President's Thoughts

Some of my annual meeting comments voiced the perception I had of Oregon's anti property rights planning and zoning leaders spreading their regulatory venom all over our country.

Their regulations prohibited all but the very wealthy from owning homes in their "prescribed" land use areas. Well guess what has happened there?

Voters, decided in the November 2000 election-through their Measure 7-to effectively REPEAL LAND USE PLANNING!!! What the law really says is that if the state or local government passes or enforces a regulation that restricts the use of private property, the owner shall be paid for any loss in value. (Does this sound vaguely like the 5th amendment of our United States Constitution?) Wonderful that Oregon will finally enforce our Constitution.

How about Kentucky? When do we insist our legislative and judiciary leaders enforce our United States Constitution, by challenging regulators' controls on our private property? The first lawsuit in Oregon was filed by the Hardin family against Jackson County. Jackson County didn't want Hardin's trucks hauling his gravel through its historic district. His claim for lost income, representing $50 million, is for the 18 million tons of rock he cannot haul. Looks like Hardin will be able to use his property as planned.

Kentucky property owners should carefully weigh any similar abuse by regulators and file Federal lawsuits claiming 5th Amendment violations when they are clearly evident.

william h. adkisson,
President
League of Kentucky Property Owners

PDR's & TDR's

The Boone County Planning Commission has begun a project to study the Purchase of Development Rights (PDR's) and Transfer of Development Rights (TDR's). An advisory committee has been formed to compile a report which will be presented to the full Planning Commission and the Fiscal Court later this summer. This writer is part of that committee, representing our League of Kentucky Property Owners.

From what I have learned, Boone Countians should be wary of such programs. Consider the proposal to purchase farmland development rights (PDR's). At the heart of this concept is the belief that decisions about land use should be made by the public through its elected officials. The PDR's will place permanent use restrictions on land and record these restrictions on the deed. Current and future property owners are prevented from ever converting the land. To agree to something in "perpetuity" is absurd. Forever is a long, long time.

At the very least we need to change perpetuity to some reasonable term. And how will PDR's affect our future? Are we that clairvoyant, or so very wise, that we should implement changes and make decisions that will affect all future generations? We should not establish resource control in perpetuity that steals the rights of future generations. Of course being able to cash in on your investment in land, and still own it and use it to some extent is a powerful incentive. But imagine what Boone County would be like if, a hundred years ago or so, farmers had sold their development rights. We would not have all the wonderful businesses and homes, and especially the residents would not be enjoying the high standard of living they now possess.

Then there is the concept or TDR's (Transferable Development Rights). If development rights can be bought or sold, planners reason, then they can be transferred to another piece of property as well. This will involve designating areas where development can and cannot occur. And remember, in 1997 the U.S. Supreme Court ruled that TDR's are illegal.

We should also give thought to the fact that taxpayers will be plundered to pay for these schemes. PDR's and TDR's are, at best, short-term solutions with long-term ramifications yet unknown.

Bernie Kunkel,
Legislation Chairperson

Speaking of Takings...

When Anthony Palazzolo bought 18 acres of coastal land in Westerly, RI, he had a modest dream for his property. Maybe he would build a handful of beach homes. Maybe he would turn it into a recreational area with a beach club.

But the state rudely awakened the 80-year-old Palazzolo from his dream when the state's Coastal Resources Management Council denied him the right to fill in the marsh and build on it. About three years ago the Rhode Island Supreme Court agreed, saying he couldn't develop the land because rules regulating the property were in place before he bought it in 1978. Palazzolo says he purchased the land in 1959. That was almost 20 years before the regulations were in place.

In the broad view, it doesn't matter when the land was bought or that the gracious regulators would allow limited use. Someone owned that land when the rules went into effect and decreased it value. And someone still has to pay taxes on land that can't be sold because the government has caused it to be nearly worthless.

What's at issue - or at least what should be at issue - is the widespread government practice of "taking" property without the "just compensation" guaranteed by the Fifth Amendment.

Wetlands Victory

In a major decision, the U.S. Supreme Court ruled 5-4 that wetlands provisions of the Clean Water Act cannot be extended to isolated wetlands by using the "migratory bird test." The high court ruled that the Army Corps of Engineers (Corps) cannot block a landfill project in the Chicago, IL area because migratory waterfowl use the abandoned gravel pits.

Chief Justice William Rhenquist reportedly called the sand pits "a far cry" from the waterfowl and wetlands habitat envisioned by Congress in the Clean Water Act. He said the Corps jurisdiction over ponds and mudflats would impinge on states' primacy over land and water use.

Comments on the January 31, 2001 Public Hearing of Planning and Zoning

Submitted by: Bernie Kunkel

The 2000 Boone County Comprehensive Plan (Draft 2001) has a real pretty cover and contains a lot of the county history that I appreciated reading, but I have some problems with the plan.

Agriculture: "Appropriate land for agricultural practices is protected." Is the land to be protected from the owner? What we really need to do is protect the value of the farms. It is an unfair economic burden to maintain land for agricultural uses when other uses would yield a better economic benefit to the owner.

Many farmers have foregone 401-K, stocks, and even health insurance, because farming would not yield enough money for these things. Many figured that their economic well-being would come from the sale of their farms in their later years. It is not right to deny them the most they can get on the Free Market.

I think farmers and landowners need protection from Planning and Zoning instead of Planning and Zoning protecting them. Farmers should have the right to either pursue agriculture or sell to the highest bidder if they choose.

There is on page 103 under Recommendations about Agriculture Land - "Purchase Development Rights, (PDR's), should be designed to enable those who want to farm in urbanizing areas, to continue." I want to read to you what our League says on this.

"We firmly believe every property owner has a right to do with his property as he believes, as long as he does not adversely affect other property around him. If he wants to sell his development rights, he should be allowed to do so. Our problem is that these programs have been fraught with graft, errors, and tragedies. These programs are not explained adequately to the sellers and they come to regret their decisions later."

The reality is that urban sprawl is not the problem the environmentalists and planners claim. Boone Countians have an average household income that is the highest in Northern KY and higher than most of Greater Cincinnati. Growth has been good for the County and there's plenty of room for more in a Free Market atmosphere. I do not believe we can trust planners to see the future. This 2000 Boone County Comprehensive Plan is labeled "A vision for the year 2025."

Recommendations using a 24 year vision into the future invariable adopt top down planning tools and government control of land to achieve policy goals. There is little evidence that governments are better suited than real-estate markets and private conservation efforts to provide the kinds of homes and communities people want. Even many planners have acknowledged that "bad planning" (for example, large lot zoning), was a significant contributor to the urban sprawl they now want to eliminate.

Let's embrace the truly American notion that tastes and life styles change and work for tax cuts to allow landowners, as truly free people, to choose their own housing arrangements. This would ensure the citizens their right to develop their property as they choose, and since choice rather that socialism is more productive of happiness, it will increase the general welfare.

Now this is a "smart growth" plan our country's Founding Fathers could get behind!