Out to change the law of the land - property rights movement - Cover Story

0 Comments | Insight on the News, May 17, 1993 | by Richard Miniter

The Maryland land rights battle, like that in many states, makes for strange bedfellows. The Maryland Private Land Rights Protection Act was introduced by Democratic state Sen. Frederick C. Malkus and opposed by urban Democrats and suburban Republicans.

The act was designed as "an alert" says Malkus, to warn government about the hidden costs of proposed land use restrictions. Since landowners who lose the use of their property often sue for compensation, overly restrictive regulations could, Malkus argues, place a surprisingly large burden on the state Treasury.

This legal development worries state and local governments, which administer most land use regulations. If even a small percentage of landowners sue and win, a government could be liable for tens of millions of dollars in damages. But Winegrad says that in his state, that concern hasn't materialized. "There's never been a successful regulatory takings case in Maryland," he says.

That's true, concedes Malkus, but state courts are increasingly following the lead of the US. Supreme Court. In February, New Jersey and Florida courts each awarded compensation for regulatory takings cases for the first time.

And the arguments both for and against the measure are sure to be heard in other state capitols and in the US. Congress, where similar bills were introduced in the Senate by Minority Leader Robert Dole of Kansas and in the House by Rep. Gary Condit, a maverick Democrat from California. Condit's bill has 61 cosponsors, and support is growing among rural Democrats and conservative Republicans. Dole's bill has 21 Republican supporters.

Although in many cases environmentalists are accustomed to being seen as the underfunded underdog, now they are taking on a small movement that receives virtually no support from major industry or large foundations.

Of course, that's not the way environmentalists are spinning it. "An increasingly militant property rights movement ... is poised to reverse decades of environmental progress," writes Harris in the Sierra Club's newsletter. In a related article, Harris writes: "Nationwide, a coalition of development interests, oil and gas companies, and timber interests have formed what is called the wise use movement, which on the surface appears as a grassroots backlash to environmental protections. The grassroots, however, are extremely well-funded by industry groups." Nothing could be further from the truth. In fact, as an example, Harris cites as a "major national group" the Fairness to Land Owners Committee.

Committee leader Reigle does not pay herself a salary, answers her own phone and counts on an array of volunteers, including public interest lawyers and former regulators, for assistance. The group's single largest contribution was a1,500 donation from a local bank to cover travel expenses to a government wetlands hearing. Of the more than 12,000 members, Reigle says, only about 500 actually contribute money -- an annual average of about $27 each. "Some people can only afford $5," says Reigle, so she sends out her newsletter (which costs $25 a year) on a prorated basis. She says she still hasn't made back the more than $4,500 she invested in a computer, fax modem and other office equipment. And when she gives speeches across the country, she is lucky if she is reimbursed for her travel expenses. "I spoke at the Maryland Forestry Association, and they gave me a wooden duck," she says.