Property Rights Foundation of America®

from PRFA's Twelfth Annual National Conference on Private Property Rights
October 18, 2008

Conservation Easements and TDR's: Fifth Amendment Takings through Zoning

James E. Morgan, Esq.
Galvin and Morgan, Delmar, New York

Carol's been running these conferences for twelve years now and I have had the pleasure of attending at least eleven of them and speaking at several of them. When she asked me to speak today, more time was planned. But I have spoken before and ended up at the end of the calendar and had to shorten my remarks, which is fine. So on conservation easements, I'm going to keep my remarks very brief, since my co-speakers in the morning panel did an excellent job in covering those.

With respect to the transfer of development rights, or TDR's, for any of you who have not heard the term, that's a methodology of compensating property owners when the government, in one form or another, either by regulation or outright eminent domain, takes your property. The methodology has been recognized by the U.S. Supreme Court as long as it is part of a proper compensation package. In other words, in theory it falls under the Fifth Amendment. What it means is that you can receive a certain value for part of your property rights having to do with development.

The most egregious example of this in the State of New York is the Long Island Pine Barrens, where in 1993 the State Legislature adopted a proposal which took 50,000 acres of land in Suffolk County and basically rendered that land useless to the owners. The owners have very few rights with respect to that land, except to continue paying taxes. There are also another 100,000-plus acres that are subject to some restrictions outside the 50,000-acre core area. This was in regard to the state's purported attempt to protect the Pine Barrens, which the state declared to be a unique form of lands.

For any of you who are not familiar with Long Island, it's similar to southern New Jersey or Cape Cod. The land has sandy soil, it has the forests that mainly consist of shrub pine and oak, and it's not heavily forested. But it's the declared intent of the State of New York to preserve the land to protect the underlying aquifer, which the state has already endangered on their own for two very good reasons.

But the state established a TDR program as part of the compensation for the people who had part of the 50,000 acres in the core. The state valued these TDR's. In other words, basically, what this means is that if you had five acres, you got a development right that you could take and sell to someone else for a certain amount of money. The state valued it at between $7,200 and $9,200. Then that person who purchased the TDR would take it to the local town government and then, in theory, they would get some of the local regulations waived for the rights to develop other land within the same town.

I can tell you from the outset, the system does not work. The people are never adequately compensated for the land. The original owners of the land never get fair value for their property. This statute also encompassed a provision that said the state could use eminent domain to take this land if they had to, but they have never taken one parcel of the land by eminent domain because eminent domain, while it's greatly abused, does give the property owner some rights. So TDR's are very commonly used. They are also one implement of zoning that has been encouraged by the New York State Department of State.

If you want to have fun someday, go to the New York Department of State's website, and you'll find that they have proposed zoning codes that towns can copy. These zoning codes all express the version of zoning now known as "smart zoning." And I'm sure I see several people I know personally in the room who have suffered from this smart zoning. This zoning has aspects down to which they can control what size tree you can cut. This is actively supported by the New York State Department of State. They give free consultations and support to those few communities left who do not have zoning and are adopting zoning. And this is the type of zoning they're encouraging.

Carol also asked me to give a very brief summary of where we're at with respect to zoning in the future. Unfortunately, that's very difficult because what I'm about to say is very pessimistic. We're progressing down a road in this country now where the past is becoming the future, and I'm not talking about the American Revolution. What I'm talking about is that we're going back to feudalism. The earlier speakers all or in part discussed this in one form or another. As you probably remember dimly from some history course, feudalism was a system established in the Middle Ages where the sovereign owned the property and the people either had the right to use that property in exchange for service to the sovereign or some monetary value, something of that nature.

Basically it was a different form of slavery or serfdom. But that's where we're headed, because if you look at the State of New York, most parts of the state, you've got the Adirondack Park, you've got the Catskill Park, you've got innumerable other areas. You've got the Suffolk County developments I referred to, you've got all sorts of quasi-public corporations that own swaths of land throughout the State of New York, which they control and have superior rights to that of the individual property owner. And we're going back to a place where with smart zoning and how they can control the land, they can even control more detailed things like placement of your outbuildings, as well as your own lawn furniture. I'm talking specifics because I've known the codes. As for cutting trees, it is a fact in certain communities they do regulate this. I have fought these things up to the New York State Court of Appeals and into the U.S. Supreme Court, but, unfortunately, the U.S. Supreme Court does not want to hear these cases.

But what we're going back to, and it's a rapid process, we are going back to such a thing where private property owners are going to be more serfs than they are property owners. They're going to be subject to the thumb of the government at every level. This is something we must fight, we must continue to fight.

And we're also looking at something more, if you look at all our constitutional rights, and I'm including free speech, and every other right enumerated in our U.S. and New York State Constitutions. They all originated from the time where people were rebelling against a feudal system.

The Magna Carta once came to Albany years ago, and I stood in line for a couple of hours to view it. It's an archaic document, but it stands for property owners asserting their rights against the sovereign. The sovereign has only been replaced in this country by three different levels of government. In theory, they are supposed to be working in checks and balances. They're not. Those of us who fight as advocates on property rights issues, including the gentleman who spoke before me, have also suffered from the fact that you're picked out as a lightning rod. They will give you grief. They will fail to approve other applications. When you file a proper application that is completely legal under the applicable standards in that town, if you've given them trouble they will give you a hard time or disapprove it, and it will cost you a fortune in the process. This is not only an erosion of property rights, it's an erosion of all our political freedoms.

I'm not trying to scare you, but you should be aware of this. That's why if you pick, if you choose to fight for your property you have to be prepared to fight them long-term. There's no halfway measures anymore.

If you look at the groups that are the most prominent proponents of all these things, it is revealing. For example, earlier it was mentioned that the president of The Nature Conservancy also ran one of the financial corporations, Goldman Sachs. You should take some time to look at the board of trustees of The Nature Conservancy; you'll find most of the leading financial executives sit on that board. And if you look at that, I have evidence that showed The Nature Conservancy, in fact, owns oil companies, they clearcut forests, they do the very things that they claim they abhor. And I could go to almost any one of these land trusts and do the same thing.

You can research it online because the 990 forms, which are the not-for-profit tax forms, often list the holdings of members of the board of trustees and the officers. You should look at that and see what these people are doing. They make sure that they get the land on Fire Island for their cabins or their, quote, "cottages," like in Newport, Rhode Island, on that scale, but, by God, they'll take your property in order that they can have a view of a tree. And it's not something I'm making light of.

They do attack the people who fight them. They'll make life as difficult for you as they can. We have to continue this battle. I got into it approximately fifteen years ago. But it has to continue, you can't quit, you can't let up. Right now they have been very successful. But I have one optimistic thing that is coming out of the current mess that the country's in financially.

First, however, returning to my observations about the treatment you may face, I'd point out that the people who regulated the financial markets were the government, despite the fact they're blaming alleged deregulation on other people. Everybody in this room, if you attend this meeting, you're going to be declared to be part of the far right-wing conspiracy. I don't care what your private point of view is. But that's the fact. I'm a strict constructionist; what the Constitution says is what it means, and I'll continue to fight for that as long as I can. But everybody here has to recognize there's a price to that. However, we have to continue that if we're going to preserve our democracy.

Any of you who looked at the local newspaper, the Albany Times Union, today, you saw a headline about a poll that was taken, and everybody figures this is going to be the greatest financial crash in world history, or something to that effect. And because of the severe financial thing, because of the limits the financial matters are going to place on government, de facto, their progress is going to be halted for the time being. They're going to be there irrespective of who is the President. And it's during this period of time, the most difficult period of time for the citizens of this country, that we have to continue to fight to preserve our rights.

Thank you.

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Conservation Easements

Government Control of Private Land Long Island Pine Barrens
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