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Show March 7, 1974 The Utah Independent Page 9 The Case Against The Land Use Bill BILL IS INGENIOUS " Scheme " (Cone. Rec. SHIFT IN JURISDICTION UNCONSTITUTIONAL p.S11660) Mr. FANNIN. Mr. President, S. 268 is.an ingenious scheme to deny the States of their right to plan for land uses. This elaborate and complicated bill is drafted so that under the guise of assistance the Federal Government will take from the States one of the last vestiges of State police power. S. 268 tells the States they will receive Federal dollars if they will but take advantage of the opportunity to plan under the provisions of S. 268. Such an invitation seems innocuous, but once that first Federal dollar is accepted the Dr. Jeckle become Mr. Hyde and before the State knows it it has become the slave of Washington, ' D.C. ,, Listen to this shrewd method the Federal Government will tell the States they must first have a process for land use planning. Then within that process the States must include specific things such as protection of areas of critical environmental con cc;m . but we are not through with that process next the Secretary of Interior will judge that process" as to its adequacy by looking to see that the State has included a State planning agency that has the authority under the laws of the State to implement all the provisions of the bill. That same process must include a proto gram regulate land sales or development projects which goes so far as to require the State to determine whether there is a need for the proposed project and whether it should proceed. Now the bill finally calls for that State process to be Implemented according to the methods spelled out in Washington, D.C. We have been talking about the State so-call- ed Although the bill acknowledges that state land use is the constitutional responsibility of the states, the bill clearly provides that if a state does not qualify, then Federal action can be taken. All the federal government has to do is hold a public hearing after public notice and make an announcement of the effects of the action it is going to take. If the President determines that the interests of the United States so require, it doesnt even have to do that. (Sec. 208) SEN. PAUL FANNIN process and nothing else, but we see' already .that that process is really substantive in nature and not procedural as the author of this bill stated in his opening remarks. Does this seem to you that the procedures for, and nature of, State involvement in land use decisions are left to the determination, of the individual States? I do not think so either but the above is an exact quote from the Record of Friday, June 15, 1973 S. 11271. Does that kind of a dictated proc- -' ess and result seem like an affirmation of States rights as the author has 1. INVASION OF PROPERTY RIGHTS Our nation was founded by men who believed in the freehold system of land ownership. Under this system a man with hi, land within could do w he p' couched S. 268? To add insult to injury, the States are finally dictated the full terms of what they must include in a State program and how they must implement it and how they will be judged on the adequacy of that implementation. Washington is actually exercising State constitutional rights. The States will be the puppet and Congress will construct the strings which the Secretary of the Interior will pull. We cannot allow such a scheme to succeed and this is why I am compelled to vote- - against final passage of S. 268. planning concepts. Whose concepts? Whose plans? 3. LAND USE PLAN WILL TAKE" PROPERTY WITHOUT COMPENSATION the Constitution says: ... nor shall private property be taken for public use. without just compensation." (5th Amendment) The question is, when is private property taken by public action? Most people agree that there are times when land must be taken for public purposes. Dollar compensation is given to the owner and he can go to court if he does not agree with the amount paid. The difficulty comes when a state land use plan or other zoning ordinance virtually prevents a landowner from doing myaiag with hia knd and thus complete- ly destroys its value. The following N.Y. Court of Appeals decision is relative: An ordinance which permanently so . restricts the use of property that it cannot be used for any reasonable purpose goes, it is plain, beyond regulation, and must be recognized as a taking of the property. The only substantial difference, in such case, between restriction and actual the restriction leaTes the owner subject to the burden of... taxation, while outright confiscation would relieve him of that burden." (Arverne Bav Const. Co. v. Thatcher 278 N.Y. 222, as running his driveway into a freeway) Feudal propery was different from freehold. In feudal property even property owner held his land only as allowed or directed by some superior authority. Under feudalism, it was the 1938) duke. Today the land use bill recommends The law on the subject of taking is that this become the role of the federal very, complex. The land use bill gives open government. The name has also changed federal to state and agencies to so power from feudal property to social proper-ty- . restrict and regulate property that it is confiscated without the called realistically The Founding Fathers of the United for compensation. States recognized the vitally important 4. MORE CENTRALIZATION OF connection between individual liberty and POWER IN BUREAUCRATIC RULE the ownership of freehold property. is bad enough to centralize power in ' It The Constitution placed control of the federal government, but it is even StateS as the worse when that power falls not to elected are private Propert7 wit.h lTto &T but to legislature, appointed bureaucrats on the part of the States, whose judgment The ian(j use bill sets out certain genertechnical personnel to set up the agency, is that? To whom are the States an(j sweeping goals and policies and make the inventories and evaluate their own To responsible? theif leaves the details and specifics to be pe.P!e social, economic and environmental Federal Government has no constitutional ordered by appointed officials under the needs- - (Gong, Bw, p.. SU670. of the definition a Mt t0 up jurUdiction names and utions "wise and balance use ' of force which have law. then the The secretary of the Interior is to 2 WHAT ECONOMIC AND SOCIAL This tendency has increased in practice the constitutional overrecent one year. He can use the services of any that not oniv c.ncept have Ernest ic.ti.nal or service organi- e stake, but Wect1ngth1s economicand soca1 issues also What orraniLtions Centralist solutions to pollution require ' those MfrSoTeduMtion authoritarian methods. What if new chang? The detalU are absent. However, pannillg refuations on the a the bill does make dear that inventories amoun 0f Space a person can take up? Or will be made of all land use, population number of children a couple can have? with facilities and key densities, housing (Vermont Wtchiqgn, June, 1973) their impact on State and regional Reprinted from the FREEMEN REPORT Who Will Receive Federal Indian Funds The Land. Use Rill, requires, the Indian Tribes to set up certain land use processes A.I.IMI.? torpfef ofelines non-prof- en"nStLs it onWTfadfa Fed. Action Without Government Is State Consent (Wain Polluter Prof. Hans Scnnholz of Grove City College in Pennsylvania has pointed out that the free economic system has not been the major polluter. That dubious distinction belongs to government itself. The Secretary shall have authority to terminate any financial assistance extended to a State. . .and withdraw his determination of grant eligibility whenever the State does not meet the requirements of this Act. Where any major Federal action significantly affecting the use of lands is proposed after five fiscal years from the date of enactment of this Act in a State which has not been found eligible for grants . . . the responsible Federal agency shall hold a public hearing, with adequate public notice, in such State at least 180 days in advance of the proposed action, concerning the effect of the action on land use This subsection shall be subject to exception where the President determines that the interests of the United States so require. (Sec. 208) non-Fed-er- (emphasis added) P10?" al "other acreage limitation Sennholz proves his case with a five- - Prof. Sennholz challenges government to 7 anner .use P7 orpoint reference. One, some 25 per cent of clean up Lake Erie before it becomes a of their remainthe land in the U.S. is government- - virtually dead lake. The biggest pol- ' owned, with hundreds of government inters in the lake are the municipal sewer ing productive acres, to the detriment not only of small ponds but of the big installations (military, power plants districts of several big cities, ger lake itself. etc.) discharging wastes into the environment. mwt of our faulty Instead of turning to socialism to waste disposal systems are operated solve our pollution problems, Sennholz loral governing bodies. Bree, our thinks we ought to strengthen our private and streams are publicly owned, which for profitable exploitation of different Bv the t thrlueh means that the federal government types of waste. Properly treated sewage exces- nroirtv should be making and enforcing the makes good organic fill. This, of course, in- ? uOTernment deprives rules covering their use. ruujj the would not wholly serve to purify the lake. dustry of funds. needed to clean up its highway system, which is subsidized by would not keep farmers from dressing . manufacturing processes . and local authorities, offers free their fields with expensive commercial Admittedly, the difficulties of meas-t- o access to the automobile, which amounts fertilizers that drain into streams and assessing the responsibility for favoring individual polluters oyer the feeding the lake, thereby causing the uring of algae and taking needed oxy- - pollution are problems in themselves, relatively dean electric and Diesel Prof. Sennholz would have private, nonmotives operated by the heavily taxed gen away from fish, industrial property owners turn to our railroads. Finally, our politically adBut, as Prof. Sennholz might have court system, with its injunctive powers, ministered zoning systems, which create said in further support of his case, the to compel industry to make a proper suburban sprawl, add greatly to our use of commercial fertilizers has been study of its external costs. dependence on the automobile. vastly intensified by our Department Events DECEMBER 9. 1972 of Agriculture. Subsidies of one kind Zeroing in on a specific instance, over-fertilizati- J 12, Vft . on loco-grow- th on |