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Private Property: An Endangered Species

Private Property: An Endangered Species
International Sign Association
April 6, 2002
Orlando , Florida
Becky Norton Dunlop

Thank you so much for allowing me to address you today. It is a great pleasure to speak to such a distinguished and influential group. I do want to thank Steve Kieffer and John Johnson for the invitation to come and to visit with you today.

Alexis de Tocqueville, the French author, came to America and toured the country and then wrote about some of things he saw that he believed made America a great country. One of the things that he talked about in his great work, Democracy in America, were voluntary associations. That is, people just like you, citizens who care deeply about their communities and their families, and the greatness of our country, coming together in a voluntary way to make things better. It always is a pleasure for me to talk to voluntary associations because I do know and understand the important role that you play in our country. It is also fun to come out and speak to influential people so I am glad to be here for that reason as well. So thank you very much for being here today.

I am certain that through the years this association has had many famous and distinguished speakers. While I am certainly not as famous, and perhaps less distinguished than some of those previous speakers, my topic today is really the headliner. Private property: An endangered species.

This is an issue of paramount importance for those whose livelihoods depend on ownership of property and the wise use and management of that property. And, it is an essential principle that requires defending by those of us who love liberty.

I'd like to share with you a story I heard recently that speaks to the value of signs and the importance of effective communication.

It seems that sitting on the side of the highway waiting to catch speeding drivers, a State Police Officer sees a car puttering along at 22 MPH. He thinks to himself, "This driver is just as dangerous as a speeder!" So he turns on his lights and pulls the driver over.

Approaching the car, he notices that there are five old ladies -two in the front seat and three in the back- wide-eyed and white as ghosts.

The driver, obviously confused, says to him, "Officer, I don't understand, I was doing exactly the speed limit! What seems to be the problem?"

"Ma'am," the officer replies, "you weren't speeding, but you should know that driving slower than the speed limit can also be a danger to other drivers."

"Slower than the speed limit? No sir, I was doing the speed limit exactly...Twenty- two miles an hour!" the old woman says a bit proudly.

The State Police officer, trying to contain a chuckle explains to her that "22" was the route number, not the speed limit.

A bit embarrassed, the woman grinned and thanked the officer for pointing out her error.

"But before I let you go, Ma'am, I have to ask... Is everyone in this car OK? These women seem awfully shaken and they haven't muttered a single peep this whole time," the officer asks.

"Oh, they'll be all right in a minute officer. We just got off Route 119."

This little story underscores the point of my remarks this morning. There are signs all around us that our rights as citizens of the United States are being eroded. The question for us to consider today is twofold: Do Americans see the signs? Do our fellow citizens understand what they mean to our future?

Are there citizens, like the ladies in the back seat, who are being taken for a ride and can sense the danger, but believe there is nothing they can do about it? Are folks depending on the trooper, the government to "save us" from peril?

Are some of us like the driver of that car? Have we missed the real meaning of the signs we passed and are driving merrily on our way toward potential disaster for all of us, for our children and for our country?

Well, this morning, I want to take a few minutes to discuss three points:

1) Private property is endangered.

2) Government is not protecting our constitutional rights.

3) Citizens who love liberty must become more involved in the political process.

There are signs in our land today telling us that our rights and liberties are being eroded. These are not the kinds of signs like those you and your colleagues erect. They are signs and signals that the government is sending and they are not particularly clear.
In fact, they are often deliberately vague. One might actually think they are “speed limit signs” when they are really “highway route number signs.” And sometimes, we citizens are told by our government not to worry about “that law” or “that regulation” or “that guidance document.” “Trust us,” we are told by our government. Well, as you heard as I was introduced, I worked for President Ronald Reagan. And, I will always remember what Ronald Reagan used to say, “Trust…but verify.”

Private property is a foundational element of our United States. It is inherent in the Declaration of Independence and clearly protected in the Constitution. As Professor Steven Eagle from the George Mason University put it, "It is property, after all, that enables individuals and organizations to exercise their other rights and enjoy the liberty that property affords."

Our Founders were determined in their writings to assure protections of certain liberties by setting out the Bill of Rights and ratifying these amendments just as they were ratifying the Constitution itself.

The First Amendment guarantees the freedom of speech. Those of you in this room are engaged in a debate, even as we speak, about whether the messages on signs or even the signs themselves constitute speech. Senator Mitch McConnell of Kentucky is right now leading an effort to demonstrate in the courts that campaign activities limited by the new campaign finance laws constitute free speech. These are both equally important issues in the context of our freedoms.

The Fourth Amendment guarantees "The right of the people to be secure in their persons, houses, papers, and effects…" Now, I brought with me today a story that was given to me very recently out of Oregon to illustrate the concerns that we need to have about the Fourth Amendment rights being eroded. It seems in Salem, Oregon, the Salem City Council recently adopted an ordinance regulating the size of the garden that a family could have in their back yard. A garden is limited in size not to exceed a few hundred square feet. The same Salem City Council adopted another ordinance that enables the council to deputize citizens as code-enforcement officers with the power to enter your property if they suspect a violation of the garden ordinance. Now you might ask, “If your garden is hidden from view in your back yard, how could there be any evidence to authorize entrance?” Well, every day, LANDSAT satellites pass over your back yard. And, university computers can easily identify changes in your backyard with a resolution of less than six inches. When you dig a garden plot, its size can generally be determined. Once a crop starts to grow, the crop type and species can be detected from outer space. If you planted a crop that was listed as an invasive species, the location by polar coordinates can be matched with your address. The address can be matched with the county property tax base, and the owner of the property identified. Once the owner is identified, the volunteer neighborhood enforcement officer can go to your home, verify the infraction, and write a citation. Now I mention this today, not because it would particularly affect you, but because this is an example of how our Fourth Amendment rights are being infringed. And, if you let your imaginations work or if you just walk the trade show aisles, you might well be able to see how this very same technology could affect people who are involved in your industry.

The Fifth Amendment states that "no person shall…be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation."

Constitutional guarantees are being eroded today. I suspect that many of you are aware of examples where private property has been taken without just compensation.

So, just what is private property?

Well, it is the fruit of one's own labors. More than land…it is material…yes. It also includes other possessions like buildings, signs, automobiles and other vehicles. It is bank accounts and stock. It is even ideas. But, make no mistake about it my friends, signs are not excluded from private property.

Defense of the right to own and control these properties, all of these properties, should be among our government's highest priorities. Instead, we see government at every level denying citizens their constitutional rights by regulations, by restrictive zoning, by permitting regimes, and other obscure bureaucratic but highly effective machinations. Costly, time-consuming legal battles often offer the only recourse and too often the price is simply too high for the property owner. The result of which is capitulation to the demands or just giving up the property.

President John F. Kennedy said in his inaugural address that the United States would be prepared to go anywhere and fight any foe in defense of freedom. Well, I would contend that one battle for freedom is right here in the United States today and it is fought at the ballot box, in the Halls of Congress, in state Capitols, city halls, and yes, in the Courts. My friends at the Defenders of Property Rights are doing yeoman work for your interests every time they take up a case in defense of the property rights of some American citizen. Please get to know the Defenders and give them encouragement.

During my tenure as Secretary of Natural Resources for the Commonwealth of Virginia during Senator George Allen's administration, I had a number of enlightening – perhaps a better word is frightening - experiences where the private property rights of Virginians were threatened.

I am certain that my experiences in Virginia were not unique to just Virginia, and as Margaret Thatcher said, "We have to fight a battle many times before we win it." Those battles I fought during my time in office will have to be fought in Virginia again and perhaps even during this current administration.

One of the very first challenges our administration in Virginia faced was the issue of staffing and funding a new government commission that had been passed by the General Assembly. It was up to the Governor whether he would sign this into law and staff and fund it. This commission, if it came into existence, would devise ways to manage the population and development throughout the Commonwealth. A group of appointed state employees would begin to engage in central planning for the future of the Commonwealth and its citizens.

Governor Allen decided against funding and staffing this commission so it never came into existence on our watch. But don't be surprised if it reappears under the new Governor because the champions of this commission advocating central planning now hold high office in Virginia, having just been appointed by the new Governor.

There were many other challenges that the Allen administration dealt with during our time in office, and I could regale you or scare you with stories. Let's just say we won more than our share and we always fought the good fight.

But let me talk briefly about the issue attracting the most attention these days, the one we know as "Smart Growth." This term, Smart Growth, was coined by Parris Glendening, the Governor of Maryland. What the term really means is centralized government planning and control of land ownership, development and zoning. And, wasn’t Glendening clever to come up with the term, Smart Growth? I mean, who among us is for dumb growth? But yet, the way that they define smart growth makes it something that we who love liberty and love freedom cannot abide.

Today, we see the primary tools for the implementation of the Smart Growth objectives being offered as "Guidebooks" or federal laws such as the "Community Character Act" or even the "Conservation and Reinvestment Act (CARA)." Each of these initiatives provides federal planning and control mechanisms though they certainly sound innocuous.

The "Guidebook" produced by the Department of Housing and Urban Development and the American Planning Association provides a "blueprint" for zoning and land use planning. Now, there are no mandates, the federal bureaucracy explains as it defends its creation, but federal funding is used as "an incentive." Well, believe me, federal funding used as an incentive is a mandate. I mean, just think about it for a moment. A bureaucrat you don’t know tells you or your local officials that they have a million dollars they’d like to give you, all you need to do is match the million dollars with local taxpayer money. And, by the way, there are a few strings attached. But, there are no mandates here. By the way, if you don't take this million dollars, then the next time we have some money to hand out, we may not come to see you about it. Oh, and by the way, we really like this particular program so if you don't agree with us, then perhaps next week we should come to audit some of the federal programs you do like so we can decide if we still want to fund those. It is very insidious. Milton Friedman, a great economist, once said that there is no such thing as a free lunch. Well, there is no such thing as a free federal handout, either. Incentives from the federal government are not as they seem.

I have today a few examples from this "guidebook."

• Chapter 8, Section 201 authorizes local governments to regulate 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.” In addition to authorizing virtually unlimited government control over a business’s ability to advertise, the government is granted control over even the content of a business’s sign.

• Chapter 9, Section 301 creates design review control boards, the purpose of which is to mandate what buildings and houses can look like. The section envisions the creation of geographically defined districts, Design Review Districts, wherein every building or house in the District will be required to “be united aesthetically.”

• Chapter 11, Section 301 Business and homeowners are not entitled to due process protections; local governments are not required to notify landowners of suspected violations. Rather, the guidebook calls for local governments to obtain a search warrant to investigate a zoning violation without even informing the landowner of the suspected violation. The local government can obtain a warrant to search and seize the owner’s property acting only on a tip that the owner is violating a land use regulation.

• Chapter 11, Section 302 authorizes the imposition of criminal sanctions for failing to comply with the zoning and land use requirements, without the intent requirement present in traditional criminal proceedings. “It is a criminal offense to intentionally [defined as knowingly] violate the land development regulations of any local government. Each day of violation may be considered a separate offense.” This means that a person could be sent to jail for unintentionally violating a land use regulation, if it can be established that the person generally knew that it was a crime to violate land use regulations.

Some of these "guidelines" sound pretty ominous to me. This is exactly the kind of information your association wants to inform you about to demonstrate the reasons you should get involved in the public policy process. You see, many of the real battles fought over policy in Washington, D.C., are fought way below the radar screen.

And, how about the "Community Character Act" (SB 975 and HB 1433)? This legislation sounds like a really lovely idea…community…character. What does this act do? Well, it would require local governments to implement land management plans, plans modeled after…surprise, surprise…"smart growth" statutes found in the Legislative Guidebook, which was developed by the American Planning Association and funded by HUD. Isn't it interesting how all these little initiatives are tied together?

Finally, let's look at the Conservation and Reinvestment Act. Millions of dollars have been set aside for federal government purchases of private lands, and millions more for state and local governments to buy even more land, which would then, of course, be planned and managed by government. Government officials, often with little public input or impact would decide the need for and location of the lands to be purchased.

So, what do we have here with guidebooks, community character acts, and other laws and regulations? We have private lands being purchased and put into the public domain; and private land being zoned, planned and guided by central planners. Sounds like private property is indeed endangered.

The International Sign Association has done a fantastic job in bringing some very important information to its members through several publications that I have seen.

The Signline publication Issue 33, which discusses the First and Fourteenth Amendments, has an excellent analysis and provides important background and information useful to you in contacting your elected officials.

The book, Unmasking the Myths about Signs, was superb and offers substantive documentation of the value that your industry provides to communities. It is useful to concerned citizens who do not have a background in your field because it helps them understand the threats to businesses and the false information put out about the sign industry.

The Heritage Foundation has also tackled the issue of smart growth. Our policy shop organized a group of scholars and experts to contribute to a book that Heritage published and now provides to policy-makers everywhere. This book includes facts, disputes the conventional arguments and offers new ideas to those concerned about our liberties and faced with government challenges to our freedom in the name of smart growth. I invite you to get a copy of this book which can be obtained from Heritage through our website, www.heritage.org.

Let me again emphasize the fine work your association has done with the publications I have mentioned. It is this kind of well-researched material that will provide you the information you need to lead in your communities the discussions and debates to defend liberty. And that is exactly what you need to do…lead. And you must believe in your cause in order to be a successful leader.

As I close this morning, let me restate our mission.

1. What is the battle about?

Constitutional rights and liberties

Private property

Free speech


2. Why is this important?

Our Future and the Future of our Children

3. What to do about it?


  • Get the International Sign Association publications
  • Support the Defenders of Property Rights
  • Get the Heritage Foundation publications

Familiarize yourself with the issues; get involved in the process

Thank you for demonstrating your concern by being here this morning. Thank you for your willingness to lead. Thank you for your attention. God bless you and God bless America.

* Prepared Speech