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The "Hammer
to the Head" of Local Officials
For
the last five years, the National Association of Homebuilders (NAHB)
takings legislation that would make a federal court case out of every
local land use dispute and, in the words of a NAHB lobbyist, "put a
hammer to the heads" of local officials. Working closely with
organizations such as the National League of Cities, the National
Association of Counties and the International Municipal Lawyers
Association, CRC has helped educate local officials around the country
about the threat posed by this legislation. Thus far, these efforts
have paid off: the NAHB's bill has never come up for a vote on the merits
before the U. S. Senate. The
American Planning Association's Growing Smart Project:
The American Planning Association's Growing
Smart Project is a federally-funded effort that responds to
a universally-recognized need to revise outmoded planning
statutes in many states. This critical effort was threatened,
however, by developer-lobbyists, who successfully lobbied
for insertion of extreme takings provisions into draft model
code chapters. The NAHB spent large sums paying lobbyists
to ensure that the APA listened to their views on every provision
of the Growing Smart model code. The local government community
did not have comparable resources to devote to the project
and, as a result, their voices were not being heard.
CRC has successfully intervened into this process by assisting
the International Municipal Lawyers Association (IMLA), a
member of the Growing Smart Directorate. Concerns raised by
IMLA, CRC, the Environmental Law Institute and others were
the focus of two Directorate meetings at which the most obviously
flawed portions of the model code have been deleted. With
these dramatic changes, the Growing Smart model codes have
emerged as a viable alternative to outmoded planning statutes.
Oregon
Measure #7: The Monster that Might Eat Metro Oregon
is hailed nationwide as a leader in smart growth and effective land-use
planning. It was thus shocking in November 2000 to see Oregon voters
approve Ballot Measure 7, a radical takings measure that would require
compensation for any law or regulation that reduces property value.
If Measure 7 ever goes into effect, it will effectively repeal Oregon's
innovative and powerful land use and environmental safeguards. The
passage of the measure shocked even the measure's proponents, who
professed to be promoting the measure simply as a way of "starting a
conversation" on property rights. While Measure 7
was immediately challenged and invalidated in court, its passage should
serve as a wake-up call to proponent of environmental protection
throughout the country. CRC has used passage of Measure 7 as a
vehicle for educating local officials around the country about the threat
posed by takings initiatives, and the steps necessary to defeat these
measures where they arise. For examples, CRC prepared and widely
distributed a lengthy analysis comparing the successful efforts to defeat
prior ballot measures in Washington and Arizona with the unsuccessful
effort to defeat Measure 7. CRC also organized a discussion on this
topic attended by hundreds of municipal lawyers from around the country at
the annual seminar of the International Municipal Lawyers Association. To
read an editorial about land rights in the Northwest by Douglas Kendall,
CRC's Executive Director, click here. Balancing
the Scales at the American Bar Association
Finally, developer lawyers also recently
worked to obtain American Bar Association (ABA) approval of
reforms that would gut many smart growth initiatives.
Development interest control several important American Bar
Association sections and these sections recently hosted a
"retreat"
designed to establish "consensus" on necessary reforms
to takings law. Remarkably, as
documented by Timothy J. Dowling in a National Law Journal
piece, not a single representative of the state and local
government community was invited to contribute to this consensus.
CRC invited itself to this retreat on behalf of the local
government community and, subsequently, has succeeded in derailing
the developers' ABA initiative (to read the comments of Timothy
J. Dowling, CRC's Chief Counsel, at the retreat, click
here). CRC rallied state and local government groups,
environmental organizations and the planning community to
oppose the developers' recommendation for changes to land
use law and, in response to this opposition, the ABA shelved
the developers' proposal indefinitely at a recent national
meeting. Click here for the
ABA Meeting minutes.
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