Liberty Matters News Service

July 17, 2008

Texas Has Nine Sub-Regional Commissions

In August of 2007, four small cities in Bell County, Texas decided to stand up and defend themselves by forming the first sub-regional planning commission created to combat the Trans-Texas Corridor, the first leg of the massive NAFTA Superhighway. Using a relatively unknown state statute, Section 391 of the Local Government Code, the Eastern Central Texas Sub-Regional Planning Commission forced the behemoth Texas Department of Transportation to Holland, Texas, population 1,200, for two coordination meetings. The ECTSRPC then reeled in the federal Environmental Protection Agency Region 6, the Natural Resource Conservation Service and the State Conservationist, and the Texas Parks and Wildlife Department. As of July, 2008, eight more communities have followed the ECTSRPC’s lead and formed their own 391 commissions to fight the TTC-35, TTC-69, and La Entrada, another artery in the corridor system coming into West Texas from Mexico (see map of SRPCs). To confuse matters, TxDoT is implementing a similar plan to confuse local leaders so they don’t form sub-regional planning commissions. TxDoT is advocating Regional Planning Commissions (RPOs) through the regional Council of Governments luring in local leaders (county judges mainly) to be a part of their scheme to control rural transportation plans. TxDoT plans to ask the Texas Legislature to fund their scheme next session so they can reimburse the COGs that create Regional Planning Organizations and prevent local communities from forming autonomous sub-regional planning commissions that aren’t controlled by TxDoT. For more information on how to form 391 commissions, go to www.stewards.us.

Map of the formed Texas Commissions

Bulletin! Judges Shouldn’t Act As Scientists

An astonishing ruling has come from the oft-overturned 9th Circuit Court of Appeals, in which the 11-judge panel unanimously decided that judges must not act as scientists when considering U. S. Forest Service timber projects. The Court also made it clear that all aspects of the “public interest” including local economy must be included in the Forest Service’s evaluation of timber projects. District Judge Edward Lodge had earlier refused to halt a Forest Service logging project designed to improve forest health, improve recreation opportunities, and provide jobs in local communities in the Idaho Panhandle. He was reversed by a 3-judge panel, but, was then affirmed by the full Court, sitting en banc, in Lands Council v. U.S. Forest Service. (7/2/08) The Court established a 9th Circuit rule that judges will not substitute their scientific views for the expertise of the Service: “we are not free to ‘impose on the agency [our] notion of which procedures are ‘best’ or most likely to further some vague, undefined public good.” The Court, “as non-scientists” held that “the Forest Service must support its conclusions…with studies that the agency, in its expertise, deems reliable” and that it would reverse the Service only “when the record plainly demonstrates that the Forest Service made a clear error in judgment in concluding that a project meets the requirements of the [National Forest Management Act]” In affirming Judge Lodge’s refusal to stop the project, the Court put teeth into the NEPA requirement that economic impact is important in any project assessment. Intervening local governments proved that prevention of the project would cause lay-offs of timber workers, and other “indirect harm to the struggling local economy.” Relying on their position, the Court stated that in considering the “public interest” the judge must take into account not only environmental resource preservation but also prevention of “catastrophic fire, insect infestation and disease” and aiding “the struggling local economy and preventing job loss.”

9th Circuit: Judges shouldn't act as scientists

Delaware Governor Vetoes Eminent Domain Bill

Like Texas Governor Rick Perry, Delaware’s Governor Ruth Ann Minner doesn’t believe in the right of the people to keep their homes and businesses out of the clutches of special interest groups. With one day remaining in the legislative session, Governor Minner vetoed S.B. 245, with the Senate unable to muster enough votes to override the veto. The bill would have replaced an earlier eminent domain bill that had as many loopholes to appease developers as does the Texas so-called reform legislation. It would have restricted the use of eminent domain to the traditional uses – roads, schools, parks and public buildings. “When special interests win, the people lose,” said Steven Anderson, director of the Institute of Justice’s Castle Coalition. “It’s a victory for big business and big labor, but certainly not for the ordinary homeowner and small businesses.” Ed Osborne owner of Osborne Auto Repair and other business owners along Wilmington’s Christina River waterfront are under siege from the City of Wilmington, which is threatening to confiscate their land to turn it over to a developer to build luxury condominiums and high-dollar stores that City officials figure will bring in more tax revenue than existing businesses. So far, Delaware officials have used eminent domain to seize 62 properties and 38 businesses for private gain. “We’re confident Delaware will ultimately get it right,” Anderson opined. “Where abuses occur, the passion of the people is inflamed, which results in legislative change. The issue isn’t going away – and neither are we.”

Delaware Eminent Domain

Washington Court Strikes Down Land Use Regulation

A Washington Appeals Court has overturned a King County ordinance that limited the amount of property which a landowner could clear for development. In Citizens Alliance for Property Rights v. King County (7/7/08), the Court held that the ordinance violated a state statute forbidding direct or indirect imposition of “tax, fee or charge” on proposed development of land. Even though no dollar demand was made by the County, and no revenue was raised, the Court held that requiring the landowner to bear the cost of limiting his development by as much as 50-65% of his land constituted at least an “in-kind” tax, fee or charge. Therefore, the required land set aside violated the state statute and was invalid. King County argued that its restriction was required by the state’s Growth Management Act which mandates that local government protect certain critical areas. The Court held that the state statute did not authorize local governments to condition development on set asides of land. Since the Court held the ordinance invalid under the statute, it did not need to reach the constitutional arguments raised by the property owners. As usual, zoning enthusiasts predicted the decision would have a chilling effect on local government’s “ability to regulate land use to protect people, their property and their quality of life.” Without concern for private property owners whose land values would be sacrificed under the ordinance, King County Executive Ron Simms will appeal the decision. At the same time, a member of the County Council governing what many call the most liberal county north of San Francisco, sees the opportunity to repeal the entire land use ordinance. Kathy Lambert said “Thousands of families who live in rural King County have been prohibited from using their property” under the ordinance which focuses on denying development of rural land.

Sims to challenge land use ruling by appeals court

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