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As Long as We Remember...

August 25, 2011

Invasive State Control of Growth Part 3

Farrell Keough

In our continuing conversation about of the governor’s PlanMaryland proposal to restrict land use, we now move forward to analyze two areas directly affecting every Marylander.


Property Rights


Per the plan:


Possible Actions to achieve Goal 2: Preserve and protect environmentally sensitive and rural lands and resources from the impacts of development.




4. Develop strategies that protect privately owned environmentally sensitive and rural lands without using public financial assistance.




9. Limit the number of lots created in a subdivision that use [sic] on-site septic disposal systems.


10. Prepare and publish model ordinances for restrictive zoning, mandatory clustering, county easement programs, Installment purchase agreements for farmland preservation, and other easement programs and financial incentives. 14


This possible action walks the edge of legal precedent. While we have seen more and more regulations and zoning requirements under the rubric of environmental protection, these new proposals push those boundaries beyond generally accepted limits. For instance, the justification for numbers 9 and 10 are derived from the Chesapeake Bay Watershed Model Phase 5.3. As noted previously, the septic data for this model was deemed unrepresentative and unusable; hence, the need to limit such development has no scientific justification.


Also, the model ordinances, as we have seen in the previous sections of this commentary, will be overseen by an unelected bureaucracy without input from either local governments or property owners. This type of restrictive zoning is rife for interference with constitutional property rights.


Finally, number 4 in this section skirts the edge of how far a government can move to protect environmentally sensitive areas that are privately owned. As established in legal precedence, when a government moves too far in restricting private property, it can constitute a “taking.”


Over the years the courts defined four basic situations where a “regulatory taking” will be found to have exceeded the police power by government. These are:


1. Where regulation has denied the landowner all “economically viable use” of the land;


2. Where the proposed regulation of property places burdens on the landowner that do not bear a reasonable relationship to the impact of the project on the general health, safety, and welfare of the community;


3. Where the regulation forces a landowner to physically accommodate a nongovernmental institution on his private land; and


4. Where government has acted to regulate land use, employing a more intrusive and burdensome means rather than the less intrusive and burdensome alternative. A classic example is when government requires a dedication of floodplain property from an owner rather than simply prohibiting certain types of development in the floodplain.




In a sense, the law of regulatory “takings” can be seen as an attempt by the Supreme Court to define the outer limit of permissible regulation, even as it deals with specific fact situations that defy easy categorization. The result is an area of the law that is difficult to analyze and even harder to predict. 15


The inability to predict court decisions regarding these kinds of regulations should not be the driving force as to whether they constitute a potential taking. While government has a function in regulating zoning and protecting certain assets, it also has a requirement to protect the rights of individuals. These proposals have a strong potential to infringe upon the property rights of individuals or even local governments.


State Controlled Market


While government interaction in the business environment is both necessary and common, this relationship should be limited.  “Just like supply-side economics, free market is a term used to describe a political or ideological viewpoint on policy and is not a field within economics.” 16


As a general proposition, government is a number of years behind the economic environment and does not have the flexibility to make necessary changes required by the market. Maryland tends to choose winners and losers in the business market. Following the fashionable ideology of Smart Growth contained in PlanMaryland, businesses classified as Green Jobs are the promoted industry.


Goal 3: Ensure that a desirable quality of life in Maryland’s metropolitan and rural communities is sustainable.

   Globally competitive - A green economy is advanced through strengthened coordination, communication and education among State agencies, local government, the general public and the private sector. 17


In May, 2010, an internal report was released showing that Spain’s attempt at Green Jobs was a complete failure! Not only did this policy radically increased energy costs, but “Spain’s ‘green economy’ program cost the country 2.2 jobs for every job ‘created’ by the state.” 18 In short, the push for Green Jobs has a negative effect – not just theory, but actual data.


Further, a 2009 report out of California revealed that overregulation by the State has harmed business. 19 Maryland, like the rest of the nation, is facing a serious problem of job loss – adding these additional regulations will only exacerbate this serious problem.


Even the Maryland Department of Planning validates that the state cannot control the market dynamics.


Data collected by MDP, however, demonstrate that State legislation has not created effective methods of constraining growth within existing designated growth areas, cities, and towns as envisioned by State policy. 20


When the government is limited, economies grow and people development more wealth. With that additional income, greater choice is available. PlanMaryland invariably limits such choice – a perspective which both antithetical to the formation of our nation and our human nature. As noted in the beginning of the commentary, we have only developed a little over 5% of the land in the continental United States since the 1600’s – there is no loaming crisis and limiting our choice will not benefit our state.


As documented by a study of California businesses19 over regulation of businesses yields very negative results. While government is a necessary aspect of a civil society, when it oversteps its boundaries, the results are always harmful. For instance, the choice of one industry type over another is not the function of government. PlanMaryland promotes Green Jobs, yet as evidenced by Spain, promotion of this industry increases energy costs substantially and leads to the loss of 2.2 jobs for every one job created.18


[Editor’s Note: This is the third of four parts of Mr. Keough’s analysis of PlanMaryland. The fourth and final part will appear tomorrow.]



14 Draft PlanMaryland 5-5, 6


15 “Rights in Property and Land-use Regulation: Tradition and Tensions in a Changing World”, Iowa State University, University Extension, PM1868c, February, 2001


16 Free Market, Investopedia,


17 Draft PlanMaryland 3-12, 13


18 “BREAKING: Leaked Doc Proves Spain’s ‘Green’ Policies — the Basis for Obama’s — an Economic Disaster (PJM Exclusive)”, May 18, 2010


19 “Report says regulations hurt state's economy”, September 25, 2009, By Wyatt Buchanan, San Francisco Chronicle


20 Draft PlanMaryland 2-16



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