Land-Use Reform and Risk

Posted: Jun 12, 2008 10:19 AM
Land-Use Reform and Risk

Phil Truluck is today Executive Vice President of the Heritage Foundation. He is the right-hand man of Edwin J. (Ed) Feulner, Jr. In 1973 he worked under my supervision. Then as now he is one of the most able and tireless laborers for the cause I ever have known. That year he worked day and night on the liberal's pet cause of that era-namely, land use. Had the land use bill passed the Federal Government would have been able, in effect, to do away with private property.

Although others took credit for the defeat of that terrible bill, I can state without fear of contradiction that it was Truluck's work that was responsible for the outcome. It is true that this bill has not reared its ugly self for the past 35 years but no bad idea ever dies in Washington. The National Center for Public Policy Research has issued a new study which contends that the Federal Government has found a new way to restrict the use of private property. A total of 37 million acres throughout the nation is under the control of land trusts. The best known of these is the Nature Conservancy. Dana Joel Gattuso, a senior fellow at the National Center, is author of the report, "Conservation Easements: the Good, the Bad and the Ugly." It seems that the Conservancy approaches land-rich but cash-poor farmers. In return for donating their land for supposed conservation purposes, the land owners are provided with Federal and state tax breaks provided they agree never to develop or use the land for anything other than farming or ranching.

But the next thing that most often happens is a land flip, and the land trust becomes the owner of the property. Sometimes the farmers don't even know it has happened. Most of these land flips are prearranged. The flips are good for the land trusts and the Federal Government but bad for the unsuspecting land owner who has been kept out of the loop. Gattuso cites the example of the Nature Conservancy, which purchased an easement for $1.26 million. It turned around and sold the property to the Bureau of Land Management for $1.4 million. Ms. Gattuso points to the Maine Coast Heritage Trust, which has sold more than 700 of its 850 easements to governments.

Gattuso writes, "Besides being able to take control over more and more land, government agencies like the arrangements because they are able to restrict activity absent public approval, unlike land purchases. Zoning and other land conservation regulations which can draw heated opposition-and great angst." That, in my view, is the key point. The reason a land-use bill was defeated 35 years ago was because of the heated opposition to the legislation. Truluck activated organizations and important community leaders to oppose the bill. The same thing would happen today if the Federal Government were required to hold hearings on these easement flips. Instead all of this happens in silence. Even the land owners most often have no idea this has happened.

Even when the easements are kept in the land trust there often are varying interpretations as to what is permitted. The Property Rights Foundation cites the example of a farmer who purchased a 42-acre farm in Chester County, Pennsylvania. He wanted to build a home to house three generations. He didn't know that the easement under which the farm land had been placed thirty years earlier did not permit the building of a house. The matter was litigated. The trial judge ruled that building a farm house was not inconsistent with the restrictions only to farm on the property. The case went to the Pennsylvania Supreme Court. The construction of the house continued as did the litigation. The house ultimately was bulldozed and with it the dreams of three generations of farmers and 15 years of savings.

The only way this situation can be reversed is for Congress to hold hearings to bring these practices to the light of day. If an adequate case could be made perhaps the law could be amended. The problem is getting the hearings in the first place. If there is a Truluck among the myriad of conservative and property-rights organizations perhaps enough opposition could be generated that something would be done. Or have we become so accustomed to giving our property rights away that what was possible 35 years ago can't be done today.