The Convention when fully implemented (about 50 years) will produce a society where, according to the tenets of the "Wildlands Project", half of the land mass of the United States will be reserved for animal habitation with no human intrusion. There will be another 10% of the land devoted to buffer zones and connecting corridors to give the wild-life easy access from one preserve to another. The remaining 40% of America will be the home for human populations(3) that have accepted the "new social ethic" as proposed by the State of New Jersey.(4)

Comprehending this radical change in the way society lives is difficult, and writing about these changes poses a real challenge. It becomes necessary to divide the subject into small, hopefully understandable, blocks of information.

A partnership between the United States Department of Housing and Urban Development (HUD) and the American Planning Association (APA) has produced two endeavors about which the mainstream media has neglected to inform us: one, an expenditure of two million of your tax dollars and; two, what the taxpayer has received for that expenditure -- a "Growing Smart Legislative Guidebook Model Statutes for Planning and the Management of Change." The key phrase in the title of the guidebook is "Statutes for Planning and the Management of Change." A second publication accompanies the "Guidebook". The "user’s manual" is designed to aid the professional planner and local bureaucrats in understanding how the "Management of Change", or "Guidebook" (1,000 plus pages) will alter or change life as we know it. Both the "Guidebook" and the "Manual" can be downloaded at the American Planning Association's website: http://www.planning.org/growingsmart/

Federal legislation intended to give financial teeth to the "model statutes" and entice local communities to implement the program is winding its way through Congress as the "Communities Character" legislation. The Senate version is SB 975 and, with slight variation, the House bill is H.B. 1433. Local zoning rules and regulations will take on new meaning if the Federal government succeeds with this legislation. Written Testimony of R. James Claus, Ph.D. regarding "America Planning Association's Legislative Guidebook and Its Potential Impact on Property Rights and Small Businesses, Including Minority-Owned Businesses" before the 107 th Congress U.S. House of Representatives Judiciary Subcommittee on the Constitution gives ample understanding how the average citizen's life is intended to change. The testimony was given on Thursday, March 7, 2002. Dr. Claus' testimony is available for downloading at: http://www.house.gov/judiciary/claus030702.pdf. For information about Dr. Claus’s background reference http://www.house.gov/judiciary/vitae.pdf
(The best way to access these is to go to www.google.com, in the search line type in: R. James Claus and search. Then go to the most appropriate location found by the search.)

His testimony before the House, with appendices, is 26 pages long, therefore, we must limit reference to the high points and encourage the reader to examine the testimony further on his own. In Appendix I, Dr. Claus provides a brief explanation of how the section of the "Guidebook" referenced may be in contravention of existing Constitutions. Any comments of ours will be in blue.

The information presented will provide the reader with a better understanding of how freedoms will be restricted if states are allowed to implement the provisions called for in this "Guidebook." Thwarting this movement will depended upon the average citizen becoming aware of what’s happening and then getting involved. Remember, New Jersey’s intent is to create a "new social ethic."(4) The following quotes are from Dr. Claus’ Appendix I:

A single state-planning agency is created and has the responsibility for creating a comprehensive plan addressing the economic, social and physical development of every community in a state. (4- 102).

A State Futures Commission is created in order to formulate a "Strategic Futures Plan" to present to the state legislature - a discussion of and recommendations concerning economic, demographic, sociological, educational, technological and related issues affecting the state and each local community. (4-201(7))

State agencies are given approval authority over local government regulatory plans this could violate state constitutions, like Georgia's, that give zoning authority directly to counties and municipalities. (7-402.2)

State legislatures must require local governments to draft ordinances to mandate that virtually all employers adopt and implement a commute trip reduction program which must include, among other things, designation of a transportation coordinator, annual reporting to local authorities and implementation of transportation measures, such as providing subsidies for transit fares and permitting the use of the employer's vehicles for carpooling. (9-201) Local governments are encouraged to adopt zoning ordinances that promote the use of transfers and purchases of development rights, with the goal of frustrating efficient private growth. (p. 9-56 - 57; p. 9-64) PDRs (purchase of development rights) do not transfer ownership. It only transfers your right to develop your own property. Taxes will still be assessed against the property.

A business can be found criminally liable for violation of an ordinance regulating the aesthetic content of its sign. (11-302; 8-201(3)(m)) The voters in Shelby County, Alabama authorized the inclusion of individuals that can be singled out for criminal prosecution. Seeking to broaden home rule for the county the voters transferred the right to prosecute actions that were not previously considered criminal to the State Government -- a reversal of their stated intent. HB 705 Section 6 of the County’s Home Rule amendment states: "The Legislature of the State of Alabama, by local law, may provide criminal penalties for violations of certain activity and certain conduct in Shelby County if the activity or conduct involves the health, safety, and welfare of the citizens of the county...." Included in the list for criminal activity is the following: "3. The use and control of public parks, lands, buildings, equipment, and real or personal property." Instead of advancing the cause of home rule in Shelby County, Section 6 grants immense power to the state legislature. Home Rule legislation across the State has thus far included this stipulation.

How the Fourth Amendment to the Constitution is violated:

Administrative warrants can be issued to search private property if the search is consistent with a valid administrative scheme, such as housing safety - probable cause is not required. Inspection warrants issued pursuant to an administrative scheme can be easier to get than criminal search warrants. (11-104(4); see also Camara v. Municipal Court, 387 U.S. 523 (1987) and See v. City of Seattle, 387 U.S. 541 (1987))

Local governments are authorized to obtain inspection warrants for suspected land violations without first notifying the owner of the property that the property is the subject of an investigation. (11-101(4) - (7))

Local governments may obtain an inspection warrant based upon any allegation that someone is in violation of land regulations - such an allegation may be made by anyone, such as neighbors, nearby businesses or other "interested citizens." (11-101(6))

Local officials and police are exempted from common law and statutory trespass when they are on owner's property to inspect possible land use violations. Property owners lose the right to exclude others from their property. (11-101(5))

Inspection warrants can be sought for any land use violation - local officials could rezone high crime residential areas enabling code enforcement officers (accompanied by the police) to search every building in the rezoned area for suspected violations. (11-101(4))

While the local police are not authorized to participate per se in the inspection of property for land use violations, the model statute does allow them to accompany local code enforcement personnel and enter and inspect the property without such entrance into the property being considered a search by the police. (11-101(5)) This could allow the police to surreptitiously gather evidence for possible criminal charges against a property owner.

How the Fifth Amendment to the Constitution is violated:

The designation of any area as a "Design Review District," is allowed - these areas are then subject to mandated interior and exterior standards of design. (9-301)

A "Certificate of Appropriateness" is required before a business owner in a Design Review District can make any changes to the interior or exterior of his or her business – a process involving layers of bureaucracy and subject to the personal opinions of government officials on design, taste and appropriateness. (9-301(7))

Local governments are empowered to designate undeveloped private land as an Historic Landmark that has archeological or cultural interest and require a Certificate of Appropriateness before the land can be developed. (9-301(1)(g))

Local governments can define any "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(3)(c); 9-101(5)(f); p. 9-9)

The Guidebook authorizes zoning of land uses and structures within the local jurisdiction without regard for current uses. (8-201(3))

Current subdivisions or resubdivisions of land that have not been approved by the local government pursuant to the Guidebook's recommendations are considered void. (8-301(4)(b)) Subdivision includes any land that is divided into two or more parcels for development or use. (8- 101)

Local governments are permitted to halt all profitable uses on a land without just compensation. (9-402(1)) The Guidebook authorizes compensating the owner for the "use" only, not for the value of the land. (9-402(5)(b))

Local governments can prevent development or use of land by forcing the owner to accept development rights on another parcel of land (9-401). This violates the federal and state constitutions that demand that just compensation be paid in money. (p. 9-43)

The Guidebook criminalizes and allows imprisonment for anyone who intentionally or knowingly violates any land development regulation, including, for example, the failure to conform to design standards set for a Design Review District or the failure to establish a commute trip reduction program. (11-302; p. 11-37)

Local governments can demand dedications in exchange for the issuance of a building permit without proper justification. The model statute only requires that a dedication be in "reasonable proportion" to the demand for such improvements that are "reasonably attributed" to the proposed development. (8-601(4)) The Supreme Court, however, explicitly rejected such a reasonable relationship test, stating that, "[W]e do not adopt [the reasonable relationship test] as such . . . We think a term such as "rough proportionality" best encapsulates what we hold to be the requirement of the Fifth Amendment. 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 impact of the proposed development." (Dolan v. City of Tigard, 512 U.S. 374, 391 (1994))

The Guidebook promotes the amortization of non-conforming uses, structures and signs over time. Essentially, the local government can pass an ordinance making certain current uses of property illegal - thus rendering the current uses "non-conforming" with new regulations. The local government then sets a time frame for the phase-out or "amortization" of the non-conforming uses. (p. 8-109) This allows local governments to get rid of unwanted uses and/or property owners without having to provide any compensation. The Guidebook specifically names signs as easy targets for amortization (8-502(4)). Such amortization provisions violate several state constitutional and statutes. (p. 8-119) The time allotted to conform to the present authorized use is 3-5 years.

How the Tenth Amendment to the Constitution is violated:

The model statutes in the Guidebook are directives for state action - for example, Section 4-203 states that the state planning office shall prepare a state comprehensive plan and directs the state to undertake supporting studies in 16 different areas in its preparation of its comprehensive plan. (4-203(3)) By adopting the model statutes, a state is subjecting itself to the mandates of the federal government.

Uniform national standards hinder the ability of developers to work with local governments to plan and build developments. For example, even if a developer achieves local approval on a project, the developer will be subject to possibly prohibitive uniform national standards that are predetermined on the federal and state level, having little or no relevance in the developer's community. (8-101)

How the Fourteenth Amendment to the Constitution is violated:

The model statute on historic and design review districts provides for local governments to arbitrarily designate any area as a "Design Review Districts" and subject property owners in just those areas to mandatory standards on the design and aesthetics of the interior and exterior of their property. (9-301) This amounts to an intentional difference in treatment and a lack of rational basis for that different treatment.

Dr. Claus’s was joined in his rightful denunciation of the Federal legislation and the “Guidebook” by Harry C. Alford President/CEO National Black Chamber of Commerce, Inc. His testimony was given before the House committee on March 7, 2002. His written comments may be viewed at http://www.house.gov/ judiciary/alford030702.htm

Footnotes:

1. The public notice published in the Federal Register: August 24, 1998 (Volume 63, Number 163) on page 45155 to Page 45156 announces the Sustainable Development Challenge Grant Program. The notification stipulates that "smart growth" and "sustainable development" in addition to other programs are part of the implementation process of the United Nations Agenda 21, "....signed by the United States at the Earth Summit in Rio de Janeiro in 1992."

2. The June 2000 newsletter published by The East Alabama Regional Planning Commission heralds the partnership between the Commission and Jacksonville State University to present a "Smart Growth". The conference was held at the University on June 1 and 2 of that year and the newsletter defines "Smart Growth", "Sustainable Development" and "New Urbanism" one program that has utilized different labels. The newsletter does not mention "Agenda 21" or the United Nations.

3. The June 25, 1993 vol 260 issue of Science magazine page 1868 published a review of the Wildlands project. "Designed to protect biodiversity in North America, the project calls for a network of wilderness reserves, human buffer zones, and wildlife corridors stretching across huge tracts of land -- hundreds of millions of acres, as much as half of the continent."

4. Page 15 of The New Jersey State Development and Redevelopment Plan. (New Jersey and a number of other states have already issued plans incorporating elements from the "Guidebook." The goal is for all states to develop such plans for the "new social ethic." We see this as a major reason for the push to rewrite Alabama’s Constitution.)