Saturday, May 13, 2006

More Fallout

A little more research on the writings of Len Gilroy (see previous blog posting) turned up a paper he has recently published which tells how to export Oregon's Measure 37 to other states. It's a pretty extensive work that gives advice on how to essentially gut land use regulations. Gilroy, an AICP-certified planner, claims that his interest is to take land use regulation back to its "legitimate" role, which he says is "common law, nuisance-based tradition that characterized the first century after the nation's founding. The nuisance-based approach was primarily focused on preventing harm to the property rights of others and giving property owners wide latitude in determining the best use of their land."

Gilroy acknowledges that this cause has been helped by the Supreme Court's Kelo ruling, which was an eminent domain case. But the wide-spread reaction against the decision has helped energize property rights groups to overturn not only economic development-based eminent domain, but land use regulation in general. Gilroy advocates hooking the two issues together in what he calls a "Kelo-plus" strategy.

"The advantages of pursuing a 'Kelo-plus' measure are several. First, it offers a single vehicle to address both physical and regulatory takings at the same time, effectively 'killing two birds with one stone.' Second, it capitalizes on the tremendous public and political momentum generated in the aftermath of the Kelo ruling to enhance the protection of private property rights. Finally, it affords a chance to educate the public that, while private property rights are certainly endangered by eminent domain abuse, these rights are also threatened in a greater and more frequent (but less visible) way by the excessive and unfair burdens that can be imposed by regulation.

"Given the overwhelming public backlash against teh U.S Supreme Court's Kelo vs. New London decision on eminent domain and the attention it drew to the frailty of private property rights, it is reasonable to assume that a similar message in other states would also have a tremendous popular appeal."

Gilroy then goes on to give strategies for moving Measure 37 clones along in other states. "In terms of messaging and making an impression on voters, one of the central lessons learned from the Measure 37 campaign was that it is essential to find a human face ... to associate with a regulatory takings measure. Instead of explaining the concept of regulatory takings to voters in the abstract, being able to highlight a visible 'victim' whose property rights have been taken from him via regulation offers...strategic benefits. ... In the campaign for Measure 37, the plight of 91-year old Multnomah County property owner Dorothy English demonstrated the threat posed by regulatory takings in a way that resonated strongly with voters. ... Enlish's message to voters in the Measure 37 campaign was simple and effective: ' I'm 91 years old, my husband is dead and I don't know how much longer I can fight...I've always been fighting the government, and I'm not going to stop.'"

Gilroy goes on to talk about forming strategic alliances with other groups. "Taxpayer advocacy groups can be a powerful ally in this regard, as they share a common goal of protecting individual and political freedoms and reducing the size and scope of government. ... Agricultural groups -- such as farm bureaus, cattlemen's and ranching associations, and granges -- are also natural allies that measure proponents can partner with to build public support, as they tend to believe strongly in the protection of property rights. ... Finally, homebuilder associations have a natural interest in property rights protection, usually hae large member bases, and are often quite active politically. However, it may be prudent to avoid having homebuilder groups directly lead the push for a regulatory takings measure in order to avoid opposition claims that homebuilders are less interested in protecting citizen's property rights than in reaping financial rewards that benefit their industry."

Looks like the "campaign" has begun.


At 7:34 AM, Blogger James said...

This is an interesting issue, to be sure.

Isn't the genral assumption usually that we are "free" to do what we will with our land to the extent allowed by regulatory authority? If that is the case, then in theory, the government can never be responsible for those windfalls, only for the restrictions (to the point of being a taking with the accompanying backlash Gilroy is describing).

Cities and governments would have to reinvent and redefine themselves to do what what you're talking about...and frankly, they should. In my mind, one of the biggest problems I see is that government doesn't ususally talk the "same language" as the private sector. I think the many of the pro-planning arguments could be more effective (and good planning could be accomplished) if they were approached differently than they usually are.

At 1:06 PM, Blogger Brian said...

What amuses me most is the prevalent philosophical attitude that the landowner should be able to do what they please within reasonable nuisance restrictions. Many people I talk to feels this way. [i][b]Until[/b][/i] someone next to them decides to do something on their property that the neighbors don't like - higher density, commercial development, etc.

Is it going to reduce the amount of friction and governmental intrusion by moving the fight to "nuisance" law? I'm sure those who don't want the increased traffic or density, public safety issues, and whatever-other-excuses they can come up with will find a way to bend nuisance ordinances their way when contesting land use. It doesn't clear the way for unregulated use of land, it just moves the fight to another room. About the only thing it does that I can see (admittedly through my blinders) is restrict the infrastructure and service-providing entities with the ability to act instead of react.

I guess it's true when they say "Freedom isn't free." If you want unrestricted use of your land, be prepared to pay higher service costs due to inefficient infrastructure and reactive management.

Am I missing something here? Folks just don't seem to understand that they can't have their cake and eat it, too.


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