Ric Morgan on government “taking” (1 mb, mp3)
According to Mr. Morgan if county regulations require a property owner to give property, in this case land rights or water rights to Elbert County, it is a government taking prohibited by the 5th Am to the Constitution.
As of this writing, the proposed Master Plan section for Housing and the proposed Zoning Regulations for Planned Unit Development, require developers of 5 houses or more to convey 20% to 40% of their property to a third party who is acceptable to the Elbert County Planning Commission, or to Elbert County itself.
“All residential developments which create five (5) lots or more shall be zoned as Planned Unit Developments, Agricultural, or Agricultural-One. A minimum of forty percent (40%) of the “Gross Acreage” of the site shall be permanently dedicated open space, within residential developments, except those developments which are proposing ten (10) acre or larger parcels, which shall have a minimum of twenty percent (20%) open space.”
(Proposed Master Plan, pg. 4)
“8.) Open space should be conveyed to Elbert County, a metropolitan district, or not-for-profit entity, which can demonstrate to the County that it possesses the management capabilities and resources required to administer and perpetually defend the open space, for its intended purpose.
9.) Any land dedicated to Elbert County for regional parks or other open space shall include water rights in a sufficient amount to maintain vegetation and provide adequate fire fighting water supply.”(Proposed PUD zoning regulations, pg. 11)
To the property holder who must give that property away, whether the property goes to Elbert County or to a third party conservation trust of some sort, the conveyance is really a distinction without a difference. In both cases, the property owner is dispossessed of their property as a result of government action.
A government-ordered dispossession of property as a condition of enjoying the economic benefit that attaches to ownership of that property would seem to be a taking regardless of who the recipient is.
Conflict of Interest Issue (< 1mb, mp3)
To add insult to injury, the proposed Master Plan and Zoning regulations have the Planning Commission and the BOCC sitting in judgment over re-zoning applications that may include Elbert County as an interested party (grantee of property rights) in the outcome of such transactions.
