Lapas attēli

because I wear proudly the badge of "violator" and “anti-environmentalise“. I have reviewed my conchue's and believe it to be beyond reproach. The need that some people have to call me naines for thinking environmemalism's sacred cows is more comical than credible. On the other hand, inost people are reticent to even discuss their problems with environinenal burcaucrats in a public setting. Neverinind take signs and march on the state house. or perhaps even more socially challenging to take signs and march on the Newport Mansions when they host environmentalist fetes. Therefore, you will not always see me surrounded by throngs when I make these evident and public outcries, but after the “Activist with and Atitude“ anticle appeared in the paper I received numerous calls from people I did not know burgeoning my contact list in Rhode Island to several hundred individuals. Perhaps the inost heartening of these was onc caller who said to me “You may be a constituency of one, but you are not alone“.

While I will doubtless be the only Rhode Islander testifying in favor of S-605. I will not be the lone Rhode Islander from.whom you hear. Another of iny statesmen is scheduled to lestily before you today. For the benefit of the cominittee I wish to provide assistance in translating "Yankee" into "English". This is better accomplished through anecdote than dictionary. My mother often retold this mory of my grandfather, a Rhode Islander who also spent the better part of his life running a suinier camp in Sweden. Maine. He had ordered a timber of such heft to replace a rotted post in his horn there, that it required a couple of men just to lift it. Yet when my grandfather arrived at the sawmill to pick it up. the purveyor looked casually up from his roaring saw and gestured to a helper, saying. “Mr. Jeffers is here for his stick".

It is perhaps unnecessary to regal the members of this August (actually October at this poine) hody with anecdotes of Yankee understatement which are both legion and legend, but seldom has a better practitioner of the an appeared before the committee than my own Senator John Chaffee who testifies Today on the issue property rights. Few are more eloquent than he at understating the loss of property rights in this country which has occurred in the last score of years.

In fact, today. you and Senator Chaffee will trade repartee on a fagoi of sticks, that is the metaphorical bundle of rights associated with property. With polite but firm understaternent Senator Chalfee will assure you that it is alright if someone clubs a fellow over the head and grabs half his sticks. because the same thief took half his neighbor's sticks as well. He will, no doubl. suavely assure you think rather than being disheartened that the thief in this case is actually the goverment . you should celebrate the fact that such brave actions make you, as co-conspirators, the Robin Hoods of the environmene. In fact, the impact of the Senator's testimony upon you boils down to whether his talent for understatement will add heightened credibility to his juxtaposed overstined arguments that S-605 will surely make the sky fall, or whether such a contention will seem, instead, all the inore patently ridiculous.

Judging from Senator Chaffee's treatises as delivered prior to the hearings he held in the Environment and Public Works committee on this issue, he already believes the matter to be well stiled in count precedent and essentially outside the interests of the legislative branch. The job he apparency envisions for Congress is to make more assaults on property rights and see if the counts uphold them or not. Attributing the same degree of understatement to our historic struggles over civil rights, the luken or 'separate but equal' education in Boston could have been dealt with simply by passing out subway tokens. Following the logic of Senator Chaffee's comments to his own committee, the decision of Brunn is. Depuriment of Educurion was all that was necessary to rectify any inequities in our schools.


Testimony of Brian Bishop


Mr. Challec ruminates upon granting a great deal of respect to the history of this problein heilare the courts and in essence recommends at the outset that existing remedy at law appears sullicient. I imme would place all their faith in the administration of law, one might as readily say that nuisance law is sufficient to prevent pollution since a ton remedy is available to anyone aggrieved by an environınıncally degrading action of another. I agree that if we did away with bureaucracy altogether, there would he a significantly lessened nexus for a bill such as S-605.

Congress has, however, already failed to even begin that process in the form of the Regulatory Relief Ag this session. Further, it is not the Providence of congress to administrate law. but to write it. It is not at all the job of Congress to simply codify the opinions of the Coun, but to compare them, in a political context, to the realities of the day. Congress must lead, not follow.

le is not that I lack respect or a certain studious affinity for the legal framework which now exists relative to Property Righes, but significant precedents do not generally end the congressional debate. hue begin it. Decisions such as Brown were the precedent for major civil rights legislation. They inide the need obvious rather than obviated.

I have discussed recent precedent with John Chaffee 's office during the last several years, and they claim on his behalf to be supportive of the high court's decisions in Lucas and Dolun. One cannove support these decisions without acknowledging that the import of them is far from being realized in the real world. Most scholars agree that Lucus was an open and shut case to begin with. It should discurt Congress and Mr. Chaffee greatly that David Lucas had to fighe all the way to the Supreme Count for the relief he was owed. Despite the theoretical precedent inherent in Lucus and Dolun, the decision of the coun effects no front line penalty to discourage government bureaucracies at local, state or federal level from undertaking just the kind of action which aggrieved David Lucas and Florence Dolan. These important precedents no more guarantee property rights than Brown guaranteed a fair social compact on education.

Environmental bureaucrats have simply honed that old saw, "So. sue ine". On the environmental side we have created roadblocks to the future of our country through citizen suit provisions which allow people with no standing to enter disputes and force the goverment to pay their legal bills. Those un the property rights side of the equation who are often directly hanned find their own standing dependent on their ability to pay. This holds true despite the institution of so-called 'administrative appeals' in miny state regulatory processes.

A fair property rights act must provide for ombudsmanship in this process and must absent administrative decision inakers from the regulatory body. In Rhode Island, administrative hearing officers are employees of the agency whose decisions they rule on. This has created a quasi-judicial farce which one is ill-advised to enter without an attomey and proves, almost to a fault, to be simply a siepping some to the courthouse or worse an impediment to swift relief in the courts (in as much as such is not an oxymoronic concept when taken in the context of jurisprudence).

As onc may ascertain froin reading the attached article on my activities in Senator Chaffee's horne state. I am a lay activist on these issues, but I can walk with him right down the aisle of precedence on these issues. For. I do agree that a grounded understanding of the count interpretations is helpful in the construction of a congressional remedy for the evident transgressions of property rights which continue around the clock while this legislation is dcbalcd. (Suc also the attached article on my fellow Rhock:

Tentimony of Brian Bishop


batender. Bill Stanıp, who facer destruction of a legacy or s generacions farming in my make a she hands of

of state and federal wetland regulators.)

Of utmost importance are the comments of Justice Stewart in Lynch vs. Here.sebutel Fimine 12 S.a.1113 @ 1122):

“...che dichotomy between personal libenies and property rights is a false one. Propery does not have rights. People have rights. The right to enjoy property without unlawful deprivation, no less thin the righu to speick or the right to travel, is in truth, a personal righe“. Congress, with or without Senator Chaffee. must lead the discussion of property righes in this direction. We are talking about basic civil rights here. no different from any of those which have been fought for in the history of this country.

I would not compare myself as a leader 10 Martin Luther King. but my motives are as pure and my ideology as unwavering. It is of great concem to me that Senator Chaffec has attacked my motives and ideology in our home state. He was quoted in the Providence Journal as depicting my activities as emblematic of developers leading their blind aunts in front of them at knifepoint to beseech our own stuk legislature for relief. This would be somewhat akin to suggesting that Martin Luther King only advocated racial equality because he was black. I ask that if Senator Chaffee or the committee believe that this is oury iment in entering this process they request my testimony in person so that I may defend inyself against such allegations.

I did, in fact, and on numerous occasions request an opportunity to testify before Senator Chaffee's committee in the process the results of which he seeks to report to you today. Perhaps he or his staff felt the inclusion of lay voices on the issue of legal precedent to be inappropriate. I can't imagino another reason for excluding one's constituent who has an unparalleled record of advocacy on the isomess being discussed in the Chairman's home scale.

Actually, that very line of reasuning indicates why legal precedence is of little iinport to solving the immediate civil rights problems which many citizens are experiencing relative to propeny Rights. Precedence and arcana are somewhat synonymous in this as in all cases. They are not beyond the underwanding of the laity, but simply beyond their ken. In the real world. precedence will no inure were to protect an individual's property rights than they could protect a black man being beaten by a gang of whiter intolerant of whatever expression of equality they perceived to be inherent in the victim's existence. Knowing that one's civil righus, as well as one's person, are being violated in such an incident dous little lo soften the blows, nor does it give an individual empowered by that knowledge much protection again such an attack in the first place. For all the laws and precedence on racial equality, we have spent 1.50 years trying to achieve it, only to find it is still held hostage by attitudes which are in many ways unaffected by the couns. Bureaucrats are no different from gangs in that they are likewise incular to the civil import of their actions.

But the depth of my own acumen and contemplation of precedence in this issue gocs far beyond the obvious admonitions of Justice Stewart. Senator Chaffee in addressing his own committee has attempted to open wide the umbrella of “Reciprocity of Advantage“ and husband under it all his sacred environmental legislation.

"...does it really make sense to pay a property owner to comply with a low chane imposes a festrielion on the uses of his land when the value of his property also is enhanced by the very same restriction being imposed on his neighbors?" text of remurks hy Senuur Chaffee delivered prior to heuring winesses in Cronmittee on Environment und Public Works, June 27, 1995

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If one examines the history of this theory, one must admit than it is suspect froin the stan. having its origins in class warfare that continues to permcate all debates over civil rights, including these over propeny rights.

The 1926 decision which is recognized as most hearily endorsing and advancing the theory. Euclid v. Amber (47 S.C. 114), basically endorses segregation in disguise. He is the foundation of the current overexpansiveness of local zoning adventures. For those unacquainted with the facis of the case. in brief, il examined the rights of the Town of Euclid Ohio to restrict the construction of apartınene hornes (thore housing more than 2 families in this case) on significant portions of a tract owned by Amber Really. At that tiine of unparalleled expansion in the country with waves of immigrants Mocking to the symbol of the Statue of Liberty, the term 'apartment dwellers' was vinually synonymous with the lower classes of such masses of humanity. Some scholars suggest that the decision itself was based nor as much in low is in the personal discaste of the justices for the mixing of the classes.

If one follows the paper trail of this case, it actually leads to the positing of just such an argunxent by the appeals judge in the ruling which gave rise to the Supreme Coun Case (297 F..307). In holding the 'woning' restriction imposed by the town of Euclid to be constitutionally invalid. Justice Westerhaven Hetes in part:

"Compare. also... ...Buchanan v. Warley. 245 U.S. 61), 38 Sup.C1. 16. 62 L.Ed. 119, L.R.A.
1918C, 210. Ann. Cas. 1918A, 12011, in which an ordinance of the city of Louisville, held by the state
Supreme Count to be valid and within the legislative power delegated to the city, districting and restricting
residential blocks so that the white and colored races should be segregated. was held to be a violation of the
Fourteenth Amendment and void. It seems to me that no candid mind can deny that inore and stronger
reasons exise, having a real and substantial relation to the public peace, supporting such an ordinience thun
can be ursed under any aspect of the police power to support the present ordinance as applied to plainitt's
propeny. And no gift of second sighe is required to foresee that if this Kentucky stilule had been sustained.
its provisions would have spread from city to city throughout the length and breadth of the land. And it is
equally apparent that the next step in the exercise of this police power would be to apply similar restrictions
for the purpose of segregating in like manner various groups of newly arrived immigrants. The blighting
of property valuex and the congesting of population, whenever the colored or cenuin foreign ruces invische a
residencial section, are so well known as to be within the judicial cognizance."

The vernacular of Judicial Cognizance' at that point was evidently less culturally sensitive in that day, but was quite clearly honcst on this point. As a person who supports the move to devolution. I recognize local zoning, which was at issue in this case, to be administered at essentially the smallest practical unit of government that exists, however, I no more support unconstitutionil genrymandering escomplished by local zoning that I do the anti-development ethic currently masquerading just buncith the murtees of even our most revered federal and state environmental laws.

I do however recognize that there is a significant difference in legal interpretation of the extent of the potice powers between locally and somewhat evenly intrusive regulation and the types of scale and federal policies that John Chaffee would seek to pull under the reciprocity of advantage' umbrella. Senator Chaffee, in fact, does a disservice to those of local ordinances that do work cunstitutionally and serve the needs of their community when he attempts to append his concem for federal regulatory power to their couttails (or robe tails if we are discussing precedents. Regalation of the son Senator Challee would append to the "reciprocity of advantage“ defense against the Sth arncndinene is far inore selective in its import than zoning regulation. For instance, if you own a wetland and several of your neighbors do mn. they may theoretically he subject to the wetlands statutes, but the only one who has given anything is the Tamony of Brian Bishop


person who owns wetlands. People who do nor own wetlands have no token to offer in return for their advantage gained from the restriction placed on the weiland owner. This is why such regulation falls under a more limited interpretation of the police powers.

If, in fact, we perceived a world of pure 'reciprocity of advantage' as John Chaffee advocates, we could solve all our budget woes because we would have no expenses. All the needs of government could be exacted willy-nilly from whichever citizens happened to have them based on the concept that they inight as readily have been taken from some other citizen who had the inisfortune to own that which the public coveted. More specifically, imagine such a concept applied to public roadbuilding during the construction of our interstale highway system. Concepts as put forward by our environmental regulatory burcaucracies of today. if employed by the transit bureaucracies during that period would have readily resulted in the seizure of the vast majority of the interstate system without the payment of compensation.

The interstate's by design. while connecting urban centers, ran largely through less developed areas. For the most part, they did not require the condemnation of the entire holdings of inost individuals. but only a portion thereof. The construction of the system was viewed as critical to interstate commonroe (the ostensible public good protected for instance by the Army Crops Section 404 authority which Mr. Chaffee heralds as a vanguard of our environmental protection). li certainly had public safety iinplications relative to relieving congestion and traffic hazard through provision of limited access roadways for those traveling longer distances at higher speeds. Movement of goods and services needed for public safüry and convenience were greatly enhanced as well.

It could readily be argued that those whose land was required to provide for such well intended improvement of the public condition would.benefit equally with other citizens, perhaps even a liale nwre so due to proximity, although this so-called ‘givings' argument is specious in today's world when taken in context of the overlaying layers of regulation controlling capitalizing on such opportunity. Il also presumes that the farmer whose land is bisected by a highway would prefer to open a McDonald's rather than remain a resource worker (see again, the attached editorial retelling of the story of Bill Stamp. a Rhode Island Farmer who received just such a 'giving when the town of Cranston declared his land to be a valuable industrial site.) Such "givings' are never without their negative consequences which are in addition to potential specific loss of property. In fact, very few people clainor to have a highway through their neighborhood. Above all, this argument fails, because regardless of benefit whether positive or negative to those whose land must be taken for a road, there is no corresponding exaction made of others who bencfit in relative equality from the construction of the highway. The great equalizer is the recognition of the need to compensate.

Under current bureaucratic thinking, compensation would be unnecessary if a property owner's entire property were not taken for a highway. Application of the Lucus precedent in strict reliance on the largely held misperception that 'all beneficial use' must be lost in order to trigger the Sth annendment could have let the 'transitocracy of the day avoid compensation if they simply left a propeny owner enough space to build a hou on, or a few acres to grow potatoes.

Some argue that this scenario is a mixed metaphor. In the case of highway construction, the stick taken from the proverbial bundle is “ownership", in the case of regulation, it is “use“. The coun they arguc does not view all the sticks in the bundle equally. I suggest that such opponents of property rights cannot see the forest for the sticks. Each stick in the bundle is critically important or the peasant need now

Testimony of Brian Bishop



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