property rights

The Cassandra Problem

There's a local prophet(ess)—that's a portrait of her tearing her hair out over there on the right—who wrote the following regarding zoning in Dryden in 2010.  It was based on the (then) Amended Zoning Law, revised draft, of September, 2009:

The scope and control the Town would assume over private property owners goes far beyond health and safety and well into social engineering...
 

...Part of the "character of Dryden" has been that its town government was "minimalist," and apart from providing basic town services, left its residents alone. That is part of the "character" that has made Dryden attractive.  That part of character would be lost as the Town moves into comprehensive socially driven zoning, recreation, and other activities that enlarge Town government...

...this level of planning is unnecessary, adds to New York's passion to overregulate, and will be costly to administer, hence demanding even higher taxes...

...It appears government would like to shape and control how Dryden develops to make its tasks easier and to fit the social mode some residents prefer.  But government is supposed to serve public needs, not direct them...

So, while a lot of time in the last year has been spent arguing back and forth over nitty-gritty details of the new zoning law, the real problem was that the Town's entire approach was—dare we say it so baldly?—just plain wrong.

And, as it's turned out, none of the recent suggested changes that might have made the new law at least somewhat less of an overreach were adopted in the final version that was passed by the town board last week.

Not really surprising.  At this point, we'll don our preferred chapeau

and remind you of where the kind of thinking demonstrated by the Town originates. Watch the PowerPoint presentation—it's still news to many people in Central New York, but will sound distressingly familiar to many others.

Beware, other towns and municipalities...don't say Cassandra didn't warn you:

Dryden: It's spelled H-U-B-R-I-S

We can argue endlessly about what effect low voter turnout rates have on the concept of "majority rule"—is the majority even really a majority the way most people understand the term?—but there's no doubt that one of the driving forces behind the construction of the US Constitution was protecting the rights of the minority from the "tyranny of the 51%".

And the founders viewed the protection of property rights as integral to protecting against tyranny—John Adams wrote, "Property must be secured or liberty cannot exist."

But as time has passed and people have forgotten or just never learned about why we fought a war of independence and composed the Constitution, and as the politics of envy has come to dominate politics in the US, property rights have been under attack.

Dryden is just the rest of the country writ small.  There's a story to tell here, a cautionary tale.

First, some background...

About a dozen years ago, 58 sites within the Town of Dryden, encompassing over 10,000 acres or a little less than 17% of the town, were designated Unique Natural Areas (UNAs).  These were "sites with outstanding environmental qualities, as defined by the Tompkins County Environmental Management Council, that are deserving of special attention for preservation and protection." The original county-wide inventory of UNA sites started out as a master's thesis at Cornell in 1976 and was added to over the years until it became an official county and town designation around 2000. Affected landowners were contacted by the town and the sites visited to make sure that landowners were on board with the process of UNA designation.

Over 30 years ago (about the same time Earth Day was invented and those UNAs were being inventoried for a Cornell master's thesis), NYS DEC created a designation called a Critical Environmental Area or CEA:

To be designated as a CEA, an area must have an exceptional or unique character with respect to one or more of the following:

a benefit or threat to human health;
a natural setting (e.g., fish and wildlife habitat, forest and vegetation, open space and areas of important aesthetic or scenic quality);
agricultural, social, cultural, historic, archaeological, recreational, or educational values; or
an inherent ecological, geological or hydrological sensitivity to change that may be adversely affected by any change.

Pretty vague…almost anything could be designated a CEA.

Furthermore:

Following designation, the potential impact of any Type I or Unlisted Action on the environmental characteristics of the CEA is a relevant area of environmental concern and must be evaluated in the determination of significance prepared pursuant to Section 617.7 of SEQR (State Environmental Quality Review).

Hmmm….

Type I actions meet or exceed thresholds listed in the statewide or agency SEQR regulations. These are likely to require preparation of an EIS (Environmental Impact Statement). Some examples:

nonresidential projects physically altering 10 or more acres of land
zoning changes affecting 25 or more acres

Type I actions do not always require an EIS.

and

Unlisted actions do not meet the Type I thresholds but some may still require an EIS. Some examples:

nonresidential projects physically altering less than 10 acres of land
adoption of regulations, ordinances, local laws and resolutions that may affect the environment

Despite the crunchy granola origins of all this back in the 70s and early 80s, when you might have thought that everyone in the state would have been jumping on the CEA bandwagon, CEA designations are actually fairly rare…until Dryden.  

There are 62 counties in NYS; only 28 of those counties have CEAs within their boundaries. Half of those 28 counties, including Tompkins County, have only one CEA currently designated. The big winner (if you can call it that) in the CEA contest is Suffolk County on Long Island with 46, next are Dutchess and Westchester with 34 apiece. The remaining counties have between one and eight CEAs.

The Town of Dryden wants to designate 35 CEAs within town limits (there is only one CEA currently designated in the rest of the county, in the Town of Ithaca), which would encompass about 62% of the surface area of the town. CEA boundaries were presented as being carefully thought out and having some demonstrable reason for being drawn where they were. 

Dryden Town Council, an elected board consisting of the town supervisor and 4 councilpersons, has a few unelected, unpaid advisory boards to assist them, including a Conservation Board and a Planning Board—that's in addition to a paid town Planning Department consisting of a planning director and five additional staff members…this in a 95-square-mile town with a population of 14,400, about 1/4 of whom are children.

Because of the agricultural nature of the town, when the town comprehensive plan was being adopted in 2005, it was recommended that one of the advisory boards be an agriculture board.  It has yet to exist, although at a March 2012 town council meeting, names and résumés of members of the ag community willing to serve on such a board were presented to the council.  It was suggested that the new ag board be charged with reviewing CEAs and that nothing final happen on CEAs until the ag board had reviewed them.

So where are we right now?

As understanding spread of what owning property (and I now use that phrase advisedly) within a CEA might entail—SEQRs, EISs, special use permit applications—so did pushback.  After public resistance took various forms including attendance and speaking at town council meetings, the whole CEA document was sent back from the town council to the conservation board (CB) for more work. Unlike UNA designations years ago, CEA boundaries had been drawn up without consultation with the affected landowners; it now sounded as though the CB would be reviewing the CEAs a few at a time, but this time in consultation with the landowners involved, on a CEA-by-CEA basis.

Ummm…not so much.

What has become apparent in correspondence between the planning department and the CB is this:
  • There is no intention of changing the number of CEAs or the amount of acreage in the town that will be designated as CEA property. The idea is simply to strengthen the existing CEA document against well-founded attacks from those with the audacity to question "authority."
  • Changes might be made to some CEAs but the changes would be superficial rather than substantive…just enough to hopefully hoodwink the hoi polloi.
  • Weekly meetings of the CB will occur with CEAs being "reviewed" in clumps of 5, so as to turn over each batch to the town council for rubber-stamping and sending on to DEC before the seating of any agricultural advisory board could take place.
  • In fact, there never was any intention of letting landowners have a say in the completion of this process, a process now intended to be finished within two months.
  • Why the increased sense of urgency on the part of the CB and the town council? A member of the CB said at their March meeting that they could not allow the DEC to issue its final findings on permitting drilling in NYS—thereby possibly thwarting the town's plans—before the Dryden CEA designation process was done.
  • CEA boundary designations are in fact arbitrary and based on what "feels good" to the board rather than based on a process that is well-defined and reproducible from proposed CEA to proposed CEA.
  • In the planner's opinion, all lands bordering a CEA will be considered an automatic buffer zone. Some townspeople had said that they thought the entire town should be designated a CEA. Sounds as though this is a step in that direction.
  • Rather than sitting down with affected landowners to discuss the designation of their property as a CEA, the town will "attempt" to send landowners a notice of a relevant CB meeting or a public hearing.
Even DEC in a sort of bizarre way recognized that the very designation they created was in fact a problem:
14. Can reviews of actions involving CEAs be managed to avoid creating undue hardships?
 
…A community or agency can help reduce hardships that may be associated with the existence of a CEA if they critically evaluate the size and boundaries of the CEA when it is being drafted.

This isn't about protecting the environment.  It's not about pine trees and salamanders—it's about control.

Renters may find that their landlords are unable to make changes to their property that would in fact benefit them, the tenants. Farmers end up being sharecroppers who have to ask permission of "massa" in order to do perfectly reasonable things that would not have required town involvement before.

Not only have subsurface rights been stolen by a drilling ban, now surface rights are being taken as well.

But—you still have the right to pay taxes.

If you don't think all this is a problem, go read up on "unlisted actions" and "SEQRs" and the like.  The town will say that this is a tempest in a teapot—that if your property is in a CEA and you want to make changes to it, all the CEA designation will do is trigger a SEQR…an invitation, if you will, to DEC to take a closer look.  No big deal…nothing to see here, move along…pay no attention to the man behind the curtain.  

Right.  

Think of the paperwork, the money, the crazymaking interminable reviews that will be necessary that hadn't been necessary before.  And all so that you can do perfectly reasonable things—maybe, if you're given permission—on what you thought was property that you owned.  

Silly you.  

John Adams also wrote, "The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence. If `Thou shalt not covet' and `Thou shalt not steal' were not commandments of Heaven, they must be made inviolable precepts in every society before it can be civilized or made free."

The arrogance of these people is just stunning.

 

Property wrongs

Disaster averted, for now. Make no mistake, though—property rights in the US hang by a thread. People familiar with "critical environmental areas," "open space initiatives", and "aquifer protection initiatives" are real familiar with this.  At the Washington Times:

An Idaho couple facing ruinous fines for attempting to build a home on private property that the federal government considered protected wetlands may challenge an order from the Environmental Protection Agency, the Supreme Court ruled Wednesday in a unanimous decision.
 
The case was considered the most significant property rights case on the high court’s docket this year, with the potential to change the balance of power between landowners and the EPA in disputes over land use, development and the enforcement of environmental regulations.

Critics called the EPA action a clear example of overreach, as the property in question was a small vacant lot in the middle of an established residential subdivision in the Idaho Panhandle. The government argued that allowing EPA compliance orders to be challenged in court could severely delay actions needed to prevent imminent ecological disasters.

Justice Antonin Scalia, writing for the court, said that Michael and Chantell Sackett are entitled to appeal the EPA order, rejecting the agency’s argument that allowing landowners timely challenges to its decisions would undermine its ability to protect sensitive wetlands....

...The case stemmed from the couple’s purchase of a 0.63-acre lot for $23,000 near Priest Lake, Idaho, in 2005. The Sacketts had begun to lay gravel on the land, located in a residential neighborhood, when they were hit by an EPA compliance order informing them that the property had been designated a wetland under the Clean Water Act.

The Sacketts were ordered to stop grading their property and were told that they would face fines of up to $75,000 per day if they did not return the parcel to its original state. When the Sacketts attempted to contest the order, the agency denied their request for a hearing.

Justice Scalia noted that the Sacketts’ property bore little resemblance to any popular conception of a wetland, protected or not.

Reading a summary of his opinion in court, he noted that the Sacketts have never “seen a ship or other vessel cross their yard”...
A little snark from a Supreme...love it.
...Congressional Republicans, who had rallied to the Sacketts’ cause, called the Supreme Court ruling a clear rebuke to President Obama and his environmental agenda.
 
“This decision delivers a devastating blow to the Obama administration’s ‘War on Western Jobs,’” said Sen. John Barrasso, Wyoming Republican and chairman of the Senate Western Caucus. “This victory by one Western couple against a massive Washington bureaucracy will inspire others to challenge this administration’s regulatory overreach”...
But don't go to sleep; eternal vigilance is the price of liberty.
 
You can read the decision here.
 
 

It's not paranoia when they really are after you

We've posted several times on Agenda 21, ICLEI, green energy, and sustainability.  Here's a tidy little primer on Agenda 21 as it relates specifically to property rights—and as you'll start to realize, that's what it's ultimately all about:


h/t Kathy

 

WHCU interview on Dryden drilling ban..."We'll have to agree to disagree."

Dave Vieser's interview of Dryden Town Supervisor Mary Ann Sumner on WHCU this morning, following the town board vote on Tuesday evening to ban energy development within the town, is here—it's about 9 min., 30 sec.  Listen for Supervisor Sumner's response(s) to Vieser's twice-asked question about taking away property rights.

A Dryden farmer speaks...

...very eloquently—Evan Carpenter on changing "viewscapes" and property rights, at the Dryden Town Board public hearing last Wednesday, July 20th.

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