Opinion / Annick Smith

The End of the Last Best Place?

Again, another piece that provides ammunition for I-154 proponents.

Please put the “Hog Farm” scare to bed. I-154 includes exemptions for public health and safety, building codes, and recognized nuisances. Henc, it is highly unlikely we’ll see “hog farms next to schools” or in residential neighborhoods. The are plenty of legitimate concerns regarding I-154’s impact on the ability of public officials to implement land use and zoning regulations, e.g., streamside setbacks. Focusing discussion on these rather, than the red herrings, strikes me as a more constructive approach.

If Ms. Smith values the aesthetics of open space afforded by her neighbor’s undeveloped hay fields, doesn’t she have an obligation to compensate this individual for providing her these benefits? Is it fair or equitable that she free rides on her neighbor? This is exactly the question that I-154 asks us to contemplate. There will be no simple answers.

Pete,

Under state law, agricultural operations cannot be considered "nuisances." That includes hog farms. So a hog farm could go in next to the school, or across from the senior center.

Of course, you'll point out, I-154 includes exclusions for "health and public safety"- but what public safety is threatened by a hog farm? I suppose the hogs could escape and run amok, threatening neighbors- that would be a public safety problem! But I doubt if a community could use that argument in trying to zone hog farms out of a community. Likewise for public health-- the prospective hog-farm operator could point out that, hey, no health hazard here. Sure they smell bad, but that's not the same as presenting a health risk to the general population. "If there's a problem with effluent from a hog farm, regulate the effluent, not the hog farm," the lawyers would say.

Would that argument hold water in court? Who knows?! Only one way to find out- pass I-154, let the claims for regulatory takings flood in, have those idle county attourneys get to work defending the communities values (first determining which battles to fight, which to simply waive the regulations on), then clog the courts with these cases, as many of them trickle up to the MT Supreme court .....

So we would have the courts determining if a porn shop near a elemntary school constitutes a "public safety risk." In fact , the courts would determine in many cases whether a proposed development fits under this exclusion or that on. But doesn't that fall under "public policy" -- a job for the executive branch rather than the judicial?

Oh, and did we include this little nugget of I-154?: If a developer brings a claim against a county for a regulation that he feels reduces his property value, and if the court finds that I-154 doesn't apply ( i.e- developer loses in court), the county is still responsible for the developers legal expenses. There is no economic incentive for a developer NOT to bring a claim - its a win-win situation for them!

In general, the invisible hand of Adam Smith works best when the parties who benefit from their decisions also bear the expenses of those choices. Irresponsible development occurs when someones benefits from their development, but the surrounding neighbors, or the community, or possibly someone many miles away (downstream?) bears the costs. This is the economic principle of "externalizing costs." Someone else bears the cost, while a developer reaps the benefits; I think this was the gist of Ms. Smiths article- that because Montanans hold natural values above economic ones (one of the reasons why people have moved here over the past 100 years- it sure ain't for the money!)

You are correct, Pete, in the sense that the real effects of I-154 would be more subtle and insidious, acting on regulations such as streamside setbacks. These are the hard choices for our elected officials, who can develop creative solutions allowing private landowners flexible use of their land, while still protecting public values.

That's why we'd better elect them carefully, rather than hamstring them from doing their job.

And of course the flip side of the externality problem is the free rider, wherein benefits accrue to non-owners while costs are born by private parties. This the crux of the debate.

I wouldn't worry about hog farms - especially from an out of state investor who would have researched the market. Most Montana family farms quit feeding hogs when Pierce Packing closed. I believe that most of the pork produced in our state is now raised on the Hutterite colonies - in confinement.

The bottom line is that I-154 would create a perverse incentive for speculators to file claims - no matter how ridiculous - and demand payment from taxpayers for actions not taken. It would apply to all environmental regulations that don't specifically address human health and safety. Take restrictions placed on coal bed methane operators by the Rosebud Conservation District in eastern Montana to preven damage of cropland and irrigation water. With I-154, methane operators could easily file claims saying that complying with the restrictions represented a "taking" of the full value of their methane leases. Taxpayers within the Rosebud Conservation Distict would have to chose between looking the other way while the methane operators dump salty coal bed methane water into rivers and streams - threatening the long term viability of family farms in the area - or pay off methane companies for alleged losses. Same with numeric standards for sodium and salinity established by the state of Montana - again to protect agricultural uses from salty coal bed methane wastewater. These standards are intended to protect soils and crops - not human health and safety.

I don’t agree. Claims under I-154 would begin a process of negotiation and judicial review that in my view would be unlikely to result in binary decisions.

Regarding coal bed methane: Here’s a perfect example of property rights in tension. Like much of western water law, the split estate is a 19th century institution utterly unsuited for the realties of today. This historical artifact reflects the mining companies' early domination of our institutions. The system developed when most mining operations were modest and land had little value.

It is a sorry state indeed, one that demands clarification. It does not however negate the fact that subsurface owners have a property right as legitimate as surface owners.

One correction to moos....most of the pork produced in our state comes from Conrad Burns, to hear him tell it. I forget...is that something to brag about?

My neighbors banded together last year when an inappropriate commercial interest tried to move into our rural, residential neighborhood. After tremendous stonewalling & incompetence from county government, we finally got it zoned through citizens' initiative. Had I-154 been in place, that would have amounted to regulatory takings, and although WE would have been the ones getting royally taken, there would have been no recourse. We'd all be watching our property values go down while some get-rich-quick schemer with no investment in our neighborhood (other than financial) made his buck.

I've actually lived next to a hog farm in the past. (True story.) It smelled, and the swinging doors on the feeders were always clanging. But I find hogs less odious than the greedy, grasping
b@$+@rd$ who look at the land and see only dollar signs.

I certainly empathize with Ms Smith and the concerns that she has expressed about the future of rare and precious places in the face of unrelenting human greed, smiling corruption, and codependent rationalizations masquerading as deeply intellectual ideology; but, I guess that what strikes my most about this article is the subsequent comments and the fact that you poor, naive, goodhearted, honorable, and well-intentioned little pumpkins are actually still willing to waste your time and energy bothering to debate somebody like geddes. For pity sakes, let's stand back and take a good look.

First, have any of you kept up with the long list of moral and ethical "questions" concerning geddes, baden, and the "persuasive seminars" they stage for "flexible" people in power through that twisted think-tank they use as a money-catcher? Speaking of hog farms, you truly do need to do your homework on these people before you invest your energy in being a "straightman" against which they can play their little publicity games! I honestly can't understand why anybody, NewWest or anybody else, continues to give them any airtime at all.

Second, think for a moment about the last six years during which the country has pretty much followed, like a mindless flock of sheep, the same bunco ideology that these hucksters are still spouting. Where has it gotten us? Good news, the equity markets are finally back to the levels they set six years ago, only now the dollars on which the averages are based are only worth sixty cents each! Geddes and the rest of the "greedy, grasping b@$+@rd$" who still spout this stuff are peddling a bankrupt ideology and it was bankrupt before most of them were even born. Lazy fare (as long as your Dad's accountant sends your trust fund check) "supply side" ideology didn't work for Hoover when he ushered in the Great Depression; it didn't work for Nixon when he gave us stagflation; it didn't work for Reagan when compounding recessions got so bad that David Stockman had to admit that it was all hucksterism with no genuine analysis or planning behind it; and it hasn't worked at the hands of these clowns either!

Third, the true "value" of the American West is that it HAS intrinsic value that isn't based on some huckster's con game. The "value" of the American West can thus only be fully appreciated and preserved by those who see that "value" and see past the games. The "value" of places like the American West is meaningless to people like geddes and his cryptmates because, being illuminated by open sunlight like it is, it can't ever truly be appreciate by them. They truly know the price of everything and the value of nothing.

There is far less to fear from pig farmers than there is from enviro groups who may decide there is a mouse or bee that needs the hay field for habitat, and the farmer can no longer grow hay. Something like what has been done to the wheat farmers in southern Wyoming and northern Colorado for the "Preble Mouse".
Of course there is the problem of the folks who throw every obstacle possible in the way of the hay farmer who wants to sell his land to a developer. He should have that right, no obligation whatsoever to maintain a pretty scene for anyone.
If the author wants to have control of the land....buy it, don't depend on laws to prevent someone else from using it. Now that is selfish.

Well, speak of the devil and look who pops up! My extended family once included one very opinionated old dowager. Although having lived a most pampered and protected life that did not include much serious education or actual knowledge, she was quite famous, perhaps more accurately infamous, for constantly giving almost everyone a "piece of her mind," as she called it, on almost any and every topic. After one particularly grotesque session, my great-grandfather, who had started poor and had to serve in two wars and complete most of of his long career in law enforcement before getting a chance to finish his doctorate, leaned down to me and whispered, "she has given out so many pieces of her mind; she is now running on empty." It was hilarious; it was a great life lesson; and it is my best memory of a great old guy.

Hi Mike: Here's an issue of judicial independence you and the rest of us ought to be concerend about:

The New York Times has discovered that incentives matter:

In the fall of 2004, Terrence O’Donnell, an affable judge with the placid good looks of a small-market news anchor, was running hard to keep his seat on the Ohio Supreme Court. He was also considering two important class-action lawsuits that had been argued many months before.

In the weeks before the election, Justice O’Donnell’s campaign accepted thousands of dollars from the political action committees of three companies that were defendants in the suits. Two of the cases dealt with defective cars, and one involved a toxic substance. Weeks after winning his race, Justice O’Donnell joined majorities that handed the three companies significant victories.

Justice O’Donnell’s conduct was unexceptional. In one of the cases, every justice in the 4-to-3 majority had taken money from affiliates of the companies. None of the dissenters had done so, but they had accepted contributions from lawyers for the plaintiffs.

Thirty-nine states elect judges, and 30 states are holding elections for seats on their highest courts this year. Spending in these races is skyrocketing, with some judges raising $2 million or more for a single campaign. As the amounts rise, questions about whether money is polluting the independence of the judiciary are being fiercely debated across the nation. And nowhere is the battle for judicial seats more ferocious than in Ohio.

An examination of the Ohio Supreme Court by The New York Times found that its justices routinely sat on cases after receiving campaign contributions from the parties involved or from groups that filed supporting briefs. On average, they voted in favor of contributors 70 percent of the time. Justice O’Donnell voted for his contributors 91 percent of the time, the highest rate of any justice on the court.

What is obvious is the lack of understanding of this proposed measure. What it essentially does is "freeze" all existing land use regulations at the date of passage while making any new regulations take into consideration the economic impact of all parties concerned. Land developers will have no incentive to file claims unless new regulations are passed that cause harm to the value of their land.

There is so much hyperbole in the discussion that it obfuscates the real issue; If regulation causes economic harm to a land owner who should bear the associates costs?

This is an important debate in an era where the number of regulations continues to increase at an increasing rate. Regardless of the outcome, this is an important discussion. One would hope we could get to the issue as opposed to building straw men and employing demagoguery.

Thank you David. It seems only fair that a property owner be compensated when his property is devalued either by restrictions or zoning changes, or whatever. I have a problem with those who feel they have the right to dictate how another uses his own property, and then forces him to pay for the effects. I don't really care whether it is a guy with a little back yard, or a developer, if the cost is too high, then the project can't be that worthwhile.

I know Pete and he's an honorable guy.

I don't like I 154 much, but the support for it points to the fact that some local governments are beginning to overstep the planning compact. As long as planning provides the three "p's", predictability of land use, planning for infrastructure, and protection of property values, it will continue to be overwhelmingly supported by the populace even if they sacrifice some of their own land use perogatives.

Certainly it isn't needed as a reply to Kelo; I think that is Trojan horse for the real meat of the initiative concerning what some might call regulatory "takings".

The proposed measure is not clear in its impacts nor its intent. The courts in Oregon are still sifting through the meaning of Measure 37, a similar "takings" initiative. Anyone who claims to know exactly what the results of I154 would be is not looking clearly at the language of the Initiative. For example - would this just apply to new regulations, or would it also apply to any enforcement of existing regulations? There is contradictory language in the Initiative. Annick Smith's examples are extreme but not likely. However, they COULD result. The pig farm example is just that - an example. How about a porn shop? Realistic? Probably not. Possible? Well, maybe. And that's what is really scary about the I-154. It is not "predictable", as jeff implies in his comment. Rather, it is the unpredictability of the results that make I-154 opponents so nervous.

Current land use regulations require public involvement - true "planning from the people". I-154 will not return control of your land to you. The potential is high for your property values to decrease as a result of a negative land use choice by your neighbor.

So - there are multiple considerations in this Initiative, and it's important to think objectively when reading the bill. Both supporters and opponents are providing "knee jerk" responses based upon their political leanings. Think big, people - think to the future - and carefully consider.

Intersting data re: I-154:

"I-154, the property rights measure, had the support of 51 percent of those polled, while only 24 percent were against it. Twenty-five percent said they were undecided."

Full story at:

http://www.billingsgazette.net/articles/2006/10/02/news/state/30-poll.txt

More interesting data re: I-154. None of the folks queried in the Mason-Dixon poll were provided any detail on what I-154 is nor how it would work. The Lee news story says folks got a "brief description" about the "property rights" initiative, and it merely asked, do you think it's reasonable that landowners be compensated when their property is devalued? No detail. No explanation. Nothing about who is behind the initiative and exactly how it could constrain Montanans' ability to steer the future of their neighborhood, community or state. On the other hand, there is some other non-public information out there that indicates I-154 would go down if people heard just a teeny bit about the implications of I-154, as is being described in this Blog. And, they most certainly would vote against it if they found out the campaign for I-154 is being funded by shadowy characters from out of state, including a real estate mogul from New York City.

Of course the public isn't hearing much about who is funding the campaign because, whaddya' know, the Montana front men for I-154 refuse to identify their out-of-state financiers. And of course people also aren't hearing the details of I-154's impacts because, ahem, it's been tossed from the ballot because of the extensive fraud that the sponsors deployed to put the initiative on the ballot. But still....

A few things about I-154. It doesn't define, "public health and safety," so don't assume this artful expression covers what you think it does. Some people will say it covers hog farm pollution, some will say no, such as those people who claimed for years (and still claim) that tremolite asbestos in Libby,Montana, is not a threat to "public health and safety." Also, I-154 is not limited to only "new regulations." In fact, at least a half dozen very smart Montana attorneys and legal scholars who have reviewed it conclude the measure is written so vaguely, and constructed so weirdly, that it can easily be interpreted to apply to regulations and statutes that were approved years ago, covering all sorts of landowners, no matter when they received title to their land. Don't believe the nonsense about it only affecting regulations we have yet to create. It's not true. And, thanks to the language in the measure that guarantees claimants will get their attorney fees and court costs paid whenever they seek a claim in court -- irrespective of the outcome -- you can count on plenty of attorneys making plenty of outrageous claims for many crafty landowners seeking to extort some big bucks from local government. It's a risk-free deal for them. And, as somebody has said already, unpredictability is what it's about.

And, by the way, why do we need I-154? Is the heavy hand of government really stopping people from developing their property in Montana? It certainly isn't in the Bitterroot, or Gallatin, or Flathead, or Missoula Valleys -- and it certainly isn't stopping anybody from doing pretty much most things in the rural areas of Montana. I'm not convinced its landowners who need I-154. This initiative, as well as initiatives to cap state spending and allow recall of judges -- all good, red meat issues for far-right conservatives -- are on the ballot in a number of states, where Republican candidates are either in trouble or otherwise in need of some extra votes to oust a Democrat. And of course, coincidentally, they need to turn out far-right conservative voters (think Ohio, circa November 2004), who just might sit things out in November unless there is something that gets their blood boiling, prodding them to drop by the polling booth. Now, ya' gotta wonder, who is funding this initiative, why we're not being told, and who really needs it? In politics, there often is no such thing as coincidence.

1. Connie Burns, the pork barreler, brings the bucks home.
2. The money is thrown into this and that.
3. The pork barreler takes credit for creating jobs.
4. The job creating activity (economic activity) results in the destruction of fish and wildlife habitat.
5. Meanwhile, more people have moved in from elsewhere, further straining the ability of local governments - and the land - to give services, ecological and otherwise.
6. The pork barreler gets re-elected and subsequently brings more pork home.
7. The cycle repeats itself.
8. The "last great place" becomes "just another place."
Sigh

A. Smith-

Let us talk about past and future. meantime, keep on speaking your mind.