committee’s meddling has needlessly encumbered a private United States citizen’s land and caused his or her property values to fail, that citizen’s appeals to these committee (if that is even possible) will fall on deaf ears.”

This is why it is important for all property owners to resist any attempt to transfer land use planning authority, power, and influence to far away powers with little regard for the unique rights Americans’ hold dear.

As the president of my organization, Amy Ridenour, simply stated recently, “If the Founding Fathers had wanted local zoning decisions made by the federal government, they would have written the Constitution that way.”

But, of course, our founders did not write the Constitution this way. They understood the problems posed by a powerful central government that was too far away, and too disconnected from the people whose lives were impacted by the decisions it made.

They also foresaw the problems associated with international agreements that corrupted the ability for the U.S. to govern itself. In his first inaugural address in 1801, Thomas Jefferson stated, quote: “[I]t is proper you should understand what I deem the essential principles of our Government, and consequently those which ought to shape its Administration… Equal and exact justice to all men, of whatever state or persuasion, religious or political; peace, commerce, and honest friendship with all nations, entangling alliances with none.”

As many Americans can attest, it is difficult enough to convince local governments and local land use planning commissions to account for landowners’ rights. Convincing special interest groups, federal agencies and international bureaucracies to respect and protect our rights is exponentially more difficult. It is much better to never give these bodies such power over our lives and our property in the first place.

Notes:

1. Contrast the views of Madison and Adams with what Senator Harry Reid (D-NV) said during a hearing on “open space” preservation in 1999:

“Let me be clear about one important thing: I am not sitting here today as an advocate of some system of federal zoning or any other such nonsense. I don’t think that any of my colleagues are, either.

“I am saying, however, that the federal government has a role to play, particularly with so much development currently taking place in coastal areas, flood plains, or, in the case of Nevada, on land that borders on federal property (and probably used to be federal property).”

While the concept of “federal zoning” may be taboo to many in Congress, accomplishing the same objective through National Heritage Area designations apparently is not.

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