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June 24, 2005
Green Counter-revolution
Now that development interests officially trump property rights, I think it's natural to wonder, "What trumps development interests?" Surveying the firestorm sweeping the blogosphere over Kelo, I had yet another of those Alice-through-the-looking-glass sensations when I realized who the enemy of my enemy is: environmental regulations.
If you would like to protect your home from encroaching development, try getting eco-friendly. Commenter "Leslie" at Wren's Nest suggests using conservation easements to protect your property. Existing structures would probably be limited in their ability to qualify as environmentally important lands, but future residential developments could well take this into account. Perhaps the entire art of (sub)urban planning could be influenced by Kelo; subdivisions shielded by constructed wetlands, for example. Or if high quality ecosystems aren't your thing, one Canadian libertarian has this suggestion, "My advice? Move next to a Superfund site. You may get cancer but no one will ever take your house." Another artificial option, we may even see more instances of homeowners bringing endangered species onto their property to stop development. Once an onerous discovery, endangered species may herald the preservation of basic ownership with limited rights in the face of losing everything.
We shouldn't be surprised if a perverse ruling has perverse consequences.
Posted by Zach Wendling at June 24, 2005 10:17 AM
There are several endangered plants on some family land - it's been in the family over 100 years. A fact we've never brought to anyone's attention - until now. I think it might be a good idea to do so, especially since the property is a large farm in CT...
Posted by: Bob at June 24, 2005 10:59 AM | permalink
My God man, what an awesome idea.
Posted by: Joshua Claybourn at June 24, 2005 11:05 AM | permalink
IIRC, endangered plants on private property have less protection than animals, even up to the point that an owner can 'take' them all he wants. How this would change under eminent domain litigation would be interesting, and I'm afraid I'm not familiar with the case law concerning the ESA and the 5th Amendment.
Posted by: Zach Wendling at June 24, 2005 11:21 AM | permalink
Even better is to get your home declared a historic site. Very difficult for developers to circumvent.
Posted by: Lin Bartholomew at June 24, 2005 12:03 PM | permalink
My M-16 trumps any developer. Can't argue with a bullet.
Posted by: Jacknut at June 24, 2005 12:18 PM | permalink
It may be difficult to identify endangered species that could be successfully transplanted to your property. Another solution would be to identify those species that are already on your property, and then head out into the wider world with shotgun in hand with the purpose MAKING that species endangered. Bonus points if it's a particularly tasty species.
Posted by: TZ at June 24, 2005 12:28 PM | permalink
I have some black kittens that have taken refuge on part of my property that I don’t have the heart to forcibly remove, any chance I could get the classified as miniature Jaguars?
Posted by: Foltz at June 24, 2005 12:55 PM | permalink
Yeah, my thug can lick your thug...and my thug would never ever turn on me! That will work.
What a wonderful idea to just cede the territory and back yet one more step closer to the wall.
Posted by: Stephen at June 24, 2005 01:02 PM | permalink
> My advice? Move next to a Superfund site. You may get cancer but no one will ever take your house.
How do you think that Love Canal was developed? Yup, the local govt wanted more revenue from some "empty land", land where Hooker Chemical had put its monitored landfill. Hooker suggested that housing wasn't a particularly good idea, but the local govt threatened eminent domain so HC folded. Neither the city nor developers monitored.
Of course, no one went after them. They were either immune or didn't have much money.
Posted by: Andy Freeman at June 24, 2005 01:27 PM | permalink
Just think, now with the government help I can get rid of my pesky neighbors and get that green space my boys have been craving!
Posted by: Jim Pfaff at June 24, 2005 02:12 PM | permalink
This trump card is much less likely to protect property rights from emminent domain than to justify emminent domain and double trump property rights. Any part of a person's property that accumulates standing water at any time of the year is already liable to be designated a protected wetland. Now if some private group wants to use your property for some eco-friendly purpose (an eco-friendly housing development say) Kelo would allow it under eminent domain. If eco-concerns trump eminent domain, they can determine eminent domain.
Posted by: Alec Rawls at June 24, 2005 03:17 PM | permalink