Matthew Carolan is executive editor of National Review.
For additional information, contact the Civil Property Rights Associates, P.O. Box 202, Brightwaters, NY 11718, (516) 665-2020.
Circling the corner of Doe Run in Manorville, New York, my guides and I came across a young married couple discussing with their landscaper the finer points of decorative rock gardening. Just another idyllic day here on the East End of Long Island, it seems, a stone’s throw from the lovely Peconic River.
Right behind the couple’s home, however, stands a large parcel of land, which belongs to Gloria Hendricks, a Manhattan resident. Ms. Hendricks will never be able to do rock placement with her landscaper, though, or even cut down a pine tree on her property. Despite being in the same neighborhood, in the same ecosystem, and on top of the same aquifer as her neighbors, an environmental emergency has led to the suspension of her property rights, in a display of public policy that can only be compared to a parousia.
A parousia is, biblically speaking, a phenomenon where one will be taken, the other shall be left behind. Translated into land-use terms it means some will be allowed to build or get bought out, others won’t. Translated into constitutional terms, it means a violation of equal treatment under the law.
Take Doe Run, for example. My guides and I observed several choice building plots for sale, next to beautiful new homes currently valued at around $300,000.
Indeed, all sorts of parousia-like exceptions have been made for certain people in the Pine Barrens. Certain town parcels, school districts, and large real estate developers’ plots have been magically declared out of the ecosystem; market-value cash payments have been made to other large corporate landowners; and cash- strapped landowning boy scouts have received big checks in photo-ops with the governor, and disappeared without a complaint.
Meanwhile, other landowners, many of them elderly, get no cash, no exemptions, and have no place to go.
These small landowners are the victims of years of regulatory warfare waged on them by their government. It started to reach critical mass back in the early-to-mid-1980s, when the first newspaper articles appeared touting the importance of the Pine Barrens aquifer, a water supply, it is alleged, threatened by development on the East End. What’s more, lawsuit after lawsuit came from environmentalist visitors to the island, to protect the open space or viewshed, and the dwarf pine, the harrier hawk, and the buck moth.
The end result of all this agitation, spearheaded by the Long Island Pine Barrens Society, has been the passage by the state of New York in 1993 of the Long Island Pine Barrens Preservation Act. The act has been sold as essential to protect Long Island’s drinking water. That is not true. Studies by consultants to the Suffolk Water Authority have shown not only that one-acre development throughout the county could occur with no damage to the water supply, but also that there is another lower glacial aquifer that is virtually incorruptible and can supply the county for centuries. (There are also options like private water rights and markets, which no one seems to have explored.)
The landowners have no representative on the newly created Pine Barrens Commission, an unelected body comprised of the supervisors of the three major East End towns (Riverhead, Southampton, and Brookhaven), the Suffolk County Executive, and a representative of the governor. Some of those members rarely attend the meetings, sending subordinates instead, all the while coordinating with technocratic zeal the massive project of eliminating development in the Pine Barrens—even though they have never read the entire Pine Barrens law. They also rely on the town boards, many of whose members also have never read the two-inch thick document to upzone the land; that is, increase the minimum number of acres that any home must be built on, to reduce its value, and thereby reduce the compensation due landowners, in cash (unlikely) or payment in dubious transfer of development rights. Meanwhile, the landowners pay taxes on the original pre-zoning value of the land, and those taxes are regularly raised by the towns.
As a political official I’m often invited to regulatory seminars, says Gary Vegliante, Republican mayor of Westhampton Dunes, and one of the few politicians critical of the Pine Barrens legislation, and you’ll hear government agency officials, regardless of their political disposition . . . get up there and say, ‘well, upzoning is an excellent way of reducing the value of an area, and later if you’re looking through the condemnation process you’ll acquire it more cheaply.’
Not that condemnation is an option here. Transfer of development rights is the vogue because, as Suffolk County planner Lee Koppleman advised back in the 1980s, condemnation means ceding control over the fair market value to a judge, exactly what the cash-strapped county does not want.
Indeed, on two occasions the county has raided sales-tax monies set aside for cash compensation to the landowners to balance its budget—once under a Republican, once under a Democrat.
The county has also picked up many parcels of land of dead people, or by tax default, or by sheer exhaustion. Russell Furia, who had signed contracts worth millions for the development of his 75 builder’s acres, saw landowners across the street from him protected from upzoning and regulation, while he ended up pleading with county planners to develop 30 houses. Then 12, on two-acre plots, and again on one-acre plots, both times with land donation. Then one—with land donation. Each time he was told no. They knew they had him over a barrel; he couldn’t afford the taxes for long. After ten long years he sold out to them at what he estimates was a total loss.
Edwina Foster tried to complain. She, two sisters, and a brother, who were left land by their grandmother, put up a sign denouncing the zoning law changes, tax hikes, arbitrary applications of state law, and the dubious transfer of development rights—the Pine Barrens Land Theft—that had deprived them of their familial compound. For that sign they were called into court for violating the zoning law.
I have personally met some of the landowners—a handful of feisty elderly people, members of the Civil Property Rights Associates. So desperate are they for help that they drove over an hour to a diner near my home to talk with me. One nonagenarian, who has battled the county for decades, had wanted to come too, but the others feared for his health. They have scraped together everything they have for a suit which at this writing is in federal court. Some of them talk wistfully about the Suitum case, hoping that it will mean the end of transfer of development rights. Perhaps then, the motley band of environmentalists, craven politicians, and snobby anti-growth types will measure their own passionate version of the public good against the Framers’ demand for cash compensation. But right now these poor folks have virtually nowhere to turn. I’m not sure what I can do—except tell every person I know about this tyranny.