Islander. Bill Stamp, who faces destruction of a legacy of 5 generations farming in my state at the hands of

| of state and federal wetlands regulators.)

Of utmost importance are the comments of Justice Stewart in Lynch vs. Household Finance ( N S.C.1113 @ 1122):

**... the dichotomy between personal liberties and property rights is a false one. Property does not have rights. People have rights. The right to enjoy property without unlawful deprivation, no less than the right to speak or the right to travel, is in truth, a 'personal' right". Congress, with or without Senator Chaffee, must lead the discussion of property rights 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 to Martin Luther King, but my motives are as pure and my ideology as unwavering. It is of great concern to me that Senator Chaffee 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 state 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 my iment in entering this process they request my testimony in person so that I may defend myself 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 imagine another reason for excluding one's constituent who has an unparalleled record of advocacy on the issues being discussed in the Chairman's home state.

Actually, that very line of reasoning indicates why legal precedence is of little import to solving the immediate civil rights problems which many citizens are experiencing relative to Property Rights. Precedence and arcana are somewhat synonymous in this as in all cases. They are not beyond the understanding of the laity, but simply beyond their ken. In the real world, precedence will no more serve to protect an individual's property rights than they could protect a black man being beaten by a gang of whites intolerant of whatever expression of equality they perceived to be inherent in the victim's existence. Knowing that one's civil rights, as well as one's person, are being violated in such an incident does little to soften the blows, nor does it give an individual empowered by that knowledge much protection against 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 courts. Bureaucrats are no different from gangs in that they are likewise insular to the civil import of their actions.

But the depth of my own acumen and contemplation of precedence in this issue goes 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 law that imposes a restriction 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 remarks by Senator Chaffee delivered prior to hearing witnesses in Committee on Environment und Public Works, June 27, 1945

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If one examines the history of this theory, one must admit that it is suspect from the start, having its origins in class warfare that continues to permeate all debates over civil rights, including those over property rights.

The 1926 decision which is recognized as most heartily endorsing and advancing the theory. Euclid v. Amber (47 S.Ct. 114), basically endorses segregation in disguise. It is the foundation of the current overexpansiveness of local zoning adventures. For those unacquainted with the facts of the case. in brief, it examined the rights of the Town of Euclid Ohio to restrict the construction of apartinent homes (those housing more than 2 families in this case) on significant portions of a tract owned by Amber Realty. At that time of unparalleled expansion in the country with waves of immigrants flocking to the symbol of the Statue of Liberty, the term ‘apartment dwellers' was virtually synonymous with the lower classes of such masses of humanity. Some scholars suggest that the decision itself was based not as much in law as in the personal distaste 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 argument by the appeals judge in the ruling which gave rise to the Supreme Court Case (297 F. 307). In holding the 'zoning' restriction imposed by the town of Euclid to be constitutionally invalid. Justice Westerhaven states in part:

"Compare, also...

...Buchanan v. Warley. 245 U.S. 60), 38 Sup.Ct. 16. 62 L.Ed. 149. L.R.A. 1918C, 210, Ann. Cas. 1918A, 1201, in which an ordinance of the city of Louisville, held by the state Supreme Court 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 more and stronger reasons exist, having a real and substantial relation to the public peace, supporting such an ordinance than can be urged under any aspect of the police power to support the present ordinance as applied to plaintiff's property. And no gift of second sight is required to foresee that if this Kentucky statute 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 values and the congesting of population, whenever the colored or certain foreign races invade a residential 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 honest 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 unconstitutional gerrymandering accomplished by local zoning that I do the anti-development ethic currently masquerading just beneath the surface 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 police powers between locally and somewhat evenly intrusive regulation and the types of state 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 constitutionally 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. Regulation of the sort Senator Chaffee would append to the "reciprocity of advantage” defense against the 5th amendment is far more selective in its import than zoning regulation. For instance, if you own a wetland and several of your neighbors do not, they may theoretically he subject to the wetlands statutes, but the only one who has given anything is the Testimony of Brian Bishop

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person who owns wetlands. People who do not own wetlands have no token to offer in return for their advantage gained from the restriction placed on the wetland 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 might as readily have been taken from some other citizen who had the misfortune to own that which the public coveted. More specifically, imagine such a concept applied to public roadbuilding during the construction of our interstate highway system. Concepts as put forward by our environmental regulatory bureaucracies 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 most individuals, but only a portion thereof. The construction of the system was viewed as critical to interstate commerce (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). It certainly had public safety implications 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 safety 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 little more 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. It 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 clamor 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 benefit 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 5th amendment could have let the 'transitocracy of the day avoid compensation if they simply left a property owner enough space to build a house 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 court they argue 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 not

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carry such a burden. Further, the precedent of Lucas is to uphold the concept that preventing practical and reasonably expected use can and will be considering a taking under the Sth amendment.

At this point, the environmentalists have retreated to their Maginot line which is the concept that 'all beneficial use' must denied in order to trigger compensation. This is morally and rationally incorrect, as well as inconsistent with precedence. If we follow the rational argument that denial of beneficial use is essentially equivalent to condemnation (effects inverse condemnation), then we must ask: Why it is that if a portion of a person's property is condemned for a public purpose, such action is compensated, but if that person is denied use (inverse condemnation) of a portion of their property, such an action is incompensible. Such a paradigm should not be incompensible, but indefensible.

This is one area in which I agree with Senator Chaffee. The one aspect in which both House and Senate efforts to right the listing ship of property rights have failed the public discussion is the inclusion of a percentage cap. I said as much in House Task Force on Property Rights and I say so again here. I understand the concept that such a cap serves as a 'de minimus" but its inclusion clouds the argument and allows Senator Chaffee to expound the entirely false argument that the bill proposes to create rights in excess of those available under the constitution.

I am quite well aware that your efforts are only to make available those rights which are inherently ours under the constitution. For reasons of pragmatism in government, your inclusion of the cap has allowed arguments to be turned against us which have no business being made. Senator Chaffee apparently asks you to remove the cap from the bill and I concur.

“After all, isn't it somewhat arbitrary to compensate one owner whose property has been devalued by just one percentage point below that same threshold?” text of remurks by Senator Chaffee delivered prior to hearing witnesses in Committee on Environment and Public Works, July 12, 1995

You need not go far to find precedence supporting such an action. Dolan vs. City of Tigurd is perhaps the most well none decision recognizing a partial taking. The formula has nothing whatsoever to do with the percentage of impact either area wise or economically. In essence it considered the subject area of property which was proposed to be exacted for drainage and for a bike path almost as if it were a separate piece from the unaffected remainder of the plaintiff's property. Again, the argument is made that the stick of the bundle which allows you to exclude others is pretty important and that this is the basis upon which the proposed exactions for a bike path from Florence Dolan were overturned by the court.

Other anti-use regulations, environmentalists argue, go after different sticks in the bundle of rights and might not be subject to as strict an interpretation as posited in Dolan. Of course, the drainage easement had nothing to do with allowing people to traverse the property and was held equally invalid. Some suggest that the court left the door open for municipalities and agencies to justify such exactions. which is not untrue, it simply changes the burden of proof which had rested on the petitioner to a more balanced framework, but above all, recognizes quite clearly that the false doctrine that a partial taking is not a taking is non-existent.

This is echoed in cases decided against the regulators which the Supreme Court has chosen to decline to hear. Those include Loveladies Harbor v. United States (28 F.3d 1171) which held inappropriate the consideration of prior financial reward obtained by the plaintiffs in developing 200 acres of a 250 acre tract in relation to determining whether the Army Corps had committed a taking under the 5th amendment by preventing the development of the remnant 50 acres. Also of pertinence Florida Rock Testimony of Brian Bishop

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Industries v. United States (18 F.3d. 1560). The specificity of this decision illuminates the per force' existence of a partial takings doctrine. The findings of the appeals court are that “evidence did not support finding that all economic use or value of property was taken by regulatory decision” (from the West Law summary of the case) and the case was still remanded to determine whether a taking had occurred. While not, to my knowledge, finally adjudicated, the very point of the remand is that there is such a thing as a partial taking.

In fact, cases such as Lucas which refer essentially to a complete economic taking recognize such an action as a “prima facie“ taking while demanding an ad hoc examination of other situations suggesting that and regulatory action which results in more than a “mere diminution in value” is ripe for examination as to partial takings implications. Of consideration in such assessments are the character of the regulatory action or exaction involved in comparison with the investment backed expectations of the property owner. The doctrine expound in Dolan (114 S.Ct. 2309) is perhaps the simplest distillation of this process when the decision states “the necessary connection required by the Fifth Amendment is `rough proportionality." No precise mathematical calculation is required, but the city must make some sort of individualized determination that the required dedication is related both in nature and extent to the proposed development's impact."

As a property rights advocate I applaud this bright line. It is perhaps even less strict than I fool the constitution truly requires, however it is a workable paradigm. In theory. Senator Chaffee supports this decision as well. The problem now is in practice. How may we receive the benefits of this decision down here in the real world. The administrative process you implement in the context of S-605 must be one in which lay persons can participate and in which they can argue the "rough proportionality” of agency actions. The percentage of impact is unimportant and should be removed from the bill. Instead the trigger should be any action which is not roughly proportional to the impact of a property owners action or inaction.

Will this cost money. In the immediate sense. yes. No discussion of precedent or the monetary implications of takings law would be complete without a final reference to Justice Holmes's writing in the most oft quoted decision on takings in Pennsylvania Coal v. Mahon(43 S. Ct. 158). Holmes wrote “Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law. As long recognized some values are enjoyed under an implied limitation and must yield to the police power." and this is the line constantly quoted by environmentalists. This is on the second page of the decision, and apparently most environmentalists have short attention spans, because they failed to read the rest of the decision. Otherwise I am sure they would never publish such a remark without reporting these qualifications enumerated try Justice Holmes on the third pages: "The protection of private property in the Fifth Amendment presupposes that it is wanted for public use, but provides that it shall not be taken for such use without compensation... ...When this seemingly absolute protection is found to be qualified by the police power, the natural tendency of human nature is to extend the qualification more and more until at læst private property disappears. But that cannot be accomplished in this way under the Constitution of the United States. 191 The general rule at least is that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking....... We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter col than the constitutional way of paying for the change.”

If we have to 'pay for the change', as Justice Holmes suggests, will we be hoist on the petard of the budget? Such arguments, along with Senator Chaffee being the foil for environmentalists interests in Testimony of Brian Bishop

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