Property Rights Foundation of America®

from Proceedings of the First Annual N. Y. Conf. on Private Property Rights (PRFA, 1995)

State Legislation to Protect Private Property Owners
W. Christopher Doss

Virginia Department of Environmental Quality

First of all, let me tell you who I am, which may surprise you. I work for Governor George Allen in Virginia and Secretary Beck Norton Dunlop and they're often lambasted in the press as being conservatives.

Let me also tell you right up front I am a civil libertarian and a radical environmentalist. Make no mistake about it. The battle we are waging is partly a rhetorical battle. If you build a dichotomy between property rights people and environmentalists, you lose.

As Dr. Pilon very articulately told you, the best way to save the environment is by protecting the rights of people who look after land. We have heard that point over and over again. So when you choose your rhetoric, you can't say, "the environmentalists think blah, blah, blah..."

Most of us in this room, certainly, should be proud to call ourselves environmentalists. What we need to do is differentiate between true environmentalists and the other side, the self-chosen environmental elitists. Let's call them "Skees" for short.

Now the Skees have a different approach from you and me, and it's that approach that must be differentiated, not some mistaken dichotomy that poses property rights advocates on the one side and environmentalists on the other. That's dead wrong. We're not going to win that way.

Furthermore, let's look at some of the icons of the very people who think they're opposed to us. A few weeks ago a famous lawyer named William Kunstler died. Any of you who can remember back through the sixties and seventies remember that he set himself up as the ultimate protector of people who were disenfranchised, people who lack power in society. But when CNN ran a little story about him after his death the one clip they ran of him we must remember.

Someone asked Kunstler, "Why did you defend all these unpopular people?"

He said, "Because someone has to make sure that the power of government does not grow too strong."

This is why we have to take the high ground as being the civil libertarians on this issue. If any constitutional amendment in our Bill of Rights means something, all of them mean something.

If you are dealing with someone who claims to be an environmentalist and a civil libertarian, get into a conversation with them about Miranda rights or letting criminals off on technicalities.

The people who claim to be civil libertarians will probably say, "What do you mean, 'technicalities'? Illegal search and seizures are not a technicality. That's part of the Bill of Rights. What do you mean, 'Miranda rights'? That's been established by our Supreme Court as part of the Bill of Rights."

Yes, indeed, and that's the danger for you and me, too, because if we are civil libertarians, if we believe in the Bill of Rights, and we must believe in the Bill of Rights, and we must embrace it totally.

It may make some strange bedfellows for us. You've heard earlier today that a woman in this room was having health problems due to a water problem she has. Now I'm not a hydrogeologist. I don't know New York geology. I'm neither a judge, nor a jury, nor a lawyer. But let's take this kind of case on its face. If a neighboring landowner is destroying her health or the value of her land, that's our case. That's our cause.

That's our issue, and we've got to embrace it because the Skees, the self-chosen environmental elitists, are adhering to the "big lie" theory of government. Make a lie big enough, repeat it often enough, and people will believe it. And the big lie is that this movement is a bunch of millionaire developers who want unlimited rights to do whatever they want to.

Now, I can look across the room and see that maybe 99 percent of you are rich millionaire developers. (laughter) That's clear. I can see that from what you're wearing, the jewelry and all. But that other 1 percent, this is for you. If you will look and see who is funding people who dismiss property rights, you will find when you go to hearings in your state legislature and your county that, in fact, large corporations and large developers are delighted with regulation, because that helps cut down on competition. That cuts down on the little guy. The large corporations can afford regulations. They can afford review that will make it as difficult as possible. It's the small farmer that gets cut out.

Regulations have to have a scientific basis, and if they do, we have to support them. If there's a reason, we have to keep kepone out of the James River in Virginia, to keep DDT off of farms. And there is a reason and there's no room for exemptions. We've got to understand that and embrace that concept, too.

But we have to keep in mind that there's a big lie out there that's thwarting many of our efforts. That lie says we're anti-environment and we're a bunch of rich millionaire developers. We have to blow that apart.

Remember, the Constitution is not a Chinese menu. You can't pick an amendment you like here and an amendment you like there. You can either buy the concept of constitutional law and the rule of law or you don't. What's good for the goose is good for the gander. If you're not going to adhere strictly to it, if we're not going to embrace these causes that may make us a little uncomfortable, then we better forget the moral high ground that we have right now.

We believe that polluters who destroy your property values must pay for what they're doing. That is a property rights issue.

We likewise believe that when government destroys the value of you property, we should support you. Now, this case that we've heard this morning of the woman whose well was damaged, that's similar to a case in Virginia and it was leachates from the county-owned landfill. It's not a difficult case for me but suddenly it was a difficult case.

That reminds me of when I got into the airport. I don't mix with people when I travel, you know. Don't talk to me, just leave me alone. Got on the plane, was waiting for the shuttle to pick me up and a fellow got into a conversation with me. He's in his eighties, from Arizona, grew up in this area, was talking about Arizona, and within twenty seconds he lit my fuse.

"Arizona used to be nice until the developers took it over," he said.

I said, "I know exactly what you're talking about. When all those government programs brought in water from the Colorado River and the mountains of Arizona down into Phoenix, and I went off on 'government this and government that' and 'government the other.'" I said, "Have you ever been to the Aral Sea in the Soviet Union? You know they did the same thing there too, trying to make cotton grow in the desert?."

I said, "We lost over 300 million acres of cotton land when government-subsidized cotton programs took all the cotton production to the deserts of Arizona, and now our people in Virginia are living in poverty because all these government programs that attracted the developers out there." I didn't shut up for ten minutes.

Turns out the guy is a retired professor. I'm prone to prejudice and bigotry myself but I have to admit I put professors right alongside of lawyers. And I shouldn't have done that.

He looked at me with his mouth open, and then he stammered, "What were you doing in Russia?"

I didn't tell him I've never been to Russia. I watch PBS and I've seen a lot of programs on the Aral Sea. And I know also, if you see it on PBS or read it in The New York Times, it must be true.

Let's get back to who's effected. It's not the rich millionaire developers. It's the small landowner farmers. It's the people who decided as their retirement nest egg they would buy a piece of property. It's the farmers and the orchardists.

Fortunately we've had a few instances of promise in this country. In the state level in Virginia we have a "right-to-farm" law. On the federal level, to the extent that there may be some reality to it, we have the so-called "grain-scissors coalition," in which people from the Skee side of the question, the self-chosen environmental elitists, have realized that people like farmers perhaps offer them a good way to save the environment. And they're beginning to realize the importance of science, too.

The best way to turn orchards in upstate New York and in the Shenandoah Valley in Virginia into developments is with a few more Alar scares. Drive these orchardists out of business. All they have in life is 200 acres of apple trees. What are they going to do with that 200 acres? Well probably break it up.

So we need a few more Alar scares in the name of environment and we can probably get rid of half the orchardists in the Shenandoah Valley in Virginia and maybe that many in New York.

Farmers and working class people are the people who are damaged by this.

Property rights should be the ultimate issue of the environmentalists, but unfortunately they got a knee-jerk reaction just as we sometimes do, By environmentalists, I mean Skees, the self-chosen environmental elitists.

Let me give you a homework assignment because this isn't going to work as long as we are simply in this room talking to one another. It's only going to work when you get out of this room.

First and foremost, you have to remember the rhetoric of the debate. If people are saying of you, that you think we ought to reward polluters and let them pay, you've got to articulate this issue, that we feel just as strongly about polluters who might damage our private property as we do about government regulations that might damage our private property. If someone's health or the value of their property is impaired, either by government action or the action of the neighboring landowner, that's what we're all about. So we've got to bust that lie up.

I see we're having an election in Virginia right now and all of the Skee groups are sending out questionnaires to the candidates for office, and the way that they phrase the question is this, "If a big developer asks to have a piece of property re-zoned and he's denied that re-zoning, should the government compensate him for the potential profits he would have made if the property were re-zoned?"

Now you laugh at that, but people who aren't real familiar with the property rights movement hear that and believe it. And you know what, some of these Skee environmental groups that thought it up have even repeated it so much they even believe it.

I don't think it takes too many brain cells to figure out what' it's all about, but you repeat it often enough and people start believing it.

You have to fight that issue two ways. You do it by getting the message out in your community among fellow voters. This is not about rewarding polluters. This is not about paying developers for potential things that they were never allowed to do by the zoning regulations. It isn't about that at all. You do it through letters to the editor, you talk to civic groups, you talk to your neighbors.

But more importantly you talk in public forums to your state and local lawmakers, your legislative members of county, city and township committees. You talk to them in public forums and you make it clear. "Hey, I'm not asking you about re-zoning for developers and rewarding them, I'm not asking you about paying polluters not to pollute. What I'm asking you about is, if your reason for designating a piece of property as this, that, or the other, is for the benefit of the public, then shouldn't that benefit be paid for by the public?"

Get the issue articulated as it is. Then you ask them to take a stand. "Will you actively sponsor legislation that will do this, this and this?"

Let me get into five ideas that may be intriguing to you. I'm not going to get into detail. We don't have that time now. You may see me after if you want to discuss them. But there are a couple of things in addition to this compensation bill we've all been talking about.

One is informed consent for easements. If a poor farmer who's in his later years in life is given a chance to sell an easement to his property and it's all written in legalese and he signs it not realizing what it actually does to impact the use of his farm, is that legal?

Well, right now you can fight it in court, but I would advocate that a statute to establish informed consent, disclosure, would be appropriate. Let us note who exactly is it who gets control of the land when you sign that piece of paper? Who ultimately is in control, not who the other agent is on paper? But who ultimately will control this conservation easement, historic easement, viewshed easement, whatever it is? Who's going to get control and exactly, in layman's terms, what does it mean?

Now, you're going to hear screams from the Skee movement and from some historical preservationists, and you simply have to look them in the eye and say, "Why is it you have something to hide? If you have nothing to hide, easements are a perfectly legitimate way of establishing what we all want, public goods that somebody pays for other than the hapless, unlucky owner."

Maintenance Costs
Before city, township, county or state assumes title to land and takes it off the tax rolls, and assumes the maintenance costs, what are the perpetual maintenance costs going to be on that land and should the taxpayers of the county, city, whatever be required to pay higher taxes, not only because you've taken a percentage of land off the tax roll, but also because this land requires maintenance? What are the maintenance costs before your county or state takes title? The maintenance costs should be addressed in some fashion.

Mandated Review Property Taxes
If they declare part of Old Town Alexandria a historic district, and it drives the average price of a townhouse in Old Town up, you better believe the City's going to come out and reassess our property and have us pay higher taxes. By the same token, the City should do that if a regulatory taking decreases the value of our property. It ought to be done immediately. I should not continue to pay property taxes on property that used to be worth $150,000 and now is worth $100,000. Immediately address that in the tax rolls. The complication of that alone will make some local authorities think twice.

On The Record Stands
This is one of the most important issues in the ever-complicating zoning and planning issue in America. We have all these ways of changing land-use that are so complex. The Clean Water Act created, for example, tier-three waters designations. Each state has to come up with a plan to designate certain rivers, streams, waters as pristine waters or exceptional waters.

What I found, when I came into this job in Virginia, was that the committee putting this together excluded every property rights group and advocate in Virginia. What they advocated was a very simple system in which anybody in Seattle, Washington, Albany, New York, or Timbuktu could nominate a water in Virginia. Notification was almost dismissed as a necessity and final decisions were being made by the State Water Board of Virginia, a board which is appointed but basically accountable to no one.

First of all, why pretend to have a county planning or zoning board if in fact there are a variety of other ways of zoning land that don't connect with one another? Don't pretend. If there are going to be national boards, state boards, regional boards, every other kind of board, don't use this sustainable development planning term with me. You're making it so complex, nobody can understand it, and you're going to do what you want to in the most devious way possible. That's what it is to me.

We need to require that the county board of supervisors, the county planning board, and those other official entities which are accountable to the people should take a public stand when the effect of whatever government is doing is re-zoning it.

Property owners should make full use of Sunshine laws and freedom of information (FOIA) requests. People should not be insulated from the process of government at any tier.

"On the record stands" by officials at the county and local level are one potential way to start addressing the ever-complicating Tier III zoning impositions.

I hope we will have a chance to talk about some of these ideas and that I will be able to return in the future to exchange thoughts with you again.


Editor's note: Please see a conceptual collection of state private property rights legislation proposals by Christopher Doss.

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