It seems every decade or so, some version of a process gets going to reconsider land use regulations and zoning code in an East End town. In East Hampton Town currently, we are in the midst of the most recent of these code change evaluations, inching along for over a year now, with a first set of recommendations presented to the public on May 7, and tweaked further on July 16, at Town Board Work Session meetings.
How the Zoning Code Review Process Has Progressed So Far...
As a refresher: after nearly two years of awareness building and advocacy work by Build.In.Kind/East Hampton, including the April 17, 2023 "Open Letter" we wrote that has been signed by hundreds of citizens/residents asking for change, in May, 2023, the East Hampton Town Board agreed to begin a formal process to reassess the town zoning code and to consider amendments for adoption.
As part of that, the Board voted unanimously to establish the Zoning Code Amendment Working Group (ZCAWG) to undertake the review and to bring recommended changes and enhancements to the Board and the public for consideration. I was asked to be a part of the working group, and presently I am one of 11 members overall, eight of whom work directly for the town. (N.B.--I have much respect and gratefulness for Deputy Supervisor Rogers who, at the time, was the one Board member willing and wanting to take up and lead on this complex and sometimes controversial issue.)
It seems that every decade or so, some version of a process gets going to reconsider land use regulations and zoning code in an East End town. Currently, in East Hampton Town, we are in the midst of the most recent of these code change evaluation processes
The recommendations presented on May 7 emerged from months of study, discussion and idea generation among the ZCAWG per the direction steered by the head of the Planning Department and the Town Board Deputy Supervisor. Though the proposals were not always the result of unanimous agreement, all members worked together in good faith to refine what a majority of working group members endorsed.
Along the way over the last year, during Town Board meeting "liaison reports," Deputy Supervisor Rogers, who is leading the working group and this zoning code review process overall, has been briefing the public with short summaries of where ZCAWG was focusing its attention, e.g. considering the "Purposes" of zoning, reviewing the dimensional table, addressing code "loopholes," looking at what parts of a house structure should be counted, etc.
As described publicly, the focus of the working group shifted part way through in late 2023, from what had been briefed to the public to be a comprehensive reconsideration of the entirety of what is known as the "dimensional table" which is a central element of zoning code that encompasses the core land use metrics -- including the maximum house size (GFA) formula, building and total lot coverage ratios, building heights, as well as minimum setbacks -- to a more narrow process to close what could be characterized as key "loopholes" in the code. The goal of the ZCAWG was reframed at the May 7 meeting to focus on "counting what is actually built so that code can be effectively applied," as opposed to the question of house size and how to rebalance and evolve the code itself..
As described publicly, the focus of the working group shifted part way through, from a comprehensive reconsideration of the core land use metrics...to a more narrow process to close what could be characterized as key "loopholes" in the code.
In short, the working group's direction was diverted from the central consideration of "what is the appropriate scale of overall development across the entire array of lot sizes in East Hampton?" to ensure -- as is legally required of the town -- that the built environment (a) aligns with the objectives of the Comprehensive Plan as reflected in the Purposes of Zoning, and (b) addresses the imperatives of myriad current and emerging challenges such as water quality, environmental and affordability crises. Instead, the primary focus redirected to the question of "what structural elements should actually be counted in the calculation of house size?" -- specifically: should all or portions of garages and basements also be part of the calculation of house size, aka GFA?
It's important to note that BOTH of these directions -- "How big is a house?" and "How big should a house be?" -- are essential for the ZCAWG and the Town Board to address, and both should be well considered and actioned. But the key question becomes: can these two paths legitimately be separated from each other, or are they actually so intertwined that they must be or are best taken together, as opposed to apart? I can't say I have the definitive answer...
...But, zoning code is a complex system, and so many of its elements interact and impact each other; therefore, segmenting or staggering the process of zoning code review and revision is not without risk of a number of problems or complications such as legal challenges; ongoing uncertainty and lack of clarity for homeowners, new buyers, as well as for builders/architects; confusion for town departments and decision-making boards; and extended consumption of scarce town resources related to the extended process.
BOTH of these directions -- "How big is a house?" and "How big should a house be?" -- are essential... and both should be well considered and actioned. But the key question becomes: can these two paths legitimately be separated from each other...Zoning code is a complex system...therefore segmenting or staggering the process is not without risk of complications.
...And How the Real Estate Industry Has Responded So Far
Now that the first set of recommendations has been put forth for consideration in a transparent forum during Town Board meetings, public discourse about the specifics as well as the broader issues, has begun in earnest, and we anticipate the debate will continue to take shape and intensify over the weeks and months ahead. We expect, and hope, those who represent all of the important constituencies will engage and stay in the dialogue and thought processes for as long as this takes to reach decisions.
Public discourse... has begun in earnest, and we anticipate the debate will continue to take shape and intensify...We expect, and hope all of the important constituencies will engage and stay in the dialogue for as long as it takes.
Over the course of the year-plus the ZCAWG has been working away, quite a few members of the real estate industry -- though they have clear access to the members of Board -- have balked that they are not members of the working group, and about what they considered to be a limited transparency around the progress and direction of the working group. (For what it's worth, I would point out that on the other end of the spectrum, not a single individual involved in any of the important local or regional independent preservation and environmental groups was brought in to sit on or advise the working group.)
In addition, some assert that they are the people in this town most qualified to "fix" the code. Leaving aside the tempting but gratuitous "hen-house-meet-fox" cliches, it is disappointing that so far, none among this "we-alone-can-best-fix-this" real estate contingent has come forward publicly with any real and constructive proposal for change as a way to modulate the supersizing development trends that have been consuming our town of late.
It should not be overlooked that a few important local long-term builders have said out loud that they agree with some or many of the concerns that have been expressed by residents and the working group -- I am deeply relieved to hear them say that, and I hope that leads to some productive "common ground." But for now, most all of the real estate public commentary thus far has focused on disagreement with or opposition to the most material of the ZCAWG proposals, and a subset eschew the need overall to address the elements of the core dimensional table.
But the resistance and disagreement we are seeing now is not unexpected based on the history of how these things go...
It is disappointing that so far, none among the "we-alone-can-best-fix-this" real estate contingent has come forward publicly with any real constructive proposal for change as a way to modulate the supersizing development trends....But the resistance and disagreement we are seeing now is not unexpected based on the history of how these things go.
Through first-hand observation and the study of what has happened during other prior attempts to revise zoning code, not just in East Hampton, but also across other municipalities near and far, we see that whenever there is any movement to consider modulating one or more of the maximum allowable dimensions, particularly house size, components of the real estate industry complex (developers/builders/brokers etc), along with a small but vocal part of the population, unite to oppose the efforts. That opposition, more often than not, influences elected officials to adopt only modest incremental adjustments but refrain from making more significant or proactive change.
And each time, the same two basic arguments recur and comprise their outcry to support the status quo and block any material change:
The first of the opposition arguments is generally a permutation of "don't tread on my individual property rights."
The second is the blanket assertion that any change to land use code will tank property values and topple the local economy.
Whenever there is any movement to consider modulating one or more of the maximum allowable dimensions, particularly house size, components of the real estate industry complex unite to oppose the efforts...The same two basic arguments recur and comprise their outcry: The first is "don't tread on my individual property rights." The second is the blanket assertion that any change to land use code will tank property values and topple the local economy.
Indeed, at the May 7 work session, nearly 100 members of the local real estate industry turned out, with 20 or so rising to offer comments, for the most part critical of two or three of the core recommendations (particularly the proposed amendment to count 100% of "finished" basements). Many of the speakers did use versions of these two specific opposition talking points, as others in the audience applauded in agreement.
It is human nature to look through the prism of self interest, so indeed it's to be expected that many will focus primarily on what they think will be taken away from them (e.g. money and rights) rather than assessing the broader context and weighing potential benefits that might ensue from well considered and forward looking change and what might actually be gained rather than lost by residents and our community as a whole.
It is human nature to look through the prism of self interest, so indeed it's to be expected that many will focus primarily on what they think will be taken away from them (e.g. money and rights) rather than assessing the broader context and weighing potential benefits...and what might be gained by our community as a whole.
It's Time for Us to Dig Into the Accuracy of the Oft-Used Opposition Points
Given the enduring and persuasive effect of these oppositional arguments over the years, I thought it was time to take a thorough research-based dive into them to understand if there is validity to this recurring two-pronged argument:
Is it valid to argue that any moderation of the maximum dimensional allowances specified in the zoning code will trample the rights of individual property owners and be unconstitutional and "un-American"?
Is it true that reducing maximum allowable house size will devalue residents' property and/or limit any reasonable or robust appreciation into the future?
Or are these assertions really just red herrings, promulgated to scare residents and pressure boards into no action by a subset of real estate industry players and special interests who simply want to continue to extract more and maximum profits for themselves? All in, our multi-pronged analysis concludes that the real estate industry shibboleths are mostly myth.
Given the enduring and persuasive effect of these oppositional arguments over the years, it is time to take a thorough research dive into them...All in, our multi-pronged analysis concludes that the real estate industry shibboleths are mostly myth.
In the remainder of this piece, we address the opposition talking point related to individual property rights and how they intersect with the rights of others, as well as the interests, wellbeing and sustainability of the community as a whole. In a companion post we'll publish next week, we will deal in depth with our multifaceted analysis of what, if any, impact potential impact zoning code changes might have on local real estate values -- so stay tuned for that.
Analyzing "Opposition" Point 1 "But, my rights..."
The National Association of Realtors writes on its website "Any restrictions placed on a property owner from realizing the highest and best use of that property hinders economic growth and development and reduces freedoms inherent in our society." (Note the phrases "Any restrictions" and "the highest and best"....we'll come back to them in a bit.)
So we should not be surprised that many in the East End real estate industry --brokers, builders, investors, speculators and others-- rely on a broad proclamation of property right infringement as one of their two main arguments generally opposing changes to zoning code and land use regulations. To understand the validity or invalidity of this opposition argument, it's time to dive into the core tenets of private property rights overall.
A Brief (Very) Context of Individual Property Rights in America
Many categories of things can be defined as "property," but for the purposes of this blog, I am referring to rights and protections that revolve around the possession, use, enjoyment, and disposal of land.
I am no legal scholar, so I won't attempt a technical exegesis of the full history of property rights jurisprudence in the United States. However, here is a brief preamble as context for this discussion of individual property rights and how they are balanced with government's established responsibility and right to protect the "health, safety and welfare" of the public..
Few rights have been more prominent throughout American history than individual property rights: the notion has been intertwined with the story of America since the first Europeans arrived and during the colonial period. To this day, the topic can elicit fervent conviction or partisan screed, and opinion about the inviolability of property rights can vary widely across different regions of the county and political ideologies. In fact, if you want to get a sense of how heated and polarized this debate can be, take a scroll through the 604 reader comments posted online to the July 16, 2024 Wall Street Journal article "American Towns Are Rebelling Against Megamansions"
To go way back...The British and European colonists considered private ownership of property -- specifically securing the rights of owners against unjust seizure of their property -- to be "a birthright," extending back to the 13th century Magna Carta. In addition, John Locke’s theory of property, in chapter five of his Second Treatise of Government (1689) is documented to have had tremendous influence on the founders and the framers of the Constitution. Locke's theory, which he writes is rooted in "the laws of nature," identifies his justification for individuals to appropriate and exercise control over things such as land and other important resources. According to Locke, the three "natural rights" of life, liberty and property are possessed by man, not by virtue of man-made law, but, instead, he defines them as "ordained by God."
America’s colonial founders and settlers asserted that enduring protection of individual private property rights was the cornerstone not only of prosperity and personal independence and "central to the new American social and political order," but that property rights were the "guardian of every other right"and the foundation of freedom itself. At the time, property and liberty were perceived to be equally important and "inextricably" linked --that neither liberty nor property could exist without the other.
America’s colonial founders and settlers asserted that enduring protection of individual private property rights was the "guardian of every other right"and the foundation of freedom itself...property and liberty were perceived to be equally important and "inextricably" linked
But beyond the philosophical high ideals of liberty and freedom, the elevation of property rights was also strategic and tactical. It is important to keep in mind that the drive to "settle" North America was also a mission to exploit the economic potential of the "new world" and extract what seemed to be unlimited resources from the vastness of the land, so the apotheosis of individual property rights was essential to facilitate that: the notion of divine property rights both compelled and was a cornerstone of the settlers' drive for conquest. It is clear that many of those who came to America seeking freedom and liberty and to escape political and/or religious persecution in other places in the world were also in large part seeking wealth. Moreover, the framework of inalienable and sacred property rights provided settler-colonists a conceptual "justification" for their appropriation of Indigenous peoples’ territories in America from the 17th century onward. .
Though the drafters of the Declaration of Independence altered Locke's "life-liberty-property" triumvirate of "natural rights" to the "unalienable rights" of "life, liberty and the pursuit of happiness," the United States Constitution clearly protects property rights through the takings clause and the due process clauses of the Fifth and Fourteenth Amendments:
Per the Fifth Amendment: "No person shall be...deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
Per the Fourteenth Amendment: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Over the centuries that ensued beyond the founders and framers, a wide array of laws, regulations, court decisions, and agencies at both the federal and state levels have modulated and evolved -- primarily for the purpose of greater public good-- the monolithic singular view of completely unfettered private use of property. Legal precedent for the advent of "zoning" codes and regulations began to evolve out of the late 19th century period of industrialization and more formally at the very start of the 20th century. As such, Constitutional protections remain very much in tact, even as government can balance and regulate the use of private property, especially to promote the general welfare and prevent it from being used in a way that threatens public health and safety.
Over the centuries that ensued beyond the founders and framers, a wide array of laws...have modulated and evolved the monolithic singular view of completely unfettered private use of property...Constitutional protections remain very much in tact even as government can balance and regulate the use of private property, especially to promote the general welfare and prevent it from being used in a way that threatens public health and safety.
Property Rights and Zoning from the Perspective of New York State and East Hampton Town
I've addressed the need for appropriate balance between individual property rights and the legitimate rights of neighbors and the community several times in the past. As I wrote way back in my February 22, 2022 blog piece "Code Red" "...until these last few years, owners demonstrated the tacit understanding that building "as of right" comes with some responsibilities extending beyond their property lines. They seem to have understood that the value of their own property links inextricably to sustaining the town character and environment, and vice versa."
"...until these last few years, owners demonstrated the tacit understanding that building "as of right" comes with some responsibilities extending beyond their property lines. They seem to have understood that the value of their own property links inextricably to sustaining the town character and environment, and vice versa."
Build.In.Kind also embraces the concept of the “land ethic” – primarily attributed to the early 20th century American naturalist and philosopher Aldo Leopold. A land ethic does not deny or seek to nullify robust individual property interests. However, it compels the notion that ownership rights cannot be detached from stewardship responsibilities. It offers a set of values premised on caring for, rather than disregard of others; it asks that those individual rights and wants be balanced in the context of one's connection to the community and all its members. Importantly, the land ethic expands the definition of “community” to include not only humans, but all components of the land as well: soils, waters, flora and fauna. (You can read more about the concept of "land ethic" on the "Principles" page of this website.)
But aside from philosophy, our advocacy relies on the clear, rock solid, and long standing legal basis for pursuing and establishing balance between the rights of an individual and those of neighbors and the community. Though of course there are several important broad legal doctrines --among them substantive and procedural due process, equal protection, takings of property, and vested rights-- which strongly protect landowners’ interests, overall, the established definitions and purpose of land use regulation and zoning laws refer first and foremost to the concept of "balance."
A land ethic does not deny or seek to nullify robust individual property interests. However, it compels the notion that ownership rights cannot be detached from stewardship responsibilities....But aside from philosophy, there is clear, rock solid, and long standing legal basis for pursuing and establishing balance between the rights of an individual and those of neighbors and the community.
The principle of balance and protecting the community as a whole via the zoning code is core to the very definition of the purpose of zoning regulations as stated in East Hampton Town Code 255-1-11: "This chapter is adopted for the purpose of promoting the health, safety and general welfare of the people of the Town of East Hampton by regulating the uses of lots and lands and the dimensions, locations and uses of buildings and structures throughout the Town... in order to achieve the specific objectives, all of which you can read here.
Beyond just our own town, the overarching goal of zoning regulation is the protection of the greater good through the careful planning and governance of land development and use. The first paragraph of the New York State technical guidance document "Zoning Board of Appeals" states: "A zoning law is a community's guide to its future development. That is its purpose. It is not meant to be just another governmental intrusion, another bit of red tape to be untangled before the property owner can go ahead with his plans. The protections afforded residents and property owners within the community from undesirable development come from the restrictiveness of zoning."
"A zoning law is a community's guide to its future development. That is its purpose. It is not meant to be just another governmental intrusion, another bit of red tape to be untangled before the property owner can go ahead with his plans. The protections afforded residents and property owners within the community from undesirable development come from the restrictiveness of zoning."
Reading from the New York State key technical guidance document "Zoning and the Comprehensive Plan":
"New York requires that zoning be adopted in accordance with a well-considered or comprehensive plan. This requirement reflects both underlying constitutional considerations and a public policy that views zoning as a tool to plan for the future of communities. Over the years, the New York courts have defined the comprehensive plan to be the governing body’s process of careful consideration and forethought, resulting in zoning that is calculated to serve the community’s general welfare."
Focusing further on New York State law, quoting from the Pace Law School"Beginners Guide to Land Use Law" under the section titled "What gives your town or village the authority to regulate what is done with privately-owned land?
"Under the New York Constitution, the state legislature is authorized to adopt laws to protect the public health, safety, and general welfare of the people.The legislature has, in turn, delegated significant authority to regulate land use to the local level...Specific authority has been delegated to municipalities to adopt comprehensive plans and zoning laws and to adopt... site plan regulations under the Village, Town, and General City Law. General authority to legislate with regard to the public health, safety and welfare and the physical environment is delegated under the Municipal Home Rule Law..."
It continues:
"The critical role given to local governments in regulating land use involves them in a delicate act of balancing private property rights with the greater public interest...The planning and zoning enabling provisions of the Town, Village, and General City Law authorize local governments to promote the health, safety, morals, and general welfare of the community by regulating land development. This includes regulating the size and shape of buildings, the percentage of lots that can be covered by development and the location of buildings for various land uses...Zoning laws can also contain provisions regulating wetlands, steep slopes, soil erosion, and tree preservation, all enacted under this same authority."
"The critical role given to local governments in regulating land use involves them in a delicate act of balancing private property rights with the greater public interest..."
These NYS provisions and laws are in part based on broader jurisprudence and legal precedent that date back a century in US. Common law which has long recognized that certain uses of property were, or could be, so undesirable that neighboring landowners, or the community as a whole, had the right to request their termination. Thus arose the theory of nuisance. (Rohan, Patrick J., Zoning and Land Use Controls (1998))
Although governmental regulation of the use of property through zoning has expanded beyond common-law nuisance, a landmark United States Supreme Court case decided in 1926 upholding zoning, Euclid v. Ambler Realty Co., referenced traditional nuisance law as a foundation in determining whether government had the power to restrict the use of land by legislative act:
"Thus the question whether the power exists to forbid the erection of a building of a
particular kind or for a particular use, like the question whether a particular thing is
a nuisance, is to be determined, not by an abstract consideration of the building or of
the thing considered apart, but by considering it in connection with the circumstances
and the locality....A nuisance may be merely a right thing in the wrong place, - like
a pig in the parlor instead of the barnyard. If the validity of the legislative
classification for zoning purposes be fairly debatable, the legislative judgment must
be allowed to control" (Euclid v. Ambler Realty Co., 272 U.S. 365, 388 (1926).)
Quoting further from the NYS document "Zoning and the Comprehensive Plan:
"Early zoning enabling laws were fashioned with the view that zoning risked being declared unconstitutional because it had the potential to severely limit zealously-guarded property rights. (See Golden v. Planning Board of the Town of Ramapo, 30 N.Y.2d 359, 370, fn 4 (1972), app.dism. 409 U.S. 1003 (1972)) To safeguard against that outcome, the drafters required the actual regulations to be based on a logical and “comprehensive plan” for the betterment of the whole community.
"The function of land regulation is to implement a plan for the future development of the community....Its exercise is constitutional only if the restrictions are necessary to protect the public health, safety or welfare. The requirement of a comprehensive or well-considered plan not only insures that local authorities act for the benefit of the community as a whole but protects individuals from arbitrary restrictions on the use of their land."
"Early zoning enabling laws were fashioned with the view that zoning risked being declared unconstitutional because it had the potential to severely limit zealously-guarded property rights. (Golden v. Planning Board of the Town of Ramapo (1972)) To safeguard against that outcome, the drafters required the actual regulations to be based on a logical and “comprehensive plan” for the betterment of the whole community."
Legally, when municipalities/local governments amend or create new zoning codes and land use regulations, those changes cannot be "arbitrary" -- they must be grounded in comprehensive plans and emerge from a disciplined, rigorous, and analytical process and address the real needs and rights of and challenges faced by the community; the true objective of any changes proposed and adopted in East Hampton must be to ensure local land use and the built environment fully reflect the priorities of our Town Comprehensive Plan, and the Purposes of Zoning that derive from that plan.
So all in, there is no validity to a blanket oppositional argument that individual property rights will be infringed inappropriately by zoning code changes and that zoning code cannot or should not change or continue to evolve . Moreover, to argue, for example, that a maximum house size formula and its components cannot be rethought and adjusted --that it must be immutable and set in stone-- simply because that's what is in the code now, and that a number of people are deriving very big profits from the status quo, is the height of arbitrariness.
The true objective of any changes proposed and adopted in East Hampton must be to ensure local land use and the built environment fully reflect the priorities of our Town Comprehensive Plan, and the Purposes of Zoning that derive from that plan... So all in, there is no validity to the blanket oppositional arguments that individual property rights will be infringed inappropriately by land use regulation changes and that zoning code cannot or should not change or continue to evolve.
In particular, part of the legal balancing through zoning code of individual property rights with the rights and wellbeing of the broader community is that the profits that are derived by individuals from development must be looked at in the broader context of any benefits, as well as costs, resulting from those actions, that impact others. As legal scholar Christopher D. Stone reminded in 1972 "Every well-working legal-economic system should be so structured as to confront each of us with the full costs that our activities are imposing on society."
As many of you know, those broader economic impacts of "individual" actions on others are generally classified as "externalities" which is defined as "a side effect or consequence of an industrial or commercial activity that affects other parties without this being reflected in the cost of the goods or services involved."
As a quick refresher, per the IMF (our emphasis highlighted in green): "Consumption, production, and investment decisions of individuals, households, and firms often affect people not directly involved in the transactions. Sometimes these indirect effects are tiny. But when they are large they can become problematic—what economists call externalities. Externalities are among the main reasons governments intervene in the economic sphere....As a result, there are differences between private returns or costs and the returns or costs to society as a whole."
Pollution, for example. is one of the oft-cited examples of a negative externality. As the IMF explanation continues:
"In the case of pollution—a polluter makes decisions based only on the direct cost of and profit opportunity from production and does not consider the indirect costs to those harmed by the pollution. The social—that is, total—costs of production are larger than the private costs. Those indirect costs—which are not borne by the producer or user—include decreased quality of life; ...higher health care costs; and forgone production opportunities, for example when pollution harms activities such as tourism. In short, when externalities are negative, private costs are lower than social costs.
"When there are differences between private and social costs or private and social returns, the main problem is that market outcomes may not be efficient. To promote the well-being of all members of society, social returns should be maximized and social costs minimized."
Part of the legal balancing through zoning code of individual property rights with the rights and wellbeing of the broader community is that the profits from development must be looked at in the broader context of any benefits, as well as costs, resulting from those actions that impact others...those broader economic impacts of "individual" actions on others are generally classified as "externalities"
What is so interesting is that when it was written back in 2005, the East Hampton Town Comprehensive Plan was prescient and highlighted the likelihood of negative externalities resulting from private land use and unchecked development, and that the "costs" of private development will be borne heavily by others in the public and the community at large, as opposed to those who derive the profits of private development and land use. The Comprehensive Plan states front and center on page 1 of the 114-page document, , as follows (emphasis ours in green):
"Between 1990 and 2000, East Hampton was the fastest growing Town in Suffolk County and subsequent growth trends give reason to project this high growth rate into the future. Under present zoning, the number of dwellings existing in 2004 in East Hampton Town can increase by 33% and the year-round population by almost 50%.
"Accompanying this high amount and rate of residential growth have been pressures on East Hampton’s roads, schools, infrastructure in general, and the environment. Growth in traffic and school age population has increased at a greater rate than the population and number of new households. Growth in traffic compared to houses, for example increases at a ten to one ratio. In other words, for every new house, there is projected to be ten new car trips on the roads every day. Whereas Town-wide population in East Hampton increased by 22% between 1990 and 2000, enrollment in the East Hampton School District increased by 61% during this same time frame.
"Many studies document the fact that most residential development burdens the community with more expenses than the taxes it generates."
When it was written back in 2005, the East Hampton Town Comprehensive Plan was prescient and highlighted the likelihood of negative externalities resulting from private land use and unchecked development: "Many studies document the fact that most residential development burdens the community with more expenses than the taxes it generates."
Today, nearly 20 years later, an array of negative externalities related to increasing development and unbalanced land use are now explicitly documented and acutely palpable to most of us who live here -- and if they are clear to us, then indeed, they must be abundantly clear to all the members of the Town Board and all the members of the ZCAWG.
It's not only the unbearable and dangerous traffic, and the fact that it now will force the town to spend millions of dollars of tax payer funds to build roundabouts to accommodate evermore traffic, but it is the overuse of our ENTIRE town infrastructure related to development that results in multiple negative externalities, the enormous cost of which the residents and taxpayers will have to bear.
The aggressive and accelerating land use patterns pushed for the "best and highest" profit making of an exclusive set of investors, builders, developers and brokers is resulting in a slew of negative externalities: the severe undermining of quality of life, the accelerating degradation of ecosystems and loss of natural resources, the rapidly deteriorating water quality and overconsumption of water and energy, the despoliation of dark skies, the destruction of community character, historical assets and precious vistas, the threat to coastal and flood resiliency and community sustainability, and perhaps most of all, a crushing affordability crisis that is tearing the fabric of the community and undermining the viability of local businesses. All these negative externalities come at very high economic and wellbeing costs to the community.
Meanwhile, the aggressive and accelerating land use patterns pushed for the "best and highest" profit-making of an exclusive set of investors, builders, developers and brokers is resulting in a slew of negative externalities...all of which come at very high economic and wellbeing costs to the community.
The defenders of expanding development and those who are extracting the maximized profits like to assert generally that expanding development results in positive externalities of "economic growth." However, none have actually or legitimately quantified such potential benefit, or shown how the magnitude such benefits compare to the costs to the community.
Overall land use law specifically protects a property owner's ability or right to realize "reasonable use" and "reasonable returns" from the investment in their land. And they are protected from the government's "taking" of their land.
But, we have yet to find the thing that legally that protects a property owner or speculator's desire to extract maximum or extraordinary or "best and highest" profits, especially when that profit extraction creates meaningful negative externalities to the community and the taxpayers overall.
Overall land use law specifically protects a property owner's ability or right to realize "reasonable use" and "reasonable returns" from the investment in their land...But, we have yet to find the thing that legally that protects a property owner or speculator's desire to extract maximum or extraordinary profits, especially when that profit extraction creates meaningful negative externalities.
The concept of "reasonable use" and "reasonable returns" or "reasonable economic benefit" is addressed most frequently in one of the most important property rights legal standards known as "takings." To explain, here is the section entitled "Takings Law" from the New York State publication "Guidance for Local Governments" as follows (emphasis ours in green):
"The Fifth Amendment to the United States Constitution prohibits the taking of private property for public use without just compensation.(1) For many years, lawsuits over the Fifth Amendment's prohibition against taking private property without just compensation focused on the physical occupation or seizure of private lands by the government. Recent decades have seen the development of a different aspect of takings law called “regulatory takings.” Regulatory takings involve government regulations that eliminate all economically beneficial or productive use of private land.
"Generally speaking, land use regulations which restrict the uses of (e.g., zoning) or direct the way property is developed (e.g., site plan review, erosion and sedimentation laws, and subdivision regulations), are constitutionally permissible. In the 1926 case of Euclid v Ambler Realty (2), the United States Supreme Court ruled that zoning was a legitimate exercise of government power. Through zoning, landowners share the reciprocal benefits and burdens that come with the orderly development of land in the community. The fact that zoning regulations may lead to a reduction in the value of private property sometimes even a substantial reduction was not grounds for invalidating them. However, the Supreme Court noted that in an individual case, a zoning regulation as applied, could violate the protections provided in the U.S. Constitution.
"The basic rule for municipal legislative boards to know is that a regulatory taking occurs when government regulation is so restrictive as to prohibit all economically beneficial or productive use of private property.(3)
"In 1978, the Supreme Court decision in the case of Penn Central Transportation v. City of New York (4) established a standard of review now known as "whole parcel analysis" which is especially important for implementation of zoning laws, as well as environmental laws. Under whole parcel analysis, government regulations that prohibit development of a part of an owner's land will be upheld, where the owner is afforded a reasonably beneficial and economically viable use of the remainder of his or her land. The property owner's "bundle of rights" will also be examined by courts to determine whether the effect of the government actions is to deprive the owner an identifiable right to develop the property.
"Whether a regulatory taking has occurred depends upon whether the owner is deprived of all reasonable use of the property considered as a "whole." If, despite the regulations, the owner can economically use the remainder of the property, the property still has value and a taking will not have occurred. As an illustration, the municipality may have a zoning law that prohibits residential uses in a floodplain. While a property owner may not be able to place his or her home in a preferred location on the property, if the home could still be located on a different part of the property than next to a flood prone stream, a regulatory taking will not likely have taken place. To further our illustration, the owner of property in the flood plain may find there is no suitable land for a residential use, but the property may still be used for another permitted use, such as farming. If, on the other hand, a court finds that, as a whole, the parcel cannot be viably developed because of the regulations, a regulatory taking probably will be found.
"Municipal legislative boards should be aware that when a regulatory taking is found, the municipality cannot escape from paying damages to the injured property owner. In the case of Lucas v. South Carolina Coastal Council5, the Supreme Court rejected the South Carolina Coastal Council's contention that compensation is not required for a regulatory taking because the government acts to prevent uses that endanger public safety. The Supreme Court adopted a categorical rule that total regulatory takings, just like physical invasions of property, must be compensated. Government can only avoid paying compensation if the state's background common law of property and nuisance would have allowed it to prevent the activity anyway. It is important to note that the Court's decision applies only to those government regulations which are so severe as to constitute a deprivation of all economically beneficial or productive use of property (that is, "regulatory takings"). Such circumstances are rare. The Lucas holding's sole effect is to narrow the government's justification which may be set forth for such severe regulation.
"Courts will also examine the character of governmental action. Certain land use regulations permit an owner wide discretion in the use of land so long as off-site impacts are reduced. For example, performance zoning standards can be used to maintain open space, protect the integrity of wetlands and other environmentally sensitive areas, restrict tree cutting and control storm water runoff without limiting the uses to which the property can be put. Similarly, erosion and sedimentation laws can help prevent outflow and overspill following storm events, without impinging on a landowner’s right to use the land. Therefore, if the landowner can use the property in an economically viable and productive manner that does not cause the off-site impacts that the restriction is intended to avoid, a regulatory takings claim against the regulation will not succeed."
ENDNOTES
(1) The 14th Amendment makes the 5th Amendment applicable to the states. Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, 166 U.S. 226 (1897).(2) Euclid v Ambler Realty, 272 U.S. 365 (1922).(3) Agins v. Tiburon, 447 U.S. 255, 260(1980).(4) Penn Central Transportation v. City of New York, 438 U.S. 104.(5) Lucas v. South Carolina Coastal Council, 505 U.S.1003 (1992).
Bringing the issue of of reasonable use and reasonable return as they relate to individual property rights closer to home, it is interesting to look at how New York State Supreme Court Judge Farneti ruled in the 2016 law suite:
BONACKER PROPERTY. LLC 40 COOPER LANE LLC, JOSEPH ROSE, and RAJESWII ALVA. Petitioners,- against -VILLAGE OF EAST HAMPTON BOARD or TRUSTEES, PAUL F. RICKENBACH, JR., in his official capacity as Mayor of the Village of East Hampton, VILLAGE OF EAST HAMPTON PLANNING AND ZONING COMMITTEE and THE INCORPORATED VILLAGE OF EAST HAMPTON,
This action was brought by a group of East Hampton Village property owners who opposed some newly adopted changes to the East Hampton Village zoning code in 2015 making adjustments to the maximum allowable gross floor area and maximum allowable lot coverages permitted on parcels in excess of one acre. In particular, among other stated "causes of action," in their lawsuit, the petitioners asserted that their property rights had been violated and the zoning code changes constituted an "impermissible regulatory taking."
Here is how the judge addressed and ruled on these claims as part of his entire decision to uphold the Village's adopted zoning code changes:
"Petitioners' sixth and seventh causes of action allege that the amendments constitute an impermissible regulatory taking without compensation pursuant to the United States Constitution and the New York State Constitution, respectively. The eighth cause of action alleges that the amendments violate due process.
"The takings clause of the Fifth Amendment, made applicable to the states through the Fourteenth Amendment, provides that private property shall not be taken for public use without just compensation. "Governmental regulation of private property effects a taking if it is 'so onerous that its effect is tantamount to a direct appropriation or ouster' " ( Consumers Union of U.S., Inc. v State of New York , 5 NY3d 327, 357, 806 NYS2d 99 [2005], quoting Lingle v Chevron U.S.A. Inc., 544 US 528, 537, 125 S Ct 2074 [2005]).
"To state a substantive due process claim in the land-use context, a petitioner must allege: "(1) the deprivation of a protectable property interest and (2) that 'the governmental action was wholly without legal justification' " ( Matter of Ken Mar Dev., Inc. v Department of Pub. Works of City of Saratoga Springs , 53 AD3d 1020, 1024-1025, 862 NYS2d 202 [3d Dept 2008], quoting Bower Assoc. v Town of Pleasant Val., 2 NY3d 617, 781 NYS2d 240 [2003]; see Town of Orangetown v Magee , 88 NY2d 41, 643 NYS2d 21). "Only the most egregious official conduct can be said to be 'arbitrary in the constitutional sense' " ( County of Sacramento v Lewis., 523 US 833, 846, 118 SCt 1708 [1998]). Governmental regulation effects a per se regulatory taking only where the owner of real property has been called upon to sacrifice all economically beneficial uses for the common good, leaving the property economically idle ( Matter of Rent Stabilization Ass'n of New York City , Inc. v Higgins , 83 NY2d 156, 608 NYS2d 930 [1993]).
"To show that a non-possessory governmental regulation of property has gone so far as to constitute a taking, the property owner must show by dollars and cents evidence that under no use permitted by the regulation under attack would the properties be capable of producing a reasonable return; the economic value, or all but a bare residue of the economic value, of the parcels must have been destroyed by the regulations at issue ( Matter of New Cr. Bluebelt , Phase 4 , 122 AD3d 859, 997 NYS2d 447 [2d Dept 2014]; see also Kransteuber v Scheyer , 80 NY2d 783, 587 NYS2d 272 [1992]; de St. Aubin v Flacke , 68 NY2d 66, 77, 505 NYS2d 859 [1986]; Linzenberg v Town of Ramapo , 1 AD3d 321, 766 NYS2d 217 [2d Dept 2003]). Petitioners have failed to present with regard to any of their properties any "dollars and cents" proof that under no use permitted by the regulation under attack would the properties be capable of producing a reasonable return. The only evidence they have submitted is generalized and speculative claims of some overall reduction in value of lots affected by the zoning amendments which is far short of the requisite standard of proof.
"Finally, it is noted the zoning amendments are rationally designed to accomplish a legitimate purpose related to the public health safety and/or welfare, namely protecting the character and integrity of the Villages residential neighborhoods (see Big Apple Food Vendors' Assn. v City of New York , 228 AD2d 282, 644 NYS2d 216 [1st Dept 1996]). Accordingly, these causes of action are denied.
Bonacker Prop., LLC v. Vill. of E. Hampton Bd. of Trs., Index No. 15-12506, 10-11 (N.Y. Sup. Ct. 2016)."
So wrapping all of this up: yes, indeed everyone involved in the process of review and change to land use regulations must always be vigilant and work to ensure that legitimate, constitutionally protected property rights will not be infringed. But no, it is not credible for those who oppose change to assert unilaterally that any or all changes or modifications to zoning code will automatically run afoul of property owners' rights.
So wrapping all of this up: yes, indeed everyone involved in change to land use regulations must always work to ensure that legitimate, constitutionally protected property rights will not be infringed. But no, it is not credible for those who oppose change to assert unilaterally that any or all changes to zoning code will automatically run afoul of property owners' rights...Overall, there are rights to be protected and there are rights to be balanced...there's nothing "un-American" about that.
Overall, there are rights to be protected and there are rights to be balanced...there's nothing "un-American" about that. Or maybe we should say: "Zoning code is as East Hamptonian as clam pie."
Addendum:
Expanding Rights: Recent Initiatives to Establish Constitutional Environmental Rights of Citizens and to Ensure Rights of Nature and the Land Itself
The body of this lengthy blog piece has dealt with long-established rights of people: individual property rights as they relate to the rights of neighbors and the human community overall, and the rights of municipalities to regulate land use appropriately.
But while doing my research and reading in preparation for writing, I also came across articles about initiatives to expand beyond those established rights, specifically: to establish the rights of citizens to live free from harm caused by undue degradation of land and the environment, as well as to codify the rights for nature itself.
We haven't included these concepts in the core points of our analysis and thesis above. Still, these ideas and initiatives are timely, and understanding their intent adds interesting context and perspective about our local need to rebalance development through enhancements to zoning code.
Since I found these topics interesting, I thought readers here might, too... So I've added this addendum to review their development and current status and provided links for anyone wanting to learn more.
So I guess you can now say I've gone extra-long long form!
Over the last many decades, people near and far have become much more aware of, if not experiencing first hand, two ongoing and growing environmental crises:
deteriorating, harmful and toxic environmental conditions (such as pollution, contamination, deforestation, wildlife habitat destruction) as a result of past and ongoing nearly unfettered expansion of corporate and industrial activity; and
increasingly, more graphic and tangible climate-related conditions and events, including steadily rising and record-breaking heat; increase in span, frequency, and intensity of weather events; increases in flooding and accelerating erosion of shorelines; intensification of wildfires, as well as tracking and scientific projections of species die-off, and overall ecosystem and biodiversity collapse.
In this context, many individuals and organizations have come to feel that the existing framework of environmental protection regulations, laws and agencies have been insufficient, if not ineffective, at stopping accelerating environmental decline and at protecting people and places -- the belief has grown that environmental regulations alone have not delivered a sufficiently preventative approach to uphold what existing rights there are.
In particular, it is noted that for the most part, though the current environmental regulatory system may limit the degree to which nature, land and the environment can be polluted or degraded, nothing in place makes clear that nature and the land itself should actually have an explicit right not to be polluted and degraded or destroyed. There is a desire to not only limit how much humans can exploit nature, but instead to grant that nature itself has a right not to be exploited.
This has lead to a rethinking and reorientation and a need to shape innovative approaches across the disciplines of law, policy and sciences, giving rise to several initiatives to broaden and evolve the notion of individual property rights, in particular: who and what is entitled to have rights. These include:
The"Rights of Nature" movement
The initiative seeking what are known as "Constitutional Environmental Rights Amendments" also known as "Green Amendments."
Understanding the "Rights of Nature" Initiative....
What is known as the "Rights of Nature" movement has been developing for decades, both globally and within the U.S. "The doctrine holds that nature and its component parts are not 'things' or property, but living beings with intrinsic value . The idea is centuries old, having existed primarily in Indigenous and other land-based cultures"
The rights of nature initiative has focused in large part on shifting the legal framework from viewing nature as an object of commodification and extraction in order to develop legal recognition that ecosystems and individual species possess inherent rights, including to exist and regenerate. Rights of nature laws also seek to empower "guardians" with authority to enforce those rights, similar to the way legal guardians represent the interests of minors or people deemed incapacitated. [Cite]
From corporations to cargo ships, there are many non-human entities that have been recognized as having the status and legal standing of "personhood." "The concept of a 'legal person,' is an entity that can hold “standing” in the judicial system. Traditionally, this status has been reserved for human persons, community-based organizations, and economic actors like corporations." [cite] https://daily.jstor.org/legal-personhood-extending-rights-to-nature/
Therefore the question raised is "why not Nature? "Legal personhood of and for entities that are not characterised by human nature are also already mainstreamed in our legal systems... This increasingly leads many environmental scholars to question what the real difference between corporations and Nature is in terms of the ability to be afforded legal rights-based protections and feature in proceedings before a court. What is it that makes Nature less worthy of protection from arbitrary decision-making. Why should, for example, a corporation be able to claim its ‘Human Rights’ have been infringed by a ban on fracking without a balancing right of and for Nature?" [cite]
As explained by the Global Alliance for Rights of Nature, or GARN:
"For millennia, legal systems around the world have treated land and nature as property.' Laws and contracts are written to protect the property rights of individuals, corporations, and other legal entities. As such, environmental protection laws legalize environmental harm by regulating how much pollution or destruction of nature can occur within the law. Under such law, nature and all of its non-human elements have no standing.
"By recognizing rights of nature... a growing number of communities in the United States are basing their environmental protection systems on the premise that nature has inalienable rights, just as humans do. This premise is a radical but natural departure from the assumption that nature is property under the law.
"It is the recognition that our ecosystems – including trees, oceans, animals, mountains – have rights just as human beings have rights. Rights of nature is about balancing what is good for human beings against what is good for other species, what is good for the planet as a world. It is the holistic recognition that all life, all ecosystems on our planet are deeply intertwined....Rather than treating nature as property under the law, rights of nature acknowledges that nature in all its life forms has the right to exist, persist, maintain and regenerate its vital cycles."
One might read this description and see "rights of nature" as an off-the-grid or "radical" idea. However, the concept was identified and elevated in the U.S. by some prominent "mainstream" legal scholars more than 50 years ago. The notion was first brought to the attention of legal circles and the public relating to a lawsuit called "Sierra Club v. Morton" filed in 1969 at the United States District Court for the Northern District of California, and ultimately heard at the U.S. Supreme Court in November, 1971 and decided April, 1972.
In that case, the Sierra Club opposed the U.S. Forest Service’s collaboration with the Disney Corporation to build a huge resort in-- and a new highway and high voltage power lines leading to and through -- the remote Mineral King Valley, in California’s Sierra Nevada Mountains and located in the southern part of Sequoia National Park. The planned Disney complex would anchor what was envisioned more broadly to become a "mass recreational enclave" development in the Valley. Sierra Club brought a lawsuit seeking to enjoin the development on the basis of the extensive environmental harm it would do the Valley and its natural surroundings and environment.
Though Sierra Club won the case at the District Court, the Circuit Court on appeal overturned the decision and found Sierra Club to not have proper "legal standing" to bring the case, i.e. that the organization would not be affected directly by the actions of the defendants and so did not have the right to sue. However, at the Supreme Court, Serra Club argued that the project should be stopped based on the harm, not to the Sierra Club, but to Mineral King Valley directly -- basically making the novel case that the Valley itself should have standing itself as the plaintiff.
In response to the pending case, an influential legal scholar/law professor named Christopher D. Stone wrote a 50-page law review article in 1972 called
"Should Trees Have Standing: Toward Legal Rights For Natural Objects" in which he proposed and built the legal thesis for giving legal rights to nature. Noting "The world of the lawyer is peopled with inanimate right-holders: trusts, corporations, joint ventures, municipalities, Subchapter R partnerships, and nation-states, to mention just a few," he went on to say:
"Throughout legal history, each successive extension of rights to some new entity has been, theretofore, a bit unthinkable"...The fact is, that each time there is a movement to confer rights onto some new 'entity,' the proposal is bound to sound odd or frightening or laughable. This is partly because until the rightless thing receives its rights, we cannot see it as anything but a thing for the use of us-- those who are holding the rights at the time.
"The reason for this little discourse on the unthinkable, the reader must know by now, if only from the title of the paper. I am quite seriously proposing that we give legal rights to forests, oceans, rivers and other so-called 'natural objects' in the environment-indeed, to the natural environment as a whole.
"Wherever it carves out 'property' rights, the legal system is engaged in the process of creating monetary worth...I am proposing we do the same with eagles and wilderness areas as we do with copyrighted works, patented inventions, and privacy: make the violation of rights in them to be a cost by declaring the 'pirating' of them to be the invasion of a property interest."
Though the legal joural article appeared half a century ago--it was ahead of its time and strikes as even more relevant today. Though I cannot do justice to this scholarly work here in citing a few paragraphs from among the 50 pages, if you are interested in this topic, here is the link to the entire article should anyone want to read more.
The Supreme Court ultimately ruled 4-3 against the Sierra Club, also declaring it did not have standing as a plaintiff. However, Justice William O. Douglas penned a dissent, in part, relying on Stone's article in crafting it. (Born in 1898 and appointed to the Supreme court by FDR in 1939, he remained on the Court for 36 years and 7 months, making him the longest serving Associate Justice. Beyond Douglas’s role as a Supreme Court Justice "perhaps his most important and enduring contribution was as a citizen-activist fighting to conserve and protect wild places and natural areas across the country from exploitation and destructive development." [cite]
Specifically in his dissent re: Sierra Club v. Morton, Justice Douglas argued that nature itself should have legal rights that our courts can protect. He pointed out that “both corporations and ships had long been parties in litigation, despite being artificial and inanimate. So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life...
"The voice of the inanimate object, therefore, should not be stilled. That does not mean that the judiciary takes over the managerial functions from the federal agency. It merely means that, before these priceless bits of Americana (such as a valley, an alpine meadow, a river, or a lake) are forever lost or are so transformed to be reduced to the eventual rubble of our urban environment, the voice of the existing beneficiaries of these environmental wonders should be heard."
You can find the full text of his dissent here, starting about 1/3 down the page.
Beyond the case in 1972, the rights of nature movement has been developing for decades, "globally in legislation, judicial rulings and constitutional amendments in countries that include Canada, Mexico, France, Colombia, Pakistan, Bangladesh, Bolivia, India, New Zealand, Ecuador and Uganda. In the United States, rights of nature laws have taken root in more than 30 localities across the country, in, among other states, Ohio, Colorado, Pennsylvania, Minnesota and Florida." Mostly local ordinances, in the U.S.these laws face obstacles especially because by precedent, local government ordinances and lawsuits are subordinate to state legislation. So far, as we understand it, a U.S. court has never fully upheld or enforced a rights of nature law, though a number are awaiting litigation which potentially might solidify their legitimacy. [cite]
Yet, there has been a surge in activity in recent years in towns, counties and states across the country. Here, is a sampling of very recent local developments from around the country--both the progress and the setbacks:
And here are some recent developments from "across the Pond":
Though in many counties, even in "conservative" states, municipal boards and the public strongly support and vote to adopt local rights of nature ordinances, they are routinely and aggressively blocked by state legislators at the behest of commercial, industrial, agricultural and development interests. So the question remains: how to "cement" the rights of nature idea into U.S. law when, so far, in large part they are not enforced, let alone upheld.
Nonetheless, there is momentum in many place across the county around this concept, and we expect to see many more attempts at the local level to support and adopt rights of nature regulations, as well as broader innovation and advocacy to ensure they are implemented and enforced effectively.
Exploring State Constitution "Environmental Rights" Amendments...
An "Environmental Rights Amendment" is an amendment to a state's constitution, generally in its bill of rights, that is meant to guarantee its citizens the inalienable right to clean air, clean water, and a healthy environment. Also known as Green Amendments , these measures are designed to prohibit state government from infringing on "the fundamental right to a clean environment." These amendments can be used to require government officials and agencies to prioritize environmental protections when advancing certain policies and considering different actions, and when necessary, take direct legal action against entities that violate laws, such as clean air and clean water regulations. They can also help establish legal standing for communities to bring actions to prevent the government from taking specific actions that they believe infringe upon citizens' environmental rights.
The National Caucus of Environmental Legislators provides this overview:
"After lawyer and environmentalist Maya van Rossum helped land a legal victory against fracking around the Delaware River watershed, the Green Amendment movement was born, capitalizing on this long-ignored section in Pennsylvania’s Bill of Rights.
"Support for environmental rights amendments continues to gain momentum across the country as many states pursue constitutional amendments ensuring the right to a clean and healthy environment. States vary on where in the constitution the amendments are proposed. Many states are following the lead of Montana and Pennsylvania by placing the language in the Bill of Rights. These amendments, also called Green Amendments, liken rights of religious expression and speech to the right to clean air, and water. They serve to emphasize environmental health and safety as being part of basic civil liberties.
-Green Amendments establish a constitutional mandate recognizing a healthy environment as an inherent, indefeasible, generational legal right of all citizens.
-Green Amendments provide a backstop that can be used by community, public, government and even business interests to provide a check on government authority that overreaches and fails to protect environmental rights.
see also:
In terms of process, in most states, environmental rights amendments are first proposed through the state legislature. And if approved by those lawmakers, the proposed amendment will then put before the state’s voters as a ballot referendum. These amendments can take different form in terms of language and structure: they can be short and rather "general," such as the NY State amendment adopted in 2021 (see below), or they can be written with additional specificity (See for example, also below, the amendment that has been proposed and currently under consideration in New Jersey.)
As they move through the process from introduction towards approval, the efforts to secure state-level constitutional environmental rights come up against big challenges. These multi-year initiatives encounter no shortage of legal challenges regarding lack of clarity and how to implement, as well as opposition from politicians as well as myriad business, development and partisan interests.
Then, if they are adopted, "green amendments" continue to face obstacles: the recognition of these new rights often triggers significant retributive "backlash" from opponents. “ 'These provisions can only do so much.' James May, a distinguished professor of law and founder of the Global Environmental Rights Institute at Widener University Delaware Law School states that they can be 'terrific tools to advance environmental protections,' but he cautions that these 'tend to be really hard to enforce'.”
Currently, three states – Montana, New York, and Pennsylvania – have established constitutional environmental rights amendments, with a significant number of other states considering bills in 2023 and 2024. Recently reported, the states with active green amendment initiatives or proposals include Arizona, California, Connecticut, Delaware, Florida, Hawai'i, Iowa, Maine, New Jersey, New Mexico, Texas, Utah, Vermont, Washington, and West Virginia. Also reported underway is active engagement around proposed legislation in Colorado and green amendment proposals anticipated in Oregon, Michigan, Wyoming, and Illinois. Also reported, in 2023, legislators in Nevada and Tennessee introduced green amendments, but it appears they at this time don't seem to be moving forward.
Looking at some of the recent reporting on the specific initiative next door in New Jersey:
"New Jersey could be the fourth state in the nation to put this to voters, the second in the modern era after New York—but the very first state to include language that speaks directly to ensuring a safe climate for future generations. The New Jersey bill (SCR43) proposes that: 'Every person has a right to a clean and healthy environment, including pure water, clean air, and ecologically healthy habitats, and to the preservation of the natural, scenic, historic, and esthetic qualities of the environment. The State shall not infringe upon these rights, by action or inaction.' It goes on to say that 'The State’s public natural resources, among them its waters, air, flora, fauna, climate, and public lands, are the common property of all the people, including both present and future generations. The State shall serve as trustee of these resources and shall conserve and maintain them for the benefit of all people.' ” [cite]
Turning to our home, as mentioned above, New York was the third state (after Pennsylvania and Montana) to adopt an environmental rights amendment in our state constitution. The amendment was approved in dual sessions of the state legislature, and 70% of voters, or more than a 2:1 margin, approved adopting it into the Bill of Rights of the state Constitution as Article 1 Section 19 in the November, 2021 statewide referendum.
As written and adopted it reads: ARTICLE I SECTION 19 [Environmental rights] Each person shall have a right to clean air and water, and a healthful environment. (Added by vote of the people November 2, 2021.)
But as we are seeing in New York State since 2021, adoption does not seem to assure the amendment's efficacy. Though the public in several upstate counties has cited the constitutional environmental protection in legal proceedings regarding the impact of expanding landfills on their communities, the State government is arguing currently that the amendment cannot be considered by the courts as a factor.
Per reporting just this month (July 2024):
"In each of these three cases—involving the Norlite industrial operation in Cohoes, NY, the High Acres Landfill in Monroe County, and the Seneca Meadows landfill in Seneca County—the government is arguing against the Green Amendment’s power, claiming that it does not compel the government to affirmatively act to protect our environmental rights, despite the fact that these facilities could not operate but for government approval." [Cite]
Also reported in February 2024:
"Article 1, Section 19 of the state constitution now reads: “Environmental Rights. Each person shall have a right to clean air and water, and a healthful environment.” Though Attorneys for the landfill’s neighbors argued last week that yes, the Green Amendment obligates state courts to act in defense of their clients’ explicit constitutional right to breathe clean air.
"In particular an appeal filed in December by state Attorney General Letitia James that argues the courts do not have authority to rule on whether the state’s failure to abate air pollution around the High Acres Landfill violates the constitutional rights of the facility’s neighbors. That’s too vague to be enforceable, James argued in her Dec. 22, 2023, appeal brief. The Legislature needs to define terms and duties, she said, and that the Green Amendment alone does not empower courts to judge the state’s anti-pollution effort without enabling legislation that defines 'clean air' and the state’s enforcement duties.
“The establishment of a constitutional right … does not impose a concomitant duty on the state to take action against third parties to enforce that right in the absence of language imposing that duty,” she argued. [Cite]
Much like the "Rights of Nature" movement, despite the obstacles to passage as well as implementation, it is expected that the "Constitutional Environmental Rights Amendment" drive will continue and expand. So, indeed, we'll be "watching these spaces."
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