Are Scenic Byways Another Way to Steal Your Property Rights?

What could sound more friendly and beneficial than Scenic Byways? It has the sound of bucolic, small town scenic back roads being preserved for those quiet drives. Like so many ‘good’ programs, this one can cost the holders of property their property rights.

• These programs are a threat to private property rights…
• They are ripe for the creation of public-private partnerships...
• And they provide another way for NGOs (Non Government Organizations) to gain control of property...
  - To their benefit...
  - At your expense...

What follows are heavily edited supporting documents that government agencies and NGOs use to promote Scenic Byways...

Executive Summary

Who These People Were: The Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA) directed the Secretary of Transportation to establish a National Scenic Byways Advisory Committee to assist him in developing a national scenic byways program. The results:

• The 17-member committee included Federal agencies, local and State governments and interest groups.
• The Committee’s unique charter was to recommend minimum criteria for  agencies to designate and operate National Scenic Byways and All-American Roads to the Secretary of Transportation
• Criteria were to promote intrinsic qualities (scenic, historic, natural, cultural, recreational or archaeological) of the byways and the corridors.
• The Committee was enthusiastic. They saw a federally supported program to develop special scenic byways as long overdue.

How They Sold It: Here are the selling points that were promoted:

• Scenic byways programs offers an unparalleled CHANCE TO MOVE FORWARD IN PROTECTING AND PRESERVING significant assets by using a corridor management plan for each byway.
• Local commitments to get a Federal National Scenic Byways or All-American Roads designation.
• Scenic byways may increase tourism, new jobs and economic development.
• There is a demand for such roads, vacationers, tourists, etc.
• Historic and environmental preservationists can save significant sites.
• A federal program to satisfy demands in a systematic, coordinated fashion.
• The Committee portrayed its unanimous excitement over the potential benefits of the proposed program.
• The All-American Road concept is dramatic-with qualities unique to the whole world.

Here’s What They Came Up With: The Committee Report recommended these criteria for a National Scenic Byway or an All-American Road designation:

• Scenic, historic, natural, cultural, recreational or archaeological merit.
• User safety, facilities and local plans to maintain intrinsic values.
• Accommodate two-wheel-drive automobiles with standard clearances.
• Accommodate bicycle and pedestrian travel where feasible.
• Continuity; few gaps and continuous enough to enhance visitor experiences.
• Corridor management plans developed with public involvement.
• Plan for the byway operation, maintenance, how preservation and enhancement will be done.
• A map and inventory of existing/planned development.
• Plan a practical(?) balance between private property rights and public interest USING SUCH TRADITIONAL TOOLS AS LAND-USE ZONING, CONVEYANCE OF EASEMENTS AND ECONOMIC INCENTIVES.
• Plan for intrinsic value variance to protect sections with greatest intrinsic value.
• Evidence of local support, advocacy and commitment to the designation.
• Plan to support increased traffic.
• Local investment in roadway, lodging, dining, rest areas and other tourist necessities.
• Plan for multi-lingual highway directional signing and interpretive facilities.

Here’s How They Plan To Pay: The plan recommends using federal funds such as:

• Scenic byways grant funds.
• STATES MAY USE ISTEA SURFACE TRANSPORTATION PROGRAM (STP) FUNDS TO SUPPORT NATIONAL SCENIC BYWAYS PROGRAM OBJECTIVES.
• States use other ISTEA and other Federal funds.
• The Committee recommends that the FHWA encourage States to use normally apportioned Federal-aid highway funds for scenic byways program.
• AIM FEDERAL FUNDING AT ACQUIRING DESIGNATION AS A NATIONAL SCENIC BYWAY OR ALL-AMERICAN ROAD.
• Other Federal land management agencies may use FHWA Scenic Byways program grant funds as used by States with State agreements and as sole recipients of such funds.
• Funds for developing byways that are not State highways that are located on federally managed lands come entirely from Federal sources.
• A change in Federal legislation is needed to make this possible.

Here's where the Feds get in in a big way...

Scenic Byways – Part 2

THE FEDERAL NEXUS. The National Scenic Byways Program is voluntary, but the Feds designate a road corridor under the National Natural Landmarks Program.

Now you have two types of federal authority:

FIRST THE RIGHT/RESPONSIBILITY of a lead agency is to oppose developments that adversely affect a federally designated byway.
Example: The National Park Service fought a Texas water development (Patuxy reservoir) upstream of a federally designated National Natural Landmark.
So the FHWA may oppose any development in designated byway corridors where federal financial or permits are involved.

Second: An array of federal laws, REGULATIONS AND POLICIES MAY LIMIT THE USE OF PRIVATE PROPERTY in scenic byway corridors. Such as;

• Clean Water Act (wetlands),
• Endangered Species Act,
• National Historic Preservation Act,
• Transportation Act,
• National Environmental Policy Act,
• Coastal Zone Management Act,
• And various state and local equivalents

There are many cases involving a myriad agencies whose scenic byway designation has triggered federal involvement.

Following are two tables that define targets and tactics used:

TABLE 1 - LAND USE AND PROPERTY APPEARANCE TARGETS: 
COMMERCIAL TARGETS

• Oil and gas facilities
• Gravel pits
• Junkyards
• Mines/mining operations
• Aggregate extraction operations
• Borrow pits
• Dumps
• Spoil areas
• Strip development
• Facilities and services associated with the automobile
• Auto sales lots
• Gas stations
• Auto repair facilities
• Salvage yards
• Mobile home sales lots
• Logging/Timbering operations
• Development patterns and appearance
• Unsightly developments which mar or detract from the natural beauty
• Anything posing undue harshness to the eye and general chaos
• Any activity not visually attractive
• Farms operated for the disposal of garbage
• NEW RESIDENTIAL, COMMERCIAL AND INDUSTRIAL USES

VEGETATION AND LANDSCAPE TARGETS

• Clear cutting of trees
• Raw, degraded landscapes
• Un-landscaped, eroding construction scars
• Reservoirs

BUILDING TARGETS

• Dilapidated buildings
• Inappropriate buildings
• Trashed properties
• Buildings painted with outrageous or inharmonious colors
• Building layout and visual design
• Site design
• Cluttered yards
• Disorderly storage facilities
• Parking lots
• Loading areas
• Storage areas
• Fences
• Walls
• Tanks

INFRASTRUCTURAL TARGETS

• Transmission lines
• Substations
• Telephone lines
• Cleared corridors
• Roadside grading and clearing
• Communications facilities

ADVERTISING TARGETS

• Advertising structures
• Billboards
• Inharmonious signs
• Oversized signs
• Off-premise outdoor advertising
• Signs not controlled by type, height, siting, setback, material, color lighting and landscaping

TABLE 2 - COERCIVE LAND USE CONTROL MECHANISMS
CONTROL OF SCENIC QUALITIES

• Banning of new billboards
• Removal of existing billboards
• On-premise sign ordinances
• View ordinances
• Ridge top development limitations
• Development controls in scenic byway foregrounds
• Byway setback and height limits
• Use of Highway Beautification Act provisions
• Federal and state environmental review of highway projects
• Overlay zoning
• Scenic and visual quality design standards
• Wild and Scenic Rivers Act of 1968

 CONTROL OF CULTURAL AND HISTORIC QUALITIES

• National Historic Preservation Act of 1966, Section 106
• Section 23 USC 109
• State and local regulation
• Establishment of special review processes for cultural districts
• Design Standards

CONTROL OF NATURAL QUALITIES

• National Environmental Protection Act
• Clean Water Act Section 404
• Flood Emergency Management Act
• Coastal Zone Management Act of 197
• Endangered Species Act of 1973
• State and local regulations
• Stream valley and local floodplain ordinances
• Conservation ordinances
• Tree ordinances

Here’s How States Are Sold The Scenic Byways Bill of Goods…(Typical of other states…)

The role of the KSBC (Kansas Scenic Byways Clearinghouse) is to advise the Chief Landscape Architect and  Secretary KDOT (Kansas Department Of Transportation) on the following:

• Matters concerning general program development and implementation.
• Review road designation requests and the quafifications of nominated routes.
• Review corridor management plans on roads qualifying as scenic.
• Review results of the periodic status review of roads designated as Scenic Byways.
• Coordinate efforts of promotion and marketing of the Scenic Roads Program among the representative agencies.
• Coordinate actions necessary for National designation.

PARTICIPATION OF THE LOCAL GOVERNMENT(S) WITHIN WHOSE JURISDICTION SCENIC ROADS ARE LOCATED IS A REQUIREMENT OF THE PROGRAM This participation shall include:

• Local government only can make a formal designation request to KSBC.
• Local government prepares a formal designation request for a general corridor management plan for the road(s) being nominated.
• Local government monitors the status of the management plan and MAY BE REQUIRED BY KDOT TO UPDATE THE CORRIDOR MANAGEMENT PLAN TO RETAIN THE DESIGNATION.

(This means locals can lose the Byways Designation.)

Comments:  (Note that costs, property takings and such are not mentioned.) 

The administrative roles defined above are intended to promote public involvement and assure that a partnership is established between and among state agencies and local governments. THE OBJECTIVE OF THIS PARTNERSHIP IS THAT  QUALITY SCENIC ROADS ARE DESIGNATED AND THE VISUAL QUALITY OF THESE ROADS IS PROTECTED, ENHANCED AND MANAGED FOR THE LONG-TERM ENJOYMENT OF THE TRAVELING PUBLIC AND THE ECONOMIC GAIN ASSOCIATED WITH INCREASED TOURISM.

NOMINATION PROCEDURES

Nomination/designation procedures KSBC considered were based on the Committee’s desire for a cooperative association of state/local government agencies while encouraging individual and group participation. The following outline documents these deliberations:

• Festivals and natural points of interest, etc. provided by KSBC as a result of a field survey performed as part of the road review request.
• Establish community based goals for corridor management…to describe long term end points/targets describing the ultimate scenic byway character. A BASIC GOAL COULD BE TO PROTECT AND ENHANCE THE VISUAL QUALITY OF THE BYWAY CORRIDOR.
• Identify specific objectives to be implemented…
• Identify strategies and techniques to implement the management plan. These strategies may be voluntary, incentive based or regulatory…
• Identify an action plan…

Operation Plan. The operational plan addresses topics relating to operating the road itself…

Comments:

The purpose of the signing and promotional policy is to initiate efforts to attract travelers to the Kansas Scenic Road system…

CORRIDOR MAINTENANCE AND MANAGEMENT

This defines long term maintenance and management…protection, preservation, improvements of visual character and operation of the road as a scenic corridor.

Areas that MAY require visual or operational enhancements along the road will be identified in the corridor management plan. Enhancements may range from planting wildflowers to establishing overlooks.

DEClSlON:    What management effort is needed to assure that the visual character of a designated scenic road is preserved and enhanced?

Decision Basis:

The basic goal of the KANSAS SCENIC ROADS PROGRAM is to identify roads that have a high visual quality and unique visual character and to PROTECT AND ENHANCE THESE ATTRIBUTES WHILE CONTROLLING DEVELOPMENT that distracts from the visual quality. If this goal is reached the program will be an important element in promoting state-wide tourism and aid local economic development.

POLICY:

The Kansas Scenic Byway Committee (KSBC) works with local governments and INTERESTED GROUPS… (Watch for NGOs…'interested groups') 

Operational enhancements supported by the KSBC…

Resource enhancements that are supported by the KSBC include the following:

• Landscape management along the scenic byway right-of-way.
• Planting of native vegetation compatible with the area served by the scenic byway.
• SCREENING, REMOVAL OR RELOCATION OF VISUAL ELEMENTS THAT DISTRACT FROM THE CHARACTER OF THE SCENIC BYWAY, and protection techniques to control future development.
• Restoration or rehabilitation of features that are part of the scenic byway’s intrinsic resources.

The U.S. Department of Transportation, Federal Highway Administration produces this bit of propaganda…It looks good, sounds good but has some provisions that will take private property rights and more…
Major portions of this have been edited out. The text left in is where the risks lie…

In the text of the “Community Guide to Planning and Managing a Scenic Byway”…

• Libraries. Where to find likely routes…
• Preservation agencies. Who may help… 
• Local groups. Who to recruit… 
• ENVIRONMENTAL ORGANIZATIONS. GET IN TOUCH WITH GROUPS LIKE THE:
  -  NATURE CONSERVANCY,
  -  TRUST FOR PUBLIC LAND,
  -  AND NATIONAL AUDUBON SOCIETY…(This list includes some of the NGOs who want control of your property and use of your funds...) 
• Highway department. Getting government help…
• Local experts. Get the old-times involved…
• Fresh opinions. Getting local residents to see what they may be missing… 

(This is buried farther down in the Guide…following a lot of nice sounding text...)

Width. Some scenic byway programs define the corridor using a standard but arbitrary distance on either side — PERHAPS 1000 FEET OR A QUARTER MILE. This technique makes it easy to define the corridor, but its accuracy is low; in some areas with trees or buildings, it may extend for just a few feet; in others, it may extend for miles.

IDEALLY THE CORRIDOR LIMITS SHOULD BE CONSIDERED AS EVERYTHING WITH THE ROAD'S "VIEWSHED" — that is everything visible through your car windows. If your roadway is bordered by dense trees, your corridor will be considered very narrow at that point. Farther down the route, if you can see distant mountains over farmland, you have a very broad viewshed to consider.

Obviously, the more extensive the viewshed, the more complex your management plan will be. Today you’ll begin the process of figuring out what parts of your viewshed are vital to maintaining the integrity of your corridor. This is important: You don’t have to include the whole viewshed in what you want to manage, just the visually significant parts of it. In some instances, effective management of a scenic byway may

VISION STATEMENTS SHOULD NOT CONTAIN LANGUAGE REFERRING TO THE METHODS OF ACHIEVING YOUR RESULTS ("...AND THEN WE'LL ZONE THIS STRETCH RESIDENTIAL AND GET THE JUNKYARD OVER HERE TO GROW TALL BUSHES.") THESE ISSUES WILL BE ADDRESSED LATER WHEN YOU BEGIN ARTICULATING GOALS, BUT FOR NOW THEY ARE PREMATURE AND POTENTIALLY DIVISIVE. RIGHT NOW, SIMPLY STATE WHAT YOU SEE IN THE IDEAL FUTURE.

After everyone’s had a chance to write his or her own visions of the route, read them aloud and try to combine them into one vision statement that EVERYBODY PRESENT can agree with.
(This is the best reason to show up and object or protect private property rights…The NGOs are populated with folks who show up at these meetings and make their voices heard...They are often not locals.)

As the areas surrounding scenic byways are subject to change over time, the process needs to be flexible, providing a forum for public involvement and a framework for decision-making in the future. THE CMP SHOULD NOT BE THOUGHT OF AS A TIDY STUDY RESTING ON A SHELF, BUT A LIVING PROCESS THAT RESPONDS TO CHANGES AS THE SKILLS OF MANAGEMENT INCREASE, THE COMMUNITY EVOLVES, DEVELOPERS PROPOSE NEW PROJECTS AND TRENDS IN TRAVEL AND RECREATION CHANGEapply for state or federal scenic designation — you’ll need to make a much more thorough case, laying out in detail the qualities of your route, your needs, and the steps you have taken to include a wide cross-section of your community in the process.

• Easements. A widely used method, easements are the acquisition of limited rights to the property. An owner may sell or donate certain rights to property — such as the right to cut trees or erect signs — which would affect the scenic aspects of the land, but that would not affect the owner’s current use of the land, such as agriculture or grazing. Easements can be temporary, but are usually more permanent and often binding on subsequent owners of the property.
• Purchase of Development Rights (PDRs). One kind of easement is the PDR — the purchase of the right to develop property, usually by a land trust or a state or local government.
• Design Guidelines. Historic resources, landscapes, and commercial areas can be overshadowed by insensitive designing of new developments. Voluntary guidelines promote an awareness of the details that make such resources special, recommending such things as appropriate signage for a historic district, native plants for landscape projects, and design elements of commercial districts. Such guidelines are most effective when developed by a qualified professional with community input and consensus.
• FEE-SIMPLE ACQUISITION. IN CERTAIN CASES, PROPERTY SHOULD BE ACQUIRED OUTRIGHT BY THE PUBLIC. PROPERTIES WITH EXCEPTIONAL ATTRIBUTES--VALUABLE ECOLOGICAL AREAS OR HISTORIC RESOURCES--MAY BE ASSURED LONG-TERM PROTECTION ONLY THROUGH SUCH ACQUISITION.

Governmental Actions

GOVERNMENTAL REGULATION AND POLICY PROVIDE STRONG MECHANISMS FOR RESOURCE PROTECTION AND MANAGEMENT. The following examples outline a few of the more common methods:

Planning. Planning departments and agencies establish policies for the managed growth and development, determining the community objectives for housing, recreation, transportation, and economic development in the community. Planning departments also establish special districts for historic preservation, downtown revitalization, and scenic resources such as byways.

ZONING. An enforceable mechanism for achieving orderly land use, zoning identifies acceptable uses (commercial, conservation, agricultural, residential) that may occur in a given district or zone. Zoning can also regulate the use, as well as the height, placement, and density of land and buildings. Zoning regulations can establish setbacks (minimum distances) for structures from adjacent properties, or special resources such as parklands or institutions. Along a scenic byway, setbacks from the road right-of-way can be used to establish a “GREENBELT” BUFFER ZONE along the corridor. “OVERLAY DISTRICTS” can protect special resources regulations applied uniformly to all land meeting a certain description, REGARDLESS OF ZONE OR LOCATION, in addition to the regulations already apply. For example, an overlay district for land along a scenic byway may ban outdoor advertising or REQUIRE ADDITIONAL SCREENING around service areas.

Land use regulation. Land use regulation governs development…mandate open space…preservation of trees…development of retention ponds for storm water management…require sensitive development of parking areas, preservation or inclusion of historic resources…adding/preserving recreational facilities…

• Sign Ordinances. A uniform policy…size, placement, and design…
• Design Regulations. Establishing specific uniform design traits…
• Transfer of Development Rights (TDRs). Transfer of Development Rights is a planning policy whereby a developer may purchase the development rights of a property located in a designated no-growth zone and transfer the development rights to a designated receiving zone for credits such as an increase in allowable density, increase in height, or a special use not ordinarily allowed. TDR’s can be an effective tool for land conservation, but they only work in limited situations. They are most successful in areas where the jurisdiction covers a large area of which at least one part is experiencing growth, and where there is a sophisticated planning process already in place to accommodate the transfer. In general, this tool should be investigated by byway managers in or near metropolitan centers.

(Here’s a good example of what can happen when you try to build a home on your property…if it’s in the wrong place…Particularly if the environmental squadron notices...)

A CONTROVERSIAL  (Note the bias in this so-called news report) house under construction In Skamanla County, Washington, commands a sweeping view of the Columbia River. January 18, 1999...

Read about the expensive nightmare Jody and Brian Bea went through. It has become a vividly clear symbol of what can go wrong in a property rights war.

The links below will give you both sides to this controversy. The Bea's lives became hell because a hiker said she "didn't want to look at the house" when she took her rare walks...

http://seattlepi.nwsource.com/local/29428_house29.shtml

http://www.heartland.org/Article.cfm?artId=12854

http://www.encyclopedia.com/doc/1B1-356830.html

Are Scenic Byways Another Way to Steal Your Property Rights? by Vern Westgate and Tim Nordell