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APA Smart Growth Plan Just Plain Dumb
Big Brother is not only watching you he is keeping a close eye on your signage and your property. In this case, Big Brother's name is the American Planning Association (APA). Attempting to suggest to your city, county and state governments, what it thinks will make for "Smart Growth." Make sure you are sitting down and you may want to put on your seatbelt, because this scary fantasy may be the suggested reading material for your local government next.
The APA's surveillance camera is in the form the Smart Growth Legislative Guidebook, a 15-chapter publication developed over the past six years and paid for with $2 million of taxpayer money. At first glance the Guidebook seems innocent enough. Its purpose is, on the surface, one that few would oppose: to set forth a legislative blueprint for zoning and land use planning that combats urban sprawl.
Federal funding acts as an incentive for states to adopt this blueprint mandating "an integrated state-regional-local planning system that is both vertically and horizontally consistent." But the potential cost to sign makers, private citizens and small business owners is not fair enough. In fact, it is downright unconstitutional.
Local governments lose power
But the Guidebook does much more than give the federal and state governments the authority to govern the use of local private property. It gives the government the authority to seize your property if they decide it is a wetland. It gives the government authority to remove your signage without compensation if they do not like its location, color, period of display, size, height, spacing, movement or aesthetic features. It even gives the government the authority to seek criminal sanctions against you.
Not even close to fair enough for a country built on principles of freedom and justice for all.
Besides the APA, the Department of Housing and Urban Development is supportive of the Guidebook as is the Senate's Environmental and Public Works Committee. According to Michael Fluharty with HUD, "It is important to recognize the these are 'model' statutes provided to states solely for their consideration. Where the existing law on certain issues differs among states, the Legislative Guidebook provides a range of alternatives to reflect differing case law or enabling legislation. States are free to accept, reject, modify or ignore any and all of the Guidebook to the degree it best serves their policies, needs and priorities."
In opposition are groups that represent landowners, small businesses and manufacturers. The Guidebook is already posted on the APA's web site. But if the Community Character Act is passed, along with its companion bill H.R. 1433, the government will allot $125 million of federal tax money to print and distribute this controversial Guidebook.
State governments give way to federal policy
Just look at a few examples:
Model statutes direct state action
Parking and landscaping
Coordination with federal government
Regulatory power expands
Here are a just a few examples of potential economic impacts of the Guidebook:
The question of constitutionality
The First Amendment
But despite the First Amendment, the Guidebook gives local governments the power to regulate individual businesses by mandating the "location, period of display, size, height, spacing, movement and aesthetic features of signs, including the locations at which signs may and may not be placed." This greatly impacts a business' right to advertise on company premises. A business can even be held criminally liable for violating content regulations of its sign. This is a gross violation of free speech. (11-302; 8-201)
The Fourth Amendment
But despite Fourth Amendment protections, the Guidebook allows administrative warrants to be issued to search private property without probable cause so long as the search is consistent with a valid administrative scheme, such as housing safety. Further, local governments can obtain inspection warrants for suspected land violations without notification to the property owner. (11-101)
Under model statute 11-101, inspection warrants may also be obtained based upon allegations made by anyone. Local officials and police are exempted from trespass laws during inspections for possible land use violations.
The Fifth Amendment
But despite the Fifth Amendment, the Guidebook encourages the use of moratoria in all areas except communities adopting the "traditional neighborhood" smart growth plan. (8-184) Local governments can also increase bureaucracy by designating undeveloped private land as Historic Landmarks and requiring a Certificate of Appropriateness before the land can be developed. (9-301) Similarly, local governments can designate "lands and/or water bodies" that "provide protection to or habitat for natural resources, living or non-living" as Critical and Sensitive Areas and can regulate and prohibit land use in these areas without limitation. (9-101)
At least six other model statues also trample on the Fifth Amendment.
The Tenth Amendment
But despite the Tenth Amendment, the Guidebook proposes model statutes that give the federal government control over state rights. Under 8-101, developers could be held accountable to federal standards that have no relevance to a community within the state.
The Fourteenth Amendment says
But despite the Fourteenth Amendment the Guidebook's model statute on historic design review districts allows local governments to arbitrarily subject property owners in just those areas to design standards. (9-301). This is not fair and equal treatment under the constitution.
This is all bad news for those that love freedom. But there is good news: The Bush administration opposes this plan and you can, too. Make your voice heard by calling or e-mail your congressman.
Visit Congress.org to find contact information for your Senators.
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