'Regulatory takings' measures: Pay me to obey

Western ballot measures would gut environmental protections

Posted by Eric de Place (Guest Contributor) at 4:55 PM on 01 Nov 2006

A couple of weeks ago, while hurrying to a favorite trout stream, I was pulled over for speeding in a small town. I must have been fried from months of research and writing on the so-called "property rights" movement, because it suddenly occurred to me that the current system is backward.

So I said* to the officer: "Listen, if The Man wants me to obey his laws to keep this town safe, then he should pay me for my time."

Now if my reasoning with the cop sounds ridiculous to you,then you may have difficulty grasping the thinking behind the rash of ballot measures spreading across the West like ... well, like a rash.

But there you have it: there's a well-funded and highly ideological campaign with national marching orders. In 2006, they've landed initiatives on the ballot in Arizona, California, Idaho, Montana, Nevada, and Washington. All the initiatives have the same aim: to force communities to pay property owners to obey land-use laws. And if communities can't pay, they must grant waivers from the law.

(Don't live in one of these states? There's one headed your way soon. Live in Europe? You're next.)

"Oh, come on," you may be thinking, "The measures are not nearly so simple." And you're right: they're not.

In truth, the ballot initiatives -- called "regulatory takings" measures by geeks and lawyers -- are complicated. And the property rights activists behind them have been exploiting their complexity to gull folks into voting for something that very few people support.

But I'm getting ahead of myself.

First off, why should you care? For starters, the ballot measures are extremely dangerous to environmental protections. In fact, I've come to believe that they pose a threat right up there with the biggies like climate change and habitat loss, primarily because the measures create conditions under which we cannot adapt to new threats.

Not sure if you’d like energy plants in your national monuments, suburban subdivisions in your state's farmland, or an evisceration of the Clean Water Act? Then you should be concerned.

In the next few days, I'll post entries explaining what's happened in Oregon -- home of the measure that spawned the 2006 crop of initiatives. And I'll explain how activists are exploiting the justifiable concerns of property owners to sugarcoat a poison pill that will have the effect of severely damaging protections for small-time property owners. And I may even rant about a few other things too.

In the meantime, however, I'll indulge in a bit of shameless self-promotion and point wonkish readers toward my work on these measures with Sightline Institute (where I make my living): here, here, and here.

More tomorrow.

*Denotes things I did not actually say to a cop.

For story: 'Regulatory takings' measures: Pay me to obey
5 Comments | Post a Comment

cool... thanks for the post...

But what do you mean by "in Europe? You're next." That seems highly unlikely. England, particularly, has some of the most favorable land use laws around -- remember how Madonna was upset because the public could use her land for walks, etc. And in Scandinavia, walkers can even camp and collect firewood on private property. Community rights over individual rights!

---- Visit Land Use Watch

by landusewatch at 10:32 AM on 02 Nov 2006

moreover...

I am not even sure what the legal basis would be for European claims for "takings". One of the main impacts, after all, of the revolutionary war was a movement away from the Crown owning all land (and simply granting estates). in most of europe and Canada, all land is still owned by the state, and current tenants simply have an estate and right to use that land.

in the US, of course, people don't have COMPLETE allodium of the land (except if you live in Nevada, where they more or less have done that). fee simple specifically gives the gov't the right to regulate, tax, police, seize, and escheat the land. (If someone here thinks that they truly "own" their land, try not paying property taxes and see what happens!)

I'm highly doubtful of your assertion that "takings" claims are coming to Europe... on what basis do you say this?

---- Visit Land Use Watch

by landusewatch at 10:50 AM on 02 Nov 2006

Europe and property rights

I made that assertion on the basis of a seminar (and subsequent conversation) that I had with Harvey M. Jacobs, who's a professor at Univ. Wisconsin-Madison and affiliated with the Lincoln Institute of Land Policy. He's considered one of the leading experts on property rights movements and he's written extensively on the U.S. movement.

Lately, Jacobs has been researching a parallel movement in Europe. Now obviously, the precise legal basis will be different in Europe -- prop rights activists there can't very well refer to the takings clause of the US Constitution. But many of the same features are in play. They're trying to make an argument that they should be paid when property laws prevent them from maximizing profit on their land. And they're sharing information and strategy with the U.S. movement.

In Norway, for example, significant parts of the agricultural community are beginning to agitate for waivers from the ag. zoning that they are under (unless, of course, they get compensation). Some farmers and rural landowners want to convert their properties and be allowed to subdivide for vacation homes or develop other uses. Sounds familiar, doesn't it?

by Eric de Place at 11:06 AM on 02 Nov 2006

We need to find a way to stop this

bullshit.

In the end, it all comes down to biodiversity. Poison Darts--Protecting the biodiversity of our world

by biodiversivist at 11:43 AM on 02 Nov 2006

well...

My feeling is that it won't get much traction in Europe, not least because of EU requirements. Perhaps it might get a bit more play in Scandinavian countries, but even then I am not sure.

It'll be interesting to see how 933 plays out... if it fails, then I think the whole Kelo reaction may have fizzled out. But if it passes by wide margins, then it may continue... That's a pretty obvious comment I just made. Voters in Livermore rejected anti-regulatory referendum last year... it can be done elsewhere!

---- Visit Land Use Watch

by landusewatch at 2:31 PM on 02 Nov 2006

ADVERTISING POLICY

You are not logged in. Thus, you cannot post a comment. If you have an account, log in. If you don't have an account, well, by all means go make one! Meet you back here in five.