Meeting 111695 - Laserfiche WebLink

Browse Search

LAND USE PROPERTY RIGHTS A Revolt Under. Construction arrell Olson was outraged Flat- head County, Montana, planned to zone the region around his 12 -room motel in the town of Hungry Horse, and, as Olson understood it, septic -tank and other requirements 'on 6,000- square -foot lots would leave a property owner unable to put up a building larger than 10 by 12 feet—about the size of a nice outhouse. So Olson was one of hundreds of resi- dents of the fast - growing area near Glac- ier National Park who wrote angry protest letters that forced the county to hold off on new zoning regulations. And he became a supporter of strong state property rights legislation that would compensate property owners when gov- ernment regulations devalued their land. "If I'm going to ask Mr. Brown down the road not to build because I want to look at the view, fine. But compensate him," Olson says. Darrell Olson has .a lot of allies these days. And much of the property rights debate is fueled by stories like the one that got Olson mad. Some are true, some are myth, and many fall somewhere in between. The latter seems to be the case with the Flathead County zoning proposal. Steve Herbaly, planning director for the Flat- head Regional Development Office, says that in the residential areas where such small lots are allowed, owners would hook up to community water and sewers, so requirements for large septic fields wouldn't apply. That would mean prop- erty owners could build houses as large as 40 by 60 feet, or 2,400 square feet. That point was lost in the din of horror stories and incendiary rhetoric that char- acterized the property rights debate in Flathead County. The same sort of drama has been playing out across the country in recent years, with activists pushing at every level of government for laws to pro- tect property owners from what the activists portray as power- crazed govern- ment bureaucrats willing to sacrifice 28 G O V E R N I N G October 1995 Legislatures across America are taking up the issue of protecting property owners from government actions that devalue their land. in most states, lawmakers are balking at the cost. landowners' property values to preserve wetlands and red cockaded woodpeckers. That a property rights revolution of some kind is going on is indisputable. Montana and six other states passed prop- erty rights legislation this year, bringing to 18 the number of states with some form of protection for landowners on the books, according to the National Conference of State Legislatures' count. And legislative activity is moving more rapidly than even some property rights advocates had hoped: The first of the state laws was passed just four years ago. In all this year, more than 140 property rights bills were introduced in 48 state legislatures. That blizzard of legislative proposals BY ELLEN PERLMAN has been driven by anger over the issues of property rights, compensation and reg- ulatory "takings" that has been building for years; the Republican takeover of so many state capitols after last year's elec- tions moved the issue to the forefront. Several recent U.S. Supreme Court deci- sions also have energized the movement. In three cases decided since 1987, the court has tipped the scales somewhat fur- ther toward landowners, saying -that if governments want to put conditions on development, those requirements must meet tests of "nexus" or "proportionality." That means the conditions they set must have something to do with remedying the specific impact the proposed develop- ment would have. So a city can't require a developer who wants to build a taller building to put in a bike path. Congress also has been debating prop- erty rights legislation. House and Senate versions of the legislation would allow for compensation when federal government actions diminish property value by a cer- tain percentage -20 percent under the House bill for certain federal programs, 33 percent under the Senate's for all fed- eral regulations. Congress could end up being the bell- wether on the issue, prompting state leg- islatures to rewrite their laws to provide similar compensation for state regulatory actions. "If Congress enacts a compensa- tion law, I expect many state legislatures will follow suit," says Jerold S. Kayden, associate professor of urban planning at Harvard University. mong the laws that have been enacted at the state level since 1991, however, few would go far toward compensating Mr. Brown. Most of the new laws merely force govern- ments to assess the impact proposed reg- ulations would have on property owners; Montana's new law is just such a "look before you leap" measure, one that affects only state regulations, not local zoning. Some state laws require agencies to look