Mark Your Calendars!!
The First General Meeting of
The League of Kentucky Property Owners
is scheduled for Tuesday, August 20, 1996
cash Bar/ informal reception starts at 6:30 PM
the General Meeting begins at 7:00 PM
at the Triple Crown Clubhouse

Featuring Guest Speaker:
Wayne Hage
Of Reno, Nevada
· Author of: "Storm Over the Rangelands"
· Instrumental in "Stewards of the Range," a National Property Rights Organization which Boasts:
o Mark L. Pollot, Stewards Law Center Director and author of Exec. Order 12630 on "Takings," signed by President Reagan
o Actor Sam Elliot, member of Stewards' Litigation committee
o Landmark Takings" Lawsuit, Hage v. United States

Admissions is Free
Don't Miss This Event!!!
Please RSVP via phone, fax, or mail
P.O. Box 93; Walton, KY 41094

New Chapter in Grant County?

Interest is running high in Grant County to begin their own chapter of the League of Kentucky Property Owners. Many of our new members reside there. Mr. K.G. Cummins has been passing out our literature and is interested in creating a Grant County Board. Come to our general meeting in August; it's a great time to talk to us and begin organizing your chapter.

LKPO in the News

Terry Flynn of the Kentucky Enquirer gave us some welcome publicity in May when he wrote an article describing our league. The League phone rang for days in response to the article. Thanks, Terry!

Update: Green Space Committee

Following our article form the last issue, Green Space Committee, thanking us for our balanced coverage and asking us to endorse their report. A copy was included. The report states, "at a recent public forum, sponsored by the Northern Kentucky Area Planning Commission… Loss of green space emerged as the #1 concern of the citizens present at the meeting." We wonder who attended that meeting. We also question step #4, which states, "Analyze the need for enabling legislation by the General Assembly in order to accomplish program objectives. Also, evaluate Kentucky Revised Statutes (laws) to find permissible methods of accomplishing program objectives." We do not need laws to preserve green space if that green space is to be purchased at its fair market value, the only fair way to treat the owner of the land. We have informed the committee that we will hold our endorsement at this time.

It seems the City of Bellevue tried to take advantage of a landowner when it decided it needed more green space. See the following article.

Government Regulation - Unconstitutional "Taking"
By Jay Fossett

In 1981, my client bought two lots of real estate along the Ohio River in Bellevue, Kentucky. The property is located on a bend in the river, where shady trees and a river view create a serene setting. My client bought the property, zoned Mixed Land Use (MLU), primarily for its investment potential. Since that time, waiting for its potential to be realized, he has rented out one house and uses the other house as a river retreat for his family.

Now, 15 years late, after the City of Bellevue just bought several acres of land on the river adjacent to my client's property, which it planned to turn into a city park, it proposed changing the zoning form MLU to Conservation (CO) zone. Under the MLU, my client could develop his land for office, residential, retail, and service uses. Under the CO zone, however, my client would be permitted to use his property only as a park or recreational area. If the real estate were rezoned as CO, this would render the property virtually worthless from development perspective.

What seemed like a good idea to Bellevue city officials was in reality an unconstitutional "taking" of my client's property. Courts have consistently recognized that real estate consists not merely of title ownership and possession, but that property in land also involves the rights of an owner regarding use, enjoyment, and development of the land. Both the U.S. Constitution and the Kentucky Constitution prohibit the taking of private property for a public purpose without just compensation. The United States Supreme Court long ago held that "if [a government] regulation goes too far it will be recognized as a taking." One of the arguments we made to Bellevue was that the proposed zoning was nothing more than a device to unfairly extract some public benefit from the use of my client's land without paying him the property's fair market value. Courts around the country have consistently found that where land is zoned exclusively for public or quasi-public uses, such as for parks or recreation areas, these regulations are confiscators.

Courts have also pointed out that zoning land for public or quasi-public use gives a municipality unfair bargaining leverage in negotiations for purchase of the property and may unfairly depreciate the value of the property for later condemnation proceedings.

Fortunately, for all parties concerned, after our arguments, the City of Bellevue reassessed its plans to rezone the property and ultimately decided to leave the property zoned as MLU. Nevertheless, the lesson to be learned from this case is that property owners must be vigilant against overreaching government regulation and to take swift action to protect their rights in their property.

Jay Fossett is a partner in the law firm of Fossett, Howe, Wessels & Ogle, P.S.C., in Fort Wright, Kentucky. He practices primarily civil litigation with an emphasis in business, construction, and zoning litigation.

Developer Wins $5 Million in Wetlands' Suit

The Michigan Court of Appeals ordered the state to pay $5 million in damages to a developer who wasn't allowed to build a restaurant on his property because part of the property was 'wetlands,' according to an article in Lawyers Weekly USA (Developer Cannot Build on 'Wetlands'; Gets $5 Million," July 1, 1996.) The Court declared it was a 'taking' under the U.S. Constitution, even though the 'wetlands' comprised only 28 acres out of the developer's 55-acre parcel. In 1992, the U.S. Supreme Court held that a land-use regulation might be a 'taking' if it takes from the landowner all "economically viable use" of the property. Since then, the battle in these cases is over how much of the land is affected by the regulation. The court said, in part, "While it is true that some financial value will remain, this court finds that what little economic value that property would have if all of it could be developed." The court also struck down as unconstitutional a state statute that allowed that state to decide what the property was worth through an assessment process at the county level. "Just compensation means the full monetary equivalent of the property taken," the court said. "Because the determination of the proper measure of compensation for a taking is solely a judicial question, the legislature may not restrict the measure of just compensation in a takings case." This ruling should make it easier for owners to claim that a land-use regulation is a 'taking.'

Property "Takings" by Restriction

It's happening everywhere. The July Readers Digest has a story called "Hounded by the Feds" (pages 177-180) which tells another horror story of property rights denial by government agencies. Gaston Roberge invested in 2.8 acres near the oceanfront in Old Orchard Beach, Maine, in 1964 for his retirement someday. In 1976, town officials asked his permission to dump some excavated dirt from a new sewer line on his property. He said it would be fine and they dumped on about ½ acre. In 1986, Roberge had the opportunity to sell his land to a developer wishing to build condominiums on it. When the developer tried to clear his plans with the U.S. Army Corps of Engineers, the bad news hit: Roberge's land was a declared wetlands, and the fill that was added in 1976 would have to be moved. It seemed Roberge needed a federal permit to put dirt on the land. Roberge appealed to everyone (even St. Jude, patron of hopeless cases) to save his retirement investment. Finally, he was put in touch with a nationwide property-rights group, "Fairness to Land Owners Committee," who assisted him in his long, legal battle. In December, 1994, Roberge finally received a call telling him the government wished to settle. "Unable to defend the Corps's unrelenting and abusive treatment of the Roberges, the Justice department was offering $338,000 to cover the costs of temporarily "taking" their property." Of course Roberge has taken a great financial loss even with that amount. And the Corps has yet to apologize or discipline anyone in connection with the case.

'Wetlands' One of 10 Worst Regulations

Eight public policy experts listed the 'Wetlands' Policy as one of the 10 worst regulations of the federal government. According to an article in the Cincinnati Enquirer ("America's 10 worst regulations," by Robert Kasten, July 9, 1996), "Rules on federal wetlands emerged not from a law passed by Congress but from the initiative of federal bureaucrats. The rules on wetlands come from interpretations by the Army Corps of Engineers of a 1972 law that doesn't even mention the word 'wetlands.' The specific section the corps uses for regulating these areas addresses only navigable waters, which the corps has now determined included wetlands - even though these obviously aren't navigable. Because of this bureaucratic morass, individual use permits take an average of 373 days to complete. Even then, fewer than one third of individual permits are approved."

Property is more than the thing, which a person owns. It is elementary that it included the right to acquire, use, and dispose of it. The Constitution protects these essential attributes of property.
Buchanan v. Warley
Supreme Court Decision, 1917

Fly Preserve?

An article in Nation's Building News (June 3, 1996, Fly Controversy Draws Legal Salvo) tells an amusing story about the U.S. Fish and Wildlife Department's attempts to protect the endangered Delhi Sands flower-loving fly in California; amusing, that is, if you're not involved in the situation! First, the FWS ordered local authorities to either close Interstate 10 or lower the speed limit to 15 miles per hour during August and September because automobiles threatened their mating habits. After threatening San Bernardino County officials with fines and jail, they finally backed off this demand. But they insisted the county move the location of its new County Medical Center and regional earthquake trauma care facility 250 feet north and ordered the county to fence in 8 acres of "fly preserve" land, costing the taxpayers $3.5 million this year. They wouldn't allow the town of Colton to build an electrical substation on ground that currently has no flies but is suitable fly habitat. This cost Colton residents $350,000 for "fly preserve" land. All this, while the Endangered Species Act's own plan estimates that the fly is doomed, no matter what actions are taken.

Three local governments and the home builders' association is suing FWS, charging "FWS is less concerned with human life… than it is in providing a 'fly highway' that the service wants to preserve in case the fly gets the urge to travel from its current location." They claim FWS has stopped business relocation efforts, halted a major economic revitalization plan, and all but shut down San Bernardino and Riverside Counties, due to the presence of fly habitat. Bruce Smith, representing the plaintiffs, called FWS's handling of the fly "the perfect example of what is wrong with the ESA today. Instead of engaging in productive and common sense efforts to save endangered species the federal government needlessly imposes unfounded mandates upon private citizens and local governments in the pursuit of bureaucratic dead ends."

U.S. Court of Appeals Supports Property Owners

Property rights' advocated scored a point when the U.S. Court of Appeals agreed with property owners in Monroe County, Indiana, that ownership of railroad right of way goes back to the adjacent property owners when use has ended. The interstate Commerce Committee had sold the property abandoned by CSX Railroad to Monroe County for a hike/bike trail between Bloomington and the Fairfax State Recreation Area. Property owners sued, claiming the land was not theirs to sell. "Right of way is not ownership," says Ackerson, the D.C. attorney who represented the landowners. "There was never opposition to the trail," said one of the landowners, Ron Ritz. He says it was the way the Department of Natural Resources just came on the property and claimed it. "They have no respect for the private landownership. You're taking somebody's property illegally. There would be no difference in going up to a guy with a gun and saying, 'I'm taking your farm from you. Step aside. This should not be a county where the state can come in and take what they want when they want," says Ritz. The League agrees. Apparently, so did the U.S. Court of Appeals.