However, I think your evaluation that this avoids the nittygritty urban question with regard to specifics is a fair one, but I think the committee believes that there was already sufficient mechanisms and programs involved in urban planning, albeit nobody thought they were successful now that there is just no need to structure any more urban planning programs. I think that summarizes it fairly. I think that was the feeling. Thank you. Mr. HARTRAY. Our concern with the urban programs is that they have not created a concerted planning effort in the metropolitan area. They had been involved in specific communities often working at cross purposes. Mr. STEELMAN. Mr. Symms. Mr. SYMMS. No questions, Mr. Chairman. Mr. STEELMAN. Mr. Hartray, I do thank you for your statement. Let me just say on this final point that we have also made an effort to stay out of areas that are of purely local concern. In most cases those are areas of purely local concern. We do want to leave those decisions to local governments. Thank you. Mr. HARTRAY. We really feel that we need the States' help. The final witness is Mr. Donald Pach, who is with the Pacific. Legal Foundation. Mr. Pach, as I said previously, I thank you for your patience. You are the last one, by no means the least one. I would ask you, if you would, to summarize your statement, hopefully within 5 minutes. We do have a full copy of your text. Absent objection, it will be included in full in the record. STATEMENT OF DONALD M. PACH, PACIFIC LEGAL FOUNDATION Mr. PACH. Thank you, Mr. Chairman, and members. It is a pleasure to be here, an honor to be here. I am from Sacramento. I thought I would tell you a little bit about myself. I am an attorney, hopefully not one of the shady ones Mr. Steiger talked about. I have been in practice in land use and eminent domain law for the last several years and have experienced in the course primarily in litigation. The Pacific Legal Foundation is a public interest foundation consisting of lawyers who engage in litigation involving land use. We are involved in all sorts of cases involving no growth, involving downzoning, involving the Clean Air Act, involving the Coastal Zone Commission and we have a number of cases which we would be happy to give this committee case histories of, should you request it. I could go on and list a bunch of horribles and stories of people who have suffered substantial adverse effects but I do not think that I wish to do that at this time, but if the testimony is needed, we would be happy to submit it in writing. Our primary concern is not necessarily, although we treat it as an important point, it is not necessarily the private property owner who has been adversely affected. We are more concerned with the broader issue, the issue of the taxpayer-consumer, the citizen, the 52-052-75-17 person, the employed, the unemployed, the person who needs adequate housing. We are concerned with those and we think that the economics of what strong land use regulations will create are pervasive and very far reaching. This is the subject that we wish to address today, namely the question of the property rights and taking issue. Our experience has indicated that unless some kind of compensation provision is contained in this bill, the guidelines and the regulations and decisions affecting matters of more than local concern, will indiscriminately limit the use of private properties without carefully weighing the consequences to the individual and society as a whole. I wish to make one point. I think that this is an extremely important point-that omitting provisions for compensation in this bill does not make the regulatory system any less costly. The cost is the same as an allocation, those costs that we are talking about. It only makes it less costly to the Government and more costly to the individuals that are the victims. We are aware of the provision that indicates that nothing is intended to make the bill unconstitutional. This is a statement that could be in any bill. The problem as we see it, what happens here is that this proposed bill leaves it to the courts. As a lawyer I come here to testify that the courts have been grossly inadequate to the task. They have given us no fixed formula. They have been playing around with this distinction of police power and eminent domain and trying to find where that fine dividing line is. The results have been a great deal of uncertainty and unpredictability in the law. Professor Van Alstyne is a recognized authority in this field, and in a recent law review article indicates that "With some exceptions, the decisional law is largely characterized by confusing and incompatible results, often explained in conclusionary terminology, circular reasoning, and empty rhetoric." In short, Mr. Chairman, it is a matter of confusion. Mr. Steiger asked about the taking issue in what case history is that indicates that zoning could be a taking. I can report to you that there are cases that say there is a taking, there are cases that say it is not a taking. The cases are inconsistent from State to State and even inconsistent within the States. The thesis for compensable regulation is not a unique one. It is a thesis that has well respected support from the vast majority of the legal scholars in this field. We are not submitting or suggesting anything that is new or innovative or novel. What we do oppose is the concept in the Rockefeller Foundation book. The use of land in that concept is that it is socially desirable to force individuals to absorb losses which will occur in a quest for a better environment through land use controls. They suggest tough new restrictions. should be effected without payment by government. We oppose this proposition. The law is well established. The fifth amendment guarantee against confiscation of private property was designed to prohibit the Government from forcing people alone to bear public burdens which with all fairness should be borne by the public as a whole. Another point that I think is important is the point that the second to the last witness approached, he said that he had doubts that constitutionally it could be done to go beyond the police power. With this proposition we disagree. This Congress has seen fit to go beyond the policepower, in instances where highways and other public projects have caused relocations that created tremendous hardships and where Congress decided to pay even where the courts would not require it. Another one, which, I think, is rather anomalous is the so-called Lady Bird Act of 1965, where it was decided under the Scenic Easement Freeway Act that, well, the suggestion was made, "Why do we not let the States handle it in their own way under their own police power?" If some States require it to be paid, they can pay it. If some States require it will not be paid, then they use their police power. Let, Congress decided, irrespective of the fact that it could be bought or not bought, depending on the laws of the State, this Congress was going to require that scenic easements be purchased without any resort to police power. Senator Muskie of Maine underlined this in his philosophy where he said that: "It has been my belief developed out of these hearings that whenever an individual suffers a loss because of some broad public benefit or broad public interest, that public interest also requires that that loss be compensated." If we cannot sustain that kind of concept in the public interest, then I would say the public interest ought to be reviewed. The anomaly in this is an examination of what is happening in the California coast. The California coast, the Coastal Zone Commission has denied use of property where it will interfere with the view of individuals who will look to the ocean. In other words, under the policepower the Coastal Commission has seen fit to try to prevent development and protection of the scenic view. Yet, on the same coast in the same area that the Coastal Commission is operating in, the State Department of Transportation is out buying scenic easements under the 1965 act. This is crazy; it is inconsistent, and it contravenes all rational explanation. What we are saying in essence is that compensation is not a unique thing. It is something that has been established in the British system since 1909. In California's State land use bill that was not passed last year under Assemblyman Creola it had compensation mechanism in the act. I understand that there are other proposed bills in the country that have similar provisions. While it is fair to protect individuals from severe losses, it is also fair to prevent windfall profits as a result of regulation. However, we do not think that the two concepts are interdependent. In other words, the windfall should not equal the wipeouts. It should be treated separately and fairness should be applied in both instances. We have listed in the remaining part of my statement the policy reasons why we feel the compensation should be implemented I do not intend to go into them. They speak for themselves. We do suggest, however, that there is a method to prevent this equilibrium that can occur as a result of an implementation of this act. We do not think that the compensation mechanisms that could be implemented in this would not change in any way the typical type of zoning ordinances. We think that the compensation aspects of this should apply to those cases where government is acting in a public enterprise situation. That is, government is seeking to enhance governmental resources such as scenic easements, making a better view for those who drive down the highway. Those who drive down a highway should pay for it. We do not think that every diminution and loss of land by virtue of government acting as an arbiter-in other words, where the purpose of the zoning is to create a homogenous grid system within a setting, that the typical traditional zoning should be left alone. But where the act requires a public enterprise enhancement type of thing, then it is very similar to any other governmental project, namely, air easements over property are very hard to distinguish between view easements over property. The effect on the landowners the same. And we submit that legislation can be adopted to include in this bill what would go beyond a mere statement that private property should not be taken on constitutionally. Thank you for this opportunity. [The prepared statement of Donald M. Pach follows:] STATEMENT OF DONALD M. PACH, PACIFIC LEGAL FOUNDATION The Pacific Legal Foundation is a public interest legal foundation established for the purpose of engaging in litigation to protect the public interest. It has been deeply involved in a number of cases on the trial and appellate levels involving current land use issues which are surfacing as new and innovative land planning and regulatory controls are implemented. Such cases involve, for example, time sequential controls, open space and environmental regulations, down-zoning, clean air regulations, etc. A growing number of instances are being brought to our attention where severe financial hardship has occurred due to the regional planning and regulatory activities of California's Coastal Zone Commission, the Tahoe Regional Planning Agency, and even local agencies which have adopted state mandated open space zoning laws. If the Committee wishes, we could supply case histories upon request. The Pacific Legal Foundation considers this bill (H.R. 3510) to be of special significance in that it involves yet another level of governmental involvement in the ever increasing proliferation of land use regulations for environmentally sensitive areas. Our experiences indicate that unless compensation provisions are contained in this bill, the guidelines and regulations in decisions effecting matters of more than local concern will indiscriminately limit the use of private properties without carefully weighing the consequences to both the individual and society as a whole. Absent such a compensation mechanism, necessary accountability will be lost in the broad application of the police power. The interests of the Pocific Legal Foundation in this bill are not to aid those committed to land speculation or private gain. Nor are we solely committed to environmental enhancement over all other considerations. We do speak to protect the citizens-taxpayer, the consumer, the worker, the nonworker seeking employment, and those in search of adequate housing; in short, the person who usually is expected to pick up the tab for governmental programs. Omitting provisions for compensation does not make the regulatory program any less costly. It only makes it less costly to the government and more costly to the individuals who are its victims. We are not unmindful of the provision in this bill which requires the State program to give: "consideration of the impacts of the State land use program on the rights of private property owners." The proposed legislation would leave it to the courts to determine if the regulation is proper under the police power or violates federal and state constitutional principles, i.e., constitutes "a taking." Unfortunately, no fixed formula has been established to test the distinction between police power and eminent domain, and because the courts have elected to treat the problem on a case-by-case basis, there is a good deal of uncertainty and unpredictability in the law. The courts have largely centered their discussions around the question of whether or not a property right exists. A new of the better decisions have forthrightly recognized the social and policy implications by deciding the appropriateness of compensation first and then establishing that there is or is not a property right.' In essence, such decisions have recognized whether there is a property right or not is really the question to be answered. Professor Arvo Van Alstyne in a University of Southern California Law Review article stated the inadequacy of our judicial handling of the problem as follows: "Judicial efforts to chart a usable test for determining when police power measures impose constitutionally compensable losses have, on the whole, been notably unsuccessful. With some exceptions, the decisional law is largely characterized by confusing and incompatible results, often explained in conclusionary terminology, circular reasoning, and empty rhetoric. Even the that each case must be decided on its own facts. In part, this state of affairs judicial precedents is impaired by the frequently reiterated judicial declaration modicum of predictability which might otherwise inhere in the pattern of may be attributed to the amorphous nature of the legal dilemma posed by the need to balance the interest in social control against the interest in distributive justice. But, in part at least, it also reflects the absence of a generally accepted theoretical rationale for circumscribing the boundaries of the police power, as well as the persistent reluctance of legislatures to provide statutory guidelines or criteria for the resolution of the issues thus posed." 2 Professor Van Alstyne then went on to urge that legislators stop experimenting with harsh land use regulations, leaving it up to the courts to bail out the property owner. It was his suggestion that statutes set forth compensation provisions. The thesis for compensable regulation (with varying degrees of support) has received the overwhelming concurrence by respected and recognized legal authorities in the field of land use law. There have been demands by some for stronger dosages of broad application of the police power. In the Rockefeller Task Force report "The Use of Land" it recommended that courts should rule that individual landowners should bear the effects of "tough new restrictions" without payment by government.3 This proposition assumes that it is socially desirable to force individuals to absorb the losses which will occur in the quest for a better environment through land use controls. We oppose this proposition. The law is well established that the Fifth Amendment guarantee against confiscation of private property was designed to prohibit government from "forcing some people alone to bear public burdens which in all fairness and justice, should be borne by the public as a whole...." Since it is the public which will benefit, it is only fair that the public fund it. Even if the courts would tolerate it, it still may not be the best policy to sacrifice the individual for broad public resource enhancement. Relocation assistance and highway beautification are but two examples of governmental decisions to pay, even though the constitution may not require it. During the hearings in 1965 concerning the decision of whether scenic easements along freeways should be purchased or the same objective achieved through uncompensated zoning, Senator Edward S. Muskie of Maine stated, "It has been my belief, developed out of these hearings, that whenever an individual suffers loss because of some broad public benefit or broad public interest, that the public interest also requires that that loss be compensated for. If we can't sustain that kind of concept in the public interest, then I would say the public interest ought to be reviewed." Some have argued that society cannot afford to pay for strong conservation controls. In answer to this proposition, we ask whether society can afford to have a system under which it is unwilling to finance governmental programs under conditions of full compensation? 1 United States v. Willow River Power Co., 324 U.S. 499, 502-503 (1945). 2 Van Alstyne, Taking or Damaging by Police Power: The Search for Inverse Condemnation Criteria, 44 So. Cal. L. Rev. 1 (1971). 3 The Use of Land: A Citizen's Policy Guide to Urban Growth, The Rockefeller Brothers Fund (1973) at 145-146. Armstrong v. United States, 364 U.S. 40 at 49 (1960). |