Private Property Rights Under Attack by Comprehensive Land Use Plans

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Pri­vate prop­er­ty must be guard­ed as price­less free­dom. Land own­ers should reject the sus­tain­able devel­op­ment idea that only gov­ern­ment can pro­tect nature, air, soil, water, open spaces, and the poor.”

Dr. Ileana Johnson Paugh

Dr. Ileana John­son Paugh

Humans have always desired to own a piece of land that could be passed on to their heirs. Once they acquired prop­er­ty for home­stead or farm­ing, men labored on their land under the assump­tion that it was theirs to keep in per­pe­tu­ity.

If you ask the gov­ern­ment, land belongs to the pro­pri­etor as long as the required tax­es are paid in full each year and the gov­ern­ment does not con­fis­cate the prop­er­ty through emi­nent domain or deem it envi­ron­men­tal­ly endan­gered and in need of pro­tec­tion. If you ask pro­gres­sives, land belongs equal­ly to every­one and nobody should be allowed to “own” any­thing, it should be com­mu­nal prop­er­ty.

The painful les­son in com­mu­nal prop­er­ty (com­mu­nism) at Jamestown has been for­got­ten or nev­er learned. When peo­ple worked the land togeth­er, some worked hard­er and some were lazier, yet every­one ate the same. The entire set­tle­ment almost starved to death. The fol­low­ing year, when the com­mu­nal prop­er­ty was divid­ed into indi­vid­ual parcels, every­one pros­pered.

Humans under­stood then that indi­vid­ual free­dom and coop­er­a­tion on small­er scale are much more suc­cess­ful than dom­i­na­tion by a few in an exclu­sive­ly gov­ern­ment-run soci­ety.

The idea of Sus­tain­able Devel­op­ment that emerged in 1987 from a con­fer­ence by the World Com­mis­sion on Envi­ron­ment and Devel­op­ment, chaired by Gro Harlem Brundt­land, seemed innocu­ous. It was defined as “Devel­op­ment that meets the needs of the present with­out com­pro­mis­ing the abil­i­ty of future gen­er­a­tions to meet their own needs.” It sound­ed lofty except for the nag­ging ques­tions: who decides what the needs are, how are they going to par­cel out the needs, how are they going to imple­ment them, and who will police the deci­sion-mak­ers?

This call to Sus­tain­able Devel­op­ment became the blue­print of a myr­i­ad of rules and reg­u­la­tions incor­po­rat­ed in the 1992 doc­u­ment called Agen­da 21 signed by 179 nations at the U.N. Con­fer­ence on Envi­ron­ment and Devel­op­ment in Rio de Janeiro in 1992. This 40-chap­ter doc­u­ment address­es every aspect of human life, not the least of which is prop­er­ty.

Accord­ing to Hen­ry Lamb, Bill Clinton’s cre­ation of the President’s Coun­cil on Sus­tain­able Devel­op­ment (Exec­u­tive Order #12852, June 29, 1993) “was respon­si­ble for instill­ing sus­tain­able devel­op­ment con­scious­ness through­out every agency of the fed­er­al gov­ern­ment,” using enor­mous grant pow­ers. These “vision” and “chal­lenge” grants were giv­en to state and local gov­ern­ments, to NGOs such as the Amer­i­can Plan­ning Asso­ci­a­tion, Sier­ra Club, and to HUD, DOE, and EPA to devel­op and imple­ment com­mu­ni­ty plans around the nation.

Coun­ty-wide or region-wide plans by the years 2020, 2025, or 2030, con­tain 129 “visions” includ­ed in eight cat­e­gories. These visions were devel­oped at the first Glades Coun­ty, Flori­da vision­ing meet­ing in Feb­ru­ary 2, 2006. They are eeri­ly sim­i­lar to the rec­om­men­da­tions in the Agen­da 21 doc­u­ment and in any sus­tain­able devel­op­ment pam­phlets. (Hen­ry Lamb, Sus­tain­able Devel­op­ment or Sus­tain­able Free­dom? pp. 5–6)

· Pre­serve nat­ur­al envi­ron­ment
· Save/improve the wet­lands
· Restrict devel­op­ment in sen­si­tive areas
· Sus­tain­able agri­cul­ture and farm­ing
· Com­pre­hen­sive resource preser­va­tion
· Nev­er com­pro­mise wet­lands or wildlife
· Preser­va­tion of scenic views
· Des­ig­na­tion of scenic high­ways
· Devel­op­ment should be clus­tered
· Rur­al vil­lage con­cept
· Smart growth planned devel­op­ments
· Increase den­si­ty, increase walk­a­bil­i­ty
· Impact fees that lim­it mobile homes
· Zon­ing should encour­age infill
· More codes to be enforced
· Con­ser­va­tion ease­ments on agri­cul­tur­al land
· Side­walks, bike paths, and walk­ing paths
· Mul­ti-use trails and cor­ri­dors that are land­scaped

Vil­lages, towns, and cities devel­oped as the result of the wish­es of the peo­ple in a free mar­ket. Then local zon­ing ordi­nances were devel­oped based on exist­ing land use, ini­ti­at­ed by the land own­ers who, from time to time changed the zon­ing des­ig­na­tions. Such changes were only made by local­ly elect­ed offi­cials, bal­anc­ing the wish­es of the landown­ers with the rights of oth­er con­stituents.

The “com­pre­hen­sive plan­ning” required by sus­tain­able devel­op­ment in Agen­da 21 is ini­ti­at­ed by a coali­tion of inter­na­tion­al orga­ni­za­tions such as ICLEI (Inter­na­tion­al Coun­cil on Local Envi­ron­men­tal Ini­tia­tives) who decide in their “vision­ing con­sen­sus” how and where every­one should live.

ICLEI infil­trat­ed over 600 coun­ty and local gov­ern­ments in the U.S. who became mem­bers of this orga­ni­za­tion that recent­ly changed its name to ICLEI Local Gov­ern­ments for Sus­tain­abil­i­ty USA to avoid the stig­ma of an inter­na­tion­al orga­ni­za­tion med­dling in Amer­i­can zon­ing affairs.

The top-down unelect­ed gov­ern­ment devel­ops com­pre­hen­sive mas­ter plans that form “urban bound­ary zones.” Munic­i­pal ser­vices such as water, sew­er, fire, and police pro­tec­tion are not pro­vid­ed beyond these zones. The com­pre­hen­sive mas­ter plan serves the pur­pose to cre­ate “sus­tain­able com­mu­ni­ties,” the vision of the glob­al­ists who cre­at­ed Agen­da 21.

It is not a coin­ci­dence that “every county’s com­pre­hen­sive mas­ter plan con­tains the same ele­ments, the same goals, the same process­es,” spelled out in Agen­da 21. Cit­i­zens par­tic­i­pate in local vision­ing meet­ings and con­sen­sus-build­ing stake­hold­er meet­ings under the false promise and under­stand­ing that they do have input in their com­mu­ni­ties. In real­i­ty, the deci­sions have been made for them in advance.

Hen­ry Lamb said, “Such com­pre­hen­sive land use plans adopt­ed by gov­ern­ment gives the gov­ern­ment, not the own­er, the supe­ri­or right to decide how the land may be used.” Elect­ed offi­cials were con­vinced by “the pro­mot­ers of sus­tain­able devel­op­ment that pri­vate prop­er­ty rights are not as impor­tant as the pro­posed ben­e­fits of sus­tain­able devel­op­ment, indi­vid­ual free­dom is not as impor­tant.” (p. 23)

The first law­suit filed on Octo­ber 15, 2013 against Agen­da 21 pro­mot­ers is the law­suit against the com­pre­hen­sive plan called Plan Bay Area. The legal chal­lenge was launched by the Post Sus­tain­abil­i­ty Institute/Democrats Against UN Agen­da 21 and Free­dom Advo­cates, spear­head­ed by Michael Shaw and Rosa Koire.

Alleged vio­la­tions include:

· Plan Bay Area vio­lates vot­er-approved urban growth bound­ary ordi­nances, “nul­li­fy­ing these bound­aries by restrict­ing devel­op­ment to very small loca­tions in just some cities”
· Plan Bay Area “vio­lates the 5th Amend­ment of the U.S. Con­sti­tu­tion by tak­ing prop­er­ty rights with­out just com­pen­sa­tion”
· Plan Bay Area “vio­lates the 14th Amend­ment of the U.S. Con­sti­tu­tion, the Equal Pro­tec­tion Clause” (Pri­or­i­ty Devel­op­ment Areas land own­ers will receive per­mits 80 times more than own­ers out­side of the PDA)
· Plan Bay Area “per­ma­nent­ly strips all devel­op­ment rights from rur­al prop­er­ties in the nine coun­ty Bay Area, effec­tive­ly tak­ing con­ser­va­tion ease­ments on all rur­al lands with­out pay­ing for them”
· Plan Bay Area “restricts devel­op­ment rights with­in the Pri­or­i­ty Devel­op­ment Areas,” lim­it­ing con­struc­tion to mixed-use, high den­si­ty Smart Growth devel­op­ment.

Plan Mary­land” is a statewide blue­print of land use that main­tains 400,000 acres as agri­cul­tur­al or for­est land and spares it from devel­op­ment in the next 20 years. Gov­er­nor O’Malley’s exec­u­tive order allows devel­op­ment only in “approved” growth areas along the Bal­ti­more-Wash­ing­ton cor­ri­dor. Homes on two-acre plots with sep­tic sys­tem were deemed urban sprawl. Homes built with­in city lim­its on half-acre plots in range of sew­er hookups were not deemed urban sprawl. I dis­cussed this com­pre­hen­sive land use plan in my best sell­er book, U.N. Agen­da 21: Envi­ron­men­tal Pira­cy.

The com­pre­hen­sive plan for Bald­win Coun­ty, Alaba­ma, called Hori­zon 2025, was reject­ed by the Bald­win Coun­ty Com­mis­sion as a “mas­sive land grab.” Addi­tion­al­ly, Gov. Robert Bent­ley signed a law for­bid­ding poli­cies con­nect­ed to Agen­da 21, bar­ring any pri­vate prop­er­ty con­fis­ca­tion with­out due process. This deci­sion drew strong crit­i­cism from the Smart Growth pro­po­nents who used psy­cho­log­i­cal “pro­jec­tion” to paint Amer­i­cans who are dis­cov­er­ing the truth about Agen­da 21 as right-wingers who see “smart” envi­ron­men­tal plan­ning as an “Agen­da of Fear.”

In the fish­ing com­mu­ni­ty of King Cove Alas­ka, an 11-mile grav­el trail con­nect­ing the Aleut com­mu­ni­ty to a life-sav­ing air­port has been denied by the Depart­ment of Inte­ri­or Sec­re­tary Jew­ell because the road would jeop­ar­dize the water­fowl. “The peo­ple of King Cove want a small road through what was their back­yard,” using less than 1 per­cent of the Izem­bek Nation­al Wildlife Refuge. But giv­ing up refuge land would be a bad prece­dent. “I’ve lis­tened to your sto­ries, now I have to lis­ten to the ani­mals,” said Sec. Jew­ell.

Res­i­dents of River­ton, Wyoming (pop. 10,000) found out in hor­ror one day that the EPA had giv­en their town to an Indi­an reser­va­tion. Their deeds of trust could be tossed unless the Indi­an reser­va­tion rec­og­nized them. The EPA declared River­ton part of the Wind Riv­er Indi­an Reser­va­tion, nul­li­fy­ing a 1905 law passed by Con­gress.

A WWII vet­er­an in New York is fight­ing local gov­ern­ment attempts to con­fis­cate his gro­cery store via emi­nent domain in order to open a munic­i­pal­i­ty-owned mar­ket.

Paugh - pic of family losing home - Comprehensive Land Use PlansSome local gov­ern­ments con­fis­cat­ed land under emi­nent domain in order to pre­serve it. Most famous is the seizure of 572 acres in Tel­luride. The own­er want­ed to devel­op the land along the San Miguel Riv­er. The town set the land aside as open space. The con­fis­ca­tion by the state Supreme Court was upheld on grounds that over­crowd­ed moun­tain towns need to pre­serve their recre­ation­al and nat­ur­al assets.

Andy and Ceil Bar­rie may lose 10 acres near Breck­en­ridge, Col­orado because they ride an ATV on a 1.2-mile min­ing road from their 3-bed­room home in a sub­di­vi­sion to the 10 acres they pur­chased sur­round­ing a hun­dred year old cab­in in the mid­dle of the White Riv­er Nation­al For­est. Sum­mit Coun­ty is using emi­nent domain to pre­serve open space instead of the usu­al eco­nom­ic devel­op­ment. (Beck­et Adams)

In 2012 the EPA threat­ened Lois Alt, a chick­en farmer from West Vir­ginia, with a $37,500 fine every time it rained on or near her prop­er­ty. The fine, man­dat­ed under the Clean Water Act, was levied because “storm water near her farm would come in con­tact with dust, feath­ers, and manure before enter­ing a local water­way.” High lev­els of nitro­gen were found in the chick­en waste which could also threat­en the water sup­ply.

Prop­er­ty rights can be tak­en away under the guise of pro­tect­ing the envi­ron­ment. The Amer­i­can Pol­i­cy Cen­ter iden­ti­fied cas­es of such abuse.

· Mud pud­dles become wet­lands that must be pro­tect­ed
· Improv­ing land by plant­i­ng trees, bush­es, fill­ing a ditch with dirt, or build­ing a fence can result in arrest and fine of the prop­er­ty own­er under the Clean Water Act
· Build­ing on one’s land can be blocked
· If the area is deemed wet­land, the own­er can no longer use it or sell it

Sen­a­tor Rand Paul (R-KY) intro­duced a bill, the Defense of Envi­ron­ment and Prop­er­ty Act of 2013 (S 890), which would attempt to reign in the EPA, Army Corps of Engi­neers, U.S. For­est Ser­vice, Nation­al Park Ser­vice, and the Fish and Wildlife Ser­vice, agen­cies of our fed­er­al gov­ern­ment that infringe on Amer­i­cans’ pri­vate prop­er­ty. The bill is in the Com­mit­tee on Envi­ron­ment and Pub­lic Works.

In Vir­ginia, the House passed SB 578 on Feb­ru­ary 26, 2014. The Sen­ate bill, spon­sored by Sen­a­tor Oben­shain, had already passed unan­i­mous­ly, enti­tling landown­ers to com­pen­sato­ry dam­ages and rea­son­able attor­ney fees when suc­cess­ful­ly chal­leng­ing a local land use deci­sion based on an “uncon­sti­tu­tion­al con­di­tion.”

When prop­er­ty own­ers run up against City Hall, it doesn’t always seem like a fair fight,” said Oben­shain. “No mat­ter what the mer­its of a prop­er­ty rights chal­lenge, any prop­er­ty own­er at odds with local gov­ern­ment feels like David tak­ing on Goliath.”

Once the gov­er­nor signs it, SB 578 will dis­cour­age local­i­ties from abus­ing their author­i­ty by impos­ing uncon­sti­tu­tion­al restric­tions on the prop­er­ty owner’s abil­i­ty to use his/her land.

Pri­vate prop­er­ty must be guard­ed as price­less free­dom. Land own­ers should reject the sus­tain­able devel­op­ment idea that only gov­ern­ment can pro­tect nature, air, soil, water, open spaces, and the poor. All soci­eties run by total­i­tar­i­an gov­ern­ments have severe envi­ron­men­tal degra­da­tion, lit­tle or no pri­vate prop­er­ty and mis­use of resources, a chasm between the haves and have-nots, and no hope for the future of indi­vid­ual cit­i­zens.