A TROJAN HORSE FERRYING LIBERTY OR CHAOS?
I-154: A Vote At The Polls That Holds Huge Implications For Planning and Zoning In Montana
By Pete Geddes, Guest Writer, 9-20-06
Montana ballot initiative I-154, which protects property rights and requires compensation for "regulatory takings," is in judicial limbo. It arose from the blowback from the U.S. Supreme Court's 2005 Kelo decision allowing cities to seize private property and turn it over to private developers. This strong reaction to Kelo should alert "progressives" to the importance of secure property rights. These rights are essential to any planning, and the reaction shows us what happens when people believe their rights are in jeopardy.
Environmentalists, community activists, and politicians sometimes believe it's cheaper to achieve their goals by regulation rather than purchase. It often isn't. They sometimes assert that community rights trump individual rights. Not always. Their mistake is to believe that society can be managed to produce the "right" outcomes, rather than designing institutions that foster individual and social well-being
Critics of I-154 cry foul when out-of-state special interests orchestrate a campaign to take advantage of the Kelo reaction. However, the same folks solicit out-of-state funds when promoting their pet agendas, e.g., banning big-box stores and raising the minimum wage. When a society employs politics to allocate wealth and opportunities, hardball follows.
In addition to prohibiting Kelo-style takings, I-154 requires compensation for "regulatory takings," i.e., rules that "diminish value or [cause] economic loss to private property subject to the government regulation." If governments can't or won't pay the landowner for the lost value, then they must waive the regulation.
Oregon voters approved a similar piece of legislation, Measure 37, to help people like Camille Hukari. Her family has been farming pears in the Hood River Valley for decades. She wanted to sell a six-acre parcel for a home site, but could not before Measure 37 had passed. The sale will net her about $350,000. The gross income from farming the same piece of ground is about $7,200 a year.
I-154 includes exemptions for public health and safety, building codes, and recognized nuisances. Hence it won't result in "hog farms next to schools." The law is not retroactive, so existing land-use and environmental regulations remain in force. At question are regulations not yet in place, e.g., Gallatin County's zoning plans. Those concerned with growth management are right to question I-154's impact in this arena.
Is there a principled case for I-154? Sure. Here it is. Private landowners should not bear the burden for providing public goods, e.g., open space, affordable housing, or the aesthetics of pear orchards. If these are benefits the community desires, shouldn't we compensate individuals for providing them?
Fortunately, we have many organizations (e.g., the Gallatin Valley Land Trust and Habitat for Humanity) that voluntarily mobilize resources to advance the public good. They negotiate conservation easements, lobby for passage of open space bonds, and actually build affordable homes. Public funding requires citizens to discuss and evaluate the trade-offs and opportunity costs of their preferences.
Is there a principled case against I-154? Absolutely. Here it is. The primary duty of government is to protect people and their property from harm. When harms occur, we expect the government to exercise its police power to ensure damages are paid and the offending actions are enjoined. This includes harms from placing factories next to homes as well as from robbery and vandalism.
Our legal history demonstrates how sensible land-use regulations grow from the desire to protect and enhance property values. This notion reflects our founding ideals that we may exercise our individual rights so long as they do not infringe on the rights of others.
Here are some hypothetical questions for those holding an absolute view that when regulations change the value of the land, compensation is due:
Suppose the federal government embargoed selling wheat to China. Would Montana farmers be entitled to compensation for the decline in the value of their wheat fields?
Alternatively, if a planning board decision increases the value of a parcel of land from $10,000 to $100,000, should the landowner be required to write a check to the local government for $90,000?
Dealing responsibly with our rapid growth raises unavoidable questions about protecting public goods and respecting the rights of private property owners.
I-154 focused our attention on this conflict. The recent court decision will probably not be the final word.
EDITOR'S NOTE: Pete Geddes is executive vice president of the Foundation for Research on Economics and the Environment (FREE).
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However, a few years ago the county and state made it part of an "agricultural preserve" and prohibited any subdivision even within the subdivision. He's in the high desert. He can't grow anything but sagebrush and junipers. But he's between ag land and blm land that the county and state wanted to protect, so he's part of an "agriculture preserve".
That's the kind of dishonest decision making that breaks the compact between landowners and government with respect to zoning.
Zoning and planning are justified because they fulfill the three "p"s, planning for infrastructure, predictability of use, and preservation of property values. You can find voluntary zoning districts all over Gallatin Valley, fourteen or fifteen of them including Big Sky and Bridger Canyon, in some of the most valuable land areas of Gallatin County. Voluntary zoning that maintains the three "p"s is not just accepted, but asked for.
But Deschutes county used zoning to reduce property values, contradicting one of the three "p"s. As a result, people like my friend, who value planning, zoning and rural values, voted for Measure 37.
Here in Bozeman we brought in an expert to testify that the primary effect of inclusionary zoning was to reduce, not preserve, the value of raw land, and therefore make housing more affordable. Combine that with top down EXCLUSIONARY zoning in the county and enforced involuntary density in other areas, and you'll see the compact broken here, I believe, just as it was in Oregon.
Oregon government has itself to blame, not "outside agitators", for the citizens rising up against centralized, involuntary, and arbitrary zoning decisions, many of which lower, not protect, property values.
The purpose of government is to "provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity" (Preamble to the Constitution).
The Preamble sets out the overarching goals of the Constitution. Nothing about protecting private property until the Articles.
Prunes--Privacy and a Priest..;)
Let's say a landowner charges a fee for elk hunters to enter his property and the current number of tags issued by FWP allows the landowner to grant access upon payment to 20 people at 5000 dollars a head. Then, based on the health of the elk population, FWP reduces the number of tags issued, which results in only 5 people being able to pay the landowner for access to his property. If I-154 passes then the landowner can demand that either the change in the harvest number be left at the original level, or that he should be compensated for the lost revenue, which would be $75,000. Given that FWP is funded through license dollars and matching federal dollars, and given that the law requires that those dollars be used only for the management of fish and wildlife, the department would have no choice but to leave the harvest number at the level it was at the time that I-154 became law. If FWP used any license dollars(their primary funding mechanism) to pay compensation, they would be in violation of the law and would loose millions of dollars in annual funding from the Federal government - essentially killing FWP. To add insult to injury, it is conceivable that the landowner in the example above could make yet another claim of lost revenue when the elk herd is wiped out because the harvest quota was not sustainable. Why? FWP and the Commission's action to set the harvest quota at a static level to avoid paying compensation would be the government action responsible for the elk herd being diminished and therefore the landowners ability to charge access fees would be impacted allowing him to make a takings claim under I-154.
He also said landowners have no claim over wildlife and the number of hunting permits issued because Montana’s wildlife belongs to the public, not to private landowners. But Lane said the initiative is so broad, it could be seen to apply retroactively, to laws and regulations already on the books. Like our 'Stream Access Law'.
Truly a basic tenet of the Enlightenment philosophy upon which the Declaration of Independence and this country is founded.
"The claims of these organizers of humanity raise another question which I have often asked them and which, so far as I know, they have never answered: If the natural tendencies of mankind are so bad that it is not safe to permit people to be free, how is it that the tendencies of these organizers are always good? Do not the legislators and their appointed agents also belong to the human race? Or do they believe that they themselves are made of a finer clay than the rest of mankind?"
Frederic Bastiat (1801-1850)
It begs the question; How on earth did this Nation make it without them? Land use and planning laws didn't even surface in America until the 20th century, yet the country some how managed to develop into the greatest Nation on the planet. We biuld fences to keep aliens out, not to keep our people from leaving.
How foolish are we to think that 'we the people' could even make it without big brother keeping the us safe from ourselves, why would we even begin to think we could survive without their collective wisdom and control.
Government does it better? I don't think so. I cannot point to a single government program that has been emulated by the private sector. I can think of few, if any govenment programs that work as advertized. Social Security, the Postal Service, HUD can only be charactorized as failed government efforts.
Why should I believe that they some how government will make the process of development work better than the efforts of people.
Every new house or business or street or hiway is built on open space, green space, farm or forest lands. Oregon has NOT preserved the best farm land, the land with the most productive soils. They are all under Nike, Intel, and Techtronix campus compounds. Or homes and malls, arterial streets, whatever. The fabulous alluvial soils along the Columbia that were Portland's truck gardens are now the airport. The volcanics that grew the various berries east of Portland are now towns. The deep soils in Washington country, brought in on the Missoula floods of long ago, are Beaverton, Hillsboro, Cornelius and Forest Grove, and all the high tech buildings that suport those fast growing cities. Meanwhile, down state, scrub oak lands, white clay soils, and marginal forest lands are strictly zoned farm/forest, and produce grass seed and slow growing trees, even though their highest value would be housing.
The largest loss of timberland has been in the three counties in and around Bend. All gone to high end golf courses and gated communities there to enjoy the forests. All this statewide zoning did was make some people a lot of money, and prevented a whole lot more from access to the same opportunity. You do feel when you pay your property taxes that you actually rent your home from the state, and then they tell you what you can and cannot do with the land. The initiative process is there to provide a remedy by the majority.
Zoning in Oregon has preserved nothing for the long term. Add to that the fact that for 20 years the Democrat governors and mayors of major cities have squandered the gas tax money on light rail and bike lanes, and you have a place where housing costs are high due to a paucity of land on which to build, and a traffic nightmare because the dense housing required by zoning did not adequately plan for a whole lot more cars, and billions were spent on light rail that moves maybe 20,000 people per hour at capacity to fixed locations. Ideals and reality are meeting in Oregon. While you wait in stopped traffic on the "freeway", you can wish for something better. The old hooktender told me long ago that you could wish into one hand, and crap into the other, and see which one filled up first. Oregon is not the answer, and the vote to disallow your property to be downzoned while in your possession passed in Oregon, which is a good indicator of how unfair the statewide zoning was administered. When you add the Kelo condemnations to the equation, and Keizer, Oregon did just that to sell the land to a big Lowes, Target, all the usual suspects, mall developer and displaced a bunch of small farms, businesses, and a nursery. All to get more valuable properties paying more taxes. If Montanans approve their initiative, then you know the people were not happy with the status quo. That is the fault of legislators and administrators. bear bait