05 July 2005

Kelo before Kelo was Kelo

For a little more than a week now, the Blogosphere and airwaves have been inundated with all things Kelo. While it is impressive to hear and see such an uproar regarding personal property rights, Kelo's much more sinister second cousin has been quietly eating away at the right most Americans cherish.

For quite a few years now, the U.S. Army Corps of Engineers, U.S. Fish and Wildlife Service and the U.S. Environmental Protection Agency have required -- demanded -- that private property owners give up portions of their lands for ecological habitat in exchange for development permits. As an environmental consultant, I help my clients (many of northern California's and the nation's largest real estate developers) navigate the tortuous path of environmental regulation.

If a client was unfortunate enough to have wetlands on their property, the traditional method of compliance was to mitigate the impacts at a wetlands mitigation bank or other off-site location. Well, this wasn't too bad until wetland mitigation acreage started selling for upwards of $200,000.00 per acre. Yes, $200,000.00 an acre.

So, land speculators (often the developers themselves) were sitting fat and happy collecting a large sum of money for land that was previously deemed worthless (I got some swamp land in Florida for ya?).

Apparently, this was not enough of a deterrent to development, so the agencies upped the ante -- they went "all in" for you poker players out there.

Instead of merely requiring mitigation, the agencies started requiring that the developers avoid impacts to wetlands and other waters and establish the avoided area as a wetland preserve. Not only did the developer have to avoid the wetland by engineering their land use plans so roads, buildings and other infrastructure ran around the wetland feature, the developer was forced to give the land to a "conservation-oriented third-party."

It gets better.

On top of not being able to develop the land and having to give it to someone else, the developer is forced to establish an endowment fund to maintain the preserve area in perpetuity -- which is forever.

I have personally had clients that walked away from development projects because the agencies were taking upwards of 25 percent of the project area (10 acres preserved on a 40-acre site) to preserve less than two acres of wetlands.

Duane at blackinformant posts ...Henry Lamb, executive Vice President of the Environmental Conservation Organization (ECO), and Chairman of Sovereignty International talks about how a sustainable development program in the UK that may result in the loss of 10,000 homes.

Have you ever wondered why new houses cost so much?

The fun for developers doesn't end with the Endangered Species Act or the Clean Water Act. Local jurisdictions are getting in the fun of taking private property, as well.

In Sacramento County, California, a new affordable housing ordinance was enacted in January of 2005 that required developers to, once again, give away part of their land in exchange for development permits.

In a nutshell, the ordinance requires that projects seeking approval for five or more dwelling units shall include an affordable housing component. This component goes far beyond the typical low-income apartment next to the parking lot. A project is considered in compliance with the ordinance of the developer "Dedicates and extremely low income identified as suitable within the development to Sacramento Housing and Redevelopment Agency AT NO COST."

So, it seems that we have been dealing with the Kelo clan for some time now. Unfortunately, it now has the SCOTUS stamp of approval.

I think I'll buy a boat. At least I understand the Coast Guard.

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