Raw sewage, takings, and you

Regulatory takings initiatives tie communities' hands

Posted by Eric de Place (Guest Contributor) at 4:21 PM on 02 Nov 2006

I love sewers. I love them because the alternative is so much worse. Ponder that for a moment.

What the heck do sewers have to do with property rights and regulatory takings? Patience, grasshopper.

As I wrote yesterday, a rash of so-called "property rights" ballot measures in the West are threatening the very basics of community planning and environmental protection. Arizonans are facing Prop 207; Californians are battling Prop 90; Idahoans are up against Prop 2; and Washingtonians are facing Initiative 933. (Montanans and Nevadans recently dodged a bullet when their initiatives were invalidated because of little things like fraud and constitutional violations. More on that in a later installment.)

By design, all the 2006 property ballot measures deploy the same scheme: "pay or waive." That is, you can pay a property owner to obey the law, or you can waive the law.

Here's how one Montana writer described pay or waive:

If you could fit 20 houses on your land, plus a junkyard, a gravel mine, and a lemonade stand, and the government limits you to six houses and lemonade, then the government would have to pay you whatever profit you would have made on the unbuilt 14 houses, junkyard, and mine. Generally, if the government can't or won't pay you, it would have to drop the regulations.

Well, what's wrong with pay or waive? Why shouldn't I be allowed to do whatever I like on with my property? That's where the sewers come in.

Communities pass laws and regulations to protect themselves. Sometimes they set speed limits (like the one I flouted). Sometimes they say it's not OK to open a strip club next door to a school. And sometimes they say it's not OK to destroy habitat for an endangered species, or foul the town's drinking water, or put new development in a known floodplain.

And the sewers?

Sometimes communities pass laws about sewage. True story: there was a fellow in my town named G.W. Wells who, in 1901, complained about his neighbors. Wells had the misfortune of living downhill from sewage outflow that draped his bushes with toilet paper and delivered a choking and unsanitary stream of sewage and creekwater into his yard. You can hardly blame the guy for being upset.

Soon after Wells complained, rapid population growth forced the city to put restrictions on property rights. It required property owners to hook into the municipal sewer system. Then it outlawed burning trash (which fouled the air) or burying trash (which was a rat multiplier). Much later, it put restrictions on the factories that once dusted the front porches in my neighborhood with industrial soot. Every city in America has the same story.

And the pattern repeated itself all across the country: rising population growth and emerging technology created new (and often unexpected) problems. Lead paint damaged IQ, or auto emissions turned the skies brown. And we solved our problems by using the basic tools of American democracy. We got together in town halls and city councils and legislatures and we publicly hashed out a set of rules and compromises to fix the problems.

But the 2006 pay or waive initiatives will end that American tradition. Communities will not be able use democratic means to protect themselves. Instead, taxpayers will have to pay for the privilege. That's what's happening right now in Oregon. (Tune in tomorrow for more on Oregon's experience.)

If they pass, the ballot measures will effectively paralyze property laws in 2006. It will be exceedingly difficult for communities to address new threats. Unscrupulous property owners will be able to demand cash payments from taxpayers whenever a law jeopardizes their short-term profit. (Never mind that property values depend greatly on regulatory protections.) And if communities cannot pay, property owners will be exempted from all sorts of laws -- the very laws we may need in coming years if we are to adapt to burgeoning population, a warming climate, falling aquifers, rising seawater, vanishing species, or threats we're not yet aware of.

So, the question facing the Western states in 2006 is whether communities should maintain their right to chart a future together; or whether, instead, states should freeze their laws in 2006, trusting that we will not face new challenges that require adaptation and flexibility.

Luckily for us, the generations before us preserved our right to protect our property and communities. But it's not pretty to think about what might have happened if planning laws had been frozen in 1901, when G.W. Wells' bushes were festooned by sewage from his uphill neighbors. Personally, I think it's a fate too malodorous to wish on our kids.

More tomorrow.

For story: Raw sewage, takings, and you
10 Comments | Post a Comment

Common law

And it's not just an American tradition -- land use restrictions on noxious activities stretch back to before the revolution, to the British common law tradition that originated during the late Middle Ages. The article 'Knowing' Industrial Pollution: Nuisance Law and the Power of Tradition in a Time of Rapid Economic Change, 1840-1864 by Christine Meisner Rosen provides a fascinating history.

Ped Shed Blog

by Laurence Aurbach at 6:42 AM on 03 Nov 2006

Property rights

Meanwhile this enables nuclear power plant siting.

When locals bring NIMBY lawsuits in order to protect their property rights, that is to protect the value of their home or business from nuclear accidents (uninsured) or contamination (unregulated by default), the nuke plant owner/builder will sue over THEIR property rights.

The "right" to reap obscene levels of corporate profits from taxpayers and power consumers with dangerous uninsurable technology.

This better become a nation ruled by and for we the people instead of one ruled by and for corporate corruption. Please VOTE Nov 7th!!

Vote corporate "citizens" out of power. You know the party that has been possesed by corporate crime. Vote for the other one.

http://amazngdrx.blogharbor.com/blog John Schneider, Northern Wisconsin

by amazingdrx at 7:53 AM on 03 Nov 2006

history

Insteresting stuff, Laurence. I've even found reference to property setbacks dating from Roman antiquity. As I understand it, property owners near roads had to observe certain restrictions so that the highways of commerce could function unimpeded. It underscores the extent to which restrictions on property create the conditions under which Western society and all of it's features -- commerce, cultural exchange, environmental and health protections, and so on -- can flourish. Without these restrictions we'd be left with something very close to a Hobbesian anarchy that's ripe for abuses by the powerful few. Point is, I guess, the radical property rights viewpoint -- that I can do ANYTHING I want on my property -- isn't just un-American, it's antithetical to Western civilization. (Not to hype up the rhetoric or anything!)

by Eric de Place at 10:44 AM on 03 Nov 2006

Private Property

The whole argument is interesting. The private property rights movement is two edged. A lot of people who pass as environmentalists use the "you are reducing the value of my property" to try to block projects they don't like (such as a copper mine, a polluting plant or that strip mine.)

Of course, it then makes sense that the right grabs the basic idea and turns it on its head (they are bad, aren't they!).

But the other side of the coin is that localities use zoning laws to block low income housing, residences for the handicapped, group homes for mentally ill patients and so on.

Clearly these ballot issues are not good, they are extreme.

But, we should pay attention to some of the abuses that have led people to support them. I am against such measures, but there are important perspectives we need to consider. Here is one.

http://www.sfbg.com/entry.php?entry_id=1981&catid=4&volume_id=254&issue_id=259&volum e_num=41&issue_num=05

Zoning has indeed been used to preserve land and to protect society. But it has also been used to promote racial, religious and class segregation.

patrick

by bookerly at 11:05 AM on 03 Nov 2006

zoning's two edges

Patrick,
I think that's a very important contribution to the conversation. You're absolutely right that we should be sensitive to unfairness.
To my way of thinking, zoning is a tool that's only as helpful (and moral) as the democracy that wields it. In that way it's like so many other of our institutions -- say, police power. It can be abused for awful ends, but I sure as heck wouldn't want to live without it. And I sure as heck wouldn't want to take it out of democratic oversight.

by Eric de Place at 11:45 AM on 03 Nov 2006

Wrong

Patrick, you're blaming the victim for the problem.

People who want to protect the environment have to operate in a system of laws written by and for the benefit of the wealthy; the law in America is that, absent a statute giving someone standing to complain about an environmental ill, the only people who CAN come into court to stop it are those who can point to a present, concrete injury. I would estimate that half the problem in stopping any environmental problem is that you have to find a plaintiff who is willing to allege an injury--which means you wind up having to try to convince people who work for the polluter or who must send their kids to schools in towns dominated by the offending industry to bring a challenge to the polluting practice. Nobody else--no "outsiders" will be allowed into court--they get thrown out for lack of standing.

Worse, in our deranged system of economics, preserving the common natural resources we all depend on (you know, clean air, water, etc.) doesn't count, because you don't have title to them.

And the law considers most health claims "too speculative" -- in other words, you have to wait until your kids have asthma and your garden produce is toxic before you will be found to have standing ... and then you will be drilled with hired-gun "experts" who will opine that your kids' asthma is because you smoke, or your house is dirty, or is genetic, or because of traffic, or . . .

In other words, the "drop in property value" is one of the few injuries resulting from environmental harms that our legal system is prepared to recognize.

So the right wing didn't get the "drop in property rights" cudgel from environmentalists--rather, environmentalists have had to learn to use it because, otherwise, the legal system is perfectly happy to follow economics over the cliff and allow corporations to destroy the planet while maximizing GDP.

The 5% Project

by JMG at 1:17 PM on 03 Nov 2006

zoning

I wouldn't be surprised if the earliest known cities in Mesopotamia had some kind of land-use restrictions, too. Lots of humans living in close quarters means lots of arguments, and there is only so much variety to those arguments, so that fairly quickly someone gets the idea to codify what was decided the last time someone had this same argument, and just do the same thing that was done then. That said, the restrictions have undergone a vast shift in the last ~150 years.

The rise of zoning as we know it today in American cities came about because of the Victorian obsession with the sacredness of the home. Previous restrictions on land use tended to be of a limited nature, for instance specifying characteristics of the building that could be built on a site (implying that this only applied to the first building, not any subsequent structures that might supplement or replace the first one). Perpetual covenants, easements, etc,that could be enforced by a neighbor were established by Parker v. Nightingale in Boston in 1862 (prior to this, the seller of the property was usually the only person with standing). Parker wanted to enforce a covenant (introduced by the subdivider who had sold the property encompassing both his and Nightingale's lots) providing for residential development only, and that's why we have zoning as it exists in America today (this is the short version, trust me).

People want to be able to do whatever they want, but they also want their neighbors not to have the same liberty. In the end, people want the latter even more than the former, so they've taken Parker to its logical conclusion, to the extent that most people can no longer conceive of a world in which their neighbors would be allowed to cram a zillion houses, or a noxious industrial plant, on the lot next door. They're going to be awfully surprised...

It must also be noted that, at least in part, governments have brought these new takings laws on themselves by letting eminent domain be abused so egregiously.

by willa at 1:20 PM on 03 Nov 2006

Flexibility/Perception

The legal basis of zoning always has been the maintenance of health, safety and welfare standards.

After I read the Rosen paper, I wondered something. When industrial pollution began impacting the quality of urban life in the 19th century, the law could not adapt to rapid change. Judges and juries were blind to the harms caused by new technologies, a blindness that seems to be rooted in cognitive psychology.

One idea that might be worth exploring is that zoning as we know it is in part a response to the extreme complexity of contemporary pollution sources. It could be that trying to sort out the specific harms of each pollutant or activity became overwhelmingly burdensome to the court system. It was much easier to segregate all production activities from residential areas rather than try to to identify which ones were compatible with residences.

This is related to Eric's idea of needing flexibility to respond to unforeseen threats.

Ped Shed Blog

by Laurence Aurbach at 7:15 PM on 03 Nov 2006

Zoning Again

Thanks Eric, I agree with you. I should make it clear that I am not against zoning (and would never vote for the stupid takings laws!!).

Does anyone remember Propostion 13 in California? It put severe limits on property taxes and helped destroy the California public school system. It was opposed by all the leaders in the state, but passed anyway. It's supporters looked a lot like the takings folks, right wing cranks.

So, what happened? It turned out that there were real problems out there that weren't being addressed by our "leaders" and people freaked out and passed a very very bad law.

California has been paying for it ever since.

I have two cocerns. One is that we be careful not to dismiss people's complaints about property zoning regulation out of hand. We should listen carefully and be sure before dismissing them as cranks.

The other does have to do with the many problems caused by zoning when used primarily in a NIMBY way.

JMG, you misunderstand me. And I do have a solution for you. Work to change the laws that let corporations off the hook for their actions (interestingly, one of the human rights issues with China is that they sometimes execute corrupt officials and business leaders for such actions.... hmmmm).

The danger of the environmentalists actions is that it has contributed to opening the door to the "takings" folk, so that in the long run, if they win, things will be worse.

TANSTAAFL. Beware.

patrick

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