Mark Your Calendars!
The Second Annual Meeting of the League of Kentucky Property Owners
Is October 22, 1997 at 7:00 p.m. at the Triple Crown Country Club in Richwood.
Featuring Guest Speaker: Henry (Steve) Stephens
On Environmental Law and Governmental Affairs

Western Boone County Survey

It was a lot of work, but it is finally completed! We sent out 878 surveys to property owners in Western Boone County, and 25% were returned. 88% voted yes on the question, "Should Western Boone County be allowed to grow with the rest of Boone County without further restrictions from Planning & Zoning?" 10% voted no, with 2% no opinion. On the question, "Should the County have the right to deem your property historic and force you to preserve it as such?" 94% responded no. 3% said yes, 3% held no opinion. Most respondents commented, and we will run many of their statements in our newsletters. The League has solicited the opinion of those directly affected by proposed regulation through surveys, and their stand in support of their property rights is clear.

Election Time Again

You should be receiving your ballot to elect new board members in the next few weeks. The board is made up of eleven members: 5 general property owners, 2 developers, 2 part-time farmers, and 2 full-time farmers. As states in the by-laws, members are elected to two-year terms. Half the board members are up for re-election. Please vote.

Boone County Planning Commission

Our surveys stirred up much interest. The Planning Commission had a booth at the Boone County Fair and it was the main topic of conversation there. They sent a letter to us, saying many of you had the impression the Commission wanted a 15 acres minimum and this was not true. But it was reported to the Kentucky Post by the Planning Commission (May 17, 1997) that a 15-acre minimum was suggested at the Belleview-McVille public meeting, and this was what the people wanted. Our line in the survey letter said, "They held 4 town meetings during which it was suggested (we did not say by whom) that a minimum of 15 acres should be required for a building site." The commission has asked to see out surveys. We will remove names and addresses, and withhold and comments which identifies the writer in any way.

Historic Preservation

The Historic Preservation Board also sent us a letter, saying they have "neither the desire nor the power" to force historic preservation. They state, "The Historic Preservation Review Board has no regulatory power that would allow them to 'force' anyone to preserve their historic building." But it also said in their letter that the Boone County Historic Preservation Plan (they are now working on) is "a document designed to serve in a adjunct capacity to the 1995 Boone County Comprehensive Plan." We interpret this to mean that Planning and Zoning would take into account the Boone County Historic Preservation Plan in future zoning regulations, thereby achieving the same end. Our views are supported by sections in Article 21 of the 1996 Boone County Zoning Regulations. Section 2103, titled Historic Preservation Activities, states, "These regulations provide a means to systematically review and protect, as necessary, neighborhoods, areas, places, and buildings, structures, sites, and objects of special and/or distinctive prehistoric, historic, architectural, cultural, or aesthetic significance." (Italics ours) And Section 2112, under the title, Establishment of Historic Landmarks and District Overlays, says, "The owner's permission is not required for property within the incorporated areas of the country. On page 17 of their "Scope of Work" document, they define their purpose: "The purpose of this task is to coordinate the translation of the preferred regulatory, (italics ours) incentive, and educational tools for historic preservation into an implementation program…" Why, if they have no regulatory powers nor the desire to have them, do they use the word, regulatory? We are, however, please that they are listening to us.

Mission?

At the bottom of the stationery belonging to the Boone County Historic Preservation Review Board is this statement: "The mission of the Historic Preservation Review Board is to lead and educate (italics ours) Boone County government and its citizens in the preservation and protection of Boone County's prehistoric and historic resources." This reminds us of Dr. Williams statement (in our Spring '97 Newsletter) about the notion that some people (think they) know what's best and they've been ordained to forcibly impose that 'wisdom on others. "It's a notion accounting for most human misery" and, he notes, "It's also a notion in vogue with America's liberal elite." Well said.

The People Speak-on Historic Preservation

"If you have historic property you will know it and want to preserve it yourself - without planning and zoning forcing you to do it!"

"Should be owners option to be registered/recorded as historic. Regulation should be for owner and reinstates/removes with change in ownership. Historic preservation should receive tax incentives, too."

"If I have a 100 yr. Old house, and decided to burn it down to build a new one, that is me business. When they start making the mortgage payments and paying the property taxes, then they can tell me what to do with it!"

"What is 'historic' is clearly an individual decision. Thus on person will pay $10,000 for an 'historic' artifact, another will not bid on it."

"Our home is over 150 years old. Made out of hard hewn logs. If I wanted it on the historical society list, it would already be there."

"If they want the right to have it preserved by their criteria, then they should be prepared to purchase it at its highest potential value."

"In theory, Historic Preservation is good, but due to over zealousness of most all boards, I am against any regulations in Boone County."

"No preservation should be allowed unless property owners want it. Destroys ability to use property as wanted - also limits future generations using property. Interferes with estates."

"I am sure the county has more to worry about than deeming historic property."

"If I want my property to be recognized as an historic property, I will ask for such. I 'do not' want anyone else telling me it must be."

"If the county wants to buy the property and take care of it, that's fine."

The People Speak-Zoning

"Property owners in Western Boone County should have the same privileges as other sections of the county. They should not be discriminated against because they live in the western part."

"No government body should be able to set the value of an individual's property by restricting use or setting acreage limitations or controlling whether or not public utilities are available. All citizens paying same taxes should have equal rights to public amenities!"

"Yes, as long as things aren't allowed be done that will destroy property values. Farming is not profitable any more thanks to government. Lots of people can only survive now by selling land. There should be some restrictions with intelligence - a factor totally missing in government planning on my level. 5-acre minimums are sometimes not practical in rough country. 15-acre minimums are insane. Beauty can be retained without destruction. I did it. This land was destroyed. I saved it."

"We have every intention of suing the county should it become necessary. We bought this land to develop and resell."

"If this county had not 'grown' over the last 200 years, none of us would be here!"

"Why be a landowner if someone else controls the land? Just rent. There are too many restrictions already! You can't build or improve your land without going through 20 acres of red tape!"

"We have five children and someday we may deed acres to each to build homes. We would also like to build a retirement home in the future."

"We have a few pompous people who think they can dictate to the rest of us! Well, it should stop!"

"I believe Planning & Zoning is taking away owner's rights; some zoning is needed but they are completely out of control."

"Too much government in our personal life."

Pretty Farms

Many articles in the news lately are about pretty farms and the concern that so many are being developed and lost. Progressive Farmer, August 1997, has an article on pretty farms in Great Britain. Farms in Great Britain are pretty - but the public pays a price. There, farmers get subsidies, but producing a crop is only part of the reason. They are paid to keep their farms looking like farms so tourists and city dwellers can enjoy the scenery. "Apparently the desire to be self-sufficient in food production is rapidly losing out to other concerns such as tourism, scenic beauty, and maintaining a pristine environment." U.S. farmers spend must time on their land, working to make it beautiful and productive; yet this beauty is the reason people say farmland needs protection. Farmland needs to be protected; we all agree. We all enjoy the rural atmosphere given to us by surrounding farmland, and we enjoy being a self-sufficient country. But protecting through zoning, the common solution offered by many. Saving farmland through zoning rules and regulations is the same as confiscation and makes the life of the farmer even more difficult. It is very hard to make a living from a farm these days. The solution lies in protecting the farmer, not the farmland.

Elk Release Scheduled

The Fish and Wildlife Resources Commission has decided to reintroduce elk into Kentucky. Elk vanished in this state in the mid-nineteenth century, and southeastern elk is now extinct. FWR will introduce elk from Utah; they hope to release 200 elk a year for the next 9 years, beginning this winter in the Hazard area. "Last year wildlife officials searched fir the right habitat for the elk, which may weigh up to 800 pounds and eat more than 20 pounds of food daily. Habitats need to be open areas of more than 200,000 acres and far from row crops," says the Courier-Journal, June 15, 1997. The first release is north of Hazard. The League sees this action as another 'taking' of farmland, wherein farmers will suffer unnecessary crop less due to migration of the elk. It is also a short-sided move in that elk are not compatible with human habitat, and unless FWR knows how it keep them off the roads, unnecessary accidents and injuries will result.

Minnesota Senator - A Property Rights Advocate
By: Dan Stevens
(reprinted form the Duluth Times, Sept 13, 1997)

It happens every day; well-intentioned people, doing well-intended deeds in the guise of "good public policy." The trouble is, these good intentions are subverting the Constitution of the United States and the court system is permitting it to occur.

I am referring to private property rights vs. excessive government regulation. The practice of taking private property in the name of the public good, without die compensation, is becoming every landowner's nightmare. As more and more laws, regulations and ordinances are passed at the federal, state and local government levels, property owners are finding themselves under public siege.

The premise and definitions of private property rights are constantly being reinterpreted and redrafted by planning commissions, zoning boards and local, state and federal government agencies. Many regulations confiscate not only the rights of landowners, but also the value of the property with not thought of compensation. These practices are strictly against the intentions of the farmers of the Constitution.

The right of public domain has been upheld since the beginning of our national government, but "just compensation" for the taking of private property has always been a fundamental component of that act under the Fifth Amendment's Takings Clause has been reinterpreted in the courts to imply that a person must lose nearly total value of their property in order to seek compensation. Most regulations, which attach unreasonable or disproportionate conditions on the property's use, do not reduce the value of the property to zero.

In the vast majority of the circumstances, the regulations reduce the value by 25 or 50 percent, and in these situations, the owner gets no compensation. When a thief take 75 percent of a person's property, no one has difficulty calling that a "taking." But when the government does the same thing, the court has been unwilling to call it a "taking" unless the owner loses 100 percent of the value of the property.

We must make it clear that "property" included all the uses that can be made of a holding - the very uses that give property its value, the taking of which diminishes that value. When those uses are taken through regulatory restrictions, the owner loses rights that otherwise belong to him or her, and they are due compensations.

This does not imply that property owners may use their holdings in ways that will injure their neighbors, but that we must take care when defining the nuisance exception to the Takings Clause. Uses that injure a neighbor through various forms of pollution, including noise, odors, vibrations, or though exposure to excessive risk, must be prohibited. However, uses that injure one though economic compensation or by blocking his "view," or by offending his aesthetic sensibilities are not nuisances because they violate no rights a neighbor can claim.

The principle is this: People may use their property in any way they wish, provided only that in the process they do not take what belongs free and clear to others. Regulations prohibiting such uses are wrong to begin with. The Takings Clause, when drafted, was done so with the realization that there would be times when the public would have to achieve public ends by taking private property. But the power of eminent domain has to be accomplished by just compensation.

To rectify these practices, I have drafted and introduced legislation referred to as the Private Property Protection Act, which ensured that a property owner will be compensated when a state or local regulation reduces the market value of private property in Minnesota. However, compensation will not be required if the program is an exercise to prevent harm to the health and safety of the public and will not affect any remedy that is constitutionally required. If the state or any of its political subdivisions imposes, changes, or implements any land use planning, zoning or other regulatory program which reduces the previous fair market value, the county auditor shall adjust the taxpayer's valuation downward by an amount equal to the lost value.

I plan to request hearings on this legislation when the Senate convenes in January. It is my hope that Minnesota will become a leader in the redefinition of private property in this country.

(Stevens is a Minnesota state senator representing Senate District 17. He lives in Mora.)