On a Highlands Birthday

Preservation Based Land Use Reforms & Momentum Hijacked by Property Rights Radicals

Last week marked the seventh anniversary of enactment of the landmark Highlands Act.

I am not going to repeat the litany of problems now facing honest implementation of the Act that have been manufactured by the Christie Administration and are now being flogged by political partisans.

Instead, I want to note even more deeply troubling concerns that will be harder to overcome than defined technical planning and policy problems.

The “property rights” movement is on the ascendance.

Worse, this Lazarus-like rise comes just at the moment when it appeared that those radicals finally had been defeated and rendered a fatal blow in this state.

Since passage of the Act, the Regional Plan was adopted and the Act survived federal and state legal challenges.

The Highlands Council earned the respect and engagement of local governments, while managing to expand broad based public support for land preservation and water resource protection.

All this political and legal momentum suggested that we had turned a corner and the radical property rights movement was finally dead in NJ.

They were beaten in the court of public opinion, they lost legal challenges in federal and NJ State courts, and were politically marginalized if not neutered.

But, Governor Corzine’s failure to appoint Council members effectively allowed Governor Christie to change all that.

Christie was given the opportunity to attack the Highlands Act (using slogans and a false pretext) and appoint people who do not support the Act’s basic preservation approach, and outright oppose the land use, growth management, and water resource policies of the Act.

Ironically, the Governor did this by hijacking the progressive principles and rhetoric of “fairness” and “equity”.

Supporters of the Act and the media never called out the Governor on this, and thereby let him get away with it.

The radical landowner equity driven “fariness” issue is consistently narrowed, conflated, and mis-reported as one of compensation.

The word “compensation” for “equity” implies something honestly earned and fairly owed.

This is the opposite of “entitlement” or “welfare” programs, which carry strongly negative connotations as subsidies that are not earned and are “doled out” by government.

Could you imagine attacks on Highlands landowners and corporate speculators as being “on the dole” and seeking “welfare” and handouts?

When the debate is allowed to be framed as being about “fair” “compensation”, the radical property right people win.

But that is not the case – and this battle has very little to do with and surely is NOT just about compensation – or just compensation.

This is because the fairness and equity advocates mistakenly strongly believe that Highlands and DEP regulations “take” their property without just compensation in violation of the Constitution.

This belief fits the classic definition of ideology: impervious to evidence and immune to reason and persuasion in light of competing arguments and facts.

Based on this mistaken and radical ideological belief, the “landowner equity” faction therefore strongly OPPOSE those regulations and the “jack booted” government agencies (DEP and Council) that implement them.

So the “radical “property rights” people – often a front for corporate speculative development interests – hide behind the “landowner equity” issue.

They are allowed to appear to merely support popular programs, like Green Acres open space funding. 

But in practice, this faux “equity” issue translates into regulatory rollbacks, gutting of enforcement, funding cuts, government promotion of economic development, and forms of political attack (in some places this includes harassment or terroristic assaults on government workers).

It would be nice if ENGO’s and the media could focus on the radical property rights agenda backing the “compensation” word and begin to defend progressive principles like “fairness and “equity”.

Preservation advocates should not surrrender those words, which creates a vacuum that enables political cover under use of the slogans “equity” and “compensation”.

All preservation advocates need to do is cite the “equity” policy in the State Plan (see page 110) and many other related NJ public policy documents.

The State Plan recognizes many forms of  “equity” – e.g. sweat equity, environmental justice, housing, educational, transportation equity, et al – and expressly defines “equity” in social terms.

The policy goal is about equitably sharing benefits and burdens among all people of the state.

Lots of equity is being ignored – so why are Highlands Landowers getting all the equity focus? 

I assume that the radical property right folks would find NJ’s policy of social equity downright socialistic!

But ENGO’s must not be intimidated by that atack – throw it back in a property rights advocate’s face. 

Ask them whether a corporate financial speculator is a real farmer and has established “sweat equity” in a parcel of land!

Ask if subsidized landowners (agricultural property tax breaks) and developers share the benefits (profits) of land development, or share an equitable burden of all the local property tax increases (services, schools, etc) and water pollution treatment costs that development imposes on the community.

The State Plan uses a broad definition of “social equity” to capture the far narrower landowner economic equity.

Financial compensation to landowners, only for disproportionate impacts, is narrowly conceived as a form of mitigation, not a repalcement of 100% of speculative value of land.

This term “equity” has a far broader meaning that individual property rights. And the bundle of property rights are far broader than speculative or market real estate value.

The policy debate on these issues has become so narrow as to be essentially meaningless.

So even the words themselves have been so distorted and narrowed that it amounts to a hijacking!

Suggest folks read Orwell’s classic essay: “Politics and the English Language” for the implications of hijacked words.

[Full disclosure: I staffed Governor McGreevey’s Highlands TaskForce and represented DEP on the legislative workgroup that drafted the Highlands Act.]