"AN OUT AND OUT PLAN OF EXTORTION"

"AN OUT AND OUT PLAN OF EXTORTION" 

As we roll in to July, it has not been widely publicized but a new set of amendments to the Martin County Comprehensive Plan are set to go in to effect later this month.  These amendments are numerous, and will eventually prove shocking and troublesome to many residents of Martin County.  

For those having the patience to sit, read through and understand all these amendments it becomes clear these latest changes are not part of a coherent “plan” for Martin County.  A “plan” would clearly lay out the big picture with regard to how residents want Martin County to evolve.  The bulk of these amendments do not address big picture items.  Rather, they are specific new local governmental regulations which are being improperly injected in to a “planning” document..  What is the difference you ask?  It’s simple, local ordinances and/or regulations are the method by which the “plan” is implemented.  Logically this makes sense since we want the process of changing the “plan” to take longer so we don’t change the  “plan” on a regular basis.  To the contrary, we DO want the ability to change regulations and ordinances in a timely manner because we may, from time to time, stumble upon better or more appropriate ways to implement our “plan”.

That having been said, there is only one motivation for placing specific  regulations in the “plan” where they don’t belong.  That motivation is………….wait for it………………to make it as difficult as possible to undo the continuing and unabashed assault upon the private property rights of the citizens of Martin County. 

For instance, one of the more objectionable provisions in the amendments is laid out in Policy 8.1C.1(1), providing for the creation of a new seventy five foot (75’) shoreline protection zone (SPZ).   This new 75 foot SPZ is, or will now be, required for “all new development”.  Thus, as of the effective date in July, “no construction” will be permitted in Martin County within 75 feet of the waterline on any waterfront property within the County.   In other words, in Martin County no waterfront real estate owner will be permitted to make any use of a 75 foot wide strip of land which abuts the water.  There is no scientific justification cited in the "plan" for this regulation, rather, the 75 foot SPZ is premised upon a generalization and presumption "that of course a 75 foot buffer will help water quality". 

This type of regulation, which denies a limited group of property owners the right to use their property is not new by any means in Martin County.  It is simply a perpetuation of the problematic mindset which all to often goes unchallenged because citizens believe a burdensome regulation will only affect someone else.  After all, why would any voter object when there is a governmentally identified "public purpose" that is being advanced solely by burdening a small minority of property owners?     

            Looking at it  purely from a fairness perspective I think we would all agree if there is some truly legitimate “public purpose” to the community, the cost or burden of achieving that"public purpose' should be borne by the entire community, not just by a small minority of property owners. So for instance, (leaving aside the issue of 75 foot SPZ being improperly injected in a planning document) if there truly is a “public purpose” to the community to be achieved in enacting a 75 foot SPZ, then Martin County should pay all waterfront property owners for taking their 75 foot strip of land.  To be fair, Martin County should then turn around  and assess all County residents their fair share of the cost of buying the land needed to achieve this "public purpose".  

This type of governmental regulation which takes property without providing just compensation violates the United States Constitution’s Fifth Amendment’s Takings Clause which states: “nor shall private property be taken for public use without just compensation.”

Uncompensated regulatory takings of private property have become an immense problem not just in Martin County but all across the nation.  This, notwithstanding the fact the US Supreme Court has recognized it is inappropriate for governmental regulation to act as a substitute for the power of eminent domain, calling it an“out and out plan of extortion” 

With any luck however, the tide many be turning on uncompensated regulatory takings.  There is currently pending before the US Supreme Court the case of Common Sense Alliance v. San Juan County which is a case from San Juan County in Washington State.  The most interesting factor in Common Sense Alliance  is that the unlawful regulation which precipitated this case is eerily similar to the 75 foot SPZ in Martin County.    

As is the case in Martin County, San Juan County’s “growth management approach" to regulating land-uses adjacent to environmentally sensitive lands relies almost exclusively on presumptions and generalizations. 

In 2012, San Juan County enacted a regulation stating that as condition of obtaining local government approval, a waterfront property owner must dedicate a portion of their property as an on-site conservation area.  So, just as with Martin County’s 75 foot SPZ, San Juan County shoreline property owners are required to set aside “water quality buffers” as a condition of development.   Again similar to the 75 foot SPZ in Martin County, San Juan’s “water quality buffers” are not based on any harm the proposed land use itself might cause, but based on the county’s general efforts to reduce pollutants and improve water quality.   

            The San Juan regulation was challenged as a taking without just compensation by a local property owners’ association called the Common Sense Alliance. Unfortunately, at each level the Washington state courts ignored the Fifth Amendment and sided with San Juan County finding the ordinance was permissible because it was a generally applicable ordinance instead of a case specific  regulation.  Because the Washington State courts ignored well established federal precedent with regard to the federal Takings Clause, the case has been appealed to the United States Supreme Court.

The Washington State courts logic flies in the face of several U.S Supreme Court decisions, such as Nollan v. California Coastal Commission and Dolan v. City of Tigard, which  hold the government may only demand property from a permit applicant when necessary to mitigate a harm that the proposed project would cause.  Put another way, permit conditions are legal only when they mitigate identifiable development impacts caused by that permit applicant. Permit conditions cannot be imposed to cure problems not created by the permit applicant, or be disproportionate to the impact.

In 2013, following along the rationale of Nollan and Dolan, the Supreme Court said in Koontz v. St. Johns River Water Management District that government is forbidden from pressuring citizens into forfeiting their constitutional rights by coercively withholding benefits (i.e., giving up property to obtain a permit).

            With any luck the Supreme Court will grant review to Common Sense Alliance v. San Juan County, and there is hope the case could be heard by the Court before the end of 2016, so perhaps by 2017 private property rights in Martin County and across the country can begin to be restored as the Constitution intended..