Property Battle This Initiative Gives Us Local Control Of Our Property Rights

Our democratic society is built in part on individual property rights. These rights have helped power our economy over the last 200 years. Property ownership improves our standard of living and provides the foundation of wealth for America’s broad middle class.

But a retired couple in Texas found they could not build a house on property they purchased. An endangered warbler uses the local area three months of the year. Out-of-pocket cost to the couple was about $50,000.

In Minnesota, 113 acres of a 160-acre farm was declared a wetlands. The owners agreed that nine acres qualified, but not the other 104 acres of solid farm ground. They must sue to protect their rights.

An Oregon family lost control and use of a major part of their tree farm to a single spotted owl which does not live on their property. The government forced an unwanted access road across their property to harvest public timber, causing the habitat deficit for the owl.

In South Carolina, a Beach Front Management Act prohibits a residential lot owner from building a house between other existing homes. The now worthless lot was purchased two years before the act was passed.

The private property issue is often framed as big companies, developers and speculators opposing society’s interests. As these examples show, the interests of average citizens with small bank accounts are also at risk.

The common denominator is an urban society which has grown away from the nation’s agrarian roots and broad-based property ownership. This is a reversal from the days when farm families exceeded urban populations.

The majority of our urban society no longer enjoys a personal, one-onone relationship with the environment. Instead, a relationship is gained vicariously by TV, newspapers and magazines chronicling the demise of our environment. This view, championed by the environmental movement, leads the public to believe regulation of property ownership is essential to preserve the environment.

Some regulation is necessary. Few disagree with controlling a public nuisance or zoning to separate incompatible uses. The issue is defining the public interest that demands regulation, and deciding when excessive regulation requires compensation.

In the examples above it is difficult to understand why the owner of the beach-front lot may not build a house where others already exist. Likewise, the retired couple is denied building a house without any evidence it would disrupt the warblers’ habitat. Multiple government actions reduced the value of the tree farm. And losing 71 percent of a farm to wetlands brings into question the definition of wetlands.

Property owners rightfully argue that environmental regulations interfere with the management of their land - and that the degree of interference constitutes a constitutional injustice.

All agree zoning and public nuisance ordinances are necessary and legitimate, separating incompatible land uses and controlling inappropriate behavior. Zoning restrictions are publicly, and locally, decided. Current owners can estimate the impact of these restrictions and future owners can determine the limitations of use. Plus, there is a mechanism for adjustments as conditions change.

This is not true of environmental regulations which are a moving target. Laws often gobble up private rights without legitimate basis or credible science. Certainty of ownership is buried under an avalanche of regulation. Yet without certainty, wise use and long-term management decisions are impossible.

The best example of uncertainty is the Endangered Species Act. Species are often attracted by changing habitat conditions that stem from the owner’s management of the land. Today society penalizes property owners when their management attracts and encourages residency of an endangered critter.

Unbridled regulations and environmental laws create risk and uncertainty without compensation, something the Fifth Amendment was supposed to safeguard. If I and other forest landowners hope to preserve our retirement savings, we’ll have to shift from long-term commitments to unplanned actions. In my case, regulations are counter-productive to the interests of society and landowners alike.

Regulation was the easy answer. It passed the burden to an unidentified land owner - an unfunded mandate to provide a public benefit. Shifting from restrictive and confiscating regulation to incentives and compensation is a better solution. Better decisions on what is truly a public benefit will be made when society shares the cost of providing that benefit.

Finally, decisions should be made at the local level. The local community can best determine if the benefit to society justifies the cost to society. To think otherwise would be to assume that local citizens are not as intelligent as government bureaucrats, Washington politicians, and elite environmentalists.

MEMO: Two sidebars appeared with the story: 1. In olympia this year, the Washington Legislature passed Initiative I64, a proposal that requires taxpayers to compensate property owners if government regulations curtail the use of their property to achieve a public benefit. The Wasgington Environmental Council now is collecting signatures for Referendum 48 to prevent the initiative from taking effect July 24 and to force a public vote on it in November. Below are two readers’ opinions.

2. We want your input Doug Floyd wants to know your reaction to these columns. You can submit comments to him at The Spokesman-Review, W. 999 Riverside Ave., Spokane 99201 or leave a voice mail message (from a TouchTone phone) at 459-5577, extention 5466. You also can send e-mail to celh27b@prodigy.com.

For the opposing view, see the story under the headline: Property Battle The people behind the Wise Use movement sound like militias

(Fred Ebel is a natural resource consultant in Colbert.)