Critique of the Draft 2040 Comprehensive Plan Part 2: Property Rights

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Critique of the Draft 2040 Comprehensive Plan Part 2: Property Rights

March 18, 2017 - 20:26

by PAT AND SHIRLEY MIKETINAC, Special to The Hernando Sun

While ecological linkages, wildlife corridors, open space and buffers are mentioned almost one hundred times in Chapter One, the precious words of our private property rights were almost completely edited out.

Comprehensive plans are all about projecting the future land use of any community. To best respect private property rights, they should contain flexible guidelines, not mandates such as are contained in the Draft 2040 plan.

Our natural rights existed long before any governments were formed. They exist with or without government. Frederic Bastiat stated in 1850, “Life, liberty, and property do not exist because men have made laws. On the contrary, it was the fact that life, liberty, and property existed beforehand that caused men to make laws in the first place.” Because we do not understand and defend those rights we have allowed government to take them away.

When our Founding Fathers wrote the majestic words of the Declaration of Independence, The Constitution and Bill of Rights, the purpose was to control Government, not The People. We are guaranteed the unalienable rights; the natural, God-given rights, of life, liberty and the pursuit of happiness just to name a few. The original sentiments on the topic from John Locke (grandfather of the Declaration) and George Mason, state “life, liberty and property.”

According to Judge Andrew Napolitano, “All rights can be traced back to one single right: The right to own property.” Without that unadulterated right, we are at best, serfs to the system. A right ensures that we make our own decisions without government interference or from other outside sources. Government should be by consent and not by force, so long as we harm no other person.The right to own property must be vigorously defended in any comprehensive plan. The 2040 Draft plan fails on this standard. The current plan needs revision also.

Still, our private property rights are far more well defended in the current comprehensive plan:

“Goal 1.05: To Protect Private Property Rights and Recognize the existence of legitimate and other competing public interests and private interests in land use regulations and other government action.”
“Development Regulation consistent with Judicial Interpretation

"Objective 1.05 B: Land Development Regulations should be consistent with existing Judicial Interpretations of the Rights of Private Property Owners.”
“Vested Rights Objective 1.05 D: To Provide for the Determination of Vested Rights

"Policy 1.05 D (1): Hernando County shall enact a vested rights ordinance to ensure that existing rights of property owners are preserved in accordance with the Constitutions of the State of Florida and the United States. The details of that ordinance shall generally be guided by principles of statutory vesting.”

“Policy 1.05 D (2): The vested rights ordinance shall provide specific definitions of the common law and statutory vesting and shall provide an administrative procedure by which a property owner may demonstrate that private property rights are vested against the provisions of the Comprehensive Plan.”

Some very important concepts lie within these paragraphs. First, “Vested Rights,” which originated in 1766. Surely it’s no coincidence, that this was a time of demands for rights from British Colonists in America. Vested means fully and unconditionally guaranteed as a legal right, benefit or privilege. Then, “Common Law,” which dates back to 14th Century England. It’s a body of law primarily from judicial decisions based on custom and precedent, unwritten in statute or code constituting the basis of the English legal system and of the system of the United States.

According to Judge Andrew Napolitano, “At Common Law, people were not required to obtain a permit in order to use their property as they wished. Common Law limits free use only when a use unfairly invades the property rights of others.” Those are comforting words to a property owner or prospective property owner. It sounds as though our county intended to respect our private property rights.

We had to cross-reference this from the current version. Another major problem with the proposed Draft 2040 Plan, is that it is a complete rewrite; a scrambled-eggs version of the current 2011 update. This makes it almost impossible to compare with the current plan. No changes should have been made that could not be line-item crossed, deleted or added in a manner that makes all changes completely transparent. Staff has attempted an unwieldy cross reference chart that fails to bridge the chasms between the plans. For instance, Chapter 10 on Environment, is only 18 pages, but it takes 20 pages of charts to cross-reference to the current plan.

We told you all of that, to get to this point. In cross referencing private property rights, we find only a few lines remain from the original private property rights into the 2040 Draft Plan:

“Objective 1.02 A: Private property rights are protected through alternative development techniques, continuance of non-conformities, procedures for vested and other appropriate rights and other appropriate mechanisms.”

“Strategy 1.02 A (1) Alternative methods for property development that will assist in preserving development rights while carrying out the objectives of this plan include transferable development rights, planned developments, clustering, conservation easements, buffers, open space preservation and other techniques.”

That is all that survived of our property rights from the current plan.

Although Strategy 1.02 A (1) is also in the current plan as 1.05 A (1), this is the only thing that survived in the 2040 plan. Instead of preserving them, most of these methods seem to be an attack on our private property rights. The most important theme echoed in this paragraph is “while carrying out the objectives of this plan.” That appears to be the driving force, not our private property rights. All the original wording needs to be returned, or a restatement of an ordinance which provides the same protections. While ecological linkages, wildlife corridors, open space and buffers are mentioned almost one hundred times in Chapter One, the precious words of our private property rights were almost completely edited out. Could it be because the two concepts are at cross-purposes to one another?

In many of the Planned Development Districts and the Ecological Linkage areas, property owners who buy, will be required to give up certain property rights for permission to live there. Property owners, for instance, will have to place their home and buildings in the same contiguous arrangement as their neighbors, to allow for the free flow of animals through a wildlife corridor. They can only occupy 50% of their property. Some PDDs are even more stringent than that. There are also limited fencing and lighting options to make the open space dark for the animals that traverse it. In effect, these restrictions make a large portion of personal property unusable for the owner. The property owner has lost the use of his property to “the good of society” (wildlife corridors) as determined by the Planning and Zoning Department.

Justice Oliver Wendell Holmes, Jr. ruled on a case (Pennsylvania Coal v. Mahon 1922) where he stated that “while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” Modern courts will say that 100% must be taken to trigger compensation to the owner. However, ethically and fairly, since 50% or more of some future properties in this county may be taken for the purpose of free-ranged wildlife, would the County be willing to justly compensate them? Could they ever be justly compensated? Better yet, we should abolish the mandates altogether.

Although wildlife corridors will be one of the subjects of Part 3 and Chapter 10 on environmental issues, it must be said here, that the science is still not proven in that regard, such as the transmission of diseases and invasive plants. Our own situation, is that we live on 10 acres in the Rural category. Since we moved here in 1980, we have purposefully left the back 5 acres untouched. We really didn’t have use for it so left it to nature. The problem is, no one told the wildlife. They like it just fine on the front five by our bird fountains and feeders, choosing to traverse our fences, utilize our lights at night and generally enjoy our hospitality. Is it possible that most of the people who make up these laws and regulations really don’t live on open property and observe wildlife? We’ve spent almost forty years observing here in this small piece of heaven. We, by our own free will, left half of our property untouched. Therein lies the difference. It’s not that most of us don’t care about wildlife. Government should respect our property rights. Groups who believe in the concept of wildlife corridors have the power of free speech in this country to try to convince any property owners of the rightness of this concept.

What is so dreadfully wrong, is that they use government as the strong arm of force to make people obey and give up their property rights. Whatever happened to Consent of the Governed? If we allow it to happen, we will be swallowed up in a costly sea of rules and regulations, with limited property rights. We will be considered squatters on our own land. It is up to each one of us to make our voices heard. Across our country, many people have awakened. Many plans such as this one have been completely abolished or changed in favor of more respectful documents that represent the rights of ALL citizens.