Looking For Trouble
Undermining the Patriarchy Every Chance I Get. And I Get a Lot of Chances
In Which Our Heroine Argues that Land Use Law Is Both Sexy and Pagan
Anne asked me if I could post about some recent Supreme Court opinions and their impact on Pagans. I'll take as given that, unless you've been on a several-week long retreat into the woods, you know that the Supreme Court struck down one section of the Defense of Marriage Act (DOMA) and left standing (on standing grounds!) a California court ruling that Proposition 8 (which outlawed same sex marriage in California) was illegal. (Which, to deal with the too-many negatives therein, is to say that SCOTUS left intact a California court holding that essentially left same-sex marraige intact in California) And I'll take as given that you know that the Supreme Court also struck down important provisions of the Voting Rights Act. If you have been off in the woods (damn, I'm jealous), you can easily find blogs that discuss those opinions and their impact on Pagans.
What I'd like to do over the next few posts is to discuss some additional Supreme Court opinions that will impact Pagans. Today, let's talk about KOONTZ v. ST. JOHNS RIVER WATER.
I want to talk about this case because, inter alia [which is legal talk for "among other things"] , it demonstrates the importance of local politics, an area upon which, I'm going to argue over the next few months, Pagans ought to focus their magical (and other) efforts.
Why should Koontz matter to Pagans? Here's what the Supreme Court said about the land involved: "A wildlife survey found evidence of animals that often frequent developed areas: raccoons, rabbits, several species of bird, and a turtle. The record also indicates that the land may be a suitable habitat for opossums. "
Koontz is a Takings Case. That means that it's based upon the Fifth Amendment to our Constitution. This Amendment provides that, inter alia, private property shall not be taken for public use without just compensation. That means that, for example, if the government wants to take your home and yard in order to expand a local highway, the government can do that, but it has to pay you "just compensation." You can go to court if you think that the amount that the government offers you is too little to be "just compensation," and the court can rule on that, but the government can take your property.
Fair enough, and for most of the Twentieth Century, Takings Cases were more or less confined to how much the government had to pay in order to pay "just compensation."
Fast forward to the end of the Twentieth Century. Too many people. Not enough planet. Everyone begins to realize that the impact of allowing you to build a bunch of condos on wetland HERE has an impact on wetland THERE. Turns out, those "bundles of sticks" that used to make up property rights begin to look a lot more like an interchangeable and interrelated bunch of conditions. Various local [Pagans! Pay attention!] districts, wetland areas, townships, counties, etc. begin to impose conditions whenever someone wants to further develop their property. The Supreme Court, with its newly-appointed hyper-conservative members, is called upon to say when enough is enough -- at what point do conditions imposed upon development of your property become a Fifth Amendment Taking?
As the Association for Corporate Counsel explained, in Koontz:
"Petitioner offered the District a conservation easement on the southern portion of the property. The District informed Petitioner that it would approve construction only if he agreed to one of two concessions: either reducing the size of his development to one acre and deeding a conservation easement to the District for the remaining 13.9 acres, or proceeding as planned with construction on 3.7 acres, but also agreeing to hire contractors to make improvements to District-owned lands several miles away."
The Supreme Court held that these conditions violated the Fifth Amendement. It confirmed that its prior holdings in Nollan v. California Coastal Comm’n1 and Dolan v. City of Tigard which held that a government entity may not condition the approval of a land use permit on the owner’s relinquishment of a portion of his property unless there is a "nexus" and "rough proportionality" between the government’s demand and the effects of the proposed land use, also apply (i) where the government denies the permit and (ii) even when the government gives the property owner the option of making a monetary payment in lieu of the relinquishment of property."
Why does this matter for Pagans? See above, re: raccoons, birds, turtles, rabbits, and oppossoms. In practical terms, it's a very important reason to get involved in your local land-use agencies and to make sure that their decisions make clear the nexus between whatever conditions are imposed and a rough proportionality or nexus between the conditions imposed upon additional land development and the damage done by the development.
Is land-use law as sexy as same-sex-marriage law? I'd argue yes, but I know that I'd be in the minority. But land-use law is completely susceptible to local magic and every bit as important to your landbase. What are you going to do?
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