Posted on 09/10/2001 10:59:39 PM PDT by brityank
Over the past few weeks, we have been inundated with heartrending stories concerning the theft of Property Rights by various government agencies manned by unelected bureaucrats foisting their policy regulations with no valid constitutional basis. I believe it fair to say most of us are not only concerned, but getting damned angry in finding just how pervasive the usurpative practices are becoming in even the smallest of communities.
Back in the early Eighties, I bought a small agricultural holding with an old eight room house, a tri-level 20,000 sq.ft. post-and-beam barn, and a couple of smaller outbuildings on eight and a half acres in Upstate New York. We weren't rich, just wanted someplace to keep our couple of horses and brood of cats and dogs without paying through the nose for boarding fees, etc. In 1984 I got a notice from the State; they had identified a small half-acre area in the very back corner that was deemed as part of a 'wet-land area', and asked that I visit the Town Hall to sign an 'acknowledgment' of the deed restriction that was placed against the property. I didn't really pay much attention, other than to discuss it slightly with the tree-farmer behind me who wasn't too worried about it but was not signing anything anyway. Other neighbors had the same feelings, and like me, I suspect most were too concerned with daily life to worry other than object by refusing to sign. The Town Clerk was pretty nice, and didn't press the issue, other than to say that the restriction would be placed automatically upon sale but probably wouldn't mean much anyway.
By '92, my company was feeling the impact of the downturns in the technical fields, and several of our clients either downsized or outsourced. Seeing the handwriting on the wall, and having other contacts from my tenure I was asked to consider transferring to Boston, Phoenix, Chicago, San Francisco, Philadelphia, or Dallas. In '94, I sold out and moved to the Philly area, bought a small house in the 'burbs, and went back to sleep.
Last year I was back Upstate camping in the Finger Lakes, and stopped back at the old neighborhood. Nothing much seemed to have changed, except the Agway Coop was gone, and a lot of new city folk had relocated out there. My back-lot neighbor with the tree farm? He had sold out to a developer, and one of the reasons, among many others I'm sure, was that 'wet-land' designation. Seems he could not harvest about half of his stock without getting 'approvals' from some bureaucrats who had never had soil under their nails.
Hanging around here I have had my sleep broken. Jarbidge woke me up. Klamath made me concerned, but hey they (the policrats and bureaucrats) will do the right thing. CARA is making me angry. Here are a couple of notes with links that proves that it's not just the West that is in the crosshairs, but the North, South, and my area the East.
Bulldozed into Bankruptcy
Conservation Easement forces family to demolish their home ...When Augustine Natale bought farmland in Chester County Pennsylvania in 1989, he did not recognize the significance of language that had been added 22 years earlier to an older deed to the same land. The language, which had been repeated in the deed just before his own deed, was what is technically known as a "conservation easement." The language said that the land could be used only for farming or nature conservation, and for small buildings related to those uses.
Nine years after he bought the land, this language destroyed his life's dream. In November 1998, the broken hearted, elderly man stood by while a bulldozer tore into his new farmhouse and ripped it down to rubble.
Even last year Mr. Natale did not seem to understand the simple, yet technical, language restricting, or encumbering, his deed. He telephoned the Property Rights Foundation of America in New York in a last-ditch hope for help to regain his lost home, but referred to his lawyer an inquiry about the language in the conservation easement.
It is no wonder that Mr. Natale did not know what he had bought when he acquired the 42 acre property. When the French and Pickering Creeks Conservation Trust, the land trust which holds the conservation easement, sued to stop the construction of the Natale farmhouse in 1989, the Chester County Court of Common Pleas ruled that the farmhouse was allowed under the restrictions. The judge ruled that the construction of the farmhouse "does not offend the easement definition of a "small building" incidental to farming use."
The judge emphasized that the burden of restricting a property owner's use of his land "is substantial," and that the "restriction must be specific and in words incapable of multiple interpretations."
Mr. Natale had saved for the farmhouse for fifteen years. With the court's clear ruling in his favor, he went ahead to build the Colonial house, which would house three generations of his family while they farmed the land.
But, while Mr. Natale built his house, the French and Pickering Creeks Conservation Trust appealed the decision. The ruling by the Chester County Court of Common Pleas was reversed. In 1995, the Pennsylvania State Supreme Court dismissed Mr. Natale's appeal. All that remained was a drawn-out battle about the removal of the house, with the final demolition order given on November 23, 1998. The next day the house came down. Bob Williams of The Philadelphia Inquirer photographed one of the men in the Natale family with his arm around Mr. Natale's waist, while the Chester County Sheriff wrapped his arm around the aged man's broad, stooped shoulders as he turned away when the house came down.
During the 1960's, conservation easements were an exciting new tool for the protection of land from development. Questions about the future implications to property owners were not paramount in the intellectual land-use planning circles developing this new line of protection.
When the National Conference of Commissioners on Uniform State Laws passed a Uniform Conservation Easement Act in New Orleans in 1981, representatives from some of the states raised important questions, but the model law was railroaded through intact. After the model law passed the highly respected body, it went on to be gradually incorporated into law in many states over the years. The law sets a framework for conservation easements by canceling the historic legal traditions that do not allow broad, negative encumbrances. It also establishes the powerful right of non-profit groups to sue to enforce conservation easements even if they are not parties to an easement.
Meanwhile, as the legal groundwork was being secured, the number of conservation easements also mounted. At the same time, a generation passed. Now, a harvest is being reaped as these easements are affecting subsequent owners. Many cases have gone to court in recent years.
During the 1990's, however, the drive to acquire conservation easements accelerated greatly, with land trusts and government acquiring encumbrances on extremely large rural blocks of land to protect forests, ranches, farms and nature. Some environmentalists want to tie up most of the land in entire regions, such as all of the State of Maine's unincorporated backcountry, with conservation easements.
Moreover, the terms of these new conservation easements are extremely broad, with resource protection superseding even forestry and agriculture, according to the technical language in the deeds. The actual language contradicts the statements of government and environmental groups, which claim that they intend to permanently promote these land-based industries.
If two judges could reach diametrically opposite conclusions on the meaning of the conservation easement encumbering Augustine Natale's property, then the potential for confusion and litigation over the hundreds of thousands of acres of conservation easements being accomplished with much more complex terms is virtually limitless. Conservation easements are devaluing the equity of land-based industries such as farms. Historic private property rights are being muddied. As this new generation of conservation easements comes home to roost, the tragedy of Augustine Natale will be repeated thousands of times. The American tradition of private property ownership and the freedom and prosperity based on private property ownership will be diminished.
Property Rights Foundation of America, Inc.
Reprinted from New York Property Rights Clearinghouse, Vol. 5, No. 1 (PRFA, Summer 2001)
One-Two Punch
Long Island Pine Barrens Owners Sue in Both State and Federal Courts Small property owners trapped in the Long Island Pine Barrens Core Area have gotten to the heart of the law by bringing their complaints in a new lawsuit in state court on June 22. Led by Walter H. Olsen, Sr., the president of Civil Property Rights Associates, Inc., they are suing for a judgment that Environmental Conservation Law Article 57, which established the Long Island Pine Barrens Joint Planning and Policy Commission, is an illegal delegation of power in violation of the Constitution and that the commission itself is an illegal and unconstitutional entity. Their 109-page petition argues that the zoning powers of the regional commission violate the local home rule powers of towns and villages under the State Constitution and that the map delineating the Core Area where no development is allowed was made illegally, because the Department of Environmental Conservation (DEC) failed to certify an aquifer recharge map required by statute to logically determine the boundaries of land needed to be preserved to protect the drinking water.
The list of defendants reads like a “who’s who” of the history of the Long Island Pine Barrens statute and the all-important regional zoning map that is tied to it. The lawsuit divulges an unsavory history of how “stakeholders” involved in politics, real estate, and well-connected environmental organizations created legislation and drew the zoning map boundaries of a roughly 50,000 acre Core Area for zero development to suit their own interests without public input or adherence to laws passed to protect the aquifer.
The lawsuit, served by attorneys James E. Morgan and Shiela Galvin of Delmar, digs into financial malfeasance of the Pine Barrens Commission, showing that it expended funds in a convoluted, unauthorized trail of expenditures through the Suffolk County Water Authority, rather than using the special fund required by law. The commission failed to buy a critical indemnification insurance policy that the law specifically directed it to get to protect itself in case landowners went to court. Furthermore, the lawsuit charges that it is illegal for the State Attorney General to represent the commission against landowners’ suits. In addition to these causes and their claims for damages because of the deprivation of their rights, the property owners ask the court to enjoin the State Comptroller from releasing funds to the commission until the State Legislature reconstitutes the entity in accord with the law and the constitution.
The complementary lawsuit in federal court is based primarily on three of the most important bulwarks of freedom, the right to equal protection of the law, the right of due process of law, and private property rights. But in arriving at the Long Island Pine Barrens law and the final map of the area where no development is allowed, most property owners were not given a chance to be involved in the process, and while most property owners lost their private property rights, certain individuals and businesses received special treatment.
On June 28, Gladys Gherardi and several members of Civil Property Rights Associates (CPRA) went to the U. S. District Court, Northern District of New York, in Albany to sue for compensation for the violation of these fundamental rights. In their federal lawsuit, which brings up causes of action that are complementary to those in state court, they emphasize that the government cannot create a sub-class of people.
The commercial property that Mrs. Gherardi owns in Manorville is located directly across Route 111 from land owned by developer Charles Mancini. Although both properties are equally situated with respect to the critical water recharge area for the “so-called” Pine Barrens Aquifer, as the plaintiffs refer to it, Mrs. Gherardi’s property ended up in the Core Area and Mr. Mancini’s property was cut out of the Core Area. The lawsuit reveals that he then built 350 houses with cesspools without having to go before the Long Island Pine Barrens Commission, even though the primary stated purpose of creating the Pine Barrens protection area was to protect the groundwater.
But the process that created the Pine Barrens Core Area produced an even more offensive class distinction. The Town of Riverhead used its statutory veto power over the boundary map to exempt the Grumman property, in which it had an economic interest, even though the land is in the heart of the Pine Barrens ground water recharge area. When the Suffolk County Gabreski Airport, where commercial development is being promoted, and the Brookhaven National Laboratories are also considered, government-controlled properties together comprise ten percent of the area in the Central Pine Barrens, but nearly all of it is cut out from the Core Area. In fact, municipalities control the bulk of the developable land exempt from Pine Barrens Commission control, which is actively marketed at prices that the plaintiffs can never obtain for their property.
The plaintiffs charge that the basis for the boundaries of the Core Area in the final map was a map presented by James LaRocca, the president of the Long Island Association, a prominent businessmen’s group. No one has admitted to being the author of that map, which increased the Core Area from 32,000 acres to 47,500 acres. The plaintiffs charge that the LaRocca map, with a few municipal inputs, provided the basis for the legislation and final plan without regard to aquifer recharge area bounds. The lawsuit charges that the mapping was not done by people with scientific expertise, but by people with economic interests in whether their land was included in the restrictive Core Area.
The lawsuit outlines the machinations that interested, well-connected parties went through to devalue the property in the Core Area. One of the towns up-zoned the lot sizes. According to the parallel lawsuit in state court, James Tripp, who was then at the Environmental Planning Lobby in Albany, worked through then DEC Deputy Commissioner Robert Bendick to bring up the idea of using “transferable development rights” (TDR’s) to keep the cost of compensation to property owners down. The federal lawsuit tells how the Pine Barrens credit system came in on an amendment to the Pine Barrens law. Henry Dittmer, the vice president of CPRA, who is one of the plaintiffs, owns land that is situated much like the Grumman property, but his only option is to sell his land to the Clearinghouse for Pine Barrens Credits. However, the “credits” are essentially useless because their value has no relation to what should be the fair market value of Mr. Dittmer’s land, the plaintiffs charge.
The Nature Conservancy offered Mrs. Gherardi a buyout of $7,500 per acre, when other commercial land on Route 111 is selling for $100,000 per acre. She thinks that the Nature Conservancy is “a government fronting agency working in conjunction with the commission.” Furthermore, at no time was consideration given to the law that the fee owner of the land owns the underground water rights. Summarizing these and other flagrant illegal actions, the lawsuit states that the defendants have acted individually and in concert to deny the plaintiffs’ property interests.
The defendants include the leaders of the State Legislature in their official capacity, plus prominent officials of Suffolk County, the three towns, Pine Barrens agencies, and Suffolk County Water Authority, individually, as well as in their official capacity. In addition, the property owners are suing Richard Amper, who is well-known as the head of the Long Island Pine Barrens Society, individually, and in his capacity as vice chairman of the Pine Barrens Commission Advisory Committee. The lawsuit points out that the Pine Barrens Society used the courts to stop 232 projects worth $600 million until overturned by the Court of Appeals in 1992 and that Mr. Amper has influential access to the media. The Pine Barrens law was passed and the map all-too-quickly finalized in 1993, the lawsuit points out. - Carol W. LaGrasse
Shoot, Shovel, Shutup.
I think I will bookmark this one!
He pulled off perhaps the biggest environmental land grab ever in history. He set into motion the frame work for what is now called The Tennessee Valley Authority.
Look on a map of Tennessee there is only one natural big lake in the state and it was due to the New Madrid Fault Line where the Mississippi actually flowed backwards for a time due to an 1800's earthquake.
TVA has abused Eminent Domain probably more than any other government agency. In the 1930's FDR and The New Deal made a fraudulent claim that by damming up the Tennessee river tributaries soil erosion would be controlled. They went as far to take pictures of eroded farms or were they eroded? No it seems they were on limestone ridges common to the area. TVA forced sales of farms owned by families from the 1700's on and has since continued the same tactics of false claims to justify needs.
One of the most popular cases was the Tellico Dam project or the Little T as it is called. This project was the first time the Endangered Species Act was tested in a court of law. It wasn't that a bunch of environmental zealots lived in the Tennessee Valley is was the fact TVA was and still is a government agency out of control and rampant in abuse. Local fisherman and others used the ESA to try and stop the dam. The project by TVA's own later admission was unwarranted and could never produce enough electricity to justify it's cost.
TVA won the battle the farms were taken not to the water line but above it as well. Sales were forced even beyond the waters edge. So what happened? A drive down to the Knox County and Loudon County lines tells the story. Developers ended up with prime lakefront acreage that re-sold for rates 1000% and higher of what was paid by TVA. It's a rich mans playground. The most Fertile and historical land in Tennessee flooded for absolutely no reason other than a power drunk government agency wanted to spend money.
I've dealt with them myself as well. They proposed a high voltage transmission line to run across my property. I'm not one to question need for electricity it's great. But rather than use other suitable and shorter routes they ran a 3 mile route which crossed my property. Other locations would have made the run 500 feet or less. Still I took it in stride. They showed up and made the offer you can't refuse for a purchase of a 100 foot wide 1200 foot long easement across my land. They showed the route and towers to be used. Easement was sold all was well. In the next few weeks TVA came in with a crew that proceeded across my land with chainsaws like Sherman through Georgia extending their cut up to 500 feet width in places.
I asked what was going on they were on my private land away from easement. They stated danger trees were to be taken out. A tree could jump 20 feet off the stump. I said you get me your supervisor here now and stop work now. He showed up and said too bad we're TVA I'll bring in a U.S. Marshall. I said you better get someone here with authority higher than yours you are to leave now till such a time.
I then made a fast call to my congressman an explained the situation and urgency of the matter. I live on the side of a wooded ridge below the cut. They were less than 150 feet from my home on a steep ridge. Next day a higher up showed up and after debate on the matter said they would purchase the trees they had destroyed. They had to go for 1200 feet stump by stump to estimate cost. It was about double that of the original price. It was paid. When asked about the fallen tree's they were told unless you can move them without destroying more you best leave them lay. That's where they are today.
TVA as well violated laws like not burning tires. They used them in burning the bulldozed brush that was too green to burn. This from a government agency who has federal marshal police authority anywhere in the Tennessee Valley. This from an agency who can fine you $10,000 for driving a car on the lake bank that has a drawdown of 80 plus feet a year and barren banks. It causes erosion they say.
Well the next spring after the line was ran we had a bad storm. I have lived here all my life and never saw this happen even in the most severe storm. The springs along the cut boiled up mud. TVA and FDR the great environmentalist.
I've mentioned this before but a great magazine that is heavily involved in the land battles and is at the fore of the property rights struggles is RANGE, www.rangemagazine.com I recommend subscribing if you are truely interested in the ongoing battles for rights that are rightfully ours.
That's a keeper.
You may not be able to stop them. But then you don't have to let them take it without some cost and frustration. It is your right to try and get what you consider just and reasonable compensation as required under the constitution. Eminent Domain was actually meant for emergencies such as war and national interest and not urban renewal. The biggest fight with TVA has been trying to make them responsible for their actions. The problems we had didn't end there I had to go to the TVA Inspector Generals Office to have my soil reclaimed due to errosion.
To keep them from returning in the future for more so called clearing, I had to buy a herd of goats to browse the power line. The cut on the ridge is way to steep for a tractor and bush hog.
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