Property owners protection act introdued in the General Assembly | Eastern North Carolina Now

    Publisher's Note: This excellent article, from the Beaufort Observer, on the practice of some local governments taking what should not be theirs is a must-read. Property rights equate to freedom. Once one gets used to giving up their property rights, they begin to get used to giving away their freedom.

    "It is sufficiently obvious, that persons and property are the two great subjects on which Governments are to act; and that the rights of persons, and the rights of property, are the objects, for the protection of which Government was instituted. These rights cannot well be separated."    James Madison, Speech at the Virginia Convention, 1829

    House Bill 652 was introduced into the General Assembly Tuesday (4-5-11). It has been sent to the House Commerce and Job Development Committee, of which Rep. Bill Cook (R-Beaufort/Pitt) is a member. The bill is entitled the Property Owners Protection Act. It is designed to curtail abuses in land-use planning, particularly by local governments and especially by "overzealous" staff who "go beyond" the scope of the law or ordinance that was actually passed by the State or local government bodies. You can read the bill by clicking here.

    The heart of the bill is in the paragraph that states: " It is the policy of the State of North Carolina that all statutes, ordinances, rules, and regulations that affect the free use of land shall be strictly construed against the government and liberally construed in favor of the free use of land. Any ambiguity in a land-use statute, ordinance, rule, or regulation shall be resolved in favor of the property owner and the free use of land." And it gives operative effect to the policy statement by providing that a landowner who sues a jurisdiction for improper construction, interpretation or enforcement of a land-use regulation "shall" be awarded the actual cost of the suit. The bill has other provisions, which you can read at the link above.

    Commentary

    We think this is a good bill and should be enacted into law. We hope Rep. Bill Cook will support it, especially since he is a member of the committee which will be considering the bill.

    As we cover various local governing bodies, the worst problem we observe over and over again is the abuse of zoning and land-use authority, especially by power-obsessed bureaucrats and typically by non-elected officials who have a need to control other people and things, not usually for the purpose of accomplishing an ultimate good, but more frequently to "prove who's in charge" or simply to make themselves feel more important than they are able to otherwise.

    Time and time again we see "the best laid plans of mice and men oft go astray." A governing body will often realize a need or problem exists within their jurisdiction and purview of responsibility so they feel a need to "do something" about it. That usually results in some kind of action, most often the adoption of a policy, ordinance or rule; but sometimes simply a position.

    But most legislative bodies don't have the real power to affect their action so they have to delegate the imposition of their position to someone else, usually an appointed group or staff. Then, inevitably the Law of Unintended Consequences hits. In resolving one problem, another, or many others, are created. This leads to more rules, orders or directives, sometimes simply to try to clean up the original ambiguity or inapplicability of the original action, but as often as not the obsession becomes the rules themselves rather than the originally intended solution. Somewhere about this phase you will likely encounter an "explanation" such as "well, that's the policy and we have to apply it the same to everybody and every situation." Translation: The operation of the rule becomes the important thing, not the solution the rule was designed to achieve.

    The underlying problem in this devolution of power is that the operatives lose sight of the principles involved. In the case of abuse of land-use planning the principle is, or should always be, the maximum unfettered liberty to use one's property as one sees fit. But the conjured principles of the "common good" supersedes when the rule-making/enforcement evolves. It's like the librarian who puts the books in locked glass cases so as to protect them from the readers.

    And that is what we see HB 652 attempting to do...to keep the eye on the important principle...that of promoting maximum individual liberty. And liberty always ultimately comes down to being a property issue because there can ultimately be no liberty without property rights.

    In our experience we see it time and time again. The abuse of liberty is overlooked by the masses because they either don't know about the case of the individual whose rights are being trampled, don't relate to it or simply are too trusting of people in positions of power. They believe elected and appointed officials and their hired hands will do the right thing. And many times they do. But it is the exception where the "little guy" gets abused because he/she is isolated and left alone to "fight City Hall" that is where the problem comes. Unless the media picks up on the issue; then the game changes.

    HB 652 attempts to address the David vs. Goliath issue by providing for the award of attorney fees if David has to go to court, and wins.

    HB 652, while good and needed, will not totally solve the problem. One of the absolute characteristics of power--whether by individuals of an elected or appointed body or the bureaucracy--is that they never feel they have enough of it. There is an insatiable drive for more and more power and eventually you end up with a Leviathan. And ultimately the only way to control the monster that governmental power creates is to starve it. HB 652 does not address shrinking the power of government. So the task remains.

    We'll conclude with a couple of actual local examples of what we're talking about.

    A man who runs programs that provide mental-health services to individuals in the community who need such services saw an opportunity to establish a school for troubled teenagers in Washington. He discovered an empty building that was for sale that had previously been used for many years for a similar type of program. He bought the building and knelt at the seat of power by applying for a "permit" to use his own property the way he felt best (and that was to provide much-needed community services). But there were some others who did not think he should use his property the way he planned and they pulled political strings. Lo and behold, the Power determined that such use (remember, almost identical to historical use) was a violation of the zoning requirements. So the property owner applied for a rezoning of the property. After months of wrangling he was told he could only use his property, not as it has been used for years, but as residential use. But all the property around this parcel was non-residential use so the owner could not sell the property because nobody would buy it for residential use.

    In that case the property owner spent thousands of dollars on lawyers, while the Power paid its lawyers by confiscating taxes from other property owners. Ultimately, there was a happy ending when the Power bought the property, which some think was their original intent in the first place (to get the property away from the owner).

    A similar case is still pending where the same Power took a man's property because it did not look as nice as the Powerelites felt it should. The man tried to obtain a loan to fix the property up but was denied because no lenders felt the property would be worth what it would take to fix it up. The numbers simply did not work. So the property owner, who owns adjoining property, offered to demolish the unsightly structure and leave the lot vacant. The Power refused because they want the house fixed up rather than torn down. Note the words. The Power wanted the property used a different way from the way the property owner wanted to use his own property. That case is still pending (the house sits crumbling as we speak.)

    And of course there was the little old (82) lady in New London, Connecticut, who owned a house that she had lived in all her life. She wanted to continue to live there until her death. But the Power felt that they could make more in taxes if the house was demolished and a commercial project put on the property. Ms. Kelo had to move simply because the Power felt it knew better how her property should be used.

    It's a major problem. And it will always be a problem as long as government power is given to Elitists. (Elitists are those who believe they know better than the rest of us about what is "best.") HB 652 takes a tiny chip at the Leviathan. It's not enough and it will not solve the abuse of property rights extant in our society, but at least it is a step toward the right direction.